Constitutional provisions for protection of Environment | Law Optional Notes for UPSC PDF Download

Introduction

• Over the years, our Constitution has undergone significant growth and evolution, making it one of the most extensively amended constitutions globally. In the context of India, environmental protection has not only become a fundamental law of the land but has also been associated with human rights. It is now widely acknowledged that every Indian citizen has a basic human right to a clean environment and a life of dignity and harmony.
• The fundamental duties outlined in our Constitution impose an obligation on individuals to safeguard the environment, aiming to provide every human being with a clean environment conducive to a life of dignity and harmony.
• Our Constitution clearly articulates that the Directive Principles of State Policy are oriented towards the concept of a Welfare State, and a healthy environment is considered an essential element of a welfare state. Article 47 of the Constitution emphasizes that the State must prioritize improving the nutrition levels, standard of living, and public health, including the protection and enhancement of the environment, as part of its primary duties.
• Article 48-A of the Constitution asserts that the State must make efforts to protect and enhance the environment and conserve the country's forests and wildlife. Part III of the Constitution guarantees fundamental rights that are vital for individual development.
• The legislative history in this regard began with the Indian Penal Code of 1860, which defined public nuisance in Section 268. Sections 133 to 144 of the IPC deal with the abatement of public nuisance, and Sections 269 to 278 contain penal provisions, indicating that individuals violating these provisions can be prosecuted and punished.
• Following the conclusion of the Stockholm Conference, several acts were introduced in India, such as the Wildlife Act of 1972, the Water Act of 1974, and the Air Act of 1981, reflecting a commitment to environmental protection. Within five years of the Stockholm Declaration, the Indian Constitution was amended to include the protection and improvement of the environment as a constitutional mandate. The safeguarding and enhancement of the environment are now fundamental duties under the Constitution, as per the 1976 Constitution Act. The Indian government has established a National Committee on Environmental Planning and Coordination to oversee these efforts.
• The government's environmental programs include initiatives to clean rivers, including the Ganga and Yamuna. Prime Minister Sh. Rajiv Gandhi established the Central Ganga Authority to address pollution control in the Ganga river. The enactment of the Environment (Protection) Act in 1986 was a direct outcome of these initiatives.

Environment And It's Relation With Citizens:

The Constitution of India has made a double provision:

• A directive to the State for protection and improvement of environment.
• Imposing on every citizen in the form of fundamental duty to help in the preservation of natural environment. This is the testimony of Government's awareness of a problem of worldwide concern. Since protection of environment is now a fundamental duty of every citizen, it is natural that every individual should do it as personal obligation, merely by regulating the mode of his natural life. The citizen has simply to develop a habitual love for pollution.

Legislative Matters And Environment Protection

Since in Indian Constitution , there are three lists:

• Union List
• State List
• Concurrent List

As we know the authority of dealing with the matters of the concurrent list (list III) is shared between both the state and central government. It covers matters like protection of forests, wildlife, conserving mines, population control etc. but in the instance of conflict, the decision of the central government will supersede.
The legislative and administrative relations between the central and the state government are precisely dealt in with the part XI of the Constitution. The power to make rules for the whole country is with the Parliament of the country, while for that of the state lies with the state government of every state.
In an instance of passing state laws successive to the central laws, for it to prevail, requires a Presidential assent first as in accordance with Article 254.
In the situation of national emergency, Parliament has the power to legislate the state subjects also. The division of these legislative powers is essential to make provisions which can deal with environmental problems.

International Environment Agreements

• Numerous international agreements addressing environmental protection have been established, and India has actively participated in these agreements. The Stockholm Declaration of 1972 emphasized the interconnectedness of the world's environment, leading India to commit to these international pacts. As per Article 51(c) of the Indian Constitution, India is obliged to uphold and implement the provisions of these international agreements, fostering respect for international law and treaty obligations within the country.
• In contrast, another crucial provision pertaining to environmental protection is Article 253 of the Constitution. This article grants the Indian Parliament the authority to enact laws applicable to the entire country or specific territories to fulfill agreements or conventions signed with other countries. Parliament can also legislate to implement decisions made at international conferences. Any legislation related to environmental protection made in accordance with Article 253, in conjunction with Articles 13 and 14, cannot be challenged in a court of law on the grounds of legislative competence.
• Utilizing this authority, Parliament has enacted the Air (Prevention and Control of Pollution) Act of 1981 and the Environment Protection Act of 1986. These acts state in their Preambles that they were enacted to implement the resolutions of the United Nations Conference on the Human Environment held in Stockholm in 1972.
• In the case of Vellore Citizens' Welfare Forum v. Union of India, the Supreme Court ruled that it is essential to incorporate international customary laws into domestic laws, provided they are not in conflict with them. This is an established legal principle, emphasizing the importance of adhering to international laws within the domestic legal system.

