Constitutional Provisions on Environmental Protection

Constitutional Provisions on Environmental Protection

“The truth is: the natural world is changing. And we are totally dependent on that world. It provides our food, water, and air. It is the most precious thing we have and we need to defend it.” —David Attenborough^{[1] [1]}

Introduction to environmental protection

India geographically is one of the most diverse countries in the world from the ice-capped mountains to the ghats, fertile lands to the Thar desert with geography we are also very rich with the different species of wildlife and plants that are special to this region be it the majestic Bengal tiger or the one-horned rhino.

We have from ancient times lived in harmony with these species but now with time the hunting of these animals and cutting of forests has increased because of the demands of their skins and the raw materials which have disturbed the environmental stability of India. So, it becomes very important to understand where the constitution of India stands with regards to environmental protection.

But before that it is important to understand the term environment itself, the Oxford dictionary defines environment as “the natural world in which people, animals and plants live”^{[2] [2]} but the legal definition that will be used here is given under section 2(a) of The Environmental Protection Act, 1986 which states

“environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property” so the environment not only includes the biological and physical aspects but also the relationship between the factors that are present.

Also Read: The(EPA) Environmental Protection Agency (USA)- A Detailed Deliberation

Environmental Protection Laws

When the constitution was drafted there was no particular provision in regards to environmental protection but with time when the international stand toward the need for environmental protection changed and when India faced industrial accidents like the Bhopal gas leak (regarded as one of the most dangerous accidents in the human history) the need for some laws to protect environment was realized.

After the Stockholm conference was held in 1972 India also implemented The Environmental Protection Act, 1986 but to the constitution of India major change came with the 42^nd Amendment and with judicial activism.

Now coming to the provisions regarding environmental protection:

1. Article 19(1)(g):- This article gives the right to practice any profession, or to carry on any occupation, trade, or business but the Supreme court in Kooverjee B. Bharucha v Excise commissioner^[3] held that it is important to maintain the balance between the fundamental right of a citizen to trade and the environmental protection if there is a clash between the two. This clearly states that for a citizen it is very important not to disrupt the environmental balance while performing his right to trade and occupation.
2. Article 21:- “No person shall be deprived of his life or personal liberty except according to procedure established by law”  Perhaps one of the most widely interpreted fundamental rights is Article 21, which protects the life and liberty of a citizen. It also covers many other rights in itself like the Right to privacy, right to livelihood, and in M.C. Mehta vs. Union of India,^[4] The court decided that The right to a clean and pollution-free environment is an integral part of Article 21. In T. Damodar Rao v S.O Municipal Corporation^[5] It was held by the Court that the slow poisoning of the environment by the industries is in violation of the Right to life under Article 21 of the Constitution.
3. Article 32 and 226:- One of the most inventive parts of our constitution is that it provides the citizens right to approach the high courts and the Supreme court when their fundamental rights are breached and as we know Environmental rights are given to people as their fundamental right so under Article 32 and Article 226 the courts have the power to issue writs. In case of environmental issues, the writs of Mandamus, Certiorari, and Prohibition are used like for example the writ of Mandamus can be issued by the authority when the municipality is unable to fulfill its work and can be commanded to complete it.

Another important aspect that is covered under these rights is the concept of Public Interest Litigation (PIL) which perhaps is the greatest weapon used by environmental activists for the protection of the environment.

For example, the case of M.C Mehta v Union of India^[6] in which the court ordered the industries working near the Taj Mahal to stop the usage of coal and natural gas as a fuel or the functioning of the industries will be stopped permanently this was a great win for the environmentalists and the people also because the color of the Taj marble began to change because of the pollution that was caused by these industries.

1. Article 47:- This article comes under the Directive Principle of State Policy (DPSP) and states that it is the “Duty of the State to raise the level of nutrition and the standard of living and to improve public health”. So this article imposes a duty on the state to improve the standard of living and to increase the nutrition of people. It also states that the state should improve the health of people and should promote a healthier lifestyle by raising awareness regarding the ill effects of drugs and other substances.
2. Article 48A:- It comes under the Directive Principle of State Policy (DPSP) and was added in the constitution by the 42^nd Amendment act. It states “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”. It imposes a duty on the state to protect the environment and that it is the duty of the state to protect the forests and the wildlife of our country.

The court also observed the same opinion in the case M.C Mehta v Union Of India^[7] and added that apart from Article 48A, Article 39(e) and Article 47 imposes a duty on the state to not only protect the environment but also to improve the health of people and to take steps to reduce the harmful effects on them.

