24

CHAPTER II

CONSTITUTIONAL PROVISIONS RELATED TO

PROTECTION OF ENVIRONMENT

The constitution is known as the “Basic Law of the Land” from which

all other laws derive their sanctity or validity. Thus it must be a living and

growing law – means must be able to cope with the newer situation 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 development effectively. They are amended by Parliament

from time-to-time. The former Prime Minister of India Smt. Indira Gandhi

attended the United Nation Conference on Women Environment at

Stockholm, Sweden. This Stockholm declaration is known as, “the Magna

Carta” on Human environment. The Indian Parliament passed the 42nd

Amendment to the constitution in 1976 and incorporated specially Article 48

(A), Article 51-A (g), relating to protection and improvement of the

environment. Thus, Indian became the first country in the world to have

provisions on the environment in the constitution.

The post independence era witnessed a lot of changes in the policies

and attitudes of the Governments with respect to environmental protection.

The Constitution of India, which came into force on 26th January 1950, had

few provisions regarding environmental management.

At commencement of Indian Constitution, Constituent Assembly did

not pay any specific attention towards the protection of environment. In the

25

entire debates one finds hardly any specific reference of balancing

ecosystem with the development process. There were provisions which may

be said to have relation with environment. The fundamental right to carry on

any trade or business or to hold property or the right to property may seem to

be an antithesis to maintain the natural environment. But the state had the

power to balance them in the public interest.1

The issue of environment and development did not receive any

significant recognition in the planning process until 1968. The year 1972,

marks' a watershed in the history of environmental management in India.

Prior to 1972, environmental concerns such as sewage disposal, sanitation

and public health were dealt with by different ministries of the Government

of India and each pursued these objectives without any proper co-ordination

system established at the federal or the inter governmental level.

In pursuance of 24th U.N. General Assembly Conference on Human

Environment in 1972, India setup a Committee on Human Environment

under the Chairmanship of Pitambar Pant, member of the Planning

Commission, to prepare the reports on the state of the Environment. The

reports indicated the need for establishing greater coordination and

integration in environmental policies and programmes, so III February 1972

a National Committee on Environmental Planning (NCEP) was established

in Department of Science and Technology. The NCEPC was an apex

advisory body in all matters relating to environmental protection and

improvement.

1 P. Leela Krishnan, Law and Environment, 1992, p. 7

26

Until the fifth general election of 1977, none of the political parties

India considered environmental problems worthy of inclusion in their

election platforms. Since then, a number of environmental controversies viz.

Silent Valleys, Mathura Refinery and Acid Rain on Taj Mahal have raised

public concern. Gradually environmental problems are acquiring status.

When Congress-l came to power after January 1980 general election

immediately set up a committee chaired by N. D. Tiwari to recommend

legislative measures and administrative machinery to ensure environmental

protection. It recommended the creation of a Department of Environment

and the center that could explicitly recognises pivotal role of environmental

conservation in sustainable national development.

On the basis of the recommendations of Tiwari Committee, a separate,

Department of Environment was established on November 1, 1980. Also on

the recommendation of the Tiwari Committee the NCEP has been replaced

by a National Committee on Environmental Planning (NCEP) similar to its

predecessor.

The NCEP was formed in April, 1981 with authority to prepare an

annual "State of Environment" report; to arrange public hearing of

conferences on significant environmental issues, and to establish a

nationwide Environmental Information and Communication System to

propagate environmental awareness through mass media. Since these issues

in addition to its management functions, overlap in some respects with

Department of Environment, there is the possibility of one agency being

relegated to a subservient role.

27

Constitutional Direction to State & Citizens for Protection of Environment

Part - IV of the Constitution is concerned with the directive

principles of State policy. Constitutional direction to State concerning

environment has been incorporated in Part IV of the Constitution. The

Constitution (Forty-Second Amendments) Act, 1976 added a new directive

principle in Article 48A which deals specifically with protection and

improvement of environment. It proclaims as follows: The state shall

endeavor to protect and improve the environment and to safeguard the

forests ad wild life of the country.2

In this, the Constitution of India became one of the rare

constitutions of the world where specific provisions were made in the

Supreme Law putting obligation on the "State" under Article 48 (A) as well

as "Citizens" under Article 51-A(g) to 'protect' and 'improve' the

environment. There is, thus, a positive development of Indian law. In India

the judicial attitude in protecting and improving environment is positive and

provides a testimony of the fact that directive principles are not only 'guiding

principles' of policy but they are justifiable and have to be given effect.

In the case of Shri Sachidanand Pandey v. State of W.B.3 the

Supreme Court remarked that whenever a problem of ecology was brought

before the Court, the Court was bound to bear in mind Articles 48 (A) and

51-A (g) of the Constitution. In the same continuation the Court further

observed: When the Court is called upon to give effect to the Directive

Principle of State Policy and Fundamental Duty, [Articles 48 (A) and 51-A

2. Inserted by the Constitution (forty-second Amendment) Act, 1976, Section 10 (w.e.f. 3.1.1977)

3. AIR 1987 SC 1109

28

(g) in this case], the Court is not to shrug its shoulders and say that priorities

are a matter of policy and so it is a matter for the policy making authority.

The least the Court may do is to examine whether appropriate considerations

are borne in mind and irrelevancies excluded. In appropriate cases, the Court

may go further, but how much further must depend on the circumstances of

the case. The Court may always give necessary directions. However, the

Court will not attempt to nicely balance relevant considerations. When the

question involves the nice balancing of relevant considerations, the Court

may feel justified in resigning itself to the acceptance of the decision of the

concerned authority.4

From the above remarks of the Supreme Court it is clear that in

certain cases the judges can take affirmative action directing the other organs

of the State, namely, the legislature and the executive, to comply with the

statutory obligation of protecting and improving the environment.5 However,

it may be pointed out that if the government is alive to the various

considerations requiring thought and deliberation and has arrived at a

cautious decision after taking them into account, it may not be proper for the

Court to interfere in the absence of mala fides.6

In the case of T. Damodhar Rao v. S.O. Municipal Corporation

Hyderabad7 it was pointed out by the Court that in view of Articles 48 (A)

and 51-A (g) it is evident that the protection of environment is not only the

4. AIR 1987 SC 1109

5. L.K. Koolwal v. State, AIR 1988 Raj 2 at 6.

6. Dahnu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co. Ltd.,

(1991) 2 SCC 539 at 541

7. AIR 1987 AP 171.

29

duty of citizens but it is also the 'obligation' of the State and all other State

organs including Courts.8

In the case of Kinkri Devi v. State,9 the Himachal Pradesh High

Court laid down that in view of Articles 48 (A) and 51-A (g) there is both a

constitutional pointer to the State and a constitutional duty of the citizens not

only to protect but also to improve the environment and to preserve and

safeguard the forests, the flora and fauna, the rivers and lakes and all other

water resources of the country. The neglect or failure to abide by the pointer

or to perform the duty is nothing short of a betrayal of the fundamental law

which the State and, indeed, every Indian, high or low, is bound to uphold

and maintain. Otherwise the Court cannot remain a silent spectator to ensure

the attainment of the constitutional goal of the protection and improvement

of environment, the Court can intervene effectively by issuing appropriate

writs, orders and directions.

As regards the Indian Constitution, it is submitted that there was no

need to incorporate a separate chapter on fundamental duties because

limitations on the fundamental rights and the provisions of detailed directive

principles are sufficient in this direction. Article 51-A (g) uses the words

"Natural Environment" - but in the modern industrialised civilization such a

concept is misnomer. Today the polluted environment has taken the place of

natural environment which has become a part of life.

