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environment:constitution-and-environment

Constitution of India and Environmental Law

Originally, the Constitution of India which came into force on 26th January, 1950, contains no specific provisions for environmental protection.Soon after the Stockholm Conference, many Acts were introduced i.e. Wildlife Act, 1972; Water Act, 1974; Air Act, 1981 etc. within five years of Stockholm Declaration, the Constitution of India was amended to include Protection and Improvement of Environment as constitutional mandate. The protection and improvement of environment is now a fundamental duty under Constitution Act of 1976. Indian Constitution is one of the very few constitutions in the world, which provides for specific provision for the protection and improvement of the Environment. The constitution, being the fundamental law of the land has a binding force on citizens, non – citizens as well as the State. The Fundamental Rights and the Directive Principles of the State Policy underline our national commitment to protect and improve the environment.

Preamble of the Constitution and Environmental Law

The preamble of our Constitution provides that our country is based on “Socialistic” pattern of society, where the State pays more attention to the social problems than on any individual problems. Environmental pollution which has emerged as one of the biggest social problems is being regarded as a real problem affecting the society at large and thus state is under an obligation to fulfil the basic aim of socialism, that is, to provide decent standard of living to all which can be possible from a pollution free environment.

The preamble further declares that, the great rights and freedoms which the people of India intended to secure all citizens include justice, social, economic and political. Justice also includes environmental justice. Although the particular word environment does not find a place here, we can very well interpret this to include environmental justice. Environment as a subject matter has entered in our day to-day life in such a way that we cannot ignore deliberations on environmental matters when discussing about socio-economic or socio-political scene of the country.

Fundamental Rights

In part III of the constitution Articles 15(2) (b), Article 21 and provide for specific provision for environmental protection.

Public is entitled to the use of Environment

Article 15(2)(b):- According to Art. 15(2) (b), “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subjected to any disability, liability, restriction or condition with regard to: the use of wells, bathing ghats, roads and places of public resort, maintained wholly or partly out for state funds or dedicated to the use of general public”. In simple words, Art. 15(2) prohibit discrimination on the ground of sex, race, religion, caste, place of birth etc. to make use of the public places the general public. The public places, which are part and parcel of the human environment, should be made available to the public. The preamble to our constitution ensures socialistic pattern of the society and decent standard of life, which can be pollution free environment.

Right to live in a healthy Environment

Article 21:- According to Article 21 of the constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 21 is the heart of the fundamental rights and has received expanded meaning from time to time after the decision of the Supreme Court in Maneka Gandhi vs. Union of India1). Article 21 guarantees a fundamental right to life, a life of dignity to be lived in a proper environment, free of danger of disease and infection. Further the A.P. High Court in T. Damodar Rao vs. S.O., Municipal Corporation, Hyderabad 2) laid down that right to live in healthy environment was specially declared to be part of Art. 21 to the Constitution.

Dehradun Quarrying Case

  • The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State of U.P3). It is the first case of this kind in India, involving issues relating to environment and ecological balance.
  • The R.L. & E. Kendra and others in a letter to the Supreme Court complained about the illegal / unauthorized mining in the Missouri, Dehradun belt. As a result, the ecology of the surrounding area was adversely affected and it led to the environmental disorder.
  • The Supreme Court treated the letter as writ petition under Art. 32 of the Constitution and directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 1986. The respondents contended / argued that the write petition was registered in 1983 and the Environment (Protection) Act was passed in 1986 and hence the criminal proceedings cannot be initiated with retrospective effect.
  • The court rejected the contention of the respondents and held that the provisions of procedural law shall apply to ordinary criminal cases and not to the environmental cases. The court directed the Central and State Governments to take necessary steps to prevent illegal mining and to re-afforesation in the area of mining.

Oleum Gas Leak Case

  • In M.C. Mehta vs. Union of India 4) – The Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Art. 21 of the Constitution. The scope of the judgement was very significant in the history of enviro-legal cases. It set the Indian Supreme Court to be the protector of the environment under Article 21, which is no more a mere fundamental right of life, but of quality, pollution free and a safe life.

Directive Principles

The Indian Government enacted the 42nd Amendment of the Constitution bringing in an amendment in these articles to protect the environment. The amendment brought in the Article 48A and Article 51A (1) (g) in the Constitution of India concentrating on protection of the environment.

