Constitutional Provisions For Environmental Protection

Introduction

Mankind is a part of nature and life must be influenced by an undisturbed functioning of natural resources which safeguards the supply of energy and nutrients which is an indispensable aspect of the life support system. If a man lives in harmony with nature, then nature nourishes him and provides all the necessities of human life. Human life and nature are correlated and complementary exists. Thus, the perception arises that giving protection to the environment means safeguarding and preserving humanity.[1]

Humans should owe the duty of protecting the environment and if he fails, then the result would be the destruction of the environment. The major contribution of environmental pollution and degradation are global warming, deforestation, industrialization, urbanization, poverty, exhaustion of conventional assets, and population explosion. These are the grave concern at the international level. The Organizations like UNO (United Nation Organization), IUCN (International Union for Conservation of Nature), WNO (World Nature Organization), etc. have expressed their plight and concern in this matter and came up with several international conventions and declarations to tackle the situation by formulating various policies for environmental protection. These Conventions and Declarations are the Stockholm Declaration, 1972; The World Charter for Nature, 1980; Earth Summit (Rio de Janerio Conference), 1992; The Johannesburg Declaration on Sustainable Development, 2002 in which UNO expressed his concern for the awful condition of the natural environment.

In India, during the formulation of the Constitution, the Drafting Committee has not focused on the aspect of environment protection and doesn’t formulate any policy for the same. After the Stockholm Declaration, 1972, which is known as the Magna Carta on Human Environment where India was one of the signatory countries headed by Prime Minister Indira Gandhi, she voiced deep concern about the degradation of the environment and ecological imbalances. To fulfill the promise made in Stockholm Declaration, the Parliament of India had passed 42^nd Amendment Act to the Constitution in 1976[2] and incorporated two articles i.e. Articles 48A and 51A (g) for environment protection.

History of Environment Protection in India

Environment Protection in Ancient India

Since the Vedic periods, the main motto of social life was to live in harmony with nature. During that period saints and sages, all were used to live and meditated in the forest. The primary concern for them is to protect the nature and environment because the literature of the olden time preached them to show a worshipful and benevolent attitude towards plants, trees, air, water, sky, and animals. Thus, it was regarded as a sacred duty of every citizen to protect nature and the natural environment. But the reason behind this concept of worshiping nature was our ancient seers, without the aid of technology knew and appreciated that living beings are made of five elements namely, Water (Jal), Air (vayu0, Earth (Prithvi or Dharti), Ether (Aakash) and Fire (Agni). As they fulfill human needs, they were worshiped. Respect, environmental harmony, and conservation for nature are enshrined as a part of Indian culture.[3]

There were many guiding principles observed in Hindu religious scriptures called Vedas, Upanishads, Smritis, Puranas, Ramayana, and Mahabharata. These principles are:

• Showing respect and keep harmony with nature.
• Protect the natural environment because the life of human being depends on several components of nature.
• Exploitation and destruction of nature mean the destruction of mankind.
• Human beings as the creation of god just like nature, but he doesn’t have any special privileges over other creatures. On the other hand, the human being has an obligation and duty toward the protection, preservation, and improvement of the natural environment.
• The human being must adopt the principle “Ahimsa Parmo Dharma”. It states that non-violence is the highest order dharma and one should be non-violent towards the natural environment because violence towards nature is considered a sin for a human being.
• Nature gives equal rights to human and non-human beings. It means human beings and other creatures such as plants, animals, air, and water; all are correlated and exists together. Therefore, by destroying nature we create an imbalance in the environment and denying life forms their right and such an act is unjust and unethical.

Pre- Stockholm Declaration Scenario

The Pre and post-independence scenario of India relating to environment protection was the same because the protection of the environment was just a moral duty for everyone, not a fundamental duty. Originally the Indian Constitution, 1950 did not have explicit reference to environmental protection.

After independence, there was an immense expansion and growth of industrialization, and urbanization in India leads environmental pollution. Environmental pollution becomes a deep concern for India as well as other countries at the global level and there was no law for environmental protection in the country.

To tackle the situation, UNO and other international organizations came up with several international conventions. At the very first time at the global level, the first UN (international) convention on Human environment held in June 1972 in Stockholm and declared “to defend and improve the human environment for present and future generations has become an imperative goal for mankind”. The Stockholm Declaration comprises 26 principles known as the “Magna Carta on Human environment”. This convention has a great impact on environmental protection and countries at their national level formulate laws and policies to control environmental pollution.