Clause (g) of Article 51-A provides for protection and

improvement of environment and it specifically puts stress on water

pollution by including matters, viz, forests, lakes, rivers, etc. But it should

8. Ibid, at 181

9. AIR 1988 HP 4 also General Public of Saproon Valley v. State of HP, AIR 1993 HP 52.

30

not mean that other pollutions like noise do not cause any concern. The level

of noise pollution in big cities like Bombay, Calcutta, Delhi and Madras is

not lower than cities like London and New York. Noise pollution is

responsible for hypertension fatigue, deafness, allergies, loss of sleep, loss of

agency, loss in expectation of life. It makes a man irritated and neurotic. It

has even damaged human foetus. Thus it is a slow agent of death.

Indian Constitution is amongst the few in the world that contains

specific provisions on environmental protection. The Indian Constitution is

the first Constitution in the world made a provision for the protection of

environment.10 The directive principles of state policy and the fundamental

duties chapters explicitly enunciate the national commitment to protect and

improve the environment.

The Constitution being Supreme law of the land shall be binding

on not only the citizens and non citizens but also on the State itself.

(1) The Forty Second Amendment Act, 1976

Environmental protection and improvement were explicitly

incorporated into the Constitution by the Constitution (42nd Amendment)

Act of 1976. Article 48A was added to the directive principles of state

policy. It declares: "The state shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the country".

Article 51-A (g) in a new chapter entitled "Fundamental Duties",

imposes a similar responsibility on every citizen 'to protect and improve the

natural environment including forests, lakes, rivers and wild life and to have

10 C.M. Jariwala, "The Constitution 42nd Amendment Act and the Environment", Legal Control ofEnvironmental Pollution, 1980, p. 1

31

compassion for living creatures ... ".

Although the language in the two Articles differs, the differences

appear to relate to form rather than to substance. Together, the provisions

highlight the national consensus on the importance of environment

protection and improvement and lay the foundation for a jurisprudence of

environmental protection.11

(2) Fundamental Duty of the State: Article 48 (A)

In pursuance of United Nations Conference on Human Environment

Convened at Stockholm in 1972, the nations of the world decided to take

appropriate steps to protect and improve human environment. The sequel to

this, in India 4211d Amendment to the Indian Constitution inserted Part IV-

A of the constitution which enumerates certain fundamental duties under

Articles 48 (A) and 51-A (g).

Article 48 (A) says, "The state shall endeavour to protect and improve

the environment and to safeguard the forests and wildlife of the country".

This directive principle required that the 'State shall endeavour to protect

and improve the environment" and "to safeguard the forests and wildlife of

the country".

Article 48 (A) also provides for the safeguards of forest and wildlife.

Safeguarding of forests is important factor which affects environment

because the forests maintain balance between the oxygen and carbon dioxide

in the atmosphere which constitutes an important safeguard against air

11 MC. Mehta v. State of Orissa, AIR 1992 SC 223, 227.

32

pollution. The Constitution (42nd Amendment) Act, 1976 was a turning point

and gave the Centre also the power to legislate on forests.12 Parliament has

imposed a new constitutional obligation on the State by incorporating

Article 48 (A) in the Constitution.

(3) Fundamental Duty of the Citizens: Article 51-A (g)

Article 51-A (g), specifically deals with the fundamental duty with

respect to environment. It says "it shall be 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." Article 51-A (g)

postulates fundamental duty on all citizens to preserve and protect the

environment and have compassion to all living creatures.

Fundamental duty with respect to environment is intended to

promote people's participation in the protection of environment. Further it is

important to note that the protection of environment is a matter of

constitutional priority. Environmental problem is the concern of every

citizen. Neglect of it is an invitation of disaster.13

The nature has given us the gift of pollution free environment.

Article 51-A (g) refers to 'natural environment'. The fundamental duty

imposed on every citizen is not only to protect environment from any kind of

pollution but also to 'improve' the environment quality if it has been

polluted. In this way the underlined emphasis of this fundamental duty is

12 Seventh Scheduled, List III item 17-A, “Forest was deleted from the State List and included in theConcurrent List ”

13. V.K. Lakshmipathy v. State, AIR 1992 Kant. 57 at 60.

33

that every citizen has a duty to make an endeavor to preserve the

environment in the same way as nature has gifted to all of us.

It may be pointed out that under Article 51- A only ‘citizens’ are

under the obligation of fundamental duties. The Parliament has used the

word 'citizens' instead of the word 'subjects' to create a feeling of citizenship

amongst the masses and also to see that the persons living in the country do

not feel that they are subjects. We were used to be the subjects prior to

independence, but now we have ceased to be subjects and now we are the

citizens of the country. The requirement of the time is that we should be real

subjects of the country striving towards excellence in all spheres of

individual and collective activity including the protection of environment.14

The question is how to ensure compliance of fundamental duties.

At the time when the fundamental duties were included in the Constitution it

was thought that the fundamental law of the land reminds the citizens of

their constitutional obligations. They could not be directly enforced. But, in

course of time the judicial activism provided an impetus to achieve the

desired objectives underlying the fundamental duties, particularly, Article

51-A (g) relating to the environment.

The true scope of Article 51-A (g) has been best clarified by the

Rajasthan High Court in the leading case of L.K. Koolwal v. State.15 The

material facts of this case were that the Municipal authority under the

Rajasthan Municipalities Act, 1959, was charged with 'primary duty' to clean

14. L.K. Koolwal v. State, AIR 1988 Raj. 2.

15. L.K. Koolwal v. State, AIR 1988 Raj. 2, p. 2

34

public streets, place and sewers and all spaces, not being private property,

which are open to the enjoyment of public, removing of noxious vegetation

and all public nuisance, and to remove filth, rubbish, night soil, odor or any

other noxious or offensive matter. Mr. M.L. Koolwal moved the High Court

under Article 226 for exercising writ jurisdiction and highlighted that the

Municipality has failed to discharge its 'primary duty' resulting in the acute

sanitation problem in Jaipur which is hazardous to the life of the citizens of

Jaipur. The Court allowed the petition and clarified the real scope of Article

51-A in the following words:

"We can call Article 51A ordinarily as the duty of citizens, but in

fact it is the right of citizens as it creates the right in favor of citizens to

move the Court to see that the State performs its duties faithfully and the

obligatory and primary duties are performed in accordance with the law of

the land. Omissions for Commissions are brought to the notice of the Court

by the citizen, and thus Article 51-A gives a right to the citizens to move the

Court for the enforcement of the duty cast on State, instrumentalities,

agencies, departments, local bodies and statutory authorities created under

the particular law of the State."16

The Court appreciated the action of the petitioner who as a citizen,

highlighted the problem of the city and brought to the notice the conditions

which were hazardous to the life of citizens. The Court directed the

municipality to remove dirt, filth etc. from the city within the period of six

months. The Court explained that it was not the duty of the Court to see

16. L.K. Koolwal v. State, AIR 1988 Raj. 2 at p. 4.

35

whether the funds were available or not. It is the duty of the Administration

and Municipal Council to see that the primary duties were fulfilled.

Concluding the judgment, the Court observed that "if the legislature or State

Government feels that the law enacted by them cannot be implemented, then

the legislature has the liberty to scrap it, but the law which remains on the

statutory books will have to be implemented, particularly when it relates to

primary duty."17

(4) Legislative Power under Constitution

The 42nd Amendment to the Indian Constitution also made certain

changes in the Seventh Schedule to the Constitution. Originally forests were

a subject included in list II, Entry 19. Since no uniform policy was being

followed by the State in respect of protection of forests, now this subject has

been transferred to List III and hence, now the parliament and State

Legislature both may pass legislations.

(i) Union List: Powers of Parliament to make laws:

(a) Industries: Entry 52

(b) Regulation and Development of Oil Fields and mineral

resources—Entry 53.

(c) Regulation of mines and mineral development—Entry 54.

