Wisdom Crux

Constitutional right to environment: A legal perspective

Posted on by Admin

[Volume 2, Issue 4] – April, 2017

Author – Dr.Nilanchala Sethy (M.A.Pol.Sc, LL.M, NET & Ph.D), Faculty In Law, Berhampur University

In 21st century environment protection and preservation for present and future generation has main motto of everyone in this global. Our surrounding is our Environment which supports everyone to survive and supply the basic elements like Water, Air, and Temperature etc, without which thinking about existence of life is impossible.  It is the duty of everyone takes such steps towards environment protection, plantation of tree, rain water harvesting, construction and use of  toilet, clean our surrounding and thinking about global warming, climate change, sustainable development and disaster management .  Everybody wants live with a prosperous and loggurious and long life but it is possible only if we take care of our environment. Human resource of this world is the core resource that control whole resources of the world and utilised its own benefit and development. Environment not itself polluted and hazardous in the living world. Human beings are the main protector, destroyer and custodian of this environment. Day to day environment polluted  due to development of science and technology, ever-increasing of world population, natural disasters, rapid urbanization, industrialization, deforestation, heavily use of pesticide and insecticide in agricultural sector, nuclear test and poverty. So many problem has been faced the modern civilization due to his own cause. Human environment endangered because of pollution of air, water, land, noise and radiation, natural disasters, green gas effect, ozone depletion and climate change. From the beginning human civilization worship the nature, and live in harmony with nature, now in the name of development human civilization destroy the eco balance of environment, which is highly effected on civilization. So for the protection of his part in International level, National level and State level so many rules, regulations, and laws formulated for the purpose to protection and preservation of environment and sustainability of natural resources for successor.

Constitutional law is the supreme law of the land, all law of the land is formulated according to the constitutional law. The year 1972 marks a watershed in the history of environment management in India. It was the year in which a conference on Human Environment was held in Stockholm under the guidance of the United Nations.((The Stockholm Conference on Human Environment was held on June 14, 1972. A   declaration was passed in the conference under the head “The Magna Carta of our   Environment”. The Declaration contains 26 cardinal principles casting obligations on the members of International Community relating to different aspects of natural resource   management)) The conference is of particular significance to India as it expressed the Policy concern of our country on environmental protection, as a member state, and at the same time, it influenced the process of environment management in the following years.

Mrs. Indira Gandhi, former Prime Minister, addressed the conference in which she attracted the attention of the world community towards our peculiar environmental problems. Pointing out the causes of environmental degradation, she asserted that ‘poverty and need’ are the biggest polluters.((For Address of Prime Minister Indira Gandhi at the United Nations Conference on the Human Environment held at Stockholm, Rosencranz, Divan and Noble (ed),   Environmental Law and Policy in India (Bombay: Tripathy, 1991) at 39)) She added that “the environmental problems of developing countries are not the side effects of excessive industrialization but reflect the inadequacy of development. The rich countries may look upon development as a cause of environment destruction, but to us it is one of the primary means of improving the environment for living or providing food, water, sanitation and shelter, of making the desert green and the mountains habitable.”((Ibid, at 40))

THE CONSTITUTIONAL (42ND AMENDMENT) ACT OF 1976 :

The 42nd Amendment of the Indian Constitution is also significant from environmental protection point of view as it was through it that the national commitment of environmental protection and improvement was explicitly incorporated into our constitution. The overriding concern for environmental protection with this amendment has now been steered in Directive Principles of State Policy. The newly added Article 48-A declares, “The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.

The 42nd amendment Act 1976 introduced a new chapter on Fundamental Duties. Article 51A (g) of this chapter imposes a similar duty on the citizens “to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures….” The Environment protection now gets a constitutional mandate after its amendment by the 42nd Amendment Act in 1976. Article 51-A(g) deals with the fundamental duty with respect to environment. It is important to note that the protection of environment is a matter of constitutional priority. Environmental problem is the concerns of every citizen. Neglect of it is an invitation of disaster.((V.Lakshmipathy v. State AIR 1992 Kant 57 at 60.)) So it is the duty of every citizen protects and promotes the Environment and preserves the natural resources for future generation.

It may be pointed out that under Article 51-A, only citizens are under the obligation of fundamental duties. The requirement of the time is that we should be real subjects of the country striving towards excellence in all sphere of individual and collective activity including the protection of environment. The question is how to ensure compliance of fundamental duties. At the time when the fundamental duties were included in the Constitution it was thought that the fundamental law of the land reminds the citizens of their constitutional obligations. They could not be directly enforced. But, in course of time the judicial activism provided an impetus to achieve the desired objectives underlying the fundamental duties, particularly, Article 51-A (g) relating to the environment.

