Environmental Law: A Constitutional Study

THIS ARTICLE WAS WRITTEN BY VARSHA JHAVAR, A STUDENT OF  HNLU.

Thank God men cannot fly, and lay waste the sky as well as the earth.

-Henry David Thoreau

With the growth of industries and urbanization India’s economy has developed at a rapid pace. The setting up of local industries and industries being set up by MNCs (Multinational corporations), the water, air pollution levels have gone up. The harmful effluents are released into the rivers from factories, leading to water pollution, deforestation leading to soil erosion and land degradation. These activities have not only local or regional but also global significance.

India has more than 20 cities with population over a million. India is home to some of the polluted cities in the world like Delhi, Mumbai, Chennai, Kolkata. Gwalior is the most polluted city in India.[1] The need of the hour is to maintain the quality of air, water and improve it.

The level of air pollutants in the air in the metropolitan cities exceed both WHO and Indian standards. Vehicular sources are responsible for 64 percent of the air pollution nationwide, while power plants contribute 16 percent, industries 13 percent and the domestic sector 7 percent.

The number of environment related offences has gone down from 5,835 in 2014 to 5,156 in 2015 and to 4,732 in 2016.[2]

Constitutional Provisions relating to Environmental Law

• Fundamental Rights

Article 14 of the Constitution promises the citizens equality before the law and equal protection of the laws. Article 14 can be invoked where the government has sanctioned projects contrary to town planning regulations and having an adverse impact on the natural environment, where they are based on arbitrary grounds.[3]

Article 19(1)(g) of the Constitution assures to the citizens the freedom to practise any profession or to carry on any occupation, trade, business. This fundamental right may be used as defence when an industry is charged of having an adverse impact on environment. A balance needs to be brought between environmental protection and industrial interests. The environmental regulations and standards made by the Government should be complied with.

Article 21 of the Constitution guarantees the right to life. In Kharak Singh v. State of Uttar Pradesh[4], the Supreme Court stated that the term ‘life’ means something more then mere animal existence. Maneka Gandhi case[5] brought about a new era of judicial thought. It was the beginning of the enlargement of the rights corollary to Article 21 and being brought under the umbrella. The Supreme Court after some reluctance interpreted that right to life includes the right to wholesome environment.[6]It soon expanded to right to get pollution free water and air[7], right to clean environment, right against noise pollution.[8] Life is not possible without access to clean drinking water, hence right to clean drinking water is incorporated under the fundamental right in Article 21.

Judicial Activism by the Supreme Court and High Courts has contributed in no small measure to the enlargement of the right to environment. In V. Lakshmipathy v. State of Karnataka[9] the issue of establishment of industries in residential areas came up, the High Court declared that the once an area was earmarked as a residential area, no industries could come up contrary to the plan. Another right enshrined in the right to life is the right to livelihood, which was declared by the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation.[10] There are chances of clash between the right to livelihood and environment, like dislocation of workers due to closure of factories in violation of right to environment. For such cases the Supreme Court has passed orders making provisions for the resettlement and rehabilitation of workers.

• Directive Principles of State Policy

Article 37 of the Constitution states that the directive principles are fundamental in the governance of the country and the state has a duty to apply them while formulating laws.

Article 48-A of the Constitution was added by the 42^nd Amendment, 1976 ensures protection and improvement of environment and safeguarding of forests and wild life. Due to increasing awareness all over the world, the need to preserve the environment was felt the article and hence the article was introduced.  Industrial waste, noxious fumes, smoke from factories, machines has led to the degradation of the environment. Remedial measures such as afforestation, cleaning of rivers need to be undertaken. The dwindling numbers of wildlife is also an indication of the extent to which the environment has been harmed. The Article reinstates the fact that not only the environment needs to be protected but also improved.

Article 49 of the Constitution requires the state to protect monuments of national importance. The Taj Mahal case[11] is a glaring example of how the industries were responsible for the yellowing of a national monument. The Supreme Court held that the main pollutant was sulphur dioxide and that in the Taj Trapezium Zone, i.e., the 10,400 sq.km trapezium shaped area in the city of Agra, no industry would be allowed. In this case three principles are used; ‘Sustainable Development’-the development of industry along with the protection of environment, ‘Precautionary Principle’-the government must anticipate and deal with the harm caused to the environment due to development, and ‘Polluter Pays Principle’-the liability is not only to compensate the victims but also the restoration of the cost of environment degradation.

Article 51(c) of the Constitution requires the state to incorporate the principles and provisions of international law and treaties.

• Fundamental Duties of the Citizens

The fundamental duties were introduced as Part IV-A in the Constitution by the 42^nd amendment of 1976. Article 51-A(g) of the Constitution states that it is the duty of each and every citizen of India to protect and improve our natural environment including forests, rivers. This Article along with the directive principles puts a joint responsibility on the state and citizens to protect and improve the environment.

Important Cases that Contributed to the Development of Environmental Law

In M.C. Mehta v. Kamal Nath and Others,[12] a petition was filed in the Supreme Court against Span Motel in the state of Himachal Pradesh for the diversion of the course of the Beas river to beautify the motel and also for encroachment of forest land. The court ordered the management of the motel to hand over the forest land to the Government and also a fine of Rs. Ten lakhs. In this case the principle of exemplary damages was propounded.

In M.C. Mehta v. Union of India and Others[13], a petition was initially filed under article 32 against the tanneries located in the city of Kanpur and later extended to the industries located on the banks of Ganga in various cities. They were ordered to stop discharging untreated effluents in the river. The Polluter Pays principle was applied in this case.

In Oleum gas leak case, the petition was filed because against leakage of Oleum gas from Shriram Chlorine plant in Delhi. The Supreme Court held the company, Shriram Foods and Fertilizers Ltd. Liable and punished them heavily. The ‘absolute liability principle’ was propounded in this case, in effect overruling the ‘strict liability principle’ propounded in Rylands v. Fletcher in India.

Conclusion

India is one of the largest emitter of greenhouse gases, third after China and United States. The air pollution reduces the life expectancy among on an average by 3.4 years. There is a need to connect human rights and environment, so as to find a balance between two. It is absolutely essential to formulate laws so that not only the victims are compensated but also the environment is restored to its pristine state. The laws need to be formulated in such a way that the big organizations do not get away with their negligent actions. It is also crucial to connect health and environment for the long term development and well being of the people of the world. The issue of environmental degradation needs to treated as global problem not as a local one. The more we ignore this problem, the more difficult our lives will be. This may not seem to affect today, but it will have enormous repercussions in the long run. The solution is to preserve and improve the environment and each small step by every individual will bring huge outcomes in the long run.

[1] World Health Organisation Report, 2016

[2] National Crime Records Bureau

[3] Ajay Hasia v. Khalid Mujib Shervardi, AIR 1981 SC 487

[4] AIR 1963 SC 1295

[5] Maneka Gandhi vs Union of India, 1978 AIR 597

[6] Bandhua Mukti Morcha v Union of India, 1984 3 SCC 161

[7] Subhas Kumar v. State of Bihar, 1991 AIR 420, 1991 SCR (1) 5

[8] Re:   Noise Pollution Restricting use of loudspeakers, Writ Petition (civil) 72 of 1998

[9] ILR 1991 KAR 133

[10] 1985 SCC (3) 545

[11] MC Mehta (Taj Trapezium Matter) V. Union of India, (1997) 2 SCC 353

[12] W.P. (Civil) No. 182 1996

[13] W.P. (Civil) No. 3727 1985