Project On Environmental Law.docx

PROJECT ON

DYNAMIC INTERPRETATION OF ARTICLE 14, 19 & 21 OF THE CONSTITUTION FOR ENVIRONMENTAL MATTERS (ENVIRONMENT LAW)

PROJECT SUBMITTED TO: DR. RANA NAVNEET ROY (FACULTY: ENVIRONMENTAL LAW)

PROJECT SUBMITTED BY: SWAPNIL BHAGAT SEMESTER-IV, SECTION-A ROLL NO-155

SUBMITTED ON: 05.03.2020

HIDAYATULLAH NATIONAL LAW UNIVERSITY UPARWARA POST, ABHANPUR, ATAL NAGAR, C.G DECLARATION I hereby declare that the work reported in this project report entitled “Dynamic interpretation of Article 14, 19 & 21 of the Constitution for Environmental matters (Environment Law).” submitted at Hidayatullah National Law University, Raipur is an outcome of my work carried out under the supervision of Dr. Rana Navneet Roy is based on actual and original work carried out by me. Any reference to the work done by any other person or institution or any material obtained from the sources have been duly cited and referenced. I further certify that project report has not been submitted before to any other faculty member of Hidayatullah National Law University, Raipur. To the best of my understanding, the project is free from any plagiarism issue.

Swapnil Bhagat Semester-IV, Section-A, Roll No-155

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ACKNOWLEDGEMEN First and foremost I would like to thank ​Dr. Rana Navneet Roy ​Sir, faculty Environmental Law, Hidayatullah National Law University Raipur, for creating opportunities to undertake such a valuable project. He helped me in preparing the project through his aura and by granting his precious time for consultation, discussion and giving suggestions over this project. He had also helped me in improving the perception regarding the study of topic in its vast resources and in broader way. He had cleared all doubts and uncertainty towards this project. Therefore, I want to thank him, for all his efforts and cooperation which he conferred to me. I thank, almighty God, who bestowed and showers his blessings upon me and provided with the gift of intellect to work on such topic with full dedication and intelligence. I also owe my gratitude towards University Administration for providing me all kinds of required facilities with good Library and IT lab. This helps me in making the project and completing it. My special thank to Library Staff and IT staff for equipping me with the necessary data and websites from the internet. I would also like to show appreciation towards me because I had carried this project work as a challenge and completed in due time. The topic of this project is much influencing to me as it embodies itself under the head of special suit for which the procedure followed under the Code is mandatory.

Swapnil Bhagat Semester-IV, Section-A, Roll No-155

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TABLE OF CONTENT S.NO

CONTENTS

PAGE NO

1.

Cover page

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2.

Acknowledgment

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3.

Declaration

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4.

Chapter-I: Introduction

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5.

Aims & Objectives

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6.

Research Methodology

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7.

Chapter-II:

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8. Chapter-III:

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09. Chapter-IV:

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10. Conclusion

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11. References

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CHAPTER-I INTRODUCTION The constitution of India is not an inert but a living document which evolves and grows

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with time. The specific provisions on environment protection in the constitution are also result of this evolving nature and growth potential of the fundamental law of the land. The preamble to our constitution ensures socialist pattern of the society and dignity of the individual. Decent standard of living and pollution free environment is inherent in this. The Environment (Protection) Act, 1986 defines environment as “environment includes water, air and land and the interrelationship which exists among and between air, water and land and human beings, other living creatures, plants, micro-organism and property”. In India, the concern for environmental protection has not only been raised to the status of fundamental law of the land, but it is also wedded with human rights approach and it is now well established that, it is the basic human right of every individual to live in pollution free environment with full human dignity. In view of the various constitutional provisions and other statutory provisions contained in various laws relating to environment protection, the Supreme Court has held that the essential feature of “sustainable development” such as the “precautionary 1

principle” and the “polluter pays principle” are part of the environmental law of the country.

When our constitution was drafted it did not contain any specific provisions on environment and even the word “Environment” did not find a place in the constitution; there are certain provisions which to great extent had direct bearing on the environment such as improvement of public health, organization of agricultural and animal husbandry on modern and scientific lines and protection of natural monuments from spoliation, disfigurement.

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Our constitution is not an inert but has grown and evolved over the years. In the Indian scenario, environment protection, has not only been raised to the status of fundamental law of the land, but it has also been webbed with human rights approach and is now considered as a well-established fact that it is the basic human right of every individual, to live in a pollution free environment with complete human dignity. The preamble to our constitution provides for a socialist society which promotes environmental protection. The fundamental duties again clearly 1

http://www.greeklawdigest.gr/topics/physical-cultural-environment/item/93-the-constitutional-protectionof-the-envi ronment 2 https://researchspace.ukzn.ac.za/xmlui/bitstream/handle/10413/12290/Muir_Andrew_Robert_2014.pdf?seq uence=1&isAllowed=y

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impose duty on all citizens to protect environment. The Directive principles further are directed towards the ideals of building a welfare state. Healthy environment is one of the essential elements of a welfare state. Article 47 states that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health which includes the protection and improvement of environment as a part of its primary duties. Article 48-A of the constitution states that the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Part III guarantees fundamental rights which are essential for the development of an individual. A citizen cannot carry on business activity, if it is health hazards to the society or general public. The paper meticulously deals in the remedies under Article 36 and 226 and also forms a notion for the reader that knowledge of these provisions is necessary to bring greater public participation, environmental awareness amongst the masses.

