CONSTITUTIONAL PROVISIONS &
LEGISLATIVE MEASURES
To Plant a Tree
If doser to God I wished to be, I think that I should plant a tree.
A tiny seed placed in the ground, With all its needs found all around.
The rain to drink, the air to breathe, The ground to lay upon and weave Its tiny roots beginning now
Will search their home for strength to grow Up towards the light of God's blue sky.
So If you were to ask me why I thought of trees and God this way, My answer is simple I would say.
A bridge between the earth
— By Kelly Francles —
India uses constitutional rights to protect the environment and human rights. The right to life, a fundamental right, has been extended to include the right to a healthy environment. The right to healthy environment has been incorporated, directly or indirectly, into the judgments of the court. In India, the state has a duty to protect and preserve the ecosystem. This is a part of the directive principles of state policy and not a fundamental right. On the other hand, the Constitution of Bangladesh or Pakistan does not provide any direct protection of the environment. In India, the fundamental right to life has been expanded to include, inter alia, right to liberty, livelihood, healthy/clean
environment or protection against degrading treatment. Two more constitutional rights, the right to equality and right to property, have been analysed to determine their application in the protection of the environment and human rights. The discussion shows that most litigation is brought against public authorities, which Include various ministries of Central government, local authorities and public owned companies.
Constitutional Philosophy & Provisions on Environmental Protection:
Strictly speaking no constitution deals with a matter such as environmental protection, because basically any constitution contains only the rules of laws in relation to the power structure, allocation, and manner of exercise. Besides Indian Constitution Is already a bulky document and brevity is the character of an ideal constitution. Hence from the point of view of the principles of the constitutional law as well as the length of the constitution It was Impossible to have any such provision safeguarding the healthy environment. Therefore till the subsequent amendments the constitutional text of India was without any specific provision for the protection and promotion of the environment. However the seeds of such provision could be seen in Article 47 of the Constitution which commands the state to Improve the standard of living and public health. To fulfill this constitutional goal it is necessary that the state should provide pollution free environment.
Environmental deterioration could eventually endanger life of present and future generations. Therefore, the right to life has been used in a diversified manner In India. It includes, inter alia, the right to survive as a species, quality of life, the right to live with dignity and the right to livelihood. In India, this has been expressly recognised as a constitutional right. However, the nature and extent of this right is not similar to the self-executory and actionable right to a sound and healthy ecology prescribed in the Constitution of the
Philippines. Article 21 of the Indian Constitution states: 'No person shall be deprived of his life or personal liberty except according to procedures established by law/ The Supreme Court expanded this negative right in two ways. Firstly, any law affecting personal liberty should be reasonable, fair and just.1 Secondly, the Court recognised several unarticulated liberties that were implied by Article 21.2 It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to a clean environment.3
In addition, the Constitution (Forty Second Amendment) Act 1976 explicitly incorporated environmental protection and Improvement as a part of state policy. Article 48A, a Directive Principle of State Policy, provides that: 'The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country/ Moreover, article 51A (g) imposes a similar responsibility on every citizen 'to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.../ Therefore, protection of natural environment and compassion for living creatures were made the positive fundamental duty of every citizen. Both the provisions substantially send the same message. Together, they highlight the national consensus on the importance of the protection and improvement of the environment. The wordings of the articles show that the nature of such obligation under the state policy Is none self-executing.
The following discussion shows how the courts have dealt with human rights and the environment during the last decade. Link between environmental quality and the right to life was first addressed by a constitutional
1 Maneka Gandhi v. Union of India, AIR 1978, SC 597,623-624. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746, 749-750.
2 Directive Principle such as equal pay for equal work, free legal aid, right to speedy trial, right to liablehood, right to education and Directive Principle relating to environment (Article-48-A) are read in conjunction with the Fundamental Rights
3 P. Leelakrishnan; Law and Environment, Eastern Book Company, India, 1992, p p 144-152.
bench of the Supreme Court in the Charan La/ Sahu Case.4 In 1991, the Supreme Court Interpreted the right to life guaranteed by article 21 of the Constitution to include the right to a wholesome environment. In Subash Kumars5 case, the Court observed that 'right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life/
The United Nations Conference on Human Environment held on in JUNE 1972 at Stockholm placed the issue of the protection of biosphere on the official agenda of International Policy and law. The agenda of the Conference consisted (1) Planning and management of human settlements for environmental quality (2) Environmental aspects of natural resources management (3) Identification and control of pollutants and nuisances of broad International significance (4) Educational, Information, Social and Cultural aspects of environmental issues (5) Development and environment and (6) International Organisational Implications of action proposals.
The Stockholm Conference agendas, proclamations, principles and subsequent global environment protection efforts show the words realization of the need to preserve and protect the natural environment. The Conference acclaimed man's fundamental right to adequate conditions of life In an environment of a quality that permitted a life of dignity and well-being. To comply with the principles of the Stockholm Declaration adopted by the International Conference on Human Environment, the Government of India, by the Constitution 42nd Amendment Act, 1976 made an express provision for the protection and promotion of the environment, by the Introduction of Article 48-A and Article 51-A (g) which form the part of Directive Principles of State Policy
4 AIR 1990 SC 1480
5 Subhash Kumar v. State of Bihar [AIR 1991 SC 420/1991(1) SCC 598]
and the Fundamental Duties respectively. The amendment provided for the following:
(1) Article 48-A: By the Constitution (42nd Amendment) Act, 1976, Section 10 (w.e.f. 03^01.1977) Protection and improvement of environment and safeguarding the forests and wild life:
"The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
(2) Fundamental Duty; Article 51-A (a): By Constitution (42nd Amendment) Act, 1976, Section 11 (w.e.f. 03.01.1977)
"It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures." Thus the Indian Constitution makes two fold provisions i.e. (a) On the one hand, it gives directive to the State for the protection and improvement of environment and (b) On the other hand the citizens owe a constitutional duty to protect and Improve natural environment.
