Unit 2

Constitutional Provisions and

Environmental legislations

Vijay K. Tyagi
 a. Right to life, Right to Wholesome environment, Right to development, Right to clean
& decent environment, Directive Principles of State Policy, Fundamental Duties,

Development v. Environment

- Developed Countries v. Developing Countries at CoP26

- advantage of development can only be enjoyed in true sense when it does not cause adverse
effect on environment;
- development without concern for the environment can only be short term development;
- Twentieth century - indiscriminate deforestation, mineral exploitation, industrialisation, and
urbanisation have led to an unsustainable environment.
Sustainable Development:

- term has been coined by the World Commission on Environment and Development (WCED) -

Brundtland Commission in its report “Our Common Future”

- “Sustainable development is the development that meets the needs of the present without

compromising the ability of the future generations to meet their own needs”

- two key concepts:

(i) the concept of the essential needs of the present generation; and

(ii) the idea of limitations imposed by the state of technology and social organizations on the

environment is ability to meet present and future needs.

Constitution of India and Environment

- few constitutions in the world which obligates citizen as well as the State to protect and

improve environment;

- specific provisions for environmental protection under the DPSP, Fundamental duties and

Centre-state relations;

- 42nd CA, 1976 - Article 48A and 51A(g)

Article 48A - The State shall endeavour to protect and improve the environment and to safeguard

the forests and wild life of the country.

Article 51A(g) - fundamental duty of every citizen to protect and improve the natural environment
Right to Life and Right to Environment:

- not expressly provided in part III of the constitution

- by a series of judicial decisions, judiciary has taken into account arts 21, 14, 19

- Courts have maintained Principle 1 of the Stockholm Declaration which says that “man has

fundamental right to life in an environment of equality”

Article 21:

No person shall be deprived of his life or personal liberty except according to procedure

established by law.

- right to life is a negative right, the Supreme Court has expanded this negative right in two
(i) any law affecting personal liberty should be reasonable, fair and just;

(ii) the court recognized several unarticulated liberties that were implied by Article 21.

- in second way, the court interpreted the right to life and personal liberty to include right to

environment. The right to environment was interpreted in two ways:

1. Right to wholesome environment; and

2. Right to livelihood of people.

1. Right to wholesome environment:

- clear, hygenic, unpolluted environment which leads to a life of dignity;

- Three different phases:

(i) Approach of SC and HC till 1980 - writs under article 32 but no mention of any specific

right

(ii) Approach of SC from 1980 onwards - vocal and explicit

 a. Right to life, Right to Wholesome environment, Right to development, Right to clean
& decent environment, Directive Principles of State Policy, Fundamental Duties,

(A)Approach of Supreme Court till 1980:

- The Supreme Court entertained the writs under Article 32 but nowhere specifically provided as to
which right were violated and also did not make reference to Article 48-A.
- The first indication of recognising the right to live in healthy environment as part of Article 21
was evident from the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.
(AIR 1985 SC 652) which is also known as Dehradun Mussorie Hills Quarrying Case.
 Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. (AIR 1985 SC 652)

Facts:

In this case, the RLEK, an NGO and a group of citizens wrote to the Supreme Court against the
progressive mining which denuded the Mussories Hills of trees and forest cover and accelerated
soil erosion resulting in landslides and blockage of underground water channels which fed many
rivers and springs in the valley. The court ordered the registry to treat the letter as writ petition
under article 32 of the Constitution (epistolary jurisdiction).

Due to lack of vegetation, many landslides occurred which killed villagers and destroyed their
homes, cattle and agricultural lands. In 1961, mining was prohibited in the state by the state
minister of mines. However, quarry operations reopened the mining operations by successfully
lobbying with the chief Minister of the state under which they got mining leases for 20 years. This
led to corrupt and illegal practices and still there was no enforcement of safety rules.
In 1982, eighteen leases came up for renewal, which were rejected by the State on account of the
ecological destruction. However, an injunction was granted by the Allahabad High Court which
allowed the applicants to continue mining, giving the reason that economic benefits outweighed
ecological factors.

In 1983, the Rural Litigation and Entitlement Kendra sent a letter of complaint to the Supreme
Court which was against environmental degradation. The Court treated the letter as a writ petition
under article 32.

