Our Constitution has enormously grown and evolved over the years and is said to
be one of the most amended constitution so far. In the Indian background, the
status of environment protection has not only raised to the fundamental law of
land but after a long time in recent past it is corresponded with human rights
and is now accepted as well established fact that it is basic human right to
every citizen of India .
The fundamental duties enshrined n our constitution
imposes duty on individuals to protect environment in order to provide each and
every human clean environment and a life with dignity and harmony.
In our Constitution, it is vividly expressed that Directive Principles of state
policy are bent towards the ideas of Welfare State and healthy environment is
said to be an essential ingredient for welfare state. Article 47 states that the
State shall regard the raising of the level of nutrition and the standard of
living of its people and also the improvement of public health which includes
the protection and improvement of environment as a part of its primary
Article 48-A of the constitution states that the state shall endeavor to
protect and improve the environment and to safeguard the forests and wild life
of the country. Part III guarantees fundamental rights which are essential for
the development of an individual.
The history of legislative started with Indian Penal Code, 1860. Section 268
defined what is public nuisance. Abatement of public nuisance is also a subject
of Section 133 to 144 of I.P.C. These are only prohibitive provisions. Sections
269 to 278 of the Indian Penal Code are penal provisions which means that a
person guilty of violating any of the provisions is liable to prosecution and
As soon as the Stockholm Conference ended, many Acts were initiated namely:
Wildlife Act, 1972; Water Act, 1974; Air Act, 1981 etc. Within five years of
Stockholm Declaration, the Constitution of India was amended to include
Protection and Improvement of Environment as constitutional mandate. The
protection and improvement of environment from time to time is now a fundamental
duty under Constitution Act of 1976. Government of India has set up a National
Committee on Environmental Planning and Coordination.
Government of India's
program for environment included the program for cleaning the rivers including Ganga and Yamuna. Prime Minister, Sh. Rajiv Gandhi constituted Central Ganga
Authority for the purpose of pollution control of Ganga. The enactment of
Environment (Protection) Act, 1986 was the immediate outgrowth, of this program.
Environment And It's Relation With Citizens:
The Constitution of India has made
a double provision:
- A directive to the State for protection and improvement of environment.
- Imposing on every citizen in the form of fundamental duty to help in the
preservation of natural environment. This is the testimony of Government's
awareness of a problem of worldwide concern. Since protection of environment
is now a fundamental duty of every citizen, it is natural that every
individual should do it as personal obligation, merely by regulating the
mode of his natural life. The citizen has simply to develop a habitual love
Legislative Matters And Environment Protection
Since in Indian Constitution , there are three lists:
- Union List
- State List
- Concurrent List
As we know the authority of dealing with the matters of the concurrent list
(list III) is shared between both the state and central government. It covers
matters like protection of forests, wildlife, conserving mines, population
control etc. but in the instance of conflict, the decision of the central
government will supersede.
The legislative and administrative relations between
the central and the state government are precisely dealt in with the part XI of
the Constitution. The power to make rules for the whole country is with the
Parliament of the country, while for that of the state lies with the state
government of every state.
In an instance of passing state laws successive to the central laws, for it to
prevail, requires a Presidential assent first as in accordance with Article 254.
In the situation of national emergency, Parliament has the power to legislate
the state subjects also. The division of these legislative powers is essential
to make provisions which can deal with environmental problems.
International Environment Agreements
A surfeit of international agreements dealing with environmental protection has
been made and India has been a signatory to it. Because at the Stockholm
declaration in 1972, it was held that the world has one environment. India being
a signatory to such international pacts is under an obligation to translate
those provisions and abide by them in the country. This has been clearly stated
in Article 51(c) of the Indian constitution that state shall foster respect for
international law and the obligations of the treaties.
On contrary to this, the other essential provision dealing in protecting the
environment is Article 253 of the Constitution which sanctions the Parliament of
our country to make laws which can be applicable to the whole or any territory
of the country for implementing any agreement or convention signed with the
other country or countries.
Parliament can further legislate to implement decisions taken at any conference
on an international level. Any provision made in the context of environmental
protection in accordance with Article 253 read with articles 13 and 14 cannot be
questioned before the court of law on the grounds of no legislative competence.
With the use of this power, it is quite significant to know that Parliament has
enacted Air ( Prevention and Control of Pollution) Act 1981, and Environment
Protection Act, 1986. It has been clearly stated in the Preamble of these acts
that the purpose of their enactment was to implement the decisions taken at the
United Nations Conference on the Human Environment, held at Stockholm in the
In Vellore Citizens' Welfare Forum v. Union of India
, the Supreme court held
that it is essential to incorporate the international customary laws in the
municipal laws, provided they are not contrary to them. It is an accepted
principle of law. Thus, it was considered essential to follow international laws
by the domestic courts of law.
