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Constitution of India Vis-A-Vis Environment

The history of legislative started with Indian Penal Code, 1860. Section 268 defined what is public nuisance. Abatement of public nuisance is also a subject of Section 133 to 144 of I.P.C. These are only prohibitive provisions. Sections 269 to 278 of the Indian Penal Code are penal provisions which means that a person guilty of violating any of the provisions is liable to prosecution and punishment.

Legislative fight against pollution continued in independent India. Legislation in India aimed at protecting the environment from pollution and maintaining the ecological balance. The Environment (Protection) Act, 1986 is one major Act for environmental protection.

The Indian Constitution is perhaps the first constitution in the World which contains specific provisions for the protection and improvement of the environment. These provisions are:

Preamble:

The preamble of the Constitution of Indian provides that the country is based on socialistic pattern of society where an individual problems. Pollution is one of the social problems and the state is required to pay more attention to this social problem.

The preamble also declares Indian to be a Democratic Republic. In a democratic set up, people have the right to participate in government decisions and also the right to know and to have access to information of governmental policies which is very important for the success of environmental policies.

Federal System of Government:

The problem of environment is tackled through various statutes. Indian having a federal system of government, there is a distribution of Legislative and other powers between union and state. Article 245 empowers the parliament to make laws for the whole country where as the state legislatures can legislate for their respective states. Article 246 distributes the subject matter of Legislation between the parliament and the state legislatures which is based on three lists Union, State and concurrent as given in the VII schedule to the constitution. Parliament has exclusive power to legislate on any matter in union List, state legislatures can enact law on any matter in state list and both have competence to legislative on matters in concurrent list. Matters having inter-territorial environmental impact are kept in Union List, those having local environmental impact are kept in state list and concurrent list contains matters having both local as well as national bearing.

Thus the distribution of subject-matter of legislation has been done in such a way that environmental problems can be handled in the best possible manner.

Steps Taken Post Stockholm Conference, 1972

Several environmental legislations existed even before the independence of India. However, the major development took place after the UN Conference on the Human Environment (Stockholm, 1972). After the conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a statutory body to look after the environment related issues.

The council later evolved into a fully fledged Ministry of Environment and Forests (MoEF). MoEF was established in 1985 and today is the apex Administrative body in the country for regulating and ensuring environmental protection and; lays down the necessary legal framework for the same. Further, since the 1970s a lot of environmental legislation has been laid down. MoEF and various Pollution Control Boards (CPCB i.e. Central Pollution Control Board and SPCB i.e. State Pollution Control Board) together form regulatory and administrative core of the sector.

Apart from establishing numerous pollution control boards and MoEF, various other legislation like The Air Act and the Environment Protection Act (EPA) were also enacted. Moreover, as their long titles show, these Acts were enacted by virtue of the provision in Article 253 of the Constitution to implement the decisions of the international conferences and conventions. Indian Parliament also enacted Wildlife Act and the Water Act by exercising its power under Article 252 of the Constitution of India.

Obligation to implement international agreements:

India is a signatory to numerous international treaties and agreements relating to regional or global environmental issues. The constitution makes it obligatory to translate the contents and decisions of international conferences, treaties and agreements into the stream of national law.

Article 51-C provides that the state shall foster for respect international law and treaty obligations.

Article 253 empowers the parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention.

Vellore Citizen’s Welfare forum v. Union of India (1996):

In this the Supreme Court held that it is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the court of law.


Fundamental Duties Article 51-A enlists ten fundamental duties which are intended to promote people’s participation in restructuring and building a welfare society.

Article 51-A (g) specifically deals with the fundamental duty to citizens to protect and improve the natural environment including forests, lakes, rivers and wild life.

L.K. Koolwal vs. State of Rajasthan:

In this the municipal authority failed in its duty to clean public streets, to remove rubbish, night soil, odour etc. resulting in the acute sanitation problem in Jaipur. Mr. L.K. Koolwal moved the High Court under Article 226. The Court allowed the petition and directed the municipality to remove dirt, filth etc. from the city within the period of 6 months.

The court explained the true scope of Article 51-A as:

We can call Article 51-A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favour of citizens to move the court to see that the state performs its duty faithfully.


Directive Principles of State Policy Article 47 provides that the state shall regard the raising of the standard of living of its people & improvement of public health as among its primary duties. Article 48-A further provides that the state shall endeavour to protect & improve the environment & to safe guard the forests & wild life of the country.
In India, the judicial attitude in protecting and improving the environment provides a testimony to the fact that directive principles are not mere guiding principles of policy but they have to give effect to.

M.C. Mehta v. Union of India (CNG Case) 2002:

In this the Supreme Court observed the articles 39, 47 and 48-A by the themselves and collectively cast a duty on the state to secure the health of the people, improve public health and protect and improve the environment.

Fundamental Rights:

Though no specific provision for the protection of environment exists in fundamental rights, yet right to live in a healthy environment has been interpreted and read by the judiciary into various provisions of Part III of the constitution dealing with fundamental rights.

