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Relation Between Article 21 and Right to Clean and Pollution-Free Environment, Water and Air

The paper tries to set a nexus between the right to clean pollution-free environment, air, water and Article 21 of the Indian Constitution which provides the right to life. The article ruminates that the ambit of Article 21 does not only cover mere living but living in better and dignified conditions.

Further, to strengthen the same argument the essay identifies three fundamental questions viz-a-viz whether the right to life as guaranteed under Article 21 of the Indian Constitution includes right to clean environment and safe drinking water, whether the right to clean environment and safe drinking water is a right or a privilege in India and whether the judiciary can be approached under Article 32 upon the infringement of the right to clean environment and safe drinking water?

Furthermore, the essay explicates the meaning of Article 21 through numerous landmark judgments and expounds the significance of clean environmental conditions under the right to life. Article 21 and its changing perspective with time - Article 21 of the Indian Constitution reads as:
No person shall be deprived of his life or personal liberty except according to the procedure established by law.

Understanding the core idea i.e. embodied in Article 21 is fundamental to this paper and for this, we will split the article into keywords viz-a-viz 'no person' which means it applies to every individual be it be a citizen or alien; deprived of life or personal liberty i.e. the article safeguards the life of every individual and as well as his right to personal liberty; 'except according to the procedure established by law' which means this article is also subjected to some exceptions and law would establish those exceptions.

This is the basic essence of Article 21 which is a fundamental right and fundamental rights are justifiable only against the state, therefore, one can only approach the judiciary for the infringement of this article if the state violates it.

To understand the meaning of Article 21 and its broader implications, we will have to look upon the history and background which this article has.

We will study this article under three main heads:
  1. Right to Life
  2. Right to Personal Liberty
  3. Procedure established by Law

Right to Life

How do you define life is one of the crucial questions that need to be answered before you interpret this right? Does living mean mere breathing or living in dignified living conditions? And then the question will arise that how you define dignified living conditions because again it is subjective. This onerous task of interpreting the word 'life' in Article 21 is left on the judiciary by our Constitution-makers and hence, time to time new perspective comes into the picture and the ambit of Article 21 keeps on widening.

The judiciary in the case Kharak Singh v. State of UP, for the first time, talked of life as something more than mere animal existence, the judiciary came with the following view:
By the term, life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world, by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison.[2]

Broader sense to the same argument was given in succeeding judgments where the right to life also included the right to live a healthy life and to protect and save one's cultural values.[3]

A new dimension to right to life was given by the landmark judgment of Maneka Gandhi v. Union of India and later by Bandhua Mukti Morcha v. Union of India where Justice P.N Bhagwati observed-
'It is the fundamental right of everyone in this country to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these essentials.'[4]

with time to time, the scope of the right to life has increased in various landmark judgments and this is a never-ending cycle with changing time and changing needs and with the emergence of new situations, many new interpretations and additions can take place in this part of Article 21.

Right to Personal Liberty

The Supreme Court has interpreted personal liberty as something more than freedom from bodily restraint, liberty not only in the physical sense but also in every aspect of life. be it be liberty of thoughts, liberty of choice and other freedoms which constituent essential part of personal liberty. One such concept is right to privacy, which is in a lot of debate due to the Aadhar issue. It was in the case of MP Sharma v. Satish Chandra,[5] when the issue of privacy was talked about the first them and at that time it was not even considered as a right in India.

Subsequently, in the case of Kharak Singh,[6] Justice Subba Rao, although in the minority opinion observed an excellent point which set forth the future of the right to privacy as a fundamental right-
'the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his 'castle'; it is his rampart against encroachment on his liberty'[7]

Though what all will constitute part of a person's privacy is still a very subjective question and the judiciary cannot list down the elements. The fact that is important here to note is definition will change with the situation to situation but having a law to safeguard your freedom creates a sense of security in the minds of citizen that their fundamental rights would not be hampered. It was finally in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.,[8] where the right to privacy has been recognized as a fundamental right under the Indian Constitution and it was held that privacy as a right cannot be restricted to only Article 21 as it has its place in all the fundamental rights in some of the other ways.

Procedure Established by Law

The only exception upon which the state can deprive a person of his right to life and personal liberty is depriving according to the procedure established by law i.e. on lawful grounds. The best example to explain this could be the court's order for the death penalty in heinous offences. The Supreme Court in various pronouncements has laid down the basis of procedure established by law.

The judiciary in the case of Maneka Gandhi v. Union of India observed that-
'The procedure prescribed by law for depriving a person of his life and personal liberty must be 'right, just and fair' and not 'arbitrary, fanciful and oppressive,' otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.'[9]

Delay in executions and trials also constituents' part of deprivation of the right to life and personal liberty and would not get the shelter of procedure established by law. Thus, it has accepted by the judiciary that just because a procedure is established by law it cannot take a person's right to life and personal liberty, to do so the law should be fair and reasonable and not arbitrary.

