JAMIA MILLIA ISLAMIA

FACULTY OF LAW
SUBJECT: Environmental law
TOPIC: Constitutional Dimensions of Environment
SUBMITTED TO: Md. Arif Wadood
SUBMITTED BY: Rizwan Ahmed
[Link].B.(Hons) Regular 6th Semester
ROLL NO.: 46
STUDENT ID: 2002208346
BATCH:- 2022- 27
Table of Contents
1. Introduction
2. The preamble of the Constitution and environmental protection
3. Legislative powers and matters of environmental protection
4. Obligation of the State and Environmental Protection
5. Obligation of citizens and environmental protection
6. Right to Life and Environmental Protection
7. Right To Equality and Environmental Protection
8. Freedom of Speech and Expression and Environment
9. Freedom of Trade and Commerce and Environmental Protection
10. Role of the Supreme Court in environmental protection
11. Conclusion
Introduction
A rapid increase in global warming, deforestation, air, water and other forms of pollution is posing a great threat to the
environment and its living beings. The degradation of the environment through a plethora of activities carried on by
individuals is detrimental to the health of all the living beings, including human beings, plants and animals.
Fundamental status has been given to the concept of protecting the environment, as it is essential to promote human
health to have a healthy environment. The environment affords a right to a healthy environment to all. Preserving the
environment protects the health of every individual, and a healthy individual promotes the development of the
environment, which is the need of the hour.
To live in an environment that provides a pollution-free atmosphere is not only a basic human right but also enhances
human dignity. The principle of sustainable development is one such approach that, if followed, can fulfil the basic
human right of having a dignified life.
Law acts as a means of regularising human conduct and provides the smooth functioning of society. Since the word
'Environment' did not find its existence in the Indian Constitution, it became essential to insert provisions in the
Constitution, as it is the supreme law of the land and such insertion thus, would prove to be fruitful to protect the
environment from exploitation.

The preamble of the Constitution and environmental protection

The Preamble of the Indian Constitution begins by stating that the people of India solemnly resolve to constitute India
into a socialist country. This indicates that our Constitution affords us with the socialist pattern of society. Thus, the
aim is to deal with and solve social problems first, rather than concentrating on individual problems. Here, what is in
the interest of the public is of utmost importance.
The presence of pollutants in the atmosphere above the prescribed limit is one of the major social issues to be given
due regard. It is not only exploiting the health of living beings, but also degrading the quality of the environment each
day.
The basic aim of the Preamble is socialism, and it is the responsibility of the state to fulfil this by taking stringent
measures to make the environment free from all forms of pollution. The obligation of the state further includes
providing not only a pollution-free environment but also a decent standard of living to all living beings.
All the citizens of India intend to secure freedom, which also includes securing justice. Justice can be interpreted and
sought in many forms.
Thus, citizens have a right to environmental justice. Increasing degradation of the environment is posing a great threat
to the lives of living beings, and hence, protecting the environment is becoming crucial in each day of life because
ignoring it would pose a serious threat to the environment at large.
The state must comply with all the provisions, and since India is declared to be a Democratic Republic, the citizens of
this country hold a very essential right to have a say in the conduct of the state and provisions being taken by the
government from time to time to restore the environment.

Legislative powers and matters of environmental protection

Under the Indian Constitution, there are three types of lists, namely-Union, State and Concurrent. Powers of the
government are shared at the state and union levels.
The central government deals with the matters of the union list, while the state government deals with the matters of
the state list. Thus, the exclusive power to legislate on the matters of the union list, which is the list I, is with the
Parliament. State list, which is the list Il covers, matters like sanitation, the health of the public, drainage, supply of
clean water, etc. It covers matters relating to defence, military, atomic energy, regulation of oil fields, air traffic, etc.
The power of dealing with the matters of the concurrent list (list III) is shared between both the state and central
governments. It covers matters like the protection of forests, wildlife, conserving mines, population control, etc. But in
the instance of conflict, the decision of the central government prevails.
The legislative and administrative relations between the central and the state government are specifically dealt with in
Part XI of the Constitution. The power to make rules for the whole country is with the Parliament of the country,
while for the state lies with the state government of every state.
In an instance of passing state laws after the central laws, for it to prevail, requires a Presidential assent first, as in
accordance with Article 254.
In the situation of a national emergency, Parliament has the power to legislate the state subjects also. The division of
these legislative powers is essential to make provisions that can deal with environmental problems.

