Our constitution, originally, did not contain any direct provision regarding the protection of the natural environment. However, after the United Nations Conference on Human Environment, held in Stockholm in 1972, the Indian constitution was amended to include the protection of the environment as a constitutional mandate.
Environment-related legislation came very late in 1972 with the Wild Life Protection Act 1971.
The forty-second amendment (Fundamental Duties) Clause (g) to Article 51A of the Indian constitution made it a fundamental duty to protect and improve the natural environment.
Clause (g) to Article 51A of the Indian constitution states “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and have compassion for living creatures.”
There is a directive, given to the State as one of the Directive Principles of State Policy regarding the protection and improvement of the environment.
Article 48A states “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.
Article 21 of the Indian Constitution assures the citizens of India the right to a healthy environment.
The Department of Environment was established in India in 1980 to ensure a healthy environment for the country. This later became the Ministry of Environment and Forests (MoEF) in 1985.
The Environment Protection Act of 1986 (EPA) came into force soon after the Bhopal Gas Tragedy and is considered umbrella legislation as it fills many lacunae in the existing legislation.
There are certain constitutional provisions that give certain power and rights to the citizens to protect the environment. Let’s have a look:
Article 48A: This Article comes under the Directive principle of the State policy. This article implies that the State shall endeavor to protect the environment. It also emphasizes safeguarding the forests and wildlife of the country. Article 48A imposes a duty on the State to protect the environment from pollution by adopting various measures.
Article 51A (g): Article 51 A(g) states that it shall be the duty of each and every citizen of India to protect and improve the natural environment including lakes, rivers, forests, and wildlife. This article also focuses on showing compassion for living creatures. This article is similar to Article 48A, but the only difference is that it concentrates on the fundamental duty of citizens whereas Article 48A instructs the state to perform its duties and protect the environment. Hence, it is our duty to not only protect the environment from pollution but also improve its quality.
Article 253: This article gives the power to Parliament to create laws for the country in order to implement any treaty conventions and agreements with other countries. To this article, Parliament enacted various laws in order to protect the environment like - Water Act 1974, Air Act 1981, and the Environmental Protection Act 1984.
Article 246: Article 246 divides the subjects of legislation between Union and State. It also provides the details of the Concurrent list in which both the Union and State make laws by sharing the jurisdiction comprising the protection of mines, wildlife, and mineral development. So, both the State and Union have the power to enact laws to protect the environment. Article 246 also provides the extra power to Parliament in order to make laws in the State list for the National interest.
Article 47: This article imposes a duty on the State in order to improve the standards of living of citizens by providing health facilities, proper nutrition, and sanitization and protecting the environment to live safely. Article 47 also pressurizes its citizens to be more conscious of the environment.
Article 21: It states that the right to life is not just for animals but it also provides the right to humans to live safely in an environment with basic human dignity. Because. In M.C. Mehta vs. Union of India, Supreme Court had stated that the right to live includes living in a pollution-free environment and being free from diseases.
Article 19(1) (g): It states that citizens cannot practice such trade or business activities that are hazardous to public health.
Article 32 & 226: This article provides the right to citizens to approach the Supreme or the High Court whenever there is a violation of fundamental rights by PIL (Public Interest Litigation). This article helps preserve the environment and maintain ecological balance. This Article also dictates that environment conservation is not just the duty of the government but also the responsibility of the citizens of India.
The right of a person to have a pollution-free environment is a part of the basic jurisprudence of the land. Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The Supreme Court has interpreted the right to life and personal liberty to include the right to a wholesome environment. The Court through its various judgments has held that the mandate of the right to life includes the right to a clean environment, drinking water, and pollution-free atmosphere.
In Taj Mahal's case, the Supreme Court issued directions that coal and coke-based industries in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas or be relocated outside TTZ. Again the Supreme Court directed to protect of the plants planted around Taj by the Forest Department as under16:
The Divisional Forest Officer, Agra is directed to take immediate steps to see that water is supplied to the plants... The Union Government is directed to release the funds immediately without waiting for receipt of the proposal from the U.P. Government on the basis of the copy of the report. Funding may be subsequently settled with the U.P. Government, but in any set of circumstances for want of funds the officer is directed to see that plants do not wither away.
