ENVIRONMENTALISM: INDIAN CONSTITUTION AND JUDICIARY

Author(s): Bhaskar Kumar Chakravarty

Source: Journal of the Indian Law Institute , January-March 2006, Vol. 48, No. 1
(January-March 2006), pp. 99-105
Published by: Indian Law Institute

Stable URL: https://www.jstor.org/stable/43952020

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 99

ENVIRONMENT ALISM: INDIAN

CONSTITUTION AND JUDICIARY

"ENVIRONMENTALEM" IS a new movement in the world. It is

acquiring such an importance in national plans and policies in dev
as well as developing countries that nowadays no development
is approved unless and until competent authority assesses its imp
environment.
It has been realized by mankind that living and non-living ele
in the environment keep interacting with one another to ma
mutual balance called "ecological balance" which is vital for survi
all living organisms, including human beings. It is known to a
that the earth is the only planet in this highly complex universe,
has acquired after millions of years of its origin the capacity to
and sustain human life through its ecological balance. But regret
man in his journey to civilization started polluting his own enviro
in such a way that it has now dawned on him that by disturb
ećological balance he is digging his own grave.
From the Vedas , Upanishads , Smritis and other ancient liter
we find that man lived in complete harmony with nature.1 F
ancient scriptures of Hindu religion one learns that the people g
much importance to trees, plants, wild lives and other thing
nature that they developed a long tradition of protecting and wor
nature.2 According to hinduism, God is omnipresent and is prese
every element of nature, whether it is tree, plant, river, mounta
water, atmosphere etc. Therefore, injury to any element of natur
injury or insult to God. This is to say, the environment was held
esteem as if it represented the omnipresent almighty. Environm
ethics has always formed an inherent part of Indian religious pr
and philosophy. Worshipping of nature - sun, moon, earth,
water etc. was not merely a primitive man's response to the
unknown, but arose from deep reverence shown to the forces of
which sustained and preserved human life on his planet.3 The ea
all along been considered as "Goddess Mother" in the ancient scri
and revered for its immense potential of preserving, protect

1. Dr. I. A. Khan, Environmental Law 22 (2002).

2. Id. at 24.
3. Justice Kuldip Singh, "Foreword" in Justice Ashok Desai, Environmental
Jurisprudence XV (2002).

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1 00 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 1

sustaining all creatures including human being on it. The id

protection of ecology and environment are also found
Arthasastra and in writings about the system of governance
Ashoka.4
It is a matter of great surprise that inspite of such a ric
shown to the earth and its environment, as depicted in the a
scriptures, the Constitution of India, as enacted and adop
hardly averred to natural environment of earth and its vitali
health. The makers of the Constitution did not appear to be
in this regard so as to give a constitutional mandate for pre
protection of the natural environment. It is submitted that t
in global level on environment have made great imp
Therefore, following the U.N. Conference on the Human En
held at Stockholm, Sweden, in 1972, the Constitution of
amended by the 42nd constitutional amendment and th
"ecology and environment" was incorporated for the first t
articles 48 A and 51A(g). By incorporating article 48 A in pa
Constitution, which contains the directive principles of stat
state has been given the constitutional mandate to protect a
the environment and to safeguard the forest and wildlife of
Since the principles laid down in the part IV of the Con
fundamental in the governance of the country, therefor
now the constitutional duty of the state to deal with the ma
to environment, forest and wildlife of the country. While
and legislative wings of the state are implementing the direc
by policy decisions and appropriate legislations, the jud
also implementing them through judicial activism. The 42nd
amendment did not confine the constitutional obligation to
improve environment only in the hands of the state but
obligation down to the level of the citizens also by incorpor
51 A (g) in a newly introduced part, namely part IV-A of f
duties. This amendment is considered to be a revolution, as it was not
only first of its kind in constitutional history expressing concern for
environment and its protection, but it also accorded recognition to
Buddhist and Gandhian5 environmental ethics, as article 51 A (g) made
it a fundamental duty for all the citizens of India not only to protect and
improve the natural environment but also to have compassion for all
living creatures. Another significant aspect of articles 48 A and 51 A(g)
is that the state and its citizens shall not only protect the environment

4. Shyam Divan and Armin Rosenecraz, Environmental Law and Policy in India:
Cases, Materials and Statutes 25 (2002).
5. According to Budhism and Gandhism one should have compassion towards
every living creature.

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 2006] NOTES AND COMMENTS 1 0 1

but must also improve it.6 By this

Constitution of India has become on
the world which have enshrined a
improvement of environment.7 One
that by raising the protection and i
status of constitutional law, the "th
is very important not only from th
from the point of view of the com
in the national charter of India. It is
third generation human right unde
policy and fundamental duties of ci
to make enforcement of this right m
citizens.