Responsibility Of State For Environment Protection
Article 47 puts an obligation on the state that it shall gaze at the increasing
level of nutrition and standard of living of its people. Also, the primary duty
of the state shall be to improve public health. It is the obligation of the
state to prohibit except for medicinal purposes, the consumption of alcohol and
drugs which can be injurious to the health of the living beings and pose a great
threat to their lives.
From the word responsibility it can be interpreted that state shall take
effective, adequate and necessary steps to improve the health and standard of
living of all and promote awareness in the context of environmental protection.
In the environment development projects cannot be taken up by the individuals
who harm society as a whole. Thus, the state needs to keep a stringent check on
these activities and projects.
There have been various reasons due to which level of pollution in the
environment is constantly increasing. For eg., water pollution is commonly
caused due to the draining of impure water in the rivers and which not only
pollutes the natural resource of the country but affects the health of citizens.
This lead to the urgent need of making provisions to obligate the state to
preserve and protect the environment.
In the case of Hamid Khan v. State of Madhya Pradesh
, the state was negligent to
supply water from the handpumps, colossal damage was caused to the citizens,
which affected their health massively. Hence, due to this gross negligence on
the part of the state, it was held that the state failed to perform its basic
In the year 1976, the constitution was amended. With this amendment, Article
48-A was inserted in the constitution with the aim to afford better provisions
so as to preserve and protect the environment
Right of life and Environment protection (Article 21): Article 21 of the
constitution provides for the fundamental right of life. It states that no
person shall be deprived of his right to life or personal liberty except in
accordance with procedures established by law
. The words except in accordance
with procedures established by law
can be interpreted to mean that this
provision is subject to exception and is regulated by law which varies from case
Right to life includes the right to have a dignified life and also the bare
necessities of life like food, shelter, clean water and clothes. The right to
live extends to having a decent and clean environment in which individuals can
live safely without any threat to their lives. An environment shall be free from
diseases and all sorts of infections.
This is crucial because the right to life can be fulfilled only when one lives
in a clean, safe and disease-free environment, otherwise granting such right
would prove to be meaningless. This aspect of Article 21 has been evidently
discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun v.
State of Uttar Pradesh
, where the petitioner along with the other citizens
wrote to the supreme court expressing their views against the progressive mining
which denuded the Mussoorie hills of trees and forests and soil erosion. This
lead to having an adverse effect on the environment and resulted in landslides
along with blockage of underground water channels.
The registry was ordered by the Hon'ble supreme court to consider this letter as
a writ filed under article 32 of the Constitution.
An expert committee was appointed in this behalf by the Supreme Court to advise
the Hon'ble court with some technical issue. On the basis of the report provided
by the expert committee, the court provided the limestone quarries to be closed
because it was infringing the right to life and personal liberty. Quarrying
operations lead to ecological degradation and air and water pollution, which
affected the lives of the people to a great extent.
In L.K Koolwal v. State of Rajasthan and Ors
, Rajasthan High
Court held that maintaining the quality of the environment, sanitation and
health is covered under the purview of Article 21 of the Constitution. Because
non-compliance to do so can adversely affect the lives of many citizens and slow
poisoning along with reducing the life of a citizen.
In Charan Lal Sahu v. Union of India
, it was held that the duty
of the state is to take adequate and effective steps for the enforcement and
protection of Constitutional rights guaranteed under Article 21, 48-A and
In M.C Mehta v. Union of India
, due to stone crushing activities in and
around Delhi was causing a huge problem of pollution in the environment. The
court was conscious of the inevitable consequences and the ecological problems
caused due to the industrial activities in the country. In the name of
environmental development, it cannot be permitted to degrade the quality of the
ecology and increase different forms of pollution to the extent that it becomes
a health hazard to the lives of all the citizens. It was further held that
citizens have a right to fresh air and have a pollution-free environment in
which they live.
Further, the scope of article 21 was broadened by the judiciary to include under
its purview the right to livelihood as well. It includes the right of citizens
to earn their livelihood along with the right to life. The wider interpretation
of this article has proved to be beneficial in keeping a strict check on the
conduct and actions of the government in the context of measures taken by the
authorities to protect the environment.
In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone were
using coke and coal as an industrial fuel. These industries were ordered to be
relocated to an alternative site as provided under Agra Master Plan. The rights
and duties of the workmen in the industries were also specified by the court
following the principle of sustainable development.
