This article is written by Shyantika Khan, pursuing BBA LLB from Amity University Kolkata and Pubali Chatterjee, pursuing BBA LLB from Amity University, Kolkata.

Abstract

Environment is the most important factor for a person to survive which has all the biotic and abiotic factors. With growing industries in the world, environmental issues are rising in the world. The Constitution of India evolved over the years. In the Indian frontline, environment insurance has not exclusively been raised to the status of major tradition that must be adhered to, however it has additionally been webbed with human rights. The article meticulously deals with the constitutional provisions regarding environmental protection and the articles which concern the safeguard of the environment. A short historical overview of environment post-independence is raised there relating to the environment. It also focuses on several case laws in relation to environment destruction and their protective measures. The judiciary took the environmental issues seriously in a few past decades. In this article, the tortious liabilities relating to environment issues are highlighted herein.

Introduction

‘Plant a sapling, it may save thousand lives’  -Anonymous

Technologies, deforestation, global warming and growth in population rate has posed a threat to the environment. If no measures are adopted to sustain our environment, it will soon perish and there would be no leftovers for the next generation. Due to environmental pollution which includes air, water and noise pollution impacts the health of an individual. India has signed a few international declarations to save the environment from destruction. India being a signatory to the United Nations has certain obligations. Principle 1 of the affirmation of United Nations Conference on Human Environment, 1972 declared that man has the principal right to opportunity, equity and sufficient states of life in a situation of a quality that allows an existence of pride and prosperity. After the Stockholm Declaration, references to one side to respectable, sound and suitable conditions were fused in a few Global and Regional Human Rights Treaties and in the goals of International Organizations.

It is rightly considered fact that it is a fundamental right of every individual, to live in a pollution free environment with complete human dignity. Considering it not only a basic, it is a human right to access proper sanitation and live in a clean environment. The preamble to our constitution accommodates a communist society which advances ecological security. The major obligations again plainly force obligation on all residents to ensure environmental protection. Directive principles (DPSPs) are directed towards the ideals of welfare state building. 

Historical overview

If we look back into the pages of mythologies, the Hindu Mythology stated that in Upanishads there was a vivid explanation of nature. The Yajnavalkya Smriti called for punishing those who destroyed trees. While we consider the post-independence scenario, India witnessed a new era of progress. Due to agricultural and industrial reforms the natural resources available in India were hugely exploited that sustainable development was next to impossible. The issue with respect to improvement required broad misuse of resources derived from nature. The Government of India felt to review the environmental crisis and developed strategies to balance economic development with the environment. The environmental policy 2009 of the Government of India is based on the cardinal principle of sustainable development. Presently the mismanagement or improper handling of waste or hazardous residuals from factories is one of the potential causes of environmental pollution. The Pollution Control Board drew attention of the High Court through Public Interest Litigation and the court issued guidelines to safeguard the environment.

Articles enshrined in Indian Constitution: Instruments of safeguarding environment

There are certain articles mentioned in the India Constitution which safeguards the environment and protects it against environmental hazards. The fundamental duties of the Indian Constitution impose a duty on every citizen to protect the environment.  The articles are mentioned as follows:

Article 21 

Article 21 of Indian Constitution deals with right to life with personal liberty. The approach of article 21 has been increased to right to environment stating it is rightly considered that the right of every individual to live in a pollution free environment with complete dignity.

Article 48 

Article 48 focuses on the protection and safeguard of milch and draught animals and the State shall work towards their preservation. This article is mentioned under Part IV of Constitution- Directive Principles of State Policy.

Article 48(A)

Article 48(A) of Indian Constitution deals with wildlife and forest protection and the duties of the State towards it.

Article 51A (g) 

Article 51A(g) of the Constitution basically deals with protection and safeguarding natural resources and having compassion for the living creatures as well. 

Environment Protection Act, 1986

The Environment Protection Act, 1986 called the “Environment Act” accommodates the assurance and improvement of the environment. On November 19, 1986, the Environment Protection Act came into power and was reached out to the entire nation. The Environment Protection Act sets up the structure for examining, arranging and actualizing long haul necessities of ecological well being and setting out an arrangement of expedient and satisfactory reaction to circumstances compromising nature. 

The term “environment” is understood in a very wide term under Section 2(a) of the Environment Act which includes water, air and land as well as the inter-relationship which exists between them. Under the Environment Act, the Central Government is engaged to take estimates important to secure and improve the condition of nature by setting norms for outflows and releases of contamination in the environment by any individual carrying on an industry or action; directing the area of enterprises; the board of perilous wastes, and assurance of general wellbeing and government assistance.

If there should arise an occurrence of any resistance or contradiction of the Environment Act, or of the principles or headings under the said Act, the violator will be culpable with detainment as long as five years or with fine up to Rs 1,00,000, or with both. If there should arise an occurrence of continuation of such infringement, an extra fine of up to Rs 5,000 for consistently during which such disappointment or negation proceeds after the conviction for the main such disappointment or repudiation will be required. Further, if the infringement proceeds past a time of one year after the date of conviction, the guilty party will be culpable with detainment for a term which may stretch out to seven years.

