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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed discussion concerning the availability of fundamental rights guaranteed under Part III of the Indian Constitution, to protect the environment, as have been recognized by the Indian courts over several precedents. 

Introduction

Part III of the Indian Constitution provides six fundamental rights (Article 12-35) that are necessary for the overall personality development of every individual thereby preserving human dignity. These rights being justiciable by nature allows a person to approach the court when the same have been infringed. With environmental protection being a significant part of a nation’s development, fundamental rights play a key role in ensuring the same. This article discusses several case laws which have helped in safeguarding the surrounding, under the headings of various fundamental rights. 

Right to life and to live in a healthy environment 

Article 21 of the Indian Constitution guarantees the Right to Life and to Live in a Healthy Environment. Although the article does not expressly mention the environment as a part of “protection of life, and personal liberty”, it is by means of different case laws that have been decided by the Indian courts, one can find a wide interpretation of Article 21 to have included the environment.

Rural Litigation and Environment Kendra Dehradun v. State of Uttar Pradesh (1985)

The case of Rural Litigation and Environment Kendra Dehradun vs. State of Uttar Pradesh (1985) involved unauthorized operation of limestone quarries in the Mussoorie Hill range thereby causing a hazardous effect on the healthy environment along with affecting the perennial water springs. The Supreme Court of India while deciding on the present writ petition highlighted the importance of maintaining a proper balance between economic development and ecological protection.

The Court observed that any kind of development or infrastructural growth that takes place by destroying the environment, lives of people residing around the area of development by causing hindrance to basic amenities like water supply, drainage, etc will not be considered as a development for real prosperity, and economic up-gradation. 

Indian Council for Enviro Legal Action v. Union of India and others (1996)

The Supreme Court of India while deciding on the case of Indian Council for Enviro Legal Action v. Union of India and others (1996) took into account the worst conditions of the Bichhri village at Udaipur District in Rajasthan which was the consequence of the presence of several chemical industrial plants surrounding the area. Chemicals like “H” acid, sulphuric acid, oleum, etc were produced in the Respondent’s chemical plant. It was the untreated toxic wastewater that led to groundwater pollution thereby contaminating the soil and making it unfit for the purpose of cultivation.

The Apex Court while delivering the judgment referred to Sections 3, and 5 of the Environment Protection Act, 1986 which provides that the Central Government must take necessary measures to protect the environment. The suggestions that were provided by the Court in light of this case have been listed hereunder:

  1. Ordered the Central Government to adopt necessary steps to treat chemical industries separately from other industries, and observe them from close quarters to ensure they do not pollute, or harm the environment.
  2. The Court further suggested setting up environmental courts to ensure specific attention to environmental matters so as to provide justice to the aggrieved party and resorting to environment-friendly means. 

Freedom of Speech and Expression 

Article 19 (1)(a) of the Constitution of India guarantees Freedom of Speech and Expression to all citizens of India. How this freedom is associated with environmental matters can be understood by referring to the case of Moulana Mufti Sayed Md. Noorur Rehman Barkati & ors. vs. State of West Bengal & ors (1999) as having been provided below. 

Moulana Mufti Sayed Md. Noorur Rehman Barkati & ors. v. State of West Bengal & ors (1999)

The Calcutta High Court in this present case considered two issues namely;

  1. Is the right to use microphones for Azan purposes an absolute right and should not be restricted?
  2. Whether the right to practice a particular religion is inclusive of the right to use loudspeakers for the purpose of chanting religious texts and/or for the purpose of indiscriminate use of the same whenever needed?

The Petitioners, in this case, had prayed before the Court to restrain the application of Rule 3 of the Environmental (Protection) Rules, 1986 at the time of the call of Azan thereby calling the said provisions to be in violation of Article 14, and 25 of the Indian Constitution. Taking into account all these facts the High Court observed that the usage of loudspeakers or microphones cannot be considered as an integral part of the Azan prayer.

With a firm view no one can claim absolute right by suspending someone else’s rights, the Court held that microphones are major sources of noise pollution which by itself contravenes Article 19(1)(a) of the Constitution for noise pollution resulting in making the citizens captive listeners. Not being convinced with the argument of the Petitioner in concern with Article 14, and 25, the High Court dismissed the writ petition. 

Right to Equality

Article 14 of the Indian Constitution guarantees equality before the law and equal protection of law to every individual within the Indian territory. This Article ensures the prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth thereby promoting human rights. Article 14 vests the duty of taking fair, and just actions when it comes to environment protection solely on the State. 