Article 48A was associate addition to the Directive Principles of State Policy. It states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. The Article explains that it is the duty of the state to protect the natural environment and improve the environment by various methods of preservation in order to reduce the pollution already caused. It also mentions that it is the duty of the state to safeguard the forest and the wildlife surrounding the country.

Fundamental Duties

The 42nd Amendment in 1976 added a new part IV- A dealing with Fundamental Duties in the Constitution of India. Article 51-A of this part enlists 11 fundamental duties. This part was added on the recommendations of the Swarn Singh Committee bringing the Constitution of India in line with Article 29(1) of the Universal Declaration of Human Rights.

Article 51-A (g) specifically deals with the fundamental duty with respect to environment. It provides: It shall be the duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers and wildlife, and also to have compassion for living creatures. Article 51-A (j) further provides: It shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher level of endeavor and achievements.

The basic motive behind the fundamental duties is to inculcate a sense of responsibility among the people and to promote their participation in restructuring and building a welfare society. The protection of the environment is a constitutional priority and it is the concern of every citizen.

Article 51-A (g) is the fundamental duty of every citizen to protect and improve natural environment. But, in the present scenario pollution is not only caused by exploiting the natural environment but otherwise also. In modern industrialized civilization such a concept may seem to be a misnomer. It is submitted that the word natural before the word environment is to be understood in a broad sense. Nature gave us the environment pollution free. The fundamental duty of every citizen is not only to protect the environment from any kind of pollution but also to improve the environmental quality if it has been polluted.

Thus, the underlined emphasis of this fundamental duty is that every citizen has a duty to make an endeavour to preserve the environment in the same way as it was given to us by nature. Now, we come to the question of ensuring the compliance of these fundamental duties. When they were incorporated in the Constitution in the year 1976, it was considered that the fundamental law of the land reminds the citizens of their constitutional obligations. They cannot be directly enforced.

However, in due course of time, the judicial activism provides an impetus to achieve the underlined objectives of the fundamental duties, particularly, Article 51-A (g) relating to the environment. The interrelationship between Articles 48, 48-A and 51-A (g) of the constitution has been explained by the Supreme Court in the State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat.

In L.K Kollwal V State of Rajasthan, a straightforward writ petition by voters of Jaipur compelled the municipal authorities to produce adequate sanitation. The court observes that once each national owes a constitutional duty to safeguard the surroundings 5), the national should be conjointly entitled to enlist the courts aid in imposing that duty against recalcitrant State agencies. The Court gave the administration six month to wash up the complete town, and laid-off the plea of lack of funds and employees.

Distribution of Legislative Power

Article 246 of the Constitution divides the subject areas of legislation between the Union and the States.

The Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines and inter-state rivers.

The State List (List II) includes public health and sanitation, agriculture, water provides, irrigation and emptying, fisheries.

The Concurrent list (List III) (under that each State and also the Union will legislate) includes forests, protection of wildlife, mines and minerals and development not coated within the Union List, population control and factories.

From an environmental stand, the allocation of legislative authority is a crucial one – some environmental drawback like sanitation and waste disposal, square measure best tackled at the native level; others, like pollution and wildlife protection, square measure higher regulated uniform national laws.

According to Article 249 the Parliament has residual power to legislate on subjects not covered by the three lists. There are about 200 Central and State Legislation on environmental protection. The most important environmental legislations, passed by the parliament under Article 249 of the Constitution are The Water (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1981; and the Environment (Protection) Act, 1986.

Laws to Implement International Obligations

Article 253 of the Constitution empowers Parliament to create laws implementing India's international obligations furthermore as any call created at a global conference, association or alternative body.

Article 253 states: nevertheless something within the preceding provision provisions of this chapter, Parliament has power to create any law for the complete or any a part of the territory of India for enacting any treaty, agreement or convention with the other country or countries.

The Tiwari Committee in 1980 put forward an idea for a brand new entry on “environmental Protection” to be introduced within the concurrent list to be modified by the centre to enact on environmental subjects, as there was no direct entry in the 7th seventh enables Parliament to enact comprehensive environment laws. The recommendation, however, did to consider parliament's power under Article 253.

1)
AIR 1978 SC 597
2)
AIR 1987 A.P. 171
3)
AIR 1988 SC 2187
4)
AIR 1987 SC 1086
5)
Article 51A


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