AMITY LAW SCHOOL NOIDA

PROJECT TOPICRIGHT TO
LIFE,ENVIRONMENT
AND DUE
PROCESS:A
CRITICAL STUDY
SUBJECT:COMPARITIVE PUBLIC LAW

SUBMITTED TOMR.ASHWINI PANT

FACULTY ALS

SUBMITTED BYSHIVIKA RANA

LLM(IEL),Ist SEM
Enrollment no-

CHAPTERIZATION
CHAPTER 1:INTRODUCTION
CHAPTER 2:CONCEPT OF RIGHT TO LIFE

CHAPTER 3:ROLE OF INDIAN JUDICIARY

CHAPTER 4:RIGHT TO ENVIRONMENT V RIGHT TO DEVELOPMENT
CHAPTER 5 CONCLUSION AND RECOMMENDATION
BIBLIOGRAPHY

CHAPTER 1:INTRODUCTION
The indian constitution is seen as a charter or document which reflects the aspirations
of the people of india.Apart from directing several directives to the state with respect
to fundamental right,it has several other directives also.The framers of the constitution
of india had envisaged a judiciary with the capacity to meet the demands of the people

not only because of the violation of the rights given in the constitution but also of
other rights not specifically given in constitution.Thus it has helped to include several
rights that were not originally given in the constitution.The right to environment is
one of them.
Though the concept of justice is not easy to define ,the constitution of india includes
the right to social justice .The courts have included it as a fundamental right and not
merely a guiding principle.The development of constitutional jurisprudence on
environmental law has been possible because the court has taken the function of
interpreting the constitution towards the continuous socio-economic empowerment of
the poor.1
Life and Environment: Life, livelihoods, culture and society, are fundamental
aspects of human existence, hence their maintenance and enhancement is a
fundamental human right. Destruction of environment and thereby of the natural
resources, is therefore, a violation or leads to the violation of human rights, directly
by undermining the above aspects of human existence, or indirectly by leading to
other violations of human rights, for example through social disruption, conflicts and
even war. Conversely, human rights violations of other kinds can lead to
environmental destruction, for instance, displacement by social strife/war can cause
environmental damage in areas of relocation; or breakdown in sustainable common
property management. The manifestations of such violations present themselves
through a loss of access to clean air and water; loss of access to productive land; loss
of energy sources and biomass; loss of food and health security; social and economic
marginalization; and physical displacement. Several hundred million people have
been increasingly forced to live far below the minimum levels required for a decent
human existence, deprived of adequate water, food, clothing, shelter and education,
health and sanitation. Development, which was supposed to alleviate such problems,
has often increased them, especially by allowing the powerful sections of society to
appropriate the natural resources of poor and resource-dependent people.2
THE RIGHT TO ENVIRONMENT AS A SOCIAL RIGHTThe right to environment following from stockholm declaration has been included as
part of right to life.The move signifies a fundamental shift in understanding of
environmental issues because the only provisions in the indian constitution were
fundamental duties,which was now being formulated as fundamental right against the
state.this also brings in light the fact that social and economic issues are linked to
issue of environment.This also highlights the fact that the states role does not end
with making laws ,there is an additional burden on the state to seek environmental
justice.The environmental justice has to be understand in terms of social justice,as the
state would be neglecting its role of social justice if it adopts the role of protecting
national economy in the era of globalization.The traditional argument with regard to
environment in development versus the environment,has been replaced by the concept
of sustainable development which has a focus on development witha human face I.e
development must not be at the cost of human suffering.

Consumer education and research centre and others v union of india AIR 1995 sc 922

Document of stockholm declaration

Once the right to sustainable development has been recognizes by judiciary as part of
fundamental right to life,the right to environment has grown into several rights many
of which are social and economic rights
NEW ENVIRONMENTAL RIGHTS:ACCESS TO BASIC AMNITIES
In APPCB V M.V NAYUDU3 the court ruled,
Drinking water is of primary importance in any country.Infact india is a party of
resolution of UNO passed during the united nations water conference in 1977 as
under:All people whatever their stage of development and their social and economic
condition have the right to access to drinking water in quantum and of quality equal to
their basic needs.
Thus the right to access to drinking water is a fundamental right and there is a duty on
state under article 21 to provide clean drinking water to its citizen.Referring to the
NARMADA CASE the court observed:
Water is the basic need for the survival of human beings and is part of right to life
and human rights as enrished in article 21 of the constitution of india.
Thus understanding from the above the right to environment an intergral component
of right to life,the Supreme Court has developed it further into bundle of rights
including right to clean air,clean water and right against hazardous case.4
OTHER FUNDAMENTAL RIGHTS AND RIGHT TO ENVIRONMENT:
Right to livelihood
Another aspect of right to life,the right to livelihood can check governmental actions
which have an environmental impact which threaten to dislocate people and disrupt
their lifestyleThe morse report on sardar sarovar project on narmada river notes that
the record of resettlement and rehabilitation in india has been unsatisfactory in almost
every project which has a large resettlement aspect to it.
In Banwasi Seva Ashram case5 the S.C of india laid down safeguards to protect the
tribal people who were being ousted from their land by NTPC for Rehand super
thermal power project.The court permitted acquisition of land only after NTPC agreed
to provide facilities to the tribal as laid down by the S.C.
In Consumer education and research centre and others vs union of india 6said that
preamble and article 38 of the indian constituion envisions social justice as its tool to
ensure life to be meaningful and livable with human dignity.The constitution
commands justice,liberty,equality and dignity of a person are essential of a
democracy.The concept social justice consists of diverse principle which are essential
for a oderly growth of personality of every individual.Social justice is thus an integral
part of justice in generic sense.Justice is the genus and social justice is the
specie.social justice is a device to mitigate the sufferings of the poor,weak to raise
them to the level of equality to live life with dignity,

3
4
5
6

20019(2)SCC 62
Vellore citizen case,the NBA case air 2000 sc 3251,CNG case air 2002(4)scc 356
Air 1987 sc 374
AIR 1995

The court in this manner by interpreting article 21, said that right to life includes right
to clean environment which in itself includes right to health.
Therefore we hold that right to health,medical aid to protect the health of workmen
while in service or post retirement is a fundamental right under article 21 to make the
life of a worker meaningful and to be able to live with dignity.
II. International scenario
The human conference on human environment held at Stockholm in 1972 had
considered the need for solving the problem of environmental conservation and
protection at international level.It had considered the need for common outlook to
inspire and guide the people of the world in the preservation and enhancement of the
human environment.The declaration proclaimed that the natural and man made
aspects of mans environment were essential to his well being and the basic human
rights even right to life itself.It also stated that the protection and improvement was
noe became a major issue which affects the well-being of people and economic
development through the world and it was the urgent desire of the peoples of the
whole world and the duty of all governments.
Popularly called as the Magna Carta of human environment warned that the natural
resources of the Earth including air, water, land, flaura and fauna and especially the
representative sample of natural ecosystem must be safeguarded for the benefit of the
present and future generations through careful planning or management as
appropriate.
The declaration also noted also noted with concern the growing evidence of man
made harm in many regions of the earth such as dangerous levels of pollution in the
water,air,earth and living things;major and undesirable disturbances to the ecological
balancedestruction and depletion of resources etc.The declaration also insisted that
defending and conserving human environment for present and future generations had
become an imperative goal for mankind and called upon the government and the
people to exert common efforts for preservation and improvement of the human
environment for the benefit of all the people and for their prosperity.
In india the declaration has been adopted by way of 42 nd amendment to the
constitution by incorporationg article 48-A chapter iv of D.P.S.P AND ARTICLE
51A(g)
1.Article 48A provides protection and improvement of environment and safeguarding
of forest and wildlife of the country is the duty of the state.
2.Artice 51 provides it shall be duty of every citizen of india to protect and improve
the natural environment including forest,lakes,rivers and wildlife and to have
compassion for living creatures.
The stockholm declaration had 25 principles and one of the most important principle
was principle 1 which said that right to clean environment is a basic human right and
is part of right to life.It was the first ever document to include right to clean
environment as a basic human right.It had been made clear under principle 1 of the
declaration that man had the fundamental right to freedom,equality and adequate
conditions of life,in an environment of quality that permits a life of dignity and well
bwing and bore solemn responsibility to protect and improve the environment for
present and future generations