(d) Regulations and development of inter-state rivers and river

valleys—Entry 55.

(e) Fishing and fisheries beyond territorial waters

17. L.K. Koolwal v. State, AIR 1988 Raj. 2 at 6; Similar is the case in Ratlam Municipality v.

Vardichand, AIR 1980 SC 1622.

36

(ii) State list: Powers of State legislatures to make laws:

(a) Public health and sanitation—Entry 6.

(b) Agriculture, Protection against pests and prevention of plant

disease—Entry 14.

(c) Land, Colonization etc.—Entry 18.

(d) Fisheries—Entry 21.

(e) Mines and Minerals subject to provisions of list 1—Entry 24.

(f) Industry subject to the provisions of list 1—Entry 25.

(g) Burials and burial grounds, cremation and cremation grounds—Entry 10.

(h) Agriculture, protection against pests and prevention of plant

diseases—Entry 14.

(i) Preservation and prevention of animal diseases—Entry 15.

(j) Ponds and Prevention of Cattle diseases—Entry 16.

(k) Water—Entry 17.

(l) Gas and Gas work—Entry 25.

(iii)Concurrent List: Both Parliament and State legislatures have powers to

make laws:

(a) Forests—Entry 17-A.

(b) Protection of wild animals and birds—Entry 17-B.

(c) Economic and social planning—Entry 20.

(d) Population census and planning—Entry 20-A.

(e) Prevention of the extension from one state to another of infection

or contagious diseases or pests affecting men, animals or plants—Entry 29.

(f) Factories—Entry 36.

(g) Boilers—Entry 37.

(h) Electricity—Entry 38.

37

Thus, it is clear that our Constitution enshrines ample provisions to

deal with environmental pollution. Under these a good number of statutes

have been passed and they are capable of producing desired results.

Accordingly to the N.D. Tewari Committee Report,18 there are two hundred

Central and State Statutes19 which have some bearing on environmental

protection. However, the provisions contained therein are not more than

piecemeal legislations pertaining to environment. The truth is that these

scattered provisions were made keeping in mind something different from

environment. However, under the impact of Stockholm Declaration attention

is focused on the question of environment and new legislations have come

into existence.

Further it may be stated that the National Committee on

Environmental Planning20 is doing commendable work in the areas of

appraisal of development projects, human settlement planning, and

formulation of environmental planning and in creating awareness at various

levels.

18. This Committee was constituted by the Government of India, Department of Science and

Technology to make recommendation regarding Legislative measures and Administrative

Machinery for ensuring Environmental Protection. Report was submitted by the Committee in

September 1980.

19. Some principal statues dealing with environment at present are; The Indian Factories Act, 1948;

The Atomic Energy Act, 1962; The Indian Forests Act, 1972; The Insecticides Act, 1968; The

Wild Life Protection Act, 1972; The Water (Prevention and Control of Pollution) Act, 1974; The

Water (Prevention and Control of Pollution) Cess Act, 1977; The Forest (Conservation) Act, 1980;

The Air (Prevention and Control of Pollution Act, 1981; The Environment (Protection) Act, 1986;

The Motor Vehicles Act, 1988; The National Environment Tribunal Act, 1995.

20. In order to control environmental pollution this Committee was constituted in April 1981.

38

Moreover, India has adopted a federal system in which legislative

powers concerning environment is shared between the Union and State

Governments. The position is that under the federal system which exists in

India, the Central Government controls the finances to large extent. It is

likely that when an industrial project is allocated to a particular State, it may

have some environmental impact in that State and thus it be opposed by the

environment and planning department of the State concerned. On the other

hand, the Central Government may threaten to withdraw the project from the

concerned State if its implementation is opposed resulting into a conflict

between environment and development. However, such conflict is taken care

of by the Environment-Impact Assessment21 (EIA) which is a legal strategy

to reconcile the conflict and to augment sustainable development because it

is necessary that consequences of projects, plans or policies at different

levels be assessed before they are executed. EIA examines these

consequences and predicts future changes in the environment. It is notable

that in India the need for EIA has been recognized even by the Planning

Commission in its seventh five year plan. However, existing administrative

machinery with its centralized environmental appraisal may lead to conflict

between the project authorities and environment authorities.22 It is therefore

21. The objectives of EIA are :

The effects of a project on environment must be assessed in order to take account of the concerns

to protect human health, to contribute by means of a better environment to the quality of life, to

ensure maintenance of the diversity of species and to maintain the reproductive capacity of the

eco-system at a basic resource of life—Observation European Economic Committee, 'EEC

Directive dated 27 June 1985, 85/337/EEC of 27 June 1985, UJL 175/40, 5 July 1985.

22. The case of conflict between environment and development authorities was highlighted by

environmentalists in the Silent Valley Project and The Tehri Dam Project.

39

suggested that project authorities should be compelled to consider all

environmental factors from the very inception of the project and any conflict

between development and environment avoided by taking into consideration

environmental costs and benefits.

Protection of wild animals and birds has also been transferred from

List II, Entry 20 to List III, Entry 17-B. 42nd Amendment Act for the first

time inserted Entry 20-A in List III which deals with population control and

family planning because enormous increase in population is main cause for

environmental problems.

Neither the Constituent Assembly nor the Constitution gives any

specific place to either the environment or environmental pollution in the

distribution of legislative powers under the Seventh Schedule. Parliament,

realising its inability and different approaches of States requested some

States to move under Article 252.

Article 252, says that if it appears to the Legislature of two or more

States to be desirable that Parliament may pass law on the subject and if the

State Legislature pass resolution to the effect then Parliament may pass law

on the subject. This Article further allows other States by resolution to adopt

parliamentary legislation.

Article 253, under the Indian Constitution Parliament was conferred

with the power to make any law for implementing any treaty, agreement or

convention with any other country or countries or even any decision made at

any International conference. Association or other body, this power is

limited to implementation of decision and that too for a limited period.

40

The broad language of Article 253 suggests that in the wake of

Stockholm Conference in 1972, Parliament has the power to legislate on all

matters linked to the preservation of natural resources.

(5) Environmental Protection and Fundamental Rights

Part III of the Constitution of India incorporates fundamental rights

which have been made judicially enforceable. The Supreme Court of India

has contributed significantly specially during the 80's in broadening the

contents and contours of some of these basic rights.

Constitutional provisions relating to Fundamental Rights are also

invoked to decide cases concerning environmental problems. It is notable

that Principle of the Stockholm Declaration finds reflection in Articles 14,

19 and 21 of the Constitution of India protecting the Right to Equality,

freedom of expression and right to life and personal liberty. Principle 1 of

the Stockholm Declaration proclaims that man has the fundamental right to

freedom, equality and proclaims that man had the fundamental right to

freedom, equality and adequate conditions of life, in an environment of

quality ad permits a life of dignity and well being, and he bears a solemn

responsibility to protect and improve the environment for present and future

generations. The Permanent People's Tribunal regards the anti-humanitarian

effects of industrial and environmental hazards not as an unavoidable part of

the existing industrial system, but father as a pervasive and organized

violation of the most fundamental rights of humanity. Foremost among these

are the rights to life, health, expression, association and access to justice.23

23. Asia 1992 Permanent People's Tribunal, findings and judgments—Third Session on Industrial and

Environmental Hazards and Human Right. 19- 24 October, Bhopal—Bombay (India) at 14 (1992).

