Author: Akshay Shandilya, Research Associate
In India, environment was hailed highly in the ancient and medieval eras but till 1976 there were no major legislations relating to environmental protection. It was the Stockholm Conference on Environment and Development which exerted great influence on environmental policymaking leading to an amendment of the Constitution, passage of important legislations such as the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and creation of institutions such as Central and State Pollution Control Boards for implementing the provisions of the Acts ((U. Sankar, Laws and Institutions Relating to Environmental Protection in India, accessed at: http://mse.ac.in/pub/op_sankar.pdf)).
The Bhopal gas tragedy in 1984 further triggered the passage of comprehensive environment legislation in 1986 and Public Liability Insurance Act in 1991. Besides this the principle of social justice runs through and through the Constitution and the Courts apply this principle while deciding environmental matters. By way of judicial activism Part III of the Constitution was interpreted widely by Hon’ble Judges like P.N. Bhagwati, Kuldip Singh, V.R. Krishna Iyer, and H.R. Khanna who recognized the ‘third generation rights’ (environmental rights) as a constitutional mandate and applied them remarkably. Indian constitution, in this sense, is truly unique in having such provisions in its fold.
Stockholm Conference: The Driver of Change
The year 1972 has been a landmark in the history of Environmental Management in India. It was the year in which the United Nations Conference on Human Environment (UNCHE) was held at Stockholm. The views expressed at the Stockholm Conference formed a core part of the basic environmental philosophy of India that found expression in various governmental policy pronouncements in subsequent years. India shared the view with other developing states that environmental problems are mainly due to lack of development rather than excessive development. The Stockholm Declaration had a colossal impact on the Indian Judiciary. It is pertinent to note how relentlessly the country stove for implementing the recommendations of Stockholm Declaration.
Four years after the Stockholm Conference, the forty-second amendment ((The Constitution (Forty-Second Amendment) Act, 1976, which came into force with effect from January 3, 1977.))to the Constitution of India introduced certain significant provisions relating to environment and in this way became the first country in the world to have provisions on environment in the Constitution. Indian Parliament inserted two Articles, i.e. 48A and 51A in the Constitution of India in 1976, Article 48A of the Constitution rightly directs that the State shall endeavor to protect and improve the environment and safeguard forests and wildlife of the country. Similarly, clause (g) of Article 51A imposes a duty on every citizen of India, to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.
The need to amend the Constitution by placing ‘environment protection’ as a specific entry in the Concurrent List was canvassed by an expert Committee ((A committee headed by N.D. Tiwari, appointed by the Department of Science and Technology, Government of India, made the suggestion. See ‘Report of the Committee for Recommending Legislative Measures and Administrative Machinery for Ensuring Environmental Protection’, 1980, 24.)), appointed by the Central government, while the rationale for such a step had been emphasized in the past ((P. Leelakrishnan, Environmental Law in India 15 (3rd ed. 2009).)).
The Constitution makes two-fold provisions. On one hand, it gives directive to the State for the protection and improvement of environment and on the other, it casts duty on every citizen to help in the preservation of natural environment ((Dr. Sunil Karve and Dr. Ram Sable, Awareness of Citizen on Environmental Legal Provisions 1, Abhinav Journal, Vol. 1, No. 1, 2012, accessed at: http://www.abhinavjournal.com/images/Science_&_Technology/Jan12/1-Sable.pdf)). The cumulative effect of Articles 48A and 51A (g) seems to be that the ‘State’ as well as the ‘citizens’ both are now under constitutional obligation to conserve, perceive, protect and improve the environment ((V.K. Agarwal, Environmental Laws in India: Challenges for Enforcement 228, Bulletin of the National Institute of Ecology 15: 227-238, 2005, accessed at: http://dl4a.org/uploads/pdf/environmental%20law.pdf)). Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way ((State of Tamil Nadu v. Hind Store, AIR 1981 SC 711; see also Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 SC 359)). The phrase ‘protect and improve’ appearing in both the Articles 48A and 51A (g) seems to contemplate an affirmative government action to improve the quality of environment and not just to preserve the environment in its degraded form ((Supra note 6)).
Furthermore the interpretation given by the Supreme Court in Maneka Gandhi’s case ((Maneka Gandhi v. Union of India, AIR 1978 SC 597))has added new dimensions to the concept of personal liberty of an individual. In other words, environmental pollution which spoils the atmosphere and thereby affects the life and health of the person has been regarded as amounting to violation of Article 21 of the constitution ((Kailash Thakur, Environment Protection Law and Policy in India 204, (1997).)). The judicial grammar of interpretation has further broadened the scope and ambit of Article 21 and now “right to life” includes the “right to livelihood” ((Deepika Chouhan and Prabhash Dalei, Right to live in Healthy Environment – In framework of Indian Constitution, International Conference on Humanities, Economics and Geography (ICHEG 2012) March 17-18, 2012 Bangkok. See Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 at 189- 190)). In M.C. Mehta v. Union of India, (( 4 SCC 750))the apex court invariably spelt out the citizens’ ‘right to clean environment’ which was in turn derived from the protection of life and liberty enumerated in Article 21. Justice Singh in the Ganga Pollution Case ((M.C. Mehta v. Union of India, (1987) 4 SCC 463))declared in unequivocal terms that closure of industries may bring unemployment and loss of revenue to the State, ‘but life, health and ecology have greater importance for the people’ ((Id., at 1048)).