The constitutional duty entrusted upon the state to protect and

improve the natural environment is based on the "Doctrine of Public
Trust".9 This doctrine originally developed in ancient Roman empire.
According to this doctrine, there are certain natural resources, such as,
rivers, seashores, forests, wild lives, air etc., which are held by the state
in trustship for the free and unimpeded use of general public. According
to Roman law, these natural resources are either owned by none ( res
nullius) or by everyone in common ( res communius). Under the English
common law, however, the sovereign could own these natural resources
but the ownership was limited in the sense that the crown could not
grant these resources to private owners, if the effect was to interfere
with the public interest.
Ultimately, in course of time, this doctrine of public trust came to
hold the view that natural resources of great importance to the people as
a whole should not be made subject of private ownership. Such resources
should be made available freely to everyone irrespective of status of
life. This doctrine has not been applied in the environmental law and
according to this doctrine the state is the trustee of the environment and
as a trustee has the "affirmative duty" to protect and improve the
environment for the benefit of the people who are the ultimate
beneficiaries. This public trust doctrine has a vast potential and helping
the judiciary to scrutinize the executive and legislative actions of the

6. H. M. Seervai, Constitutional Law of India: A Critical Commentary 2019

(1993).
7. Like Swiss and Greek Constitutions a few countries, namely, Sri Lanka China
and some European countries have incorporated similar provisions in their
constitutions.
8. Right to healthy environment and development are known as third generation
human rights.
9. Supra note 4 at 168.

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1 02 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .48:1

state in the realm of environmental protection. The U

America has used this public trust doctrine for several
protection and improvement of the environment and the In
is also applying this doctrine in disputes having significant
importance.
It may be mentioned here that article 48A of the Constitution which
deals directly with the protection and improvement of environment is
non-justiciable in the court of law, as it is included in the directive
principle of state policy. Article 37 expressly mentions that the provisions
contained in the directive principles of state policy of the Constitution
should not be enforceable by any court, but nevertheless the principles
laid down in those provisions are fundamental in the governance of the
country and it shall be the duty of the state to apply these principles in
making laws. Similarly, the Constitution nowhere mentions how to
enforce the provisions of the part IV- A of the Constitution, which deals
with the fundamental duties of the citizens. It seems this part of the
Constitution, including article 51 A (g) was incorporated without
adequate debate in Parliament.
Inspite of the non enforceability in the court of law of the provisions
of part IV of the Constitution, articles 48 A and 51 A (g) are being
interpreted by the judiciary in such a way in the background of the
public trust doctrine that the judiciary is striking down the governmental
orders, decisions and legislations which are inconsistent with the
provisions of these articles.
The environmental constitutionalism which led to incorporation of
articles 48 A and 51A(g) in the Constitution received further impetus in
1978 when the apex court in Maneka Gandhi case10 in interpreting
articles 21, which deals with the human right relating to life and personal
liberty, held the view that the correct way of interpreting the provisions
of part III (i.e. fundamental rights) would be to expand the reach and
ambit of the fundamental rights rather than to attenuate their meaning
and content by judicial interpretation. This has not only given new
dimensions to article 21, but the court in interpreting subsequent issues
relating to environment and ecology has given birth to new environmental
jurisprudence through its judicial activism and held that right to life
includes right to clean and healthy environment. This enabled the court
to expand article 21 in such a way that the non-justiciable directives
contained in article 48A got resurrected as enforceable fundamental
right,11 in a manner beyond the comprehension of the makers of the
Constitution. This is to say, for all practical purposes the directives

10. Maneka Gandhi v. Union of India , AIR 1978 SC 594.

1 1. Durga Das Basu, Shorter Constitution of India 182 (1994).

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 2006] NOTES AND COMMENTS 1 03

