INTERFACE OF

ENVIRONMENTAL LAW
AND THE CONSTITUTION
OF INDIA
DR. SAIRA GORI
ASSISTANT PROFESSOR OF LAW
DEAN, TRAINING DIVISION
GUJARAT NATIONAL LAW UNIVERSITY
MOB.:-+91-8128650867
EMAIL: SGORI@GNLU.AC.IN
INTRODUCTION

• 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.
• Constitution is a living document, an instrument which
makes the govt. system work. It’s flexibility lies in its
amendment.
VELLORE CITIZENS WELFARE FORUM V. UNION
OF INDIA (1996) 5 SCC 647 AT 659-660

• 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 principle” and the “polluter pays
principle” are part of the environmental law of the country.
• {Vellore Citizens Welfare Forum v. Union of India (1996) 5
SCC 647 at 659-660}
REFER TO THE ART.47,48,49

• 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 etc.
 42ND AMENDMENT

• Article 246 deals with the 7th Schedule of the Indian Constitution that
mentions three lists named as Union List, State List and Concurrent List
which specify the divisions of power between Union and States.
• 42nd amendment Act 1976 shifted below mentioned five subjects from State
list to Concurrent List:
• Education
• Forests
• Protection of wild animals and birds
• Weights and measures and
• Administration of justice, constitution and organisation of all courts except
the Supreme Court and the High Courts
 INTERNATIONAL ENVIRONMENTAL
AGREEMENTS AND INDIA’S OBLIGATIONS

• The various international efforts initiated in 1972 with first historic

International Conference on Human Environment.
• In preparation for meeting each member state was asked to prepare a
Report on the state of environment.
• India set up a committee on the human environment under the
chairmanship of Pitambar pant, a Planning Commission member.
OUTCOME OF REPORT

• The outcome was three reports i.e.

• on the state of environment
• on the problem of human settlement
• on the possible strategies to manage resources.
• Finally the environmental goals were incorporated in 5th five
year plan .
• Legislation such as Wildlife Protection Act,1972 and
Water(prevention & control of pollution) Act,1974 were
passed soon after.
• It was realized by India that unless a nationalized institution
for the co-ordination and control of Environmental policies
established, there would remain a situation of lacuna.
 1972

• The year 1972 marked a watershed in the environmental conservation

movement in India.
• On the eve of the United Nations Conference on Human Environment in
1972, popularly called the Stockholm Conference, the Pitamber
Committee was set up to make a report on the state of the
environment in India and based on its recommendations, a National
Committee on Environmental Planning and Coordination (NCEPC) was
constituted by the Government of India in the Department of Science
and Technology in order to plan and coordinate environmental
programmes and policies and advice various ministries on
environmental protection.
• Later, this department was elevated to form an exclusive Ministry of
Environment and Forests in 1985.
NATIONAL COUNCIL FOR
ENVIRONMENTAL POLICY AND PLANNING

• In 1972 National Council for Environmental Policy and

Planning was set up which was later evolved into Ministry
of Environment and Forests in 1985.
• MoEF along with Central Pollution Control Board and State
Pollution Control Board together form the regulatory and
administrative core of the sector.
• The policy statement for abatement of
pollution & the national Conservation
Strategy and policy Statement on
Environment and Development were
brought out by MoEF in 1992.
 INDIA’S EFFORTS TO COMBAT
ENVIRONMENTAL POLLUTION

• India had joined the member of international

community in their crusade against
environmental problem by first amending its
own fundamental law and then following it up
with the enactment of several laws to protect
national environment.
• Laws on atomic energy, explosives, insecticides,
mines, wildlife protection (mainly state
legislation) and land management were the
initial initiatives made in India.
42ND AMENDMENT

• In 1976, the Constitution of India was amended to insert a

separate fundamental duties chapter.
• The Air (Prevention and Control of Pollution) Act of 1981 was
enacted by invoking the Central Government's power under
Art 253.
• The Air Act contained several distinguishing features. Also, a
notification relating to Noise Pollution (Regulation & Control)
Rules was made in the year 2000 with the objective of
maintaining Ambient Air Quality Standards in respect of noise.
 EPA 1986

• In the wake of the Bhopal gas tragedy, the Government of India enacted
the Environment (Protection) Act, 1986. Against the backdrop of the
United Nations Conference on the Human Environment held at
Stockholm in June 1972, in which India was a participant, the Central
Government enacted legislation, The Environment (Protection) Act,
1986, with an objective for protection and improvement of the
environment and for matters connected therewith.
• As per this Act, the Central Government shall have the power to take
all such measures for the purpose of protecting and improving the
quality of the environment and to prevent environmental pollution.
 SEVERAL ENACTMENTS