International Agreements Environmental

A plethora of international agreements dealing with environmental protection have been made, and India has been a
signatory to them. Since the Stockholm Declaration in 1972, it has been held that the world has one environment.
India, being a signatory to such international pacts, is under an obligation to translate those provisions and follow
them in the country. This has been clearly stated in Article 51(c) of the Indian Constitution that the state shall foster
respect for international law and the obligations of the treaties.
Another essential provision dealing with protecting the environment is Article 253 of the Constitution, which
empowers the Parliament of our country to make laws that can be applicable to the whole or any territory of the
country for implementing any agreement or convention signed with other country or countries.
Parliament can further legislate to implement decisions taken at any conference on an international level. Any
provision made in the context of environmental protection by Article 253 read with articles 13 and 14 cannot be
questioned before the court of law on the grounds of no legislative competence.
With the use of this power, it is pertinent to know that Parliament has enacted the Air ( Prevention and Control of
Pollution) Act 1981 and the Environment Protection Act 1986. It has been clearly stated in the Preamble of these acts
that the purpose of their enactment was to implement the decisions taken at the United Nations Conference on the
Human Environment, held at Stockholm in the year 1972.
In Vellore Citizens' Welfare Forum v. Union of India, the Supreme Court held that it is essential to incorporate
international customary laws in the municipal laws, provided they are not contrary to them. It is an accepted principle
of law. Thus, it was considered essential to follow international laws by the domestic courts of law.

Obligation of the State and Environmental Protection

The authorities are under the obligation to follow the law and regularise their conduct for the benefit of the people
who have elected them. Article 47 puts an obligation on the state to it shall regard the rising level of nutrition and
standard of living of its people. Also, the primary duty of the state shall be to improve public health. It is the
responsibility of the state to prohibit, except for medicinal purposes, the consumption of alcohol and drugs that can be
injurious to the health of living beings and pose a great threat to their lives.
From the word "responsibility", it can be interpreted that the state shall take effective, adequate and necessary steps to
improve the health and standard of living of all and promote awareness in the context of environmental protection. In
the environment development projects cannot be taken up by the individuals which harm society as a whole.
Thus, the state needs to keep a stringent check on these activities and projects.
There have been various reasons due to which the level of pollution in the environment is constantly increasing. For
eg, water pollution is commonly caused due to the draining of impure water into the rivers and which not only pollutes
the natural resources of the country but also affects the health of citizens. This led to the urgent need to make
provisions to obligate the state to preserve and protect the environment.
In the case of Hamid Khan v. State of Madhya Pradesh, the state was negligent in supplying water from the
handpumps, causing colossal damage to the citizens, which affected their health massively. Hence, due to this gross
negligence on the part of the state, it was held that the state failed to perform its basic duty.
In the year 1976, the constitution was amended. With this amendment, Article 48-A was inserted in the constitution
with the aim of affording better provisions so as to preserve and protect the environment. The provision of this article
imposes the duty on the state to protect and improve the environment and safeguard the forests and wildlife of the
country. The word "Environment" has been interpreted widely in this article. The state shall not only play the role of
being protectionists but also enact adequate measures for the improvement of the environment.
Every natural resource is interconnected with other natural resources of this country. Forests are directly linked with
providing pollution-free air, helping in reducing global warming and are also connected with water resources. They
help in maintaining the ecological balance. Thus, this resource is crucial, and hence, its protection is equally important
to avoid atmospheric pollution. Hence, the specific insertion of this section is justified.

Obligation of citizens to environmental protection

The duties of the state in protecting the environment are the rights of the citizens. The concept of rights and duties
respectively, coexist. They are interconnected if citizens have the right to a decent standard of living and a pollution-
free environment, then at the same time, they are obliged to protect it and not carry on activities that prove to be
dangerous for society at large and all other living beings.