Judgement:

the Central Government had become concerned about the destructive mining operations in the
Valley at the same time when the Supreme Court took up the issue. In 1983, the Government of
India appointed a Working Group to inspect the limestone quarries in the Dehradun-Mussoorie
area.
The same individual, D.N. Bhargava, headed both the government’s Working Group and the
court’s committee came to similar conclusions as to the harmful effect of the mines on the
environment. The Working Group also prepared reports for the court on the few mining operations,
which were allowed to remain open. During the course of the litigation, in 1986, Parliament
enacted the Environment Protection Act.

After this, the Valley was designated as an ecologically fragile area under the Environment
Protection Act. In addition, the centre appointed a Doon Valley Board, under the chairmanship of
the Minister for Environment and Forests, which was charged with conserving and restoring
degraded areas of the Valley. The Supreme Court concluded that mining in reserved forests in the
Dehradun valley violated the Forest Conservation Act. However, the Forest Conservation Act only
prohibits non-forest activities on forest lands that do not have the approval of the Central
Government.
In addition to ecological integrity and national interests, the Supreme Court was also concerned
with the welfare of mine operators and laborers left unemployed by closure of the Dehradun Valley
operations. The Court issued the following directions:

(a) Orders that mine lessees whose operations were terminated by the court would be given
priority for leases in new areas open to limestone mining.
(b) Orders that the Eco-Task Force of the central department of Environment reclaim and reforest
the area damaged by mining and that workers displaced by mine closure be given priority for
jobs with the Eco-Task Force operations in the region.

The Constitution of India guarantees the Right to wholesome environment as a fundamental right
under Article 21. Industrialization leads to development which further leads to the degradation of
environment.
To resolve this issue, the doctrine of sustainable development has come up. i.e., there must be
balance between development and ecology. Environmental degradation is not justified on the stake
of national interest. According to the socio-economic needs of the country, administrative and
legislative strategies for harmonizing environmental and developmental values should be
formulated.

It is interesting to note that in its order the Supreme Court did not make any reference to the basic
Article 48-A the object of which is sought to achieve, nor did the Supreme Court articulate any
fundamental right specifically infringed. Whereas, exercise of jurisdiction under Article 32 pre-
supposes the infringement of fundamental rights. It is submitted that the disturbance of ecology
and pollution of water, air and environment by reason of quarrying operation definitely affects the
life of the person and thus involves the violation of right to life and personal liberty under Article
21 of the Constitution. It is for the infringement of this right to life that Supreme Court entertained
the petition under Article 32 of the Constitution.
 a. Right to life, Right to Wholesome environment, Right to development, Right to clean
& decent environment, Directive Principles of State Policy, Fundamental Duties,

(A)Approach of the Supreme Court from 1980 onwards:

The first time when the Supreme Court came close to almost declaring the right to environment in
Article 21 was in 1990, in Chhetriya Pradushan Mukti Sangharsh Samiti v. State of Uttar
Pradesh. The court held:

“every citizen has a fundamental right to have the enjoyment of quality of life and living as
contemplated by Article 21 of the Constitution. Anything which endangers or impairs by conduct of
anybody, either in violation or in derogation of laws, the quality of life and living by the people is
entitled to be taken recourse of Article 32 of the Constitution.
In Subhash Kumar v. State of Bihar, Justice K.N. Singh held:

“Right to live is a fundamental right under Article 21 of the Constitution and it includes the right to
enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32
of the Constitution for removing the pollution of water or air which may be detrimental to the
quality of life.”

However, in both the cases, the Court did not get an opportunity to apply the principles to the facts
of cases, as the Court found that the petitioners had made false allegations due to a personal grudge
towards the respondent companies alleged to be polluting the environment.
In Bangalore Medical Trust v. B.S. Mudappa (1991) where the issue was whether an open space

laid down as such in a development scheme could be leased out for a private nursing home.

Justice Thommen answered the petition in the négative. Once appropriated or earmarked as ‘open

space’ or for building purposes or other development as part of the scheme adopted by a local

authority like the Bangalore Development Authority (BDA), the land should be used for the

purpose. If it is to be used for any other purpose, the scheme itself should be altered in the manner

in which, by law, the authority as a corporate body is competent to alter.

He further observed: “Protection of the environment, open space for recreation and fresh air,

playgrounds for children promenade for the residents, and other conveniences or amenities are

matters of great public concern and of vital interest to be taken care of in a development scheme ...