The report on the World Commission on Environment and Development suggested 22

legal principles for environmental protection and sustainable development. Caring
for the Earth 1991 and the Earth Summit of 1992 also declared that human beings
are entitled to a healthy and productive life in harmony with nature.
III. Indian scenario
Although the real panic in India came to be felt only after the Bhopal gas tragedy in
1984, yet it began concentrating on the problem of pollution soon after the Stockholm
conference. India parliament passed many statutes to protect and improve the
environment
1.Wildlife (protection) Act, 1972
2.Water (prevention and control of pollution) Act, 1974
3.the forest (conservation) Act, 1989
4.the air (prevention and control of pollution) Act,1981
5.and above all the Environment (protection) Act, 1986.
Further the constitutional (forty-second Amendment) Act, 1976 incorporated two
significant articles viz. Article 48-A and 51A (g) thereby making the
Indian Constitution the first in the world conferring constitutional status to the
environment protection.Even before the amendment to the constitution,the concern
for the protection of environment was articulated in the 4 th Five Year Plan(196974)document.The plan drew pointed out words:
It is an obligation of each generation to maintain the productive capacity of
land,air ,water and wildlife in a manner which leaves its successors some choice in the
creation of healthy environment.The physical environment is a dynamic,complex and
interconnectednsystem in which action in any part affect others.There is also the
interdependence of living things
An international conference on Environmental education was conducted at New Delhi
which called for a massive programme on environmental education, research and
monitoring emphasizing on the need for both formal and informal education, which
should start right from the childhood stressing for the need of governmental and
nongovernmental organizations and specialized institutions to come forward for
teaching and training towards protection of the environment.
The Penal Code too at that time contained provisions making pollution a crime.
-Section 277 relates to water pollution.
-Section 278 relates to water pollution
-Section 426, 430, 431 and 432 relates to pollution in general.
-Section 368 talks about public nuisance where under noise pollution can inter alia
be controlled.
The concern for an integrated environment in the context for planning for economic
development was specifically raised in the fourth five year plan, which mainly talked
about the obligation of each generation to have a sustainable development and also
about the inter- dependence of living things and their relationship with land, air and
water.
The National Committee on Environmental Planning and Coordination (NCEPC) was
established in February, 1972 and within its purview were covered several

environmental projects like human settlements, planning, survey of natural ecosystems, like wetlands and spreading of environmental awareness. In every State and
in Union Territories environmental boards have eventually been set up and the major
object of the committee was to advise on environmental problems and to make
recommendations for their improvement. This office was finally made the
Environment Division of the Department of Science and Technology.
Another Committee, designated as the Tiwari Committee came to be set up in 1980
(also referred to as the committee for environmental protection). It not only
considered the laws which protect the environment but also the 200 odd laws which in
their functioning didnt virtually protect the environment. In its review it noted the
following major short comings:- Most of such laws had become outdated.
-The laws lacked the statements of explicit policy objectives.
-The laws lacked adequate provisions for helping the machinery for their
implementation.
-The laws were mutually inconsistent.
-There was no procedure for reviewing the efficiency of those laws7

CHAPTER 2-CONCEPT OF RIGHT TO LIFE

Article 21 of the Constitution of India deals with the protection of life and personal
liberty enshrined under the fundamental rights.
http://www.nepalnews.com/home/index.php/guest-column/19926-the-right-to-healthyenvironment-.htm
7

This article states that-No person shall be deprived of his life or personal liberty
except according to procedure established by law.
This article is considered to be the most important article of all. Although all articles
are equally important but since it deals with our life which is the foremost thing for
individual and also all other rights of the individual revolve around this article, that is
why, it is very important. Though the phraseology of Article 21 starts with negative
word but the word No has been used in relation to the word deprived. The right to
life is difficult to define as it is not just taking away one's life rather it has a much
wider application.
Earlier the scope of Article 21 was a bit narrow as it was held in the A.K. Gopalan vs.
State of Madras that the personal liberty was confined to freedom of detention and
therefore, deprivation does not restrict upon the right to move freely which came
under article 19 (1) (d). But then the case of Maneka Gandhi vs. Union of India came
which resolved the issue of reasonableness of law with respect to article 14 and 19
and held that the procedure must be right, fair and not arbitrary, fanciful or
oppressive.
Then further it was argued that the life' in Article 21 does not mean merely animal
existence' but living with human dignity'. In the case of Francis Coralie vs. Union
territory of Delhi8, it was held that the right to life includes the right to live with
human dignity which further incorporates basic necessities like adequate nutrition,
clothing and shelter and facilities for reading writing and expressing oneself, freely
moving and mixing and commingle with fellow human beings. Also, the minimum
requirements like protection of the health and strength of the workers and of the
children against abuse, educational facilities, just and humane conditions of work and
maternity relief, etc must exist for a person to live with dignity. Then from there
onwards, Courts went on discussing cases about the right to life and thus, widened the
concept of Article 21. Now it includes right to food, water, shelter, clean environment,
education, medical care, privacy, etc.
So, the Article 21 is actually like a mini constitution and it was mentioned in the case
of Unni Krishnan vs. State of Andhra Pradesh9that the Article 21 is the heart of the
Fundamental Rights.
So, the main object of this article is to prevent one's personal liberty and deprivation
of one's life against the acts of the State and the procedure of law has to be strictly
followed. But in my paper, since I am concerned with the right to clean environment
within the ambit of Article 21of the Constitution, so my entire focus now will be on
the relationship of environment with right to life. But again before actually dealing
with relationship, I would like to throw light on the basic background of
environment.10
Background Of Environment:
The term environment' cannot be defined precisely as it is linked with many subjects
like ecology, biology, geography physiology, psychology etc. But, in the layman
terms, environment can be defined as the surroundings like natural resources,
8
9

1981(1) SCC 608

A.I.R. 1993 SC 2178

10

Costitutional development through judicial process,,by professor G.MANOHAR RAO

atmosphere, water bodies, etc in which an individual or an organism lives. According

to Einstein, the environment is everything that isn't me. The resources form an
important part of an individual's life. Not only individuals but also animals are
dependent on the environment to fulfil their needs. Man is constantly interacting with
the environment in order to fulfil his needs. These needs include the basic needs of
oxygen, food and shelter in addition to the social needs like entertainment, medicines,
etc.
In the earlier periods (Vedic period), the environment had been seen altogether
differently. There were ethical rules behind environment. According to S.C. Shastri,
The main motto of social life since Vedic period was to live in harmony with
Nature'. People used to worship plants, trees, Mother Earth, sky, water, air and
animals so as to be kind to everything. The Hindu religion enshrined a respect for
Nature, environmental harmony and conversation. The philosophy behind it was that
these all are creations of God, so destruction of nature means destruction of
mankind.
In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh11, it
was mentioned that, air and water are the most indispensable gifts of Nature for
preservation of life. In ancient times, trees were worshipped as gods and forests were
necessary for mankind as they provided shelter. The world is considered to be the
beloved place as it has the blessings of nature's bounties.
The crux is that in the ancient times, environment was considered to be an inseparable
part of one's life as a healthy environment is absolutely necessary for the well-being
of all organisms. All our needs, big and small are being met by the environment only.
However, now the position is changed. With the time, man's needs has also increased,
he has become greedy. Man has felt the urge to transform his surroundings to meet his
increasing material needs and desires. He started exploiting the resources of the earth
and has been transformed from preserver to destroyer. The problem of pollution is one
which concerns most as it has gained threatening position. So, the need has been felt
to look into this matter seriously and for that purpose our judiciary has tried to do a
lot.12

