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Constitutional Outlook for Environmental Stewardship

Paper Details 

Paper Code: AIJACLAV3RP182023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Sonakshi Singh, “Constitutional Outlook for Environmental Stewardship", 3, AIJACLA, 147, 147-154 (2023), <https://www.aequivic.in/post/constitutional-outlook-for-environmental-steward-ship>

Author Details: Sonakshi Singh, Ex-Student, Siddhartha Law College





Abstract

Environment is crucial for the survival of human beings as well as every other life forms. But with the development going around in society including industrialization and urbanization the damage caused to the environment is grave. This requires our immediate attention because without environment, life on earth cannot be imagined. The Stockholm Conference of the United Nations was the 1st ever international conference which talked about the environmental issues and the ways for its protection. United Nations also formed United Nations Environment Program to address such issues. Post this conference, the 42nd Constitutional Amendment was introduced in which significant changes as to the environment protection were presented. Supreme Court, through its various noteworthy judgments explored the greener side of the Constitution. The interpretational approach was made liberal for deciding cases which involved the Environment. A number of significant environmental legislations were introduced for the protection and preservation of the environment and the ecology. The paper shed a light on the role of Constitution in safeguarding environment and the various legislations introduced for the same purpose like Wildlife (Protection) Act, 1972, Water (Prevention & Control of Pollution) Act 1974, Forest (Conservation) Act 1980, Environmental (Protection) Act 1986 etc. The paper also discusses certain notable case laws about the environment protection in brief.

Keywords

Environment; Fundamental Duties; Harmonious Balance; Interdependence; Wildlife; Resources


Introduction

Environment comprises of everything around us living or non-living. It is a very wide term. The land we live on, the water we drink, the air we breathe all are a part of environment. The term “Environment” generally deals with all these natural resources and the inter-relation which they have with each other as well as with human beings and other living creatures or organisms. This mutual interaction which they share, and their inter-dependence on each other is the subject or area we study in environment. The nature and everything in it is environment. Our history, culture and tradition are also a proof that how much the environment is essential for us. We worship the rivers in the form of mother and call them as Maa Ganga, Maa Narmada etc. which mean we have a history of respecting the natural resources and praying to them. Our Vedic text also talks about the worship of elements and how human beings used to pray them to seek their blessings. We have always considered the nature as mother. 

But with the increasing population, the environment is getting in danger and is perishing as we are over-exploiting the resources. This is disturbing the natural concentration of the environmental gift and it is our duty and responsibility to save it not just for ourselves but also for the future generation. Law has always been a tool for management and has many times been used as a shield for protection by the authorities in order to maintain a cycle or chain. Law protects not just the humans but also the animals as well as environment.

The constitution of India is backbone of our country. It encompasses fundamental rights, DPSP, fundamental duties and various other provisions for functioning of this country. It protects the fundamental rights of the people and also provides them with certain duties and the state policies on which the government must propagate by making policies. In all those provisions, it provides the rules for protection of environment also. The judiciary of India has, by interpreting the constitution in a liberal way, has pronounced many landmark cases for the environmental protection. It has come to the eco-centric approach for the protection of environment from the anthropocentric approach. By holding the hand of the Constitution, it has made various rules and has adopted various doctrines inculcated in the international charters as well as those adopted by the judiciary of developed nations in order to give protection to the environment as well as to balance it alongside development. The constitution is a key factor behind the protection of nature. It has laid the path for various laws for protecting and preserving environment like The Wildlife (Protection) Act, 1972, Water (Prevention & Control of Pollution) Act, 1974, Forest (Conservation) Act, 1980 etc. It has also made laws for the Wildlife protection as well as rules regarding the compensation if any harm is caused to the environment (Environment Protection Act of 1986) or to the public (public liability insurance act, 1991). With the passage of time, our constitution has established that to have a healthy environment is a fundamental right and a human right of every person expanding its arms to protect the nature and ecology.


Stockholm Conference and the succeeding changes in Indian Constitution

The 1st ever conference which discussed the environmental issues and showed concern regarding it was the United Nations Conference on the Human Environment or Stockholm Conference. The United Nations Environment Programme (UNEP) was established as a result of this declaration. It is also known as magna carta of the environment. This conference was held from 5th June to 16 June, 1972 at Stockholm, Sweden and the declaration was approved on 16th June, 1972. It was the 1st ever document to recognize right to healthy environment. The participating nations agreed to take their liability of their actions which may impact or affect the environment. The document laid down 26 guiding principles for comprehensive supervision of the environment. This declaration laid down a floor for the states to talk about their growth and development and the environmental issues. The action plan contained 3 main categories, broken into 109 recommendations:

●        Global Environmental Assessment Programme (Watch Plan)

●        Environmental management activities

●        International measures to support assessment and management activities carried out at the national and international levels[1].