In protecting the natural environment, Article 48-A is of immense importance today. Because with the activist approach of Judiciary in India the legal value of Directive Principles Jurisprudence has constantly grown up in the Indian Constitutional set-up. Hence the above provisions are of pivotal significance. The Government of India to accelerate the pace for environment protection further amended the constitutional text by making the following changes:
1- Seventh Schedule of the Constitution
(I) In the Concurrent list, 42nd Amendment inserted (a) Entry 17-A, providing for forests.
(b) Entry 17-B, for the protection of wild animals and birds.
(c) Entry 20-A, providing for population control and family planning.
2. Eleventh Schedule of the Constitution
(I) This new schedule is added by the Constitution 73rd Amendment Act, 1992, which received the assent of the President on 20.04.1993. This schedule has 8 entries i.e. 2,3,6,7,11,12,15 and 29 providing for environmental protection and conservation which are given below:
(a) Entry 2, for land improvement, implementation of land reforms, land consolidation and soil conservation;
(b) Entry 3, for minor irrigation, water management and watershed development;
(c) Entry 6, for social forestry and farm forestry;
(d) Entry 7, for minor forest produce;
(e) Entry 11, for drinking water;
(f) Entry 12, for fuel and fodder;
(g) Entry 15, for non-conventional energy sources and (h) Entry 29, for maintainance of community assets.
3. Twelfth Schedule
Ofthe Constitution
(!) The entry number 8 of this schedule added to the constitutional text by the 74th Amendment Act, 1992, which received the assent of the President on 20.04.1993, provided for the Urban Local Bodies, with the function of environment and promotion of ecological aspects to them which is for urban forestry, protection of the environment and protection of ecological aspects.
Due to the above changes the division of legislative power between the Union and the State is spelt out in the following three of the 7th Schedule of the Constitution.
UsU (UNION UST)
Entries
52. Industries
53. Regulation and development of oil fields and mineral oll/resources.
54. Regulation of mines and mineral development.
56. Regulation and development of inter-State rivers and river valleys
57. Fishing and fisheries beyond territorial waters.
List II (STATE USD
Entries
6. Public health and sanitation.
14. Agriculture, protection against paste and prevention of plant diseases.
18. Land, colonization etc.
21. Fisheries.
23. Regulation of mines and mineral development subject to the provision of
24. Industries subject to the provision of List III (COMMON or CONCURRENT LIST)
Entries
17-A. Forests
17-B. Protection of wild animals and birds.
20. Economic and social planning.
20-A. Population control and family planning
The Eleventh schedule, added to the Constitution by the Constitution 73rd Amendment Act, 1992, assign the functions of soil conservation, water management, social and farm forestry, drinking water, fuel and fodder etc to the Panchayats with a view to environmental management.
The Twelfth Schedule of the Constitution added by 74th Amendment Act, 1992 commands the urban local bodies such as Municipalities to
perform the functions of protection of environment and promotion of ecological aspects.
The Constitutional changes effected in the 7th Schedule by the 42nd Amendment Act, 1976 is a milestone steps in the direction of the protection of environment. Because the subject of forests originally was in the State list as entry 19, this resulted In to no uniform policy by the State so as to protect the forests. By placing the term 'forest7 now in the concurrent list by the entry 17-A, along with the State, Parliament has acquired a law making power. Because of the above change, in order to have a uniform policy in the forest management, the Government of India in the year 1980 set up the Ministry of Environment and Forests. By virtue of this change Parliament also enacted the Central legislation i.e. Forest Conservation Act, 1980, which was amended in 1988. The Government also adopted the new National Forest Policy in 1988 with a twin object. One was to protect the forest and another was to consider the needs of the forest dwellers.
Similarly the insertion of the entry 17-B in the Concurrent list has empowered the Parliament to enact a law with a view to protection of wild animals and birds. Although we had a comprehensive legislation In the form of Wildlife Protection Act of 1972, the 42nd Amendment has considered the wildlife along with forests. India has also formulated National Action Plan for the protection of wildlife. The new entry 20-A in the Concurrent list empowers the Parliament to regulate the population explosion, one of the prime causes of the environmental pollution. By these changes, legally and constitutionally it has become possible to take a uniform action in the matters of proper management of the environment.
Constitutional Remedies:
(1) Scope:
Public law remedies for administrative illegality may be pursued by:
(a) the aggrieved Individual, or
(b) (according to the recent trends) by way of "public interest litigation".
The principal public law remedy is that of "Writs". But it should not be overlooked that our law of civil procedure contains specific provisions to enable two or more persons having a legitimate interest in the subject matter, to seek remedy through court for:
(a) remedying public wrongs (section 91, CPC)
(b) remedying breaches of public trusts. (section 92, CPC):
Provisions similar to section 92, CPC exist also in some Central and State Acts.
Besides this there is the procedure of "representative suit/' (class action), under the Code of Civil Procedure, 1908, Order 1, Rule 8.
The Code of Civil Procedure, 1973 also contains (in section 133 and succeeding sections) a useful set of provisions designed for seeking relief by way of injunction etc for public nuisances.
(2) Writs: the Supreme Court and High Courts: However, the remedy par excellence in public law in India is the writ. Article 32 of the Constitution provides as under:
"32 Remedies for enforcement of rights conferred by this part"
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part Is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeus corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be conferred by this part.
