lawyers in India

Article 21 of Indian Constitution- A Mandate To Pollution Free Environment

Written by: Dr.G. Indira Priya Darsini & Prof. K. Uma Devi - Professor, Department of Law, Sri Padmavati Mahila Viswa Vidyalayam (Women’s University), Tirupati.
Lok Adalat in India
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  • Environment and life are interrelated. The existence of life on earth depends on the harmonious relationship between ecosystem and environment. Especially homo-sapiens have very close interaction with nature. Human beings are at the centre of concerns for sustainable development and that they are entitled to a healthy and productive life in harmony with nature.

    In the long evolution of the human race on this planet, a stage has been reached when, through the rapid acceleration of science and technology, we have acquired the power to transform our environment in countless ways and on an unprecedented scale. Humanity's capacity to transform its surroundings, if used wisely and with respect to the ways of nature, can bring to all communities the opportunity to enhance the quality of life. Wrongly or heedlessly applied, or applied in iniquitous ways, the same power can do incalculable harm to human beings and their environment. We see around us growing evidence of human-caused harm in many regions of the earth the dangerous levels of pollution in water, air, earth and living beings; destruction and depletion of irreplaceable life forms and natural resources; major and undesirable disturbances in the earth's climate and protective layers; gross deficiencies, harmful to physical, mental and social health, in the living and working environments of humans, especially in cities and industrial complexes.

    It is important to recognize our dependence on the earth's natural resources. Natural resources such as air, water, and land are fundamental to all life forms: they are, much more than money and economic infrastructure, the base of our survival. To large numbers of humanity, especially communities that have been termed.

    'ecosystem people' (people depending on the natural environments of their own locality to meet most of their material needs) [1], natural resources are the base of survival and livelihoods. Their material and economic sustenance largely depends on these. In India alone, around 70% of the population directly depends on land-based occupations, forests, wetlands and marine habitats, for basic subsistence requirements with regard to water, food, fuel, housing, fodder and medicine as also for ecological livelihoods & cultural sustenance. Given this close interdependence of humans and their environment, it is not surprising that the culture of societies is so greatly influenced by their environment. They seek inspiration, knowledge, spirituality and aesthetics within their natural surroundings. But it is not only 'ecosystem people' who are dependent on the natural environment. It is all humans, even the rich urban resident in Paris or Washington who may be under the delusion that s/he is buffered by the props of modern technology. In the growing cities of the industrializing world, millions of residents of all classes are now prone to lung and skin diseases, water-borne illnesses, and congenital abnormalities from toxics in their food and water, some of which may have originated hundreds of kilometers away. [2]

    Life and Environment: Life, livelihoods, culture and society, are fundamental aspects of human existence - hence their maintenance and enhancement is a fundamental human right. Destruction of environment and thereby of the natural resources, is therefore, a violation or leads to the violation of human rights - directly by undermining the above aspects of human existence, or indirectly by leading to other violations of human rights, for example through social disruption, conflicts and even war. Conversely, human rights violations of other kinds can lead to environmental destruction, for instance, displacement by social strife/war can cause environmental damage in areas of relocation; or breakdown in sustainable common property management. The manifestations of such violations present themselves through a loss of access to clean air and water; loss of access to productive land; loss of energy sources and biomass; loss of food and health security; social and economic marginalization; and physical displacement. Several hundred million people have been increasingly forced to live far below the minimum levels required for a decent human existence, deprived of adequate water, food, clothing, shelter and education, health and sanitation. Development, which was supposed to alleviate such problems, has often increased them, especially by allowing the powerful sections of society to appropriate the natural resources of poor and resource-dependent people. [3]

    Environment and Indian Constitution: The backbone of these is relevant provisions in India's Constitution. The Constitution of India, 1950, did not include any specific provision relating to environment protection or nature conservation. Presumably, the acute environmental problems being faced now in the country were not visualized by the framers of the Constitution. However, the past five decades have witnessed two major developments in this connection. The first development took place when the Constitution (Forty-second Amendment) Act, 1976, was adopted in the mid-seventies. Specific provisions relating to certain aspects of the environment, more especially for the protection of the forests and wildlife in the country, were incorporated in Part IV- Directive Principles of the State Policy - and List III - The Concurrent List - of the Seventh Schedule of the Constitution. As a result, the Constitution has now the following provisions specifically relating to environment protection and nature conservation: Part IV: Directive Principles of State Policy (Article 48A): Protection and improvement 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. Part IV-A: Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India - (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Seventh Schedule (Article 246) List III - Concurrent List Item no. 17 Prevention of cruelty to animals, Item no. 17A Forests, Item no. 17B Protection of wild animals and birds.[5]