The other significant outcome of this conference was that it inspired the nations all around the world to check on the state of the environment as well as to create the ministries and administrative agencies to look after the policies and plans made for environment and their effective implementation. It has also impacted the international law making on the matter of environment.

In fact, the 42nd Constitutional amendment, which was presented after this Conference brought significant and key changes to the Indian constitution in respect of the environmental laws. This amendment has brought obligations to improve the environment on both, the state and the environment. It introduced Art 48-A and 51-A (g) as DPSP and Fundamental duties respectively. It was after this conference only that the honourable SC has started to interpret liberally the word environment in reference to the constitution thereby widening its ambit. The SC thereafter linked the healthy environment with right to life and declared it as a fundamental right. By the passage of time, it has allowed the Public Interest Litigation (PIL) on the ground of environmental protection and the other related rights paving a way for the introduction of various environmental legislations and their protection.


Constitutional provisions on Environment and its protection

The constitution of India is the supreme law of the land. Anything which is done beyond the constitution is ultra vires with it and therefore void. It has always protected the rights of the people and has given a liberal interpretation to their fundamental rights. As the time passed, it has evolved itself and has shielded many rights giving way for new legislations. The Constitution of India has, in respect of, environmental rights and the protection of environment has also evolved itself with time. Following many international conventions and adopting various international doctrines, it has protected the environment even before coming in force of the specific legislation regarding it. It has introduced many new provisions in itself and has also extended the arms of some already enshrined provisions for the protection of the environment by giving them a liberal interpretation. The provisions, which in present date, protects the environment are: -

●        Art 19 (1) (g) and its exception: This article provides various freedoms to its citizens as their fundamental rights. But no fundamental right is unconditional and every such right is issued with some reasonable restrictions. Constitution has laid down impliedly the environment protection as one of the restrictions of Art 19 (1) (g) by covering it under the head of public health. As public health is largely dependent on the environmental factors therefore for the sake of the public health, it is important that environment must be protected from any sort of harm or hazards. Therefore, the right of trade and occupation given under this article is restricted on the ground of any environmental damage or hazard which may happen if the activity is continued or permitted to start.

In the case of M.C. Mehta vs. UOI[2], SC, by laying down bigger emphasis on Art 19 (6) directed that the industries or other establishments if do not observe and follow the preceding direction of the court regarding setting up of air pollution controlling structure must be enclosed or shut down. 

In S.Jagannath vs. UOI[3], the hon’ble SC, contemplated sea beaches and coast as Mother Nature’s gift and said that any undertakings which pollutes these gifts or resources are liable to shut down. 

●        Art 21 (FR): Part 3 of the Indian Constitution gives the fundamental rights (FRs) to the people of India. Any act done with infringes these FRs are declared to be unconstitutional and thereby, null and void. Judiciary has taken the support of the FRs also in order to provide a protection to the environment. The ambit of right to life, given under Article 21, was widened after the case of Maneka Gandhi v. UOI[4]. After this case, the arms of article 21 extended to each and everything which can be linked with the life and also with the factors which are needed for a decent standard of living. The Indian judiciary has linked this right with environment also and has used it to ensure that protection is given to the environment also. Although, this right has always been there in the constitution but it was only after some passage of time that the judiciary has recognized the environment protection under this by following the anthropocentric approach i.e., protection of environment for the sake of the human beings. It has laid down that it is the right of an individual to have decent standard of living which includes healthy living also. This healthy living can only be ensured if the people are given a healthy and pollution free environment. This pollution free and healthy environment must also be free from all sorts of diseases or any infections which may harm human health. This article also declared that it is a fundamental right of a person to get an access of fresh water to drink and quality air to breathe. This conclusively and impliedly shows that the state must work towards providing a safe, healthy and good environment to its people so that they can live a life with decent standards.

Rajasthan HC in the case of L.K. Koolwal vs. State of Rajasthan & Ors.[5], has held that “maintaining the quality of the environment, sanitation and health is covered under article 21 because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of the citizens.[6]

●        Art 47 (DPSP): Part 4 of the Indian Constitution deals with the directive principle of the state policy. The DPSP are the duty on the part of the state towards its citizen and society. The judiciary has linked this article of DPSP with the environment and has called the state to maintain a healthy environment. This article provides that it is the principal duty of the state to improve the public well-being. The environment is the key factor behind the health of the people. It impacts the humans with a major effect. Therefore, it is necessary to maintain a healthy environment around us and to not harm it in any manner so as to disturb or upset the ecological balance. Any such disturbance may affect the human health in much dreadful way and therefore, attention must be paid for the preservation of environment.