3. Without prejudice to the power conferred on the Supreme Court by clause (1) and (2), Parliament may, by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by the Constitution.
A wider writs jurisdiction is conferred on High Courts by article 226 of the Constitution.
(3) Variety of Rights coming up for the Enforcement: Rights given by law, or recognized by law, can be analysed in some categories which are (a) fundamental rights, given by the Constitution, (b) constitutional rights, not having the status of the fundamental rights (c) statutory rights, (d) rights flowing from the sub-ordinate legislation (e) rights based on case law (f) customary rights and (g) contractual rights. Only fundamental rights falling within category (a) mentioned above can be enforced under article 32 of the Constitution.
(4) Supreme Court and High Court's concurrent jurisdiction: On the text of articles 32 and 226 of the Constitution where a fundamental right is Involved, a party should be free to approach either of the two Courts.6 And this has been the earlier judicial approach. In fact, some decisions have pointed out that since the remedy under Article 32(1) is itself a fundamental right, the Supreme Court is under duty to grant relief for violation of a substantive fundamental right.7
Even still stronger are decisions holding Article 32 to be a basic feature of the Constitution, which can not be taken away by even amending the Constitution.8 (a) Notwithstanding the above position, the Supreme Court has , in certain decisions pronounced In 1987 stated that where relief through the High Court is available under Article 226, the party should first approach the High Court.9 It is submitted with great respect that this view goes against the intendment of the Constitution and is contrary to earlier case law.
6MKGopalan v. State ofM.P. (1955) SCR 168, 174
7 Kochumi v. State of Madras, AIR 1959 SC 725,729; Tata Iron & Steel Co. v. Sarkar, AIR 1961, SC 65;
Nishan Das v. State of Punjab, AIR 1961, SC 1570; and Kharak Singh v. State ofMP, AIR 1963, SC 1295.
* Fertiliser Corporation of India v. Union of India AIR 1981 SC 344.
9 PN Kumar v. Municipal Corporation of Delhi (1987) 4 SCC 609,610,611; Kombhai Brahmabhatt v.
State of Gujarat, AIR 1987, SC 1159
(5) High Courts:
Article 226(1) of the Constitution of India reads as under: "226 power of a High Courts to Issue certain writs: Notwithstanding anything in article 32, every High Court shall have power through the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government within those territories directions, orders or writs, including writs in the nature of habeus corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enhancement of any of the rights conferred by Part III and for any other purpose."
The power of High Court to issue writ under Article 226 is wider than that of the Supreme Court. It is not confined to fundamental rights, but extends to all cases where the breach of a right is alleged. The writ may be issued for the enforcement of the fundamental rights or for any other purpose.10 Of course, there must be violation of a right.* 11
(6) Geographical limits as to writ?:
On a combined reading of clause (1) and (2) of article 226 of the Constitution, one can say that a writ can be issued against a Government, person or authority, if, (a) its seat is within the High Court's jurisdiction, or (b) the cause of action has arisen wholly or in part within the High Court's jurisdiction.
(
7
) Law declared bv High Courts:The law declared by the High Court is binding on the all subordinate courts within the State.12
(8) Relief on Writs:
The relief that may be granted under article 226 may be13 (a) setting aside an illegal order, (b) declaratory, (c) restitutionary (refund of invalid tax) and (d) other consequential relief,
10 State of Orissa v. Madangopal (1952) SCR 28
11 Calcutta Gas Co. v. State of West Bengal AIR 1962, SC 1044.
12 East India Co, v. Collector of Customs, AIR 1962 SC 1895
13 Calcutta Discount Co. v. ITO, Air 1961, SC 372; BBL & T Merchants Association v. State of Bombay, 1962, SC 486; State ofMP v. Bhailal, AIR 1964 SC 1006; Dwarka v. ITO, AIR 1986, SC 81; Desai v.
Roshan, AIR 1976 SC 578; Rambhadraiah v. Secretary, AIR 1981, SC 1653.
(9) Extraordinary and Discretionary remedy:
The
remedy of writs Is:- (a) extraordinary, (b) discretionary (unless a fundamental right Is Involved), (c) dependent on these being cause of action and (d) exercisable only against the parties before the court.14(10) Public Interest Litigation;
An outstanding development of far reaching importance during the last decade or so Is the growth of public interest litigation. Public Interest Litigation is a proceeding in which an individual or group seeks relief in the interest of the general public and not for the purposes of the individual or group.
The spate of such litigation has enriched the law modified the traditional doctrine of locus standi and led to the devising of new remedies and procedures.
Of the numerous cases on the subject, the following are worth study, as Illustrating the basic and Important features:
(i) Ratlam Municipality v. Vardhichand15 (General)
(ii) Fertiliser Corporation v. Union of India16 (Locus standi)
(ill) People's Union for Democratic Rights v. Union of India17 (General)
(iv) State of HP v. Parent18 (Mode of entertaining) (v) Shlvajirao vrs Mahesh19 (Mode of entertaining) (11) Local Authorities and Writs:
A local authority having a legal grievance may be able to take out a writ. Thus, a writ was Issued on the petition of a local authority against a public utility
w Abraham v. ITO, AIR 1951 SC 609 (alternative remedy); State of Rajasthan v. Karam Chand, AIR 1965, SC 913 (Fundamental Right); Khurai Municipality v. Kamal Kumar, AIR 1965, SC 1321 (mandatory provision violated); Bhopal Sugar Industry v. ITO, AIR 1967 SC 549 (alternative remedy).