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 a healthy environment with minimal disturbance of ecological balance…
In that case, carrying haphazard and dangerous limestone quarrying in the Mussoorie Hill range of the Himalayas, mines blasting out the hills with dynamite, and extracting limestone from thousands of acres had upset the hydrological system of the valley. The Supreme Court ordered the closing of limestone quarrying in the hills and observed:
In 2001, the Supreme Court of India imposed a ban on smoking tobacco in public places all over the country. Smoking causes harm not only to smokers but also to non-smokers who are forced to inhale secondhand smoke. More than 3 million people die every year in India as a result of smoking tobacco including bidis and cigarettes. One lakh Indians get lung cancer every year because of smoking. Indeed, lung cancer kills 95% of its victims. That is why the apex Court ruling has immense social value. But no one cares about the ban. As you know cigarettes and bidis are openly sold in tobacco-free railway stations, bus stands, cinema houses, etc.
The statutory warning 'smoking is injurious to health' is printed in such small prints and color that hard it is readable. Even if it is readable, it has not served any purpose. So it is the social awakening that can only help us to prevent smoking.
In Almitra H.Patel v. Union of India, the Supreme Court reiterated the observations made in Wadehra's case-Historic city of Delhi, the capital of India, is one of the most polluted cities in the world. The authorities, responsible for pollution control and environment protection have not been able to provide a clean and healthy environment to the residents of Delhi. The ambient air is so polluted that it is difficult to breathe. More and more Delhites are suffering from respiratory diseases and throat infections. River Yamuna- the main source of drinking water supply- is the free dumping place for untreated sewage and industrial waste. Apart from air and water pollution, the city is virtually an open dustbin. Garbage strewn all over Delhi is a common sight. The Court directed the authorities to take immediate necessary steps to control pollution and protect the environment.
In that case, a major leakage of Oleum Gas affected a large number of persons, both amongst the workmen and the public. The Supreme Court held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous and inherently dangerous activity resulting in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such a liability is not subject to any exception.
The Supreme Court has emphasized the importance of the preservation of public health. In Subba Rao v. State of Himachal Pradesh, the Supreme Court ordered the closure of a bone factory that was polluting the environment with its pungent smell and making the life of the people miserable. No one can do business at the cost of public health.
With a view to preserving the environment and controlling pollution within the vicinity of the tourist resorts of Badkhal and Suraj Kund, the Supreme Court directed the stoppage of mining activity within two Kilometers radius of these two tourist resorts.
In Municipal Council, Ratlam v. Vardhichand & Others, the Supreme Court held that the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because, under nature's pressure, bashfulness becomes a luxury and dignity a difficult art. A responsible Municipal Council constituted for the purpose of preserving public health cannot run away from its duty by pleading financial inability.
A place that is reserved for public parks cannot be converted for use into a private nursing home. In Banglore Medical Trust v. B.S. Muddappa, the Supreme Court set aside the decision of the Bangalore Development Authority granting permission for converting the place reserved for public-park for the establishment of a nursing home and observed thus:
The public interest in 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 some other use.
In another case, a park was in existence for many years. Because of the construction of an underground shopping complex and parking, irreversible changes were made. The Supreme Court ordered the demolition of the building on the site of the park and held that no authority has the power to grant permission to change the land use of a site reserved for a Public Park.
Pollution has long been a serious problem in India, reflecting both the importance of highly polluting industries for the national economy and political factors such as the low priority of environmental issues and lack of public participation. Also, it affects everything including the environment as public health in India is at serious risk and environmental impact on the climate which is an important factor for agriculture that Indians depend on for a living. However, the Indian government has some solutions, for example switching to a cleaner fuel, setting rules to reduce emissions, and campaigning to spread knowledge about the effects of pollution and about how they can personally help out will be important to create a culture that values the environment.