26 Growth and Expansion of Environmental Rights and Duties in India

Dr. K Sita Manikyam

AIMS OF THE CHAPTER:

• Learning about the essence of environmental rights and duties.
• Understanding the obligation of states in protecting the environment.
• Understanding the role of judiciary in the emergence of environmental jurisprudence in India.

1. INTRODUCTION

It is to enlighten that State role have been varying drastically with the time. At one time it was thought that the state was mostly concerned with the maintenance of law and order and the protection of life liberty and property of the subject. These days we are living in a period of a welfare state which has to endorse the wealth and well-being of the people. The thought of welfare state imagined by our constitution can only be achieved if the states make an effort to execute them with a high sagacity of accountability. The correlation between man and his environment is undergoing reflective changes in the wake of modern scientific and technological growths. Healthy environment is also one of the essentials of the welfare state. The constitution of India is not an unmoving, but a living document which develops and produces with time. The exact provisions on environment protection in the constitution are also consequences of this developing nature and growth possibilities of the fundamental law of the land. The preamble to our constitution guarantees socialist model of the society and dignity of the individual. Decent standard of living and pollution free environment is inbuilt in this. In India, from time to time different laws have been passed for the protection of the environment.

2. GROWTH AND EXPANSION OF ENVIRONMENTAL RIGHTS AND DUTIES IN INDIA

The Indian Constitution is the foremost constitution in the world which includes detailed provisions for the protection and improvement of the environment. In outlook of the different constitutional provisions and other statutory provisions connecting to environmental protection, the Supreme Court has held that there should be the necessary principles of sustainable development. This can be able by commanding some of such as the preventive Principle and the Polluter Pays Principle is part of Environmental law of the Country. The protective environment and its enhancement were plainly incorporated into the Constitution by the Constitution (Forty- Second Amendment) Act of 1976. Article 48 A was incorporated to the Directive Principles of State Policy. It says that the State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51 A (g) in a new chapter allowed Fundamental Duties, compel a related duty of every citizen to protect and improve the natural environment together with forests, lakes, rivers and wild life, and to have kindness for the living creature. Simultaneously, the provisions highlight the national harmony on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection.

3. RIGHTS IN THE CONTEXT OF ENVIRONMENTAL PROTECTION

Article 14, 19 and 21 of the Constitution of India dealing with the right to equality, freedom of expression and right to life and personal liberty in that order. All these rights are protected for the people of India under the Constitution of India mainly in Part III dealing with Fundamental Rights. The Supreme Court of India has put in appreciably particularly all through the 80’s in expansion the contents and contours of some of these basic rights. The Right in the perspective of environmental protection is:

3.1. The Right to a Wholesome Environment

The explanation given by the Supreme Court in Maneka Gandhi’s case has added new scope to the idea of personal liberty of an individual. It laid down a rule affecting life and liberty of a person has to stand the analysis of Articles 14 and 19 of the Constitution. In other words, if a law is enacted by a legislature which handles upon the life and liberty of a person and restrains it, then it is a mandatory prerequisite that the procedure recognized by to limit the liberty of a person necessary be reasonable, fair and just. It is this explanation of Article 21 which the court has unmitigated further so as to incorporate the right to a healthy environment. In other words environmental pollution, which plunders the atmosphere and that means affects the life and health of the person has been regarded as amounting to infringement of life and liberty. In Dehradun Quarry’s case (Rural Litigation and Entitlement Kendra vs. State of U.P., AIR 1988 SC 2187) the Supreme Court considered complaints from the rural litigation and entitlement Kendra, Dehradun alleges the operations of limestone quarries in the Mussoorie- Dehradun area resulted in deprivation of the environment affecting the easily broken ecosystems in the area. In this case the Supreme Court moving under Article 32 ordered the closure of some of these quarries on the ground that these were disturbing the ecological stability, though the judgment did not make a reference to Article 21 but connecting of jurisdiction by the court under Article 32 presupposed the infringement of the right to life guaranteed under Article 21.