Bangalore Medical Trust v. B.S. Muddappa And Ors (1991)

The Supreme Court of India while deciding on the case of Bangalore Medical Trust vs B.S. Muddappa And Ors (1991), took notice of the utilization of an empty plot of land which was reserved for the construction of a public park but it was the Bangalore Development Authority (BDA) who allotted that open space for a hospital’s construction. Such allotment was challenged by the local residents who claimed that such land allotment goes against the constitutional provisions for environmental protection.

Considering the facts, the Apex Court held that any act which hinders the basic values of individual freedom, human dignity, and quality of life which has been guaranteed to all the citizens under Article 14 will directly be in conflict with the fundamental Right to Equality and equal protection of the law. The Court further upheld the doctrine of rule of law in this case by observing that any action which stands against the law of the land despite being done at the behest of the executive will still be considered as illegal as the law is the supreme authority, and no man is above law. 

Sushila Saw Mill v. State of Orissa & Ors (1995)

The Orissa Saw Mills & Saw Pits (Control) Act 1991 was enacted to regulate the establishment and operation of saw mills, saw pits, and trade of sawing to protect and conserve forest and environment and for other related matters. The case of Sushila Saw Mill vs State of Orissa & ors (1995) surrounds this legislation as it appeared before the Supreme Court of India in concern with closing down of the Petitioner’s mill with immediate effect as it appeared to be destroying forest areas because of its location within it. The Petitioner contended that the said legislation does not impose a complete ban on mills and if such an instance occurs then that will be contravening the Petitioner’s fundamental Right to Carry on Trade and Business and will be discriminating the Petitioner’s mill from other mills surrounding the district thereby violating Article 14 of the Constitution. 

The observations made by the Apex Court while dismissing the concerned petition have been provided hereunder:

  1. Forest preservation is to be considered as a matter of great public interest and therefore, it will be a rare case that demands a total ban by the legislature. The Orissa Saw Mills & Saw Pits (Control) Act 1991 was enacted to impose a complete ban to carry on sawing operations within the prohibited area. Thus, the legislation clarifies its intention to impose a complete ban which is found to be in the interest of the public.
  2. The Court considered that the Petitioner’s Mill being situated within the prohibited area fell under the ambit of the legislative mandate that the entire area that covers within the prohibited zone would be treated as a class as against the other area. Therefore, when the limits of that district are within the prohibited zone of the reserved or protected or forest area, etc. it is a legislative scheme to give effect to the object of the legislature in the public interest to safeguard forest wealth and environment thereby curbing forest growth. Therefore, the concerned statute was to be treated as class legislation. Thus, it could not be considered as discriminatory and a contravention of Article 14 of the Constitution.

Right to Livelihood 

The Right to Livelihood is included within the ambit of Article 21 of the Indian Constitution which concerns the Right to Life and Personal Liberty. As environment and life are interrelated to each other, the existence of the latter rests solely on the harmonious relationship with the former. Article 21 guarantees the Right to Live in a pollution-free environment which thereby ensures the right to livelihood as well. 

The Supreme Court of India in the landmark judgment of Olga Tellis v. Bombay Municipal Corporation (1986) took into account a writ petition filed under Article 32 concerning deprivation of the Right to Livelihood of the slum dwellers by the Bombay Municipal Corporation Act, 1888. The Petitioners pleaded before the Apex Court that the Act was contravening Article 21, 19(1)(e) and (g) of the Indian Constitution. The pleading was in consequence of the Respondent’s decision of forcibly evicting all pavement dwellers and the slum or busti dwellers in the city of Bombay thereby deporting them to their respective places of origin or to any place outside Bombay city. The Court held that the writ petition was maintainable on grounds that the actions taken by the authority were procedurally ultra vires and infringed the citizens’ fundamental Right to Livelihood. 

Pradeep Krishnen v. Union of India (1996)

The Supreme Court of India in the noteworthy case of Pradeep Krishnen vs. Union of India (1996) clarified how the Indian courts must adopt steps where the Right to Livelihood was in issue. The Petitioner in that case contended that the forest cover in the state of Madhya Pradesh is inclining towards depletion with one of the reasons for the same being entry of villagers and tribals living in and around the Sanctuaries and the National parks. The Apex Court observed that it is the responsibility of the state government to preserve and protect forest covers in their respective states. Further, the state government was directed to take efficient steps to conduct an inquiry in cases where individual claims any right in or over any land which has been proposed to be included in the Sanctuary/National Park, under Chapter IV of the Indian Constitution. Such actions were directed to be taken within a period of six months.

ND Jayal v. Union of India (2003)

A bench of Justices S. Rajendra Babu, D.M. Dharmadhikari, and G.P. Mathur in the well-known case of ND Jayal vs. Union of India (2003) decided on a writ petition filed under Article 32 in concern with the legal actions associated with the environmental aspects of Tehri Dam.