India was one of the signatory countries headed by Prime Minister Indira Gandhi, she addresses this conference and voiced deep concern about the degradation of the environment and ecological imbalances. Also, many countries give 109 recommendations and resolutions in this declaration to protect the environment. After Stockholm Declaration, there were many conventions and declarations were held such as the World Charter for Nature, 1980; Earth Summit (Rio de Janerio Conference), 1992; The Johannesburg Declaration on Sustainable Development, 2002.

Post- Stockholm Declaration Scenario

India participated in UN Conference on the Human Environment held in Stockholm in June 1972, promised to take appropriate steps for the protection and improvement of the human environment. To fulfill the promise made in Stockholm Declaration, the Parliament of India had passed 42^nd Amendment Act to the Constitution in 1976[4] and incorporated two articles i.e. Articles 48A and 51A (g) for environment protection.

Article 48-A of the Constitution imposes duties on State to protect and improve the environment and also preserving and safeguarding the forests and wildlife. This Articles enshrined under the Directive Principles of State Policies (DPSPs).

Article 51-A (g) of the Indian Constitution imposes a duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife.

Also, to implement the decision of the Stockholm Conference of 1972, the Parliament of India passed several legislations such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.

Constitutional Provisions for Environmental protection

In India, the 42^nd Amendment Act, 1976 is the resultant of the Stockholm Declaration, 1972. The Parliament of India has passed a historic constitutional amendment in 1976 which enshrined two new articles i.e. Article 48A and 51A (g) to protect and improve the environment.

Apart from these two articles, some of the fundamental rights (such as Articles 14, 19, 21, and 32) incorporated in Part III of the Constitution act as a savior for the environment.

The preamble of the Constitution and Environment Protection:

The Preamble of the Constitution starts with the statement “We the People of India solemnly resolve to constitute India into a [Sovereign Socialist Secular Democratic Republic] and secure all its citizens.” It implies Indian Constitution follows the socialist pattern of society, where the primary concern is to first deal with social problems rather than the individual. Here, the welfare of public interest is the utmost important aspect for the country.

The presence of pollution in the atmosphere which exceeds the environment’s capacity to clean it is harmful to the public and thus, it is a social issue. Pollution in the environment not only deteriorates the health of living beings but also, degrading the quality of the environment.

The basic aim of the preamble is to secure all its citizens the State must provide a pollution-free environment without compromising the development of the nation.

Role and Power of Legislature for environmental protection:

There are three types of lists under the constitution of India, 1950, namely, Union list, State List, and Concurrent List. In India, parliamentary powers are shared between Union and State.

Firstly, matters covered under the Union list (called List I) dealt with by the Central or Union Government. The matters covered under List I are related to defense, military, atomic energy.

Secondly, State List (called List II) dealt with by the State government and covered the matters such as public health, sanitation, drainage, clean water supply, etc.

Thirdly, the Concurrent list (known as List III), it is dealt by both Central and State government. The matters comprise under List III are forest and wildlife protection, conserving mines, and control pollution, etc. The Seventh Schedule of List III dealt with environment protection:

17-A: Forests;

17-B: Protection of wild animals and birds

The states are taken up various development projects but sometimes it possesses a great threat to the environment. To settle the conflict between development and the environment, the Environment Impact Assessment (EIA) came into existence and it was recognized by Planning Commission. EIA enables the decision-makers to analyze the impact of a development project on the environment. The EIA evaluates the predictable consequences of the project to the environment before giving his assent. EIA aims to ensure the environment safe and there should be sustainable development.

Fundamental Rights and Environment Protection:

Article 14 of the Indian Constitution guarantees the “right to equality”[5] means equality before the law and equal protection of the law has been granted to every citizen without any discrimination. This implies, any action taken by the state for environmental protection and thus, cannot infringe the right to equality enshrined under Article 14 of the Indian Constitution.

The principle of equality in environmental management[6] was also recognized in the Stockholm declaration and it called up the entire world nation should abide by this principle.

In Ajay Hasia v. Khalid Mujib Sehravardi,[7] The Supreme Court of India struck down the arbitrary official sanction on environmental matters on the basis that, it was a violation of Article 14 of the Indian Constitution.