3.2. Right to Livelihood

The judicial explanation has further broadened the extent and ambit of Article 21 and now right to life includes the right to livelihood. The right to livelihood as a part of the right to life under Article 21 was accepted by the Supreme Court in Olga Tellis vs. Bombay Municipal Corporation (AIR 1980 SC 180). In this case, the petitioners, a journalist and two pavement dwellers challenged the governmental Scheme by which the pavement dwellers were being removed from the Bombay pavements. The main arguments advanced on behalf of the petitioners was that expelling a pavement dweller or slum dweller from his habitat amounts to depriving him of his right to livelihood, which is realized with the right guaranteed by Article 21 of the Constitution as deficiency of their livelihood would equivalent to deprivation of their life and hence unconstitutional. It was again disputed that no person can be underprivileged of his life except according to the procedure established by law which has to be just, fair and reasonable. The petitioner also contended that the State is under a responsibility to supply citizens the necessities of life and, in appropriate cases; the courts have the power to issue orders directing the state by positive action, to encourage and protect the right to life. Social obligation is the ideal of our constitution, which defines the conditions under which liberty has to be enjoyed and justice has to administer. Consequently, directive principles those are fundamental in the governance of the country have to provide as a bonfire light to the enlightenment of the constitutional provisions . If the right to livelihood is not cared for as a piece of the constitutional right to life, the simple way of depriving a person of his right to life would be to taking away him of his means of livelihood to the point of abrogation. Such removal would not only discover the life of its effective, fulfilled and meaningfulness, but it would make life not possible to live. The State may not by beneficial action, be duty-bound to offer enough means of livelihood or work to the citizens. But, every person who is depressed of his right to a livelihood except for according to just and fair procedure established by law, can face up to the deprivation as offending the right to life presented by Article 21. The decision of the Supreme Court it is clear that growth is not negating to the environment. Though, uncaring development could cause avoidable damage to the environment as well as it can deprive the people of their right to livelihood.

3.3. Right to Equality

Article 14 of the Constitution, which states that The State shall not reject any person equality before the law or the equal safety of the laws in the territory of India guarantees the right to equality. This article is the principle instrument to strike at the uncertainty of an action should it engage a negation of the right to equality. The right to equality as preserving in Article 14 of the Constitution may be infringed by government decisions which may have an impact on the environment, particularly in cases, where permissions are arbitrary granted, for instance, for construction, that are in contradistinction of development regulations or for mining without adequate approval of environmentally damaging penalty. Environmentally aware groups have resorted to taking legal proceedings under Article 14 to defy the constitutional validity of the arbitrary official sanctions in such matters. Thus, Article 14 can be used as a strong weapon against governmental decisions intimidating the environment.

The Indian Constitution is perhaps one of the rare Constitution of the world which reflects the Human Rights approach to environment protection through various constitutional mandates. In India the concern for environment protection has not only been raised to the status of fundamental law of the land, but it is also wedded with the human right of every individual to live in pollution free environment with full human dignity. The Constitution of India obligates the State as well as citizens to protect and improve the environment. The Permanent Peoples Tribunal regards the ant humanitarian effect of industrial and environmental hazards, not as an unavoidable part of the existing industrial system, but rather a pervasive and organized violation of the most fundamental rights of Humanity. Since, most among them are the right to life, health, expression and access to justice. R.L. And E. Kendra vs. State of U.P. (AIR 1985 SC 652) is a landmark case which demonstrates the activist role of the Supreme Court with regard to environmental issues. In this case, the Supreme Court entertained the environmental complaints alleging that the operation of lime- stone quarries in the Himalaya range of Mussoorie resulted in degradation of the environment affecting ecological balance.

4. OBLIGATION ON THE STATE IN CONTEXT OF ENVIRONMENTAL PROTECTION

We will see the state obligation to protect the environment. The directive principles of state policy contained in part IV of the constitution set out the aims and objectives to be taken up by the states in the governance of the country. The Directive principles under the Indian constitution directed towards ideals of building the welfare state. The directive principles laid down certain economic and social policies to be pursued by the various governments in India; they impose certain obligations on the state to take positive action in certain directions in order to promote and protect a healthy environment for promoting the welfare of the people. Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The improvement of public health also includes the protection and improvement of environment without which public health can not b e assured. Article 48 deals with organization of agriculture and animal husbandry. It directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. In particular, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other mulch and draught cattle. Article 48 -A of the constitution says that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.

4.1. Ownership and control of the material resources of the community

Article 39 (b) of the Constitution of India provides that the State shall direct its policy to see that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The term material resources of the community embrace all things, which are capable of producing wealth for the community. The expressions „material resources of the community have been held to include such resources in the hands of the private persons and not only those, which have already vested in the state. The constitution of India through Article 42 has directed the state to endeavor to secure just and human conditions of work.

4.2. Standard of living and improve public health

Under Article 47 it imposes a duty upon the state to raise the level of nutrition and the standard of living of its people and improve public health. The Supreme Court in Municipal Council, Ratlam vs. Vardhichand (AIR 1980 SC 1622) observed, “The State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.”