Right to Life & Right to Live in a healthy environment Article 21 of the Constitution of India guarantees all persons a fundamental right to Life & personal Liberty. Right to Life means a Life of dignity, to be lived in a proper environment, free of danger of disease and infection. The first indication of recognizing the right to live in healthy environment as a part of Article 21 was evident from the of

R. L. and E Kendra v. State of U. P. (Doon Valley Case) 1985

:
In this the petitioner wrote to the Supreme Court against the progressive mining which denuded the Mussorie hills of trees and forests cover and accelerated soil erosion resulting in landslides and blockage of underground water channels which fed many rivers and springs in the valley. The court ordered the closure of number of lime-stone quarries.

Right to Livelihood:

The judicial interpretation has brought the right to Livelihood with in right to life under Article 21 because there can be no life without a source of livelihood. The broad interpretation of the right to life is very help full in checking the governmental action which has an environmental impact that threatens the poor people of their livelihood by dislocating them from their place of living or otherwise depriving them of their livelihood. This right was recognized by the Supreme Court in:

Olga Tellis v. Bombay Municipal Corporation (1986) SC 180:

In this case, the petitioner, a journalist and two payment dwellers challenged the governmental scheme by which the payment dwellers were being removed from the Bombay pavements. They argued that evicting a pavement dweller or slum dwellers from his habitat amounts to depriving him of his right to Livelihood which is comprehended in Article 21 as right to life. The court accepted the contention of the petitioner and directed the municipal corporation to provide alternate sites to slum and pavement dwellers within reasonable distance of their original sites.

Fundamental freedom of speech and expression:

Article 19(1) (a) guarantees to every citizen a fundamental freedom of speech and expression. In India most of the environmental jurisprudence has developed by judicial activism. Most of the cases came before the court as a result of public interest litigations in which the people exercised their freedom of speech and expression sometimes by writing letters to the court or otherwise by filling petitions before it, high lighting the violation of the rights of the people to live in healthy environment in one way or the other.

Freedom of speech and expression also includes the freedom of press. In India, the public opinion and media have played an important role in molding the public perception of environmental issues.

Right to know:

The rights to know is also implicate in Article 19(1) (a) and it has a close link with environmental matters where the secret governmental decision or plans may affect health, life livelihood of the people. It is in the interest of the public that any governmental plan of construction of dam or information of the proposed location and nuclear power, stations or thermal power plants and hazardous industries, which directly affect the lives and health of the people of that area, must be widely published.

L. K. Koolwal v. State of Rajasthan

, in this the Rajasthan High Court held that in the matters of sanitation and other called matters every citizen has a right to know how the state is functioning and why the state is withholding such information in such matters.

Freedom to carry on trade or business: Article 19(1) (g) guarantees all citizens the right to practice any profession, or to carry on any occupation trade or business. But this right is not absolute and is subject to reasonable restrictions. Thus, environmental interests from the hazards of any trade or business can be protected.

Abhilash Textile v. Rajkot Municipal Corporation

: In this the petitioners were discharging dirty water from the factory on public road and in public drainage without purifying the same, thereby causing damage to the public health. The court directed that if the petitioners wish to carry on the business then they must provide for purification plant before discharging the effluents on public roads or in public drainage system. They cannot be allowed to reap the profit at the cost of the public health.

Right to equality:

Article 14 provides that the state shall not deny to any person equality before law or equal protect of the laws. Article 14 strikes at arbitrariness in governmental action because an action that is arbitrary must necessarily involve a negation of equality. This interpretation of Article 14 helps in checking the exercise of discretionary powers without evaluating the public interest and considering environmental impact.

Bangalore Medical Trust v. B.S. Mudappa (1991)

In this an area was kept for being developed as a low level park in the city of Bangalore. Under the direction of the chief minister, the area was allotted for the construction of a nursing home. The residents filed a petition in the High Court against this act of government. The petition was allowed by the High Court and was upheld by the Supreme Court in appeal.

Conclusion:
The protect and improve the environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare State. The Indian Constitution contains specific provisions for environment protection under the chapters of Directive Principles of State Policy and Fundamental Duties. The absence of a specific provision in the Constitution recognizing the fundamental right to clean and wholesome environment has been set off by judicial activism in the recent times.

Reference:
  1. Dr.Sukanta K.Nanda, Environmental Law, (Central Law Publication, Allahabad, 1st Edn., 2007)
  2. P. S. Jaswal and Nishtha Jaswal, Environmental Law, (Allahabad Law Agency, Haryana, 3rd Edn., 2009)
  3. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, (Oxford University Press, New Delhi, 2nd Edn., 2003)
  4. K.L.Bhatia, Human Rights and Human Environment – A Study in the Policy Perspectives, ALJ, Vol. 10 (1990)
  5. The Stockholm Declaration, 1972, Principle I, ‘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 well being’. https://sustainabledevelopment.un.org/milestones/humanenvironment
  6. https://blog.ipleaders.in/environment-and-constitution/
  7. Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law Agency, Haryana 8th Edn.,2011)
  8. Prof. S. N Mishra, Indian Penal Code, (Central Law Publication, Allahabad, 19th Edn., 2013)

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