Right to Equality and Environment Protection (Article 14):
Equality before the law and equal protection of the law has been granted
under article 14 of the Constitution. This fundamental right impliedly casts a
duty upon the state to be fair while taking actions in regard to environmental
protection and thus, cannot infringe article 14. In cases of exercise of
arbitrary powers on behalf of the state authorities, the judiciary has played a
strict role in disallowing the arbitrary sanction. Use of discretionary powers
without measuring the interest of the public violates the fundamental right of
equality of the people.
In Bangalore Medical Trust V. B.S Muddappa
, an improvement scheme was
prepared by the City Improvement Board of Bangalore for the purpose of extending
the city. A low-level park was to be developed for which an area was kept under
this scheme. But under the direction of the chief minister the area kept for the
low-level park was to be converted into the civic amenity site where the
hospital was to be constructed. As soon as the construction began, the residents
moved to the high court.
The petition moved in by the residents was allowed by the high court. But in
appeal to the supreme court, the appellant contended that the power to allot
sites is completely a discretionary one and the developing authority has the
right to allow the site for making hospital rather than a park.
And thus, the
diverted use of the land was justified in the eyes of the appellant.
By explaining the importance of open spaces and parks in the development of
urban areas, the supreme court rejected the appeal. The Hon'ble court further
stated that the open spaces, recreation, playing grounds and protection of
ecology are the matters of vital importance in the interest of public and
crucial for the development. Keeping open spaces for the interest of the public
is justified cannot be sold or given on lease to any private person solely for
the sake of monetary gains.
Freedom of Speech and Expression and Environment (Article 19(1) (a)):
speech and expression is a fundamental right expressly mentioned in article
19(1) (a) of Part III of the Constitution. There have been a number of cases
where people have approached the court through the way of speech and expressing
themselves by writing letters like that in the case of Rural Litigation and
Entitlement Kendra, Dehradun v. State of Uttar Pradesh
 where they have
expressed the violation of their right to have a clean and safe environment and
a right to livelihood.
In India, the media has been playing a crucial role in changing the perception
of people in issues relating to the environment. Thus, Article 19(1)(a) is
interpreted to include the freedom of the press as well.
Freedom of Trade and Commerce and Environment Protection (Article 19(1) (g)):
All the citizens of India have a fundamental right to carry on any profession or
business, trade or commerce at any place within the territory of India
under Article 19 (1)(g) of the Constitution. But this is not an absolute right
and thus, has reasonable restrictions to it. Article 19(6) of the Constitution
lays down the reasonable restriction to this fundamental right to avoid the
The purpose is to avoid the ecological imbalance and degradation of the
atmosphere in the name of carrying on a trade, business, occupation or carrying
on any profession. Thus, in the name of business or profession, one cannot cause
harm to the environment.
In M.C Mehta v. Union of India
, AIR 1988 SC 1037 certain tanneries were
discharging effluents in the holy river Ganga which was causing water pollution.
Further, no primary treatment plant was being set up despite the constant
reminders. It was held by the court to stop the tanneries from working because
the effluents drained were ten times more noxious as compared to the ordinary
sewage water which flows into the river.
The court ordered while directing tanneries to be stopped from working which
have failed to take necessary steps as required for the primary treatment of
effluents from the industries. The court while passing this order contended
that, though the court is conscious about the unemployment that might usher due
to the closure of the tanneries but health, life and ecology holds greater
importance in the eyes of law.
In M.C Mehta v. Union of India
, it was directed by the Supreme Court that the
industries who did not comply or adhere to, with the prior direction of the Hon'ble court regarding the installation of air pollution controlling system
should be closed. In this case, the supreme court laid down its greater emphasis
on Article 19(6) of the Constitution.
In S. Jagannath v. Union of India
 , sea beaches and sea coasts were
considered to be the gifts of nature, by the Hon'ble Supreme Court and any such
activity which pollutes these natural resources or the gift of nature cannot be
permitted to function. In this case, a shrimp farming culture industry by modern
method causing degradation to the ecosystem, discharge of polluting effluents,
is polluting the potable ground-water and depletion of the plantation. All of
these activities were held to be violative of constitutional provisions and
other legislation dealing with environmental matters, by the court.
The court further held that before the installation of any such industry in a
fragile coastal area it is essential for them to necessarily pass the strict
environmental test. In other words, reasonable restrictions can be laid in
accordance with Article 19(6) of the Constitution.
Directive Principle of State Policy (Article 48(A)):
Protection and improvement of environment 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.
In Sher Singh v. Himachal Pradesh
, It was held that the citizens of the
country have a fundamental right to a wholesome, clean and decent environment.
The Constitution of India, in terms of Article 48A, mandates that the State is
under a Constitutional obligation to protect and improve the environment and to
safeguard the forest and wild life in the country.
