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CONSTITUTIONAL PROVISIONS AND PROTECTION OF ENVIRONMET[1]
QUESTION BANK
Q.1. What are the different provisions of the Constitution concerning the protection of the environment?.
Q.2. What are the constitutional safeguards to protect the environment?
Q.3. Discuss the various provisions of the Constitution of India and legal development as to the protection of the environment.
The Stockholm Declaration passed by the United Nations Conference for the protection of the human environment in1972 is basic legislation at the International level to which India was one of the signatories. The then Prime Minister Smt. Indira Gandhi attended the declaration. The Stockholm Declaration is called the ‘Magna Carta’ of environmental protection[2].
In fact, the Indian Constitution originally did not have provisions for the protection of the environment. The specific provisions for the protection of the environment were introduced for the first time by the forty-second amendment in 1976. Thus, India became the first country to give constitutional protection for the protection of the environment. Thus, in consonance with the Stockholm Declaration India incorporated provisions for the protection of the environment in the Constitution.
The Indian constitution presently has the following provisions for the protection of the environment.
I] Protection of The environment is a Fundamental Duty[3]:-
Constitution (Forty Second Amendment) Act.1976, added new chapter IV-A and Art.51-A prescribing fundamental duties. Art.51-A (g) provides that ‘it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion[4] for living creatures.
Thus, the provision casts a fundamental duty on every citizen of India to protect the environment. The Supreme Court of India in a number of cases has held that protection of the environment must be taught to citizens[5].
Even though fundamental duties are not enforceable, different laws have been passed to provide teeth to the enforcement of fundamental duties.
II] Provisions in Directive Principles:-
The Forty-second Amendment 1976 has added yet another important provision i.e. Art.48-A for protection of the environment in part IV i.e. Directive Principles of State Policies. It lays down that “the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”. Thus, the provision is a directive to the State for the protection and improvement of the environment.
In M.C. Mehta V/s Union of India[6] the Supreme Court relying on Art. 48-(A) of the Constitution directed the Central Government, State Governments, and various local bodies and Boards under various statutes to take appropriate measures for the prevention and control of pollution of water.
III] Subjects Relating to environmental Protection are in the Concurrent List[7]:-
As we know Constitution in part Schedule VII contains three Lists i.e. Union List, State List, and Concurrent List. On the first two lists, each legislator has the right to legislate; however, on subjects mentioned in the concurrent list both State and Union can legislate. Numbers of Acts have been passed by the Union and State legislature for the protection of the environment. Thus the federal system of government is in favour of the protection of the environment.
IV] Fundamental Rights and Protection of the environment:-
In fact, provisions for the protection of the environment are directly made in Part IV dealing with Directive Principles of State Policy, and Part IV-A dealing with fundamental duties. However, the Supreme Court in a number of its pronouncements has interpreted the right to live in a healthy environment as a fundamental right. Thus, the Courts have played a vital role in molding fundamental rights for the protection of the environment. Public Interest Litigations have played a very important role in shaping fundamental rights for the protection of the environment. The enormous legislations and directions for the protection of the environment are an outcome of reading fundamental rights, making them conducive to protecting the environment.
We will discuss some of the fundamental rights which are made conducive to the protection of the environment by the Supreme Court.
1) Right to Equality (Art. 14):-
Art. 14 deals with the right to equality and provides that “the State shall not deny to any person the right to equality before the law or equal protection of the laws within the territory of India”.
Thus, the right to equality enshrined in Art.14 strikes at the arbitrariness of Government action. Equality presupposes the absence of arbitrariness and the presence of reasonableness.
Many orders passed by Government Departments harming the environment are seen to be passed arbitrarily. Thus, such orders and actions can be challenged on the ground of violation of the fundamental right of equality.
In Banglore Medical Trust V/s B.S. Mudappa[8] the Apex Court thwarted[9] the attempt of the Karnataka Chief Minister to convert a public park site into a nursing home. The Court has highlighted the importance of public parks and the environment in human life.
The ratio of this judgment is followed in a number of other judgments.
In Sushila Saw Mill V/s State of Orissa[10] Supreme Court upheld the ban on sawmill business in prohibited areas of reserved or protected forest. It held that Art. 14 is not violated by such a ban.
Similarly, the Apex court imposed a ban on selling animal species that are on the verge of extinction[11].
2) Right to Life (Art. 21):-
Art. 21 lays down that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
The Article guarantees a fundamental right to life. Such life is not merely animal existence but a life of dignity to be lived in a proper environment, free of the danger of disease and infection.