Responsibility Of State For Environment Protection

• Article 47 of the Constitution places a responsibility on the state to focus on improving the nutrition and living standards of its citizens. The primary duty of the state is also to enhance public health. The state is obligated to prohibit the consumption of alcohol and drugs that can be harmful to people's health, except for medicinal purposes.
• Interpreting this responsibility, it can be understood that the state must take effective and necessary measures to enhance the well-being and living standards of all its citizens. This includes promoting awareness about environmental protection. Environmental development projects that could harm society as a whole should not be undertaken by individuals, and the state should closely monitor such activities and projects.
• Various factors contribute to the increasing pollution levels in the environment. For example, water pollution often results from the discharge of impure water into rivers, which not only contaminates the country's natural resources but also affects public health. This underscores the urgent need for provisions that compel the state to preserve and safeguard the environment.
• In the case of Hamid Khan v. State of Madhya Pradesh, the state's failure to provide water from handpumps resulted in significant harm to citizens and had a profound impact on their health. Therefore, due to this severe negligence by the state, it was ruled that the state had not fulfilled its basic duty.
• In 1976, the Constitution was amended to insert Article 48-A, aiming to provide improved provisions for the preservation and protection of the environment.

Constitutional Provisions

• Right of life and Environment protection (Article 21): Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be deprived of his right to life or personal liberty except in accordance with procedures established by law. The words except in accordance with procedures established by law can be interpreted to mean that this provision is subject to exception and is regulated by law which varies from case to case.
• Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections.
• This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-free environment, otherwise granting such right would prove to be meaningless. This aspect of Article 21 has been evidently discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where the petitioner along with the other citizens wrote to the supreme court expressing their views against the progressive mining which denuded the Mussoorie hills of trees and forests and soil erosion. This lead to having an adverse effect on the environment and resulted in landslides along with blockage of underground water channels.
• The registry was ordered by the Hon'ble supreme court to consider this letter as a writ filed under article 32 of the Constitution.
• An expert committee was appointed in this behalf by the Supreme Court to advise the Hon'ble court with some technical issue. On the basis of the report provided by the expert committee, the court provided the limestone quarries to be closed because it was infringing the right to life and personal liberty. Quarrying operations lead to ecological degradation and air and water pollution, which affected the lives of the people to a great extent.
• In L.K Koolwal v. State of Rajasthan and Ors, Rajasthan High Court held that maintaining the quality of the environment, sanitation and health is covered under the purview of Article 21 of the Constitution. Because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of a citizen.
• In Charan Lal Sahu v. Union of India, it was held that the duty of the state is to take adequate and effective steps for the enforcement and protection of Constitutional rights guaranteed under Article 21, 48-A and 51-A(g).
• In M.C Mehta v. Union of India, due to stone crushing activities in and around Delhi was causing a huge problem of pollution in the environment. The court was conscious of the inevitable consequences and the ecological problems caused due to the industrial activities in the country. In the name of environmental development, it cannot be permitted to degrade the quality of the ecology and increase different forms of pollution to the extent that it becomes a health hazard to the lives of all the citizens. It was further held that citizens have a right to fresh air and have a pollution-free environment in which they live.
• Further, the scope of article 21 was broadened by the judiciary to include under its purview the right to livelihood as well. It includes the right of citizens to earn their livelihood along with the right to life. The wider interpretation of this article has proved to be beneficial in keeping a strict check on the conduct and actions of the government in the context of measures taken by the authorities to protect the environment.
• In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone were using coke and coal as an industrial fuel. These industries were ordered to be relocated to an alternative site as provided under Agra Master Plan. The rights and duties of the workmen in the industries were also specified by the court following the principle of sustainable development.

Right to Equality and Environment Protection (Article 14)

• Equality before the law and equal protection of the law has been granted under article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people.
• In Bangalore Medical Trust V. B.S Muddappa, an improvement scheme was prepared by the City Improvement Board of Bangalore for the purpose of extending the city. A low-level park was to be developed for which an area was kept under this scheme. But under the direction of the chief minister the area kept for the low-level park was to be converted into the civic amenity site where the hospital was to be constructed. As soon as the construction began, the residents moved to the high court.
• The petition moved in by the residents was allowed by the high court. But in appeal to the supreme court, the appellant contended that the power to allot sites is completely a discretionary one and the developing authority has the right to allow the site for making hospital rather than a park.
• And thus, the diverted use of the land was justified in the eyes of the appellant.
• By explaining the importance of open spaces and parks in the development of urban areas, the supreme court rejected the appeal. The Hon'ble court further stated that the open spaces, recreation, playing grounds and protection of ecology are the matters of vital importance in the interest of public and crucial for the development. Keeping open spaces for the interest of the public is justified cannot be sold or given on lease to any private person solely for the sake of monetary gains.

Freedom of Speech and Expression and Environment (Article 19(1) (a))

Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression, which has been used in cases where individuals expressed concerns about violations of their right to a clean and safe environment and the right to livelihood. This right is also seen to encompass freedom of the press, which plays a crucial role in shaping public opinion on environmental issues.

