Legislative Provisions with regard to Environment

Legislative Provisions with regard to Environment

Though, India was a party to the Stockholm Declaration i.e.  It is often referred to as Magna Charta of environment protection. The United Nations Conference on Human Environment held at Stockholm in 1972 has been a hallmark and explicitly projected the International Concern for Environment Protection. The Conference resulted in the Stockholm Declaration on the Human Environment.  The said Stockholm Declaration had initiated legislative measures for the prevention of the pollution of environment by enacting specific legislation and also incorporated the Stockholm principles by an amendment to the Constitution of the India in 1976.

The Constitution of India incorporated Articles 48 A, which obligated the State to endeavor to protect and improve the environment and to safeguard the forests and wild life of the nation. The legislative subjects of the wild life and forests have been placed in the concurrent list so that the Central Government shall involve itself and play an effective role in protecting the environment and also Article 51A (g), which imposed a duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures on every citizen of India.

To give effect to the Stockholm Declaration besides amendments to the Constitution, the Government of India enacted the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environmental (Protection) Act, 1986, Public Liability Insurance Act, 1991, National Environmental Tribunal Act, 1995, and National Environment Appellate Authority Act, 1997.

It is to be noted that these provisions though not enforceable in a court, directs the State to enact legislation and frame policies towards protection of the environment. Thus, the State is under a moral duty to take measures to prevent ecological imbalances resulting from modern Industrialization.  The Constitution has also cast a duty on the citizen to take steps for maintaining ecological balance.

Judicial Response on Environment:

It is to be noted that, the Judiciary in India has opened new vistas and new aspirations in the arena of environmental and ecological protection for the overall progress of the mankind, keeping in view not only the present but also the future requirements.  The need of the day is to bring the greater awareness among the people besides the socio-economic development in harnessing of natural resources with due care to see that the quality of the environment does not deteriorate.  In this lesson,  an attempt is made to analyse the provisions enunciated in the Constitution of India with regard to the protection of environment and also the role of higher judiciary in India in protecting the environment and advancing the environmentalism which is unparallel in the history of nation.

The Judiciary in India has been demonstrating its commitment for the protection of environment from time to time and it has been trying to highlight the importance of the environmentalism through a series of illuminating judgments.  It is pertinent to mention that the Supreme Court is also trying to bring an awareness of the massive problems of pollution and filling the gap between the legislation and its implementation by using its extraordinary powers. The higher Judiciary in India delivered many environment conscious judgments.  By constructive interpretation of various provisions of the law, the Supreme Court in particular has supplemented and strengthened the environmental law.  The cases relating to each and every aspect of environment have come up before the Supreme Court of India.  The court has relaxed rigid and purely technical rules in admitting many cases involving the protection of the environment.

Undoubtedly, the Supreme Court has played an activist and creative role in evolving and indigenous environmental jurisprudence. The increase in environmental awareness since 1980s has triggered a spurt in the environmental cases reaching the court.   Most of the actions in the environmental cases are brought under Articles 32 and 226 of the Constitution.  The environmental petitions are generally based on the plea of violation of fundamental rights.

The expansive and creative judicial interpretation of the word ‘life’ in Article 21 has lead to the salutary development of an environmental jurisprudence in India. Right to life is a fundamental right under Article 21, and since the right to life connotes ‘quality of life’ a person has a right to the enjoyment of pollution free water and air to enjoy life fully.  According to many Environmentalists and Jurists, ‘The latest and the most encouraging of all developments in India is the ‘right to a clean and wholesome environment’ and the ‘right to clean air and water’.  These rights have been included in the right to life under Article 21 of the Constitution.  The boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were expanded elevating it, to a position of a brooding omnipresence and converting it into a sanctuary of human values for more environmental protection.

In “Ratlam Municipal Council” case (Ratlam Municipal Council  v. Vardhi Chand A.I.R. 1980 S.C. 1622)  starts the deliberation of human right in the polluted environment where the health of the residents of particular locality of the Ratlam City was held hostage because of its bankruptcy.  Justice Krishna Iyer ruled out the ugly and shameless plea and held that the human right had to be respected regardless of budgetary provision. The Supreme Court has expanded the principle of ‘locus standi’ in environmental cases and observed that environment related issues must be considered in a different perspective.  This development in Judiciary brought a new era and is considered as a silent ‘legal revolution’ and it has cast away all the shackles of technical rules of procedure and encouraged the litigation from public spirited persons.  The court not only complemented petitioners who filed environment protection oriented litigation but also awarded money to the petitioners.  This development has paved the way for Social Interest Litigation, Class Action litigation and Common Cause Litigation etc., The Court made it clear and stated that the dynamics of the judicial process had a new enforcement dimension.