The right to live in a healthy environment is for the first time recognized in-
Rural Litigation and Entitlement Kendra V/s State of U.P.[12]
Facts:- The petitioner Kendra had sent a letter to the Supreme Court complaining about the illegal unauthorized mining in the Mussorie, Dehradun belt. It was further contention of the petitioner that it results in environmental and ecological imbalances.
Held-the Court treated the letter as a writ petition and directed to stop the excavations[13].
Similarly, in M.C.Mehta V/s Union of India[14] popularly known as the Oleum Gas Leak Case, the Supreme Court treated the right to live in a pollution-free environment as a part of the fundamental right to life under Art. 21.
Similarly, in a number of cases, the court observed that the right to live in a healthy environment is our fundamental right under Art.21 read with Art.48-A and 51 A (g); these Articles impose an obligation on the State as well as citizens to protect and improve the environment. Thus the right to a wholesome environment is elevated to the status of a fundamental right by the interpretations of The Supreme Court and different High Courts.
a) Right to Livelihood[15]:-
Judicial activism has broadened the scope of Art.21, In Olga Tellis v. Bombay Municipal Corporation[16] and in a number of other judgments the Supreme Court and other High Courts have held that the ‘right to life’ under Art. 21 also includes the ‘right to livelihood’. By reading the right to livelihood into fundamental rights under Art. 21 Courts have followed the principle of sustainable development. It has been a trend of judicial decisions that the development and protection of the environment must not be contrary but development must take care of the environment. Thus, the citizens have the right to livelihood but it must run with the protection of the environment and not by destroying the environment.
In M.C. Mehta V/s Union of India[17]
The Supreme Court directed industries operating in the Taj Mahal Trapezium Zone using coal as industrial fuel to stop functioning and relocate to alternative sites. The Court further ordered to protect the rights and benefits to which the workmen of such industries were entitled. Thus, the court read the two rights harmoniously.
b) Right to Know[18]:-
Right to know is very important right evolved under Art.21 and
Art.19 (1) (a) i.e. freedom of speech and expression. Right to Information Act 2005 is especially passed. Right to know has helped a lot for the protection of the environment. The environment lovers and their groups have gathered relevant information as to violation of the environment protection rules in a number of projects affecting the environment and taken legal actions.
In Bombay Environmental Action Group V/s Pune Cantonment Board[19]
The Bombay High court held that a recognized environmental group has a right to examine municipal permission granted to private builders to examine if it violates rules relating to the protection of the environment.
3) Restrictions on fundamental freedom to carry on Trade or Business[20] (Art. 19 (1) (g))
No doubt that every citizen has the right to practice any profession, or to carry on any occupation, trade, or business; however, such right cannot be used to harm the environment. In a number of judgments, Courts have restricted the right of trade or business harming the environment.
In Abhilish Textile V/s Rajkot Municipal Corporation[21]
Facts:– The Municipal commissioner issued notice to the petitioner company to close the company or to prevent the discharge of dirty water on public roads and in drainage within a certain time. Aggrieved by the notice petitioner filed a writ in the Court challenging notice under Art. 19 (1) (g).
Gujarat High Court held that one cannot carry on trade or business in the manner by which the business activity becomes a health hazard to the entire society. One has no right for his benefit to pollute the environment.
Similarly, the Supreme Court in M.C. Mehta V/s Union of India[22] popularly known as ‘Ganga Pollution Case” ordered to close down industries located on the banks of Ganga river releasing industrial effluent in the river. The Industries in spite of Courts order did not set primary treatment plants for industrial effluent. Court further observed that “we are conscious that closure of Industries may bring unemployment, loss of revenue but life, health, and ecology have greater importance to the people”.
4) Development of Public Interest Litigations[23] (PIL) under Art. 32 and 226
As we all know, fundamental rights are enforced through Art.32 and 226. Under Art.32 one can approach the Supreme Court or under Art.226 to the High Court to get an appropriate writ issued to protect his fundamental right. Thus, the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari are issued in appropriate cases. However, to get these writs issued for the enforcement of rights is not affordable for the common man, and due to the rule of locus standi, only the person whose right has been violated or threatened can approach the appropriate court to get a writ issued. Therefore, to make fundamental rights enforceable the Supreme Court relaxed the doctrine of locus standi in the interest of physically, economically, and socially affected persons and to protect the environment. Now any socially spirited person can approach for the protection of fundamental rights of the above-mentioned persons or for the protection of the environment. In this way, the Public Interest Litigation (PIL) concept evolved by relaxing the locus standi doctrine for the protection of the rights of the above-mentioned persons and for the protection of the environment. Therefore, we will find a number of writ petitions filed by the environment’s friend Adv. M.C. Mehta.