Environment And The Life:

In order to proceed further it was necessary to present the picture of Article 21 and
environment in general. Environment and life are interrelated and the existence of
life on earth depends on the harmonious relationship between ecosystem and
environment. Every individual, from the moment of his birth, acquires certain rights.
One such right is the right to live in a clean environment.
While framing the Constitution of India, there was no mention of specific provision
relating to the protection of environment or conservation of nature. The problems
were prevalent in the earlier times also but they were very acute as the living of the
people was simple and there were not much industries, transport facilities etc. but now
with the advancement in technology and sciences, the problems have become grave.
In India, around 70% of the population directly depends on the land-based
occupations, forests, wetlands and marine habitats, for basic subsistence requirements
11
12

AIR 1985 SCC 652

http://www.lawteacher.net/free-law-essays/human-rights/right-to-clean-environment.php

with regards to water, food, fuel, housing, fodder and medicines as also for ecological
livelihoods and cultural sustenance.
The first milestone reflecting an international consensus on the nature and scope of
the environment challenge confronting world community was the Stockholm
Conference. The declaration does not provide for the definition of environment. The
main gist of the declaration is the 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 generation. The conference takes into account the
fact that the environment may challenge the very existence of mankind as it has an
immense impact on the life of human kind and sustainable modification or harm.
The principle of sustainable development' came to be recognised in this declaration
which says that there must be a balance between development and ecology.
Economic development without environmental considerations can cause serious
environmental damage affecting the quality of life of the population, both present and
future. Therefore, there is an urgent need to maintain a balance between the demands
of development and the levels of environmental protection in order to ensure
sustainable development. Since pollution is the major cause of environmental
degradation and of imbalance, so, pollution control will be of greater significance for
sustainable development.13
Some of the basic principles of sustainable development include:
1.Inter-Generation Equity which talks about the right of every generation as the
most important principle of sustainable Development'.
2.The Precautionary Principle: this principle has been considers as the most
important principle of sustainable development. It means3.Environmental measures by the state government and the local authority must
anticipate, prevent and attack the causes of environmental degradation.
4.Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation.
5.The onus of proof' is on the actor or the developer to proof that his action is
environmentally benign.
6.Polluter pays principle: it is quite obvious that the object of the above principle
was to make the polluter liable not only for the compensation to the victims but also
for the cost of restoring of environmental degradation. Once the actor is proved to be
guilty, he is liable to compensate for his act irrelevant of the fact that whether he is
involved in development process or not.

13

Indrajit Dube, Environmental Jurisprudence: Polluter's Liability, Lexis Nexis

Butterworths.

The two principles, that is, the polluter pays principle and the precautionary principle
came to be recognised in the case of Vellore Citizen's Welfare Forum vs. Union of
India14. In this case, water pollution has been caused by the tanneries.
The Supreme Court recognized the common law right of the people to a
clean and healthy environment and awarded compensation to the victims of pollution
on the basis of the precautionary principle' and the polluter pays principle' and also
held that these both principles are a part of the environment.
ENVIRONMENT AND INDIAN CONSTITUION
The Constitution of India is the main source of incorporating right to clean
environment. Though the other important work of legislation is the Environment
(Protection) Act, 1986 which provides a framework of coordination of activities
between the Central government and the State government to prevent and control
environmental pollution and degradation. Since the need for the protection of
environment has been felt, so in this regard the two major developments have been
take place in our Constitution.
First development took place when
1.the Constitution (42nd Amendment) act, 1976, was adopted.
2.2.Part IV: Directive Principles of State Policy (Article 48 A) provides for
protection and improvement and safeguarding of forests and wild life: The state shall
endeavour to protect and improve the environment and to safeguard the forests and
wild life of the country.
3.3.Part IV-A: Fundamental duties (article 51-A): It shall be the duty of every
citizen of India - (g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures.
4.Seventh schedule (Article 24) List III - Concurrent List Item no. 17 Prevention of
cruelty to animals, Item no. 17 A Forests, Item no. 17 B Protection of wild animals
and birds.
The second major development related to the article 21 of the Constitution of India
dealing with the right to life'. The concept of the right to life has been broadened
through the judicial pronouncements. While resolving cases relating to environment,
the judiciary considered the right to clean or good environment as fundamental to life
and upheld as fundamental right.15
In my paper, I am discussing the right to clean environment with respect to the
provisions of Article 21 of the Constitution. The evolution of the right to health
under Article 21 is invariably linked with the right to a clean environment, no less
because without the latter the former was impossible. Earlier there was a time when
people thought of the environment, they thought of its beauty, they used to maintain
greenery, and most of the time they used to spend in the fresh air, in a sense, there was
an interaction between the environment and the men. But with the growth of
civilised society, man has become more and more materialistic and in his endeavour
to conquer the earth and establish his supremacy, unfortunately, he lost sight of the
need to protect and conserve the natural resources.
AIR 1996 SC 2175
http://www.lawteacher.net/free-law-essays/human-rights/right-to-cleanenvironment.phphttp://www.lawteacher.net/free-law-essays/human-rights/right-to-cleanenvironment.php
14
15

In the whole process, some of the people do not understand the adverse effects of their
harmful activities and as a result of those few, innocent people have to suffer. They
are being deprived of their right to life. Central to all the issues is pollution', which
involves the introduction of harmful substances into the air, land, and water. Although
this problem of pollution is not a new one but the only difference is that it was not that
acute problem as it is now and therefore, it is much recognised now. Pollution has a
direct impact on one's health, thereby, degrading one's life.
The Scholar Shubhankar Dam in his article talks about the risks posed by the
households, the workplace, outdoors and transportation to the health:
The air which people breathe is of poor quality because of pollution all around
in the environment, thereby, causing hazards like acute respiratory diseases. The air
pollution contains different harmful chemical variants like carbon dioxide,
hydrocarbons, sulphur and nitrogen dioxide etc. when people are exposed to such air,
then it can cause lung cancer, respiratory infections, etc. because of these harmful
chemicals. Noise pollution is associated with miscarriages, physical deformities,
deafness, hypertension, etc.
The backbone of these is relevant provisions in Indias Constitution. The Constitution
of India, 1950, did not include any specific provision relating to environment
protection or nature conservation. Presumably, the acute environmental problems
being faced now in the country were not visualized by the framers of the Constitution.
However, the past five decades have witnessed two major developments in this
connection. The first development took place when the Constitution (Forty-second
Amendment) Act, 1976, was adopted in the mid-seventies. Specific provisions
relating to certain aspects of the environment, more especially for the protection of the
forests and wildlife in the country, were incorporated in Part IV- Directive Principles
of the State Policy and List III The Concurrent List of the Seventh Schedule of
the Constitution. As a result, the Constitution has now the following provisions
specifically relating to environment protection and nature conservation: Part IV:
Directive Principles of State Policy (Article 48A): Protection and improvement and
safeguarding of forests and wild life: The State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the country. Part
IV-A: Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India
(g) to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures. Seventh Schedule (Article
246) List III - Concurrent List Item no. 17 Prevention of cruelty to animals, Item no.
17A Forests, Item no. 17B Protection of wild animals and birds.16
Article 21 and Right to Pollution free environment: The second major development
has been the jurisprudence arising from certain remarkable judicial pronouncements
in recent years, more specially relating to Article 21 of the Constitution dealing with
the right to life. If one is asked which is the most important of all the articles in the
Indian Constitution, one can only say - Article 21, which says no persons shall be
deprived of his life and liberty which is the guiding light of India. All the other
articles are subservient to this. In other words all articles have been formulated for
keeping up this theme song of the Indian Constitution 'life and liberty' no person, not
See Shyam Divan and Armin Rosencrantz, Environmental Law and Policy in India: Cases, Materials
and Statutes.
16