Article 14 can be used as a potent weapon against governmental decisions threatening the environment ((Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1988 SC 2187)). The Courts in Indi, on various occasions, have struck down the arbitrary official sanction in environmental matters on the basis that it was violative of Article 14 (Right to Equality) ((Ajay Hasia v. Khalid Mujib Sehravard, (1981) 1 SCC 722; Kinkari Devi v. State of H.P., AIR 1988 HP 4; also see Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295)). It is pertinent to note that the Stockholm Declaration, 1972 also recognized this principle of equality in environmental management and it called up all the world’s nations to abide by this principle ((The Stockholm Declaration, 1972, Principle 1, ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity & well being…’.)).
Conserving the Rural Core
Rural areas are the real repository of ambient environment. It thus seems pertinent to focus to conserve the rustic regions in the country. In this sense as well the Constitution does not make any direct provision but it does establish schemes which would enable the interpreter to utilize it for the conservation of environment. The Fifth Schedule gives nominal head of the states the power to prohibit the transfer of land in scheduled areas which could be utilized to prevent any developmental project from being set up in the area which may destroy the area ((The Constitution of India, Fifth Schedule)). Further the 73rd Constitutional Amendment is most significant to this subsection as it declared Panchayats to be institutions of self government. Panchayats were mandated to prepare plan(s) for economic development and social justice and implement them ((The Constitution (Seventy-Third Amendment) Act, 1992)). It is established that social justice includes right to wholesome environment and by means of this insertion Panchayats had the power to regulate developmental schemes in rural areas and ensure that right to the peasantry population of India. Complementing and supporting these two constitutional weapons are Articles 38 and Article 39 which declare certain principles of policy to be followed by the State which would enable the social justice system to function better.
Environmental Legislations: An Insight
The main objective of the Water (Prevention and Control of Pollution) Act of 1974 ((Act 6 of 1974))is ‘to maintain or restore the wholesomeness of water and to prevent, control and abate water pollution’. The Supreme Court in Susetha v. State of T.N., (( 6 SCC 543; AIR 2006 SC 213))made it clear that the state is under a constitutional obligation under Article 48 to protect the natural water bodies.
To preserve the quality of air and to control air pollution the Parliament enacted the Air (Prevention and Control of Pollution) Act of 1981 ((Act 14 of 1981)). According to the Act even noise is an air pollutant as it contaminates the environment, causes nuisance and affects the health of a person ((Air (Prevention and Control of Pollution) Act of 1981, § 2(d).)).
The Environment (Protection) Act, 1986 ((Act 29 of 1986.))was enacted to provide for the protection and improvement of the quality of environment and preventing, controlling and abating environmental pollution. The Act came into existence as a direct consequence of the Bhopal Gas Tragedy. It has given vast powers to the Central Government to take measures with respect of planning and execution of a nation-wide programme for prevention, control and abatement of environmental pollution ((Supra note 6 at 230.)). The Act is an ‘umbrella’ legislation designed to provide a frame work for Central Government coordination of the activities of various Central and State authorities established under previous laws, such as the Water Act and the Air Act ((Armin Rosencranz, Shyam Divan and Martha L. Noble, Environmental Law and Policy in India 68
The Parliament passed the Public Liability Insurance Act, 1991 ((Act 6 of 1991))to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident occurring while handling any hazardous substance and for matters connected therewith ((Supra note 25.)). The Act ensures immediate relief by incorporating the principle of ‘no fault liability’.
The National Green Tribunal Act, 2010 which replaced the Environment Tribunal Act, 1995 seeks to establish specialized Green Tribunals on the regional basis for an effective and expedious disposal of cases and protection & conservation of natural resources, forests, etc.
The Constitutional scheme to protect and preserve the environment has been provided under Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthy and pollution free environment, constitutional obligation of the State and fundamental duty of all the citizens of India to protect and improve the natural environment. But the first question we have to ask ourselves is why despite provisions in Indian Constitution providing for environmental protection and many statutory provisions, the environment degradation continues. The main cause for environment degradation is lack of effective enforcement of various laws. There is also lack of proper, effective and timely enforcement of even orders passed by courts ((See Y.K. Sabharwal, Environment – Awareness – Enforcement 2, accessed at: http://supremecourtofindia.nic.in/speeches/speeches_2006/e-apja.pdf.)). The task of environmental protection is difficult and complex in a country like India, which is still to travel long to usher in the industrial regime and is yet to tackle population problem, problems of food, health and water. But every effort to deal with environmental problem has to be pin pointed and local and at the same time cooperative and total ((Prof. Ranbir Singh, Emerging Trends in Environmental Jurisprudence in India)).
Comment on “Constitutional Provisions and Legislative Policies for Environment Protection in India”
I need the assistance in this case;
HAZARDOUS WASTE OIL CLEARANCE; this license is obtained to the recycle a unit factory and the received material from any location behalf of this unit has to be reach where this refinery is located.
Now there is one refinery from thane Maharashtra by name M/s Shiva Petro synthetic, registered in Port MPT – Goa and clearer the material from Goa Port MPT and as per the environment law this should be sent to refinery thane Mumbai, the same attracts Octrai charge at TOLL NAKA but they did not have any such paid receipt same proves their illegal dumping in forest or some remote areas of Goa spreading pollution.
I have brought to this notice of PORT, Goa Pollution Control Board and MOEF, and also to the notice of Thane Municipal Corporation.
Please see if you can help me with your good advice with draft letter to be written to authority with name so that immediate and strong action been taken to this refinery to stop this illegality.
This will help to gain the employment for the Goa based people.