AIMS AND OBJECTIVES 7

The basic objective behind this project is to study about the Constitutional Provisions on environmental protection. OBJECTIVES: ● To compare the provisions on Environmental Protection Act, 1986, ● To find a method in bringing in an effective mode of environmental preservation, ● To study the case laws regarding Environmental Law, ● To observe whether the constitutional remedy is effective enough or not.

RESEARCH METHODOLOGY This research is descriptive and analytical in nature. Secondary and Electronic resources have been largely used to gather information and data about the topic. Books and other reference as guided by Faculty have been primarily helpful in giving this project a firm structure. Websites and dictionaries have also been referred.  

Sources of Data: The following secondary sources of data have been used in the project1. Articles 2. Books 3. Websites

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CHAPTER-II ENVIRONMENT AND CONSTITUTION OF INDIA

I.

Preamble of the Constitution and Environmental Law The preamble to our constitution ensures socialist pattern of the society and dignity of the

individual. Decent standard of living and pollution free environment is inherent in this. The basic idea behind the concept of socialism is to promote “decent standard of living for all” which is only possible in a pollution free environment. Pollution is considered as one of the social problems. The state is thus compelled by the Constitution to pay attention to this social problem to establish a just social order.

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The preamble further declares that, the great rights and freedoms which the people of India intended to secure all citizens include justice, social, economic and political. Justice also includes environmental justice. Although the particular word „environment‟ does not find a place here, we can very well interpret this to include environmental justice. Environment as a subject matter has entered in our day to-day life in such a way that we cannot ignore deliberations on environmental matters when discussing about socio-economic or socio-political scene of the country.(Shanthakumar 2007; Shastri 2008) II.

Article 48A & 51A(g):

The basic idea

​Article 38 of the Const. Of India mandates the State to secure a social order for the promotion of welfare of the people. 3

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behind the concept of socialism is to promote “decent standard of living for all” which is only possible in a pollution free environment. Pollution is considered as one of the social problems. The state is thus compelled by the Constitution to pay attention to this social problem to establish a 10

just social order. The basic idea behind the concept of socialism is to promote “decent standard of living for all” which is only possible in a pollution free environment. Pollution is considered as one of the social problems. The state is thus compelled 11

by the Constitution to pay attention to this social problem to establish a just social order. The basic idea behind the concept of socialism is to promote “decent standard of living for all” which is only possible in a pollution free environment. Pollution 12

is considered as one of the social problems. The state is thus compelled by the Constitution to pay attention to this social problem to establish a just social order.​ The basic idea behind the concept

of socialism is to promote “decent standard of living for all” which is only possible in a pollution free environment. Pollution is considered as one of the social problems. The state is thus compelled by the Constitution to pay attention to this social problem to establish a just social 4 order. E-sources: 1. ​www.slideshare.net 4

2. ​www.cprindia.org 3. ​www.indiankanoon.com Articles: https://pib.gov.in/newsite/PrintRelease.aspx?relid=105411 https://www.indianbarassociation.org/wp-content/uploads/2013/02/environmental-law-ar ticle.pdf https://blog.ipleaders.in/constitution-environment-provisions/ https://acadpubl.eu/hub/2018-120-5/2/195.pdf 13

Initially, the Constitution of India had no direct provision for environmental protection. Global consciousness for the protection of environment in the seventies, Stockholm Conference and increasing awareness of the environmental crisis prompted the Indian Government to enact 42nd Amendment to the Constitution in 1976. The Constitution was amended to introduce direct provisions for protection of environment. This 42nd Amendment added Article 48-A to the Directive Principles of State Policy. Article 48A ​was associate addition to the Directive Principles of State Policy. It states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. The Article explains that it is the duty of the state to protect the natural environment and improve the environment by various methods of preservation in order to reduce the pollution already caused. It also mentions that it is the duty of the state to safeguard the forest and the wildlife surrounding the country. Article 51A (1) (g) was a responsibility given to the citizens of India as an addition to the Fundamental Duties. It states, “To protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures”. The Article is similar to Article 48A but the only difference is the duty given is to the citizens of India as a Fundamental

https://www.researchgate.net/publication/299521753_A_critical_view_on_the_impact_of _constitution_of_India_as_internal_regulatory_mechanism_for_environmental_issues_a nd_policies https://cdem.somaiya.edu/media/pdf/Env%20Law%20and%20policy%20.pdf https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103440 http://www.legalservicesindia.com/law/article/1105/10/Judicial-Interpretation-in-Right-t o-Life-and-Personal-Liberty-Under-Article-21-of-Indian-Constitution http://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-Free-Environme nt.html https://www.legalbites.in/environmental-law-indian-constitution/