contained in article 48A have been raised to the status of fundamental

right12 enforceable by writ petitions under articles 32 and 226 of the
Constitution. Another important development of this new environment
jurisprudence is that the traditional view that the negative language of
article 21 and the use of the word 'deprived' in it, has imposed upon the
state the negative duty not to interfere with the life and personal liberty
has undergone a sea change. Now, under the new environment
jurisprudence and constitutional environmentalism the state is under a
positive obligation to ensure clean and healthy environment for enjoyment
of life of every individual.
The judiciary now in analyzing the issues relating to environment is
taking recourse to constitutional environmentalism more assertively and
forcefully. Many controversial provisions in some legislation are being
scrutinized in the light of evolving environmental jurisprudence. For
example, the right to do business has come into conflict with the need
to protect and improve the environment. Saw mill industry, which is
providing livelihood to many is causing indiscriminate and illegal felling
of trees resulting in threat to environment. The courts in such kind of
cases are striking a balance and holding that for protection of
environment, the fundamental right to trade and business under article
19(1) (g) must be read together with the provisions in articles 21, 48 A
and 51A(g) of the Constitution.13
The Supreme Court in a case14 has highlighted very categorically
the constitutional duty of the state to protect the environment and held
that articles 39(e), 47 and 48A collectively cast a duty on the local
authority to phase out grossly polluting old vehicles and non CNG buses
to improve environment and protect the health of the people of Delhi.
The judiciary has been well aware of international development in
the field of environmental law and is moulding and developing the
environmental jurisprudence in the light of international conventions,
treaties and agreements. The Indian judiciary by taking recourse to
international environmental principles is not only reinforcing,
strengthening and widening the environmental jurisprudence in India,
but is also making the executive and legislative wings of the state pro-
active in the field of protection and improvement of the environment. In
fact, relying on some international environmental principles the Indian
judiciary has been able to face some of the challenges relating to
environmental protection very successfully in the absence of appropriate
domestic legislation in the concerned field. The Supreme Court relying
on the international concept of sustainable development, which calls

12. Durga Das Basu, Human Rights in Constitutional Law 397 (1994).
13. Basudev Yadav v. State of Bihar , AIR 2002 Pat 64.
14. M. C. Mehta v. Union of India , AIR 2002 SC 1696.

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104 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 48 : 1

upon the states to bear solemn responsibility to cons

environment and natural resources for the benefit of pres
generations, has given some important decisions relating to
The court is also applying very successfully many prin
emanating from the international concept of sustainable d
One of the basic tenets of sustainable development is th
beings have a fundamental right to an environment, adeq
health and well-being. The Indian judiciary as stated e
successfully expanded the scope of the fundamental rig
personal liberty under article 21 of the Indian Constitution
right to life includes right to healthy environment.
Similarly, another principle that emanates from th
sustainable development is that economic and industria
must accommodate environmental protection, that is to say
should not be at the cost of the environment. The Supreme
on this principle ordered closure of certain mines that caused
environmental damage in Doon Valley. 15 In Ganga Pollution case16
also the apex court relying on the same principle ordered the closure of
tanneries and held that though the leather industry brought much needed
foreign exchange for the economic development of the country this
should not be allowed at the cost of environment. According to the
court the life, health and ecology have greater importance to the people
than loss of revenue, employment etc. The court rejected the old notion
that development and environmental protection cannot go together, and
has held in conformity with the agenda 21 of the Rio Declaration (1992)
that to achieve sustainable development environmental protection must
constitute an integral part of the developmental process and should not
be considered in isolation. It has further held that sustainable development
must be accepted as a viable concept for eradication of poverty and
improvement of the quality of human life while living within the carrying
capacity of the supporting ecosystems.17
The apex court has through judicial activism expanded the scope of
article 32 and is utilizing it for fashioning new strategies for protection
of environment. For example, the precautionary principle and polluter
pays principle, which are offshoots of the concepts of sustainable
developments are being applied by the courts in the context of protection
of environment by utilizing article 32 in appropriate proceedings. It has
been found that while the industrial and technological advancements are
helping to raise living standard they are at the same time very adversely

15. See Rural Litigation and Entitlement Kendra, Dehradun v. State of U P.,
AIR 1985 SC 652.
16. M.C. Mehta v. Union of India , AIR 1988 SC 1037 at 1048.
17. See Vellore Citizens Welfare Forum v. Union of India , AIR 1996 SC 27
at 2720.

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2006] NOTES AND COMMENTS 1 05

affecting the natural environment

Therefore, to prevent such effect o
has applied the precautionary prin
statutory authorities must fore
environmental degradation by ta
according to this principle it is alw
show to the state authority that his
and not harmful.18
The polluter pays principle has al
Court in several cases19 to do justi
victims of environmental pollut
remediation of the damaged env
sustainable development and as s
cost of reversing the damaged e
sufferer.20 This liability of the p
environment and the sufferer is ir
reasonable care while carrying out
Another principle that has emana
development is the principle of i
this principle the present generatio
and environment in a manner detr
has already incorporated this princ
newly developed environmental j
Mehta v. Kamal Nath.lx
Therefore, it will not be in exa
from above that the global moveme
environment is having a profou
judiciary of India in shaping and de
and improvement of environment
global environmentalism on Indian
as degradation of environment
international problem, and envir
jurisdiction of a country has trans-
harm in other countries as well.

Bhaskar Kumar Chakravarty*

18. Ibid.
19. See Enviro Legal Action v. Union of India , AIR 1996 SCW 1069 and M.C.
Mehta v. Union of India , AIR 1987 SC 965.
20. Enviro Legal Action v. Union of India. Ibid.
21. (2000) 6 SCC at 213.
* Principal, University Law College, Gauhati University.

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