Constitution of India

& Environment

Introduction
The Concept of environment owes its
genesis to a French word environ which
means encircle, it encompasses within its a
land, water, flora, fauna, living creature,
forest & everything above the earth.
Constitution
is a living document, an
instrument which makes the govt. system
work. Its flexibility lies in its amendment.

Constitution &
Environment
1.The various international efforts initiated
in 1972 with first historic International
Conference on Human Environment.
2. In preparation for meeting each member
state was asked to prepare a Report on the
state of environment.
3.India set up a committee on the human
environment under the chairmanship of
Pitambar pant, a Planning Commission
member.

OUTCOME OF REPORT
The outcome was three reports i.e.
1. on the state of environment
2. on the problem of human settlement
3. on the possible strategies to manage
resources.
Finally
the environmental goals were
incorporated in 5th five year plan .

Legislation such as Wildlife Protection

Act,1972 and Water(prevention & control of
pollution) Act,1974 were passed soon after.
It was realized by India that unless a
nationalized institution for the co-ordination
and control of Environmental policies
established, there would remain a situation
of lacuna.

In 1972 National Council for Environmental

Policy and Planning was set up which was
later evolved into Ministry of Environment
and Forests in 1985.
MoEF along with Central Pollution Control
Board and State Pollution Control Board
together
form
the
regulatory
and
administrative core of the sector.

The policy statement for abatement of

pollution & the national Conservation
Strategy
and
policy
Statement
on
Environment
and
Development
were
brought out by MoEF in 1992.

Indias Efforts to combat

environmental pollution

India
had
joined
the
member
of
international community in their crusade
against environmental problem by first
amending its own fundamental law and
then following it up with the enactment of
several
laws
to
protect
national
environment.

1.In 1976, the Constitution of India was amended

to insert a separate fundamental duties chapter.
2.The Air (Prevention and Control of Pollution) Act
of 1981 was enacted by invoking the Central
Government's power under Art 253.
3.The Air Act contained several distinguishing
features. Also, a notification relating to Noise
Pollution (Regulation & Control) Rules was made
in the year 2000 with the objective of
maintaining Ambient Air Quality Standards in
respect of noise.

In the wake of the Bhopal gas tragedy, the

Government of India enacted the Environment
(Protection) Act, 1986. Against the backdrop of the
United Nations Conference on the Human Environment
held at Stockholm in June 1972, in which India was a
participant,
the
Central
Government
enacted
legislation, The Environment (Protection) Act, 1986,
with an objective for protection and improvement of
the environment and for matters connected therewith.
As per this Act, the Central Government shall have the
power to take all such measures for the purpose of
protecting and improving the quality of the
environment and to prevent environmental pollution.

Apart from this, several notifications and rules have also been
made, some of which include
i. the Hazardous Wastes (Management and Handling) Rules in
1989,
ii. the Biomedical Wastes (Management and Handling) Rules in
1998,
iii. Recycled Plastics (Manufacture and Usage) Rules 1999,
iv. Environment (Silting for Industrial Projects) Rules 1999 and
V. the Municipal Solid Wastes (Management and Handling) Rules
in 2000.
In addition to these eco-specific legislations, realizing that there
is no comprehensive legislation dealing with biodiversity in India,
and to fulfill its international obligation under the Convention on
Bio-Diversity, the Government of India has enacted the Biological
Diversity Act, 2002.

Constitutional Mandate on
Environmental Protection

The Constitution of India originally adopted, did not contain

any direct and specific provision regarding the protection of
natural environment. That is probably why it did not even
contain the expression 'Environment'.
It can be inferred from Article 39(b), Article 47, Article 48 and
Article 49 of the Constitution of India. These directive principles
individually and collectively impose a duty on the State to
create conditions to improve the general health level in the
country and to protect and improve the natural environment.
The Supreme Court in Municipal Council, Ratlam v. Vardhichand
observed that the State will realize that Article 47 makes it a
paramount principle of governance that are steps taken for the
improvement of public health as amongst its primary duties.

Forty-Second Constitutional Amendment

Considering the influence and success of Stockholm Conference and

the growing demand and consciousness, the Indian Constitution was
amended in the year 1976.
This gave it a boost to environmental protection crisis and added to
it direct provisions for the preservation of ecological and biological
diversity.
The 42nd Amendment Act 1976 inserted Article 48A in Part IV of the
Constitution of India which directly imposes a duty on the State by
providing that the State shall endeavor to protect and improve the
environment and to safeguard the forest and wildlife of the Country.
This Amendment Act also inserted Article 51A which imposes 10
duties on the citizens of India. Clause (g) of Article 51A imposes a
duty on the citizens to protect the environment. This clause provides
that it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures.