15 AIR 1980 SC 1622
“AIR 1981 SC 344 17 AIR 1982 SC 1472
“ AIR 1985 SC 910.
19 AIR 1985 SC 294, para 35,36.
concern, for the latter's failure to fulfill its statutory obligation to supply power to the local authority, which was a consumer of electricity.20
(12) Specific Writs:
The Constitution, In article 32 and 226, specifically mentions five writs. But the power of these two courts to issue writs is not confined to those specifically enumerated.21
Fundamental Rights:
The judiciary's dynamic interpretation of fundamental rights have regulated in to the rights to healthy environment from the following Articles:
(a) Article 14: "State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
(b) Article 19(6): State is empowered to make any law imposing in the Interests of the general public, reasonable restrictions on the exercise of freedom to practice any profession, or to carry on any occupation, trade or business, guaranteed by Article
Kfl).
(c) Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law".
Fundamental Rights and Environment:
In Indian Constitution Incorporation of Fundamental Rights is there In part-III which has been made judicially enforceable.22 The Supreme Court of India has contributed significantly especially during the 80's in broadening the contents and contours of some of these basic rights. Here an attempt is being made who examine this perspective in the context of environmental protection.
20 Corporation of Nagpur V.N.E.L & Pvt Co, AIR 1985, Bom 498
21 P.M.Bakshi’s, Hand book of Administrative Law (Indian Law Institute, 1990) 22 Article 32, Indian Constitution.
The Right to a Wholesome Environment:
The interpretation given by the apex court in Maneka Gandhi's case23 has added new dimensions to the concept of personal liberty of an Individual. It laid down that a law affecting life and liberty of a person has to stand the scrutiny of Articles 14 and 19 of Indian Constitution24 in other words, if a law is enacted by the legislature which touches often the life and liberty of a person and curtails it, then it is mandatory requirement that the procedure established by it for curtailing the liberty of a person must be reasonable, fair and just.25 It is this interpretation of Article-21 which the court has extended further so as to include the right to a wholesome environment. In other words, environmental pollution which spoils the atmosphere and thereby affects the life and health of the person has been regarded as amounting to violation of Article-21 of Indian Constituency.
In this connection it will be worthwhile to refer to the decision of the apex court In Dehradun Quarry's case.76 In this case the Supreme Court entertained complaints from the Rural Litigation and Entitlement Kendra, Dehradun alleging that the operations of lime stone quarries in the Musoorie- Dehradun region resulted In degradation of the environment affecting the fragile eco-systems in the area. In this case the Supreme Court moving under Article- 32 ordered the closer of some of these quarries on the ground that these were upsetting the ecological balance thought the judgement did not make the reference to Article-21 but involving of jurisdiction by the court under Article-32 presupposed the violation of right to life guaranteed under Artlcle-21.
This way, we see that the courts are legitimizing its role as the enforcing organs of the constitutional objectives to prevent ail action of the state
23 AIR 1978 SC 597
24 Article 14 enshrines the right to equality before law and guarantees equal protection of laws. Article-19 guarantees certain freedoms such as freedom of speech and expression and die right to form associations or unions.
25 Francis Coralie Mullin v. The Administrator of Delhi, AIR 1981 SC 746.
26 Rural Litigation and Entitlement Kendra, Dehradun v. State of UP, AIR 1988 SC 2187.
and the citizen from upsetting the ecological balance. This role of the court also finds support from the observations of Justice Singh in the Ganga Pollution (Tanneries) case17 as Justifying its closer. His Lordship observed: "we are conscious that closer of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people".28 Besides, some more High Courts have also accorded recognition to this environmental dimension of Article 21. For example, in TDamodar Rao's case^which related to stop the Life Insurance Corporation and Income Tax Department from building residential house In a recreational zone, the Andhra Pradesh High Court held, "It would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of Indian Constitution embraces the protection and preservation of nature's gift without which life can not be enjoyed. There can no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21 of the Constitution. The slow poisoning of the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Article 21 of the Constitution. The Court held that the attempt of the respondents to build houses in this area is contrary to law and also contrary to Article 21 of the Constitution.30
The High Court of Himachal Pradesh31, Rajasthan32 and Kerala33 have also taken note of the provisions of Article 21 and held that environmental degradation violates the fundamental right to a wholesome environment is implicit in the constitutional guarantee of Article 21.
27 MC Mehta v. Union of India, AIR 1988 SC 1037. In this case the polluters were restrained by an order of the Court from letting out the trade effluents into the river Ganga till such time they established necessary treatment plants for treating effluents in order to prevent the pollution of water in the said river.
2* Ibid at page 1048.
29 TDamodar Rao v. Spl Officer, Municipal Corporation, Hyderabad, AIR 1987, A.P 171, In this case the principal question for determination of the court was: Whether the Life Insurance Corporation and the Income Tax Department, Hyderabad can legally use the land.
