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
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:
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
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
Article 51-A (g) specifically deals with the fundamental duty to citizens to
protect and improve the natural environment including forests, lakes, rivers and
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
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.
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
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
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.
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.
- Dr.Sukanta K.Nanda, Environmental Law, (Central Law Publication,
Allahabad, 1st Edn., 2007)
- P. S. Jaswal and Nishtha Jaswal, Environmental Law, (Allahabad Law
Agency, Haryana, 3rd Edn., 2009)
- Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India,
(Oxford University Press, New Delhi, 2nd Edn., 2003)
- K.L.Bhatia, Human Rights and Human Environment – A Study in the Policy
Perspectives, ALJ, Vol. 10 (1990)
- 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
- Prof. Narender Kumar, Constitutional Law Of India, (Allahabad Law
Agency, Haryana 8th Edn.,2011)
- Prof. S. N Mishra, Indian Penal Code, (Central Law Publication,
Allahabad, 19th Edn., 2013)