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Duty. (Ojwang 1993) 5

In ​L.K Kollwal V State of Rajasthna , a straightforward writ petition by voters of Jaipur compelled the municipal authorities to produce adequate sanitation. The court observes that once each national owes a constitutional duty to safeguard the surroundings (Art.51A), the national should be conjointly entitled to enlist the courts aid in imposing that duty against recalcitrant State agencies. The Court gave the administration six month to wash up the complete town, and laid-off the plea of lack of funds and employees. (Harrison 2005) III.

Article 253: Article 253 states that ‘Parliament has 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. In simple words this Article suggests that in the wake of Stockholm Conference of 1972, Parliament has the power to legislate on all matters linked to the preservation of natural environment. Parliament’s use of Article 253 to enact Air Act and Environment Act confirms this view. These Acts were enacted to implement the decisions reached at Stockholm Conference. IV.

Article 246: Article 246 of the Constitution divides the subject areas of legislation between the Union and the States. The Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines and inter-state rivers. The State List (List II) includes public health and sanitation, agriculture, water 6

provides, irrigation and emptying, fisheries. The Concurrent list (List III) (under that each State and also the Union will legislate) includes forests, protection of wildlife, mines and minerals and development not coated within the Union List, population control and factories. From an environmental stand, the allocation of legislative authority is a crucial

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​AIR 1988 Raj 2; 1987 (1) WLN 134

http://legaldesire.com/environmental-law-and-its-implementation-in-india-a-judicial-role-with-specialreference-to-cr p-c/

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one – some environmental drawback like sanitation and waste disposal, square measure best tackled at the native level; others, like pollution and wildlife protection, square measure higher regulated uniform national laws.

Environment and Citizens: The Constitution of India has made a double provision: (i)

A directive to the State for protection and improvement of environment.

(ii)

Imposing on every citizen in the form of fundamental duty to help in the preservation of natural environment. This is the testimony of Government’s awareness of a problem of worldwide concern. Since protection of environment is now a fundamental duty of every citizen, it is natural that every individual should do it as personal obligation, merely by regulating the mode of his natural life. The citizen has simply to develop a habitual love for pollution.

CHAPTER-III

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FUNDAMENTAL RIGHTS The Constitution of India under part III guarantees fundamental rights which are essential for the development of every individual and to which a person is inherently entitled by virtue of being human alone. Right to environment is also a right without which development of individual and realization of his or her full potential shall not be possible. Articles 21, 14 and 19 of this part have been used for environmental protection. 1. ARTICLE-14 RIGHT TO EQUALITY: “It is the duty of the State to treat all person equal or equal protection before the law within the territory of India”. The possibility of infringement of this Article by a government decision having impact on the environment cannot be ruled out. Article 14 strikes at arbitrariness because an action that is arbitrary 7

must necessarily involve a negation of equality. Thus, permission for contractions that is contrary to town planning regulation by the municipal authority may be challenged. Similarly, Article 14 may be invoked to challenge governmental sanction of projects having adverse impact on the natural environment and where such sanctions involve arbitrary considerations. KAMAL NATH CASE: 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 land mark judgment and established principle of exemplary damages for the first time in India. The Court said that 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. 2. ARTICLE-19(1)(g)​: A ​ rticle 19 (1) (g) of the Indian constitution confers fundamental

right on every citizen to practice any profession or to carry on any occupation, trade or 7

Ajay Hasia v. Khalid Mujib Shervardi , AIR 1981 SC 487,499.

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business. This is subject to reasonable restrictions. A citizen cannot carry on business activity, if it is health hazards to the society or general public. Thus safeguards for environment protection are inherent in this. The Supreme Court, while deciding the matter relating to carrying on trade of liquor in 8

Cooverjee B. Bharucha Vs Excise commissioner, Ajmer o​ bserved that, if there is clash between environmental protection and right to freedom of trade and occupation, the courts have to balance environmental interests with the fundamental rights to carry on any occupations. 3. ARTICLE-21 RIGHT TO LIFE According to Article 21 of the constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 21 has received liberal interpretation from time to time after the decision of the Supreme Court 9

in ​Maneka Gandhi vs. Union of India,​ . Article 21 guarantees fundamental right to life. Right to environment, free of danger of disease and infection is inherent in it. Right to healthy environment is important attribute of right to live with human dignity. The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of ​Rural Litigation and Entitlement Kendra vs. State,