The public interest in the reservation and preservation of open spaces for parks and playgrounds

cannot be sacrificed py leasing or selling such sites to provide persons for conversion to other use.

Any such act ... would be in direct conflict with the constitutional mandate to ensure that any State

action is inspired by the basic values of individual freedom and dignity and addressed to the

attainment of quality of life which makes the guaranteed rights a reality for all citizens.”
In A.P. Pollution Control Board v. Prof. M.V. Nayudu, the Supreme Court clarified the contours

of the right to hygienic environment in the light of Articles 48A, 51 A(g) read with Article 21 of

the Constitution. The Court observed that the environmental concerns were as important as the

human rights concerns as both were founded on Article 21 which guarantees the fundamental right

to life and personal liberty. While environmental aspects concern ‘Life’, human rights aspects

concern Liberty. In the context of the emerging environmental jurisprudence, it is the duty of the

Court to render justice by taking all aspects into consideration.

In M.C. Mehta v. Kamal Nath, Justice Saghir Ahmed observed:

“These two Articles [Articles 48A and 51 A (g)] have to be considered in the light of Article 21 of

the Constitution ... Any disturbance of the basic environmental elements, namely, air, water and

soil, which are necessary for ‘life’, would be hazardous to ‘life’ within the meaning of Article 21 of

the Constitution.
In T.N. Godavarman Thirumalpad v. Union of India (2000), the Supreme Court held that right
to life guaranteed in Article 21 of the the Constitution of India includes a right to an environment
adequate for health and well being.

In State of M.P. v. Kedia Leather & Liquor Ltd., the Supreme Court held that

“Environmental, ecological, air and water pollution amount to violation of the right to life assured
by Article 21 of the Constitution of India. Hygienic environment is an integral facet of healthy life.
Right to live with human dignity becomes illusory in the absence of humane and healthy
environment.”
 b. Environment Protection and Public Interest
Litigation

- Public Interest Litigation has revolutionised the traditional adversary litigation.

- The mechanism of PIL has enabled the judiciary to shed its traditional passive attitude.

- Contrary to the past practices, today a person acting bona fide and having sufficient interest can

move the courts for redressing public injury, enforcing public duty, protecting social and

collective rights and interests and vindicating public interest; [S.P. Gupta v. Union of India]

- In the eighties and nineties, there has been a wave of envoironemental litigation. Most of such

cases were in the form of class action and PIL.

- The concept of class action is embodied in the Code of Civil Procedure, 1908, where if
numerous persons have common interests, one or more of such person can file a suit. A recent
example of class action is the Bhopal disaster litigation.
- In most of the PIL, the subject matter of litigation has been a grievance against the violation of
basic human rights of the poor and helpless or about the conduct of government policy.
- This kind of litigation is not adversarial in strict sense as in adversarial procedure, each party
produces his own evidence tested by cross examination by other side. Most of the
environmental litigation in India fall within this class only.
- Of late, the Court in India have tried to overcome the limitations associated with a writ
procedure.
- The Supreme Court have recently permitted some modifications in the traditional rule of locus
standi (in which only aggrieved person was entitled to seek a remedy).
- The modification has permitted the poor and oppressed to be represented by volunteers,
described as representative standing. The representative standing helped in the release of
bonded labourers in Bandhua Mukti Morcha case.
- By second modification, a concerned citizen is allowed to sue, not as a representative of others
but in his own right as a member of society to whom a public duty is owed, which is known as
citizen standing.
- The evolution of PIL, in environment cases, has been a remarkable judicial contribution. It has
contributed to the speeding of environmental awareness in the country as well as shaking of
administrative lethargy.
- The Supreme Court in Tarun Bhagat Singh v. Union of India, observed that PIL should not
be treated as the usual adversarial litigation. Petitioner’s concern for the environment, ecology
and the wildlife should be shared by the government.
- Public interest litigation is a collaborative effort between the Court, the citizen and public

official where procedural safeguards have a minimal utility and may be relaxed to enable relief

and socio economic justice.