30 Ibid, at p.I81.
31 KinkeriDevi v. State of Himachal Pradesh, AIR 1988 H.P. 4,9 32 LK.Koolwal v. State of Rajasthan, AIR 1988 Raj 2,4.
33 Madhviv. Tilakan, 1988(2) KLT 730,731.
The Right to Livelihood:
The right to livelihood is implicit in the constitutional guarantee of right to life enshrined in the Article 21 of the Constitution. The provision has served as an effective check on Government actions which tend to affect the environment and disrupt the normal life-style of the poor people. In Olga Tellis v. Bombay Municipal Corporation, the petitioners challenge the Government's decision that
all pavement dwellers and the slum dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin. The main contention of the petitioners was that right to life includes the right to livelihood and hence the Government action amounted to depriving a pavement dweller of his right to livelihood which was guaranteed by Article-21 of the Indian Constitution which mandated that no person could be deprived of his life except according to procedure established by law. Accepting the contention of the petitioners the court held: "Deprive a person of his right to livelihood and you shall have deprived him of his life... That state may not be of affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But any person, who Is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article-21".35
34 AIR 1986 SC 180. The other grounds of challenges in the case were: (i) that the impugned action of State Government and Bombay Municipal Corporation is violative of the provisions contained in Article 19(l)(e), 19(lXg) and 21 of the Constitution, (ii) that the procedure prescribed by Sec-314 of the Bombay Municipal Act, 1988 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before die removal of an encroachment but, expressly enables that the Municipal Commissioner may cause the encroachments to be removed “without notice”, (iii) that it is constitutionally impermissible to characterize the pavement dwellers as Trespassers, because their occupation of pavement arises from economic compulsions; and (iv) that the court must determine the content of the “right to life”, the function of property in a welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep of the right to reside and settle any part of the territory of India which is guaranteed by Article-19 (1) (e) and right to carry on any occupation, trade or business which is guaranteed by Article-19 (1) (g) and competing claims of pavement dwellers on the one hand and the pedestrians on the other hand the larger question of ensuing equality before the law.
33 Ibid., at p. 194.
In the Instant case, the court issued directions to the Municipal Corporation to provide alternative sites or accommodation to the slum and pavement dwellers within a reasonable distance of their original sites. The court further directed that the corporation shall prepare a housing scheme for the poor and provide basic amenities to slum dwellers.36 Thus, the court construed the right to livelihood as an integral part of right to life.
Another case which throws light on this perspective is that of
Banawas! Seva Ashram v. State of U.P?1 This case arose out of Public Interest petition made under Article 32 on behalf of local people who raised their voice against reservation of forest land by the State. In fact, the people living in the surrounding villages relied on the forest products l.e. fruits, vegetables, fodder, flower, timber, animals and fuel wood for their daily needs. It was contended that the State action which contemplated eviction of many forest dwellers violated the fundamental right to life of the local people guaranteed by Article 21 of the Constitution. The Supreme Court, however laid down certain safeguards to protect tribal forest dwellers who were being ousted by the National Thermal Power Corporation Ltd (NTPC) for the Rihand Super Thermal Power Project, though the Court allowed acquisition of the land but instructed that it could only be done after the NTPC agreed to provide the facilities approved by the Court to the ousted forest dwellers.38 There are some more cases where the apex court has Issued Interim order requiring state agencies to make provisions for settlement and rehabilitation of tribal who were being displaced by dams.39
In the right of the observation made in these cases by the highest court of the land, the question regarding right to livelihood has received a
36 Ibid., at p. 204.
37 AIR 1987 SC 374.
33 Ibid., at p. 378.
39 Karajan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat, AIR 1987.SC 532 and Gramin Seva Sanstha v.
State of U.P, AIR 1987 (Supp) SCO 578.
favorable interpretation in the expansion of the scope of Article 21. However has given rise to a further question: whether the right to livelihood could be asserted to prevent environmentally harmful projects which tend to uproot the local people and thus deprive them of their livelihood. It is submitted that the entire matter including Installation of such projects, their impact on the life of the people vis-a-vis their rehabilitation will have to be taken in to account failing which Article 21 may come In to operation.
The Right to Equality:
Article 14 of the Indian Constitution which states that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" guarantee the right to equality. This article is the principal Instrument to strike at the arbitrariness of an action should it involve a negation of the right to equality. The right to equality as enshrined in Article 14 of the Constitution may be Infringed by the Government decision which may have impact on the environment, particularly in cases, where permissions are arbitrarily granted, for Instance, for construction that are in contradistinction of development regulations or for mining without adequate appreciation of environmentally conscious groups have resorted to take legal proceedings under Article-14 to challenge the constitutional validity of the arbitrary official sanctions In such matters.40 Thus we find that Article-14 to be used as a potent weapon against Governmental decisions threatening the environment.41
Environmental Justice:
After Second World War, calamity to environment has gone beyond proportion. Legislative output, however, could not sufficiently be tuned to deal with the crisis. Stockholm Declaration 1972 generated environmental
40 Kinkeri Devi v. State of Himachal Pradesh, AIR 1988 H.P. 4,9
41 Kailash Thakur '.Environmental protection law and policy in India, Deep & Deep Publications, Delhi, p. 207.
consciousness. That has also rendered support to the demand of the judicial activism In the field of environment. Environmentalist in tune with social justice came up with a slogan of "Environmental Justice". 42nd Constitutional amendment of 1976, which Incorporated Directive Principle (Artlcle-48 A) and Fundamental Duty [Artlcle-51(A)(g)] towards care and protection of environment, sufficiently furnished a foundation to the demand.
The UN Declaration of Stockholm records: "A point has been reached in history when we must say power actions through out the world with a more prudent care for their environmental consequences. Through ignorance or Indifference we can do massive and irreversible harm to the earthly environment on which our life and wellbeing depend".
As against equipped with knowledge and just approach regard having two human needs and hopes, for the present and posterity, better life in the environment can be achieved.42 The conference took stock of situation and made a commitment to wipe out ignorance and indifference which have unknowingly caused Irreparable damage to the environment.
