MINING, BUILDING DAM ETC: – IS STATE CONFORMING TO THE MANDATE OF ARTICLE 48-A?

This article was written by Adrisha, a student of West Bengal National University of Juridical Sciences, Kolkata.

INTRODUCTION

The Constitution of India, 1950, initially did not have direct provisions for the protection of environment. The UN conference on Human Environment (Stockholm, 1972) and global awareness for protection of environment in the seventies prompted the Indian Government to amend the Constitution and enact 42^nd Constitutional Amendment, 1976.[1] The amendment brought Article 48-A to the Directive Principles of State Policy in Part IV and Article 51 A (g) to fundamental duties in Part IVA of the Indian Constitution.[2] Article 48-A[3] states “The state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” By the virtue of the article, it is a duty of the state to protect the environment which consists of air, water, forests and wildlife.[4] It is a commitment for state like India which follows the idea of welfare state. In the wake of Stockholm conference and power under Article 253[5], parliament enacted acts to implement the decisions reached at the conference: Air Act, 1981; Wildlife Act, 1972 ; Water Act, 1974 and the Environment (Protection) Act,1986. The Constitutional provisions and legislations together developed the environmental law jurisprudence in India.

The term “environment” is a broad term which has hygienic atmosphere and ecological balance within its meaning.[6] Environment is the blend of inter-relationships which are complex and makeup surroundings and the condition of life of an individual and of society and affects how they are and how they feel.[7] The harmonious relationship between ecology and environment is the key for the existence of life on earth as environment and life are interrelated. The greatest threat to these environments are industrial   and mining operations.[8] There is a need to maintain a balance between the industrial developments and preservation of natural environment as industrial developments are also necessary for nations and it is a task of the state to keep the ecological balance unaffected.[9] Article 48-A is judicially not enforceable in courts as it is only one of the directive principles of state policy (Hereinafter “DPSP”), but it can enforced by the expansion of interpretation of Article 21.[10] Article 21 per se does not say about fundamental right to clean and wholesome environment, but this comes under the fundamental right to the “enjoyment of pollution free air and water,”[11] which are essentials for the enjoyment of life.[12]

The paper will discuss the effects of mining works, dam building, construction work on environment and steps taken by state for the minimisation of pollution  and whether they are adequate enough to conform to the constitutional mandate for protection of environment under Article 48-A.

EFFECTS OF MINING WORK ON ENVIRONMENT

Mining is the process of extracting valuable minerals and other geological materials, in most cases it is for the non- renewable resources. Miners have great economic interest in the mining deposits. Mining is a prolonged process from exploration of the place to site reclamation and closure, every step creates huge negative impact on the ecological balance and this is the reason mining is considered to be one of the greatest danger to environment. In the first stage of site preparation, even before mining, has significant impact on environment as it requires clearing of land especially in ecologically sensitive areas. The location for mining being in remote areas causes huge deforestation for the construction of roads. For instance, the most abundant form of mining in India which is coal mining, causes deforestation, release of toxic amount of mineral in the soil and water making surface and ground water unfit for the aquatic life and terrestrial wildlife, the effects of mining coal continues even after coal is removed.

EFFECTS OF BUILDING DAM ON ENVIRONMENT

Dams are barriers constructed to stop the natural flow of water and save the water as a reservoir, generally for the utilization of water resources mostly for production of hydro-electricity. The building of dams have multi-faceted impacts on environment  anywhere they are made, irrespective of the location and directly affects the biological, chemical and physical properties of rivers and “stream-side” environments. The walls of dams themselves are the first threat to the fish migration as the spawning and rear habitats get separated, or sometimes, the excavation which alters the riverbed can also destruct egg gravel beds and hence, there is great reduction in fish species and  at times  also lead to extinction of many fish and other invertebrates.[13] Dams trap sediments which are significant for “maintaining physical processes and habitats downstream” which includes fertile flood plains, barrier islands, deltas, and coastal wetlands.[14] The construction of dams also discharges toxic matters which affects the food chain and sensitive animals can’t survive.[15] Dams increase the risk of earthquake due to the filling of big reservoirs with water.[16] The extent of water pollution sometimes, get to the extent that it causes water borne diseases like typhoid fever, malaria, typhus and cholera.[17]

ANALYSIS/ DISCUSSION

As stated earlier, Article 48- A is merely a DPSP and is just a set of guidelines and not judicially enforceable by itself, but can only be enforced through expansion of Article 21.[18]  In the landmark case of Charan v Union of India,[19] SC gives direction to the state that it must take some effective steps to protect the fundamental rights under Article 21 which are right to life, pollution-free air and while implementing these protection the international standards relating to human rights have to be  taken into consideration. In another landmark case of Essar Oil Ltd v  Halar Utkarsh Samiti,[20]  the SC looked into Stockholm declaration  and the principles  in it, and observed that the natural resources of Earth which includes air, water, land, flora and fauna are all necessary for the balance of natural ecosystem. The ecosystem should be safeguarded and preserved for the present and the future generations’ benefits through proper planning and judicial use of the resources. The need for economic and social development cannot be ignored as it is very significant for ensuring the improvement in the quality of life. The court emphasised on the maintenance of balance between the economic development and environmental protection and concluded on the note “there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.” Another landmark decision of Vellore Citizens Welfare Forum v. UOI[21], which recognises “sustainable development” as the answer to the balance between development and ecological balance. In this case, tanneries were producing toxic pollutants in the water body making that unsafe for drinking and also unfit for cultivation. The SC took the issue seriously and directed the state and central government to constitute an authority under Section 3 (3)[22]  and confer all powers on the authorities to deal with the condition created by the tanneries. This shows that even in the presence of legislation, state and central government are not abiding by the act and it is the SC which has to intervene and give guidance for protecting the environment. This case is landmark for one more reason as in this case, SC evolved two principles:  “Polluters Pay principle” and “Precautionary Principle.” These two principles are very important in environmental law jurisprudence. “Precautionary Principle” as the name suggests means- a) Environmental measures taken by “State government and statutory authorities should anticipate, prevent and attack the causes of environmental degradation” (b) threats to serious and irreversible damage cannot be taken as an excuse for postponing the measures to be taken against environmental degradation, c)The “onus of proof “   is  on the actor who causes damage to environment. The other principle of  “Polluter Pays” say that the polluter  has absolute liability and is not only have to pay the compensation to the victims of the pollution but has also to pay the restoration cost  for restoring environmental degradation.