• Apart from this, several notifications and rules have also been made,
some of which include
• i. the Hazardous Wastes (Management and Handling) Rules in 1989
amended in 2008, 2016
• ii. the Biomedical Wastes (Management and Handling) Rules in 1998,
amended in 2011, 2016 & 2019
• iii. Recycled Plastics (Manufacture and Usage) Rules 1999, amended in
2003, 2011
• iv. Environment (Siting for Industrial Projects) Rules 1999
and
• V. the Municipal Solid Wastes (Management and Handling)
Rules in 2000, amended in 2013,2016
• In addition to these eco-specific legislations, realizing that
there is no comprehensive legislation dealing with
biodiversity in India, and to fulfill its international obligation
under the Convention on Bio-Diversity, the Government of
India has enacted the Biological Diversity Act, 2002.
 CONSTITUTIONAL MANDATE ON
ENVIRONMENTAL PROTECTION
• The Constitution of India originally adopted, did not contain any direct and
specific provision regarding the protection of natural environment. That is
probably why it did not even contain the expression 'Environment'.
• It can be inferred from Article 39(b), Article 47, Article 48 and Article 49 of
the Constitution of India. These directive principles individually and
collectively impose a duty on the State to create conditions to improve the
general health level in the country and to protect and improve the natural
environment.
• The Supreme Court in Municipal Council, Ratlam v. Vardhichand AIR 1980 SC
1623 observed that the State will realize that Article 47 makes it a
paramount principle of governance that are steps taken for the
improvement of public health as amongst its primary duties.
• This case concerns the Ratlam municipality’s obligations to its people under
Section 123 M. P. Municipalities Act of 1961. These obligations include the
provision of sanitary facilities and the prevention of street contamination
from a nearby alcohol plant. The residents of the Ratlam municipality,
frustrated at the lack of sanitary facilities and the contamination in the
streets, brought suit against the municipality under Section 133 of the
Criminal Procedure Code for public nuisance.
• The municipality argued that, 1) the residents chose to live where there are
no facilities, and 2) the authorities lacked the funds necessary to construct
what was required to comply.
• The Magistrate ordered the municipality to provide the proper facilities and
construct drainpipes to abate the contamination.
• The order was appealed to the High Court, which affirmed the order below.
• The Supreme Court then considered whether a Court could affirmatively
compel a statutory body to construct sanitary facilities and drainpipes at
great cost. The Supreme Court upheld the High Court’s order, holding that
the Magistrate had the power to compel a statutory body to comply with the
order in the name of public duty. The Supreme Court also held that Section
133 of the Criminal Procedure Code operates against statutory bodies and
can be used to remove a public nuisance in a limited time period.
• Furthermore, the Supreme Court found that a municipality cannot claim
financial inability when it is responsible for preserving public health. The
Supreme Court stated, “responsible municipal council constituted for the
precise purpose of preserving public health and providing better finances
cannot run away from its principal duty by pleading financial inability.
Decency and dignity are non-negotiable facets of human rights and are a first
charge on local self-governing bodies.”
• The municipality was ordered to take immediate action with regards to the
contamination and pollution in the streets. It was also ordered to provide
sanitary facilities and services for its residents within a six-month period.
 FORTY-SECOND CONSTITUTIONAL
AMENDMENT
• Considering the influence and success of Stockholm Conference and the growing
demand and consciousness, the Indian Constitution was amended in the year 1976.
• This gave it a boost to environmental protection crisis and added to it direct
provisions for the preservation of ecological and biological diversity.
• The 42nd Amendment Act 1976 inserted Article 48A in Part IV of the Constitution
of India which directly imposes a duty on the State by providing that the State shall
endeavor to protect and improve the environment and to safeguard the forest and
wildlife of the Country.
• This Amendment Act also inserted Article 51A which imposes 10 duties on the
citizens of India. Clause (g) of Article 51A imposes a duty on the citizens to protect
the environment. This clause provides that it shall be the duty of every citizen of
India to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures.
 ROLE OF JUDICIARY
• The judiciary, to fulfill its constitutional obligations was and is always prepared to issue
appropriate orders, directions and writs against those persons who cause environmental
pollution and ecological imbalance.
• This is evident from a plethora of cases, starting from the Ratlam Municipality Case.
• The Supreme Court, in Rural Litigation and Entitlement Kendra v. State of U.P. 1985 AIR 652,
1985 SCR (3) 169 ordered the closure of certain limestone quarries causing large scale
pollution and adversely affecting the safety and health of the people living in the area.
• Likewise, in M.C. Mehta v. Union of India AIR 1987 SC 1086, the Court directed an industry
manufacturing hazardous and lethal chemicals and gases posing danger to health and life of
workmen and people living in its neighborhood, to take all necessary safety measures
before reopening the plant. Holding that the Government has no power to sanction lease
of the land vested in the Municipality for being used as open space for public use.
 RURAL LITIGATION AND ENTITLEMENT
KENDRA V. STATE OF U.P.
• The Supreme Court had received a writ petition from Rural Litigation and Entitlement Kendra regarding
the unauthorised and illegal operation of lime-stone quarries in the Mussoorie Hill range, India. It was
argued that the quarries caused a hazard to healthy environment and affected the perennial water springs.

