Right To Wholesome Environment (Art-21)
Right to environment is not expressly provided in the constitution of India,
but by a series of judicial decisions, judiciary has taken into account Art
21, Art 14, and Art 19 for protection of environment. Art-21 states: No
person shall be deprived of his life and personal liberty except according to
procedures established by law.
Approach of Supreme Court-
Till 1980, the Supreme Court, although entertained the writs under Art 32,
but nowhere specifically provided as to which right were violated. The first
indication of recognizing the right to live in healthy environment as part
of Art 21 was evident from the case-
Rural Litigation and Entitlement Kendra, Dehradun v, State of U.P
1985 SC 652)
(Dehradun Quarrying Case)
In this case, RLEK and a group of citizens wrote a letter to the SC against
the progressive mining which affected the Mussoorie tree and forest cover
and accelerated soil erosions resulting in landslides and blockage of ground
water. The Court treated this letter as WP under Art 32. The Court held-
- Closure of all Mines
- Reforestation of valley
- Priority to the lessees and workers left unemployed from this order
in some other area
It is important to note that although the Court did not mention Art 21 or
any FR, its mere exercise of jurisdiction under Art 32 reflects that some FR
Sri Ram Gas Leak Case
- MC Mehta v. UOI (AIR 1987 SC 985)
- MC Mehta v. UOI (AIR 1987 SC 982)
- MC Mehta v. UOI (AIR 1987 SC 1086)
In the first case, a petition was filed by Mehta seeking closure of Sriram
Industries as it was engaged in manufacturing of hazardous substances and
locate in a densely populated rea of Kirti Nagar. While the case was
pending, there was a leakage of Oleum gas from one of its unit which led to
death of an advocate and affected health of several others.
- Whether such hazardous industries be allowed to operate in such
- If they be allowed to operate in these areas, whether any regulatory
mechanism be evolved.
- Liability and the amount of compensation.
The state can impose restrictions on manufacturing of
hazardous substance in order that people have right to live in a clean
This case raised the questions about the ambit of Art 21 and Art 32 of IC.
In the Second case, some conditions regarding the opening of the industries
which were closed by the SC in its previous order were modified.
In third case, three important issues were raised-
- Scope of Art 32
- Which rule to be followed
- Issue of compensation to be awarded
- The power under Art 32 is not confined to preventive measure when
fundamental rights are threatened to be violated but also extends to
remedial measures when the rights are already violated. However, this
can be done in appropriate cases i.e. where violation of FR is gross and
patent and affects persons on large scale, or where affected persons are
poor and backward.
- The Rule of Strict Liability as formulated in Rylends v. Fletcher
evolved in 19th century when all these developments of science and tech
had not taken place. The court introduced a new no fault liability
(stricter than strict) where no exception was available to such
industries which dealt with dangerous and hazardous substances.
- The court adopted Deep pocket theory. According to this theory,
compensation will depend upon the wealth of the faulty. The more the
wealth, the more will be the compensation, so as to give a deterrent
The first time when the SC talked about Art 21 was in Chhetriya
Pradushan Mukti Sangarsh Samiti v. State of U.P.
(AIR 1990 SC 2060)
Every citizen has a fundamental right to have the
enjoyment of quality of life and living as contemplated by Art 21. Anything
which endangers or impairs the quality of life and living by the people is
entitled to be taken recourse of Art 32 of Constitution.
Approach of High Court-
While SC was reluctant for a short period to make a specific mention,
various HCs went ahead and declared that the right to environment was
included in the right to life of Art 21.
In L.K. Koolwala v. S of Rajasthan
, the right was based on a demand
for cleaning the city of Jaipur and saving it from unhygienic conditions.
Looking at the impact of Art 51A(g), RHC held that though termed as a duty,
the provision gives the citizens a right to approach the court for a
direction to the municipal authorities to clean the city, and the
maintenance of health, sanitation and environment falls within Art 21,
thereby rendering the citizens the FR to ask for affirmative action.