The Supreme Court gave an expansive meaning to right to environment in Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P,  AIR  1985 SC 652 famously known as Doon Velley Case,   In the instant case, the representatives of the Kendra, Dehradun wrote a letter to the Supreme Court alleging illegal limestone mining in the Mussorie-Dehradun region which was devastating the fragile ecosystems in the area.  The court directed the registry to treat the letter as a writ petition under Article 32 of the Constitution with notice to the Government of U.P. and Collector of Dehradun.  Though, the litigation grew complex over years.

Finally, the Supreme Court held that the exercise of jurisdiction under Article 32 presupposes the violation of the fundamental right.  Therefore, it was necessary to reasonably to hold that enjoyment of right to life under  ordered the closure of certain lime stone quarries on the ground that, there were serious deficiencies regarding safety and hazards in them. The court stated “The right of the people to live in healthy environment with minimum disturbance of ecology balance and without avoidable hazard to them and to their cattle, house and agriculture land and undue affection of air, water and environment.”

In Sachitanand Pandey and Another v. The State of West Bengal AIR 1987 SC 1109, the Supreme Court rejected a public interest litigation against construction of a five star hotel in land allotted to zoo park, but insisted that whenever a problem of ecology was brought before the court, the court bound to bear in mind Article 48-A of the Constitution and when the court was called to give effect to the Directive Principles of State Policy and the Fundamental Duties, the court was not to shrug it shoulders.

For the first time, a microscopic view was placed on the contours of the law of nuisance to unfold its scope and dimensions in Govind Singh v. Shanthi Swarup A.I.R. 1979 S.C.143, wherein the Supreme Court held that the effect of running the bakery was injurious to the people, as it was polluting the environment by emitting smoke from chimney and ordered the closure of  Bakery. The court held “… in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large…”

In M.C.Mehta v. Union of India AIR 1997 SC 734  famously known as Taj Mahal Case , the Court based on the ‘principle of sustainable development and the Court applied the precautionary people’.  In this case, a public interest litigation was filed alleging that due to environment pollution there is degradation of the Taj Mahal, a monument of international reputation. According to the opinion of the expert committees,  the use of coke/coal by the industries situated within the Taj Trapezium Zone (TTZ) were emitting pollution and causing damage to the Taj Mahal, as also people living in that area.

In Consumer Education and Research Centre v. Union of India, A.I.R. 1996 S.C. 1446., the Supreme Court has delivered a historic judgment and held that the right to health and medical care is a fundamental right under Article 21 of the Constitution, as it is essential for making the life of the workmen meaningful and purposeful with dignity of persons.

In Kanpur Municipality case, i.e.  M.C.Mehta (II) v. Union of India (1998) 1 S.C.C.471. the Supreme Court directed all the municipalities located on the banks of river Ganga to take preventive measures for water pollution.  The court held that the Municipality was primarily responsible for the pollution in the river and was not only obliged but also bound to take steps to decrease as well as control the pollution.

In Rajiv Rajan Singh v. State of Bihar, A.I.R. 1992 Pat.86. the Public Interest Litigation was filed by a social worker alleging that a distillery had been discharging beyond its premises, untreated effluents, chemical waste and sewage, thereby contaminating the water resources and polluting the environment.  The High Court held that the said distillery company to restart its manufacturing process with adequate safeguards in terms of a scheme framed by the High Court on the basis of Experts Committee Report.

In F.K. Hussain v. Union of India, A.I.R. 1990 Ker.321. public interest litigation has been filed alleging violation of right to potable water, by large scale withdrawal of water from wells, by electric pumps by the local administration of Lakshadweep Island.  The court held that the right to life for those who suffered from the large scale withdrawal of water were the basic elements which sustained the life itself and directed the administration to evolve safeguards to stop withdrawal of groundwater.

The Supreme Court in M.C. Mehta v. Union of India A.I.R. 1991 S.C. 1132,  had given direction to the Delhi City Authorities to take effective steps for streamlining vehicular pollution in the city.  The recent order of the Supreme Court  prohibiting the use of twenty years old vehicles in the city roads of Delhi and its implementation is a welcome step in prevention of the vehicular pollution, avoiding the accident and protecting health of the Delhi people.

In M.C.Mehta and others v. Shriram Food and Fertilizers Industries and Union of India, A.I.R. 1987.S.C.965. famously known as Sriram Industries case or Oelium Gas leak case In the instant case, there was a major leakage of Oleum gas from one of the industrial units of Sriram affecting a large number of workers and residents of the locality and it was alleged that an Advocate practising at Tis Hazari Court died due to the leakage of toxic gases.  In view of these incidents, the Inspector and Assistant Commissioner of Factories orders prohibiting Sriram from operating their plants.

