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Environmental Law and the Indian Constitution
Some important provisions
- Duty of the State ( Part IV)
Part IV of the Constitution of India contains the directive principles of State policy. These directives are the active obligations of the State; they are policy prescriptions for the guidance of the Government.
Article 37 of Part IV of the Constitution limits the application of the directive principles by declaring that these principles shall not be enforceable by any Court. Therefore, if a directive is not followed by the State, its implementation cannot be secured through judicial proceedings. On the other hand, these principles are fundamental in the governance of the country and it is the duty of the state to apply these principles during the process of law-making.
Part IV – Directive Principles of State Policy
Article 48A. Protection and improvement of environment and safeguarding of forests and wildlife
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
The parliament had considerable debate over the wording of the draft Article 48- A. Several amendments were moved in both the houses of the Parliament. H.M. Seervai has correctly pointed out:
Article 48-A reflects an increasing awareness of people all over the word of the need to preserve the environment from pollution, especially in urban areas. Smoke, industrial waste, deleterious exhaust fumes from motor cars and other combustion engines are injurious to the health and well-being of the people and foul the atmosphere. The preservation of forests and their renewal by afforestation has long been recognised in India as of great importance both with reference to rainfall and to prevent erosion of the soil by depriving it of forests which protect it. The preservation of wild life is looked upon as necessary for the ‘preservation of ecological balance’. Article 48-A rightly emphasis the fact that the State should try not only to protect but to improve the environment.
Article 39(e), 47 and 48-A of the Directive Principles of State Policy have a definite bearing of environmental problems. They, by themselves and collectively impose a duty on the State to secure the health of the people, improve public health and protect and improve the environment.
Environmental pollution may damage the monuments of national importance, the protection of which is a duty of the State under Article 49 of the Constitution. Article 49 of the Directive Principles of State Policy provides for the obligation of the State to protect monuments, places and objects of national importance. In the Taj case9 the Supreme Court of India seems to have got inspiration from Article 49 while protecting the Taj Mahal, a monument protected under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, from harmful Industrial emissions originating in and around Agra.
Article 51(c) directs the State to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Therefore, in view of the range of international treaties law and treaty obligations in Article 51 (c), read to conjunction with the specific treaty provision, may also serve to strengthen the hands of pro-conservation judge.
- Fundamental Duties of the Citizens ( Part IV A)
The Constitution (Forty-second Amendment) Act, 1976 inserted part IV-A into the Constitution of India. This new part prescribes certain fundamental duties for the citizens of India. The sole Article of this part, Article 51-A, specifies ten fundamental duties. Part IVA – Fundamental Duties
Article 51A. Fundamental duties It shall be the duty of every citizen of India …
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; Then Indian Constitution has imposed a joint responsibility upon the State; and every citizen of India to protect and improve the natural environment. In the words of Ranganath Mishra, J.:
“Preservation of environment and keeping the ecological balance unaffected is a task which not only Government but also very citizen must undertake. It is a social obligation and let is remind every citizen that it is his fundamental duty as enshrined in Article 51-A (g) of the Constitution”
After making reference to Article 48-A and Article 51-A (g), the High Court of Himachal Pradesh concluded
Thus there is both a Constitutional pointer to the State and a Constitutional duty of the citizens not only to protect but also to improve the environment and to preserve and safeguard the forests, the flora and fauna, the rivers and lakes and all the other water resources of the country. The neglect or failure to abide by the pointer or to perform the duty is nothing short of a betrayal of the fundamental law which the State and, indeed, every Indian high or low, is bound to uphold and maintain.
The Courts have reminded time and again to both State as well as citizens about their duties towards environment while deciding environmental issues by referring to Article 48-A and 51- A(g) of the Constitution.
- Fundamental Rights (Part III)
- Right to Wholesome Environment
Part III of the Constitution of India contains fundamental rights. These rights were included in the Constitution after long debates in the Constituent assembly.