Features of PIL:

1. The scope of the law suit is not limited by a specific historical event, such as breach of

contract or personal injury, but is consciously shaped by the court and the parties;

2. The party structure is not limited to individual adversaries but is sprawling and amorphous;

3. The fact that inquiry is not a simple investigation of past historical events but rather resembles

the kind of inquiry into current problems undertaken by legislative bodies;

4. Relief is not limited to compensation for a past wrong but is often prospective, flexible and

remedial having broad impact on many persons not party, to the law suit;

5. The relief is often negotiated by the parties rather than imposed by the court;

6. The judgment does not end the court’s involvement but requires a continuing administrative role

by judiciary;

7. The judge is not passive but plays an active role in organising and shaping the litigation;

8. The subject matter of litigation is not a private dispute but rather a grievance about public

policy.
Personal interest cannot be enforced through the process of the court under Article 32 of the

Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal

proceedings for vindication or enforcement of fundamental rights of a group of persons or

community which are not able to enforce their fundamental rights on account of their incapacity,

poverty or ignorance of law. A person invoking the jurisdiction of this court under Article 32 must

approach this court for the vindication of the fundamental rights of affected persons and not for the

purpose of vindication of his personal grudge or enmity. It is the duty of the court to discourage

such petition and to ensure that the course of justice is not obstructed or polluted by unscrupulous

litigants by invoking the extraordinary jurisdiction of this court for personal matters under the garb

of the public interest litigation.

 Environmental Pollution under IPC and CrPC

- “Pollution is a civil wrong. By its very nature, it is a tort committed against the community as
a whole. A person, therefore, who is guilty of causing pollution has to pay damages
(compensation) for restoration of the environment and ecology. He has also to pay damages to
those who have suffered loss on account of the act of the offender... In addition to damages ...
the person guilty of causing pollution can also be held liable to pay exemplary damages, so
that it may act as a deterrent for others not to cause pollution in any manner.”
- Torts relating to environmental pollution are:-
- (i) Nuisance
- (ii) Negligence
- (iii) Trespass
- (iv) Strict Liability
(i) Nuisance:

- The word ‘nuisance’ has been derived from the French word “nuire” which means to injure,

hurt or harm. Thus, nuisance ordinarily means that which annoys or hurts or that which is

offensive.

- The basis of the law of nuisance is the maxim sic utere tuo ut alienum non laedas, which

means that “a man must not make such use of his property as unreasonably and unnecessarily

to cause inconvenience to his neighbour.”

- Nuisance may be through escape of water, fumes, smoke, foul gas, smell, noise, heat,

vibrations, disease germs, electricity etc.

Kinds of Nuisance:

Nuisance may be

(1) public nuisance, or a

(2) private nuisance.

Public Nuisance is also an offence under the law of crimes. (Sections 268-278 IPC and Sections 133-

144, Code of Criminal Procedure, 1973).

(ii) Public Nuisance - Criminal Side

- A public nuisance is defined in Section 268 of the Indian Penal Code, 1860, which runs as

follows: “A person is guilty of a public nuisance who does any act or is guilty of an illegal

omission which causes any common injury, danger or annoyance to the public or to the people

in general who dwell or occupy property in the vicinity, or which must necessarily cause

injury, obstruction, danger or annoyance to persons who may have occasion to use any public

right.”

- Section 290 of the Indian Penal Code, 1860 provides that whoever commits a public nuisance

in any case not otherwise punishable by the Code shall be punished with fine which may
- Section 291 provides for punishment in respect of continuance of a public nuisance. It

provides- “Whoever repeats or continues a public nuisance, having been enjoined by any

public servant who has lawful authority to issue such injunction not to repeat or continue such

nuisance shall be punished with simple imprisonment for a term which may extend to six

months, or with fine, or with both.”

- The Section makes it clear that a public nuisance is not directly punishable. The aggrieved

party first obtains the remedy of injunction under Sections 142 and 143 of the Code of

Criminal Procedure, 1973. If after the order of injunction, he repeats or continues the same,

only then he shall be punished.

- The procedure for removal of public nuisance is laid down in Sections 133 to 144 of the Code

of Criminal Procedure, 1973. Section 133 empowers a Magistrate to pass a “conditional order”

for the removal of a public nuisance within a fixed period of time. The report may be lodged

with the Magistrate either by the police or by a citizen. The accused person disobeying the

order of the Magistrate will be punishable under Section 188 of the Indian Penal Code.

- Thus, remedies for a public nuisance are

(a) a civil action under Section 91, CPC. 1908

(b) a criminal proceeding under Section 133, 144 Cr.P.C. 1973) and

(c) a criminal prosecution.