The court pointed out that ‘it was not possible to totally eliminate hazard or risk inherent in every use of Science and Technology, otherwise, it would mean the end of all progress and development’.  The court should adopt an equal approach in case of private industry as well as the governmental agency when they are careless in performing their constitutional environmental duty. The court on first hand laid down that it has power to order payment of compensation for a proved infringement of fundamental right under Article 21 (in matters of environmental pollution) though it has to be exercised in exceptional circumstances. It is to be noted that this judgement opened a new frontier in the Indian jurisprudence by introducing a new no fault liability standard for industries engaged in hazard activities. The Supreme Court further laid down some propositions on some issues which afterwards became the landmarks for all the environmental cases coming to the Supreme Court under the umbrella of public interest litigation.

Further in the M.C.Mehta v. Union of India, (1987) 4 S.C.C. 463. the Supreme Court issued directions regarding setting up of common effluent treatment of plants in the ridge area of New Delhi.  While in Kanpur Tanneire’s case,  the Supreme Court issued certain directions with regard to industries in which the business of tanning was carried on the bank of river Ganga.  Justice K.N.Singh in his supporting judgment observed that the pollution of the river Ganga is affecting the life, health and ecology of the Indo-Gangatic plain.

In M.C. Mehta v. Union of India, A.I.R. 1987. S.C.1086. Chief Justice Bhagwathi speaking for the court explained the circumstances in which the court would give remedial relief which includes award of compensation under Article 32 to prevent breaches of fundamental rights in ‘appropriate cases’.

It is to be noted that the practice adopted so far by the Supreme Court and the High Courts in judicial review of complex issues relating to the protection of environment has been conspicuous.  Before taking a decision, they used to refer the matters to professional and technical bodies or commissions for advice.  In A.P.Pollution Control Board v. Prof. M.V.Naidu (Retd.,) and Others   A.I.R.1999 S.C.812., the Supreme Court felt that, monitoring of such investigation process may also be difficult.  Formulation of alternative procedure, expeditious, scientific and adequate is necessary and the court thought that National Environmental Appellate Authority (NEAA) with adequate combination of both judicial and technical expertise is the appropriate authority to go into the questions in the instance case.

The National Environmental Appellate Authority is the creature of the Statute.  The question is whether the statutory limitations can tie the hands of the Supreme Court.  The jurisdiction is confined to hearing appeals filed by a person aggrieved by an order of environmental clearance. The court relied on Paramjith Kaur v. State of Punjab, A.I.R. 1999 S.C.430., wherein though barred by limitation under the law, the National Human Rights Commission could be directed under Article 32 to probe into human rights violations alleged to have occurred long before.  The powers of the Supreme Court under Article 32 of the Constitution of India to issue directions to a statutory authority can never be curtailed by statutory limitations.  Thus, the NHRC can act sui juris, free from any conditions circumscribed by the Statute that created the Commission.

The emerging environmental jurisprudence should take all aspects into consideration in order to render justice and ensure sustainable development.  For this purpose, the court can refer scientific and technical aspects for investigation and opinion by such expert bodies as the National Environmental Appellate Authority whose investigation, analyses of facts and opinion, on objections raised by parties, could give adequate help to the Supreme Court or the High Courts for adjudication.

In a landmark case Tarun Bharat Sangh, Alwar v. Union of India, A.I.R.1992 S.C. 514,  the petitioner through a PIL brought to the notice of the Supreme Court that the State Government of Rajasthan though empowered to make rules to protect environment, failed to do so and in contrary allowed mining work to continue within the forest area.  Consequently, the Supreme Court issued directions that no mining work or operation could be continued within the protected area. the Supreme Court said ‘it is odd that the State Government while professing to protect the environment by means of various notifications and declarations should at the same time, permit the degradation of the environment by authorizing mining operations in a prohibited area.

From the foregoing decisions, it is clear that the Supreme Court has made significant contribution in giving a fillip to the rights of the citizen to a hygienic environment but the exercise of their discretionary powers in environmental matters is yet to take a concrete form.  The Courts have time and again faced the difficulties in respect of investigating machinery required for the citizens’ suits in environmental matters.  To overcome this, the Courts have resorted to appointing distinguished persons as experts or commissions to investigate and report to it.  It is also suggested that the environment courts on a regional basis, with one professional Judge and two experts drawn from the Ecological Sciences Research Group, should be set up.

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