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(Popularly known as Dehradun Quarrying Case). It is the first case of this kind in India, involving issues relating to environment and ecological balance in which Supreme Court directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 11

1986. In ​M.C. Mehta vs. Union of India,​ the Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the Constitution. 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

​(1954, SC 220) (AIR 1978 SC 597) 10 AIR 1988 SC 2187 11 AIR 1987 SC 1086 8 9

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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 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 air is a fundamental right under Article 21. Following this decision, the right to pollution free environment was incorporated under the head of 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 Muncipality v Vardicharan​, 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 right to life under Article 21. 12

In the case of ​Attakoya Thangal v. Union of India​, Life cannot be possible without clean drinking water therefore; right to clean water is one of the attributes of the right to life in Article 21 of the Constitution. The industrial establishments in and around residential colonies are another cause of concern, more so, when the industries have mushroomed contrary to the development plans. 13

In ​V. Lakshmipathy v. State of Karnataka the same issue came before the High Court of Karnataka. The High Court held that once a development plan had earmarked the area for residential purpose, the land was bound to be put to such use only. Thus, High Courts , it seems, were moreenthusiastic and active in accepting and declaring that ‘right to life’ in Article 21 includes ‘right to environment. Excessive noise creates pollution in the society. The constitution of India under Article 19 (1) (a) read with Article 21 of the constitution guarantees right to decent environment and

1990 (1) KLT 580

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AIR 1992 Kant 57

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right to live peacefully. In PA Jacob vs. The Superintendent of Police Kottayam, AIR 1993 Ker 1, the Kerala High Court held that freedom of speech under article 19 (1)(a) does not include freedom to use loud speakers or sound amplifiers. Thus, noise pollution caused by the loud speakers can be controlled under article 19 (1) (a) of the constitution. CHSPTER-IV ROLE OF PANCHAYAT AND MUNICIPALITIES The Constitution (Seventy-third Amendment) Act 1992 have given a Constitutional status to the panchayats and the Municipalities respectively. Article 243-B provides or the establishment of intermediate and district levels. Article 243-G authorises the legislature of State to endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self-government. The Eleventh Schedule along with other matters contains following maters which are directly or indirectly related to environment like, agriculture, soil conservation, water management and watershed development; fisheries; social forestry and farm forestry; minor forest produce; drinking water; health and sanitation; and maintainace of community assets. The matters which are related to environment in the twelfth Schedule may be enumerated as follows: Urban planning including town planning regulation of land use water supply; public health, sanitation, conservancy and solid waste management, urban forestry, protection of the environment and promotion of ecological aspects; provision of urban amenities such as park grounds ; cremation grounds and electric crematoriums; prevention of cruelty to animals regulation slaughter houses and tanneries. Thus it is evident that the Constitution imposes the duty to protect and preserve the environment in all the there tiers of the Government i.e. Central, state and local. WRIT JURISDICTION AND PUBLIC INTEREST LITIGATIONS One of the most innovative parts of the Constitution is that the Writ Jurisdiction is conferred on the Supreme Court under Article 32 and on all the High Courts under Article 226. Under these provisions, the courts have the power to issue any direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and 20

certiorari, whichever is appropriate. This has paved way for one of the most effective and dynamic mechanisms for the protection of environment, that is, Public Interest Litigations.

CONCLUSION Environment protection is part of our cultural values and traditions. In Atharvaveda, it has been said that “Man’s paradise is on earth; this living world is the beloved place of all; It has the blessings of nature’s bounties; live in a lovely spirit”. Earth is our paradise and it is our duty to protect our paradise. The constitution of India embodies the framework of protection and preservation of nature without which life cannot be enjoyed. The knowledge of constitutional provisions regarding environment protection is need of the day to bring greater public participation, environmental awareness, environmental education and sensitize the people to preserve ecology and environment. RECOMMENDATIONS ● Connecting human rights and environment is a valuable sourcebook that explores the uncharted territory that lies between environmental and human rights legislation. ● Human beings can ensure fundamental equality and adequate conditions of life in an environment that permits a life of dignity and well-being. ● 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. ● Indeed, health has seemed to be the subject that bridges gaps between the two fields of environmental protection and human rights. ● The advancement of the relationship between human rights and environment would enable incorporation of human rights principles within an environmental scope, such as antidiscrimination standards, the need for social participation and the protection of vulnerable groups.

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BIBLIOGRAPHY: Books: 1. S. Shanthkumar‟s, Introduction to Environmental Law, Second Edition Reprint 2010, Lexis Nexis, Nagpur, 2010. 2. S. C. Shastri, Environmental Law, Fith Edition, Eastern Book Company. 3. C.P.R. Environmental Education Centre, Environmental Laws of India an Introduction.

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