41

The constitutional provisions of Parts III and IV dealing with

Fundamental Rights and Directive Principles respectively are supplementary

and complementary to each other. Fundamental Rights are but means to

achieve the goal indicated in Part IV and thus must be construed in the light

of directive principles.24 A right can be recognized as a Fundamental Right

even though not expressly mentioned in Part III. It means that there are

various unremunerated fundamental rights in Part III and judicial activism in

India is playing leading role in interpreting various unremunerated rights in

Part III of the Constitution.25 It may pointed out that though specific

provisions for the protection of environment have been made in Part IV

dealing with Directive Principles and Part IVA dealing with fundamental

duties, even then right to live in a healthy environment has been interpreted

by the judiciary in several provisions of Part II which deals with

Fundamental Rights. In this way judiciary in India has played leading role in

providing impetus to the human rights approach for the protection of

environment. These rights are following

(i) The Right to Equality

The right to equality guaranteed in Article 14 of the Constitution may

also be infringed by government decisions that have an impact on the

environment.

Article 14, among other things, strikes at arbitrariness because an

action that is arbitrary must necessarily involve a negation of equality.

24. Unnni Krishnan v. State of A.P., (1993) 1 SCC 645 at 730.

25. Khatri v. State of Bihar, AIR 1981 SC 928

42

Article 14 of the Constitution deals with right to equality and

provides.

“The State shall not deny to any person right to equality before the

law or equal protection of the laws within the territory of India.”

The right to equality enshrined in Article 14, inter alia, strikes at

'arbitrariness' of any Government action because an action that is arbitrary

must necessarily involve negation of equality.26 As a matter of fact "equality

and arbitrariness are sworn enemies." The principle of "non-arbitrariness

pervades Article 14 as a "brooding omnipresence." If there is arbitrariness in

State action including legislative, administrative or executive, Article 14

immediately springs into action and such arbitrary action is set aside.

It is well established in a number of judicial decisions that the

requirement of equality under Article 14 is satisfied if the State action is

reasonable. In Maneka Gandhi v. Union of India,27 the Supreme Court

relying on Royappa case28 clearly read the principle of reasonableness in

Article 14. The Supreme Court held:

"Article 14 strikes at arbitrariness in State action and ensures

fairness and equality of treatment. The principle of reasonableness, which

logically as well as philosophically is an essential element of equality or

non-arbitrariness, pervades Article 14 like a brooding omnipresence."

26. Ajay Hasia v. Khalid Mujb, AIR 1981 SC 487 at 499. Mr. Justice P.N. Bhagwati first invoked the

theory of linkage between 'arbitrary action' and 'right to equality' in Royappa v. State of T.N. AIR

1974 SC 555 at 583 and held that Article 14 enshrines the 'Principle of reasonableness' which is

antithesis of arbitrariness.

27. AIR 1978 SC 597

28. Royappa v. State of T.N., AIR 1974 SC 555 at p. 583.

43

The principle of reasonableness is invoked to challenge State

action in such areas where it involves exercise of discretionary power. One

such area is urban development where permission for construction is granted

by the authorities arbitrarily 'under its discretionary powers without

evaluating public interest and without applying mind and considering

environmental impact on the society'. A good example of such situation is

found in Bangalore Medical Trust v. B.S. Muddappa.29 In this case the

Supreme Court thwarted the attempt to convert a public park site into a

nursing home.

Highlighting the importance of public parks and open space in

urban development, the Supreme Court dismissed the appeal and observed:

“Protection of the environment, open spaces for recreation and fresh air,

playgrounds for children, promenade for the residents, and other

conveniences or amenities are matters of great public concern and of vital

interest to be taken care of in a development scheme……….. The public

interest in the reservation and preservation of open spaces for parks and

playgrounds cannot be sacrificed by leasing or selling such sites to private

persons for conversion to other user……..it would be in direct conflict with

the constitutional mandate.”

R.M. Sahai, J., in his concurring judgment said: “Public park as a

place reserved for beauty and recreation……..is associated with growth of

the concept of equality and recognition of importance of common

man……….. It is a 'gift from people to themselves.' Its importance has

multiplied with emphasis on environment and pollution.”

29. (1991) 4 SCC 54

44

Rejecting the plea of discretion of the authority to convert the site

of Public Park into the hospital site, the Court held: The executive or the

administrative authority must not be oblivious that in a democratic set-up

the people or community being sovereign the exercise of discretion must be

guided by the inherent philosophy that the exercise discretion is accountable

for this action. It is to be tested on anvil of rule and fairness or justice

particularly if competing interests of members of society is involved.

The decision of the Supreme Court in the Bangalore Medical Trust

Case30 has been followed in several cases. In D.D. Vyas v. Ghaziabad

Development Authority,31 it was brought to the notice of the Allahabad High

Court that the respondents had not taken any action to develop the area

reserved for park. In fact, the respondents were marking time to carve out

plots on such open space dedicated for park in the plan and alienate the same

with a view to earning huge profits.

The Allahabad High Court relying on the dictum of the Supreme

Court in the Bangalore Medical Trust Case held that the authority or the

State cannot amend the plan in such a way as to destroy its basic feature

allowing the conversion of open spaces meant for Public Park. Issuing the

writ of mandamus, the Court directed for the development of the park within

the reasonable period of time not exceeding one year. The Court took the

view that the respondents had failed to develop the park as they remained

grossly negligent in discharging their fundamental duty under Articles 51-A

(g) and 51-A (j) and they have belied all the cherished hopes of the State and

citizens under Article 48 (A) of the Constitution.32

30. Bangalore Medical Trust v. B.S. Mudappa, (1991) 4 SCC 54

31. AIR 1993 All. 57

32. Ibid, at 62-63. also Nizam v. Jaipur Development Authority, AIR 1994 Raj. 87, Virender Gaus v.

State of Haryana, (1995) 2 SCC 577.

45

In the same series is the case of Dr. G.N. Khajuria v. Delhi

Development Authority.33 The facts in this case were that land was reserved

for park in the residential area but it was allotted by DDA for the

construction of a nursery school. Deciding the case, the Court held that

allotment amounted to misuse of power and hence liable to be cancelled.

The Court also ordered that construction raised pursuant to the illegal order

be demolished and officer of the statutory responsible for the illegal action

must be punished in accordance with law.

In Sushila Saw Mill v. State of Orissa,34 the facts were that total

ban was imposed on saw mill business or sawing operation within the

prohibited area of reserved or protected forest. The validity of such ban was

challenged. The Court upheld the ban declaring it not to be violation of

Article 14 being neither arbitrary nor unreasonable nor discriminatory.

Moreover, the principle of equality under Article 14 has been

invoked by the Supreme Court to justify the government policy in certain

cases. In Khola Muhana Primary Fishermen Co-op. Society v. State,35 the

facts were that Government had framed a policy regarding fishing in Chilka

Lake so as to protect the traditional rights of fishermen. The Court has laid

down that the aforesaid policy was neither arbitrary nor ambiguous and as

such not violation of Article 14 of the Constitution. However, in course of

judgment the Court said that adoption of extensive and intensive prawn

culture to earn 'Prawn Dollars' in disregard to ecology was not proper.

33. (1995) 5 SCC 762.

34. Ibid.

35. AIR 1994 Oris. 191

46

In “Ivory Traders and Mfg. Assn. v. Union of India” the facts were

that ban was imposed on business in animal species on verge of extinction.

The validity of such ban was challenged. Justifying the ban, the Court held

that the ban on trade in imported ivory and articles made there was not

violation of Article 14 of the Constitution and does not suffer from any

infirmity namely unreasonableness, unfairness and arbitrariness.

It is notable that Article 14 can also be invoked to challenge the

government action granting permission for mining and other activities with

high environmental impact if it is granted arbitrarily.36

(ii) Freedom of Trade

As environmental regulation groups more stringent and its

enforcement becomes more vigorous, industrial challenge to agency action

is likely to increase. Court will then need to balance environmental interests

with the fundamental right to carry on any occupation; trade or business

guaranteed in Article 19(1) (g).8 Article 19(1) (g) gives to all citizens a right

to practice any profession or to carry on any occupation, trade and. business.

