Constitutional Jurisprudence Towards Environment Protection

Environmental Law Project

On

Constitutional Jurisprudence towards Environment

Protection
Submitted to:

Ms. Madhurima de Sarkar

Faculty, Environmental Law
By:

Pankaj Sharma

Roll no. 100

Section A

Semester IV, B.A. LLB(Hons.)

Submitted on:

February 15, 2016

Hidayatullah National Law University

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 Constitutional Jurisprudence Towards Environment Protection

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

Acknowledgements

I feel elated to work on the project “Constitutional jurisprudence towards environment

protection”. The practical realization of the project has obligated the assistance of many persons.
Firstly I express my deepest gratitude towards Ms Madhurima de Sarkar, Faculty of Environmental
Law, to provide me with the opportunity to work on this project. Her able guidance and supervision
were of extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive database
resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to receive
comments and suggestions to further improve this project.

Pankaj Sharma

Roll No. 100

SEM IV

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 Constitutional Jurisprudence Towards Environment Protection

Contents:
1. Acknowledgments 2

2. CHAPTER 1--- Introduction 4

2.1 . Statement of Problem 6

2.2 . Hypothesis 6

2.3 . Scope of study 6

2.4 . Objectives 7

2.5 . Research Methodology 7

2.6 . Chapterization 7

3. CHAPTER 2 -- Constitutional provisions 8

4. CHAPTER 3 -- Public Interest Litigation 11

5. CH APTER 4 -- Judicial Approach 13

6. Conclusion 16

7. Bibliography 17

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 Constitutional Jurisprudence Towards Environment Protection

CHAPTER -1
Introduction
The word “environment” relates to surroundings. It includes virtually everything. It can be can
defined as anything which may be treated as covering the physical surroundings that are
common to all of us, including air, space, land, water, plants and wildlife.

The Environment (Protection) Act, 1986, Section 2(a) environment “includes water, air and
land and the inter- relationship which exists among and between water, air and land, and
human beings, other living creatures, plants, micro-organism and property.

In the modern day to day innovation and advancement of technology, apart from development
additionally expands the risk to human life. Accordingly, there arises an intense and an acute
need of the law to keep pace with the need of the society along with individuals. So now the
question arises for the need of environmental protection law is a matter of worldwide concern,
it is not confined to any country or territory.

Environment protection is part of our cultural values and traditions. In Atharvaveda, it

has been said that “Man’s paradise is on earth; this living world is the beloved place of all; It
has the blessings of nature’s bounties; live in a lovely spirit”. 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, environmental education and sensitize the
people to preserve ecology and environment.

If we talk about the post -independence period, there was no environment specific legislation
to address the problems of environmental degradation. Most of the scholars trace the growth of
Indian environmental jurisprudence to the United Nations Conference on the Human
Environment held at Stockholm in 1972. India attended this conference and this conference
leads India and other states to think and adopt the measures to protect the environment which
would help in to deal with environmental hazards that would be inevitable consequence of
development. The international obligations are arising from the Stockholm declaration. The
Indian Constitution is amongst the few in the world that contains specific provisions on

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environment protection. The directive principles of state policy and the fundamental duties are
explicitly enunciated the nation commitment to protect and improve the environment.

The Water (Prevention and Control of Pollution) Act of 1974 was the first example of a
legislation specifically geared towards environmental protection. Other major enactments
which followed in the followed included The Forest (Conservation) Act), 1981 The Air
(Prevention and Control of Pollution) Act, and 1986 (The Environment (Protection) Act.

The Directive principles under the Indian constitution directed towards ideals of
building welfare state. Healthy environment is also one of the elements of welfare state. Article
19 (1) (g) of the Indian constitution confers fundamental right on every citizen to practice any
profession or to carry on any occupation, trade or business. This is subject to reasonable
restrictions. A citizen cannot carry on business activity, if it is health hazards to the society or
general public. Thus safeguards for environment protection are inherent in this.

STATEMENT OF PROBLEM

The Unbridled use of Scientific and technological advancements has given mankind a free
hand in exploiting the natural resources without having regard to ecological Considerations.
We never forget that Earth is one but the world is not. We all depend on one hemisphere for
sustaining our live. For the need to protection the Environment every country has to need to

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have a Law to govern his Citizens to not to exploit natural Resources. Though, there is
responsibility of every person to safeguard the environment for sustainable development.