The Directive Principles of State Policy:
Part-IV of the Indian Constitution lays down certain fundamental principles of state policy which the future government of the country will have to take into account while framing the laws for the governance of the country. Though the directives Incorporated in Part-IV of the constitution are not enforceable in a court of law but the Indian judiciary has made use of these directives in a number of cases and these have been read as complementary to the Fundamental Rights.43 In this connection these worthwhile to point out that in
42 Environmental Jurisprudence: Justice A K Desai, at P.57; Environment Protection and International Law:
SBhatt,atp.93.
43 Som Prakasb Rekhi v. Union of India, AIR 1981 SC 212.
several environmental cases44 the court have been guided by the language of Article 48-A. In Sachidananda Pandey v. State of W.tf5 the Supreme Court, relying upon the constitutional directives concerning protection of environment observe "whenever a problem of ecology is brought before the court, the court is
bound to bear In mind Article 48-A and Article-A (g) of the constitution...when the court Is called upon to give effect to the Directive Principles and the Fundamental Duties, the court is not to shrug its shoulders and say that priorities are a matter of policy and so it's a matter for the policy making authority. The least that the court may do is to examine whether appropriate consideration are borne in mind and irrelevancles excluded. In appropriate cases, the court may go further, but how much further will depend on the circumstances of the case. The Court may always give necessary directions. However the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations the Court may feel justified in rejoining Itself to acceptance of the decision of the concerned authority.46
Article 48-A also has been interpreted in similar fashion by the Andhra Pradesh High Court when it observed that the provision imposes "an obligation" on the Government, including the judiciary to protect the environment.47 The High Court of Himachal Pradesh48 has also taken note of these constitutional Imperatives and the provision contained In the Artlcles-48-A and 51-A(g) have been described as "Constitutional pointer to the state not only to protect but also to Improve the environment (and)...Failure to abide by the pointed is nothing short of the betrayal of the fundamental law which the state and the citizen is bound to uphold".49
44 MC Mehta v. Union of India, AIR 1988 SC 1037; Rural Litigation and Entitlement Kendra, Dehradun v.
State of UP. AIR 1988 SC 2187; and Kinkert Devi v. State H.P., AIR 1988 HP. 4.
45 AIR 1987 SC 1109.
46 Satyavani v. Andhra Pradesh Pollution Control Board, AIR 1993 AP 257,271.
47 T Damodar Rao v. TheSpl. Officer, Municipal Corporation, Hyderabad, AIR 1987 AP 171, 181 48 General Public ofSaproon Valley v. State of HP, AIR 1993 HP52.
49 DD Vyas v. Ghaziabad Development Authority, AIR 1993 All 57,62,63.
It may submitted that the word "protect and improve which occur in both the provisions under discussion appears to contemplate affirmative state action to improve the quality of the environment and not just to preserve the environment in its degraded form. This way the provisions leave ample scope for the judiciary to intervene and require public authorities to improve environmental quality.
Article-253 and Environmental Legislation:
Article-253, under Indian Constitution Parliament was conferred with the power to make any law for implementing any treaty, agreement or convention with any other country or countries or even any decision made at any International conference. Association or other body, this power is limited to implementation of decision and that too for limited period.
The broad language of Article-253 suggests that in the wake of Stockholm Conference in 1972, Parliament has the power to legislate on all matters link to the preservation of natural resources.
To sum up the Constitutional Provisions apropos to Environmental Protection the Constitutional Scheme says: (I) The Constitution is the fundamental law of the land. All legislative executive and judicial action must conform to the Constitutional scheme. If not the same became constitutionally invalid, (II) Prior to 1976, the Constitution of India did not contain any mention of the terms 'environment' 'environmental protection' etc, (III) The 42nd Amendment Act 1976 inserted Art 48 A into the Chapter on Directive Principles of State Policy and Art.51 A (g) a part of the Chapter on Fundamental Duties of Citizens i.e.
Art48A: Protection and Improvement of the environment and safeguarding of forest and wildlife: The State shall endeavor to protest and improve the environment and to safeguard the forest and wildlife of the country.
Arts 1 A: It shall be the duty of every citizen of India
(g) to protect and improve the natural environment including forests, lakes and wildlife and to have compassion for living creatures.
(IV) The 42nd Amendment also introduced Entries 17-A and 17-B into the Concurrent List (List III) of the Seventh Schedule of the Constitution.
17-A: Forests
17-B: Protection of wild animal and birds.
(V) The Supreme Court has held that the right to a clean and healthy environment is a dimension of the right to life guaranteed by Art.21. Violation of this right by the State entitles the aggrieved to approach the Supreme Court under Art-32 or the High Court under Art-226 for appropriate relief. Art-253 gives power to the Parliament to make law for implementing any treaty agreement or any convention or any decision made at any international conference. The Air Act, 1981 and the Environment Protection Act, 1986 have been enacted under this Article to give effect some of the decision taken at the Stockholm Conference in 1972.
(VI) The 73rd and 74th Amendments to the Constitution have provided for the establishment local self-governing bodies in urban and rural areas. Their powers as enumerated in the 11th and 12th Schedules include matters concerning the environment.
RELEVANT PROVISIONS OF THE CONSTITUTION OF INDIA PART IV
DIRECTIVE PRINCIPLES OF THE STATE POLICY
Article- 48A50 Protection and Improvement of environment and safeguarding of forests and wild life: The State shall endeavor to protect and improve the
environment and to safeguard the forests and wild life of the country.