just a citizen ,no person in India shall be deprived of life and liberty. It is not included
as a mere platitude because over the years this article, which was a throbbing article,
which was the most dynamic of all articles gathered flesh and with the help of Article
21 - the life and liberty of individuals are protected. 17Article 21 is the celebrity
provision of the Indian Constitution and occupies a unique place as a fundamental
right for the people of India. It protects the life and personal liberty. It envisages and
aims that no person shall be deprived of his life or personal liberty except to a
procedure established by law. Here, right to life includes right to health, right to food,
right to pollution free environment, etc. In simple words, Article 21 provides an
inbuilt guarantee to a person for right to live with human dignity
Article 21 of the Indian Constitution states: No person shall be deprived of his life or
personal liberty except according to procedures established by law. Article 21 is the
heart of all other fundamental rights. Article 21 has very expansive scope and has
immense content into of with lesser words. Law is never still, it is ever evolving and
ever changing accordingly to meet the challenges of time. Therefore constitution
provisions, especially fundamental rights and in particular Article 21 has been broadly
construed by the judiciary. The court attempted to expand the reach and ambit of
Article 21 rather than accentuate their meaning and content by judicial construction.
Thus the judiciary broadened the concept of life, extended the scope of personal
liberty so as to include within itself all the varieties of rights which go to making the
personal liberties of man. Basic principles were compiled to understand procedure
established by law. The judiciary has resolved most of the environmental cases where
they considered right to good environment as fundamental for life and upheld as
fundamental right. Thus we can consider article 21 as mandate for life saving
environment. This article focuses on some of the landmark cases that have a bearing
on the persons right to life and right to pollution free environment.
The constitution makers themselves construct the fundamental rights in its broad
sense especially to right to life. The Supreme Court of India has given essence to the
right so that every person can enjoy life to its fullest extent. The Indian Supreme
Court came out of the shackles of mechanical and rule bound justice and provided
impetus to the expanded horizons of the fundamental right to life and personal liberty
guaranteed in Article 21. Two methods are used by Supreme Court to strengthen
Article 21 and to interpret unenumerated rights under Article 21, it required laws
affecting personal liberty to pass the tests of Article 14 and 19 of the constitution,
there by ensuring that the procedure depriving a person of his or her personal liberty
be reasonable, fair and just. The court recognized several matriculated rights that were
implied by Article 21. It is by this method the Supreme Court interpreted the right to
life and personal liberty to include the right to wholesome environment and all other
rights. Thus Courts have undertaken to explicate the development of ideology of
environment as being part of the right to life by various judicial pronouncements.18
ARTICLE 21 AND RIGHT TO POLLUTION FREE ENVIRONMENT

The address of Justice Shri. K T Thomas (former judge of supreme court of India) on the inauguration
of the Asian Human Rights Council in 1998, in New Delhi.
18
Shubhhankar Dam, Green Laws For Better Health: The Past That Was And The Future That May Be
- Reflections From The Indian Experience, 2004, 16 Geo. Int'l Envtl. L. Rev. 593.
17

Supreme Court strengthened this Article in two ways: first which I have already
mentioned that is to pass the test of reasonability with respect to articles 14 and 19.
Secondly, the Supreme Court interpreted the right to life and personal liberty to
include the right to a wholesome environment.
The first attempt of the right to a wholesome environment i.e. the issues relating to
environment and ecological balance was recognised in the case of Rural Litigation
and Environment Kendra, Dehradun vs. State of Uttar Pradesh.19
In this case, the representatives of the Rural Litigation and Entitlement Kendra,
Dehradun wrote to the Supreme Court alleging that illegal lime stone mining in the
Mussorie-Dehradun region was causing damage to the fragile eco-systems in the area.
The Court treated this letter as a public interest petition under Article 32 of the
Constitution. And also several committees have been appointed for the full inspection
of illegal mining sites. All the committees came at the conclusion that the lime stone
quarries whose adverse effects are very less, only those should be allowed to operate
but that too after further inspection and all. Therefore, the Court ordered the closure of
a number of limestone quarries. Although the Court did not mention any violation of
fundamental right explicitly but ad impliedly admitted the adverse effects to the life of
people and involved a violation of Article 21 of the Constitution.
The concept of right to wholesome environment was also recognised in the case of
Subhash Kumar vs. State of Bihar.20
In this case, the company in Jamshedpur carries on mining operation against which
the suit filed. The allegations were that the slurry gets settled in the land affecting
fertility of land, polluting the drinking water, thereby risking the health of people
living in surrounding areas. The Court held that the right to life includes the right to
enjoy unpolluted air and water. If anything endangers or impairs the quality of life in
derogation of laws, a citizen has a right to recourse to Article 32 of the Constitution
and also it said that recourse should be by the person genuinely interested in the
protection of society on behalf of the community.
Similarly, in the case of Virender Gaur vs. State of Haryana,21 there has been a great
discussion about the environment within its ambit of hygienic atmosphere and
ecological balance. The observation by the Court was that:
Article 21 protects the 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 pollution. Environmental,
ecological, air, water, pollution, etc. should be regarded as amounting to violation of
Article 21. Therefore, hygienic environment is an integral facet of right to healthy life
and it would be impossible to live with human dignity without a humane and healthy
environment. Environmental protection, therefore, has now become a matter of grave
concern for human existence. Promoting environmental protection implies
maintenance of the environment as a whole comprising the man-made and the natural
environment.
AIR1987 SC 395
(1991) 1 SCC 598
21
1995 2 scc 577
19
20