HYPOTHESIS
India not only enacted various specific laws to control environment pollution but has also
incorporated the several significant constitutional provision for the protection of environment
into its Constitution. Within the last three decades, the development of constitutional
jurisprudence in India in its 42th amendment, following these constitutional changes has been
remarkable in the sense that it has to led in virtual creation of fundamental rights to clean and
protect environment in Indian law. The Indian Judiciary law making through PIL has brought
about phenomenal changes in Indian Constitutionalism. The various decision given by apex
court also play a vital role towards environment protection.

SCOPE OF STUDY

The scope of study for this Project work is only limited to the Constitutional provision related
to the development and protection of Environment. This study revolves around the Directive
Principle of State Policy, PIL, Fundamental rights and Duties of Citizens and Judicial Decision
as the laws related to the Protection of Environment. This research work further revolves only
around the few Declaration and Summit Pertaining to save the environment from hazardous
activities.

OBJECTIVES OF STUDY
 To determine the Constitutional provision towards the environment
Protection with the help of related case laws.

 To examine the objects of the state & citizens to protect environment.

 To Understand the judicial approach related to environmental laws.

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RESEARCH METHODOLOGY
This Research Project is doctrinal in nature. Accumulation of the information on the topic includes
wide use of primary sources such as cases as well as secondary sources like books, e-articles etc. The
matter from these sources have been compiled and analysed to understand the concept and reproduced
it afresh in this project.

Websites, dictionary and articles have also been referred.

CHAPTERIZATION
Chapter 1 basically deals with the Introductory part, dealing with the introduction of
constitutional provision in Indian constitution.

Chapter 2 deals with the related Articles and provision in Indian Constitution.

Chapter 3 is about the PIL, DPSP and Fundamental Duties towards environment protection.

Chapter 4 deals with the judicial Approach towards environmental laws.

CHAPTER- 2
CONSTITUTIONAL PROVOSION
In every country the constitution works as guidelines for managing the state. The constitution
specifies the work, duties and powers of the main organs of the state. It also serves as a guide
for the government. India, four years after participating in the United Nations conference of
human environment (UNHE) in the year 1972 at Stockholm. The 42 nd amendment 1976 to the
constitution of India introduced the certain significant provision related to the protection of
Environment. India becomes the first country in the world to have a Constitutional provision in
the constitution. Parliament of India introduced two articles in the year 1976. According to
Article 48-A “the State shall Endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country”. Further, a new provision Article 51-A in the

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form of “Fundamental Duties” was also incorporated by the 42nd Amendment. According to
the sub-clause (g) of Art. 51-A, “it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures”. The above two provision impose two-fold responsibilities.
On the one hand, it gives directive to the State for protection and improvement of environment,
and on the other hand it casts/imposes a duty on every citizen to help in the preservation of
natural environment.

In Sachidanand Pandey v. State of West Bengal1, the Supreme Court observed “whenever a
problem of ecology is brought before the court, the court is bound to bear in mind Article 48-A
and Article 51-A(g).

The Government of India to accelerate the pace for environment protection. Further amended
the constitutional text by making the following changes.
 Seventh Schedule of the Constitution: (I) In the Concurrent List, 42nd Amendment
Inserted. (a) Entry 17-A, providing for forests. (b) Entry 17-B, for the protection of
wild animals and birds. (c) Entry 20-A, providing for population control and family
planning.
 Eleventh Schedule of the Constitution: (1) This new schedule is added by the
Constitution 73rd Amendment Act, 1992. Which received the assent President on
20.4.1993. This schedule has 8 entries (2,3.6.7,11,12,15 and 29) providing for
environmental protection and conservation.
 Twelfth Schedule of the Constitution: (1) The entry number 8 of this schedule added
to the constitutional text by the 74th Amendment Act,1992, which received the
assessment of the President on 20.4.1993 provides for the Urban Local bodies, with the
function of environment and promotion of ecological aspects to them. Due to the
above changes the division of legislative power between the Union and the States is
spelt out in the following three of the 7th Schedule of the constitution2.

1AIR 1987 SC 1109

2 S .Shanthakumar, ENVIRONMENTAL LAW AN INTRODUCTION, pp. 122, 123, Chennai: Surya Publication,

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List I (UNION LIST) Entries. 52. Industries. 53. Regulation and development of oil fields
and mineral oil/resources. 54. Regulation of mines and mineral development. 56. Regulation
and development of inter -State rivers and river valleys. 57. Fishing and fisheries beyond
territorial waters.
List II (State List)Entries 6. Public health and sanitation . 14. Agriculture .protection against
past and prevention of plant diseases. 18. Land.colonisation .etc. 21. Fisheries. 23. Regulation
of Mines and Mineral development subject to the provisions of 24. Industries subject to the
provisions of
List III (Common or Concurrent List) Entries 17-A Forests. 17-B Protection and wild
animals and birds. 20. Economic and social planning. 20-A Population control and family
planning.