The concept of rights was quite prevalent in comparison to the concept of duties before the 42nd Amendment of the
Constitution. More Importance was attached to rights than duties by the supreme law of the land, but drafters of the
constitution felt that shoulder the burden of protecting environment between both the state and the citorers. Also,
citizens were concerned with the rights and started neglecting their duties. Thus, part IV-A was reserved by the
Constitution (Forty-Second) Amendment Act, 1976.

Part IV-A of the Constitution deals with Fundamental Duties. Artinis $1, and specifically deals with the fundamental
duty of the citizens to protect and improve the natural environment, which includes forests, lakes, wildlife, and to have
compassion for living creatures. Like the duty of the state, it is the duty of all citizens not only to protect the
environment but also to take measures that are adequate to improve the environment.

Nature has gifted us with the resources and a pollution-free environment, and thus, this casts a duty upon the citizens
to keep these resources in a condition for future generations. Hence, the principle of intergenerational equity plays a
major role in environmental protection through the sustainable use of natural resources.

In Kinkeri Destay, Himachal High Court that Article 48-A and Article St-Alg) was held that it is both constitutional
painter to the state and the constitutional duty of the citizeris not only protect the environment but also improve it and
to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all other water resources of
the country.

The negligence to abide by the order or perform the duty is nothing basically the straight betrayal of the fundamental
law of the land.

In the case of betrayal, the courts cannot remain silent spectators. A court can intervene at any time to implement the
provisions by issuing writs or give necessary directions that it thinks fit, and

In Colin State of Nathan was being negligent in carrying on Ons, the municipality of Jaipur basic duty of maintaining
the hygiene of the state. This caused acute sanitation problem thereby leading to the to have hazardous effects on the
lives of the people of the state. Mr Koolwal, along with other residents, moved an application under Article 228 of the
indian constitution before the High Court, highlighting the gross negligence of the municipality.
While constraing the true scope of Article ST-A in this case the court explained that this article is not only a duty but
is aright created in favour of the citizens to have the locus standing to move to the court to have a check on the
conduct of the state activities, whether the authorities performing their duties or not by the fundamental law of the
land. The right to move to the court is granted to citizens for the proper enforcement of the state's duties and their
relevant departments, local bodies, etc.

Being negligent in maintaining hygiene and sanitation standards slowly affects the lives of living beings and poisons
the environment at large. This infringes the fundamental right to life of the citizen as provided under Article 27, which
also extends to having a decent standard of living and a clean and safe environment and thus, citizens protecting their
fundamental right to life from being infringed is justified. Thus, the court directed the municipality to remove the dirt
and all the filthy material that was posing a great threat to the lives and health of the people.

In another case of ice Foundation the State of Gos, the petitioner was a society registered under the rules relating to
registration of societies and its members were the citizmas of midla who had a fundamental duty to protect and
improve the environment, lakes, forests, tiers and have compassion for Iliving creatures as laid down under article 57-
A The question of whether the society had locus standi to move to the court or not was raised before the court.

The answer to this question the court and the Petitioner given in a very affirmative manner by held that the society had
the same fundamental duty. Held to have a locus standi to move to the court to only prevent degradation of our
ecology but also form and implement provisions to rehabilitate the ecology, thereby maintaining ecological balance

Public interest litigation was filed before the high court by five persons who were residents of a specific area, in the
case of stars Champaran State of Bihar, to seek directions of the court for the closure of the Tyre retreading plant, in
the interest of public health. This plant was situated in the residential area and was emitting carbon dioxide along with
other obnoxious gases, causing harm to the environment. The respondents were directed to wind up the plant in the
interest of environmental protection, which is considered a fundamental duty under Article 51-A.

Right to Life and Environmental Protection

Article 23 of the Constitution provides for the fundamental right to life. It states that no person shall be deprived of
their right to life or personal liberty except following procedures established by law. The words "except by procedures
established by law can he interpreted to mean that this provision is subject to exception and is regulated by law, which
varies from case to case.
Since the provision begins with the wont no that is the reason it has had a negative impact. But post Maneka period,
this provision has been given a positive interpretation and positively imposed a duty on the state to enforce the due
Implementation of this law.