So, in this regard no doubt the State has the foremost responsibility to take care of
individuals by protecting and improving the environment. But at the same time, every
citizen also has to contribute his help to the government in maintaining the hygienic
environment.
Most of the environmental cases are related to pollution of hazardous gases, wastes
disposal, etc. the world industrial disaster took place in the year 1984 which is
referred to as Bhopal Gas Disaster case'.
The Bhopal plant of Union carbide India Ltd (UCIL), an Indian company which
was a subsidiary of the Union carbide Corporation, USA (UCC) was set up. On the
midnight of 2-3 December in 1984 there was a massive leak of methyl isocynate from
this plant which killed more than 3000 persons and serious personal injuries. The
whole surrounding was covered with the black smoke of hazardous chemical gas. But
the court could not reach any conclusion that by the time another disaster happened in
Delhi which was not as that severe as the Bhopal tragedy.
This other incident was referred as the Oleum Gas Leakage case.22
In this case, there was a leak of oleum gas from a factory in Delhi of Shriram
Foods and fertilizer Induatries which enveloped the parts of Delhi in yellow smoke.
Although the chemical gas was not that toxic and harmful as that was in Bhopal gas
case, but there were some adverse effects to the people living in that surrounding.
Through this case only rule of absolute liability' established which says that the
enterprise will be liable no matter even if there is an act of God like earthquake,
floods etc or an act of terrorism or enemy action.
The Court suggested that an enterprise which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the health and safety of the
persons working in the factory and residing in the surrounding areas owes an absolute
and non-delegate duty to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous nature of the activity which it has
undertaken and therefore, such corporations would be subjected to the limitations of
right to life under Article 21 of the constitution. Then this case was referred to solve
the Bhopal gas leak case. The effects of this tragedy were so adverse, people
developed many diseases.
This incident happened long time back but the after effects are still known. The
mothers who were pregnant at that time gave birth to disables children and children
suffering from severe diseases. If a person is not able to live his life properly, his
health is not perfectly fine then, his/her life cannot be said to be dignified life. Such
type of corporations for their profits does not take care of the after effects of their
activities and the result is in front of all of us.
All the above cases which I have mentioned in some sense talk about the industrial
pollution which is not just limited to that.
Another landmark case which also supported the view that the right to a healthy
environment is part to life under Article 21 of the Constitution is the Ganga
Pollution case'.23
22
23

M.C Mehta v UOI AIR 1987 SC 965

M.C Mehta v UOI AIR (1987) 4 SCC 463,see also AIR 1988 SC 1037

In this case, a writ was filed mentioning that the industries mostly tanneries located
on the banks of the river and populated areas of Kanpur and Calcutta were
discharging highly toxic trade effluents into the river Ganga. As a result of which the
water in the river Ganga could no longer be used by the people either for drinking or
any other purposes. The Court held that the polluting tanneries have to be closed
down even though it would bring unemployment, loss of revenue because the
preservation of life, health and ecology are the most important than anything else. It's
not just about the life of the people who get affected, also the animals who drink this
water. Although they cannot go to the Court that does not mean their life is nothing.
So, the water-pollution problems (especially discharging noxious and poisonous
matter into rivers) should be dealt with strictness.

CHAPTER 3:THE ROLE OF INDIAN JUDICIARY

There has been a huge gap between constitutional spirit vis a vis legislation and
enforcement of environmental laws in india.Indian judiciary has been showing its
commitment to protect he environment from time to time.The judiciary has been
trying to highlight the importance of environmentalism through a series of
illuminating judgements.
The higher judiciary in india has delivered many environment concious
judgements.By constructive interpretation of various provisions of law,the apex court
in particular has strengthened the environmental law.
In Ratlam v Verdhi chand24 the S.C has extended the principle of locus standi in
environment cases and observed that the centre of gravity should shift as the preamble
to the constitution of india mandates from traditional individualism of locus standi to
community oriented PIL.The court further observed that environment related issues
should be considered in different perspective.This development in judiciary brought a
new era and is considered as SILENT LEGAL REVOLUTION and has thrown
away all technical rules of procedure and encouraged litigation from public spirited
person.This
development
has
paved
way
for
CLASS
ACTION
LITIGATION,COMMON CAUSE LITIGATION,SOCIAL INTEREST LITIGATION
etc.
The judicial craftsmanship attempted to expand the reach and ambit of Article 21
rather than accentuate their meaning and content by judicial construction. Thus the
judiciary broadened the concept of life. Thus extended the scope of personal liberty so
as to include within itself all the varieties of rights which go to make the personal
liberties of man. Right to life extended its scope to include right to wholesome
environment and right to sustainable development. Indian democracy wedded to rule
of law aims not only to protect fundamental rights of its citizens but also to establish
an egalitarian order. Law being an instrument of social engineering obliges the
judiciary to carry out the process established by it.
Environmental deterioration could eventually endanger life of present and future
generations. Therefore, the right to life has been used in a diversified manner in India.
It includes, inter alia, the right to survive as a species, quality of life, the right to live
with dignity, right to good environment and the right to livelihood. In India, these
rights have been implicitly recognized as constitutional rights. The right to healthy
environment has been incorporated, directly or indirectly, into the judgments of the
court. Thus it is clear that article 21 has a multidimensional interpretation. Any
arbitrary, whimsical and fanciful act on the part of any state, depriving the life or
personal liberty would be against Article 21 of the Indian constitution.
Judicial Interpretation to Right to Life and Environment: The right to healthy
environment has been incorporated, directly or indirectly, into the judgments of the
court. Link between environmental quality and the right to life was first addressed by
a constitutional bench of the Supreme Court in the Charan Lal Sahu Case 25 In 1991,
the Supreme Court interpreted the right to life guaranteed by article 21 of the
Constitution to include the right to a wholesome environment.
24
25

AIR1980 SC1622
Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598.

In Subash Kumar,26 the Court observed that right to life guaranteed by article 21
includes the right of enjoyment of pollution-free water and air for full enjoyment of
life. Through this case, the court recognized the right to a wholesome environment as
part of the fundamental right to life. This case also indicated that the municipalities
and a large number of other concerned governmental agencies could no longer rest
content with unimplemented measures for the abatement and prevention of pollution.
They may be compelled to take positive measures to improve the environment. This
was reaffirmed in M.C. Mehta v. Union of India.27
The case concerned the deterioration of the world environment and the duty of
the state government, under article 21, to ensure a better quality of environment. the
Supreme Court has held that life, public health and ecology have priority over
unemployment and loss of revenue. The Supreme Court ordered the Central
government to show the steps they have taken to achieve this goal through national
policy and to restore the quality of environment.
In another case,28the Supreme Court dealt with the problem of air pollution caused by
motor vehicle operating in Delhi.
It was a public interest petition and the court made several directions towards the
Ministry of Environment and Forests. Decisions such as this indicate a new trend of
the Supreme Court to fashion novel remedies to reach a given result, although these
new remedies seem to encroach on the domain of the executive.29
In Shanti Star Builders vs. Narayan Totame.30, the Supreme Court held that right to
life is guaranteed in a civilized society would take within its sweep the right to food,
the right to clothing, the right to decent environment and a reasonable accommodation
to live in.
In Subhash Kumar vs. State. of Bihar- (1991) 1 SCC 598, the Supreme Court held that
right to life is a fundamental right under Art. 21 of the Constitution and it include the
right to enjoyment of pollution free water and air for full enjoyment of life. If
anything endangers or impairs that quality of life in derogation of laws a citizen has
recourse to Art.32 of the Constitution for removing the pollution of water or air which
may be detrimental to life.
In M. C. Mehta vs. Union of India (the Oleum Gas Leak case)31, the Supreme Court
established a new concept of managerial liability absolute and non-delegable for
disasters arising from the storage of or use of hazardous materials from their factories.
The enterprise must ensure that no harm results to anyone irrespective of the fact that
it was negligent or not.
In Vellore Citizens Welfare Forum vs. Union of India32,the Supreme Court held that
26

