Constitutional provisions with regard to the protection of

Environment

Introduction:
The concept of protection of environment and the Constitution of
India- both have grown, developed and modified over the years.
As the people slowly started to understand how important it is to
protect the environment, the constitution of India was also
amended to support this goal. The primary objective behind the
introduction of constitutional provisions with regard to
environmental protection was to make sure it is a matter to be
taken seriously. However the concept with regard to protection of
environment was prevalent even in the ancient times but real
actions were started to be taken after the Stockholm conference
in 1972 after which through 42 nd Constitutional amendment
Articles 48A and 51A(g) were inserted which directed the State
and the citizens respectively to take steps to protect and improve
the environment.
Position Prior To the 42nd Amendment:
Prior to the 42nd Amendment there was no provision in the
grundnorm that dealt directly with the environment and
protection thereof. Only Article 47 was some of significance which
was intended to raise the level of nutrition and standard of living.
After 42nd Amendment (Protection of Environment under
DPSPs and Fundamental Duties):
After 42nd Amendment in 1976 Articles 48A and 51A(g) were
inserted. Article 48A which forms the part of the Part IV of the
COI (DPSP) directs the state to take steps to protect the
environment and to provide safeguard to wildlife and forest.
Article 51A(g) says that it is the fundamental duty of the citizen
to protect the environment including lakes, rivers, forest and
wildlife and must have compassion for all living creatures.
In the case of ‘Sachidanand Pandey v. State of West Bengal’ the
Supreme Court has opined that whenever a matter relating to
ecological problem is brought before the Ld. Court then the
Court, while deciding such a case the Court must take Article
51A(g) into consideration.
In the case of ‘T. Damodhar Rao v. S.O. Municipal Corporation,
Hyderabad’ the Court pointed out that protection of environment
is not only the duty of the citizens only but the duty of the State
as well and the organs of the State including the Courts.
In the case of ‘M.C. Mehta v. Union of India’ (2002) the Court has
observed that Articles 39(e), 47 and 48A direct the state to secure
public health, enhance the level of nutrition and standard of
living and to protect and improve the environment. Such Articles
put the citizens and the State under constitutional obligations to
protect, preserve and conserve and improve the environment.
Actually 42nd Amendment of the Constitution inserted the word
‘socialism’ in the preamble. It is a concept which focuses more on
problems of the society or community as a whole rather than
individual problem and environmental pollution falls into the first
category.
Article 21
Article 21 of the Constitution talks about right to life and
personal liberty which can be restricted only by according to the
procedure established by the law.
The right to life under Article 21 means right to have a dignified
life along with bare necessities of life. Right to life extends to right
to have a clean environment as well where people can live
without any threat to their lives
In the case of ‘Rural Litigation and Entitlement Kendra v. State of
U.P.’ the Supreme Court pointed out that environmental pollution
caused by quarries adversely affected the health and lives of
people hence the same should be banned on the ground of
violation of Article 21 and this is the first case in which the
Supreme Court pointed out that the right to have a wholesome
environment is a fundamental right under Article 21.
In the case of ‘Subhash Kumar v. State of Bihar’ the Supreme
Court has pointed out that right to have pollution free air and
water is fundamental right under Article 21.
Ecology and public health are now considered as important
components of Article 21 and Green Bench was ordered to be
constituted by the Supreme Court.
In the case of ‘Ratlam Municipality v. Vardicharan’ where the
pollution was caused by private polluters and due to haphazard
town planning and the Supreme Court opined that the right to
have pollution free environment is a fundamental right under
Article 21.
Right to Equality and Environment:
The right to equality indicates that no action shall be taken by
the Government that is violative of Article 14 which talks about
right to equality. The Stockholm Declaration in 1972 recognised
the principle of equality in environmental management and called
up the nations to abide by the principle. The principle of right to
equality is generally resorted to in cases of urban development
where permission is granted by the Governmental authority
arbitrarily under its discretionary power without evaluating the
public interest and without proper application of mind and
without considering the environmental impact.
The Indian Judiciary on various occasions has struck down
arbitrary official sanctions in environmental matters on the
ground of violation of Article 14.
In the case of ‘Bangalore Medical Trust v. B.S. Muddappa’ the
Supreme Court has prevented an attempt to convert a public
park into a nursing home site on the ground of violation of Article
14. The Court has stated that the decision taken to convert an
open space reserved for public into a construction site for
hospital was a defective one and the decision taken without
application of mind and it was violative of Article 14, hence it was
ultra vires.
Article 19:
Article 19(1)(a) talks about fundamental freedom of speech and
expression and in our country environmental jurisprudence is
mostly developed by judicial activism. The cases relating to
environment generally come before the Court through PIL
wherein people exercise their fundamental freedom of speech and
expression highlighting the violation of the rights of the people to
live in a pollution free environment.
In the case of ‘P.A. Jacob v. Superintendent of Police, Kottayam’,
the Court pointed out that freedom of speech and expression
does not include the freedom to use sound amplifiers and loud
speakers. Hence noise pollution caused by such things can be
controlled by Article 19(1)(a).
Article 19(1)(g) allows us to carry on any business, occupation,
profession, trade or commerce within the territory of India but
reasonable restrictions can be imposed on such a right to advoi
environmental degradation.
In the case of ‘S. Jagannath v. Union of India’ the Supreme Court
has stated that sea beaches and sea coasts are gifts of the
nature. Any function that causes harm to such natural resources
must not be permitted to function. In this case a shrimp farming
culture industry was causing environmental pollution by
depletion of natural vegetation, polluting the ground water and
discharging polluting effluents. Such actions on part of the
industry were violative of constitutional provisions and provisions
of laws relating to environment and the Court has opined that
every organisation which is setting up industry in fragile coastal
area mandatorily pass environmental test.
Obligation under International Agreements:
A plethora of international agreements have been made so far
and India has been a signatory to it. Therefore India is under an
obligation to implement such provisions through her own
municipal laws. Because in Stockholm Declaration it was
declared that the world has one environment. Article 51(c)
declares that the state shall foster respect for international laws
and obligations of the treaties.
Article 253 of the Constitution empowers the Parliament to make
laws for either whole of India or any part thereof for the purpose
of implementing international conventions and agreements
signed with other country or countries. It is required to be
mentioned here that any such law made under Article 253 read
with Articles 13 and 14 cannot be questioned on the ground of no
legislative competence before any Court of law.
For example the Parliament has enacted the Air (Prevention and
Control of Pollution) Act, 1981 and the Environment Protection
Act, 1986. After taking the preambles of those Acts we can come
to the conclusion that such laws have been enacted for the
purpose of giving effect to the decisions taken at the United
Nations Conference on Human environment held at Stockholm in
1972.
In the case of ‘Vellore Citizens' Welfare Forum v. Union of India’
the Supreme Court has pointed out the necessity of incorporation
of international customary laws into the municipal laws provided
the former is not contrary to the latter.
Conclusion:
In conclusion we can say that prior to 42 nd Amendment of the
Constitution there was no specific provision relating to the
protection of environment. Through the above referred
amendment the Constitution embraced the concept of socialism
due to which several provisions dedicated to the environmental
protection are inserted. Apart from those, several provisions
contained under Part 3 of the Constitution, through liberal
interpretation thereof, can be associated with environmental
protection and the Indian judiciary also is working tirelessly to
protect the environment by resorting to the constitutional
provisions.