Hight to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean
water and clothes. The right to have extends to having a decent and clean environment in which individuals live safely
without any threat to their lives. An environment shall be free from diseases and all sorts of infections.

This is crucial because the right to life can be fulfilled only when Ives clean, safe and disease-free environment,
otherwise granting such right would prive to be meaningless. This aspect of Article 21 has been evidently discussed in
the case of Hurtigt and the Karate of Uttar Pradesh, where the petitioner, along with the other citizens, wrote to the
Supreme Court expressing their views against the progressive mining which denuded the Mussoorie his of trees and
forests and caused soil erosion. This led to an adverse effect on the environment and resulted in landslides along with
the blockage of underground water channels.

The registry was ordered by the Hon'ble Supreme Court to consider this letter as a writ under Article of the
Constitution.

An expert committee. Appointed in this behalf by the Supreme Court to advise the Hon'ble court on some technical
issues. Based on the report provided by the expert committee, the court ordered the Imestone quarries to be closed
because it was infringing the right to life and personal liberty. Quarrying operations lead to ecological degradation and
air and water pollution, which affect the lives of the people to e great extent.

In L.K. Koulwal State of Rajasthan and Ors, Hajasthan High Court held that maintaining the quality of the
environment, sanitation and health is covered under the purview of Article 21 of the Constitution Because non-
compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of
a citizen.

In Charan Lal Sahushi, it was held that the state must take adequate and effective steps for the enforcement and
protection of Constitutional rights guaranteed under Article 21, 48-A and S1-A(g).
In M.C. Mehta v. Union of India, due to stone crushing activities in and around Delhi were causing a huge problem of
pollution in the environment. The court was conscious of the inevitable consequences and the ecological problems
caused due to the industrial activities in the country. In the name of environmental development, it cannot be
permitted to degrade the quality of the ecology and increase different forms of pollution to the extent that it becomes a
health hazard to the lives of all citizens. It was further held that citizens have a right to clean air and a pollution-free
environment in which they live.

Furthermore, the scope of Article 27 was broadened by the judiciary to include under its purview the right to
livelihood as well. It includes the right of zenso their livelihood along with the right to life. The wider interpretation of
this article has proved to be beneficial in keeping a strict check on the conduct and actions of the government in the
context of measures taken by the authorities to protect the environment. It is also beneficial in keeping a check on the
activities of the state, which can have a massive impact on the environment, the health of the individuals and a threat
to the livelihood of the poor.

Indian judiciary has been very conscious while dealing with the matters of development and environmental protection
to avoid the conflict between the two aspects.

In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone were using coke and coat ordered to be
riccatad Indusmal fuel These industries alternativa provided under Agra Master Plan, The rights and duties of the
workmen in the industries were abo specified by the court following the principle of sustainable development’

Right To Equality and Environmental Protection

Equality before the law and equal protection of the law have been granted under article of the Constitution. This
fundamental right implicitly casts a duty upon the state to be far while taking actions in regard to environmental
protection and thus, cannot infringe article 14 in cases of exercise of arbitrary powers on behalf of the state authorities,
the judiciary has played a strict rolle in disallowing the arbitrary sanction. Use of discretionary powers without
measuring the interest of the public violates the fundamental nght of equality of the people.

Bangalore Medical Trust VS Madeppe, an improvement scheme. Wes prepared by the City Improvement Board of
Bangalore to extend the city. A low-level park was to be developed for which an area was kept under this scheme. But
under the direction of the chief minister, the area kept for the low-level pack was to be converted into the chic amenity
site where the hospital was to be constructed. As soon as the construction began, the residents moved to the high
court.

The petition filed by the residents was allowed by the high court. But in appeal to the supreme court, the appellant
contended that the power to allot sites is completely a discretionary one and the developing authority has the right to
allow the site for making hospital tather than a park. And thus, the diverted use of the land was justified in the eyes of
the appellant.

