The Constitution is known as the “basic law of the land” from which all other laws derive their sanctity or validity. Therefore, it must be a living and growing law— means it must be able to cope with the newer situations and development. That is why, as and when it is felt that a special situation has arisen and the present constitutional provisions are not adequate and cannot deal with the new development effectively, they are amended by Parliament from time to time. The then Prime Minister of India, Mrs Indira Gandhi, was the first head of state to address the first International Conference on Human Environment at Stockholm in 1972; she voiced deep concern about the degradation of the environment and eco-imbalances. She also emphasised that pollution, population and poverty are inter-related problems and there must be an integrated approach to deal with them. India was also one of the signatories of the Stockholm Declaration which is known as the Magna Carta on Human Environment. Therefore, to fulfil its promise made at the Stockholm Conference, the Indian Parliament passed the 42nd Amendment to the Constitution in 1976 and incorporated specially two articles relating to protection and improvement of the environment. Thus, India became the first country in the world to have provisions on the environment in the Constitution.
CONSTITUTION AND 42ND AMENDMENT OF 1976
Originally the Indian Constitution of 1950 did not have explicit reference to environment protection, so there was no independent and separate provision dealing with the protection or improvement of the environment. But taking note of the Stockholm Conference and growing awareness for environmental pollution and eco-imbalances, the Indian Parliament passed a historic amendment 42nd Constitution Amendment Act, 1976. This 42nd Amendment incorporated two significant articles - Articles 48-A and 51-A(g) to protect and improve the environment. Further, it introduced certain changes in the Seventh Schedule of the Constitution. These changes are as follows:
48-A. Protection and improvement of environment and safeguarding forests and wildlife.— The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
51-A. Fundamental duties. - It shall be the duty of every citizen of India—
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
Seventh Schedule: List III, Concurrent List:
17-B. Protection of wild animals and birds.
20-A.- Population control and family planning
Thus, various entries of State List II were transferred to List III (Concurrent List) which empowered Parliament to legislate on environmental issues such as forests, wildlife, population control, family planning, etc. It was necessary to make such changes to bring uniformity in law throughout the country.
RIGHT TO POLLUTION-FREE AND HEALTHY ENVIRONMENT: FUNDAMENTAL RIGHT
The environmental laws which have been passed by Parliament and
State Legislatures are based on the recognition of clean environment as a human right or fundamental right. As it has been recognised that a a clean environment is the basic need for the survival of humanity and it cannot be ensured without ecological balance, thus, this right belongs to all as survival of mankind depends on clean, healthful or pollution free environment. Any attempt to defile, damage the natural environment would amount to violation of the human right to clean environment. The Stockholm Conference of 1972 also declared that "man has the fundamental right to freedom of equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”
Part III dealing with fundamental right [Arts. 12-35] does not have any direct bearing on environmental degradation or eco-imbalances, and has not even referred to these words at all. But the judicial pronouncements of the Supreme Court and State High Courts have significantly contributed in giving a newer and finer perspective to environment protection in the form of a fundamental right. The courts, while dealing with environmental cases, have referred and based their judgments on the right to equality [Art. 14], right to life [Art. 21], right to freedom of trade and commerce [Art. 19(1)(g)]. We will study various aspects of right to healthy, pollution-free environment vis-à-vis fundamental rights provided under Part III of the Indian Constitution.
The Madras High Court's has rightly pointed out that today's emerging jurisprudence, environment rights, which encompass a group of collective rights, are described as "third generation rights". The first generation rights are political rights, while the second generation rights are social and economical. Thus, right to have a noise-free environment is a third generation right.
The constitutional scheme to protect and preserve the environment has been provided under Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthy and pollution free environment, constitutional obligation of the State and fundamental duty of all the citizens of India to protect and improve the natural environment. The Supreme Court has clarified it in many cases. It has also been observed by the court that this scheme is based on the "constitutional policy of sustainable development which must be implemented". The court has observed:
The development of the doctrine of sustainable development indeed is a welcome feature but while emphasising the need of taking into account the ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently requires.
