The Constitution of India, 1950, did not include any specific provision relating to environment protection or nature conservation. Presumably, the acute environmental problems being faced now in the country were not visualized by the framers of the Constitution. However, the past five decades have witnessed two major developments in this connection
The first development took place when the Constitution (Forty-second Amendment) Act, 1976, was adopted in the mid-seventies. Specific provisions relating to certain aspects of the environment, more especially for the protection of the forests and wildlife in the country, were incorporated in Part IV, dealing with the Directive Principles of the State Policy and List III (Concurrent List) of the Seventh Schedule of the Constitution.
With this amendment, the subject of “Ecology and Environment” was included in Articles 48A and 51A (g). At the same time, the subject of “Forests and Wildlife” was also transferred from State List to Concurrent List, so that the Central Government may play a significant role in the protection and conservation of environment. Thus, the Parliament, in exercise of its power, inserted Article 48 A in Part IV of the Constitution which contains the Directive Principles of State Policy in relation to environmental protection.
The amendments to the Constitution covered a wide scope, and one of the stated objects was to make the Directive Principles more comprehensive and give them precedence over Fundamental Rights so as to facilitate socio-economic reforms. Among other things, the amendment created a new Part to the Constitution, Part IV A, called Fundamental Duties.
The second major development has been the jurisprudence arising from certain remarkable judicial pronouncements in recent years, more specially relating to Article 21 of the Constitution dealing with the right to life1).
Various Articles of the Constitution of India dealing with environmental concerns may be summarised as under.
Article 19 (1) (g) read with Article 19 (6) of the Indian Constitution confers fundamental right on every citizen to practice any profession or to carry on any occupation, trade or business. This is subject to reasonable restrictions. A citizen cannot carry on business activity, if it is health hazards to the society or general public. Thus, safeguards for environment protection are inherent in Article 19 of the Constitution of India.
It cannot be disputed that certain professions, occupations, trades or businesses which are not in the interests of the general public may be completely prohibited, while others may be permitted with reasonable restrictions on them. In order to subserve the interests of general public, the reasonable restrictions on carrying on of any profession, occupation or trade, may provide that such profession, occupation or trade may be carried on exclusively by the State or by a corporation owned or controlled by the State. The right conferred upon the citizens under Article 19 (1) (g) is thus subject to the complete or partial prohibition or to regulation, by the State. However, under the provisions of Article 19 (6), the prohibition, partial or complete, or the regulation, has to be in the interests of the general public.
The Supreme Court, while deciding the matter relating to carrying on trade of liquor in Cooverjee B Bharucha vs Excise Commissioner2), observed that, “if there is clash between environmental protection and right to freedom of trade and occupation, the courts have to balance environmental interests with the fundamental rights to carry on any occupations.”
Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Therefore, hygienic environment is an integral facet of right to healthy life. It would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man made and the natural environment. Therefore, there is constitutional imperative on the Central Government, State Governments and bodies like municipalities, not only to ensure and safeguard proper environment, but also an imperative duty to take adequate measures to promote, protect and improve the man-made environment and natural environment3).
In this case4), the Supreme Court held that “right to health and medical care is a fundamental fight under Article 21 read with Article 39 (e), 41 and 43.”
In this case5), the Supreme Court held that right to pollution-free water and air is an enforceable fundamental right guaranteed under Article 21.
In this case6), the Supreme Court opined that the right guaranteed under Article 21 covers the right to decent environment.
Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well-settled by repeated pronouncements of the Supreme Court as also the High Courts that right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of person to live with human dignity. Therein are included, all the aspects of life which go to make a person's life meaningful, complete and worth living. The human life has its charm and there is no reason why the life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises, which would travel beyond his precincts and cause nuisance to neighbours or others. Any noise, which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man, is nuisance. How and when a nuisance created by noise becomes actionable has to be answered by reference to its degree and the surrounding circumstances including the place and the time.7)
Protection of the environment is not only the duty of the citizens, but also the obligation of the State and its all other organs including the courts. The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India8).
In this case9), the Supreme Court imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of life and dignity and for elimination of water and air pollution.
In this case10) the Supreme court held that the maintenance and improvement of public health is the duty of the State to fulfil its constitutional obligations cast on it under Article 21 of the Constitution.
In this case11), the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution. It is trite to state that hygienic environment is an integral facet of the right to healthy life and it would not be possible to live with human dignity without a humane and healthy environment.
In the matter of enforcement of fundamental rights under Article 21, under public law domain, the court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The court while awarding damages also enforces the Polluter Pays Principle, which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment12).
In this case13), a writ petition was filed for the preservation of sanitation and environment in the city of Jaipur. The High Court held that a right in favour of citizen to move to the court to see that the state performs its duties sincerely in accordance with the law of the land. Every citizen has the right to know how the State is functioning. Further, the court observed—
“Maintenance of health, preservation of the sanitation and environment falls within the purview of Article 21 of the Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked.”
In this case14), the petitioner by way of public interest litigation, filed a petition for ensuring enjoyment of pollution free water and air. Justice KN Singh and Justice ND Ojha held as under—
“Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Those who make noise often take shelter behind Article 19 (1) (a), pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights, but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19 cannot be pressed into service for defeating the fundamental right guaranteed by Article 2115).
Clauses (b) and (c) of Article 39 of the Constitution provide that—
(b) the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
The provisions of Article 39, together with the other provisions of the Constitution, contain one of the main objectives, namely, the building of a Welfare State and an egalitarian social order in our country. The fundamental rights and the directive principles have been described as “conscience of our Constitution”. The Constitution makers had, among others, one dominant objective in view and that was to ameliorate and improve the lot of the common person and to bring about a socio-economic transformation based on principles of social justice. While the Constitution makers envisaged development in the social, economic and political fields, they did not desire that it should be a society where a citizen will not have the dignity of the individual.
Part III of the Constitution shows that the founding fathers were equally anxious that it should be a society where the citizen will enjoy the various freedoms and such rights, as are the basic elements of those freedoms without which there can be no dignity of individual. Our Constitution makers did not contemplate any disharmony between the fundamental rights and the directive principles. They were meant to supplement one another. It can well be said that the directive principles prescribed the goal to be attained and the fundamental rights laid down the means by which that goal was to be achieved.
Article 48: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines. The State is required to take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Milch breeds include all cattle breeds, which have an inherent potential for milk production whereas draught breeds have an inherent potential for draught purposes like pulling, traction of loads etc. A cattle, which has served human beings, is entitled to compassion in its old age when it has ceased to be milch or draught and becomes so-called ‘useless’. It will be an act of reprehensible ingratitude to condemn a cattle in its old age as useless and send it to a slaughter house taking away the little time from its natural life that it would have lived, forgetting its service for the major part of its life, for which it had remained milch or draught16).
Although, the Constitution of India, which was enforced on 26.1.1950 did not contain any express provision for protection of environment and ecology, the people continued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology. Article 48A was inserted in Part IV of the Constitution and the State was burdened with the responsibility of making an endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.
Article 48A of the Constitution of India, 1950 enjoins that, “State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” Protection and improvement of environment is necessary for safeguarding forests and wild life, which in turn protects and improves the environment. Forests and wild life are clearly inter-related and inter-dependent. They protect each other.
Protection of the environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of a development scheme. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements17).
In this case and in MC Mehta vs Union of India18), it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of “sustainable development”. This development strategy caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainable development without which life of coming generations will be in jeopardy.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.