●        Art 48-A (DPSP): This article is a part of directive principle of state policies and it lays down the duty of the state in regards to the protection of the environment and talks about safeguarding the forests and wildlife of India. This article was placed in by the 42nd Constitutional Amendment of 1976. It says that it is the obligation on the part of the state to protect the environment and look after the wildlife and forests of India. Along with this, the state must also work towards their improvement.

It was held the case of Charan Lal Sahu v. UOI[7],  that it is the onus on the part of the state to take sufficient and active steps for the administration and protection of Constitutional rights ascertained under Art 21, Art 48-A and Art 51-A (g).

●        Art 51-A (g) (Fundamental Duty): The part IV-A of the Constitution was added by the 42nd amendment only and includes 11 fundamental duties under Article 51-A (the 11th duty was added by the 86th constitutional amendment act of 2002). It talks about the fundamental duties on the part of the citizens of the country. Art 51-A (g) puts down that it is the fundamental duty of the citizens of the country to safeguard the natural environment and to work towards its improvement. This includes the lakes and rivers, forests and wildlife in it. Along with this, it also says that the people must have some sympathy and consideration for the living creatures.

In T.N. Godavarman Thirumalpad v. UOI & Ors[8]., the 3 judges’ bench of the court laid down the groundwork of jurisprudence of environmental protection by interpreting Art 48-A and Art 51-A together and held that the state and the citizens are under a fundamental responsibility to safeguard and develop the environment together with forests, lakes, rivers, wildlife and to have sympathy for breathing creatures.

●        Art 246 (Union-State relations): The provision of 3 lists, which are given in the Schedule 7, is provided under Art 246 of the constitution. The 3 lists given are: the union list, the concurrent list and the state list correspondingly. The union government or the state government or both can make laws for the matters enumerated in the 3 lists. The word environment is directly not allocated with in the 3 lists but its constituents are given place. The Concurrent list of this schedule on which both the centre and the state could legislate, enumerates in it, the matter of forests and wildlife while the state list has public health and sanitation as one of its subject matters. Thus, the constitution, through these lists empowers both the union and the state legislature to make laws on the matters related with the environment in order to protect and conserve it. The Wildlife (Protection) Act, 1972, Water (Prevention & Control of Pollution) Act, 1974, Forest (Conservation) Act, 1980 etc. were made by the parliament taking power from the lists enshrined in the constitution.

●        Art 253 (Union’s power): This article gives power to the parliament to make laws in order to enforce and apply the international treaty, agreement and conventions. It lays down that for enforcing the international treaties or any agreement or convention, then the parliament can legislate over it. The parliament has made various environment laws by using the power given by the constitution under this provision like The Wildlife (Protection) Act, 1972, Water (Prevention & Control of Pollution) Act, 1974, Forest (Conservation) Act, 1980, The Air Act of 1981 etc.

●        Art 32 & Art 226 (writ jurisdiction): Article 32 and 226 of the constitution provides writ jurisdiction to the SC and HC respectively and any citizen may approach to these higher court under these articles on the ground of infringement of the fundamental rights. Many PILs (Public Interest Litigation) has been made under these articles only for the protection of environment. The famous M.C. Mehta’s and environmentalist T.N. Godavarman’s (famously called the Green Man) cases were all a result of the PILs which were filed before the hon’ble SC or HC for the protection of the environment. Not only this, but many cases like the Rural Litigation and Entitlement Kendra v. the State of U.P,[9] Indian Council for Enviro-Legal Action v. UOI[10], Vellore Citizens Welfare Forum v. UOI[11] etc. were filed by presenting a PIL before the higher courts which are the leading cases for the protection of the environment.

The Indian Constitution has laid down a very broad road for the protection of the environment by making both expressed and implied provisions in it. With the passage of time, it has developed itself in a way that makes it almost difficult to compromise on environment when the development and progress of the country is talked about. The Constitution has given the power to the judiciary, the legislature and even the citizens of the country by which they can take all possible steps to protect the environment and the ecology. It has made a harmonious balance between the environment and the societal progress also through various cases. By spreading its arms to cover the environment in its lap, it has interpreted the fundamental rights, the directive principles of the state policies, the fundamental duties and the other provisions in a much liberal and reasonable way so as to link it with the present society. The Constitution has played its role very well to check that no box is left unhindered in order to ensure the environmental protection. Now, it’s time for us to assume active role for protecting the ecology and the environment not only for present but also for the future generation. After all, this is what we call a principle of Sustainable Development. 