PART IV A51 FUNDAMENTAL DUTIES
51 A. Fundamental duties - It shall be the duty of every citizen of India-
♦**
***
(g) To protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures:
***
243G. Powers authority and responsibilities of Panchayat- Subject to the provisions of the Constitution the legislature of a State may bu law endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level subject to such conditions as may be specified therein with respect to-
(a) the preparation of plans for economic development and social justice;
50 31
Article 48A was inserted by Constitution (Forty-second amendment) Act, 1977, sec 10 (w.e.f. 3-1-1977) Inserted by the Constitution (Forty-second Amendment) Act, 1976, sec, 11 (w.e.f. 3-1-1977).
(b)the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the
matters listed in the Eleventh Schedule.
PART IX A52 THE MUNICIPALITIES
243W. Powers Authority and Responsibilities of Municipalities etc... Subject to the provisions of the Constitutions the Legislature of a State may by law endow
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such condition as may be specified therein, with respect to-
(i) the preparation of plans for economic development and social justice;
(II) the performance of functions and the implementation of scheme as may be entrusted to them Including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
"ELEVENTH SCHEDULE53
(Article 243 G) 1. Agriculture, Including agricultural extension.
2. Land Improvement, implementation of land reforms, land consolidation and soil conservation.
3. Minor irrigation, water management and watershed development.
52 Inserted by the Constitution (Seventy-four Amendment) Act. 1992, S. 2, published in the Gazette of India Extraordinary Part II, Section 1, dated 20* April, 1993.
53 Added by the Constitution (Seventy-third Amendment) Act 1992, S.$ published in the Gazette of India Extraordinary Part - II section 1, dated 20th April, 1993.
4. Animal husbandry, dairying and poultry.
5. Fisheries.
6. Social forestry and farm forestry.
7. Minor forest produce.
8. Small scale Industries, including food processing industries.
9. Khadi, village cottage industries.
10. Rural housing.
11. Drinking water.
12. Fuel fodder.
13. Roads, culverts bridges, ferries, water ways and other means of communication.
14. Rural electrification, including distribution of electricity.
15. Non-conventlonal energy sources.
16. Poverty alleviation programme.
17. Education, Including primary and secondary schools.
IS.Technical training and vocational education.
19. Adult and non-formal education.
20. Libraries.
21. Cultural activities.
22. Markets and fairs.
23. Health and sanitation, including hospitals, primary health centres and dispensaries.
24. Family welfare.
25. Women and child development.
26. Social welfare, including welfare of the handicapped and mentally retired.
27. Welfare of the weaker sections, and in particular, of the Scheduled Caste and the Scheduled Tribes.
28. Public distribution system.
29. Maintenance of community assets."
"TWELVE SCHEDULE54
(Article 243W) 1. Urban planning Including town planning.
2. Regulation of land use and construction of building.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry, protection of the environment and promotion of ecological assets.
9. Safeguarding the interests of weaker sections of society including the handicapped and mentally retarded.
10. Slum Improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, garden, playgrounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
15. Cattle pond; prevention of cruelty to animals.
16. Vital statistics Including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
IS.Regulation of slaughter houses and tanneries".
54 Added by the Constitution (Seventy-fourth Amendment) Act. 1992, S. 4, published in the Gazette in India Extraordinary part-II section 1, dated 20* April, 1993.
The Planning Process:
Just after the Indian Constitution came in to being, the independent India thought of its development and started planning through Five Year Plans and these plan periods played a pivotal role in shaping the various objectives of the Government and Pollution control was one of the important objectives which was also reflected in the objectives of Five Year Plans.
Prior to the attainment of the independence several plans for economic development were prepared and presented but remained unimplemented and kept for the historical importance only. After institution of the planning commission in the year 1950 after independence, the assessment of the country's needs of material capital and human resources because of the formulation of a plan for their balanced and effective utilization was felt and in the subsequent phase the era of Five Year Plans came to the forefront.
Forest Developments during the Five Years Plans; The national planning process was started in 1951 In India with the formulation of First Five Year Plan. The first three five year plans laid thrust on the promotion of agriculture and industrialization.
Environment-related issues pertaining to the improvement of human environment such as sanitation, public health, nutrition, water supply and housing55 got due priority in national programmes under the five year plans.
However, environment protection did not receive any significant recognition under the development planning except the forest development and soil conservation.
“First Five Year Plan, Planning Commission, Government of India (1952), Chapters-IX, XII, XVIII, XXVI, XXXII, XXXV.
fal. First Five Year Plan (1951-1952 to 1955-19561: The first Five Year Plan (1951-56) showed maximum concern about rehabilitation of forest areas which had been over exploited either to meet the Second World War needs or indiscriminately destroyed by the getting zamindars at the time of abolition of the zamlndari system. Little effort was made to help stabilize soil in highly eroded areas through aforestation. In response to the Forest policy of 1952, the central Board of Forestry, constituted In 1950 to provide guidance to the Central Government In the formulation of policy and programmes in the field of forestry, was asked to indicate the portion of areas that ought to be under forests, after taking note of the nature of terrain and principle of proper land use In states.56 The plan outlay on forestry was Rs. 9.7 crores which comprised 0.49% of the total plan outlay.57 The means of communication in forests were also improved during this plan. The wastage in conversion and felling of trees was minimized.
Besides, man-made forests of economic species were raised over 52,000 hectares.58
aa_Ihe-Se£QM
FlYS year Plan .(1956:1957 IP 1,960-1961); During the Second Five Years Plan, the programmes of consolidation of areas under forests continued. Additionally, construction of forest roads and economic plantation received more emphasis. To improve the quality of forests products, plantation of industrially and commercially valuable species were undertaken. The plantation of Industrial wood area was further expanded to over 164,000 hectares. Forest resources were further heavily utilized on account of developmental activities, eg. Creation of industrial complexes for communications and other development projects vital for the developing economy and the major river valley projects. The conservation of wild life, too, received special attention56 Kailash Thakur -.Environmental protection law and policy in India, Deep & Deep Publications, Delhi, p. 285..