Role of Judiciary

The judiciary, to fulfill its constitutional obligations was and is always

prepared to issue appropriate orders, directions and writs against those
persons who cause environmental pollution and ecological imbalance.
This is evident from a plethora of cases decided by starting from the
Ratlam Municipality Case.
The Supreme Court, in Rural Litigation and Entitlement Kendra v. State
of U.P. ordered the closure of certain limestone quarries causing large
scale pollution and adversely affecting the safety and health of the
people living in the area.
Likewise, in M.C. Mehta v. Union of India , the Court directed an industry
manufacturing hazardous and lethal chemicals and gases posing
danger to health and life of workmen and people living in its
neighborhood, to take all necessary safety measures before reopening
the plant. Holding that the Government has no power to sanction lease
of the land vested in the Municipality for being used as open space for
public use.

the Supreme Court in Virender Gaur v. State of

Haryana , the Court explicitly held that:
The word environment is of broad spectrum which
brings within its ambit hygienic atmosphere and
ecological balance. It is therefore, not only the duty of
the State but also duty of every citizen to maintain
hygienic environment. The State, in particular has duty
in that behalf and to shed its extravagant unbridled
sovereign power and to forge in its policy to maintain
ecological balance and hygienic environment.
Hence, judicial activism in India provides an impetus to
the campaign against pollution

Right to Environment: A Fundamental Right

One of the earliest formulations of the right

appeared in the concluding document of the UN
Conference on the Human Environment, held in
Stockholm in 1972. Principle 1 of the Stockholm
Declaration stated that:
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 and well-being, and he bears a solemn
responsibility to protect and improve the
environment for present and future generations.

The Indian Supreme Court developed a very

prominent concept of right to healthy environment
as a part of Article 21 of the Indian Constitution
and thus, acknowledging the importance of
international Judicial activism. Supreme Court
under Article 32 and high Courts under Article 226
gave birth to an apex environmental jurisprudence
in the form of fundamental right to healthy
environments, thereby giving birth to an
incomparable environmental jurisprudence in the
form of the constitutional right to healthy
environment.

For the first time in the case of Subash Kumar v. State

of Bihar , the Court declared that the right to life under
Article 21 includes the right to clean water and air. In
the same case, the rule of locus standi was enlarged
so that the Court could take cognizance of
environmental
degradation
and
regulate
the
prevention of the same in an effective manner.
A foundation for the application of the Precautionary
Principle, the Polluter Pays Principle and Sustainable
Development, having been laid down, the three
principles were applied together for the first time in by
the Supreme Court in Vellore Citizens Welfare Forum v.
Union of India

a case concerning pollution being cause due

to the discharge of untreated effluents from
tanneries in the state of Tamil Nadu. The
Court, referring to the precautionary
principle, polluter pays principle and the
new concept of onus of proof, supported
with the constitutional provisions of Articles
21, 47, 48A and 51A (g) and declared that
these doctrines have become part of the
environmental law of the country.

The Public Trust Doctrine, evolved in M.C.

Mehta v. Kamal Nath , states that certain
common properties such as rivers, forests,
seashores and the air were held by
Government in Trusteeship for the free and
unimpeded use of the general public.
Granting lease to a motel located at the bank
of the River Beas would interfere with the
natural flow of the water and that the State
Government had breached the public trust
doctrine.

T.N. Godavarman Thirumulpad v. Union of India , a

case concerning conservation of forests, Justice
Y.K. SABHARWAL, held:
Considering the compulsions of the States and the
depletion of forest, legislative measures have
shifted the responsibility from States to the
Centre. Moreover any threat to the ecology can
lead to violation of the right of enjoyment of
healthy life guaranteed under Article 21, which is
required to be protected. The Constitution enjoins
upon this Court a duty to protect the environment.

The Court has adopted an expanded view of life under Art.

21 and enriched it to include environmental rights by reading
it along with Articles 47, 48-A and 51A(g) and declaring:
Art.21 protects right to life as a fundamental right.
Enjoyment of life and its attainment including their right to
life with human dignity encompasses within its ambit, the
protection and preservation of environment, ecological
balance free from pollution of air and water sanitation
without which life cannot be enjoyed. Any contra acts or
actions would cause environmental, ecological, air, water,
pollution, etc. should be regarded as amounting to violation
of
Art.21.

By 1990s, it categorically declared that issues of

environment must and shall receive the highest
attention from this court.
Indias Green Constitution now guarantees a right
to healthy environment, right to clean air, right to
clean water, enjoins the State and its agencies to
strictly
enforce
environmental
laws
while
disclosing information in respect of decisions
which affect health, life and livelihood and
disallows inadequacy of funds and resources as a
pretext for the evasion of obligations by the State.

in N.D. Jayal v Union of India, a case involving construction of a large

dam at Tehri in Himalayan foothills, where the Court refused to
interfere by emphatically declaring the symbiotic relation between
both these rights in the following words:

Right to environment is a fundamental right. On the other hand, right

to development is also one. Here the right to sustainable
development cannot be singled out. Therefore, the concept of
sustainable development is to be treated as an integral part of life
under Art.21. Weighty concepts like intergenerational equity, public
trust doctrine and precautionary principle, which we declared as
inseparable ingredients of our environmental jurisprudence, could
only be nurtured by ensuring sustainable development.

The initiative taken by the judiciary has introduced transparency

on the issue of clearance of projects and environmental impact
assessment. The constitution has struck the balance between
environment and it's development by initiating the various
principles such as Polluters Pay Principle (PPP) in Indian
Environmental Jurisprudence thereby linking right to clean and
unpolluted environment with right to life under Article 21.
1990 judicial trend gives a much better scenario of the Indian
development model and environment related issues for the
coming generations. The Indian Constitution provides various
methods to protect the environment not only for the people but
also from the people. There is no question that India is still
developing and it needs to tackle the problems of development
but the awareness for the protection of environment at the same
time has been the key point of efforts made by India.