As shown above, the mining has numerous hazardous impact on environment. In the landmark case of   Rural Litigation v State of U.P, [23] the matter of unauthorized and illegal mining in Doon valley, SC ordered that all the fresh quarries to be stopped and for the strict enforcement  of the order, the District Magistrate and superintended of Police was called. The allegations were that the mining operations in the Mussoorie hills and nearby areas were adversely affecting the ecological balance of the area and has led to environmental disturbances. The SC showed grave concern towards the case and appointed Bhargava committee, for the inspection of mines under Metalliferous Mines Regulations, 1961.  The Committee considered ecological issues like land sliding in monsoon season, location of mines and categorised and cancelled the lease of mines affecting the ecology of the hills and only allowed the mines which were located within the municipal limits as the balance has to be maintained between development and protection of the environment. The government gave reasons that limestone is an essential commodity for working of many industries and hence, even knowing that mining operation in Doon valley is disastrous in nature, it continued the operation with strict scrutiny from the mining Committee. But, SC noticed that mining was done in reserved area of the forest and was hence, it was in violation of UP amendment of Forest (Conservation) Act, 1980.Therefore,SC completely banned the mining in that area. The justification given by the SC was “it was a price that had to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimum disturbance of ecological balance and without avoidable hazards to the people and to their cattle, homes and agricultural land and undue affection of air, water and environment.”

In the landmark and famous case of Narmada Bachao Andolan,[24]SC did not stop the construction of  Sardar Sarovar Dam  as it considered that dam is  necessity for the development of the  nation and larger public interest was considered, just the height of the dam was reduced to 90 metres, In pursuance of the order, Gujarat Government built the dam.

The Supreme Court is the one who is directing the central and state government to strictly scrutinise the leases of mining and construction of dams. There is an abundance of legislations related to environment protection and specific legislation regarding forest, wild life, water, air. In spite of  all the legislations, what we say today is gross violation of human rights related to right to clean environment. The negative impacts of mining and dam construction on environment are so many that they outweigh the need of mines and dams for the development of the nation.  India’s cities top the list of “most polluted cities” in the world, the reasons are poor implementation of laws related to environment. Even, after SC directs the stoppage of mines, the absence of checks and balances the states does not stop illegal mining. The other major problem is the doctrine of “polluter pay”, even after compensation is asked from the actor like industrialist/ miner, the amount that they have to pay is so less in comparison to their profits that after paying the payment, they start polluting again. If again some case will be filed, they will again pay the amount and keep on creating harm to the environment. This cycle would be never ending.

CONCLUSION

It can be concluded that the state is in reality not conforming to the mandate of Article 48-A which mandates that state should improve and maintain the environment. Officially, the state is conforming as there are legislations on every factor of the environment, it seems as state is following the regulations. Even if Central government make some stringent rule, till the time it comes to implementation in a state, it becomes lax, also the actor who pollutes like industrialists and state misuse the compensation principle and keep on dis-balancing the ecological balance. It is the duty of every man and the state that environment is healthy then only survival of human would be possible.

[1] vaish associates advocates, vinay vaish, India: Environment Laws In India (August 31,2017) , available at http://www.mondaq.com/india/x/624836/Waste+Management/Environment+Laws+In+India ( Last visited on December 25,2018).

[2] Id.

[3] The Constitution of India, 1950, Art. 48-A.

[4] Mehta v Union of India (II), (1991) 2 SCC 353.

[5] The Constitution of India, 1950, Art. 253.

[6] Virendra Gaur v State of Haryana (1995) 2 SCC 577.

[7] Karnataka Industrial Area Development Board v C. Kenchappa (2006) 6 SCC 371.

[8] Rural Litigation v State of U.P., AIR 1987 SC 359.

[9] Id.

[10] Subhash v State of Bihar, AIR 1991 SC 420.

[11] Charan v Union of India ,(1990) 1 SCC 613.

[12] dd basu,commentary on the constitution of india 4171 ( Justice Y.V Chandrachud ed.,2008)

[13] International Rivers, Environmental Impacts of Dams, available at https://www.internationalrivers.org/environmental-impacts-of-dams (Last visited on December 25, 2018).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Supra Note 10.

[19] Supra Note 11.

[20] Essar Oil Ltd v  Halar Utkarsh Samiti, (2004) 2 SCC 392.

[21] Vellore Citizens Welfare Forum v. UOI, AIR 1996 SC 2715.

[22] The Environmental (Protection) Act, 1986, § 3(3).

[23] Supra Note 8.

[24] Narmada Bachao Andolan v Union of India, (2000) 10  SCC 664.