This article is written by Shrey Sharma. The article discusses the Indian constitution and environmental protection.

Introduction

It’s evident from the construction of the Constitution that the idea of environment was never there in the minds of the founding fathers of the Indian Constitution. Consequently, the expression ‘environment’ does not find any mention in the Constitution. However, there are many items in the legislative lists which enable the Centre and the State to make laws in the field of environment like public health, sanitation, agriculture etc.

Moreover, it is interesting to note that all the substantial steps taken by the State towards the protection of environment, were taken after the Stockholm Conference, 1972. Prior to the conference, it did not hit the conscious of the Indian government that they need to proactively work towards safeguarding the environment.

The Constitution 42nd Amendment Act, 1976 which moved forest, wildlife and population control from the State to the Concurrent List enabling both the state and the centre to make laws pertaining to these areas is one of the examples out of the several initiatives taken by the Indian Government towards environment protection.

There is no doubt in saying that it is the responsibility of the State to protect the environment. However, it took a long time for the Apex Court to pronounce explicitly that the right to life under Article 21 of the Constitution contains right to have a healthy environment.

To know more about the scope of constitutional provisions for environmental protection in India in brief, please refer to the video below:

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 have 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.

Steps taken by the Indian Government and Judiciary towards Environment Protection

The right to live in a clean and a healthy environment is not a recent invention of the Indian Judiciary. The only difference is that the right has been recognised as a fundamental right by the Indian Judiciary over the period of time. The right to live in a clean and healthy environment existed from centuries ago, but it attained the status of ‘Fundamental Right’ only a few years back. The judiciary has widened the ambit of Article 21 by including right to have a clean environment in it and further making it a fundamental right.

Article 21 talks about the right to life and personal liberty, it reads as follows “No person shall be deprived of his life and personal liberty except according to procedure established by law”. This article imposes a duty on the state to protect the life and liberty of the people. The concept of this article has been broadened by judicial pronouncement. In the case of Subhash Kumar v State of Bihar, it was held that ‘right to life’ guaranteed under Article 21 includes the right to have pollution-free water and air. Through this case the court recognised the right to a wholesome environment as part of the Fundamental Right, making it a landmark judgment.

In the case titled as Rural Litigation and Environment Kendra, Dehradun v. State of UP the representatives of the rural litigation and entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal mining in the Mussoorie-Dehradun belt is causing damage to the eco-system. Therefore, the court ordered the closure of a number of limestone quarries.

Moreover, the issue of vehicular pollution was discussed in the case titled as M.C. Mehta v. Union of India. The apex court, in this case, reaffirmed that the right to a healthy environment as a basic human right and held that right to clean air also stems from Article 21 which talks about right to life. It is considered to be a landmark judgment, as after this judgment lead-free petrol supply was introduced in Delhi.

Further, The Constitution of India originally adopted did not have any direct and specific provision regarding the protection of natural environment. It only contained few directives to the State regarding public health, agriculture and animal husbandry but none were judicially enforceable. Some of the Directive Principles of State Policy showed a minute inclination towards environmental protection i.e. Article 39(b), 47, 48 and 49 which individually and collectively impose a duty on the State to take measures for improving the general health of the environment and provide a clean environment to the country.

However, later through a constitutional amendment, two specific provisions i.e. Article 48- A and Article 51-A (g), has been added to the Constitution which puts a duty on the State as well as the citizens of India to protect and conserve the environment.

Conflict between Environment Protection and Citizen’s Rights

The freedom of expression under Art 19(1) (a), right to carry on a business, trade or occupation under Art 19(1) (g) , freedom of religion under Art 25 and above all equality under Art 14 are the areas where these conflicts arise in contradiction with the right to a healthy environment under Art 21. An inquiry into the cases will reveal, as to how the Courts reconciled the two issues.

