Arpana Singh is a Law Student at Central University of South Bihar.
Mankind is a part of nature and hence not essential for nature. For the greatest environmentalists, humans are of lesser importance than the abundant and diverse flora and fauna of the planet. Humans are defined as a recent addition to the livestock and are considered to have been a wholly disruptive influence on a world that was a paradise before their arrival.1 The concerns relating to environmental pollution and its degradation has been accelerated manifold over the last three decades. The industrial revolution coupled with the population explosion has been the two initial and major contributors of the pollutant and degradation of the environment. These factors, in consequence, have led to outbursts of poverty and led to further pressure on the living environments and their resources.
In India, since Vedic times the main motto of the society has been to live in harmony with nature. The importance of the environment and its conservation in the Vedic era can be efficiently understood by the plain reading of one of the verses of the Atharvaveda which reads as “Wise utilizes three elements variously which are varied, visible and full of qualities. These are water, air, and plants or herbs. They exist in the world from the beginning. They are called Chandamsi meaning “covering available everywhere”2.
By destroying nature, the environment, man is committing matricide, having in a way killed Mother Earth.3 Thus, the basic precepts also envisage that protection of the environment is the path to lead the preservation of mankind and humanity. It is because of these interlinked existences of nature and humanity, the cause to save the environment has been raised and discussed at platforms globally and with utmost urgency including the UNO.
The constitution of India is known as the “basic law of the Land” from which all the legislations derive is sanctity. The Constitution is also a living law that grows with the needs of the country and its people. Originally the Constitution of 1950 did not have explicit reference to environment and protection, so there was no independent and separate provision to deal with the evolving crises of environmental degradation. But in due course taking reference from the Stockholm Conference and growing need for specific legislation, the Indian Parliament passed the historic amendment, 42nd Constitutional Amendment Act of 1976.4 This amendment incorporated two new articles namely Article 48-A and 51-A(g) as part of the Fundamental Rights and Fundamental Duties.
The incorporated Article reads as:
Article 48A. Protection and improvement of environment and safeguarding of forests and wildlife The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country
Article 51-A (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
Further, there were changes incorporated in the Seventh Schedule of the Constitution in the list III, Concurrent List, which are as follows:
17-B- Protection of wild animals and birds
20-A- Population control and Family Planning
International Organization such as UNO has time and again raised its concern regarding environmental pollution and its effect on mankind. The Stockholm Declaration, 1972, the Nairobi Declaration, 1982, the World Charter for Nature, 1980 are some of the examples for the representation of the concern of the UNO for nature and its preservation. Also, the pollution has assumed a transboundary nature and requires a joint effort of all the countries to frame various treaties and conventions for global harmony and green existence. In the past year, the world health organization (WHO) has observed that over 70 percent of all human ailments are influenced by environmental deterioration.
IMPORTANT CASE LAWS AND GUIDELINES
The Indian Judiciary has fulfilled its constitutional obligations and played an active role. It has been always prepared to issue ‘appropriate’ orders, directions, and writs against those people who cause environmental pollution and ecological imbalance. The participation of the Indian Judiciary in environment conservation is evident from a plethora of cases decided by it starting from the Ratlam municipality case.5 Further, in Sachidanand Pandey v. State of West Bengal6, the Supreme Court observed “whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48-A and Article 51-A (g).
The development of the Environment protection law and its guideline owes a big contribution to the PIL and its role. PIL has proved to be an effective tool in the area of environmental protection. The Indian judiciary adopted the technique of public interest litigation for the cause of environmental protection in many cases.7 The role played by the PIL can be observed in a plethora of cases. The Bhopal Gas Disaster was the triggering point that made the country and its legislators feel the need for specific legislation. It was felt that the waste from industries and atomic sectors posed a serious threat to flora and fauna as well as mankind. The supreme court passed the judgment of M.C. Mehta v. Union of India8 only a few days before the passing and thus the order of the court regarding the treatment of the industrial nuisance was taken into a note in the Environment (Protection) Act of 1986. The important cases of judicial vigilance are:-
In M.C. Mehta v. Union of India9 , which is popularly known as the ‘oleum gas leak case’, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industry by interpreting the scope of the power under article 32 of the constitution of India to issue direction and orders, ‘whichever may be appropriate’ in appropriate proceedings. The Absolute liability for the harm caused by industry engaged in hazardous and inherently dangerous activities was a newly formulated doctrine free from the exceptions to the strict liability rule of the common law principle of England.
The Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh10 is the first case where the Supreme Court extended the dimensions of the right to life to the right to healthy and other hygienic conditions. The Supreme Court passed an order resulting in the closure of certain mining operations. The court also observed that ‘it is a price that has to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance to ecological balance.’
Indian council for enviro-Legal Action v. Union of India11 was a landmark case wherein the apex court upheld the polluter pay principle.
In A.P. Pollution Control Board v. Prof. M.V. Nayadu12 the Supreme court referred to the formulation of the precautionary principle and the new burden of proof. The Court observed, “the principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity.
In M.C. Mehta v. Kamalnath13, the Apex Court laid emphasis on the Public Trust Doctrine. The doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than the permit to use for private ownership or commercial ownership.14
In Goa foundation v. Diksha holdings Pvt. Ltd15 the Supreme Court emphasized the importance of the doctrine of sustainable development.
The Supreme Court in People’s Union for Civil Liberties v Union of India16 referred to the International Covenant on Civil and Political Rights 1966 and UNHRD 1948. Justice Sikri the then Chief Justice of India in Kesvananda Bharti v State of Kerela17 also adhered to the international convention stating that whenever possible the interpretation of law must be done in light of the International Charters subscribed by India.
In Charan Lal Sahu case, the Supreme Court had said that the right to life guaranteed by Article 21 of the Constitution includes the right to a wholesome environment. The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this reasoning and went to the extent of stating that environmental pollution would be a violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution
ENVIRONMENT (PROTECTION) ACT, 1986
The Environment (Protection) Act was enacted in 1986 with the objective of providing for the protection and improvement of the environment. It empowers the Central Government to establish authorities [under section 3(3)] charged with the mandate of preventing environmental pollution in all its forms and to tackle specific environmental problems that are peculiar to different parts of the country. The Act was last amended in 199118.
The Environmental Protection Act, 198619 was passed with the following objects20:
It was enacted to implement the decisions which were made at the United Nations Conference on the Human Environment held in Stockholm in June 1972.
Creation of authority for government protection.
Coordinating the activities of various regulating agencies is done under the existing law.
The main task is to enact general laws for environmental protection, which could be unfolded in areas of severe environmental hazards.
Providing deterrent punishment to those who inculcate in endangering the human environment, safety, and health.
The main goal for the environment should be sustainable development and it can be regarded as one of the goals for the Environment Protection Act, 1986.
Sustainable development includes achieving the object and the purpose of the act as well as the protection of life under Article 21 of the Indian Constitution.
The role of the judiciary in dispensing environmental justice is a recurring phenomenon. With the power of the court to interpret and implement the laws to their strictest sense a wave of change in adherence to these laws has been brought about. While these conventions and conferences set the principles for the legislation to enact statutes upon. It was the burden of the judiciary to ensure that when the same have been violated there is strict interpretation to achieve the objective of the law. Not only did this create a sense of responsibility on the citizen but also a pathway to ensure that in violation of any such infringement they would have a clear forum to seek redressal.