The question which needs to be answered here is: Whether a person, agency

or industry has a right to carry on a business or trade in a manner which is

causing an injury to the public and posing health hazard to the society at

large? This question came for consideration in the case of “Abhilash Textiles

v. Rajkot Municipal Corporation”. In this case the petitioners were carrying

on the business of dyeing and printing works at different places in the city of

Rajkot. It was alleged that the petitioners were discharging dirty water from

the factory on the public road and public drainage without purifying the

same, thereby causing damage to the public health.

36. Kinkri Devi v. State of H.P., AIR 1988 H.P. 4 at 9.

47

The Municipal commissioner, Rajkot served a notice on the petitioner

ordering them to prevent the discharge of dirty water without the same being

purified. Failure to comply with the notice gave the Commissioner the

authority to take steps to close the factory. It was contended on behalf of the

petitioner that before issue of the notice, the Municipal Commissioner

should have heard the petitioner as the proposed action would render a large

number of persons unemployed. It was acknowledged that Article 19(1) (g)

of the Constitution confers a right upon every citizen to carry on any trade of

business. However, this right is subject to reasonable restrictions which may

be imposed in the interest of the general public as provided in Article 19(I)

(g) itself. Therefore, no one has a right to carry on a business so as to cause

nuisance to the society. Similarly, the business cannot be carried in the

manner by which the business activity would become a health hazard to the

entire society. The court held that the petitioners cannot be permitted to reap

profits at the cost of the public health as they had no right to carry on their

business without complying with the requirement of the law. Thus, the

present case throws a good deal of light on the constitutional right to

carrying on business vis-a-vis its impact on the public health which is an

important component of environment protection.

Article 19(1) (g) provides that all citizens shall have the right to

practice any profession, or to carry on any occupation, trade or business.

Accordingly, in cases involving closure orders to the polluting industrial

unit, the Courts face the task of balancing environmental imperative with the

fundamental right to carry on any occupation, trade or business guaranteed

under Article 19 (1) (g) of the Constitution. However, their right is not

48

absolute. It is subject to Article 19 (6) under which reasonable restrictions'

can be imposed upon this right in the 'interest of the general public'. In this

way environmental interests can be protected from the hazards of any trade

or business.

In Abhilash Textile v. Rajkot Municipal Corporation37 notice was

issued by the Municipal Commissioner to the petitioners to prevent

discharge of dirty water on public road and in drainage within certain time.

It was also stated in the notice that in case of failure to comply with notice,

the factories would be closed.

The Court held that one cannot carry on trade or business in the

manner by which the business activity becomes health hazard to the entire

society. By discharge of effluent water on public road and/ or in public

drainage system the entire environment of the locality gets polluted. The

Court further said that in a complex society in which we live today, no one

can claim absolute freedom without incurring any obligation whatsoever for

the general well being.

In M.C. Mehta v. Union of India,38 the fact situation was that the

tanning industries located on the banks of Ganga were alleged to be

polluting the river. The Court issued directions to them to set up effluent

plants within six months from the date of the order. It was specified that

failure to do so would entail closure of business. As the tanning industries

failed to establish primary treatment plant, it was therefore held that order to

stop functioning of the tanning industries should be passed. Accordingly, the

Court passed the following order:

37. AIR 1988 Gujarat 57

38. AIR 1988 SC 1037

49

We are, therefore, issuing the directions for directions for the

closure of those tanneries which have failed to take minimum steps required

for the primary treatment of industrial effluent. We are conscious that

closure of tanneries may bring unemployment, loss of revenues but life,

health and ecology have greater importance to the people.39

It is, thus, clear that the Court has considered the protection of

environment as a matter of general public interest and employed this tool in

imposing reasonable restrictions on the citizen's right to carry on trade or

business.

Similar was the decision of the Supreme Court in M.C. Mehta v.

Union of India40 where directions were issued by the Court to certain

industries to be closed as they were not showing any progress regarding

installation of air pollution control system in compliance with earlier judicial

order issued by it. In this case the Court did not make any reference to

Article 19(1) (g), however, it is implicit that while issuing order under

Article 32 (g) of the Constitution, it had in its mind Article 19 (1) (g) read

with Articles 19 (6) and 21 of the Constitution.

In Sushila Saw Mills v. State of Orissa41 the fact situation was that

total ban was imposed upon saw mills business or sawing operation within

the prohibited area of reserved or protected forest. The Supreme Court held

that the ban was not violation inter alia of Articles 19 (1) (g) and 301 of the

Constitution. It is settled principle that in public interest restriction under

39. AIR 1998 SC 1037

40. (1994) Supp. (3) SCC 717

41. (1955) 5 SCC 615

50

Article 19 (6) may amount to prohibition. In this case public interest

litigation petition was filed for the protection of forest wealth and

maintenance of ecology.

In State of H.P. v. Gangesh Products the question before the Court

was whether a Katha industry in the State of Himachal Pradesh could be

established having adverse effect upon the environment and ecology of the

State. Katha industry is a forest based industry. The Supreme Court held:

That the obligation of sustainable development requires that a

proper assessment should be made of the forest wealth and the establishment

of industries based on forest produce should not only be restricted

accordingly but their working should also be monitored closely to ensure

that the required balance is not disturbed.

In course of judgment the Court said that it is meaningless to

prescribe that merely the Government need not supply the raw material and

that the industrial units will have to get their Khair Trees/ raw material from

private lands/ forests. No distinction can be made between government

forests and private forests in the matter of forest wealth of the nation and in

the matter of environment and ecology. It is just not possible or

permissible.42

In S. Jagannathan v. Union of India,43 the Supreme Court held sea

beaches and sea coast are gift of nature and any activity which pollutes it

cannot be permitted. Extensive, semi-intensive and intensive aqua cultures

42. (1995) 3 SCC 363

43. (1997) 2 SCC 87

51

were pointed out to be adversely affecting the physical and social

environment of coastal zones. The Supreme Court directed such aqua culture

farms to be dismantled.

The Supreme Court has recognized the role of forest as an

important factor in eco-balance. Tailoring new meaning to the provisions of

law, the Supreme Court in State of Tripura v. Sudhir Kumar Ranjan Nath,44

said that when a State regulation on transit of timber and other forest

produce is challenged as violation of freedom of trade and commerce, the

law is not dismissed as mere taxing enactment. The Court considers it as one

to preserve, protect and promote the forest wealth in the interests of the

nation. The Court upheld the validity of the Act which was challenged.

A survey of cases, thus, shows that the judiciary has treated the

condition of protection and preservation of environment as a reasonable

restriction in the public interest on the fundamental freedom under Article 19

(1) (g) of the Constitution.

(iii) Right to life:

It is around 1980 that the Indian Legal system, particularly the

field of environmental law, underwent a sea change in terms of discarding its

moribund approach and, instead, charting out new horizons of social justice.

The aforesaid period is characterized by not only administrative and

legislative activism but also judicial activism.

44. AIR 1997 SC 1108

52

The concepts, 'the right to life' 'personal liberty' and 'procedure

established by law'45 contained in Article 21 of the constitution could not

remain in State of inertia46 for a long time.47 A host of questions were to be

dealt with when the judiciary came to review environmental decisions.

Among them, the question how to bring about a balance between the

environment and development poses a great dilemma. The Rural Litigation

and Entitlement Kendra v. State of U.P.48 is the first case indicating the

recognition of the right to live in healthy environment as a part of Article 21.

In this case the facts were that the petitioners, a voluntary

organization feared that the mining operations of the lessees caused

ecological disturbance. The lessees had rights given by the Government ad

on conditions laid down under a specific law. According to a committee of

experts appointed by the Supreme Court, mining of limestone in certain

areas was found dangerous and damaging ecological balance. The Court

said:

“……….there can be no gainsaying that limestone quarrying and

excavation of the limestone deposits do seem to affect the perennial water

springs. This environment disturbance has however to be weighed in the

balance against the need of limestone quarrying for industrial purposes in the

country and we have taken this aspect into account while making this order.”