1. Article 51A (g):- Just like article 48A this article also imposes a duty but the difference being that instead of imposing a duty on the state Article 51A (g) imposes a duty on the citizens. This article states that “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”. so according to Article 51A (g), the citizens must protect the wildlife, a duty to protect the natural habitat, and a duty to not only protect but to improve the quality of the environment.
2. In L.K Koolwal v State of Rajasthan,^[8] The court observed that under this article it is the right and duty of citizens to approach the courts if the state was not performing its functions properly.
3. Article 246:- This article provides the three lists and divides the areas of legislation between them. The three lists are:
   1. The Union List: defense, foreign affairs, mines, inter-state rivers, etc
   2. The State List: public health and sanitation, agriculture, irrigation, and drainage, etc
   3. The Concurrent List: forests, protection of wildlife, mines and minerals and development, etc

It is an important subject in the case of environmental protection because in some cases the local authorities would be more effective in solving problems like sanitation. In some cases, the central authorities will be the best in dealing with the subject like wildlife protection because on these subjects a uniform law is required in the whole country and it would be difficult if each state had its own laws.

1. Article 253:- When it comes to implementing laws related to environmental protection this article is very important. Article 253 states that “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”.
2. This Article gives the parliament power to implement laws for the whole country and for any part of it for implementing any convention, treaty, and agreement India have with another country or an international body or association India is a part of. By using this Article, the parliament enacted the Environmental Protection Act 1984.

Conclusion

Even though when the constitution was drafted it didn’t have any provisions regarding the protection of the environment but with time the judiciary and the parliament understood the importance of it. With time the parliament enacted the laws that were especially for the protection of the environment and the judiciary interpreted the constitution in a way that enlarged the scope of existing provisions to include the aspect of environmental protection.

But even after all this India faces a large amount of pollution. Indian cities constantly have been on top of the most polluted cities in the world.^{[9] [3]} From ancient times the Indian people have been worshiping the forests and the wildlife that lives in them. We consider the rivers as goddesses because they are the lifelines of India but still large amounts of pollutants and waste flows in them untreated.^{[10] [4]}

There have been steps taken by the government in regards to reducing pollution like the plan to replace the current traditional vehicles that run on petrol and diesel with electric vehicles by the year 2030.^{[11] [5]} But still, the role of a common person is very important in the protection of the environment because there are remedies available to the citizens in case the state fails to perform its duty but what about the responsibility of a citizen.

As greatly put by Franklin D. Roosevelt who once said that “A nation that destroys its soils destroys itself.” further adding “Forests are the lungs of our land, purifying the air and giving fresh strength to our people”.^{[12] [6]} It is time for people to wake up and understand the importance of environmental protection because the legislation can only go so far without the citizen’s support.

 

 

This article is written by Mr. Amarjeet Kharb, 3rd-year, BA LLB (Hons.) student at Institute of Law, Kurukshetra University

-Edited by Rudrakshi Sharma

(Editor, The Legal State)

LinkedIn; AMARJEET KHARB

 

 

^[1] Robin McKie, David Attenborough: the force of nature, The Guardian, 28-October-2012, https://www.theguardian.com/tv-and-radio/2012/oct/26/richard-attenborough-climate-global-arctic-environment

^[2] Oxford learners dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/environment#:~:text=environment%20the%20conditions%20in%20a,a%20pleasant%20working%20environment

^[3] 1954 AIR 220, 1954 SCR 873

^[4] AIR 1987 SC 1086(Oleum Gas Leakage Case)

^[5] AIR 1987 AP 171

^[6] AIR 1997 SC 734

^[7] (1998) 9 SCC 589

^[8] AIR 1988 Raj 2, 1987 (1) WLN 134

^[9] Soumya Pillai, 22 of 30 most polluted cities in India: Report, Hindustan Times, 17-March-2021,     https://www.hindustantimes.com/environment/22-of-30-most-polluted-cities-in-india-report-101615928090377.html

^[10] Sparsh Upadhyay, Ganga Pollution- Large Quantity Of Untreated Water Flowing Into Rivers, Huge Amount Of Public Money Getting Wasted: Committee Informs Allahabad HC, LiveLaw, 11-February-2021, https://www.livelaw.in/news-updates/ganga-pollution-large-quantity-of-untreated-water-public-money-getting-wasted-allahabad-high-court-169697

^[11] Business Line Bureau, EVs will make up 30% of Indian auto sales in 2030: IEA, The Hindu Business Line, 29-April-2021, https://www.thehindubusinessline.com/economy/logistics/evs-will-make-up-30-of-indian-auto-sales-in-2030-iea/article34437072.ece

^[12] Franklin D. Roosevelt Quotes, BrainyQuote, 12-June-2021, https://www.brainyquote.com/quotes/franklin_d_roosevelt_142798