Specific Environmental laws made for Environmental Protection

●      Wildlife (Protection) Act, 1972: For maintaining the ecological and environmental balance, the protection of the natural chain is necessary. This act was enacted by the parliament following the Art 48-A and 51-A, for protecting the wildlife of the country along with the flora and fauna, the birds and the other plant species. It also provides punishment and penalties for any violation of the related law including hunting, poaching and illegal trade in wildlife and its offshoots.

●        Water (Prevention & Control of Pollution) Act, 1974: Water is a matter of subject list of the constitution (Entry 17). It includes water for every purpose irrigation, storage power etc. It was made by deriving power from Art 252 of the constitution. This legislation was enacted to control the water pollution which was done by the industries that used to discharge their effluents in the water bodies and thereby polluting them. It was made to prevent and control the pollution and to establish the boards for it. The act itself mentions that it is made for “maintaining or restoring the wholesomeness of water[12].

●        Forest (Conservation) Act, 1980: It was made in order to protect the forests in India, prevent deforestation and to make an Advisory Committee for the forest preservation. It was made by following the duty given in Art 51-A (g).

●        Air (Prevention & Control of Pollution) Act, 1981: it was enacted to control and prevent the air pollution and to set-up pollution control board for it. It was made in order to follow that which was laid in the Stockholm Conference. It was made by the Parliament by following the Art 253 of Indian Constitution.

●        Environment (Protection) Act, 1986: It is an umbrella legislation passed by the Indian parliament for the protection of the environment. It provides protection to everything which is a part of the environment whether it is land, air, water etc. and also provides provision regarding the pollution control and procedural safety measure which must be taken by the persons supervising hazardous substances. It was enacted under Article 253 of the constitution following Art 48-A.

●        National Green Tribunal Act, 2010: This act was enacted to establish a Tribunal which could see for the effective and speedy disposal of the cases relating to the environmental protection as it is the fundamental, right of the citizens under Art 21 to have a speedy remedy. Also, the Art 21 gives the individual to have a healthy environment, therefore, any infringement of this this right demand a speedy action and speedy remedy for which this act was made.

There are many other legislations like the Compensatory Afforestation Fund Act, 2016, the Biological Diversity Act of 2002; The Hazardous Waste Management Regulations, etc. are some other legislations which were made for the protection and preservation of the environment. All these legislations were made following the provisions of the constitution of India.  This shows that, we are also taking the steps towards preserving the environment. Earlier we were also taking from it but now it’s time to give back as much as we could. 


Conclusion

The Environment protection and preservation is necessary as without it, we won’t be able to live. It is necessary to have a healthy and pollution free environment as it influences not just our health but also the ecological balance of the nature. Therefore, we must take steps towards its maintenance and rejuvenation. We have made various legislation for its protection. Even the Constitution, the basic law of the land, has developed itself for protecting the environment. But are we really putting our efforts for its protection? Deep down we know that we are not giving our 100% for the environment fortification. Constitution has given the provision; parliament has passed the laws but we are not giving our lively contribution in it. Moreover, the laws are also not that much stringent so as to push a person to follow them. Environment cannot be protected until and unless we are willing to protect it ourselves. We have to take our step forward as a whole community. This one step towards the nature would ensure the next step automatically for its preservation. We must have a strong determination for its protection and must take the environmental concerns seriously and strictly. If the state is lacking behind making the strict laws, then so are we as we lack the spirit of participation. Turning our back on environment won’t help. Only together we can accomplish the goal of environmental preservation. We have taken much from it and have harmed it a lot. Now it’s time to give back. It’s time to stand and restore it. Constitution has played its part and now the ball is in our court. We have to make sure that we hit a score and show that we stand for environment protection and won’t let anyone harm it



[1] United Nations, United Nations Conference on the Human Environment, 5-16 June, 1972 Stockholm (un.org, not dated) <https://www.un.org/en/conferences/environment/stockholm1972> accessed on 15 March 2023.

[2] 1996 Supp (10) SCR 383.

[3] (1997) 2 SCC 87.

[4] AIR 1978 SC 597; (1978) 1 SCC 248.

[5] AIR 1987 (1) WLN 134.

[6] Pranshuta Pandey, ‘Constitutional Provisions for Protection of Environment’ (Legal Service India E-Journal, 8 October 2020) <https://www.legalserviceindia.com/legal/article-3906-Constitutional-provisions-for-protection-of-environment> accessed on 16 March, 2023.

[7] 1990 AIR 1480, 1989 SCR Supl. (2) 597.

[8] (2002) 10 SCC 606.

[9] AIR 1985 SCR (3) 169.

[10]1996 SCC (3) 212.

[11] AIR 1996 SC 2715.

[12] Aim and objective of The Water (Prevention and Control of Pollution) Act, 1974.




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