45. No person shall be deprived of his life or personal liberty except according to the procedure

established by law.

46. A.K. Gopalan v. State of Madrs, AIR 1950 SC 27

47. No person shall be deprived of his life or personal liberty except according to the procedure

established by law.

48. AIR 1987 SC 1086; also AIR 987 SC 965.

53

This case was filed under Article 32 of the Constitution and orders

were given with emphasis on the need to protect the environment. The Court

obviously was evolving a new right to environment without specifically

mentioning it as right to environment.

In M.C. Mehta v. Union of India49 which is popularly known as

Oleum gas leakage case, the Supreme Court once again impliedly came to

recognize the right to live in pollution free environment as a part of

fundamental right to life under Article 21 of the Constitution.50

The Andhra Pradesh High Court was more active than the Apex

Court when in the monumental judgment of T. Damodhar Rao v. S.O.

Municipal Corporation51 it declared:

It would be reasonable to hold that the enjoyment of life and its

attainment and fulfillment guaranteed by Article 21 of the Constitution

embraces the protection and preservation of nature's gifts without which, life

cannot be enjoyed. There can be no reasons why practice of violent

extinguishment of life alone should be regarded as violation of Article 21 of

the Constitution. The slow poisoning by the polluted atmosphere caused by

environmental pollution and exploitation should also be regarded as

amounting to violation of Article 21 of the Constitution.

In this way the right to live in healthy environment was specially

recognized to be a part of Article 21 of the Constitution. In this case the facts

were that the petitioners prayed the Court that the land kept for recreational

49. AIR 1987 SC 1086; also AIR 1987 SC 965

50. AIR 1987 SC 1086; also AIR 1987 SC 965

51. AIR 1987 AP 191.

54

park under the development scheme ought not to be allowed to be used by

the Life Insurance Corporation or Income Tax Department for constructing

residential houses.

The Andhra Pradesh High Court observed in course of judgment

that environmental law has succeeded in unshackling man's right to life and

personal liberty from the clutches of common law theory of individual

ownership.52

The Rajasthan High Court held in L.K. Koolwal v. State as

follows:53 “Maintenance of health, preservation of the sanitation and

environment falls within the purview of Article 21 of the Constitution as it

adversely affects the life of the citizen because of the hazards created, if not

checked.”54

Declaring in Charanlal Sahu v. Union of India55 the Bhopal Gas

leak Disaster (Processing of Claims) Act, 1985 to be valid, the Supreme

Court held:

“In the context of our national dimensions of human rights, right

to life, liberty, pollution free air and water is guaranteed by the Constitution

under Articles 21, 48 (A) and 51-A (g). It is the duty of the State to take

effective steps to protect the guaranteed constitutional rights.”56

52. AIR 1987 AP 191

53. AIR 1988 Raj. 2.

54. AIR 1988 Raj. 2

55. (1990) 1 SCC 613

56. Ibid

55

From the above observation of the Supreme Court of India it is

clear that the right to live in healthy environment is our fundamental right

under Article 21 and has to be read with Articles 48 (A) and 51-A (g)

thereby imposing obligation on the State as well as citizens to protect

improve it.

Similar is the observation of the Kerala High Court in F.K.

Hussain v. Union of India57 that the right to sweet water and the right to free

air, are attribute of the right to life, for, those are the basic elements which

sustain life itself.

In Subhash Kumar v. State of Bihar,58 the Supreme Court

remarked: “Right to live is a fundamental right under Article 21 of the

Constitution and includes the right of 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 right to have recourse to Article 32

of the Constitution for removing the pollution of water or air which may be

detrimental to the quality of life.”59

In Rajiv Ranjan Singh v. State of Bihar,60 the Patna High Court

held that failure to protect the inhabitants of the locality from poisonous and

highly injurious effects of the distillery's effluents and fumes amounted to an

infringement of the inhabitant's rights guaranteed under Articles 14, 21 read

with Articles 47 and 48 (A) of the Constitution of India.61

57. AIR 1990 Ker. 321 at 323; also Madhvi v. Tilkan, 1988 (20) Ker L.T. 730 at 731.

58. (1991) 1 SCC 598

59. Ibid.

60. AIR 1992 Pat. 86.

61. Ibid.

56

The Court further laid down that in case it comes to light that any

person has contacted any ailment the cause of which can be directly related

to the effluent discharged by the distillery, the company shall have to bear

all expenses of his treatment and the question of awarding suitable

compensation to the victim many also be considered.62

In M.C. Mehta v. Union of India,63 the Supreme Court noted

environmental pollution due to stone crushing activities in and around Delhi,

Faridabad and Ballabgarh complexes. The Court came to be conscious that

environmental changes are the inevitable consequences of industrial

development in our country, but at the same time the quality of environment

cannot be permitted to be damaged by polluting the air, water and land to

such an extent that it becomes a health hazard for the residents of the area.

Expressing serious concern to the environment, the Court said, "Every

citizen has a right to fresh air and to live in pollution-free environment."64

Accordingly, the Court issued directions to the stone quarries crushing units

to stop their activities in Delhi, Faridabad and Ballabgarh complexes. The

Court also directed the Government to rehabilitate these stone quarries in

'crushing zone' within the period of six months.65

The Kerala High Court said in Jacob Superintendent of Police,

Kottayam as follows:66

62. (1992) 3 SCC 256

63. (1992) 3 SCC 256

64. Ibid

65. Ibid

66. AIR Kerala 1 also Prafulla Chandra Chadoi v. Sarat Rout, AIR 1988 Ori. 41; Burra-bazar fire

works dealers Assn. v. Commr. of Police, Calcutta, AIR 1998 Cal. 121.

57

Compulsory exposure of unwilling persons to dangerous and

disastrous levels of noise, would amount to a clear infringement of their

constitutional guarantee of right to life under Article 21, right to life

comprehends right to a safe environment, including safe air quality, safe

from noise. In V. Lakshmipathy v. State,67 the Karnataka High Court pointed

out,

Entitlement to a clear environment is one of the recognized basic

human rights and human rights jurisprudence cannot be permitted to be

thwarted by status quoism on the basis of unfounded apprehensions.68

Indian Council for Enviro-legal Action v. Union of India69 is a

good example of judicial activism by default of administration. It is

popularly known as - Acid Case. In this case a public interest litigation was

filed by an environment organization not for issuance of writ against the

industrial units polluting the environment, but against he Union of India,

State Government and State Pollution Board concerned to compel them to

perform their statutory duties on the ground that their failure to carry on such

duties violated right guaranteed under Article 21 of the affected area.

The Court further observed that if it finds that the Government/

authorities concerned have not taken action required of them by law and

their inaction is jeopardizing the right to life of the citizens of this country or

67. AIR 1992 Kant. 57 other cases also K.C. Malhotra v. State, AIR 1994 MP 48; Kholamuhana

Primary Fishermen Co-op. Society v. State, AIR 1994 Ker. 308

68. AIR 1992 Kant. 57 other cases also K.C. Malhotra v. State, AIR 1994 MP 48; Kholamuhana

Primary Fishermen Co-op. Society v. State, AIR 1994 Ker. 308.