Freedom of Trade and Commerce and Environment Protection (Article 19(1) (g))

• All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an absolute right and thus, has reasonable restrictions to it. Article 19(6) of the Constitution lays down the reasonable restriction to this fundamental right to avoid the environmental hazards.
• The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.
• In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the holy river Ganga which was causing water pollution. Further, no primary treatment plant was being set up despite the constant reminders. It was held by the court to stop the tanneries from working because the effluents drained were ten times more noxious as compared to the ordinary sewage water which flows into the river.
• The court ordered while directing tanneries to be stopped from working which have failed to take necessary steps as required for the primary treatment of effluents from the industries. The court while passing this order contended that, though the court is conscious about the unemployment that might usher due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.
• In M.C Mehta v. Union of India[9], it was directed by the Supreme Court that the industries who did not comply or adhere to, with the prior direction of the Hon'ble court regarding the installation of air pollution controlling system should be closed. In this case, the supreme court laid down its greater emphasis on Article 19(6) of the Constitution.
• In S. Jagannath v. Union of India[10] , sea beaches and sea coasts were considered to be the gifts of nature, by the Hon'ble Supreme Court and any such activity which pollutes these natural resources or the gift of nature cannot be permitted to function. In this case, a shrimp farming culture industry by modern method causing degradation to the ecosystem, discharge of polluting effluents, is polluting the potable ground-water and depletion of the plantation. All of these activities were held to be violative of constitutional provisions and other legislation dealing with environmental matters, by the court.
• The court further held that before the installation of any such industry in a fragile coastal area it is essential for them to necessarily pass the strict environmental test. In other words, reasonable restrictions can be laid in accordance with Article 19(6) of the Constitution.

Directive Principle of State Policy (Article 48(A))

• Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
• In Sher Singh v. Himachal Pradesh, It was held that the citizens of the country have a fundamental right to a wholesome, clean and decent environment. The Constitution of India, in terms of Article 48A, mandates that the State is under a Constitutional obligation to protect and improve the environment and to safeguard the forest and wild life in the country.
• By 42nd Amendment to the Constitution, the Parliament, with an object of sensitizing the citizens of their duty, incorporated Article 51A in the Constitution, inter alia, requiring a citizen to protect and improve the natural environment including the forests, lakes, rivers and wild life and to have a compassion for living creatures.
• The legislative intent and spirit under Articles 48A and 51A(g) of the Constitution find their place in the definition of 'environment' under the Environment (Protection) Act, 1986 (for short the Act of 1986). The legislature enacted various laws like the Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974 and the Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, the Indian Forest Act, 1927 and the Biological Diversity Act, 2002 and other legislations with the primary object of giving wide dimensions to the laws relating to protection and improvement of environment.
• Not only this, there is still a greater obligation upon the Centre, State and the Shrine Board in terms of Article 48A of the Constitution where it is required to protect and improve the environment. Article 25(2) of the UDHR ensures right to standard of adequate living for health and well-being of an individual including housing and medical care and the right to security in the event of sickness, disability etc.
• The expression life enshrined in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure.

Article 51

• Article 51 Promotion of international peace and security The State shall endeavour to:
  • promote international peace and security;
  • maintain just and honorable relations between nations;
• foster respect for international law and treaty obligations in the dealings of organised people with one another; and encourage settlement of international disputes by arbitration
• The Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of environment, Article 51-A (g) employs the expression the natural environment and includes therein forests, lakes, rivers and wild life. While Article 48 provides for cows and calves and other milch and draught cattle,
• Article 51-A(g) enjoins it as a fundamental duty of every citizen to have compassion for living creatures, which in its wider fold embraces the category of cattle spoken of specifically in Article 48.
• In Mohan Kumar Singhania & Ors. v. Union of India & Ors.,,a governmental decision to give utmost importance to the training programme of the Indian Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the Constitution, holding that the governmental decision was in consonance with one of the fundamental duties.
• In State of U.P. v. Yamuna Shanker Misra & Ors., this Court interpreted the object of writing the confidential reports and making entries in the character rolls by deriving support from Article 51-A(j) which enjoins upon every citizen the primary duty to constantly endeavour to strive towards excellence, individually and collectively.
• In T.N. Godavarman Thirumalpad v. Union of India & Ors.,, a three-Judge Bench of this Court read Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of environmental protection and held that:
• Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to have compassion for living creatures.
• In State of W.B. & Ors. v. Sujit Kumar Rana, Articles 48 and 51-A(g) of the Constitution were read together and this Court expressed that these provisions have to be kept in mind while interpreting statutory provisions.

Article 253

Legislation for giving effect to international agreements notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Conclusion

Connecting human rights and environment is a valuable sourcebook that explores the uncharted territory that lies between environmental and human rights legislation. Human beings can ensure fundamental equality and adequate conditions of life in an environment that permits a life of dignity and well-being. There is an urgent need to formulate laws keeping in mind the fact that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well. Indeed, health has seemed to be the subject that bridges gaps between the two fields of environmental protection and human rights.