|Author: Ms. Palak Arora, VIPS|
Constitutionality of environmental law
The Indian constitution is the only constitution that not only tells the citizens their rights and duties but also the government gets to know their powers and functions. This is one of the reasons why our constitution is considered to be the longest constitution. Its provisions clearly State everything but our constitution did not have any specific legislation for environmental laws before 1976. The Indian constitution is silent about environmental laws. In 1976, the government felt the need for such provisions and by the 42nd amendment, 1976 added 2 articles in our constitution which are article 48(a) to part IV and Article 51A(g) to part IV-A of the constitution which clearly States the protection of the environment.
Constitutionality of environmental laws includes:-
- Directive principle of State policies
- Fundamental duties
- Article 21
- Article 14
- Article 19(1)(a)
- Article 19(1)(g)
Directive principles of State policies
Article 48(a) States that:-
“The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
- Kinkri Devi v/s State of Himachal Pradesh
- Petition sort cancellation of mining lease of limestone. As it was endangering and polluting local inhabitants. They were able to enjoy their houses because of sounds, and noxious substances. Their right to the house, which comes under the right to life, was violated. The court directed to stop the mining and to apply the polluter pays principle. This was the first case evolved on any environmental issue.
- T.N. Damodar Rao v/s Municipal Corporation Hyderabad
- Construction of houses for LIC and IT departments on the public path was carried out. It was violating people’s right to enjoyment, comes under the right to life, therefore Court directed to stop such construction.
- M.C Mehta v/s UOI (2002)
- The court directed to convert all the buses of Delhi into CNG buses as buses were causing air pollution.
Article 51A (g) States that:-
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.”
- L.k koolwal v/s State.
- Rajasthan municipal authority (RMA) had the primary duty to clean public streets, places, & sewers for public enjoyment and removal of noxious substances. The plaintiff moved to the High Court under art 226 with the matter to clean sewers. Court ordered RMA to clean within 6 months.
- Sitaram chaparia v/s State of Bihar
- PIL was filed by 5 persons residing in society praying the Court to order the closure of tyre factory in the residential area causing a lot of problems due to harmful fumes and harmful effluents and noxious substances discharged by that factory. Court ordered its closure.
- M.C. Mehta v/s UOI (1992)
- A stone crushing factory was set up in Faridabad which used to create a lot of noise noxious gases and polluted air while stone crushing. The court directed to close it. Polluter pays principle was applied over here.
Article 21: Right to life
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
It is a negative right, not a positive one. It is expanded in two ways, firstly that any law affecting the personal life of an individual should be reasonable, fair and just. Secondly, several liberties come under art 21. Supreme Court interpreted by this second approach that art 21 includes right to an environment which was further interpreted into 2 ways:-
- Right to the wholesome environment:
It means access to a healthy, clean and unpolluted environment which leads to a life of dignity. Every citizen has the right to enjoy the whole environment in the way it feels like but to the extent that he is not harming anyone or the environment.
In rural litigation and Entitlement Kendra, Dehradun v/s State of U.P, a large number of lessees of limestone quarries were involved which was causing pollution of the Mussoorie Hill range forming part of Himalayas. It was creating blocked pipelines in some areas or muddy water in others. It was held that the lessees were not allowing the inhabitants to enjoy the environment. So they were directed to stop the mining and they were asked to rehabilitate the workers of the mining on any other working site and the lessees were directed to even pay the damages they had caused to the environment and the inhabitants (Polluter Pays Principle).
In M.C. Mehta v/s UOI (1988), tanneries were discharging their effluents into Ganga water without treating them properly. Due to which the pollution level of the water was increasing to a great extent. The court directed to stop discharging the effluents into the water without treatment as people were not able to use the water for basic chores violating their right to enjoy the environment, here water.
In M.C. Mehta v/s kamal nath, it was held that any disturbance to the basic elements of environment like air, water, the land would be considered to be the violation of the right to the environment under art 21.
- Right to livelihood
Supreme Court has recognized the right to livelihood under art 21 as of right to life as no one can live without earning a livelihood. Livelihood is the only mean to fulfill the basic needs of life like clothing, shelter, and food. This broad interpretation of ‘right to life’ helps in keeping a check on the governmental actions where they dislocate the poor from their livelihood places or deprive them of their livelihood.
In rural litigation and Entitlement Kendra, Dehradun v/s State of U.P, a large number of lessees of limestone quarries were involved. They were directed to stop the mining and they were asked to rehabilitate the workers of the mining on any other working site and the lessees were directed to even pay the damages they had caused to the environment and the inhabitants (Polluter Pays Principle). in this was right to livelihood of the workers was not violated.
In M.C. Mehta v/s UOI (1996), a PIL was filed to protect the Delhi from the pollution caused by the noxious/hazardous/heavy/large industries operating in Delhi. Court ordered to shut down 168 of such industries and to relocate the remaining to the Delhi National Capital Region (NCR). And in addition to this, the court directed to mitigate the employees of such 168 industries and to pay the compensation to the employees of these 168 industries. In this way, the court safeguards the livelihood of the employees.
