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‘Constitutional Provisions’
Prof. Santosh D. Bhosale 19
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CONSTITUTIONAL PROVISIONS AND PROTECTION OF ENVIRONMET
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.
SYNOPSIS
Table of Contents
I] Protection of The environment is a Fundamental Duty:-........................................................ 20
II] Provisions in Directive Principles:- ........................................................................................ 20
2) Right to Life (Art. 21):-........................................................................................................ 22
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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.
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:-
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 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
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.
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.
1 M. C. Mehta v. Union of India 1983 (1) S.C.C. 471.
2 AIR 1988 SC 1957
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III]
Subjects Relating to environmental Protection are in the Concurrent List:-
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 the Apex Court thwarted 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 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.
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Similarly, the Apex court imposed a ban on selling animal species that are on the
verge of extinction.
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Prof. Santosh D. Bhosale 22
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.
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.
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:-
Judicial activism has broadened the scope of Art.21, In Olga Tellis v. Bombay
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.
3 AIR 1987 SC 1086
4 AIR 1980 SC 180
5 (1977)2 SCC 535
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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:-
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.
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
19 (1) (g))
(Art.
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.
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.
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
6 Writ Petition No. 2733 of 1986
7 AIR 1988 Guj. 57
8 AIR 1988 SC 1037
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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 (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.
‘Ganga Pollution Case”,
“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.
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.
9 AIR 1988 SC 1037
10 (1977)2 SCC 535
11 AIR 2001 SC 1948
12 AIR 2002 SC 1997
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public places.
“Polluter Must Pay” Doctrine:-
The Supreme Court of India recently, in a writ petition, has evolved the principle
that “polluter must pay”.
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 pays’ 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.
*****
13 AIR 1996 SC 2715