The true scope of Article 51-A (g) has been best clarified by the Rajasthan High Court in the leading case of L.K.Koolwal v. State.((AIR 1988 Raj.2)) The material facts of this case were that the Municipal authority under the Rajasthan Municipalities Act, 1959 was charged with primary duty to clean public streets, places and sewers and all spaces, not being private property, which are open to the enjoyment of public, removing of noxious vegetation and all public nuisance, and to remove filth, rubbish, night soil, odor or any other noxious or offensive matter. Mr.M.L.Koolwal moved the High Court under Article 226 for exercising writ jurisdiction and highlighted that the Municipality has failed to discharge its primary duty resulting in the acute sanitation problem in Jaipur which is hazardous to the life of the citizens of Jaipur. The Court allowed the petition and clarified the real scope of Article 51-A in the following words :- “ We can call Article 51-A ordinarily as the duty of citizens, but in fact it is the right of citizens as it creates the right in favour of citizens to move the Court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of the land. Omissions or Commissions are brought to the notice of the Court by the citizen, and thus Article 51-A gives a right to the citizens to move the Court for the enforcement of the duty cast on State, instrumentality’s, agencies, departments, local bodies and statutory authorities created under the particular law of the State.  The court further observed that Right and duty co-exists. There cannot be any duty without any right. In sanitation leads to a slow poisoning and adversely effects the life of the citizens and hence it falls within the purview of Article 21 of the Constitution. Therefore, it is the duty of the citizen to see that rights which he has acquired under the Constitution as a citizen are fulfilled.((M..C.Mehta v. State, AIR 1992 Orissa 225))

 The Court appreciated the action of the petitioner who as a citizen, highlighted the problem of the city and brought to the notice the conditions which were hazardous to the life of citizens. The Court directed the municipality to remove dirt, filth etc from the city within the period of six months. The Court explained that it was not the duty of the Administration and Municipal Council to see that the primary duties were fulfilled. Concluding the judgment, the Court observed that “if the legislature or State Government feels that the law enacted by them cannot be implemented, then the legislature has the liberty to scrap it, but the law which remains on the statutory books will have to be implemented, particularly when it relates to primary duty.

CONSTITUTIONAL DIRECTION TO STATE CONCERNING ENVIRONMENT:

Part-IV of the Constitution is concerned with the Directive Principles of State Policy. Constitutional direction to State concerning environment has been incorporated in Part-IV of the Constitution. The Constitution 42nd Amendment Act, 1976 added a new directive principle in Article 48A which deals specifically with protection and improvement of environment. It proclaims as follows:

 The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.  In this way the Constitution of India become one of the rare constitutions of the World where specific provisions were made in the Supreme Law putting obligations on the “State” as well as “Citizens” to ‘Protect’ and ‘Improve’ the environment. There is, thus a positive development of Indian Law.

In the case of Shri Sachidand Pandey v. State of West Bengal((A.I.R. 1987 SC 1109)), the Supreme Court remarked that whenever a problem of ecology was brought before the Court, the Court was bound to bear in mind Article 48A and 51-A(g) of the Constitution. From the above remarks of the Supreme Court it is clear that in certain cases the judges can take affirmative action directing the other organs of the State namely, the legislature and the executive to comply with the statutory obligation of protecting and improving environment. However, it may be pointed out that if the government is alive to the various considerations requiring thought and deliberation and has arrived at a cautious decisions after taking them into account, it may not be proper for the Court to interfere in the absence of mala fides.

In the case of T.Damodhar Rao v. S.O.Municipal Corporation, Hyderabad((A.I.R. 1987 AP 171)), it was pointed out by the Court that in view of Article 48-A and 51-A(g) it is evident that the protection of environment is not only the duty of citizens but it is also the obligation of the State and all other State organs including Courts.

In the case of Kinkri Devi v. State((A.I.R. 1988 HP 4. And General Public of Saproon Valley v. State of HP, AIR 1993  HP 52)), the Himachal Pradesh High Court laid down that in view of Article 48A and 51-A(g) 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 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. Otherwise the Court cannot remain a silent spectator to ensure the attainment of the constitutional goal of the protection and improvement of environment, the Court can intervene effectively by issuing appropriate writs, orders and directions.