Article 21 Concerning Environmental Justice

With changing time, the definition of the right to life keeps on changing, it has now evolved with time and has added a newer perspective. Can you imagine your life in an environment which is full of pollution, where there are no clean water resources, where there is no fresh air, where there is no cleanliness?

An average person would never agree to live in these conditions, and living in these conditions would only amount the literal meaning of living which would be equivalent to animal existence and as already discussed right to life does not mean mere animal existence but living in better humanly living conditions with proper access to basic needs such as clean air and water. And in this way, the right to clean environment has been made an essential part of Article 21 of the Constitution.

In Andhra Pradesh Pollution Control Board v. M.V Nayudu, Justice Jagannatha Rao placed the human rights issues and environmental problems on the same pedestal. He does not doubt in saying that both human rights and environmental rights derive strength from Article 21 of the Constitution of India.'[10]
He further observed-
'Environmental concerns arising in this Court under Article 32 or Article 136 or Article 226 in the High Courts are, in our view, of equal importance as Human Rights concerns. Both are to be traced to Article 21 which deals with the fundamental right to life and liberty.

While environmental aspects concern life, human rights aspects concern liberty. In our view, in the context of emerging jurisprudence relating to environmental matters, - as it is the case in matters relating to human rights, this Court must render Justice by considering all aspects.'[11]

There are a lot of judgments in which the Supreme Court has shown concern towards the jurisprudence of environmental matters. The apex court has also held that in cases where a person's right to the enjoyment of pollution-free air and water is hampered, he can file public interest litigation for the same. This landmark judgment was given in the case of Subhash Kumar v. State of Bihar.[12]

Another one of its kind judgment in this way was Murli S. Deora v. Union of India,[13] where the court recognized passive smoking as a serious issue and it was held that a person's right to life is hampered when he is subjected to passive smoking and is made a victim of smoker's act.

Right to Clean Water under Article 21

Water has always been considered sacrosanct and of a lot of importance since time immemorial, we find traces of this from our old texts such as the Rigveda, the Atharvaveda and the Yajurveda. It is so essential to human survival that even the apex court has considered it necessary to recognize as a fundamental right. In the landmark judgment of Susetha v. State of Tamil Nadu,[14] the Supreme Court observed that:
'The water bodies are required to be retained. Such requirement is envisaged not only since the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also because the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife.'[15]

Similarly, in the case of Subhash Kumar v. State of Bihar,[16] it was held that the right to water is a fundamental right under the right to life of the Indian Constitution and that one can approach the court upon the infringement of the same.

The judgment says like this:
There are several cases in which the issue has been raised and where the right to clean and pure water has been giving importance. One such case is against Coca-Cola Kerala State in which the court recognized the state as a trustee to protect the natural resources. 'The presiding judge, Justice K Balakrishnan Nair, asserted that the government had a duty to act to protect against excessive groundwater exploitation and the inaction of the State in this regard was tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.'[17]

Apart from the Constitution, the right to clean water has also taken place in the Indian Penal Code (IPC) and tort law of India and code of criminal procedure.
  • Section 277 of the IPC provides

    Fouling the water of public spring or reservoir:
    Whoever volun�tarily corrupts or fouls the water of any public spring or reser�voir, to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.'[18]

    Though this provision is narrow in nature as it does not provide apply to run water sources such as river or canals. Also, there is a general provision under section 268 of IPC which defines public nuisance, here this covers water pollution also.
  • Under the law of tort, pollution of water is a tortuous act and is covered under nuisance as it hampers a person's right to health. In the case of Pakkle v. P Aiyasami Ganapathi,[19] the court held that rendering a person's right to water by making it less fit for drinking and using in any way gives rise to nuisance.
  • The Criminal Procedure Code (CrPC), 1973 likewise has some broad arrangements which cover pollution exercises. Sections 133 and 144 of CrPC enable the District or Executive Magistrate to take quick measures to prevent or subside the toxic movement of pollution.

    The landmark outline of the application of this example is Municipal Council, Ratlam v. Vardichan. In this case, occupants of Ratlam filed an objection under Section 133 CrPC claiming that the region had neglected to keep the release from the adjacent liquor plant of foul liquids from the general population and give sterile smell on the streets. The SC guided the directed to pursue the statutory obligations and prevent the effluents from the liquor plant from streaming into the road.

Another relevant thing to be discussed under this head is the Narmada Bachao Andolan. The story of India's fifth-largest river has been a hotly debated issue where the controversy arises for sustenance versus development. How one can acknowledge the rights of people over natural resources.

Two main questions that were addressed by the court:

  1. What will be the status of resettlement and rehabilitation of tribal people under the ambit of Article 21 after the construction of this enormous project?
  2. The petitioners contended that raising the height of the dam would submerge a vast region underwater.
The petitioners contended that the people living around the area of construction and outskirts could not be suitably rehabilitated, this will not only affect their 'Right to Life' but will also leave them in difficulties in difficult habitat. The petitioners were later joined by State of Madhya Pradesh in the case. The petitioners said a study must be done to analyze the estimates for the cost and benefits of the entire project. The SC urged an expert committee to study the pros and cons of the project.