In Kisan Bhagwan Gawali v. the State of Maharashtra,[8] The Court held that the exclusion of a particular class of grazers and inclusion of some classes on the ground that the excluded class was indulging in illegal grazing is the violation of Article 14 and it was invalid. Such a policy framing is against the right of equality enshrined under Article 14 of the Indian Constitution.

Freedom of Trade and Commerce and Environment Protection

Article 19 (1) (g) of the Indian Constitution gives freedom to all its citizens to continue any trade, business, and profession at any part within the territorial boundary of India.[9] This right is not an absolute one and it has limitations under Article 19 (6) to avoid environmental hazards. This limitation was set because trade and business are the sources of hazardous effluents released from industries; tanneries; acid factories; tie and die factories; distilleries and nowadays, hotel industries are also contributing to environmental pollution. Some of these industries, business or trades are carried on in such a manner which endangers vegetation, animals, aquatic life and human health. Thus, it has been clear that freedom of Trade and Commerce is not an absolute right and it has a limitation when it is offensive to flora and fauna or human beings. To restrict such violation, trade and business cannot be permitted to be carried on in the name of the Fundamental right.

In Abhilash Textile v. Rajkot Municipal Corporation,[10] The petitioner was engaged in the business of dying and printing works in the Rajkot area, where untreated water from the factory was released on the public road and public drains which causes public health issues. The petitioner claimed that they were carried out their business for the last 20- 25 years and providing employment to 20000- 30000 peoples and also, it is their fundamental right to carry on any trade, business, or occupation.

The Gujarat High Court held that the petitioner has no absolute fundamental right to carry out any business, trade, or occupation under Article 19 (1) (g). Thus, the order for closing down the factory was not a violation of fundamental rights under Article 19 (1) (g) and the also court stated that the petitioner cannot be allowed to make a profit at the cost of public health.

In M.C. Mehta v. Union of India,[11] The Supreme Court, in this case, held that, if any residential building is converted for commercial purposes, it amounts to the violation of municipal laws and environmental laws Mostly commercial activities are not permitted to operate in residential areas because it would cause environmental pollution. Further Supreme Court ordered for sealing such residential premises and it also held that restrictions on using residential buildings for the commercial purpose were not a violation of freedom of trade and business under Article 19 (1) (g) of the Indian Constitution.

In M.C. Mehta v. Kamal Nath,[12] The Supreme Court held that hotel industries discharging their untreated effluents into river bodies which disturbing aquatic flora and fauna and causing water pollution, therefore it cannot be permitted to work. Any disturbance causes to environmental elements such as air, water, and soil which are considered as necessary elements of life, can be termed as environmental pollution.

Thus, the court by exercising its jurisdiction not only restricts their trade and business but also levied “fine”- exemplary damages to the hotel industry under Article 32 for causing environmental pollution.

Right to Life and Environment Protection

Article 21 of the Indian Constitution guarantees the Right to life and personal liberty[13]. This article does not directly confer the right to clean water and a healthy environment. But by various judicial pronouncements on various occasions have expanded the jurisdiction of the right to life and personal liberty and includes various unarticulated liberties as recognized implicitly by Article 21 of Indian Constitution.

In L.K. Koolwal v. State of Rajasthan and Others,[14] The Rajasthan High Court held that maintaining the quality of water, environment, sanitation, and wellbeing come under the jurisdiction of Article 21 of the Indian Constitution. In this case, the municipality of Jaipur was negligent and non-compliance with basic duty adversely affect the lives of numerous people, which means people may suffer from numerous diseases, causing decreasing the life of the citizens.

In Charan Lal Sahu v. Union of India,[15] The Supreme Court held that the State must take adequate and effective steps for the enforcement and protection of Constitutional rights enshrined under Articles 21, 48-A, and 51-A (g).

In M.C. Mehta v. Union of India,[16] This case is popularly known as Ganga Pollution Case. In this case, Singh J. stated that the closure of tanneries may create unemployment and also there is loss of revenue, but life, health, and ecology have greater importance for the people because no person shall be deprived of his life under Article 21 of the Constitution.

Right to Constitutional Remedies and Environment Protection

Most of the cases related to environmental pollution and ecological imbalances were filed under Articles 32 and 226 of the Constitution of India. Article 32 is a well-known fundamental right where the aggrieved party can file a writ petition or any non-related party, either individual or an organization can file a PIL (Public Interest Litigation) to the Supreme Court of India regarding the matter of any activity endangering humans and damaging the environment. The Supreme Court has judicial power to make any decision or pass any order for granting relief from such activities.