FUNDAMENTAL RIGHTS AND ENVIRONMENTAL PROTECTION:

The constitutional provisions of Part-III and IV dealing with Fundamental Rights and Directive Principles respectively are supplementary and complementary to each other. Fundamental Rights are means to achieve the goal indicated in Part IV and thus must be construed in the light of directive principles. A right can be recognized as a Fundamental Right even though not expressly mentioned in Part-III. It means that there are various un enumerated fundamental rights in Part III and judicial activism in India is playing leading role in interpreting various un enumerated right in Part-III of the constitution. It may be pointed out that though specific provisions for the protection of environment have been made in Part IV dealing with Directive Principles and Part IV dealing with fundamental duties; even then right to live in a healthy environment has been interpreted by the judiciary in several provisions of Part III which deals with Fundamental Rights. In this way judiciary in India has played leading role in providing impetus to the human rights approach for the protection of environment.

Constitutional provisions relating to Fundamental Rights are also invoked to decide cases concerning environmental problems. It is notable that Principle 1 of the Stockholm Declaration proclaims that man has a fundamental right to freedom, equality and adequate conditions of life, in an environment of quality and permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations which reflection  in Article 14, 19 and 21 of the Constitution of India protecting the Right to Equality, freedom of expression and right to life and personal liberty.  The Permanent People’s Tribunal regards the anti-humanitarian effects of industrial and environmental hazards not as an unavoidable part of the existing industrial system but rather as a pervasive and organized violation of the most fundamental rights of humanity. Foremost among these are the rights to life, health, expression, association and access to justice.

RIGHT TO EQUALITY:-

  Article 14 of the Constitution deals right to equality and provides. The state shall not deny to any person right to equality before the law or equal protection of the laws within the territory of India. Highlighting the importance of public parks and open space in urban development, the Supreme Court dismissed the appeal and observed that Protection of the environment, open spaces 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 by leasing or selling such sites to private persons for conversion to other user… it would be in direct conflict with the constitutional mandate.

RIGHT TO LIFE-RIGHT TO LIVE IN HEALTHY ENVIRONMENT:

The concept of “the right to live”, “Personal liberty” and procedure established by law contained in Article 21 of the constitution could not remain in State of inertia((A.K.Gopalan v. State of Madras, AIR 1950 SC 27.)) for a long time. A host of question was to be dealt with when the judiciary came to review environmental decisions. Among them, the question how to bring about a balance between environment and development poses a great dilemma. The Rural Litigation and Entitlement Kendra v. State of Utter Pradesh((A.I.R 1987 SC 1086 and A.I.R 1987 SC 965)) is the first case indicating the recognition of the right to live in healthy environment as a part of Article 21.

In this case the facts were that the petitioners, a voluntary organisation feared that the mining operations of the lessees caused ecological disturbance. The lessees had right given by the Government and on conditions laid down under a specific law. According to a committee of experts appointed by the Supreme Court, mining of limestone in certain areas was found dangerous and damaging ecological balance. The Court said :- …… there can be no gainsaying that limestone quarrying and excavation of the limestone deposits do seem to affect the perennial water springs. This environment disturbance has however to be weighed in the balance against the need of limestone quarrying for industrial purposes in the country and we have taken this aspect into account while making his order. This case was filed under Article 32 of the Constitution and order was given with emphasis on the need to protect the environment. The Court obviously was evolving a new right to environment without specifically mentioning it as right to environment.

          The Supreme Court in Subash kumar V. State of Bihar((AIR 1991 SC420)), Stated that right to environment is a fundamental right of every citizen of India and is included in the right to life guaranteed under Article 21 of the Constitution of India and it include the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endanger or impairs that quality of life in derogation of laws a citizen has right to file a writ under Article 32 in Supreme Court for removing the pollution of water or air which is highly essential for life.

           In M.C.Mehta v. Union of India(( A.I.R 1987 SC 1086, A.I.R 1987 SC 965)) which is popularly known as Oleum gas leakage case, the Supreme Court once again impliedly came to recognize the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the constitution. It would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21of the constitution embraces the protection and preservation of nature’s gift without which, life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21 of the constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and exploitation should also be regarded as amounting to violation of Article 21 of the constitution.