    Article 21 and Right to Pollution free environment: The second major development has been the jurisprudence arising from certain remarkable judicial pronouncements in recent years, more specially relating to Article 21 of the Constitution dealing with 'the right to life'. If one is asked which is the most important of all the articles in the Indian Constitution, one can only say - Article 21, which says no persons shall be deprived of his life and liberty - which is the guiding light of India. All the other articles are subservient to this. In other words all articles have been formulated for keeping up this theme song of the Indian Constitution — 'life and liberty' — no person - not just a citizen — no person in India shall be deprived of life and liberty. It is not included as a mere platitude because over the years this article, which was a throbbing article, which was the most dynamic of all articles gathered flesh and with the help of Article 21 - the life and liberty of individuals are protected. [6] Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right for the people of India. It protects the life and personal liberty. It envisages and aims that no person shall be deprived of his life or personal liberty except to a procedure established by law. Here, right to life includes right to health, right to food, right to pollution free environment, etc. In simple words, Article 21 provides an inbuilt guarantee to a person for right to live with human dignity.

    Article 21 of the Indian Constitution states: 'No person shall be deprived of his life or personal liberty except according to procedures established by law.' Article 21 is the heart of all other fundamental rights. Article 21 has very expansive scope and has immense content into of with lesser words. Law is never still, it is ever evolving and ever changing accordingly to meet the challenges of time. Therefore constitution provisions, especially fundamental rights and in particular Article 21 has been broadly construed by the judiciary. The court attempted to expand the reach and ambit of Article 21 rather than accentuate their meaning and content by judicial construction. Thus the judiciary broadened the concept of life, extended the scope of personal liberty so as to include within itself all the varieties of rights which go to making the personal liberties of man. Basic principles were compiled to understand procedure established by law. The judiciary has resolved most of the environmental cases where they considered right to good environment as fundamental for life and upheld as fundamental right. Thus we can consider article 21 as mandate for life saving environment. This article focuses on some of the landmark cases that have a bearing on the person's right to life and right to pollution free environment.

    The constitution makers themselves construct the fundamental rights in its broad sense especially to right to life. The Supreme Court of India has given essence to the right so that every person can enjoy life to its fullest extent. The Indian Supreme Court came out of the shackles of mechanical and rule bound justice and provided impetus to the expanded horizons of the fundamental right to life and personal liberty guaranteed in Article 21. Two methods are used by Supreme Court to strengthen Article 21 and to interpret unenumerated rights under Article 21, it required laws affecting personal liberty to pass the tests of Article 14 and 19 of the constitution, there by ensuring that the procedure depriving a person of his or her personal liberty be reasonable, fair and just. The court recognized several matriculated rights that were implied by Article 21. It is by this method the Supreme Court interpreted the right to life and personal liberty to include the right to wholesome environment and all other rights. Thus Courts have undertaken to explicate the development of ideology of environment as being part of the right to life by various judicial pronouncements.

    The judicial craftsmanship attempted to expand the reach and ambit of Article 21 rather than accentuate their meaning and content by judicial construction. Thus the judiciary broadened the concept of life. Thus extended the scope of personal liberty so as to include within itself all the varieties of rights which go to make the personal liberties of man. Right to life extended its scope to include right to wholesome environment and right to sustainable development. Indian democracy wedded to rule of law aims not only to protect fundamental rights of its citizens but also to establish an egalitarian order. Law being an instrument of social engineering obliges the judiciary to carry out the process established by it.

    Environmental deterioration could eventually endanger life of present and future generations. Therefore, the right to life has been used in a diversified manner in India. It includes, inter alia, the right to survive as a species, quality of life, the right to live with dignity, right to good environment and the right to livelihood. In India, these rights have been implicitly recognized as constitutional rights. The right to healthy environment has been incorporated, directly or indirectly, into the judgments of the court. Thus it is clear that article 21 has a multidimensional interpretation. Any arbitrary, whimsical and fanciful act on the part of any state, depriving the life or personal liberty would be against Article 21 of the Indian constitution.