4.3. Preserving and improving the breeds

Article 48 directs the state to take to organize agriculture and animal husbandry on modern and scientific lines. In particular, it is directed to take steps for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other milch and draught cattle. Article 48A which was added to the constitution by the constitution of India 42nd Amendment Act in the year 1976, expressly directs the State to “to protect and improve the environment and to safeguard forests and wildlife. The Madras high court in M. K. Janardhanam vs District Collector, Tiruvallur (2003-1- LW.262) observed that the phrase used (in Articles 48A and 51A) is protect and improve which implies that the phrase appears to contemplate affirmative governmental action to improve the quality of the environment and not just to preserve the environment in its degraded form.

4.4. Protection to monument or place or object or historic interest

The state is also required under Article 49 to protect every monument or place or object of artistic or historic interest (declared by or under law made by Parliament), to be of national importance from spoliation, disfigurement, destruction, removal, disposal or export.

4.5. Article 37 & Article 51

Most important of all articles is Article 37 which declares that the directive principles contained in Part IV of the Constitution are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. Article 51 provides that the State should strive to foster respect for international law and treaty obligation.

5. DUTY ON CITIZENS IN CONTEXT OF ENVIRONMENTAL PROTECTION

5.1. The duty to protect and improve the natural environment

Now, we see the duties imposed by the constitution. The chapter IV A on fundamental duties of the Indian Constitution clearly imposes duty of every citizen to protect environment. Article 51-A (g), says 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.

The Rajasthan High Court in Vijay Singh Puniya Vs State of Rajasthan (AIR 2004 Raj 1) observed that any person who disturbs the ecological balance or degrades, pollutes and tinkers with the gifts of the nature such as air, water, river, sea and other elements of the nature, he not only violates the fundamental right guaranteed under Article 21 of the Constitution but also breaches the fundamental duty to protect the environment under Article 51 A (g). This observation was made in a writ petition filed against dyeing and printing units, which were discharging effluents and polluting the water sources used for agricultural and drinking purposes. Various legislative and administrative measures adopted by the Government both the Sate and the Central show its serious concern for protecting the environment. Judicial activism in India provides impetus to the campaign against pollution.

6. CONCLUSION

Finally, we can perceive: Environment protection is part of our cultural values and tradition. The earth is our paradise and it is our duty to protect our paradise. The constitution of India embodies the framework of protection and preservation of nature without which life cannot be enjoyed. The knowledge of constitutional provisions regarding environment protection is need of the day to bring greater public participation, environmental awareness, and environmental education and sensitize the people to preserve the ecology and environment. The Supreme Court entertained the Writ Petitions under Article 32 regarding the environmental issues and ordered the closure of some of these quarries on the ground that their operation was upsetting the ecological balance. In other words, the Supreme Court reads, and rightly so, Article 48- A into article 21 of the constitution and regarded the right to live in a healthy environment as a part of life and personal liberty of the people. One of the most innovative parts of the Constitution is that Right to enforce the fundamental rights by moving the Supreme Court is itself a fundamental right under Article 32 of the Constitution. Writ Jurisdiction is granted to the Supreme Court under Article 32 and on all the High Court‟s under Article 226 of the Indian Constitution. Generally, environmental law provides for a system of regulation by statues. However, in India, most of the environmental jurisprudence has been developed through the writ jurisdiction. Judicial activism and the development of the concept of public interest litigation (PIL) under the writ jurisdiction of the Supreme Court and the High Courts have brought a mutational change in procession jurisdiction and it has played an essential role in developing and providing impetus to Environment Jurisprudence with Human Rights approach.

REFERENCES

1. A.K. Tiwari, Environmental Laws in India, Deep and Deep Publications, New Delhi, Pg- 25.
2. C. Raj Kumar, K. Chock Alingam, Human Rights, Justice and Constitutional Empowerment, Oxford University Press, Pg.310-334.
3. Kailash Thakur, Environment Protection Law and Policy In India, Deep and Deep Publications, New Delhi, Pg. 204.
4. P.S. Jaswal, Nishta Jaswal, Environmental Law, Allahabad Law Agency, Faridabad (Haryana), Pg.40-51.
5. Shyam Divan, Armin Rosen, Environmental Law and Policy in India, Second Edition, Oxford University Press, New Delhi, Pg. 40-47.
6. S. Shantha Kumar‟s, Introduction to Environmental Law, LexisNexis Butterworths Wadhwa Publication, Nagpur, Pg. 85-100.
7. Vellore Citizens‟ Welfare Forum v. Union of India, (1996) 5 SCC 647 at 659- 660 (This case is popularly known as T.N.Tanneries Case).
8. Shyam Divan, Armin Rosencranz, Environmental Law and Policy in India Cases, Materials and Statutes, Oxford University Press, Pg.40-47.