In M.C.Mehta v. Union of India,(([1992] 3 SCC 256.)) the Supreme Court noted environmental pollution due to stone crushing activities in and around Delhi, Faridabad and Ballabarh complexes. The Court came to be conscious that environmental changes are the inevitable consequences of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land to such an extent that it becomes a health hazard for the residents of the area. Expressing serious concern to the environment, the Court said, “Every citizen has a right to fresh air and to live in pollution free environment”. Accordingly, the court issued directions to the stone quarries crushing units to stop their activities in Delhi, Faridabad and Ballabgarh complexes. The court also directed the government to rehabilitate these stone quarries in ‘crushing zone’ within the period of six months.

The Kerla High Court said in Jacob Superintendent of Police, Kottayam((A.I.R 1993 Kerala 1. Also Prafulla Chandra Chadoi v. Sarat Rout, AIR 1988 Ori.41)) as:  Compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Article 21, right to life comprehends right to a safe environment, including safe air quality, from noise.

In Vellore Citizens Welfare Forum v. Union of India(([1996] 5 SCC 647)) (Popularly known as T.N. Tanneries case), the Supreme Court laid down that in view the constitutional provisions contained in Article 21,47,48-A and 51-A(g) and other relevant statutory provisions contained in the Water(Prevention and Control of Pollution) Act, 1974,the Air (Prevention and Control of Pollution) Act, 1981 and the Environment Protection Act, 1986, the Precautionary Principle and the Polluter pays principle are part of the environmental law of the country. It is thus clear that two basic principles of sustainable development can be derived from various statutory provisions and the right to life under Article 21 of the Constitution.

RIGHT TO LIVELIHOOD:-

Judicial activism has further broadened the scope and ambit of Article 21 by interpretation and now the right to life includes the right to livelihood((Olga Tellis v. Bombay Municipal Corporation, A.I.R 1980 SC 180)). The fundamental question to be considered is whether there is any conflict between environment and development. Such a question has to be considered in wider perspective of national complexities. The consideration is linked on one side with the national progress and growth the construction of dams, thermal power plant and exploitation of natural resources, on other side it is linked with the actions which may infringe the fundamental rights of the people in the area where that project is undertaken.

Judiciary in India has taken note of this dilemma and has been very cautious in reconciling the environmental interests with the development process and avoiding any kind of conflict between the two opposite values. A few cases related with such issue will illustrate how the conflicting social interests have been reconciled by the judiciary.

In Banwasi Ashram v. State of Utter Pradesh((A.I.R 1987 SC 374)) where a tribal habitat was about to be transformed into a site for thermal plant, a letter was registered from Seva Ashram under Article 32 of the Constitution. The main grievance of the petitioner was that Advasis and other backward people were using forest as their habitat and means of livelihood.

The court wanted to appoint a committee to study the problem. However, in the end the court approved the acquisition of land but laid down an exhaustive scheme for rehabilitation of the native tribal people under the supervision of commissioner appointed by the Court.

In Pradeep Krishna v. Union of India(([1996] 8 SCC 599)), the fact were that the Government of Madhya Pradesh issued an order which permitted collection of Tendu leaves from sanctuaries and natural parks by villagers/ tribals living around the boundaries thereof with object of maintenance of their traditional rights including the right of livelihood. The validity of this order was challenged by social action litigation for the protection of ecology, environment and wildlife in sanctuaries and national parks. Considering the facts of this case, the Supreme Court refused to set aside the order. In spite of this, it pointed out that if one of the reasons for shrinkage of forest cover is entry of these villagers/ tribals, urgent steps must be taken to prevent any destruction or damage to the environment, flora and fauna and wildlife.

It is thus clear that the Supreme Court in this case on one hand protected the right to livelihood of the tribals and on the other hand showed its concern for the protection of ecology. Such judicial approach is in consonance with the sustainable development.

Similarly in the case of Animal And Environment Legal Defence Fund v. Union of India(([1997] 3 SCC 549)), where the Supreme Court sought to protect the right to livelihood of the tribal- villagers and at the same time showed its concern for the protection of environment. The fact in this case were that an association of lawyers and other persons, filed public interest litigation petition challenging the order of the Chief Wildlife Warden, Forest Department, granting 305 fishing permits to persons formerly residing within the national park for fishing in the reservoir situated in the heart of the national park.

The Supreme Court held that while all efforts must be made to preserve the fragile ecology of the forest area the rights of the tribals formerly living in the area to keep their body and soul together must also receive proper consideration. The Court further said that every effort should be made to ensure that the tribals, when resettled, are in position to earn their livelihood. In this case the Supreme Court has thus protected the right to livelihood of the tribal villagers and at the same time shown its concern for the protection of environment.

