We won’t have society if we destroy the environment- Margaret Mead
Environment plays an important role in human life as well as in the development of society. Because of development, the purity of the environment has been threatened to an appalling extent. The need to protect and improve the environment is become essential for the peaceful survival of humans and other life forms on planet Earth that right to environment has emerged as a human right.
As there is no direct provision for the right to environment in Constitution of India but the right to environment is included in right to life by judiciary under Article 21 of Constitution of India.
Evolution of Environment Law in India
I.United Nations Conference on Human Environment
The United Nations Conference on Human Environment was the first step towards the environment. It was held at Stockholm in June 1972. The Declaration on Human Environment was passed containing 26 principles, with the main object of overcoming environmental problems related to the development of States and to provide clean & healthy living conditions to people.
An important aspect of the Stockholm Declaration was to draft an action plan for the development of human environment. Moreover, the declaration stated that economic and social development were essential for ensuring a healthy environment for human. This has been called the Magna Carta on environment from which two important conclusions can be reached:
Man has the fundamental right to freedom, equality and adequate conditions of life in an environment of quality that permits a life of dignity and well-being;
Man bears a solemn responsibility to protect and improve the environment for present and future generation.
In the last decade, the most revolutionary step towards the preservation of the environment was the Earth Summit call by the UN General Assembly at Rio de Janeiro from 3rd to 14th June, 1992. The Conference had the largest gathering of world leaders ever in the history – deliberating and chalking out a blue print for the survival of the planet. It added a new dimension on the issues of environment and development in international negotiations.
The main objective of the Summit was to find an equitable balance between the economic, social and environmental needs of present and future generations and to lay down a foundation for global partnership between developed and developing countries, on one hand, as well as governmental agencies and private organisations, on the other hand. Amongst the tangible achievements of the Rio Conference was the signing of two conventions
biological diversity and
II.World Summit on Sustainable Development
The World Summit on Sustainable Development was held at Johannesburg in 2002, the Summit reaffirmed sustainable development as a central element of the international agenda and gave new concept to global action to fight poverty and protect environment. The Summit’s plan of implementation is a seventy-one page document that is intended to set the world’s environmental agenda for the next ten years and is expected to be a model for future international agreements. The plan of implementation aims at building up the achievements made at UNCED and make commitment to undertake actions and measures at all levels to implement Rio principles and Agenda 21.
Constitutional Mandate on Environmental Protection
Prior to the 42nd Constitutional Amendment The Constitution of India originally did not contain any direct and specific provision regarding the protection of environment. It contained only few Directive principle of state policy on some aspects relating to public health, agriculture and animal husbandry. These Directives are still not judicially enforceable.
Forty-Second Constitutional Amendment
Taking note of the Stockholm Conference and the growing awareness of the environmental problems, the Indian Constitution was amended in the year 1976. This gave it an environmental dimension and added direct provisions for the preservation of environment.
Art 48A, a directive principle, was inserted into Part IV of the Constitution, reading as follows:
The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
An obligation was also imposed on the State through Art 51 A(g) in Part IVA, casts a duty on every citizen of India stating:
It shall be the duty of every citizen of India to protect and improve the environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
In M.K. Janardhanam v. District Collector Tiruvallur, the Madras High Court has observed that the phrase used in Art 48A and Art 51A “protect and improve” which implies that the phrase appears to observe affirmative governmental action to improve the quality of the environment and not just to preserve the environment in its degraded form. Therefore, the constitution makes two fold provisions –
It gives directive to the State for the protection and improvement of environment.
It casts a duty on every citizen to help in the preservation of natural environment.
The right to live in a clean and healthy environment is not a recent invention of the higher judiciary in India. The right has been recognised by the legal system and the judiciary in particular for over a century or so. The only difference in the enjoyment of the right to live in a clean and healthy environment today is that it has attained the status of a fundamental right the violation of which is prohibited. The judiciary has managed to expand the ambit of Article 21 of the constitution of India, through various judicial judgements, to include the Right to healthy and clean environment to be a fundamental right under right to life.
Fundamental Right to Environment
Article 21 of the constitution of India provides for right to life and personal liberty, it states “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This article imposes duty on the state to protect the life and liberty of the people. The concept of the right to life has been broadened through various judgements of Supreme Court. While resolving issues relating to environment, the judiciary considered the right to clean and healthy environment as fundamental to life and upheld as fundamental right.
The Judiciary has played a vital role in interpreting the Article 21 of the Indian Constitution. The scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, it includes the right to clean environment. Following are some important judicial pronouncements by the apex court of India in this regards:
Subhash Kumar v. State of Bihar,AIR 1991 SC 420
In this case the Supreme Court observed that ‘right to life guaranteed by article 21of the Constitution of India includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ The Court recognised the right to a wholesome environment as part of the fundamental right to life. This case also indicated that the municipalities and a large number of other concerned governmental agencies may be compelled to take positive measures to improve the environment.
Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh,AIR 1988 SC 2187
In this case, the representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote a letter to the Supreme Court alleging that illegal lime stone mining in the Mussorie-Dehradun region was causing damage to the fragile eco-systems in the area. The Court treated this letter as a public interest litigation under Article 32 of the Constitution of India. Also several committees have been appointed for the full inspection of illegal mining sites. All the committees came at the conclusion that the lime stone quarries whose adverse effects are very less, only those should be allowed to operate but after further inspection. Therefore, the Court ordered the closure of a number of lime stone quarries.
M.C. Mehta vs. Union of India (Vehicular Pollution Case)
In this case the matter was regarding the vehicular pollution in Delhi city, it was held to be the duty of the Government to see that the air did not become contaminated due to vehicular pollution. The Apex court also confirmed the right to healthy environment as a basic human right and stated that the right to clean air also developed from Art 21 which included to right to life.
T.N. GodavarmanThirumulpad v. Union of India AIR 1997 SC 1228
This case was concerned about conservation of forests, the court held that, considering the compulsions of the States and the depletion of forest, legislative measures have shifted the responsibility from States to the Centre. Moreover, any threat to the ecology can lead to violation of the right of enjoyment of healthy life guaranteed under Article 21 of Indian constitution, which is required to be protected. The Constitution cast upon this Court a duty to protect the environment.
As part of its campaign on green environment, Parliament of India has enacted nation-wide comprehensive laws. One of the major environmental enactments came after the 2 years of the Stockholm Conference in 1974. The Water (Prevention and Control of Pollution) Act was passed for the purpose of prevention and control of water pollution and for maintaining and restoring the wholesomeness of water. It is an India’s first attempt to deal with an environmental issue from a legal perspective.
From this period onwards, the Central Government has been considered environmentally active. In 1976, the Constitution of India was amended (42nd amendment) to insert a separate fundamental duties chapter. The 1980s witnessed the creation of many eco-specific organizations. In the year 1980, the Forest (Conservation) Act was passed for the conservation of forests and to prohibit further deforestation. The Air (Prevention and Control of Pollution) Act, 1981 was enacted by invoking the Central Government’s power under Article 253 of Indian constitution. It contained several distinguishing features. The preamble of Air (Prevention and Control of Pollution) Act, 1981 reveals that “the Act represents an implementation of the decisions made at the Stockholm Conference”. Also, a notification relating to the Noise Pollution (Regulation & Control) Rules was made in the year 2000 with the objective of maintaining Ambient Air Quality Standards in respect of noise.
After the Bhopal gas tragedy, the Government of India enacted the Environment (Protection) Act, 1986. The laws that existed prior to the enactment of the Act essentially focused on specific pollution (such as air and water). The need for a single authority which could assume the lead role for environmental protection was answered through the enactment of Environment (Protection) Act, 1986. It is the legislation designed to provide a framework for Central Government to coordinate the activities of various central and state authorities established under previous laws. It is also enacted in the form of an enabling law, which delegates wide powers to the executive to enable bureaucrats to frame necessary rules and regulations.
However, several notifications and rules have also been made, some of which include the Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes (Management and Handling) Rules in 1998, Environment (Silting for Industrial Projects) Rules 1999, Recycled Plastics (Manufacture and Usage) Rules 1999 and the Municipal Solid Wastes (Management and Handling) Rules in 2000. In addition to these eco-specific legislations, there was no comprehensive legislation dealing with biodiversity in India, and to fulfil its international obligation under the Convention on Bio-Diversity, the parliament of India has enacted the Biological Diversity Act, 2002.
It is very sad and shameful, despite the presence of such diverse laws, the pollution rate has crossed the dead line.
Role of Judiciary
One of the most interesting and powerful parts of the Constitution is that the Writ Jurisdiction is conferred on the Supreme Court under Article 32 and on all the High Courts under Article 226. Under these provisions, the courts have the power to issue any direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever is appropriate. This has cover one of the most effective and dynamic mechanisms for the protection of environment, that is, Public Interest Litigation (PIL).
Public Interest Litigation under Article 32 and 226 of the Indian constitution resulted in a motion of environmental litigation. In Rural Litigation and Entitlement Kendra v. State of U.P.AIR 1988 SC 2187 The Supreme Court ordered the closure of certain limestone quarries causing large scale pollution and adversely affecting the safety and health of the people living in the area.
The court has introduced the right to environment as a fundamental right under Article 21 of the constitution of India.The Constitutional scheme to protect and preserve the environment has also been provided under Articles 21, 48A and 51A(g) which includes fundamental right to healthy and pollution free environment, constitutional obligation of the State and fundamental duty of all the citizens of India to protect and improve the natural environment respectively.
From the various judgments, it is evident that the Indian judiciary has used the effective provisions of the constitutional law to develop a new “environmental jurisprudence.”
written by : Ritu Wadhwa
A student of Jindal Global Law School, having interest in environment laws.