M.C. Mehta v. Union of India (1991) AIR SC 813 (Vehicular Pollution Case); (1992) Supp. (2) SCC
85; (1992) Supp. (2) SCC 86; (1992) 3 SCC 25.
28
Armin Rosencrantz et al, in Region/country report: South Asia: India (1993) Yearbook of
International Environmental Law, vol. 4. 415-419.
29
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
30
1990(1) SCC 520
31
1987 SCR (I) 819
32
AIR 1996 SC 2715
27

industries are vital for the countrys development, but having regard to pollution
caused by them, principle of Sustainable Development has to be adopted as the
balancing concept. Precautionary Principle and Polluter Pays Principle has been
accepted as a part of the law of the country.
In Indian Council of Enviro-Legal Action vs. Union of India,(the Bichhri pollution
case)33, following the decision in the Oleum Gas leak case and based on the polluter
pays principle, the polluting industries were directed to compensate for the harm
caused by them to the villagers in the affected areas, specially to the soil and to the
underground water.
Enunciating the doctrine of Public Trust in M. C. Mehta vs. Kamal Nath 34, the SC
held that resources such as air, sea, waters and the forests have such a great
importance to the people as a whole that by leasing ecologically fragile land to the
Motel management, the State Government had committed a serious breach of public
trust.
The changing trajectory of environmental rights in India, from a historical perspective
Active judicial intervention by NGOs, community groups, and others, have also set a
series of important precedences that go beyond what the bare laws provide. There are
many initiatives in Public Interest Litigation (PIL). Some of these include the cases
against
1. The construction of the Tehri Dam (Tehri Bandh Virodhi Sangharsh Samiti vs. State
of Uttar Pradesh, 1992 SUP (1) SCC 44) and Narmada Dams (Narmada Bachao
Andolan vs. Union of India AIR 1999 SC 3345)
2. Against deforestation (T. N Godavarman Thirumulpad vs. Union of India, 2000 SC
1636, a case that has since then spawned dozens orders pertaining to forests in India)
3. Against mining in the Aravallis (Tarun Bharat Sangh, Alwar vs. Union of
India 1992 SC 514, 516)
4. Against mining in the Dehra Dun hills (Rural Litigation and Entitlement Kendra,
Dehradun vs. State of Uttar Pradesh, 1985 SC 652)
5. Against mining in adivasi lands of Andhra Pradesh (Samatha vs. State of Andhra
Pradesh, 1997, a judgment with important consequences for acquisition or use of
adivasi lands elsewhere too)
6. On implementation of the Wild Life (Protection) Act 1972 (WWF vs. Union of
India, WP No 337/95)
7. On implementation of Coastal Regulation Zone measures (Indian Council for
Enviro-Legal Action vs. Union of India, 1996(3) 579)
8. On protection of the coastal area against destructive practices (Prof.Sergio Carvalho
vs. The State of Goa, 1989 (1) GLT 276)
9. On the right of citizens to inspect official records (this was before the Right to
Information Act came into force) (Goa Foundation vs. North Goa Planning and
Development Authority. 1995(1) GLT 181)
10. Against forest logging and other environmental aspects of Andaman and Nicobar
Islands. The judgments in other cases have set important precedents and directions for
the further development of policy, law and practice.35
1996 3 SCC 212
(1997) 1 SCC 388
35
Ashish Kothari, Anuprita Patel, Environment and Human Rights An IntroductoryEssay and Essential
Readings NATIONAL HUMAN RIGHTS COMMISSION Faridkot House, Copernicus Marg, New
Delhi 110 001, India
33
34

For instance, the Godavarman and the WWF vs Union of India cases have led to the
orders that no forest, National Park or Sanctuary can be dereserved without the
approval of the Supreme Court, no non-forest activity is permitted in any National
Park or Sanctuary even if prior approval under the Forest (Conservation) Act, 1980
had been obtained, New authorities, committees and agencies have been set up such
as the Central Empowered Committee (CEC) and the Compensatory Afforestation
Management and Planning Agency.
Some judgments not directly related to environmental cases, also have significant
implications for the struggle to establish environment as a human right. Mention
should especially be made of a number of cases in which the Constitutional Right to
Life (Article 21) has been interpreted widely to include a series of basic rights that
include environment and livelihoods.
In Francis Coralie vs. Union Territory of Delhi 36, Justice Bhagwati observed: We
think that the right to life includes the right to live with human dignity and all that
goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing and shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and co-mingling with
fellow human beings.
In Shantistar Builders vs. Narayan Khimalal Totame (AIR 1990 SC 630), the Supreme
Court said: Basic needs of man have traditionally been accepted to be three food,
clothing, and shelter. The right to life is guaranteed in any civilized society. That
would take within its sweep the right to food, the right to clothing, the right to decent
environment and a reasonable accommodation to live in.
In Olga Tellis case 37 the Supreme Court observed An important facet of that right is
the right to livelihood because, no person can live without the means of living, that is,
the means of livelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of abrogation. That
which alone makes it possible to live, leave aside what makes life livable, must be
deemed to be an integral component of the right to life. environmental crisis is
causing enormous disruption of lives and livelihoods, threatening the collapse of its
entire life-support system.
The poor and dis privileged classes of humans and the other non-human species
unfortunately have to bear the main brunt of these environmental problems. Ironically,
the crisis is rooted deep in social, economic and political structures, more specifically
in relations of inequity of three kinds Intra-generational inequity, Intra-generational
inequity, and Inter-species inequity. Inequities in the relations between people and
countries have also allowed the imposition of unsustainable and destructive models of
development. The process of development has been characterised by the massive
expansion of energy and resource-intensive industrial and urban activity, and major
projects like large dams, commercial forestry, and mining and chemical-intensive
agriculture. The resource demand for the economic progress of a minority of people
36
37

(AIR 1981 SC 746)

(AIR 1986 SC 180)

has lead to the narrowing of the natural resource base for the survival of the
economically poor and powerless. This has happened either by direct transfer of
resources into cities and industrial complexes, or by the destruction of life-support
systems for rural communities everywhere.38
In Re Noise Pollution (V)39 the cries of a rape victim for help went unheeded in the
blaring noise of loudspeaker in the neighborhood. The victim committed suicide.
Public interest litigation was filed. The court said that article 21 of the constitution
guarantees life and personal liberty to all persons it guarantees a right of persons to
life with human dignity. Therein are included, all the aspects of life which go to make
a persons life meaning full, complete and worth living. The human life has its charm
and there is no reason why the life should not be enjoyed along with all permissible
pleasures. Any one who wishes to live in peace, comfort and quiet within his house
has a right to prevent the noise as pollutant reaching him. No one can claim a right to
create noise even in his own premises which would travel beyond his precincts and
cause nuisance to neighbours or others. Any noise which has the effect of materially
interfering with the ordinary comforts of life judged by the standard of a reasonable
man is nuisance. How and when a nuisance created by noise becomes actionable has
to be answered by reference to the degree and the surrounding circumstances, the
place and the time.
In Research Foundation for science Technology and Natural resources Policy v.
Union of India 40 Dumping of hazardous waste, whether directions shall be issued for
destruction of consignments with a view to protect environment and, if not, in what
other manner consignments may be dealt with it was held, precautionary principles
are fully applicable to facts and circumstances of the case and only appropriate course
to protect environments is to direct destruction of consignments by incineration as
recommended by Monitoring Committee.
In Intellectuals Forum, Tirupathi v. State of AP 41 Leave granted. The present matter
raises two kinds of questions. Firstly, at a jurisprudential level, it falls on this Court to
lay down the law regarding the use of public lands or natural resources. In this case
the Court has reiterated the importance of the Doctrine of Public Trust in maintaining
sustainable development which has been declared as inalienable human right by UN
General Assembly.
In MC Mehta v. Union of India 42whether mining activity carried out in Villages Khori
Jamalpur and Sirohi in District Faridabad in Haryana are in violation of the orders
passed by this Court on 6th May, 2002 was in question. It was held, it does not appear
that area in question falls under any category of prohibition for carrying out mining
activity. But another aspect that remains to be examined is about impact of mining in
the villages in question on environment, Merely on basis of photographs or plying of
large number of trucks per day, a direction can not be made for stopping mining
activity Monitoring Committee constituted in terms of directions in M.C. Mehta's case
is directed to inspect the mining activity being carried on in 75.05 hectares in village
38