What the court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellant alleges. There it is also necessary to ascertain the object sought to be achieved by the Act in question and which would affect the environment. This concept has been recognised as fundamental concept of Indian law.
It is also clear that if development works have to be undertaken, it should be without damaging the forest cover and the environment. "It must be ensured that the development does not impinge upon the purity of the environment beyond restricted and permissible limits."19 It is also to be noted that Articles 14, 21 and 48-A of the Indian Constitution must be applied both in relation to an executive action as also in relation to a legislation. Judicial review of the executive and legislation can be made, may be on different principles. Ecological principles are relevant consideration in continuing town planning statutes. In Samaj Parivartana Samudaya v. State of Karnataka, the court declared that "intergenerational equity and sustainable development have come to be firmly embedded in our constitutional jurisprudence as an integral part of the fundamental rights conferred by Article 21 of the Constitution".
RIGHT TO EQUALITY AND ENVIRONMENT
The Indian Constitution guarantees "right to equality" to all without any discrimination. This indicates that any action of the "State" relating to environment must not infringe upon the right to equality enshrined in Article 14 of the Constitution. The Stockholm Declaration, 1972 also recognised this principle of equality in environmental management and it called up all the world's nations to abide by this principle. The Indian courts, on various occasions, have struck down the arbitrary official sanction in environmental matters on the basis that it was violative of Article 14 (right to equality). Because sometimes arbitrary grant of lease and indiscriminate operation of mines may jeopardise the wildlife and natural wealth of the nation, it has also been made very clear that where arbitrariness and perversion are writ large, the court has no option but to issue a writ to advance public interest and avoid public mischief which are the paramount considerations. In Kisan Bhagwan Gawali v. State of Maharashtra, the exclusion of
a particular class of grazers from consideration and inclusion of some on the ground that the excluded class was indulging in illegal grazing is violative of Article 14 and invalid. Such a policy decision is against the right to equality. The Gujarat High Court declared that imposition of restriction on the trade and operation of melting gold and silver ornaments by running furnaces and thus causing nuisance is not unreasonable and violative of Article 14 of the Constitution. It has aptly been observed that "concept of social justice and equality are complementary to each other and practical contents of right to life.”
FREEDOM OF TRADE AND COMMERCE AND THE ENVIRONMENT
Most of the pollution is mainly from trade and business particularly from industries. It has been found that tanneries, acid factories, tie and dye factories, distilleries and nowadays the hotel industries are con tributing to environmental pollution. Thus, it all relates to fundamental right to freedom of trade and commerce/business guaranteed under Article 19(1)(g) of the Indian Constitution. Some of these industries or businesses/trades are carried on in a manner which endangers vegetation cover, animals, aquatic life and human health. But, time and again, it has been made clear that this freedom of trade and commerce is not absolute and is subject to certain reasonable restrictions. Therefore, any trade or business which is offensive to flora or fauna or human beings cannot be permitted to be carried on in the name of the fundamental right. If the residential buildings are converted to commercial use, it amounts
to violation of municipal laws, master plan and environmental laws. Therefore, the Supreme Court ordered for sealing such residential premises.. It was observed that persons do not have right to carry on any trade profession in flagrant violation of regulatory provisions on massive scale. This would also result in environmental pollution.30
In M.C. Mehta v. Kamal Nath, the Supreme Court made it abundantly clear that if a hotel is discharging untreated effluent into the river Beas, thereby disturbing the aquatic life and causing water pollution, it cannot be permitted to work. Any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for "life", "would be hazardous to life". Thus, the court in the exercise of juris diction under Article 32 cannot only award damages but can also levy "fine" - exemplary damages on the erring industry/hotel which will act as a deterrent for others not to cause pollution.
In Wing Commander Utpal Barbara v. State of Assam, the court declared that a total ban on the use of polythene bags by the Magistrate by issuing an order under Section 144, Criminal Procedure Code, 1973 (CrPC) is violative of freedom of trade and business. The remedy instead of a ban could have been to take appropriate steps regulating its use and disposal and to resort to appropriate legislation for it.
Name: Rani Kumari,
B.A.LL.B Vth year