A. Land Use

In T Damodhar Rao v Special Officer Municipal Corp, Hyderabad, it was held for the very first time by an Indian Court that the conversion of open space, the lungs of a populated area, would affect the right to life under Art 21 of the constitution. Later, in Banglore Medical Trust v BS Mudappa the Supreme Court proceeded with the same vigour and prevented using the open space for constructing a private medical complex.

Similarly, in V Lakshmipathy v. State, the petitioners challenged the locaton and operation of industries and industrial enterprises in a residential area as violative of Karnataka Town and Country Planning Act, as well as the right to life under Art 21 of the Constitution. The court held that the mandate of the Constitution is to build a welfare society and for that utmost priority should be given to the environmental protection and its preservation. Thus, neglecting this will be an invitation to a disaster.

B. Freedom of Trade and Property

In Residents of Sanjay Nagar v. State of Rajasthan, the Rajasthan High Court came across an interesting situation. In this case the owners of the slaughterhouse were discharging untreated animal blood in the drains of the residential colony, where it was situated. Consequently, the court reminded the owners of their duties under Art 21 and 48A for protecting and improving a clean environment and ordered them to shut the slaughterhouse. An observation made by the Supreme Court in one of the MC Mehta cases is in consonance with the above-mentioned judgment. It was pointed out in MC Mehta v Union of India that the most vital necessities, namely air, water and soil having regard to the right to life under Art 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others.

Moreover, the case titled as Ivory Traders and Manufacturers Association v. Union of India is another example of a judgment, restricting the fundamental right of the citizens for preserving and safeguarding the environment. It was held that any trade which is detrimental to the environment, can totally be banned without attracting Art 19(1) (g) of the Constitution. It was further held that any trade which involves killing of animals like elephants, in this case, cannot be taken as business or trade in the sense of Art 19(1)(g) of the Constitution.

C. Constitutional Obligations of Hazardous Industries

The Supreme Court in MC Mehta v Union of India has ruled that an enterprise which has engaged in a hazardous or inherently dangerous industry which poses a potential threat to health and safety of persons working in the industrial unit and residing in the surrounding areas, owes and absolute obligation to the community to ensure that no harm results to anyone on account of such hazardous or inherently dangerous nature of the activity.

D. Restriction Freedom of Speech

The Constitution of India grants every citizen the Right to Freedom of Speech and expression. However, if it impinges upon the rights of another then it can be restricted. Noise pollution is a notable example of such impingement. In Rajni Kant v State the petitioner, the leader of a political party was not allowed to use loudspeakers in the public meeting he wanted to organise. The petitioner, in this case, contended that such restriction is violative of his right to freedom of speech under Art 19(1) (a) of the Constitution. The court held that the impugned bylaws do not infringe Art 19(10 (a) of the Constitution.

Conclusion

It can be easily deduced from the above-mentioned cases that though the facts and circumstances of all the cases are different but the underlying principle in all the cases is the same i.e. protection and preservation of the environment. Initially, the Indian Government adopted a very lackadaisical attitude towards the conservation of the environment, by not including any legally enforceable principles in the Constitution of India. However, with the passage of time the State realised the blunder that they have made and thus, started making conscious efforts in not only protecting the environment but in developing it too. The evolution was slow but it happened in due time and as it is said better late then never. Moreover, the importance of Murali S Deora v Union of India cannot be undermined, as this judgment declared the pollution caused by smoking, violative of Article 21 of the Indian Constitution.

The right includes the right to health and the right not to be afflicted by diseases. The decision, undoubtedly promotes the aims behind EPA, namely protection and improvement of the environment. Since its incorporation into the constitution by the Forty-Second Amendment, the idea of protecting and improving the environment did not attract the attention of the Indian judiciary for a long time till the significant ruling in Municipal Council, Ratlam v Vardhichand was passed. Though the apex court moved at a snail’s pace in achieving its objective of environment protection but the High Courts, interestingly made a huge leap in this respect. No wonder, the Supreme Court was quite convinced of the Constitutional mandate for environmental protection and rendered decisions with necessary interpretations and in consonance with this mandate.