57Ibid 58 Ibid
as several wild life sanctuaries were established.59 The plan outlay on forests was further Increased to Rs. 19.3 crore just double of the First Plan.60
(c) . The Third Five Year Plan (1961-1962 to 1965-1966): The Third Five Year Plan enticed special interest in meeting the long tern requirement of the country In order to reduced the yawning gap between the demand and the supply of forest produce and In order to ensure more economic and efficient utilization of valuable forest products. The main objective of the plan was to increase the output from the existing forests by using better techniques of Timber extraction, improvement of communication and popularizing the use of less commonly known Indian Timer after proper preservative treatments. In order to attain self sufficiency in industrial timbers, fuel wood and other forest products, large scale plantation of industrially valuable species, through centrally sponsored schemes of "Plantation of Quick Growing Species" was undertaken and the states were encouraged to follow schemes.61 The target of new plantation s was fixed at an all time high figure of 280,000 hectars.
(d) . The Fourth Five Year Plan (1969-1970 to 1973-1974): As regards the development of forest during these plans, three main objectives were aimed at during the Fourth Plan. These were: (a) to increase the productivity of forests, (b) to link up forest development with various forest based industries, and (c) to develop forests as a support to rural economy.62
(e) . The Fifth Five Year Plan (1974-1975 to 1978-1979): The major portion of this Plan period regarding the Improvements to be made in the sector of Indian forestry was the creation of large scale man-made forests through institutional financing. The Plan proposed a network of State Forest Corporation for
59 Second Five Year Plan, Planning Commission, Government of India, 1957, Chapter XV, p.298.
“Ibid.
61 Report of the National Commission on Agriculture, part ix, forest (Ministry of Agriculture and Irrigation, Govt, of India, New Delhi, 1976) p.p-13-14.
62 Report of the National Commission on Agriculture, Part IX, Ministry of Agriculture & Irrigation, Government of India, New Delhi, 1976, p.14.
establishment and management of man made forests.63 But the ecological consideration was pushed to the secondary place by the birth of Forest Corporations along with the economic considerations. The second important objective of the Fifth Plan was to develop farm forestry and to improve degraded forests so as to Increase the fuel and timber supply In rural areas.64
ffl. The Sixth Five Year Plan (1980-1981 to 1984-19851: In India, environmental planning started effectively from the Sixth Five Year Plan. This for the first time in India devoted one full chapter to "imperative need to carefully husband our renewal resources of soil, water, plant and animal life to sustain our economic development". This chapter was devoted to the discussion on problem of environmental degradation such as land use, agriculture, forestry, wild life, water, air, marine environment, minerals, fisheries, renewable resources, energy and human settlement65 with a view to evolve sound environmental and ecological principles. Nonetheless it provides a good basis for improvement in the already degraded environment in India by pointing out the nature66 and causes67 of environmental problems.
to).The Seventh Five Year Plan (1985-1986 to 1989-1990): As regards the policy perspective on forest management, the Seventh Plan endeavored "Forests for survival" as its theme. By this time, it has been established that the problem encountered in the field of environment in India arose out of poverty and underdevelopment and also as a side effect of developmental activities. The 'National Waste Land Development Board (NWDB) was set up in June 1985 with the main objectives (i) to increase tree and other green cover on wastelands, (ii)
63 Fourth Five Year Plan, 1969-74, Planning Commission, Govt, of India, Chapter-2, “The Long Perspective”,p. 207.
64 Report of the National Commission on Agriculture, Part IX, Forest(Ministry of Agriculture & Irrigation, Govt, of India, New Delhi, 1976), p. 15.
65 Sixth Five Year Plan( 1980-85), Planning Commission, Government of India, p.p.343-48
“The Plan classified environmental problems in India into two categories: (a)Those arising from
conditions of Poverty and under development, and (b) Those arising as negative effects of the very process of development. Sixth Five Year Plan (1980-85), Planning Commission, Government of India, p. 343.
67Kailash Thakur; Environmental Protection Law and Policy in India, Deep & Deep Pub, 1999, p. 123
to prevent good farm land from becoming wasteland, and to. formulate within the overall National Policy Perspective, plans and programmes for the management and development of wasteland in the country. Further, a National Afforestation and Eco-development Board (NAEB) was also set up during this period to achieve sustainable economic and social development through national utilization of natural resources, including water, soil, plant and animal life.
During this plan period the Forest (Conservation) Act, 1980 was also amended in the year 1988 and in the same year the Government also announced a New Forest Policy in place of the 1952 policy with the principal aim of ensuring environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all forms of life.
fhkThe Eighth Five Year Plan (1992-1993 to 1996-1997): After the formulation of Seventh Five Year Plan again some new challenges were propped up and because of which the economic as well as social progress of the country was threatened. The major challenges were environmental degradation and the reason behind this was the then prevailing conditions of poverty and underdevelopment which forced the people to further degrade their environment. In the final analysis, removal of poverty, generation of employment, raising the levels of education and Increasing awareness of the people are crucial for protection of environment.68
To meet this challenge the plan envisages eight major tasks which are:
(1) To protect the natural environment, (2) To regenerate and restore degraded eco-systems and increase their productivity and to generate employment through these activities, (3) To decentralize control over nature and natural resources, (4) To develop and share an understanding of nature and natural processes, (5) To formulate a national policy for environment and an
68 Eighth Five Year Plan (1992-1997), Planning Commission, Government of India, p.92.