    Judicial Interpretation to Right to Life and Environment: The right to healthy environment has been incorporated, directly or indirectly, into the judgments of the court. Link between environmental quality and the right to life was first addressed by a constitutional bench of the Supreme Court in the Charan Lal Sahu Case [7] In 1991, the Supreme Court interpreted the right to life guaranteed by article 21 of the Constitution to include the right to a wholesome environment.

    In Subash Kumar, [8] the Court observed that 'right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.' Through this case, the court recognized the right to a wholesome environment as part of the fundamental right to life. This case also indicated that the municipalities and a large number of other concerned governmental agencies could no longer rest content with unimplemented measures for the abatement and prevention of pollution. They may be compelled to take positive measures to improve the environment. This was reaffirmed in M.C. Mehta v. Union of India.[9]The case concerned the deterioration of the world environment and the duty of the state government, under article 21, to ensure a better quality of environment. the Supreme Court has held that life, public health and ecology have priority over unemployment and loss of revenue. The Supreme Court ordered the Central government to show the steps they have taken to achieve this goal through national policy and to restore the quality of environment. In another case,[10]the Supreme Court dealt with the problem of air pollution caused by motor vehicle operating in Delhi.

    It was a public interest petition and the court made several directions towards the Ministry of Environment and Forests. Decisions such as this indicate a new trend of the Supreme Court to fashion novel remedies to reach a given result, although these new remedies seem to encroach on the domain of the executive.[11]

    In Shanti Star Builders vs. Narayan Totame.[12], the Supreme Court held that right to life is guaranteed in a civilized society would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.

    In Subhash Kumar vs. State. of Bihar- (1991) 1 SCC 598, the Supreme Court held that right to life is a fundamental right under Art. 21 of the Constitution and it include the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws a citizen has recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to life.

    In M. C. Mehta vs. Union of India 1987 SCR (I) 819 (the Oleum Gas Leak case), the Supreme Court established a new concept of managerial liability - 'absolute and non-delegable' - for disasters arising from the storage of or use of hazardous materials from their factories. The enterprise must ensure that no harm results to anyone irrespective of the fact that it was negligent or not.

    In Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715, the Supreme Court held that industries are vital for the country's development, but having regard to pollution caused by them, principle of 'Sustainable Development' has to be adopted as the balancing concept. 'Precautionary Principle' and 'Polluter Pays Principle' has been accepted as a part of the law of the country.[13]

    In Indian Council of Enviro-Legal Action vs. Union of India, 1996 3 SCC 212 (the Bichhri pollution case), following the decision in the Oleum Gas leak case and based on the polluter pays principle, the polluting industries were directed to compensate for the harm caused by them to the villagers in the affected areas, specially to the soil and to the underground water. Enunciating the doctrine of 'Public Trust' in M. C. Mehta vs. Kamal Nath (1997) 1 SCC 388, the SC held that resources such as air, sea, waters and the forests have such a great importance to the people as a whole that by leasing ecologically fragile land to the Motel management, the State Government had committed a serious breach of public trust.

    The changing trajectory of environmental rights in India, from a historical perspective Active judicial intervention by NGOs, community groups, and others, have also set a series of important precedence's that go beyond what the bare laws provide. There are many initiatives in Public Interest Litigation (PIL). Some of these include the cases against the construction of the Tehri Dam (Tehri Bandh Virodhi Sangharsh Samiti vs. State of Uttar Pradesh, 1992 SUP (1) SCC 44) and Narmada Dams (Narmada Bachao Andolan vs. Union of India AIR 1999 SC 3345); against deforestation (T. N Godavarman Thirumulpad vs. Union of India, 2000 SC 1636, a case that has since then spawned dozens orders pertaining to forests in India); against mining in the Aravallis (Tarun Bharat Sangh, Alwar vs. Union of India 1992 SC 514, 516); against mining in the Dehra Dun hills (Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh, 1985 SC 652); against mining in adivasi lands of Andhra Pradesh (Samatha vs. State of Andhra Pradesh, 1997, a judgment with important consequences for acquisition or use of adivasi lands elsewhere too); on implementation of the Wild Life (Protection) Act 1972 (WWF vs. Union of India, WP No 337/95); on implementation of Coastal Regulation Zone measures (Indian Council for Enviro-Legal Action vs. Union of India, 1996(3) 579); on protection of the coastal area against destructive practices (Prof.Sergio Carvalho vs. The State of Goa, 1989 (1) GLT 276); on the right of citizens to inspect official records (this was before the Right to Information Act came into force) (Goa Foundation vs. North Goa Planning and Development Authority. 1995(1) GLT 181); against forest logging and other environmental aspects of Andaman and Nicobar Islands. The judgments in other cases have set important precedents and directions for the further development of policy, law and practice.