Online pdf on right to clean environment available at www.legalservices.com

39

Noise Pollution Vs In Re {(2005) 5 SCC 733/Pr 10}

Research Foundation for science Technology and Natural resources Policy v. Union of
India and Another SC 2005
40

Intellectuals Forum v. State of A.P. (2006) 3 SCC 549

karnataka Industrial Areas Development Board v. C. Kenchappa and others

41
42

Khori Jamalpur and in 50.568 hectares in village Sirohi in Faridabad district and
report the impact.
In Karnataka Industrial Areas Development Board v. C. Kenchappa and others in
consonance with the principle of 'Sustainable Development', a serious endeavour has
been made in the impugned judgment to strike a golden balance between the
industrial development and ecological preservation.
So we can say that the judicial activism of higher judiciary thus brought the right to
clean environment under fundamental rights enrished in part III of the constitution
and as a result constitutional remedies under article 32 and 226 are now available to
all the citizens of india for the purpose of accomplishing right to clean environment.
The role of indian judiciary in protecting the environment and advancing the
environmentalism is unparllel in the history of nation

CHAPTER 4: RIGHT TO ENVIRONMENT V RIGHT TO DEVELOPMENT

For a person to live a dignified life it is necessory for him/her to have a clean
environment,but if we focus on this we loose in other respect which is
development.India is a developing country and in order for it to develop it is very

important for it to focus on its development.Development is important because it

satisfies human rights and fundamental freedom.Industries help to satisfy the growing
demands of the people and raise their standard of living.But at the same time growing
industrialization has a deep and negative impact on the environment.So the conflict
arises between the two.43
Today it is universally recognized that degree of socio-economic development of any
country depends upon degree of measures taken for protection of the
environment.Environment plays a progressive role in development of man and other
living beings.A country which neglects the environment will have to experience
abnormal nature and natural calamities with disastrous consequences having direct but
negative impact on nations economy and public health.
In india, polishing free environment is declared by the epex court as a fundamental
right falling under article 21. It has put greater barriers on vigour of freedom of trade
guaranteed under article 19(1)(g) and religious freedom under article 26 and 26 by
expanding horizons of right t life and personal liberty under article 21.A speacial
bondage has been webbed around fundamental rigts,the DPSP and fundamental duties
for achieving the objective of protecting the environment from pollution.In order to
enforce the fundamental right pertaining to pollution included under public law
domain,the S.C of india under article32 of the constitution and also the H.C under
article 226 have awarded damages against those who have been responsible for
polluting the environment and disturbing the ecological balance by human activities.
An analysis of various decisions of the supreme court reveals that the apex court
aspired to protect environment from clutches of pollution caused by waste and
effluents,noise,smoke,dust and heat.It wanted to protect the polluted agriculture
land,water and air ,coatal areas ,sea shores and towns,public health and safety,forest
and wildlife and to prohibit cruelity to animals,environmental degradation and what
not,inter alias by means of protective justice.For achieving these aspects it wants to
put controll on individuals right and freedom assured under article 19(1)(f),25 and
26.It wanted the state to take its ostensible responsibility enshrined under DPSP for
the well being of man kind as well as environmental protection.All these are essential
for socio economic development of the country.
For achieving the above objectives the highest court had exercised its writ jurisdiction
when there was a leakage of hazardous gases like chlorine from the Shre Ram
Fertilizers Industries44 waste material of alcohol plant was thrown in the adjoining
nala resulting in spread of obnoxious smells being released apart from mosquito
breeding45, highly toxic effluents were discharged into river ganga by
tanneries46,safety and insurance for the benefit of workers was required at the cost of
employer47,harmful drugs were required to ba banned 48,welfare of the children born

Online Article Written by: Dr.G. Indira Priya Darsini & Prof. K. Uma Devi - Professor, Department
of Law, Sri Padmavati Mahila
43

44
45
46
47
48

AIR 1987 SC 965

Ratlam municipality v vardhichand AIR 1980 SC 1622
M.c mehta v UOI (1987)4SCC 463
M.k sarma v B.E.L (1987)3 SCC 231
Vincent palikulangra v uoi (1987) 2SCC 165

with the defect as a consequence of leakage of MIC gas from union carbide plant at
bhopal49 and so on.
Protection of Environment is Duty of Judiciary
While environmental aspects have concern with LIFE,Human rights aspects have
concern with liberty.In the context of emerging jurisprudence relating to
environmental matters,as in the case of human rights,it is the duty of the supreme
court to render justice by taking all aspects into consideration. 50Where on account of
human agencies,the quality of air and environment are threatened or affected,the
supreme court would not hesitate to use its innovative power within its epistolary
jurisdiction to enforce and safeguard the rights to life and to promote public interest.51
Control on the Freedom of Trade and Duty of Citizen/State to Protect
Environment
One fundamental right of a person may have to co-exist in harmony with the exercise
of another fundamental right by others also with reasonable and valid exercise of
power by the state in light of the DPSP in the interest of social welfare as a whole.52
The enjoyment of fundamental rights is subject to reasonable limitations.One can
enjoy his right to carry on buisnes and trade according to his wishes and desires till
the time such enjoyment does not interfere with life and property of others.In a
developing society like ours,a balance has to be maintained with ecology and
environment on the one hand and the industrial growth on the other,paramount being
the service of the society and protection of the lives of the citizen. 53While living
within the carrying capacity of the subordinate ecology system sustainable
development should be maintained by the industry and the state should ensure
environmental protection and prevent degradation there of54
Environmental issues are relevant and deserve serious consideration but the needs of
the environment are required to be balanced with the need of a developing
country.Natural resources have got to be trapped for the purpose of social
development but one cannot forget at the same time that tapping of resources have got
to be done with requisite attention and care so that ecology and environment may not
be affected in any serious way.Preservation of environment and keeping the
ecological balance unaffected is a task which not only the governments but also every
citizen must undertake.
Earlier the article 21 of the Constitution had a bit narrow scope but with the time, the
concept of Article 21 has been broadened. The Judiciary has played a vital role in
interpreting the Article 21 of the Indian Constitution. The scope of Article 21 of the
Constitution has been considerably expanded by the Indian Supreme Court, which has
interpreted the right of life to mean the right to live a civilized life and it also includes
the right to clean environment. But the Constitution does not explicitly provide for the
citizen's right to a clean and safe environment.
Union carbide of india v uoi AIR 1992 SC 248
A.P pollution controll board v prof. M.v naidu and others etc AIR 1999 SC 812
51
V.lakshmipathy and others v state of karnataka and others,AIR 1992 KER.57
52
Chirch of god in india v k.k r majestic colony welfare association and others,AIR 2000 SC
2773
53
Ishwar singh v state of harnaya and others AIR 1996 P&H 30
54
Samatha v stae of A.P and ither AIR 1997 SC 3297
49
50