In this case, an extended view of Article 21 came into the picture when the court included Right to Rehabilitation in a just equitable manner under Article 21. It has seen that Article 21 was recognized as Supreme in an instance where the deprived people needed rehabilitation and resettlement.

The court observed-
'Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing a source of water where there is none. The Resolution of the U.N.O. in 1977 to which India is a signatory, during the United Nations Water Conference resolved unanimously inter alia as All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.'[20]

We all understand water is a necessity and an undeniable right to everyone. There are enough ratios and laws for the protection of the same. But the enforcement of these laws does not only lie in the hands of the government but also in the hands of the public as well. We all must take care that the allocation of natural resources takes place in a manner which is right and beneficial for all. No one person has the right to access any natural resource, it belongs to all, we have come across a lot of instances where people are denied of their rights such as in some traditional societies even today the lower caste are not allowed to use the public wells. This is sad, natural resources are for everyone to use and hence, we as citizens should understand our responsibility towards the state and towards the society as well.

Conclusion & Suggestions
It has been well established throughout the paper that how important a clean environment and water is to sustain a good life. The researchers have with the help of various cases have put forward the point that the judiciary strongly agrees with the idea of having environmental justice as a part of Article 21 of the Constitution. Article 21 is one of the most primary articles of the Constitution, securing its place in the fundamental rights it holds the utmost significance. Justice Iyer has said that Article 21 is 'the procedural Magna Carta protective of life and liberty.

In a democratic society Article 21 has a supreme significance and hence, its ambit is something that needs to be defined from time to time. With the conditions in which we are living today, health is one of the major concerns and the environment in which a person lives, the water which a person consumes and the air which a person breathes plays the most significant role in it.
Therefore, providing better and hygienic living environmental conditions become the duty of the state under the right to life of an individual.

We have been hearing this in various news that how different treaties are being signed just for the protection of the environment and health of individuals. We are aware of the situation that people are facing in New Delhi due to so much pollution in the air. Deaths have taken place in the capital due to the high content of pollution in the air. And this is not for the first time that people have lost lives because of environmental destruction, the Bhopal Gas Tragedy and The Oleum Gas leak case are the biggest destruction of human lives in the history of the world.

These instances are an example that how a little negligence on the part of the government authorities and some profit-making companies can cause such destructions and loss of human lives as well as wealth. After these hazardous cases, the judiciary went a step forward and set the principles of absolute liability. Several landmark judgments have been taken by the judiciary after these cases. But still, over time, the need for a cleaner environment has increased and in this, each one of us has a crucial role to play.

Do your step towards the environment. Plant a tree, save water, do not litter, do not spoil the water, take care of our rivers especially at the times of festivals such as Ganesha and Durga Pooja, raise your voice against private or government companies infringing your right to clean and safe water and environment. As it has been held in the case of Subhash v. State of Bihar,[21] that you can always approach the court under Article 32 of the Indian Constitution upon the infringement of your right to clean water and air under Article 21 of the Indian Constitution.

The court observed-
'Article 32 is designed for the enforcement of the Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of 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 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 life. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists.'[22]

The researchers strongly agree that the right to clean water, air and environment forms a crucial and significant part of Article 21 of the Constitution and hence, the state should take all possible measures to protect the same.

The researchers also agree that the conditions which are prevalent in the country today the right to clean environment and water is just a privilege in the country as only the people who can afford it, have the access for the same and those who cannot afford it are living in conditions which are hard to imagine. We all are equal in the eyes of law, Article 14 provides equality before the law and thus, it is the job of the state to provide good living conditions to all irrespective of any social or economic discrimination.

  1. INDIA CONST. art. 21.
  2. Kharak Singh v. State of UP, AIR 1963 SC 1295.
  3. Sunil Batra v. Delhi Administration, AIR 1980 SC 1579
  4. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
  5. MP Sharma v. Satish Chandra AIR 1954 SC 300
  6. Supra note 2
  7. Id
  8. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1
  9. Maneka Gandhi v. Union of India, AIR 1978 SC 597
  10. P Leelakrishnan, Environmental Law Case Book 14 (Lexis Nexis, 2nd ed. 2010)
  11. Andhra Pradesh Pollution Control Board v. M V Nayudu, (1999) 2 SCC 718
  12. Subhash Kumar v. State of Bihar, AIR 1991 SC 420
  13. Murli S. Deora v. Union of India, (2001) 8 SCC 765
  14. Susetha v. State of Tamil.Nadu, (2006) 6 SCC 543
  15. Id
  16. Supra note 12
  17. Riya Jain, Article 21 of the Constitution of India-Right to Rife and Personal Liberty, (Jan. 28, 2019, 3:31 PM),
  18. Pen. Code � 297
  19. Pakkle v. P Aiyasami Ganapathi, AIR 1969 Mad 3511
  20. Narmada Bachao Andolan v. Union of India, AIR 2000 SC 375
  21. Supra note 12
  22. Id

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