Applying the precautionary principle, the Supreme Court of India held that whenever there appears a state of uncertainty due to lack of data regarding the extent of damage that is likely to be caused, then in order to maintain the ecological balance and preserve the environment and its resources, the burden of proof that the said balance will be maintained rests on the industry which contributes to causing such pollution. The Court further decided on the ambit of “Right to Development” which was observed to include more than just economic well-being. The Right to Development also guaranteed fundamental human rights.

Right to Know 

The Right to Know is also included within the ambit of Article 21 of the Indian Constitution. The Supreme Court of India while deciding in the case of SP Gupta vs. Union of India (1981) highlighted the importance of participatory democracy, remarking that the Union of India has to disclose documents concerning the functioning of the government to the general public for the latter possess the Right to Know about such relevant information. The government is accountable to the public in democratic India and has to showcase the asked documents. The Right to Know like all other fundamental rights is interconnected with environmental protection which has been explained in the case law below. 

Research Foundation for Science Technology and Natural Resource Policy v. Union of India and others (2007)

The Supreme Court of India while deciding the case of Research Foundation for Science Technology and Natural Resource Policy vs. Union of India and others (2007) connected the Right to Know with that of environmental matters. A bench of Justices Dr. Arijit Pasayat, and S. H. Kapadia while hearing the Blue Lady case took into consideration writ petition with regard to the import of toxic wastes from industrialized countries to that of India, despite such wastes being hazardous to the environment and life of the people of this country. The Apex Court had directed the Central Government towards adoption of effective measures to dispose of toxic waste substances thereby bringing in line the Hazardous Wastes (Management & Handling) Rules, 1989 with the BASEL Convention and Articles 21, 47 and 48A of the Indian Constitution.

Freedom to carry trade and business

Article 19(1)(g) of the Indian Constitution mandates the freedom to carry trade and business to every citizen of the nation. The two cases which have been discussed under this broad heading will provide an overview as to how Article 19(1)(g) is associated with environmental matters. 

Ganga pollution case

The Supreme Court of India while deciding in the case of MC Mehta vs. Union of India (1988) issued directions in relation to the industries which carried out tanning business near Kanpur on the banks of river Ganga. Both the Environment (Protection) Act, 1986, and the Water (Prevention and Control of Pollution) Act, 1974 laid down provisions that stated that the primary responsibility of maintaining the cleanliness of the river Ganga and its surrounding areas rested on Nagar Mahapalika and Municipal Boards. The Petitioner, in this case, had contended that the tanneries were creating public nuisance causing a threat to the environment. The Apex Court laid down a few guidelines for the appropriate authority to follow so as to avoid any further water pollution of river Ganga. The guidelines were:

  1. The Kanpur Nagar Mahapalika should take action under the provisions of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, or the relevant bye-laws to prevent the Ganga river from being polluted. The first step is to increase the size of the sewers in the labour colonies of Kanpur.
  2. The Apex Court directed that the practice of throwing corpses and semi-burnt into the river Ganga should be immediately stopped as it contributed to water pollution.
  3. Treatment of trade effluents flowing out of the industries directly to the river should be adapted by the industries for if otherwise occurs, the license under which the industries have been functioning will be taken away. 
  4. The Central Government should take the responsibility of mandating the subject of environmental studies mandatory in all educational institutions to help increase awareness about the need for environmental protection. 

Burrabazar Fire-Works Dealers v. The Commissioner Of Police (1997)

The bench of Justices B.P Banerjee, and A.B. Mukherjee of the Calcutta High Court while deciding the case of Burrabazar Fire-Works Dealers vs The Commissioner Of Police (1997) took into account a writ petition filed by the Petitioners pleading contravention of Article 19(1)(g) of the Constitution of India. Dismissing the writ petition, the Court held that the Freedom to Carry Trade and Business comes with its own set of reasonable restrictions, and therefore any kind of trade that causes environmental pollution cannot be entertained. 

Conclusion 

As we are proceeding towards grave dangers pertaining particularly to the environment, it is necessary for the administrative organs, and the judiciary of a nation to step in to prevent such kinds of ecological imbalances from taking place. The cases that have been explained in this article played a major role in framing the environment law jurisprudence, and therefore should be taken into consideration while deciding environmental matters in the future. 

References 

  1. https://lawtimesjournal.in/moulana-mufti-sayed-md-noorur-rehman-barkati-ors-vs-state-of-west-bengal-ors/
  2. http://www.indiaenvironmentportal.org.in/
  3. https://powermin.gov.in/en/content/protection-environment

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