The Eleventh Schedule, added to the Constitution by the constitution 73rd

Amendment Act, 1992, assign the functions of soil conservation, water management, social
and form forestry, drinking water, fuel and fodder, etc. to the Panchayats with a view to
environmental management. The 12th Schedule of the Constitution added by 74th Amendment
Act, 1992 commands the Urban local bodies such as municipalities to perform the functions of
Protection of environment and promotion of ecological aspects. The constitutional changes
effected in the 7th Schedule by the 42nd Amendment Act, 1976 is a milestone steps, in the
direction of the protection of environment. Because the subject of forests originally was in the
State list as entry 19, this resulted into no uniform policy by the State so as to protect the
forests. By placing the item forest now in the concurrent list by the entry 17-A, along with the
State, Parliament has acquired a law making power. Because of the above change, in order to
have a uniform policy in the forest management the Government of India in the year 1980 set
up the Ministry of Environment and Forests. By virtue of this change Parliament also enacted,
the central legislation i.e. Forest Conservation Act, 1980, which was amended in 1988. The
government also adopted the new National Forest Policy in 1988 with a twin object. One to
protect the forests and another to consider the needs of the forest dwellers. Similarly the
insertion of the entry 17-B in the concurrent list has empowered the Parliament to enact a law
with a view to protection of wild animals and birds. Although we had a comprehensive
legislation in the form of Wildlife Protection Act of 1972 the 42nd Amendment has considered

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the wildlife along with forests. India has also formulated National Action plan for the
Protection of wild life. The new entry 20 A in the concurrent list embowers the Parliament to
regulate the population explosion one, of the prime cause of the environmental pollution. 3 By
these changes, legally and constitutionally it has become possible to lake a uniform action in
the matters of proper management of the environment. 3. Fundamental Rights The judiciary
dynamic interpretation of fundamental rights have regulated into the rights to healthy
environment from the following
Article 14: "State shall not deny to any person equality before the law or the equal protection
of the laws within the territory of India".

Article 21: "No person shall be deprived of his life or personal liberty except according to
procedure established by law". Right Environment: The importation of the due process clause
by the activist approach of the Supreme Court in Maneka Gandhis case4 has revolutionized the
ambit and scope of the expression right to life embodied in Article 21 of the Constitution. The
right to live in healthy environment is one more golden feather of article 21.This right connotes
that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21 embraces
the protection and preservation of natures gift without which life cannot be enjoyed. The
supreme Court of India, in1980, indirectly conceived this right in a monumental judgment in
the case of Ratlam Municipality V/s. Vardichand 5. In this case the Bench of Justice V. R.
Krishna lyer and Justice 0. Chinnappa Reddy held the neglect of sanitation of the town of
Ratlam by Municipal Council Health hazard. The Court observed:"Even as human rights under
Part III of the Constitution have respected by the State regardless provision. Decency and
dignity race non-negotiable facts of human rights and are a first charge on local self governing
bodies".

CHAPTER -3

3 Thakur kailash, Environmental law and Policy in India ,Deep and Deep Publications, 7th edition Pg. 204

4 (AIR 1978 SC 597 )

5 (AIR 1980 SC 1622).

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PUBLIC INTEREST LITIGATION

The concept of Public Interest Litigation (PIL) and how it has been used to relax the traditional
system of locus standi whereby when a third party approached a court for seeking relief
against an injury which they did not occur themselves, the court would focus attention on the
standing of the petitioner to ask for such relief instead of the subject of the petition itself. But
now the Court’s approach has changed and it has ruled that any member of the public having
sufficient interest may be allowed to initiate the legal process in order to assert diffused
individual rights. Generally, in environmental litigation, the parties affected by pollution are a
varied and unidentified mass of people .By allowing for third parties to intervene and file
cases, the Courts broke the first barrier in the path of effective environmental litigation in
India. Thus, citizens can challenge environmentally unsound practices on behalf of others,
even though they may not directly suffer any harm. The courts intervened in different ways in
response to the plethora of environmental cases brought before the courts through PIL. There
are two Articles 32 & 226 related to direct go to Supreme Court and High Court Respectively.
In the R. L. and Kendra, Dehradun v. State of U.P 6 popularly known as Dehradun Quarrying
Case. The case categorically emphasized that the right to life without clean and hygienic
environment is meaningless. In this case the court observed that Industrial development is
necessary for the economic growth of the country. If, however, industrial growth is sought to
be achieved by haphazard and reckless working of the mines, resulting in loss of life, property
and basic amenities like the supply of water, creating thereby an ecological imbalance, there
may ultimately be no real economic growth and no real prosperity. It is necessary to strike a
proper balance.