By explasing the importance of open spaces and parks in the development of urban areas, the supreme court rejected
the appeal. The Hon'ble court further stated that the open spaces, recreation, playing grounds and protection of
ecology are the matters of vital importance in the intesest of public and crucial for the development Keeping open
spaces for the interest of the public is justified cannot be sold or given on lease to any private person solely for the
sake of monetary gains.

Freedom of Speech and Expression and Environment

Right of speech and expression fundamental right expressty mentoned in artiode 10/7) of Port Ill of the Constitution.
There have been a number of cases where people have approached the court through the way of apeech and expressing
themselves by willing letters ike that in the case of Rural Litigation and Entitlement Kendra, Dehradun

State of Uttar Pradesh where they have expressed the violation of their right to have a clean and safe environment and
a right to livelihood

In India, the media been playing a crucial role in moulding the perception of people in issues relating to the
environment. Thus, Article 19(1)(a) le interpreted to include the freedom of the press as well.

Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any
place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an absolute right and thus,
has reasonable restrictions to it. Article 19(6) of the Constitution lays down the reasonable restriction to this
fundamental right to avoid the environmental hazards.
The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a
trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot
cause harm to the environment.
In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court that the industries who did not comply or
adhere to, with the prior direction of the Hon'ble court regarding the installation of air pollution controlling system
should be closed. In this case, the supreme court laid down its greater emphasis on Article 19(6) of the Constitution.

In S. Jagannath v. Union of India, sea beaches and sea coasts were considered to be

the gifts of nature, by the Hon'ble supreme court and any such activity which pollutes these natural resources or the
gift of nature cannot be permitted to function. In this case, a shrimp farming culture industry by modern method
causing degradation to the ecosystem, discharge of polluting effluents, polluting the potable ground-water and
depletion of the plantation. All of these activities were held to be violative of constitutional provisions and other
legislation dealing with environmental matters, by the court.

The court further held that before the installation of any such industry in a fragile coastal area it is essential for them to
necessarily pass the strict environmental test. In other words, reasonable restrictions can be laid in accordance with
Article 19(6) of the Constitution.

Role of the Supreme Court in environmental protection

In lieu of the wide range of cases dealt with by the Supreme Court with regard to environmental protection, a plethora
of judgements have been passed which have laid down various principles to be taken care of before indulging in any
activity which might pose a threat to the environment. Also, different aspects of the environment have been
highlighted by giving them immense importance like natural resources. Air and water have been given the status of
the gift of nature and inalienable part of life.

While incorporating the important features to the fundamental right provided in Article 21, certain principles were
ascertained by the supreme court to be necessarily ensured for the protection of the atmosphere, which are as follows-
Polluter Pays Principle

The basic concept behind this principle is that if you make a mess, it becomes your duty to clean it up". The polluter
pays principle does not lay emphasis on the 'fault' rather on the curative approach to repair the ecological damage
caused by any person or group of persons. This principle was for the first time referred to in the year 1972 in the
OECD Guiding Principles concerning International Economic Aspects of Environmental Policies

Further, this principle was also applied in the case of Vellore Citizens Welfare Forum v. Union of India. In M.C
Mehta v. Union of India and Ors(Calcutta Tanneries Case), the polluter pays principle was applied where industries
were directed to be relocated and these industries were ordered to pay 25% of the cost of the land,

The industries which did not pay the cost of the land and did not comply with the direction of the court were further
directed to be closed. The Mon'ble court again restored to the directions which were earlier given in the Vellore
Citizens Welfare Forum v. Union of India.

Precautionary Principle
Principle 15 of the Rio Declaration provides for the precautionary principle. According to this. In order to protect the
erment, it is essential to apply the precautionary principle. This principle means that where there is a chance of great
threat or irreversible damage to the environment, lack of full scientific certainty cannot be taken as a reason of not
issuing the cost-effective methods.