69. (1996) 5 SCC 647

58

of any section thereof, it is the duty of the Supreme Court to intervene.70 The

Court rejected the contention that the respondents being private corporate

bodies and not 'State' within the meaning of Article 12, a writ petition under

Article 32 would not lie against them. If the industry is continued to be run

in blatant disregard of law to the detriment of life and liberty of the citizens

living in the vicinity, the Supreme Court has power to intervene and protect

the fundamental right and liberty of citizens of this country.71

In Indian Council for Enviro-Legal Action v. Union of India72 the

Supreme Court issued directions for the enforcement and implementation of

the laws to protect the fundamental right to life of the people. The Court

observed that even thought it is not the function of the Court to see the day

to day enforcement of law, that being the function of the executive, but

because of non-functioning of the enforcement agencies, the Courts as of

necessity have had to pass orders directing the enforcement agencies to

implement the law for protection of fundamental rights of the people.

In Vellore Citizen's Welfare Forum v. Union of India73 the

Supreme Court laid down that in view of the constitutional provisions

contained in Articles 21 47 48(A), 51-A (g) and other relevant statutory

provisions contained in the Water (Prevention and Control of Pollution) Act,

1974, the Air (Prevention and Control of Pollution) Act, 1981, and the

Environment Protection Act, 1986, the Precautionary Principle and the

70. (1996) 5 SCC 647

71. Enviro-legal Action v. Union of India, (1996) 5 SCC 647

72. (1996) 5 SCC 281.

73. (1996) 5 SCC 647

59

'Polluter pays principle' are part of the environmental law of the country. It

is thus clear that two basic principles of sustainable development can be

derived from various statutory provisions and the right to life under Article

21 of the Constitution.

Clarifying the position in Dr. Ashok v. Union of India,74 the

Supreme Court said that by giving an extended meaning to the expression

'life' under Article 21 of the Constitution, the Court has brought health

hazard due to pollution within it and so also the health hazards from use of

harmful drugs.

Thus urban environmental groups frequently resort to Article 14 to

quash 'arbitrary' municipal permissions for construction that are contrary to

development regulations. Besides Article 14 may also be invoke to challenge

government sanctions for mining and other activities with high

environmental impact, where the permissions arbitrarily granted without an

adequate consideration of environmental impacts.5

In State of Himachal Pradesh v. Ganesh Wood Products.' the

Supreme Court held that a decision making authority must give due weight

and regard to ecological factors such as the environmental policy of

government and the sustainable use of natural resources. A government

decision that fails to take into account relevant considerations affecting the

environment is invalid.

Is it possible to derive a right to inter-generational equity Articles

21 and 14? The central tenet of the theory of inter-generational equity is the

right of each generation of human beings. To benefit from the cultural and

74. (1996) 5 SCC 10

60

natural inheritance from past generations as well as the obligation to

preserve such heritage for future generations, inter-generational equity

requires conserving the diversity and quality of biological resources and of

renewable resources such as forests, water and soils.

Can this 'right' be invoked to preserve archaeological, monuments

or genetic resources threaten with destruction of state action or inaction?

In Ganesh Wood Products case the Supreme Court recognized the

obligation of the present generation to preserve natural resources for the next

and future generations. Likewise in the CRZ Notification case/ the Supreme

Court observed that environmental statues were enacted to ensure a good

quality of life for unborn generations since it is they who must bear the brunt

of ecological degradation.

Judicial activism has further broadened the scope and ambit of

Article 21 by interpretation and now the 'right to life' includes the 'right to

livelihood'.75 The fundamental question to be considered is whether there is

any conflict between environment and development? Such a question has to

be considered in wider perspectives of national complexities. The

consideration is linked on one side with the national progress and growth the

construction of dams, thermal power plants and exploitation of natural

resources, on other side it is linked with the actions which may infringe the

fundamental rights of the people in the area where that project is undertaken.

Judiciary in India has taken note of this dilemma and has been very

cautious in reconciling the environmental interests with the development

process and avoiding any kind of conflict between the two opposite values.

75. Olga Tellis v. Bombay Municipal Corporation, AIR 1980 SC 180

61

A few cases related with such issue will illustrate how the conflicting social

interests have been reconciled by the judiciary.

In Banwasi Ashram v. State of U.P.76 where a tribal habitat was

about to be transformed into a site for thermal plant, a letter was registered

from Seva Ashram under Article 32 of the Constitution. The main grievance

of the petitioner was that Advises and other backward people were using

forest as their habitat and means of livelihood.

The Court wanted to appoint a committee to study the problem.

However, in the end, the Court approved the acquisition of land but laid

down an exhaustive scheme for rehabilitation of the native tribal people

under the supervision of commissioners appointed by the Court.77

Similar was the decision of the Supreme Court in Karjan Jalasay

Y.A.S.A.S. Samiti v. State of Gujarat78 where the Court did not refer to

Article 21 but it passed interim orders under Article 32 directing the State

agencies to resettle and rehabilitate the tribal people who were going to be

displaced by dams.

In Pradeep Krishna v. Union of India,79 the facts were that the

Government of Madhya Pradesh issued an order which permitted collection

of Tendu leaves from sanctuaries and natural parks by villagers/tribal living

76. AIR 1987 SC 374

77. (1992) 2 SCC 202

78. AIR 1987 SC 352 also Gurdial Singh v. State of Punj. (1995) Supp. (3) SCC 450; B.D. Sharma v.

Union of India (1992) Supp (3) 93.

79. (1996) 8 SCC 599

62

around the boundaries thereof with object of maintenance of their traditional

rights including the right of livelihood. The validity of this order was

challenged by social action litigation for the protection of ecology,

environment and wildlife in sanctuaries and national parks. Considering the

facts of this case, the Supreme Court refused to set aside the order. In spite

of this, it pointed out that if one of the reasons for shrinkage of forest cover

is entry of these villagers/ tribal, urgent steps must be taken to prevent any

destruction or damage to the environment, flora and fauna and wildlife.

It is thus clear that the Supreme Court in this case on one hand

protected the right to livelihood of the tribal and on the other hand showed

its concern for the protection of ecology. Such judicial approach is in

consonance with the sustainable development.

Similar is the case of Animal and Environment Legal Defiance

Fund v. Union of India80 where the Supreme Court sought to protect the

right to livelihood of the tribal-villagers and at the same time showed its

concern for the protection of environment. The facts in this case were that an

association of lawyers and other persons filed public interest litigation

petition challenging the order of the Chief Wildlife Warden, Forest

Department, granting 305 fishing permits to persons formerly residing

within the national park for fishing in the reservoir situated in the heart of

the national park.

The Supreme Court held that while all efforts must be made to

preserve the fragile ecology of the forest area the rights of the tribal formerly

living in the area to keep their body and soul together must also receive

80. (1997) 3 SCC 549

63

proper consideration. The Court further said that every effort should be

made to ensure that the tribal, when resettled, are in position to earn their

livelihood. In this case the Supreme Court has thus protected the right to

livelihood of the tribal villagers and at the same time shown its concern for

the protection of environment.

In R.L. and E. Kendra Dehradun v. State of U.P.81 the facts were

that certain lime stone quarries were closed on basis of judicial decision. The

Court considered the issue of the workers who were rendered unemployed

on account of closure of the lime stone quarries and the hardship of the

lessees. Considering these matters the Court observed "this would

undoubtedly cause hardship to them, but it is a price that has to be paid for

protecting and safeguarding the right of the people to live in healthy

environment with minimum disturbance of ecological balanced and without

avoidable hazards to them and to their cattle, homes and agricultural land

and undue affectation of air, water and environment". For mitigating the

hardship, the Court directed the State of U.P. to give priority to the claims of

displaced lessees in other parts of the State thrown open for the quarrying of

lime stone. It was further held by the Court that the workers may be

rehabilitated in programme of afforestation and soil conservation to be

undertaken in the reclamation of the area by the Eco-Task Force of the

Department of Environment.82

81. AIR 1985 SC 652.

82. AIR 1985 SC 652

64

In M.C. Mehta v. Union of India83 a public interest litigation

petition was filed to protect Delhi from the environmental pollution caused

by hazardous/heavy/large/industries which were in operation in Delhi.