Earlier in the ancient times, the hazards of the environment were not that recognized
but now with the advanced technology and increasing population the adverse effects
are clearly recognised. Industries contribute to the environmental pollution which
proves to be very harmful for the health of the citizens, thereby, degrade g their right
to life. Then smoking is also the main contributor to the pollution in the environment.
Although many orders have been passed against smoking but nothing fruitful is
coming out. If the orders were to hold any meaning then, no person in India should
have now been smoking in public places. Environmental conservation is the principle
concern of the present times. It is the, most urgent necessity, because a pollution free
environment is a foremost requirement for the health and safety of mankind.
Further, environment and development are considered to be the two sides of the same
coin. Any one of these cannot be sacrificed for the other. Rather, both are equally
important for the betterment of our future. But nonetheless, without concerning for the
loss of private profit, the preference has to be given to the public health and to the
clean environment. The ultimate responsibility lies on the Courts to deal with these
cases efficiently and with great caution.
Such type of environmental issues can be handled properly if people are educated and
are aware of their activities. Also, the government has to take strict measures with
proper care against the hazardous industries. Each individual shall have the
opportunity to access to the information concerning the environment. States shall
facilitate and encourage public awareness and participation by making information
widely available.55
A healthy environment is an absolute necessity for the well-being of all organisms.
But then again is it possible to make the environment completely pollution free
environment. So, the question which remains unanswered is the is the right to
healthy environment guaranteed or is it illusory?

CONCLUSION AND RECOMMENDATION

The expansive and creative judicial interpretation of the word LIFE IN ARTICLE
21 has lead to a salutary development of environmental jurisprudence in India.Right
http://www.lawteacher.net/free-law-essays/human-rights/right-to-clean-environment.php

55

to life is a fundamental right under article 21 and since the right to life cannotes
quality of life a person has a right to the enjoyment of pollution free water and air to
enjoy life fully.The Supreme Court has developed right to environment as an implied
fundamental right from right to life under article 21 of the Indian constitution.
In SUBHASH KUMAR V STATE OF BIHAR AIR 1991 SC 420,the supreme court has
held that enjoyment of pollution free environment is included in the right to life under
article 21 of the Indian constitution.The Supreme Court has reiterated the proposition
that the right to environment is implicit in Article 21 in M.C Mehta v UOI AIR 1997
SC 734 and issued several guidelines and directions for the protection of the Taj
Mahal,an ancient monument at Agra from environmental degradation.
The wordenvironmenthas a broad spectrum and within its ambit fall clean
atmostphere.Environmental,ecological,air,water pollution,etc amount to violation of
article 21.Hygienic environment is thus an integral part of right to life under article 21
of the constitution.
Such wide interpretations of Article 21 by the Supreme Court have over the years
become the bedrock of environmental jurisprudence, and have served the cause of
protection of Indias environment (and to a lesser extent, of livelihoods based on the
natural environment). Adding to this is a large number of laws relating to
environment, enacted over the last few decades However, a number of groups have
also pointed out that the Constitution is deficient in that it does not explicitly provide
for the citizens right to a clean and safe environment. In a recent submission to the
committee set up to review the Constitution, these groups have proposed a number of
amendments to the Constitution, for ensuring environment protection and nature
conservation. These include: Recognition and incorporation of Environmental Rights
as separate and independent Fundamental Rights in the Constitution of India. These
follow from the above-mentioned interpretation to the term Right to Life, as given
by the Supreme Court.
This could be further specified to include right to clean drinking water, and to a clean
and pollution-free environment. Replacement, within the Directive Principles of State
Policy, of the term forest by the term life supporting natural ecosystems, The
reason for this suggestion is that the Courts and other authorities, including the forest
departments, have been interpreting the term forest to mean land with trees. As a
result, land without trees is not considered as a forest and there is a lack of interest in
protecting other important ecosystems such as grasslands, deserts, marshes,
mangrove, etc.
With the better understanding of these diverse ecosystems and their importance to
humankind there is a need to preserve them. Incorporation, within the Fundamental
Duties, the responsibility of panchayats and municipalities to give due regard to
ecological aspects and to protect the environment, including life supporting natural
ecosystems such as forests, rivers and lakes, and wild life, in the preparation of plans
for economic development and social justice. This would also necessitate
incorporation, into the Eleventh Schedule relating to the Panchayats, an item for
protection of the environment and the promotion of ecological aspects.
Thus a chronological analysis of environmental mission of the courts has been

undertaken in order to explicate the development of the ideology of environment as

being part of the right to life in the Indian context is justified from the above
discussion. Therefore it is evident that article 21 is mandate for life saving
environment.
The importation ofDUE PROCESS clause by the activist approach of the Supreme
court in the Maneka GAndhi case has extended the scope of article 21 of the indian
constitution.The right to live in a healthy environment is a one more golden feather of
article 21.This right cannotes that the enjoyment of right and its attainment and
fullfillment guaranteed by article 21 embraces the protection and preservation of
natures gift without which life cannot be enjoyed.The significant feature in
environmental jurisprudence in india is that the Supreme court has decided the cases
without looking into the fact as to who is filing these cases.
In the case of Subhash kumar v State of Bihar AIR 1991 Justice K.N singh and Justice
N.D Ojha held:Right to live is a fundamental right under article 21 and it includes
right of enjoyment of life.If anything happens that impairs that quality of life a citizen
has right to refer article 32 or 226 of the constitution for removing pollution from
water or air that may determine quality of life
Protection of environment has become a necessity now.The supreme court of India
has come forward liberalizing all its formalities whenever its help was necessory for
public cause whether it was for protection of Doon Valley or purification of Ganga
river.But it seems very peculiar to think that however sensitive the judiciary may be
,alone it cannot achieve the goals unless the general public is concious about
environmental protection.
The supreme court has done a massive contribution for the protection of environmnet
in India and making the lives of people worth living by including under
article21.Infact as a consequence of the landmark judgements of the highest courts of
the country,the executive and legislative wings are activated and a result many
legislative measures and executive policies have come into force for achieving the
above aspiration.But environmental degradation is not controlled in the edserving
manner.People are facing innumerable problem due to adverse impact on environment
and ecosystemSustainable development is only an arm foot ahead without allowing
the citizen to reach it.Law seemed to remain lock in libraries.Judicial verdicts are
evaded in most of the cases.The measures to curb the growing pollution in various
forms remain fanciful slogans.All thses developments require not only review from
competent authorities,but also for the constitution of an effective statutory machinery
at centre and in each state which will work for bringing consonance between
environment and socio-economic development.Such a body should consist of experts
from various fields like law,science,engineering and technology of all
branches,forensic science,public grievance society,NGO nad government officials.

BIBLIOGRAPHY
Websites
1.DR.GYAN

BASNET,

The

Right

to

Healthy

Environment

available

at http://www.nepalnews.com/home/index.php/guest-column/19926-the-right-tohealthy-environment-.html
2. http://pib.nic.in/focus/fomore/env.html
3. http://planningcommission.nic.in/plans/planrel/fiveyr/6th/6planch20.html
4.http://www.legalservicesindia.com/article/article/right-to-clean-environment-abasic-human-right-1509-1.html
5.http://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-FreeEnvironment.html
6.http://www.lawteacher.net/free-law-essays/human-rights/right-to-cleanenvironment.php
BOOKS
1.Constitutional development through judicial process ,1st edition,Asian law house
2.Mahendra P. Singh, V.N. Shukla's Constitution of India, 11th Edition, Eastern
Book Company.
3.S.C. Shastri, Environmental Law, 3rd Edition, Eastern Book Company.
4.Indrajit Dube, Environmental Jurisprudence: Polluter's Liability, Lexis Nexis
Butterworths.