    For instance, the Godavarman and the WWF vs Union of India cases have led to the orders that no forest, National Park or Sanctuary can be dereserved without the approval of the Supreme Court, no non-forest activity is permitted in any National Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980 had been obtained, New authorities, committees and agencies have been set up such as the Central Empowered Committee (CEC) and the Compensatory Afforestation Management and Planning Agency.

    Some judgments not directly related to environmental cases, also have significant implications for the struggle to establish environment as a human right. Mention should especially be made of a number of cases in which the Constitutional Right to Life (Article 21) has been interpreted widely to include a series of basic rights that include environment and livelihoods.

    In Francis Coralie vs. Union Territory of Delhi (AIR 1981 SC 746), Justice Bhagwati observed: We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.

    In Shantistar Builders vs. Narayan Khimalal Totame (AIR 1990 SC 630), the Supreme Court said: Basic needs of man have traditionally been accepted to be three - food, clothing, and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.

    In Olga Tellis case (AIR 1986 SC 180) the Supreme Court observed An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation…. That which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. environmental crisis is causing enormous disruption of lives and livelihoods, threatening the collapse of its entire life-support system.

    The poor and dis privileged classes of humans and the other non-human species unfortunately have to bear the main brunt of these environmental problems. Ironically, the crisis is rooted deep in social, economic and political structures, more specifically in relations of inequity of three kind's Intra-generational inequity, Intra-generational inequity, and Inter-species inequity. Inequities in the relations between people and countries have also allowed the imposition of unsustainable and destructive models of 'development'. The process of 'development' has been characterised by the massive expansion of energy and resource-intensive industrial and urban activity, and major projects like large dams, commercial forestry, and mining and chemical-intensive agriculture. The resource demand for the economic progress of a minority of people has lead to the narrowing of the natural resource base for the survival of the economically poor and powerless. This has happened either by direct transfer of resources into cities and industrial complexes, or by the destruction of life-support systems for rural communities everywhere.

    In Re Noise Pollution (V) [14] the cries of a rape victim for help went unheeded in the blaring noise of loudspeaker in the neighborhood. The victim committed suicide. Public interest litigation was filed. The court said that article 21 of the constitution guarantees life and personal liberty to all persons… it guarantees a right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person's life meaning full, complete and worth living. The human life has its charm and there is no reason why the life should not be enjoyed along with all permissible pleasures. Any one 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 the degree and the surrounding circumstances, the place and the time.

    In Research Foundation for science Technology and Natural resources Policy v. Union of India [15] Dumping of hazardous waste, whether directions shall be issued for destruction of consignments with a view to protect environment and, if not, in what other manner consignments may be dealt with it was held, precautionary principles are fully applicable to facts and circumstances of the case and only appropriate course to protect environments is to direct destruction of consignments by incineration as recommended by Monitoring Committee.

    In Intellectuals Forum, Tirupathi v. State of AP [16] Leave granted. The present matter raises two kinds of questions. Firstly, at a jurisprudential level, it falls on this Court to lay down the law regarding the use of public lands or natural resources. In this case the Court has reiterated the importance of the Doctrine of Public Trust in maintaining sustainable development which has been declared as inalienable human right by UN General Assembly.

    In MC Mehta v. Union of India [17]whether mining activity carried out in Villages Khori Jamalpur and Sirohi in District Faridabad in Haryana are in violation of the orders passed by this Court on 6th May, 2002 was in question. It was held, it does not appear that area in question falls under any category of prohibition for carrying out mining activity. But another aspect that remains to be examined is about impact of mining in the villages in question on environment, Merely on basis of photographs or plying of large number of trucks per day, a direction can not be made for stopping mining activity Monitoring Committee constituted in terms of directions in M.C. Mehta's case is directed to inspect the mining activity being carried on in 75.05 hectares in village Khori Jamalpur and in 50.568 hectares in village Sirohi in Faridabad district and report the impact. In Karnataka Industrial Areas Development Board v. C. Kenchappa and others [18] in consonance with the principle of 'Sustainable Development', a serious endeavour has been made in the impugned judgment to strike a golden balance between the industrial development and ecological preservation.