Deciding the petition, the Court held that such industries are liable to be

shifted/ relocated to other towns of National Capital Region (NCR) as laid

down under the Master Plan for Delhi Perspective, 2001. The Court issued

directions to 168 industries, which were identified as such to stop

functioning/ operating in the city of Delhi and they could shift or relocate

themselves to any other industrial estate in NCR.

For mitigating the hardship of such employees who were affected

by the judicial order, the Court specified the rights and benefits to which

workmen employed in the 168 industries were entitled on relocation/

shifting of such industries. Later on, the Supreme Court also issued the

package of compensation for workmen employed in industries which were

not relocating/ shifting or closing down according to the earlier directions of

the Court.84 This case shows how the Supreme Court protected the right to

livelihood of the workmen and sought to balance the industrial development

and environmental protection.

M.C. Mehta v. Union of India85 is another case where the guiding

principle of sustainable development has been followed. In this case, the

Supreme Court directed that the industries which were in operation in Taj

Trapezium Zone using Coke/Coal as industrial fuel must stop functioning

83. (1996) 4 SCC 750

84. M.C. Mehta v. Union of India (1997) 11 SCC 327

85. (1997) 2 SCC 353

65

and that they could relocate to the alternate site provided under the Agra

Master Plan. While directing so, the Supreme Court specified the rights and

benefits to which the workmen of such industries were entitled. In this way

the right to livelihood of the workmen who were going to be affected was

protected.

Thus, from the various decisions of the Supreme Court it follows

that development is not antithetical to environment. Development requires

thoughtful consideration otherwise it may cause avoidable harm to the

environment and it can deprive the people of their right to livelihood.

Writ jurisdiction and Prevention of Environmental Pollution

For exercise of writ jurisdiction, provision has been made under

Articles 32 and 226 of the Constitution. One of the most outstanding parts of

the Constitution is that the right to enforce fundamental rights by moving the

Supreme Court is itself a fundamental right under Article 32 of the

Constitution.86 Writ jurisdiction is conferred on the Supreme Court under

Article 32 and on all the High Courts under Article 226 of the Constitution.

Under these provisions the Supreme Court and High Courts have the power

to issue any direction, or orders or writs in the nature of habeas corpus,

mandamus, prohibition, quo-warranto and certiorari whichever is

appropriate.87 The distinction between the writ jurisdiction of the Supreme

Court and High Courts is that one can move the Supreme Court only for the

86. Article 32 (1) provides: "The right to move the Supreme Court by appropriate proceedings for the

enforcement of right conferred by this part (Part III) is guaranteed."

87. Article 32 (2)

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enforcement of fundamental rights whereas the writ jurisdiction of High

Court can be invoked for enforcement of fundamental rights or any other

purpose as the case may be. From this point of view the writ jurisdiction of

High Court is wider in scope than that of the Supreme Court. However, it

may be pointed out that the law declared by the Supreme Court shall be

binding on all the Courts within the territory of India."88 Moreover, the

Supreme Court in exercise of its jurisdiction may pass such decree or make

such order as is necessary for "doing complete justice" in any cause or

matter pending before it.89

Environmental law in general is a body of statutory principles.

However, in India the position is that major part of environmental

jurisprudence has been developed through writ jurisdiction. Judicial activism

and the evolution of the concept public interest litigation or social action

litigation under the writ jurisdiction of the Supreme Court and High Courts

have brought a revolutionary change in the processual jurisdiction and it has

played a pivotal role in designing and developing environmental

jurisprudence with Human Rights approach. This remedy has become most

popular as it has ensured public participation in matters like environmentally

protection.90

The higher judiciary has issued orders to the municipalities to

construct proper drainage system for maintenance of health and preservation

88. Article 141 of the Constitution

89. Article 142 of the Constitution also Union Carbide Corporation v. Union of India, (1991) 4 SCC

584.

90. Rajiv Ranjan Singh v. State of Bihar, AIR 1992 Pat. 86

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of the sanitation ad environment.91 Noxious factories have been allowed to

restart on technical reports of safety means.92 The Court has issued

directions for removing industries from residential areas.93 Taking action

under the impact of judicial activism, the Court appointed special panel to

assess the availability of technology for controlling vehicular pollution.94 In

certain areas, the Court has ordered to stop quarrying so that stable

ecological balance may be maintained.95 Orders have been issued by the

Court for shifting stone crushing units outside urban cities.96 For prevention

of the pollution of river water, the use of primary treatment plant by

tanneries has been made compulsory.97 Judicial intervention has prevented

conversion of public park site for any other purpose or construction.98

Judiciary has issued order for rehabilitation of slum dwellers99 and

prescribed hawking zones in metropolitan cities.100

While exercising writ jurisdiction, Courts have opened a path of

processual justice, without enslaving themselves to procedural compulsions.

In Tarun Bharat Sangh Alwar v. Union of India101 a social action group

91. L.K. Koolwal v. State, AIR 1988 Raj 2.

92. M.C. Mehta v. Union of India, AIR 1987 SC 965

93. V. Lakshmipathy v. State, AIR 1992 Kant. 57

94. M.C. Mehta v. Union of India, (1991) 2 SCC 353

95. R.L. and E. Kendra Dehradun v. State of U.P, AIR 1987 SC 359

96. Surendra Kumar Singh v. State of Bihar, AIR 1991 SC 1942

97. Vellore Citizens's Welfare Forum v. Union of India, (1996) 5 SCC 647

98. Dr. G.N. Khajuria v. Delhi Development Authority, (1995) 5 SCC 762

99. Olega Chander v. Bombay Municipal, AIR 1986 SC 180

100. Ramesh Chander v. Imtiaz Khan, (1998) 4 SCC 760

101. AIR 1992 SC 514

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challenged the legality of granting a mining license in the protected area of a

reserved forest. Upholding the contention, the Supreme Court observes:

The litigation should not be treated as the usual adverbial

litigation. Petitioners are acting in aid of purpose high on national agenda.

Petitioner's concern for the environment, ecology and wildlife should be

shared by the government.102

The range of issues concerning environment is very broad. It

extends from compassion to animals103 and privileges of tribal people and

fishermen,104 to the eco-system of Hmalayas and forests,105 eco-tourism,106

land use patterns107 and vindication of eco-malady of a village.108 While in

some cases letters109 were considered as writ petitions, in some other paper

reports110 were responsible for judicial action.

Judicial action in the field of environment is not arbitrary as it is

inspired by humanitarian approach. Courts have sought to strike a balance

between social interests in development and social interests in environment

which is in accord with the concept of sustainable development. Therefore, it

is not correct to say that the 'constitutional adjudicators' have ordained the

102. Tarun Bharat Singh, Alwar v. Union of India, AIR 1992 SC 514

103. Satyavani v. A.P. Pollution Control Board, AIR 1993 A.P. 257

104. Pradeep Krishnan v. Union of India, AIR 1996 SC 2041

105. Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1988 SC 2187

106. Nityamma Vedi v. State, AIR 1993 Ker. 202

107. V. Lakshmipathy v. State, AIR 1992 Kant 57

108. Pradeep Krishan v. Union of India, AIR 1996 SC 2040

109. Banvasi Seva Ashram v. State of U.P., AIR 1987 SC 374

110. M.C. Mehta v. Kamalnath, (1997) 1 SCC 388

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role of 'constitutional governors', specially, when we see the larger

dimensions of environmental protection with human rights approach

avoiding political considerations.

On the basis of above mention facts we can finally say that the

Indian constitution is one among the few constitutions in the world that has

provision on environment protection article Articles 48 (A) and 51-A (g)

inserted by the 42nd Constitutional Amendment Act 1976 imposes the duty

of environment protection on both the states and citizens.