By 42nd Amendment to the
Constitution, the Parliament, with an object of sensitizing the citizens of
their duty, incorporated Article 51A in the Constitution, inter alia, requiring
a citizen to protect and improve the natural environment including the forests,
lakes, rivers and wild life and to have a compassion for living creatures.
The legislative intent and spirit under Articles 48A and 51A(g) of the
Constitution find their place in the definition of 'environment' under the
Environment (Protection) Act, 1986 (for short the Act of 1986). The
legislature enacted various laws like the Air (Prevention and Control of
Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974 and
the Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, the
Indian Forest Act, 1927 and the Biological Diversity Act, 2002 and other
legislations with the primary object of giving wide dimensions to the laws
relating to protection and improvement of environment.
Not only this, there is still a greater obligation upon the Centre, State and
the Shrine Board in terms of Article 48A of the Constitution where it is
required to protect and improve the environment. Article 25(2) of the UDHR
ensures right to standard of adequate living for health and well-being of an
individual including housing and medical care and the right to security in the
event of sickness, disability etc.
The expression life
enshrined in Article 21
of the Constitution does not connote mere animal existence or continued drudgery
through life. It has a much wider meaning which includes right to livelihood,
better standard of living, hygienic conditions in the workplace and leisure.
Article 51 Promotion of international peace and security The State shall
- promote international peace and security;
- maintain just and honorable relations between nations;
- foster respect for international law and treaty obligations in the
dealings of organised people with one another; and encourage settlement of
international disputes by arbitration
The Parliament availed the opportunity provided by the Constitution
(Forty-second Amendment) Act, 1976 to improve the manifestation of
objects contained in Article 48 and 48-A. While Article 48-A speaks of environment
Article 51-A (g) employs the expression the natural environment and includes
therein forests, lakes, rivers and wild life
. While Article 48 provides
for cows and calves and other milch and draught cattle
Article 51-A(g) enjoins it as a fundamental duty of every citizen to have
compassion for living creatures, which in its wider fold embraces the category
of cattle spoken of specifically in Article 48.
In Mohan Kumar Singhania & Ors. v. Union of India & Ors
governmental decision to give utmost importance to the training programme of the
Indian Administrative Service selectees was upheld by deriving support from
Article 51-A(j) of the Constitution, holding that the governmental decision was
in consonance with one of the fundamental duties.
In State of U.P. v. Yamuna Shanker Misra & Ors
.,, this Court
interpreted the object of writing the confidential reports and making entries in
the character rolls by deriving support from Article 51-A(j) which enjoins upon
every citizen the primary duty to constantly endeavour to strive towards
excellence, individually and collectively.
In T.N. Godavarman Thirumalpad v. Union of India & Ors.
three-Judge Bench of this Court read Article 48-A and Article 51-A together as
laying down the foundation for a jurisprudence of environmental protection and
Today, the State and the citizens are under a fundamental obligation to protect
and improve the environment, including forests, lakes, rivers, wild life and to
have compassion for living creatures.
In State of W.B. & Ors. v. Sujit Kumar Rana
, Articles 48 and 51-A(g)
of the Constitution were read together and this Court expressed that these
provisions have to be kept in mind while interpreting statutory provisions.
Legislation for giving effect to international agreements 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
Connecting human rights and environment is a valuable sourcebook that explores
the uncharted territory that lies between environmental and human rights
legislation. Human beings can ensure fundamental equality and adequate
conditions of life in an environment that permits a life of dignity and
There is an urgent need to formulate laws keeping in mind the fact that those
who pollute or destroy the natural environment are not just committing a crime
against nature, but are violating human rights as well. Indeed, health has
seemed to be the subject that bridges gaps between the two fields of
environmental protection and human rights.
- Subhash kumar v. state of Bihar AIR 420, 1991 SCR (1) 5
- Vellore Citizens' Welfare Forum v. Union of India AIR 1996 SC 2715
- Rural Litigation and Entitlement Kendra, Dehradun v. State of
Uttar Pradesh AIR 1985 SCR (3) 169
- L.K Koolwal v. State of Rajasthan and Ors AIR 1987(1) WLN 134
- Charan Lal Sahu v. Union of India
- MC Mehta v. Union of India
- Bangalore Medical Trust V. B.S Muddappa AIR 1991 SC 1902
- Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar
Pradesh AIR 1985 SCR(3) 168;
- MC Mehta v. Union Of India , 1994
- S Jagannath v. Union of India, [(1997) 2 SCC87]
- Sher Singh v. State of Himachal Pradesh
- In Mohan Kumar Singhania & Ors. v. Union of India & Ors., AIR 1992 Supp
(1) SCC 594
- State of U.P. v. Yamuna Shanker Misra & Ors., (1997) 4 SCC 7
- T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC
- State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129