    Such wide interpretations of Article 21 by the Supreme Court have over the years become the bedrock of environmental jurisprudence, and have served the cause of protection of India's environment (and to a lesser extent, of livelihoods based on the natural environment). Adding to this is a large number of laws relating to environment, enacted over the last few decades However, a number of groups have also pointed out that the Constitution is deficient in that it does not explicitly provide for the citizen's right to a clean and safe environment. In a recent submission to the committee set up to review the Constitution, these groups have proposed a number of amendments to the Constitution, for ensuring environment protection and nature conservation. These include: Recognition and incorporation of Environmental Rights as separate and independent Fundamental Rights in the Constitution of India. These follow from the above-mentioned interpretation to the term 'Right to Life', as given by the Supreme Court.

    This could be further specified to include right to clean drinking water, and to a clean and pollution-free environment. Replacement, within the Directive Principles of State Policy, of the term 'forest' by the term 'life supporting natural ecosystems', The reason for this suggestion is that the Courts and other authorities, including the forest departments, have been interpreting the term forest to mean land with trees. As a result, land without trees is not considered as a forest and there is a lack of interest in protecting other important ecosystems such as grasslands, deserts, marshes, mangrove, etc.

    With the better understanding of these diverse ecosystems and their importance to humankind there is a need to preserve them. Incorporation, within the Fundamental Duties, the responsibility of panchayats and municipalities to give due regard to ecological aspects and to protect the environment, including life supporting natural ecosystems such as forests, rivers and lakes, and wild life, in the preparation of plans for economic development and social justice. This would also necessitate incorporation, into the Eleventh Schedule relating to the Panchayats, an item for protection of the environment and the promotion of ecological aspects.

    Thus a chronological analysis of environmental mission of the courts has been undertaken in order to explicate the development of the ideology of environment as being part of the right to life in the Indian context is justified from the above discussion. Therefore it is evident that article 21 is mandate for life saving environment.

    1. A term coined by the ecologist Raymond Dasmann. The contrasting term is 'biosphere people', those who command resources from anywhere in the world, and are not dependent on local natural resources for their survival. Most dwellers in industrial countries, and urban dwellers in other countries, would be in this category.
    2. Ashish Kothari, Anuprita Patel, Environment and Human Rights An IntroductoryEssay and Essential Readings NATIONAL HUMAN RIGHTS COMMISSION Faridkot House, Copernicus Marg, New Delhi 110 001, India
    3. ibid
    4. Document of Stockholm Declaration Also see: Rio Declaration, Agenda 21, Chapter 8 - Integrating Environment and Development in Decision Making (adopted at the United Nations Conference on Environment and Development, 1992)
    5. See Shyam Divan and Armin Rosencrantz, Environmental Law and Policy in India: Cases, Materials and Statutes.
    6. The address of Justice Shri. K T Thomas (former judge of supreme court of India) on the inauguration of the Asian Human Rights Council in 1998, in New Delhi.
    7. Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598.
    8. (1998) 9 SCC 589. In K. Ramakrishnan v. State of Kerala [AIR 1999 Kerala 385] the court held that smoking in public places causes positive nuisance.
    9. M.C. Mehta v. Union of India (1991) AIR SC 813 (Vehicular Pollution Case); (1992) Supp. (2) SCC 85; (1992) Supp. (2) SCC 86; (1992) 3 SCC 25.
    10. Armin Rosencrantz et al, in 'Region/country report: South Asia: India' (1993) Yearbook of International Environmental Law, vol. 4. 415-419.
    11. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180: In the Court's view, 'Deprive a person of his right to livelihood and you shall deprive him of his life.....Any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by article 21.'
    12. 1990(1) SCC 520
    13.'Precautionary Principle' as interpreted by the Supreme Court means that the required environmental measures should be taken by the State and statutory authorities and the lack of scientific certainty cannot be a ground for postponing such measures where there are serious threats to ecology. That the State and statutory authorities must anticipate, prevent and address the causes of environmental degradation and the 'onus of proof' is on the industry to show that its actions are environmentally benign. 'Polluter Pays Principle' as interpreted by the Supreme Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of environment is part of the process of 'Sustainable Development' and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damage to the environment.
    14. Noise Pollution Vs In Re {(2005) 5 SCC 733/Pr 10}
    15. Research Foundation for science Technology and Natural resources Policy v. Union of India and Another SC 2005
    16. Intellectuals Forum v. State of A.P. (2006) 3 SCC 549
    17. MC Mehta v. Union of India 2006 SC
    18. karnataka Industrial Areas Development Board v. C. Kenchappa and others

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