Cases dealing with environmental protection

1. The case MC Mehta V. Kamalnath is a landmark pronouncement on doctrine of public trust. The Supreme Court said that natural resources are a unique gift of nature and the court wondered that nature and men have always supplemented each other and their relationship is everlasting. Hence, the inquiry emerges why human beings as opposed to shielding them are very nearly on the ground of crushing it.
2. In the case of Rural Litigation and Entitlement Kendra V. State of UP, the hon’ble court for the first time dealing with the issues of the environment. It held that it is always to be taken into consideration that the environment is a permanent asset to mankind and it is not meant to be exhausted in the end.
3. In the case of Ratlam V. Vardhichand Justice Krishna Iyer in 1980 delivered the judgment that focused on the concept of public nuisance regarding the environment. He talked about Sec. 133 of Code of Criminal Procedure which gave power to district magistrates in regards to public nuisance in particular places. In this matter, the Supreme Court dismissed the argument of Ratlam municipality as it could not perform the statutory duties due to financial inability.

Supreme Court: An environment protection activist

The Hon’ble Supreme Court has been playing an important role as a steward of environmental protection. In a recent order, it required the central government to set up a national environment regulator with offices in every state by March 31, 2014, entrusted with appraising and approving projects for environmental clearances. In fact, Indian democracy is known not only for its judicial independence, but, importantly, for offering numerous instances of judicial activism that has been encouraged by the “innovative” instrument of Public Interest Litigation (PIL) – a legal pill for help against executive wrongs.

Nevertheless, judicial activism has been instrumental in addressing the environmental cause. It was a result of the Supreme Court that the privilege to life and freedom, a crucial right under Article 21, came to incorporate the privilege to a sound domain. Subsequently, an individual can move toward it straightforwardly when the open intrigue is in question because of natural mischief. Following up on a PIL to check mechanical contamination of water bodies, for example, the Court gave notification to the Union government, Central Pollution Control Board, and 19 states to execute contamination control standards and the “polluter pays” rule. On past events also, the Court has given notification and mandates to the focal and state governments on various issues relating to environment.

In 1998, the case of M.C. Mehta v. Union of India, when the Supreme Court mandated the conversion of all diesel-powered buses in Delhi to Compressed Natural Gas (CNG)-driven ones, to check air pollution. It also imposed hefty fines on diesel bus operators who failed to comply with the ruling. As a result, as of June 2012, some 13,000 buses were running on Compressed Natural Gas in Delhi. 

Similarly, hearing a petition in the year 2012, the Court admonished both the central government and the state government of Delhi, Haryana and Uttar Pradesh for persistent pollution of the Yamuna. The bench marked out that it is significant for this court to take this issue to its obvious end result and not grant state specialists and its officials to leave it mid-way especially when a huge number of crores have been spent by the Union of India and other public bodies. It merits a caveat that the Supreme Court’s intervention is not a panacea for all environmental ills. Therefore, the role of the judiciary and the Courts have an important role to play in environmental protection. 

Tort remedy relating to environment destruction

There are different facets of tortious liability that could be imposed on an individual if he/she harms the environment in any manner. Few of the liabilities would be damage, nuisance or strict liability. Doctrine of strict liability has extensive utility in ecological contamination cases particularly cases managing the mischief brought about by the spillage of risky substances.

Conclusion

Environment and healthy eco- system are two key factors for humans, animals or birds to survive and we must take proper care of them. Reducing use of plastics, decreasing deforestation and increasing sustainable development would aid in the process of conserving nature. Planting a tree at least once in six months is going to aid in the process of recovery of the destruction the environment faces. The Environment Protection Act needs to support and maintain a strong research program to be a shield to environment destruction.

Proper understanding of the complexity and magnitude of environmental problems leads us to the conclusion that research work may help in this process. The government has taken care of Swachh Bharat mission to keep the environment clean. Law and order must be implemented in a strict sense to justify environmental protection activities. Thus, to affect the abundance of established, emerging, and as-yet-unknown environmental issues, an expanded understanding of the scientific principles underlying the environmental system. It is of utmost importance to adopt sustainable development policies. Our small efforts put together can make a large difference in the world towards environment protection. One of the major points to be remembered is that Education is majorly necessary to aware mass about the consequences of environmental pollution and how we could help to clean it.

References

• Sangeethan Mugunthan, An Appraisal of Environmental Law: Birth of The Right to Environment in India, Legal service India http://www.legalserviceindia.com/articles/evn.htm

• THE CONSTITUTION OF INDIA http://legislative.gov.in/sites/default/files/coi-4March2016.pdf

• Vaibhav Chakraborty, Environment Protection Act 1986-Protecting India’s Environment, MyIndia, https://www.mapsofindia.com/my-india/society/environment-protection-act-1986-protecting-indias-environment

• Environment Protection Act, 1986, Act of Parliament,1986 (India)

• The Indian Supreme Court as Environmental Activist, THE DIPLOMAT, https://thediplomat.com/2014/01/the-indian-supreme-court-as-environmental-activist/

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