In Olga Tellis v/s Bombay Municipal Corporation, the petitioner along with two pavement dwellers challenged the government scheme in which pavement dwellers and slum dwellers were evicted from their habitat which was depriving them of ‘right to livelihood’. So the court directed the Bombay Municipal Corporation to provide an alternate site at a reasonable distance from their original site.
Article 14: Equality before the law
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
This article prohibits the arbitration of laws and arbitration of laws towards citizens. It has two parts:-
- Equality before law
- Equal protection of laws
Article 14 ensures that everyone enjoys the environment equally and whosoever will deteriorate the quality of the environment will be treated by the same law, whosoever is the person. Everybody is equal without being discriminated on the basis of caste, color, creed, religion, power. Everyone has an equal right to access the environment.
Article 14 has been invoked in the case Kinkri devi v/s State of Himachal Pradesh, which involves the indiscriminate grant of mining leases and the unchecked and unscientific exploitation of the mines by the lessees. It was causing deterioration to the Himachal valley and a lot of inconvenience to the inhabitants.
In rural litigation and Entitlement Kendra, Dehradun v/s State of U.P, a large number of lessees of limestone quarries were involved which was causing pollution of the Mussoorie Hill range forming part of Himalayas. It was creating blocked pipelines in some areas or muddy water in others. It was held that the lessees were not allowing the inhabitants to enjoy the environment in the same way as they were making use of it by mining. So they were directed to stop the mining and they were asked to rehabilitate the workers of the mining on any other working site and the lessees were directed to even pay the damages they had caused to the environment and the inhabitants (Polluter Pays Principle).
Article 19(1)(a): Freedom of speech and expressions
“All citizens shall have the right to freedom of speech and expression.”
It says that every citizen has freedom of speech and expression attached with some reasonable restrictions. People express or use this right via public interest litigations (PILs) in which they express their sufferings or the major issues to the judges. Sometimes people write letters to the Courts or file petitions regarding the violation of the right of people to live in a healthy environment.
This article also includes freedom of the press. The press plays a very important role in a nation. It displays the public opinion and even it has an influential role in building up public opinion. Press portraits the social, financial and every problem in the nation. And even people through the press also express themselves via interviews.
- Bijayananda Patra v/s district magistrate
- The issue included noise pollution and it was held that the word ‘Decency’ was interpreted as a ban on using loudspeakers. Article 19(2)’s word ‘decency’ was found justified for the bar.
- P.A. Jacob v/s superintendent of police, Kottayam
- Kerala High Court held that the freedom of speech under art. 19(1)(a) does not include the use of loudspeakers and amplifiers. Thus, noise pollution caused by loudspeakers and sound amplifiers can be controlled by art. 19(1)(a) of the constitution.
- Moulana Mufti Md. Noorur Rehman Barkati v/s State of West Bengal
- Calcutta High Court observed that excessive noise leads to noise pollution. This article read with art. 21 gives every citizen a right to enjoy their life by living in a healthy environment, by sleeping at night and spending some leisure time which all constitute the right to life.
Article 19(1)(g): Freedom of business
“All citizens shall have the right to practice any profession or to carry on any occupation, trade or business”
This says that everyone has the freedom to practice any profession or to carry on any occupation, trade or business but to the extent to which it is not harming anyone or environment. If it does harm anyone or the environment the person causing such harm will be liable to reverse the harm. Every right given to citizens is all restricted to some reasonable restrictions.
Like in rural litigation and Entitlement Kendra, Dehradun v/s State of U.P, a large number of lessees of limestone quarries were involved which was causing pollution of the Mussoorie Hill range forming part of Himalayas. Lessees were carrying on their business but it was harming the inhabitants and environment so they were directed to stop the mining activity and they were asked to rehabilitate the workers of the mining on any other working site and the lessees were directed to even pay the damages they had caused to the environment and the inhabitants (Polluter Pays Principle). They would have been allowed to carry on mining if they were not creating any kind of problem to the environment and citizens.
In Abhilash Textile v/s Rajkot Municipal Corporation, the petitioner was carrying out the business of dying and printing. He filed a PIL against Municipal Commissioner’s order to restrain him for carrying out his business because of the reason that chemicals, effluents were not being discharged properly. They were discharged on land and water bodies causing pollution and problems to inhabitants. Court ordered him to discharge properly or to stop carrying out his business.
Under other provisions include:-
- All three lists. There are three lists which are:
- Union list (97 subjects): union government makes laws and legislation on subjects like national security, atomic, mineral resources, international treaties, miles, oil fields, communication
- State list (66 subjects): State government makes laws and legislation on matters like public health, sanitation, hospitals, water supply, drainage system, agriculture, etc.
- Concurrent list (47 subjects): both central and State governments can make laws on matters like the forest, wildlife, population control, factories, etc.
- Art. 245-263
- Dual government policy: Government is divided into central and State level to govern properly.
Other provisions help the government to make laws on the protection of the environment and wildlife.
Environmental laws help in understanding the importance of the environment and means how to safeguard it. Moreover, it gives an idea about the way how to make the protection of the environment an obligation for citizens.