• During the pendency of the Writ Petitions, the Court had appointed a Committee for the purpose of
inspecting the lime stone quarries mentioned in the Writ Petitions. The Government of India had also
appointed a working Group on the mining of lime stone quarries in Dehradun-Mussoorie area.

• The court emphasized that industrial development was necessary for economic growth of the country. If,
however, industrial growth was sought to be achieved by haphazard and reckless working of the mines
resulting in loss of life, loss of property, loss of basic amenities like supply of water and creation of
ecological imbalance, there may ultimately be no real eco- nomic growth and no real prosperity. It was
necessary to strike a proper balance. Appropriate authorities at the time of granting leases should take all
these facts into consideration and also provide for adequate safeguards
 VIRENDER GAUR V. STATE OF HARYANA

• The Supreme Court in Virender Gaur v. State of Haryana 1994 SUPPL. (6) SCR
78 , the Court explicitly held that:

• The word environment is of broad spectrum which brings within its ambit
hygienic atmosphere and ecological balance. It is therefore, not only the
duty of the State but also duty of every citizen to maintain hygienic
environment. The State, in particular has duty in that behalf and to shed its
extravagant unbridled sovereign power and to forge in its policy to
maintain ecological balance and hygienic environment.
• Hence, judicial activism in India provides an impetus to the campaign
against pollution
 RIGHT TO ENVIRONMENT: A FUNDAMENTAL
RIGHT
• One of the earliest formulations of the right appeared in the
concluding document of the UN Conference on the Human
Environment, held in Stockholm in 1972.
• Principle 1 of the Stockholm Declaration stated that:
• Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn responsibility to protect
and improve the environment for present and future generations.
 ARTICLE 21 OF THE INDIAN
CONSTITUTION
• The Indian Supreme Court developed a very prominent concept of right
to healthy environment as a part of Article 21 of the Indian Constitution
and thus, acknowledging the importance of international Judicial activism.
Supreme Court under Article 32 and high Courts under Article 226 gave
birth to an apex environmental jurisprudence in the form of fundamental
right to healthy environments, thereby giving birth to an incomparable
environmental jurisprudence in the form of the constitutional right to
healthy environment.
 SUBASH KUMAR V. STATE OF BIHAR

• For the first time in the case of Subash Kumar v. State of Bihar , 1991 AIR
420, 1991 SCR (1) 5 the Court declared that the right to life under
Article 21 includes the right to clean water and air. In the same case, the
rule of locus standi was enlarged so that the Court could take cognizance
of environmental degradation and regulate the prevention of the same in
an effective manner.
• A foundation for the application of the Precautionary Principle, the
Polluter Pays Principle and Sustainable Development, having been laid
down, the three principles were applied together for the first time in by
the Supreme Court in Vellore Citizens Welfare Forum v. Union of India
 FACTUAL MATRIX

• The petitioner- Vellore Citizens Welfare Forum, filed a Public Interest Litigation
under Article 32 of the Constitution of India. The petition was filed against the
excessive pollution caused by River Palar due to the release of pollutants by the
tanneries and other industries in the State of Tamil Nadu. Palar River is the main
source of drinking and bathing water for the surrounding people. Later, the Tamil
Nadu Agricultural University Research Centre, Vellore discovered that
approximately 35,000 hectares of agricultural land have turned either entirely or
partially unsuitable for cultivation. This is one of the landmark cases whereby the
Supreme Court critically analyzed the relationship between environment and
industrial development.
• A case concerning pollution being cause due to the discharge of untreated effluents
from tanneries in the state of Tamil Nadu. The Court, referring to the precautionary
principle, polluter pays principle and the new concept of onus of proof, supported
with the constitutional provisions of Articles 21, 47, 48A and 51A (g) and declared
that these provisions are the integral part of the environmental law of the country.
 PUBLIC TRUST DOCTRINE

• The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath , states
that certain common properties such as rivers, forests, seashores and
the air were held by Government in Trusteeship for the free and
unimpeded use of the general public. Granting lease to a motel located
at the bank of the River Beas would interfere with the natural flow of
the water and that the State Government had breached the public trust
doctrine.
 THE PUBLIC TRUST DOCTRINE