Part III – Fundamental Rights Article 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 32: Remedies for enforcement of rights conferred by this Part
(1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
It was the Maneka Gandhi case that heralded the new era of judicial thought. The court started recognising several unarticulated liberties that were implied by Article 21 and during this process the Supreme Court interpreted, after some hesitation the right to life and personal liberty to include the right to wholesome environment. The conflict between development needs and environmental protection has been the most controversial issue before the courts in decide in environmental matters. Incidentally the Dehradun Quarries case that paved the way for right to wholesome environment has also focused on this continuing conflict. The judgments in Dehradun quarries cases were passed under Article 32 of the Constitution and involved closure of some of the quarries on the ground that their operation was upsetting ecological balance of the area. The indirect approval of the right to humane and healthy environment by the Supreme Court continued further in the Oleum gas leak case
Life cannot be possible without clean drinking water therefore; right to clean water is one of the attributes of the right to life in Article 21 of the Constitution13. The industrial establishments in and around residential colonies are another cause of concern, more so, when the industries have mushroomed contrary to the development plans. In V. Lakshmipathy v. State of Karnataka14 the same issue came before the High Court of Karnataka. The High Court held that once a development plan had earmarked the area for residential purpose, the land was bound to be put to such use only. Thus, High Courts , it seems, were more enthusiastic and active in accepting and declaring that ‘right to life’ in Article 21 includes ‘right to environment’
- Right to livelihood vis-à-vis Environment
The Supreme Court has recognised another aspect of the right to life enshrined under Article 21 of the Constitution, viz. the right to livelihood. There is a real chance of clash of these rights, i.e. right to environment and right to livelihood as government’s action to close down industrial units for protection of environment may result in loss of job, dislocation of poor workers and might disrupt badly the lifestyles of people heavily dependent on such industries.
The right to livelihood has been recognised by the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation. The Court issued directions to the Municipal Corporation to provide alternative sites or accommodation to the slum and pavement dwellers near to their original sites; and to provide amenities to slum-dwellers.
In many cases the Supreme Court passed orders requiring State agencies and concerned person to resettle and rehabilitate the workers or other persons who were being displaced by the decision of the Court or of the Government displaced by the Decision of the Court or of the Government to close down an industry or to relocate at a suitable place.
- Right to equality
Article 14 of the Constitution guarantees to every person the right –not to be denied equality before the law or the equal protection of the laws. The possibility of infringement of this Article by a government decision having impact on the environment cannot be ruled out. Article 14 strikes at arbitrariness because an action that is arbitrary must necessarily involve a negation of equality.”
Thus, permission for contractions that is contrary to town planning regulation by the municipal authority may be challenged. Similarly, Article 14 may be invoked to challenge governmental sanction of projects having adverse impact on the 15 AIR 1986 SC 180 16 Ajay Hasia v. Khalid Mujib Shervardi , AIR 1981 SC 487,499. natural environment and where such sanctions involve arbitrary considerations.
- Freedom of trade
Article 19(1) (g) of the Constitution guarantees to all citizens of India, the right to practice any profession or to carry on any occupation or trade or business. The freedom however, is not uncontrolled.
The aggrieved industrialist may resort to Article 19 in case his trade and business interests are affected by the action of governmental agencies in the name of the environmental protection. “As environmental regulation grows more stringent and its enforcement becomes more vigorous, industrial challenge to agency action is likely to increase. Courts will then need to balance environmental interests with the fundamental right it carry on any occupation, trade the fundamental right to carry in any occupation, trade or business guaranteed in Article 19(1) (g). Various standards have been prescribed by the Government for the discharge of different pollutants. An industry may challenge a very stringent standard which cannot be complied with, despite best efforts by available technology or if it is otherwise unreasonable.
Role of Panchayat and Municipalities
The Constitution (Seventy-third Amendment) Act 1992 and the Constitution (Seventy –fourth Amendment) Act 1992 have given a Constitutional status to the panchayats and the Municipalities respectively. Article 243-B provides or the establishment of intermediate and district levels. Article 243-G authorises the legislature of State to endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self-government.
The Eleventh Schedule along with other matters contains following maters which are directly or indirectly related to environment like, agriculture, soil conservation, water management and watershed development; fisheries; social forestry and farm forestry; minor forest produce; drinking water; health and sanitation; and maintainace of community assets.
The matters which are related to environment in the twelfth Schedule may be enumerated as follows
Urban planning including town planning regulation of land use water supply; public health, sanitation, conservancy and solid waste management, urban forestry, protection of the environment and promotion of ecological aspects; provision of urban amenities such as park grounds ; cremation grounds and electric crematoriums; prevention of cruelty to animals regulation slaughter houses and tanneries.
Thus it is evident that the Constitution imposes the duty to protect and preserve the environment in all the there tiers of the Government i.e. Central, state and local.
Writ Jurisdiction and Public Interest Litigations
One of the most innovative 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 paved way for one of the most effective and dynamic mechanisms for the protection of environment, that is, Public Interest Litigations.