In M.C.Mehta v. Union of India(([1996] 4 SCC 750)), a public interest litigation (PIL) was filed to protect Delhi from the environmental pollution caused by hazardous/ heavy/ large/ industries which were in operation in Delhi. Deciding the petition, the Court held that such industries are liable to be shifted/ relocated to other towns of National Capital Region as laid down under the Master Plan for Delhi Perspective 2001. The Court issued directions to 168 industries, which were identified as such to stop functioning/ operating in the city of Delhi and they could shift or relocate themselves to any other industrial estate in National Capital Region.

FUNDAMENTAL FREEDOM TO CARRY ON TRADE OR BUSINESS:-

Article 19(1)(g) provides that all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business. Accordingly, in case involving closure orders to the polluting industrial unit, the Courts face the task of balancing environmental imperative with the fundamental right to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution. However, their right is not absolute. It is subject to Article 19(6) under which reasonable restriction can be imposed upon this right in the interest of the general public. In this way environmental interests can be protected from the hazards of any trade or business.

In Abhilash Textile v. Rajkot Municipal Corporation((A.I.R 1988 Gujurat 57)) notice was issued by the Municipal Commissioner to the petitioners to prevent discharge of dirty water on public road and in drainage within certain time. It was also stated in the notice that in case of failure to comply with notice, the factories would be closed. The court held that one cannot carry on trade or business in the manner by which the business activity becomes health hazard to the entire society. By discharge of effluent water on public road and / or in public drainage system the entire environment of the locality gets polluted. The Court further said that in a complex society in which we live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being.

In M.C.Mehta v. Union of India((A.I.R 1988 SC 1037)), the fact situation was that the tanning industries located on the banks of Ganga were alleged to be polluting the river. The Court issued directions to them to set up effluent plants within six months from the date of the order. It was specified that failure to do so would entail closure of business. As the tanning industries failed to establish primary treatment plant, it was therefore held that order to stop functioning of the tanning industries should be passed. Accordingly, the Court passed the following order :

We therefore, issuing directions for the closure of those tanneries which have filed to take minimum steps required for the primary treatment of industrial effluent. We are conscious that closure of tanneries may bring unemployment, loss of revenue but life, health and ecology have greater importance to the people. It is thus clear that the court has considered the protection of environment as a matter of general public interest and employed this tool in imposing reasonable restrictions on the citizens right to carry on trade or business.

In Sushila Saw Mills v. State of Orissa(([1955] 5 SCC 615.)), the fact situation was that total ban was imposed upon saw mills business or sawing operation within the prohibited area of reserved or protected forest. The Supreme Court held that the ban was not violative inter alia of Article 19(1)(g) and 301 of the Constitution. It is settled principle that in public interest restriction under Article 19(6) may amount to prohibition. In this case public interest litigation petition was filed for the protection of forest wealth and maintenance of ecology.

Judicial action in the field of environment is not arbitrary as it is inspired by humanitarian approach. Courts have sought to strike a balance between social interests in development and social interests in environment which is in accord with the concept of sustainable development. Therefore, it is not correct to say that the constitutional adjudicators have ordained the role of constitutional governors, especially when we see the larger dimensions of environment protection with human rights approach avoiding political considerations.

CONCLUSION:-

The environment protection and preservation of natural resources for future generation is highly essential in the present contest. No doubt the state machinery formulated so many rules and regulations for the said purpose. Environment protection is a global issue. Now all human being of the world is affected by global warming, climate change and natural disasters, due to his own cause. In the name of development the human being destroy its own environment, where he lived and himself victimized. The supreme law of the land, the constitution provides such provision in part-III, Part-IV and part-IV (A) as fundamental rights, DPSP and fundamental Duty. No doubt state has responsibility to take such step by legislation and  by judicial pronouncement to protect the environment, at the same time it is constitutional obligation of the citizen to take care of its own environment. Without heartily support of the citizen it couldn’t fulfilled by the state, because all legislation passed by the state to preserve the environment, it indicates to impose restriction to its citizen should not commit any act or omission which is endanger the environment. Public participation in environment protection is the main motto of our constitution and provides pure environment to its citizen is the constitutional mandate of India.

Editor – Dr. Komal Vig – Asst. Professor, Amity Law School, Amity University, Noida Campus, Uttar Pradesh