• Basically, the ancient Roman Empire developed this legal theory i.e. Doctrine of the
Public Trust. The Public Trust Doctrine primarily rests on the principle that certain
resources like air, sea, waters and the forests have such a great importance to the
people as a whole that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they should be made
freely available to everyone irrespective of the status in life.
• The doctrine enjoins upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their use for private ownership
or commercial purposes.
• Public trust doctrine serves two purposes: it mandates affirmative state action for
effective management of resources and empowers citizens to question ineffective
management of natural resources. It is a common law concept, defined and addressed
by academics in the United States and the United Kingdom.
 FEW VERDICT

• Th. Majra Singh v Indian Oil Corporation, AIR 1999 J K 81

• where the petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. It was
held that the High Court can only examine whether authorities have taken all precautions with a view to see
that laws dealing with environment and pollution have been given due care and attention. Though the case was
decided on the basis of the precautionary principle, it confirmed that the Public Trust Doctrine has become part
of the Indian legal thought processes. In the High Court's opinion, the doctrines is a part and parcel of Article 21
of the Constitution and that there can be no dispute that the State is under an obligation to see that forests,
lakes and wildlife and environment are duly protected. According to the Court, the idea that the public has a
right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the
law of the land.
• M.I. Builders v Radhey Shyam Sahu,AIR 1999 SC 2468”
• Mr. Radhey Shyam and others filed these appeals before the Supreme Court against the judgement of a Division
Bench of High Court, Allahabad. The High Court set aside and quashed the relevant resolution of Lucknow
Nagar Mahapalika permitting the respondent, M. I. Builders Pvt. Ltd. to construct underground shopping complex
in the Jhadewala Park in Lucknow. The Court after hearing to the both sides held that the whole structure to be
dismantled and the park to be restored into original condition leaving a portion for construction for parking.
 T.N. GODAVARMAN THIRUMULPAD V.
UNION OF INDIA
• T.N. Godavarman Thirumulpad v. Union of India , a case concerning
conservation of forests, Justice Y.K. SABHARWAL, held:
• Considering the compulsions of the States and the depletion of forest,
legislative measures have shifted the responsibility from States to the
Centre. Moreover any threat to the ecology can lead to violation of the
right of enjoyment of healthy life guaranteed under Article 21, which is
required to be protected. The Constitution enjoins upon this Court a
duty to protect the environment.
• The Court has adopted an expanded view of ‘life’ under Art. 21 and
enriched it to include environmental rights by reading it along with
Articles 47, 48-A and 51A(g) and declaring:
• Art.21 protects right to life as a fundamental right. Enjoyment of life and
its attainment including their right to life with human dignity encompasses
within its ambit, the protection and preservation of environment,
ecological balance free from pollution of air and water sanitation without
which life cannot be enjoyed. Any contra acts or actions would cause
environmental, ecological, air, water, pollution, etc. should be regarded as
amounting to violation of Art.21.
• By 1990s, it categorically declared that ‘issues of environment must
and shall receive the highest attention from this court’.
• India’s ‘Green Constitution’ now guarantees a right to healthy
environment, right to clean air, right to clean water, enjoins the State
and its agencies to strictly enforce environmental laws while
disclosing information in respect of decisions which affect health, life
and livelihood and disallows inadequacy of funds and resources as a
pretext for the evasion of obligations by the State.
 N.D. JAYAL V UNION OF INDIA

• N.D. Jayal v Union of India, a case involving construction of a large dam at Tehri in
Himalayan foothills, where the Court refused to interfere by emphatically declaring the
symbiotic relation between both these rights in the following words:

Right to environment is a fundamental right. On the other hand, right to development

is also one. Here the right to ‘sustainable development’ cannot be singled out.
Therefore, the concept of ‘sustainable development’ is to be treated as an integral part
of ‘life’ under Art.21. Weighty concepts like intergenerational equity, public trust
doctrine and precautionary principle, which we declared as inseparable ingredients of
our environmental jurisprudence, could only be nurtured by ensuring sustainable
development.
 CONCLUDING DISCUSSION

• The initiative taken by the judiciary has introduced transparency on the issue of
clearance of projects and environmental impact assessment. The constitution has
struck the balance between environment and it's development by initiating the
various principles such as Polluters Pay Principle (PPP) in Indian Environmental
Jurisprudence thereby linking right to clean and unpolluted environment with right
to life under Article 21.
• 1990 judicial trend gives a much better scenario of the Indian development model
and environment related issues for the coming generations. The Indian
Constitution provides various methods to protect the environment not only for
the people but also from the people.
• There is no question that India is still developing and it needs to tackle the
problems of development but the awareness for the protection of environment at
the same time has been the key point of efforts made by India.