Search
  • Legis Scriptor

Right to clean environment


Authored by Yukti Kohli


Keywords – Life, Clean environment, Healthy environment, Sustainable development, Industrialisation, Pollution.


Abstract

The right to a healthy environment was never recognized as a fundamental right. The protection of the environment is a major concern of the people right now. As at the time when the constitution was enforced there was not much industrialization therefore the need was never felt. But with modernization, the need to protect the environment was recognized and was considered as a major concern. Pollution in India is getting more day by day. And now the courts have interpreted that the right to life includes the right to a healthy and clean environment. This article tries to evaluate the constitutional regulations on environmental protection and also tells us how the Indian judiciary has interpreted these provisions for providing environmental justice.

Introduction

Environment as a basic - The right to a healthy environment as a human right was never a priority although the human rights were recognized after the second world war it did not recognize the right to a clean environment. Today this is the most required right that every individual wish to have. A healthy environment is necessary not only for human beings but also for animals to survive on this planet. Therefore violation of the right to a healthy environment is also a violation of the basic right to life. If any damage is done to the environment it would eventually endanger the life of present and future generations. In India right to life has been recognized as a constitutional right. Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.[1] The Supreme Court of India interpreted the right to life and personal liberty to include the right to a clean environment.

International scenario

The pre-Stockholm period was more focused on the development of infrastructure and less importance to the environment was given. The Constitution of India was amended and provisions concerning the protection of the environment were added.

The human conference held Stockholm in 1972 on the human environment is popularly known as the Magna Carta of human-environment where it was warned that the natural resources must be safeguarded which includes water land air etc as a representative sample of a natural ecosystem which would benefit the future and the present generation.

The earth Summit held in 1992 declared that human beings are entitled to a healthy and productive life.

Indian scenario

After the Bhopal Gas Tragedy in 1984, India started concentrating more on the problems relating to pollution. The Indian Parliament passed many statutes to protect the environment. Thereafter by the 42nd Amendment Act, 1976 Article 48 (A) and 50 (1) (a) (g) was added to the Indian constitution for the protection of the environment.

In the fourth five-year plan the concern for an integrated environment was specifically raised. The fourth-fifth year plan specifically talks about the obligation of each generation to have sustainable development and also mention the interdependence of living things with air, land, and water.

Committees for environmental protection

In February 1972 The National Committee on Environmental Planning and Coordination was established. This committee asked every state and union territory is to have an environmental board that will deal with the major environmental problems and makes recommendations for the improvement. This committee covered projects like a human settlement, planning, survey of the natural ecosystem, spreading of environmental awareness, etc.

In 1980 Tiwari committee was constituted. This committee recognized the laws which protect the environment and also added 200 laws for better environmental protection.

Indian constitution is one of the few where a provision to protect the environment are specified and recognized. The court has always tried to protect human rights and promote environmental justice.

While interpreting article 21 the Supreme Court stated that the right to life is not only available to the citizens of India but is also available to a non-citizen or to the one who came in India as a guest.

Article 21 includes is the right to a healthy environment

The Supreme Court in Subash Kumar v. the State of Bihar[2] observed that article 21 rights to life include the right to free water and free air from pollution for full enjoyment of life. The court also specified that a party can file a suit under article 32 against anything that is endangered to the quality of life.

Article 21 includes the following rights; right to education, right to privacy, right to livelihood, right to a speedy trial, right to free legal aid, right to health and medical care, right to claim compensation. Article 21 does not include the right to die.

Article 48 (A) and Article 50 (1) (a) (g) impose the duty on the state as well as on the citizen to protect and conserve the environment.

Article 48 (A) imposes a liability on the state to protect and improve the environment and also to safeguard the forest and wildlife of the country.

Article 47 states that the state is responsible for raising the level of nutrition and standard of living of the public and the state must take necessary steps to improve public health.

Article 50 (1) (a) (g) this article imposes a duty on the citizen of India to protect and improve the natural environment which includes Forest Lakes rivers and wildlife.


MC Mehta v. Union of India[3]

The court under this case gave direction to remove environmental illiteracy by;

· Displaying at least two slides on the environment which will be prepared by the Ministry of the environment in the cinema halls

· The Doordarshan were allotted 5 to 7 minutes daily to show cast interesting programs on the environment

· Thereafter the court made the environment as a subject compulsory in school, colleges, and university

MC Mehta v. Kamal Nath[4]

The Supreme Court very clearly stated that no person shall disturb the basic environmental elements that are air water and soil which is considered as a necessary element for life.

MC Mehta v. Union of India[5]

The court asked the industries who are using coke to shift to use coal and those who can’t shift from using coke to coal will have to stop functioning.


MC Mehta v. Union of India[6]

The court asked certain tanneries to stop functioning that was discharging effluents in the lands without any prior treatment plant and also said that we agree that the closing of tanneries will bring unemployment but nothing is important than healthy life and ecological balance.

MC Mehta v. Union of India[7]

The apex court asked the industries to shut down the working who were not set up to take an air-pollution control system.


Indian Council for Environment Legal Action v. Union of India[8]

The apex court took a serious view of implementing the laws which are meant for protecting the right to life.

Subash Kumar v. the State of Bihar[9]

The court observed that for full enjoyment of the right to life it includes the right to enjoy pollution-free water and air.

The Ganga pollution case[10]; the industries located on the banks of the river which were polluting the area of Kanpur and Kolkata by discharging highly toxic trade effluents into the river Ganga were asked by the court to close down as because of the pollution Ganga the water was not fit for use of drinking purpose. This may also affect the animals as they drink this water and their life is also important.

In Ruler Litigation and Entitlement Kendra Dehradun v. State of Uttar Pradesh,[11] the court-ordered closure of several limestones queries as they were not following the provisions relating to the protection of the national environment.

National Green Tribunal

Under Article 21 of the Indian constitution, the National Green Tribunal was established in 2010. This tribunal is a quasi-judicial body that comprises judges and environmental experts and tries to dispose off the cases in a fast track manner. The Supreme Court highlighted the difficulties that the judges face in adjudicating cases on environmental issues as they are not the environment experts.

The National Green Tribunal has the jurisdiction to hear all civil cases and can question the implementation of laws mentioned in schedule I of The National Green Tribunal's Act.


Conclusion

Protection of the environment is a matter of domestic concern and it’s been seriously taken by the courts. The current regulation allows the central government to interfere and control in court cases for better protection of the environment. The judiciary tries to attain social-economic justice as provided under article 32 and 226. A person needs fresh air to breathe and clean water to drink. If anybody tries to violate the right to fresh air and clean water, he violates a larger right to life.

Reference

i. http://www.legalservicesindia.com/article/1509/Right-to-Clean-Environment:-A-basic-Human-Right.html#:~:text=Article%2021%20of%20the%20Indian,to%20procedures%20established%20by%20law.&text=It%20is%20by%20this%20second,right%20to%20a%20clean%20environment.

ii.https://www.theadvocatesforhumanrights.org/uploads/clean_environment_fact_sheet_2013_2.pdf

iii. https://www.lawteacher.net/free-law-essays/human-rights/right-to-clean-environment.php.

Foot notes:

[1] Article 21 of The Constitution of India. [2] AIR 1991 SC 420. [3] AIR 1992 SC 382 [4] AIR 2002 SC 1997 [5] AIR 1988 SC 1037 [6] 1994 Supp. 3SCC 717 [7] AIR 1997 SC 734. [8] (1996) 5 SCC281. [9] AIR 1991 SC 420. [10] AIR 1986 SC 2715. [11] AIR 1985 SC 625.