Author: Nivedita Saxena
The constitution of any country is the basic source of law, and the provisions of all other laws are subject to the provisions of the constitution itself. The Indian constitution is amongst the few in the world that contains specific provisions on environment protection.The various provisions of the constitution highlight the national consensus on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection1.Under the concurrent list (List III), both parliament & the State Legislature have overlapping and shared jurisdiction over 52 subject areas including forests, protection of wildlife etc. This is important as certain environment problems such as waste disposal are best tackled at the local level whereas certain others like air pollution or wild life protection require uniform national laws.
Fundamental Rights
Article 21 of the Indian Constitution states that that no person shall be deprived of his life and liberty except according to the procedure established by law.The Constitution of India recognises the right to a wholesome healthy environment as a part of the right to life guaranteed in Article 212. The expression ‘life’ assured in article 21 of the constitution does not connote mere animal existence3. This right encompasses wide variety of many other rights such as protection of wildlife, forests, lakes, ancient monuments, fauna-flora, unpolluted air, protection from noise, air and water pollution, maintenance of ecological balance and sustainable development. Article 21 of the constitution guarantees a right to a decent environment, but the parameters would essentially be a question of legislative policy. The right to clean environment may have precedence over economic interests of the society4.
The supreme court of India5has impliedly treated the right to live in pollution free environment as a part of fundamental right to life falling under Article 21 of the constitution. The Andhra Pradesh high court has observed6that “it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by article 21 of the constitution embraces the protection and preservation of nature’s gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21. The slow poisoning by the polluted atmosphere caused by environment pollution and spoilage should also be regarded as violation of article 21”. Similarly many High courts have observed7that environmental degradation violated the fundamental right to life.
Discussing the nature and restrictions to be imposed on noise pollution, the Supreme Court has observed8that –“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.
Supreme Court talking about the need for balance between environmental restrictions and development stated9that –“the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ‘sustainable development’ cannot be singled out. Therefore, the concept of ‘sustainable development’ is to be treated an integral part of ‘life’ under Article 21.
If anything endangers or impairs the quality of life in derogation of laws, a citizen has the 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 life10.
Directive Principles of State Policy
The directive principles are the policy prescriptions that guide the government action. Environmental protection and improvement were explicitly incorporated into the constitution by the Constitution (Forty-second Amendment) Act of 197611by the addition of Article 48A to the directive principles of state policy. The article declares that –“The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” This article lays down the states responsibility towards environment protection. The environment (Protection) Act, 1986, The forest (conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, The Biological Diversity Act, 2002, Hazardous Wastes (Management and Handling) Amendment Rules, 2003, Ozone Depleting Substances (Regulation and Control) Rules, 2000 and various other laws and rules providing for the protection of environment, forest and wild life are among the various legislative steps taken under this article. Although the directive principles are unenforceable by the courts, they are increasingly being cited by the judges as complementary to the fundamental rights12.
Fundamental Duties
Article 51A (g) lays down the duty ‘to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures’ on all the citizens of India. Thus a responsibility corresponding to that in Article 48A has been imposed on every citizen. However it has to be noted that duties are not self-executing, the state must make laws in order to implement them.Supreme Court has observed13that –“The word ‘environment’ is of broad spectrum which brings within its ambit “hygienic atmosphere and ecological balance”. It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safe-guard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the environment man-made and the natural environment.”
Legislative Provisions
Many laws have been passed and enforced in India in order to protect environment and public health. The overall legal framework for environment protection can be explained as under
- Constitutional provisions
- Environment laws
- Environmental Legislations
- Environmental Regulations
- Public Interest Litgations
- Environmental Tribunals
The legislative provisions can further fall under three categories
- Common law principles: Being a common law country India derieves most of its modern judicial framework from the British legal system. These include principles of tort law, concept of nuisance, trespass, negligence and strict liability.
- Specific Statutory Provisions The substantive law determines the rights and liabilities of parties, whereas the procedural law provides the machinery or manner of their enforcement. In relation to environmental protection statutory provisions are provided in Indian Penal Code, 1860, Criminal Procedure code, 1973, Civil Procedure Code,1908 and Factories Act,1948 amidst other.
- Specific Legislations: these include legislations like The Water (Prevention and Control of Pollution) Act, 1974, environment protection Act, 1986, Forest (Conservation) Act, 1980 etc.
Thus, the constitutional and legislative provisions together form an elaborate legal system to protect and improve the environment in India. Not only does the law prohibit or penalise any harm to the environment but they also lay down duties on the state and citizen to protect the same. M.C.Mehta v. State of Orissa,AIR 1992 Ori 225 [↩]
- BandhuaMuktiMorcha v. Union of India, (1984) 3 SCC 161; A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2SCC 62 [↩]
- T S Doabia, Environmental & Pollution Laws In India, 2nd Edition 2010 [↩]
- M.C. Mehta v. UOI ,(2004) 12 SCC118 [↩]
- M.C. Mehta v. Union of India [popularly known as oleum gas leakage case], AIR 1987 SC 1086
- T DamodarRao v. S.O.M.C. Hyderabad ,AIR 1987 AP 171 [↩]
- Arvind Textiles v. State of Rajasthan, ARI 1994 Raj 195 ; Law Society of India v. Fertilizers & Chemicals Travancore Ltd., AIR 1994 Ker 308 ; Kinkri Devi v. State of Himachal Pradesh, AIR 1988 HP 4 ; V. Lakshmipathy v. State of Karnataka, AIR 1994 Kar 57 ; Hamic Khan v. State of Madhya Pradesh, AIR 1997 MP 191 [↩]
- In Re: Noise Pollution –Implementation of the Laws for restricting the use od loudspeakers and high volume producing sound systems, (2005) 5SCC 733 [↩]
- N.D, Jayal v. Union of India, (2004)9 SCC 362 [↩]
- Subhash Kumar v. State of Bihar, AIR 1991 SC 420 [↩]
- S.10 (w.e.f 3-1-1977). [↩]
- SomPrakashReki v. UOI ,AIR 1981 SC 212 [↩]
- Virendra Gaur v. State of Haryana, (1995) 2 SCC 577 [↩]