PIL is judicial activism proved elixir for the protection of the environment. We will find a number of judgments for the protection of the environment filed through PIL. Above mentioned some of the cases are heard under PIL.
Thus, M.C. Mehta V/s Union of India[24] popularly known as-
‘Ganga Pollution Case”,
M.C. Mehta V/s Union of India[25] popularly known as-
“Taj Mahal Pollution Case”,
Rural Litigation and Entitlement Kendra V/s State of U.P popularly known as-
“Doon Valley Case” are some of the examples of PIL
cases in favour of the environmental protection.
In M.C. Mehta V/s Union of India[26] the Supreme Court gave direction to convert all buses operating in Delhi to C.N.G fuel for protection and safeguarding the health of citizens and their right to life under Art. 21.
In Murli S. Deora V/s Union of India[27] the Supreme Court banned smoking in public places.
“Polluter Must Pay” Doctrine[28]:-
The Supreme Court of India recently in the writ petition has evolved the principle that “polluter must pay”.
In Vellore Citizen Welfare Forum V/s Union of India[29]
The court has laid down a number of guidelines and rules for the protection of the environment. The court further laid down the principle ‘polluter pay’ in its observation as “the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the commercial degradation”.
In other words, the law has cast absolute liability on polluters not only to compensate victims but to restore the damaged environment.
Thus, in conclusion, we may say that India has given great importance to the protection of the environment by giving it a constitutional status. The Supreme Court and all other High Courts in different States have through its judgments glorified the idea of protection of the environment.
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[1] राज्यघटनेतील पर्यावरण संरक्षण विषयक तरतूदी [पर्यावरण के संवैधानिक प्रावधान और संरक्षण]
[2] स्वीडन देश्याच्या स्टॉकहोम शहरात जगातील पहीली व संपुर्ण जगाचे पर्यावरणाकडे लक्ष वेधनारी परीषद सन १९७२ मध्ये संपन्न झाली. यात भारताच्या तत्काालीन पंतप्रधान इंदीरा गांधी सह बयाच लहाणमोठ्या देशांच्या प्रतीनिधींनी सक्रीय सहभाग घेतला. [1972 में मानव पर्यावरण की सुरक्षा के लिए संयुक्त राष्ट्र सम्मेलन द्वारा पारित स्टॉकहोम घोषणा अंतर्राष्ट्रीय स्तर पर बुनियादी कानून है जिस पर भारत हस्ताक्षरकर्ताओं में से एक था। तत्कालीन प्रधान मंत्री श्रीमती। घोषणा में शामिल हुईं इंदिरा गांधी/स्टॉकहोम घोषणा को पर्यावरण संरक्षण का ‘मैग्ना कार्टा’ कहा जाता है]
[3] पर्यावरण संरक्षण मुलभुत कर्तव्य [पर्यावरण की सुरक्षा एक मौलिक कर्तव्य है]
[4] दया/सहानभुती [करुणा]
[5] M. C. Mehta v. Union of India 1983 (1) S.C.C. 471.
[6] AIR 1988 SC 1957
[7] समावर्ती सुची [समवर्ती सूची]
[8] (1991) 4 SCC 54
[9] उधळून लावने [नाकाम करणा]
[10] (1995) 5 SCC 762
[11] सर्वनाश /विनाश [विलुप्त होने के कगार पर]
[12] AIR 1988 SC 2187
[13] खानकाम [खुदाई]
[14] AIR 1987 SC 1086
[15] उपजिविकेचा अधिकार [आजीविका का अधिकार]
[16] AIR 1980 SC 180
[17] (1977)2 SCC 535
[18] माहीतीचा अधीकार
[19] Writ Petition No. 2733 of 1986
[20] पर्यावरण हानीकारक व्यावसाय, उदयोग करण्यावर मर्यादा [इस तरह के अधिकार का इस्तेमाल पर्यावरण को नुकसान पहुंचाने के लिए नहीं किया जा सकता है]
[21] AIR 1988 Guj. 57
[22] AIR 1988 SC 1037
[23] जनहीत याचीका संकल्पनेची वृद्धी [जनहित याचिकाओं का विकास]
[24] AIR 1988 SC 1037
[25] (1977)2 SCC 535
[26] AIR 2001 SC 1948
[27] AIR 2002 SC 1997
[28] “प्रादूषण करनाराने भरपाई देने” हे तत्व [प्रदूषक को भुगतान करना होगा-सिद्धांत]
[29] AIR 1996 SC 2715