In F.K. Hussain v. UOI
, the Ker HC declared that one of the
attributes of right to portable water as it is one of the basic elements
which sustains life itself. The court held that administrative agencies
could not be permitted to function in such a way as to make inroads into FRs
under Art 21.
Right To Equality
of the constitution guarantees to every citizen the right-
no to be denied equality before the law or the equal protection of the laws.
The possibility of infringement of this Art by govt. decision having impact
on the environment cannot be ruled out. Art 14 strikes at arbitrariness
because an action that is arbitrary must necessarily involve a negation of
equality. Thus, the permission for contractions that is contrary to town
planning regulation by the Municipal authorities maybe challenged.
In Kinkari Devi v. S of HP,
HC held that to ensure the attainment of
the constitutional goal, protection and improvement of the natural
wealth and the environment and to safeguard forest, lakes, rivers and the
wildlife, the court has to intervene effectively and issue appropriate writ,
orders, and directions.
Freedom of Trade
Art-19(1)(g) of the constitution guarantees all citizens the right to
practice any profession, or to carry on any occupation, trade or business.
However, this right is also not absolute. It is subject to Art 19(6) under
which reasonable restrictions in the interest of the general public can be
imposed. The aggrieved industrialist may resort to Art 19 in case his trade
and business interests are affected by the action of govt agencies in the
name of environment protection. Various standards have been prescribed by the govt
for the discharge of different pollutants.
In M.C. Mehta v. UOI
(AIR 1988 SC 1037) SC issued directions for the
closure of tanneries which have failed to take minimum steps required for
the primary treatment of industrial effluents.
Protection and improvement of environment and safeguarding of forests and
wildlife. Art-48A reflects an increasing awareness of people all over the
world of the need to preserve the environment from pollution, especially in
urban areas. Smoke, industrial waste, deleterious exhaust fumes from motor
cars and other combustion engines are injurious to health and well-being of
the people. The preservation of forests and their renewal by afforestation
has long been recognized in India as of great importance both with reference
to rainfall and to prevent soil erosion. The Art rightly emphasis the fact
that the state should try not only to protect but also improve the
According to this Art, it shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes,
rivers, and wildlife, and to have compassion for living creatures. This is a
joint responsibility imposed on citizens as well as state.
In Intellectuals Forum v. State of AP
, SC observed that-
These two articles are not only fundamental in governance of the country but
also it shall be the duty of the state to apply these principles in making
laws and further, these two articles are to be kept in mind in understanding
the scope and purport of FRs and also various laws enacted by Parl and state
Environmental Protection Through PIL
Today, a person acting bona fide and having sufficient interest can move the
courts for redressing public injury, enforcing public duty, protecting
social and collective rights and interests. The basic ideology behind
adopting PIL is that access to justice ought not to be denied to the needy
for the lack of knowledge or finances. In PIL, a public spirited individual
or organization can maintain petition on behalf of poor and ignorant.
The matter must require a legal remedy and be of public interest, which
means it must:
- Affect a significant number of people and not just individual
- Raise matter of broad public concern
- Impact on disadvantaged or marginalized group
- Must be a legal matter which require addressing pro bono publico (for
the common good)
Importance of PIL/Need of PIL
- Week environmental laws
- Govt not willing to promote/protect environment
- Where govt lack resources
- When criminal remedies are not enough
- When criminal remedies are not enforceable
PIL has proved to be an effective tool in the area of environment protect. In Rural
Litigation and Entitlement Kendra vs. S of UP, the SC prohibited continuance
of mining operations terming it to be adversely affecting the environment.
In MC Mehta vs. UoI,
the SC held that air pollution in Delhi caused
by vehicular emissions violates right to life under Art 21 and directed all
commercial vehicles operating in Delhi to switch to CNG.
In Vellore Citizens’ Welfare Forum vs. UoI
, the tanneries situated
near a river in Vellore were found discharging toxic chemical in the river,
thereby jeopardising the health of the residents. The court asked the
tanneries to close their business.