Directive principle of state policy

The Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions
given to the State to guide the establishment of an economic and social democracy, as proposed
by the Preamble. They set forth the humanitarian and socialist instructions that were the aim of

6 . A.I.R. 1985 SC 1259,

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social revolution envisaged in India by the Constituent Assembly. The State is expected to keep
these principles in mind while framing laws and policies, even though they are non-
justiciable in nature. The Directive Principles may be classified under the following categories:
ideals that the State ought to strive towards environment protection; directions for the exercise
of legislative and executive power; and rights of the citizens towards environment protection
which the State must aim towards securing.
Article 43A mandates the State to work towards securing the participation of workers in the
management of industries; while The State is also mandated by Article 48 to organise agriculture
and animal husbandry on modern and scientific lines by improving breeds and prohibiting
slaughter of cattle and Article 48A mandates the State to protect the environment and safeguard
the forests and wildlife of the country.

Fundamental Duties
The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in
1976, n the basis of the recommendations of Swarna Singh Committee, these duties were
included in the Constitution under Article 51A. Under these provisions, a citizen of India is
expected to faithfully preserve the environment in Article 51A point 7, To protect and improve
the natural environment including forests, lakes, river, and wildlife and to have compassion for
living creatures; In Rural Litigation & Entitlement Kendra vs. state of U.P. 7 held that
preservation of the environment and keeping the ecological balance unaffected is a task which
not only governments but also every citizen must undertake. It is a social obligation and let us
remind every citizen that it is his fundamental duty as enshrined in Article 51-A(g) of the
Constitution. In T.N. Godavarman Thirumulapd v. UOI 8, the court observed that ecocentric
approach finds its place in Article 51-A(g) which “stresses the moral imperatives to respect
intrinsic value, interdependence and integrity of all forms of life”

Chapter -4
JUDICIAL APPROACH

7 (1985)3 SCC 61: AIR 1985 SC 1259.

8 (2012)4 SCC 362,374.

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National Green Tribunal was set up under National Green Tribunal Act,2010 with an aim to
provide protection to environment, conservation of forests and other natural resources along
with enforcement of legal rights for environment and giving relief and compensation for
damages to persons and property.

NGT since its inception have taken various steps in order to reduce the menace of pollution
and other activities adversely impacting the environment. The Tribunal's dedicated jurisdiction
in environmental matters shall provide speedy environmental justice. The Tribunal shall not be
bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be
guided by principles of natural justice. The Tribunal is mandated to make and endeavour for
disposal of applications or appeals finally within 6 months of filing of the same.; New Delhi is
the Principal Place of Sitting of the Tribunal.9

An important development in the arena of environmental jurisprudence came about with the
186th report of the Law Commission of India whereby the Commission undertook to study the
environmental issues at a call by the Supreme Court for the same. In it the Commission
recommended the setting up of a separate branch of Environmental Courts in each State which
courts would consist of 3 members who were either sitting/retired Judges of a High Court or
had 20 years of experience as member of the Bar—with preference being given to member
who had previous experience in environmental issues10. Each court would also to have an
independent panel of ‘commissioners’ who would tender their opinion and expertise on
environmental matters and would necessarily be environmental experts. The courts will have
all powers of ordinary courts of law barring the constitutional power of issuing writs

Environmental protection through Judicial approach

9 Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/6868/10/11_chapter%206.pdf

10 One hundred eighty sixth report of Law Commission available at

lawcommissionofindia.nic.in/reports/186th%20report.pdf

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There are numbers of the following judgments which clearly highlight the active role of
judiciary in environmental protection these are follows:

(a) The right to a wholesome environment

Charan Lal Sahu Case

The Supreme Court in this case said, the right to life guaranteed by Article 21 of the
Constitution includes the right to a wholesome environment.11

Damodhar Rao v. S. 0. Municipal Corporation Hyderabad

The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support
this reasoning and went to the extent of stating that environmental pollution would be a
violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the
Constitution12.

