Role of Constitution of India in Environmental law
Author: Suryansh Pandey
This study examines the need for protection and conversion of the environment i.e. reflected in the framework of the India Constitution.
By the time passed Constitution has amended to insert separate chapters for fundamental duties, as Ar.51A(g) and Ar.48A are the most basic fundamental duties assigned to an individual and states for the protection of the environment. The study also includes the other Act’s issued by Central Govt. of India such as The National Green Tribunal Act, 2010 which came into force by 18 October 2010, The Air Act, 1981 which came into force for controlling and abatement of air pollution thus similarly The Water Act, 1974 and etc.
Although the Supreme Court has also played a great role in setting up this environmental law as for the protection of life on the personal right does. After the Bhopal Gas tragedy the Govt. of India enacted Environment (protection) Act, 1986 which was a very special step taken by the judiciary and so on.
The year 1972was a landmark in the history of environmental management in
India. In February 1972, a national committee on environmental planning and coordination (NCEPC) was set up in the department of science and technology, which was later established as the National Committee on Environmental planning (NCEP).
Before this, the environmentalism was with the passage and codification of Acts, as of Indian Penal which is passed in 1860 which use to penalizes person(s) responsible for causing defilement of water of public reservoirs with imprisonment or fine. In collaboration, The Indian Easement Act 1882 protects ‘unreasonable’ pollution by upstream users, and many more like this. (Delhi)
In 1986 as a fallout of the Bhopal gas tragedy, the parliament passed the Environment Protection Act (1986) (Legal Bites, 2016)
In December 1993, the MoEF completed its Environmental Action Plan to integrate environmental considerations into developmental strategies. (Ministry of Environment and Forest, 1993)
Environment and constitution of India
Here we are talking about constitution over environment, which mainly provides us the fundamental rights and duties of an individual and much more. Even it’s also a fundamental right to live in an unpolluted environment and a fundamental duty of every individual to maintain the purity of that environment.
The constitution has a mandate and bounded to protect and improve the environment. The Indian constitution contains specific provisions for environmental protection. Although the Constitution of India had no direct provisions for environmental protection by 42nd Amendment the Constitution introduced direct provisions in 1976 for protection of the environment, added Ar.48A to directive principles to state policy. (article) This states to protect and improve the environment and to safeguard the forests and wildlife of the country. Ar.49A provides that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.” This imposed a responsibility on every citizen in the form of fundamental rights. (constitution of India). The Article 51A (g) which deals with Fundamental Duties of the citizens states: “It shall be the duty every citizen of Indian to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures” (constitution of India)
Ar.253 states that “Parliament has the power to make any law for the whole or any part of the Country for implementing any treaty, agreement or convention with any other country” as also Ar.73 talks about “Extent of executive power of the Union, (1) subject to the provisions of this Constitution, the executive power of the Union shall extend. (2)Until otherwise provided by Parliament, a state and any officer or authority of a state may, notwithstanding anything in this article, continue to exercise in matters with respect to which has power to make laws for the state such executive power or function as the state or officer or authority thereof could exercise immediately before the commencement of this constitution council of ministers.” (constitution of India)
In Stockholm there was an emergence concept of sustainable development (Gulf goans Hotels Co. ltd. & Anr vs Union Of India & Ors, 2014) which mean “development that meets the needs of the present without comprising the ability of the future generations to meet their own needs” (Vellore Citizens Welfare Forum vs. Union Of India, 1996) therefore under Ar.253 Parliament has the power to legislate on all matters linked to the preservation of natural environment as because it also comes under the sustainable development. Parliament’s use of Article 253 to enact the Air Act and Environment Act confirms this view.
Some of the important legislations for environment protection are as follows:
- The National Green Tribunal Act, 2010
- The Air (Prevention and Control of Pollution) Act, 1981
- The Water (Prevention and Control of Pollution) Act, 1974
- The Environment Protection Act, 1986
- The Hazardous Waste Management Regulations, etc. (Vinay Vaish, Partner, Vaish and Hitender Mehta, 31 august 2017)
The National Green Tribunal Act, 2010
The NGT was established on October 18, 2010, under the National Green Tribunal Act, 2010 passed by the central govt. the objective of the central govt. was to provide a specialized forum for effective speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.
NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in schedule 1 of the NGT Act.
NGT has not been vested with powers to hear any matter relating to the wildlife (protection) Act,1972, the Indian Forest Act,1927 and various laws enacted by States relating to forests, tree preservation, etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located. For every application where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. (Bhargav) (Bhargav, Conservation India, 2011)
The Environment Protection Act, 1986
Environment Protection Act, 1986 is an Act of the Parliament of India. In the wake of the Bhopal Tragedy, the Government of India enacted the Environment Protection Act of 1986 under Article 253 of the Constitution. Passed in March 1986, it came into force on 19 November 1986. It has 26 sections. The purpose of the Act is to implement the decisions of the United Nations Conference on the Human Environments. They relate to the protection and improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants, and property. The Act is an “umbrella” legislation designed to provide a framework for central government coordination of the activities of various central and state authorities established under previous laws, such as the Water Act and the Air Act.
This act was enacted by the Parliament of India in 1986. As the introduction says, “An Act to provide for the protection and improvement of environment and for matters connected therewith: WHEREAS the decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment. AND WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants, and property”. This was due to the Bhopal Gas Tragedy which was considered as the worst industrial tragedy in India.