In various judicial pronouncement regarding environment protection, Supreme Court mention certain doctrines helps to slowdown such harmful activities which endanger the environment and create eco- imbalance.

The Doctrines for Environmental Protection under the Constitution of India are:

Public Trust Doctrine

As per Roman law, the common properties (such as rivers, well, seashore, water, sea, and air) are held by the government, and these properties must freely be enjoyed and unimpeded by the members of the planet. These properties are “res communious”, which means properties are owned by everyone in common. This is known as Public Trust Doctrine.

In M.C Mehta v. Kamalnath[17] The Supreme Court, in this case, introduced the Public Trust Doctrine and stated that certain natural resources like water, air, sea, and forest are very important for living which cannot be owned by anyone in person. The honorable court held that certain natural resources are public property and not private property and are to be managed in trust by the state for the benefit of the public at large.

In Fomento Resorts and hotels Ltd. v Minguel Martins[18] The Court has reiterated the Doctrine and observed that the natural resources including forests, water bodies, rivers, etc. are held by the State as a trustee on behalf of the public and especially for future generations.

Polluter Pays principle

The polluter pays principle was adopted in the year 1972 by the Organization of Economic Cooperation and Development (OECD). This principle states “whoever produces pollution should bear the cost of managing it to prevent damage to human health and environment”. In other words, the producer of goods or other items should be responsible for the cost of dealing with pollution.

Also, this principle affects Principle 13 of the Rio Declaration, 1992.[19]

In Vellore Citizens’ welfare Forum v. Union of India[20] A pollution fine of ₹10000 on each of all erring tanneries was imposed in this case, which was to be deposited in the “Environment Protection Fund” which was utilized for compensating the affected persons and for restoring the damaged environment.

Precautionary Principle

This principle is a kind of rule of evidence because the burden of proof in environmental cases is shifting on polluters (industrialist, individual, and entrepreneur). They all have to prove that their activity has to be environmentally friendly. The industries and government must ascertain, prevent and abet environmental pollution by using this principle. Reference of this principle can be seen in Principle 15 of Rio Declaration, 1992.

Directive Principles of State Policy and Environment Protection:

In the Constitutional (42^nd Amendment) Act, 1976, two new articles i.e. Articles 48-A and 51-A (g) were enshrined in the constitution for environmental protection. These articles are incorporated in the Indian Constitution as a result of the Stockholm declaration and contain its principles. These principles are:

1. Natural resources must be safeguarded;
2. Wildlife must be safeguarded;
3. Non-renewable resources must be maintained;
4. Pollution must not exceed the environment’s capacity to clean it;
5. Oceanic pollution must be prevented;
6. Sustainable development is needed to improve the environment;
7. Government should plan their appropriate pollution policies;
8. National institutions must plan the development of states’ natural resources; etc.

Article 48-A of the Indian Constitution imposes duties on State to protect and improve the environment and also preserving and safeguarding the forests and wildlife.

Article 51-A (g) of the Indian Constitution imposes a duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife.

In Kinkeri Devi v. State,[21] The Himachal High Court held that under Articles 48-A and 51-A (g), both State and citizens have constitutional duty to not only protect the environment but also, improve, preserve, and safeguard the natural environment including forests, lakes, rivers, flora, and fauna, etc. of the country.

In T.N. Godavarman Thirumulpad v. Union of India,[22] The Chhattisgarh government plead that the State did not have enough money to save Wild Buffalo- an endangered species. The Court rejected the plea of and directed that because it is the duty of the State under Article 48-A of the Constitution to take immediate steps to ensure the protection of the endangered species from extinction.

Suggestions for Environment Protection

To prevent environmental pollution, the Government of India has enacted many laws and legislations, but steps taken by the State are not enough to control pollution levels. It is mandatory that, every citizen should take initiative at their level to control environmental pollutions. These steps are:

1. Creating social awareness about how pollution adversely affects everyone.
2. Using solar power for electricity purpose at home and workplaces which reduces coal consumption and it leads to decrease mining activities.
3. Use dustbins to put your garbage, rather than throw it anywhere at the roadside. This practice reduces garbage pollution and people also stay healthy.
4. Try to use public transport such as bus, railways, metros, etc. instead of own vehicles while only an individual travels.
5. Reduction in usage of chemical fertilizers, pesticides, and insecticides for agricultural development.
6. Set up a proper treatment plant in factories and industries for the emission of their wastes.
7. Start the campaign of afforestation.
8. Use the products again and again and if the product is recyclable, then don’t destroy it completely.
9. Use non-combustible solid wastes such as glass pieces, rubbish, tins, etc. as land-filling in low-lying areas.
10. Avoid undesirable and excessive burning of crops, etc.