(b) Public nuisance: the judicial response

Ratlam Municipal Council v. Vardhichand13

The judgment of the Supreme Court in instant case is a land mark in the history of judicial
activism in upholding the social justice component of the rule of law by fixing liability on
statutory authorities to discharge their legal obligation to the people in abating public nuisance
and making the environmental pollution free even if there is a budgetary constraints., J.
Krishna Iyer observed that,” social justice is due to and therefore the people must be able to
trigger off the jurisdiction vested for their benefit to any public functioning.”Thus he
recognized PIL as a Constitutional obligation of the courts.

(c) Judicial relief encompasses compensation to victims

11 HUMAN RIGHTS APPROACH TOWARDS POLLUTION FREE ENVIRONMENT, available at

www.indiastat.com/Article/14/indira/fulltext.pdf -

12 C. M. ABRAHAM and SUSHILA ABRAHAM, THE BHOPAL CASE AND THE DEVELOPMENT OF
ENVIRONMENTAL LAW IN INDIA P. 362, Vol. 40 International and Comparative Law Quarterly April 1991,

13 AIR 1980 SC 1622

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Delhi gas leak case: M.C. Mehta v. Union of India14

In instant case, the Supreme Court laid down two important principles of law:

1) The power of the Supreme Court to grant remedial relief for a proved infringement of a
fundamental right (in case if Article21) includes the power to award compensation.

2) The judgment opened a new frontier in the Indian jurisprudence by introducing a new “no
fault” liability standard (absolute liability) for industries engaged in hazardous activities which
has brought about radical changes in the liability and compensation laws in India. The new
standard makes hazardous industries absolutely liable from the harm resulting from its
activities.

(d) Fundamental right to water

The fundamental right to water has evolved in India, not through legislative action but through
judicial interpretation. In Narmada Bachao Andolan v. Union of India and Ors., the Supreme
Court of India upheld that “Water is the basic need for the survival of human beings and is part
of the right to life and human rights as enshrined in Article 21 of the Constitution of India …
and the right to healthy environment and to sustainable development are fundamental human
rights implicit in the right to life15.

CONCLUSION
It can be concluded that there are several laws which explicitly deal with the Protection of
environment Concerns. Thus, the right to wholesome environment is ipso facto a part of right
to life and liberty. The principle adopted is that ecology and environment are not objects of
ownership but are nature’s gift intended to be preserved in trust for future generations. The

14 AIR 1987 SC 965

15 Vrinda Narain,WATER AS A FUNDAMENTAL RIGHT : A PERSPECTIVE FROM INDIA Vol. 34 available

at www.vjel.org/docs/Narain_Water_Draft.pdf

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 Constitutional Jurisprudence Towards Environment Protection

most important achievement of modern law in India is the Constitutionalisation of environment

problems by legislation and judiciary of India

These specific Constitutional provisions and landmark judgments of the Apex Court form the
bedrock on which protection and conservation of wildlife rests. They also empower civil
society institutions/citizens to constructively participate in the process of protecting forests and
wildlife.

"We have to live on the earth and we cannot go on other planets, let us keep the earth clean;
let us make the atmosphere peaceful."

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BIBLIOGRAPHY
Books:
 C. M. ABRAHAM and SUSHILA ABRAHAM, THE BHOPAL CASE AND THE
DEVELOPMENT OF ENVIRONMENTAL LAW IN INDIA P. 362, Vol. 40
International and Comparative Law Quarterly April 1991

 S. Shanthakumar, ENVIRONMENTAL LAW AN INTRODUCTION, pp. 122, 123,

Chennai: Surya Publication,

 THE CONSTITUTION OF INDIA, 1950

 Dr. Jai Jai Ram Upadhyay, ENVIRONMENTAL LAW, p.2, Allahabad: Central Law
Agency, (2005).

 M.V Ranga Rao, ROLE OF JUDICIARY IN ENVIRONMENTAL PROTECTION,p.9,

vol.3, Supreme Court Journal, September- December

 S.C. Shastri, Environmental law, Eastern book co. publication, fifth edition, 2015

Articles:
 Urisonline.in/2010/…/role-of-supreme-court-in-environment-protection.

 HUMAN RIGHTS APPROACH TOWARDS POLLUTION FREE ENVIRONMENT,

available at www.indiastat.com/Article/14/indira/fulltext.pdf

 Lexwarrier.in/ constitutional provision of environmental law

 www.legalserviceindia.com/articles/evn.htm

Websites:

www.Jstor.com

www.Shodhganga.com

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www.SSRN.com

www.Academia.edu

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