In M.C Mehta v. Union, popularly known as Taj Mahal Case, was another judgement of the court passed on the basis
of the precautionary principle. In this case, public interest litigation was filed alleging the degradation of Taj Mahal
due to environmental pollution. Court referred the case to the expert committee to seek technical on the matter. On the
basis of the report of the committee. This monument is a monument of international repute. The industries located in
the Taj Trapezium Zone(TTZ) were using coke/coal as the industrial fuel, thus emitting effluents.

It was held by the court that, the Taj apart from being a cultural heritage, is also an industry by itself and thus, it was
directed to all the industries operating in TTZ to use natural gas as a substitute for coke/coal as an industrial fuel and if
they cannot be restored to it for any reason, they must stop functioning and they may relocate themselves as per
directions of the. The industries on the relocation in new areas were to be given incentives.

The doctrine of Public trust

This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life
like air, water etc hold great importance to the people at large that it would be completely unjustified to make these
resources available to the private ownership. Since these resources are the gift of nature that is why they should be
made freely available to every individual of the society irrespective of the status in life. The doctrine obliges the
government to protect resources for public use rather than being exploited by a private person for making economic
gains.

Thus, commercial use of natural resources is completely prohibited under this doctrine. For the effective and optimum
utilization of resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens are
empowered to question the authorities if resource management is ineffective.

In M.C Mehta v. Kamal Nath, 1997, the state government granted a lease of riparian forest land to a private company
having a mote located at the bank of river Beas, for commercial purposes. The hotel management was intervening
with the natural flow of the river by blocking the natural spill channel of the river. This was questioned before the
court through public interest litigation. The court explained the scope of public trust doctrine and observed that the
doctrine rests on the primary principle that certain resources like air, water, sea and forests have great importance to
people and it would be unjustified to make them subject to the private ownership.

Sustainable Development

The term sustainable development was for the first time used at the cocoyoc declaration. Thereafter it received further
impetus through the Stockholm declaration where it was held that the world has just one environment and the man is
both the creator and moulder of the environment. Further, in the Brundtland report, the definition of sustainable
development was given according to which it is the optimum utilization of resources for both the present and future
generations. Thus, intergenerational equity is a must. Resources have to be protected for both the present and future
generations.
Conclusion

This article begins with laying down emphasis on why environmental protection is necessary, why did a need arise to
protect the environment followed by the causes of ecological degradation in the introductory part. Various reasons
have been considered to be a major factor in polluting the environment and affecting the lives of the people and posing
a great threat to other living beings of the country.

In earlier times, the word "environment" was not specifically mentioned in the Constitution and no specific provisions
were laid down in the Constitution to deal with the environmental hazards and to regulate the activities of the people
who thereby were contributing a huge part in degrading the quality of the environment in the name of exercising their
fundamental rights. The constitution is the supreme law of the land. Thus, inserting the clauses to specifically deal
with the environmental issues would prove to be beneficial for the environment.
42nd Amendment to the Indian Constitution proved to be a solution for this major health hazard. The provisions in the
article begin with highlighting the provisions from the base. Starting from the words democratic, socialist and republic
used in the Preamble to the Constitution and its connection with the protection of the environment. Followed by duties
of the state to protect the environment as being an authority elected by the people they are obliged to work for the
people. Then the concept of rights and duties has been dealt with, wherein the right of a citizen to have a healthy
environment has been mentioned and also the duties of citizens towards the environment in which they live to protect
and preserve it.

A number of landmark cases have been mentioned to make the concept even more clear and how this plethora of
judgements have clearly mentioned the in portance to protect this environment. It can also be concluded that the
supreme court has played a major role in laying down the environmental jurisprudence. Also, fundamental rights are
essential and cannot be infringed upon but in accordance with the reasonable restrictions can be dealt with.
To have a healthy environment is so essential because a healthy environment promotes good health of the greater
number which leads to less diversion of resources or spending of the huge amount of money on the treatment of the
people. In these situations, the poor suffer the most as they do not have enough resources to afford their health issues.
Moreover, healthy beings are valuable assets for the country who when healthy and fit can contribute much towards
the economy and develop the nation thoroughly by paving a path of progress, generating employment and increasing
the GDP.