Conclusion

Due to rapid industrialization and urbanization in India, environmental pollution increases day by day. Increasing population level, deforestation, global warming also adversely affects the environment and leads to ecological imbalances. To tackle the situation, UNO organizes various international conventions and declarations for creating awareness regarding environmental pollution and to implement such strategies which help the global nation for decreasing pollution level.

While giving protection to the environment, we protect and preserve human life. If a man lives in harmony with nature, then nature nourishes him and provides all the necessities of human life. But if humans deteriorate the environment for development then there will be an eco- imbalance in the environment. Human life and nature are correlated and complementary exists. Thus, to maintain the equilibrium between human development and the environment, then, it is the moral and fundamental duty of human beings to preserve and protect the environment including, air, water (including water reservoirs, sea, lakes, etc.), sky, forests, flora, and fauna.

By 42^nd Amendment in Indian Constitution, it is the fundamental duty and obligation of the State and every citizen to protect the environment.

References

• http://hrlibrary.umn.edu/instree/humanenvironment.html#:~:text=To%20defend%20and%20improve%20the,worldwide%20economic%20and%20social%20development.
• https://www.tribuneindia.com/news/delhi/air-pollution-law-experts-say-enough-laws-in-place-lack-of-political-will-main-challenge-161835
• http://www.legalserviceindia.com/legal/article-3906-constitutional-provisions-for-protection-of-environment.html
• https://lawcorner.in/public-trust-doctrine-in-environmental-law/
• https://www.scribd.com/document/247988074/public-trust-doctrine
• https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep_act_1986.pdf
• http://www.claiminghumanrights.org/udhr_article_7.html
• https://blog.ipleaders.in/right-to-clean-environment-m-c-mehta-v-union-of-india/
• https://www.worldwildlife.org/threats/pollution
• https://www.cgee.org.br/documents/10195/734063/CPSD_Report_final-review-vf-web.pdf/11b39838-1d9d-4eac-93dd-8b7acdd880fd?version=1.2
• https://www.legalbites.in/environmental-protection-under-the-constitution/

[1] Prof. Satish C. Shastri, Environmental Law LIII (6^th edition EBC 2002)

[2] The Constitution (42^nd Amendment) Act, 1976 received the assent of the President of India on December 16, 1976, and came into force on January 7, 1977.

[3] Id at 2

[4] The Constitution (42^nd Amendment) Act, 1976 received the assent of the President of India on December 16, 1976, and came into force on January 7, 1977.

[5] Article 14 of the Constitution of India states that “The State shall not deny to any person equality before the law and the equal protection of laws within the territory of India.”

[6] Principle 1 of Stockholm Declaration, 1972 states “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing…”

[7] (1981) 1 SCC 722

[8] AIR 1990 Bom 343

[9] Article 19 (1) (g) of the Constitution of India states that “All the citizens of India shall have a right to practice any profession, to carry on any occupation, trade, and business.”

[10] AIR 1988 Guj 57

[11] (2006) 3 SCC 399

[12] (2000) 6 SCC 213

[13] Article 21: No person shall be deprived of his life and personal liberty except according to procedure established by law.

[14] AIR 1988 Raj 2

[15] 1990 AIR 1480

[16] (1987) 4 SCC 463

[17] [1997], 1 S.C.C. 388

[18] (2009) 3 SCC 571

[19] Principle 13 of UN Conference on Environment and Development, 1992 (Rio Declaration): “The State shall develop National law regarding liability and compensation for the victims of pollution and other environmental damages. The state shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for the adverse effect of environmental damage caused by the activities within their jurisdiction or control to areas beyond their jurisdiction.”

[20] (1996) 5 SCC 647

[21] AIR 1988 HP 4

[22] (2012) 3 SCC 277

This article has been written by Aditi Sahu, 4th-year B.B.A.LL.B. student at Banasthali Vidyapith.