This act has four Chapters and 26 Sections. Chapter one consists of Preliminary information such as Short Title, Extent, Date of Commencement and Definitions. The definitions are given in the second section of the Act. Chapter 2 describes the general powers of the Central Government. Section 3 gives the Central Government the power to take action to protect the environment. Section 4 allows the government to appoint officers to achieve these objectives. It also gives the government the power to give direction to closure, prohibition or regulation of the industry, process, etc. It also gives Central Government the power to issue rules to regulate environmental pollution. The act has provisions for penalties for contravention of the provisions of the act and rules, orders and directions. It also gives detail if the offence is done by a company or government department. It says for such offence the in-charge and head of department respectively would be liable for punishment. (Legal Bites, 2016)
The Water Act, 1974
The Central Pollution Control Board, and State Pollution Control Boards composition, terms and conditions of service of members are defined in Sections 3-12 of water Act, 1974
The Board advises the government on any matter concerning the prevention and control of water pollution. It coordinates the activities and provides technical assistance and guidance. This policy sets the standards and penalties for non-compliance for polluting bodies.
The Government has the power to restrict any unit and to take samples of effluents and get them analyzed in Central or State laboratories. Whoever fails to comply with any provision of this Act is punishable with imprisonment, fine or with both.
The Central Board may perform all or any of the following functions, namely,-
advise the Central Government on any matter concerning the prevention and control of water pollution; co-ordinate the activities of the State Boards and resolve disputes among them; provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; plan and organize the training of persons engaged or to be engaged in programs for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify; organise through mass media a comprehensive programme regarding the prevention and control of water pollution; collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith; lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well; plan and execute a nation-wide programme for the prevention, control or abatement of water pollution; perform such other functions as may be prescribed.
These were the most important legislations’ made by the govt. to bring reform in the Environment and the laws under it. (Forests, 2009)
In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of encroachments.
The Court delivered a landmark judgment and established the principle of exemplary damages for the first time in India. The Court said that the polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine. (article)
OLEUM GAS LEAK CASE, 1986
M C MEHTA, who was single-handedly responsible for making environmental degradation a part of public discourse, says it is vital that PILs have no ulterior motive “GAS HAS leaked. The gas is traveling. I am worried about your lordship’s life”. Environmental lawyer Mahesh Chander Mehta relives what he told the Chief Justice of India P.N. Bhagwati on December 4th, 1985. Oleum gas had just leaked from the Shriram Chlorine plant in Najafgarh, and Delhi had panicked.
By a strange coincidence, M.C. Mehta had filed public interest litigation against the Chlorine plant a month earlier (before the gas leak) and was scheduled to argue another case before the Chief Justice of India on December 4th. When the matter came up, Mehta referred to the Oleum gas that had leaked just three hours earlier. “The gas leaked at 11 am; the case was listed and heard at 2 pm; the court immediately issued a notice” gushes Mehta. “No case has been heard this quickly”. Nor perhaps judged so decisively. In siding with Mehta, the Supreme Court punished the company heavily; the entire complex eventually shut down. More far-reaching, the Supreme Court created the `absolute liability principle’ — companies engaged in inherently hazardous activities had absolutely no excuse when an accident occurred.
The court held that any enterprise that is engaged in an inherently dangerous activity is `absolutely’ liable to compensate all those affected by an accident. The key feature of the judgment was the principle of `absolute liability’, in which no exceptions (such as an `act of God’) are brooked. (M.C.Mehta And Anr vs Union Of India & Ors, 1987)
The case took place soon after the Bhopal Gas Tragedy and was keenly watched as an instance of how the courts would deal with companies responsible for environmental disasters. Unfortunately, the complex court litigation around the Bhopal Gas Tragedy was an example of what not to do in such cases.
Kendra v State of UP, also known as the Dehradun quarrying case, the Supreme Court of India has held that pollution caused by quarries adversely affects the health and safety of people and hence, the same should be stopped as being violative of Article 21. In this case, the Supreme Court for the first time held that the right to wholesome environment is a part of the right to life and personal liberty guaranteed under Article 21 of the Constitution.
Further, in the case of Subhash Kumar v State of Bihar, again the apex court held that the right to get pollution-free water and the air is a fundamental right under Article 21. Following this decision, the right to the pollution-free environment was incorporated under the head of the right to life and all the law courts within the Indian Territory were bound to follow the same. This laid down the foundation of environmental litigation in India.
Similarly, public health and ecology3 were held to be the priorities under Article 21 and the constitution of a green bench was also ordered by the Supreme Court.
In the case of Ratlam Municipality v Vardichand, where the problem of pollution was due to private polluters and haphazard town planning, it was held by the Supreme Court that pollution-free environment is an integral part of the right to life under Article 21. (Municipal Council, Ratlam vs Shri vardhichand & Ors, 1980)
Human beings can ensure the environmental balance, fundamental equality and adequate conditions of life in an environment. There is an urgent need to formulate laws keeping in mind the fact that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well. The advancement of the relationship between human rights and environment would enable the incorporation of human rights principles within an environmental scope which is much needed for the protection of the environment and its development.
article, e. l. (n.d.). constitutional provinsions for the protection of environment with revelent case laws.
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Bhargav, P. (n.d.). Everything you need to know about the National Green Tribunal. The National Green Tribunal Act, 2010 .
constitution of india, 1. (n.d.).
Delhi, I. I. (n.d.). Indian institute Oof Ecology and Environment. Retrieved from www.ecology.edu: http://www.ecology.edu/environmental-legislation.html
Forests, M. o. (2009, 05 30). Water (prevention and control of pollution) act of 1974. Retrieved from India Water Portal: http://www.indiawaterportal.org/articles/water-prevention-and-crontol-pollution-act-1974
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Vellore Citizens Welfare Forum vs. Union Of India (Supreme Court Of India 8 28, 1996).
Vinay Vaish, Partner, Vaish and Hitender Mehta. (31 august 2017). Environmental Law in India.