RESEARCH ARTICLE ON ENVIRONMENTAL LAW

TITLE: ENVIRONMENTAL PROTECTION AND ITS RELATION WITH

THE INDIAN CONSTITUTIONAL LAW

SUBMITTED BY – KISHITA GUPTA & ANSHUMI MALOO

SUBMITTED TO – MS. AMRITA SINGH

SEMESTER – 5

BATCH – (2017-22)

SECTION – CR B
 DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project
assignment has been copied in any unauthorized manner and no part of it has been incorporated
without due acknowledgment.

I have projected and studied environmental protection and its relation with the Indian
constitutional law. The history of these laws and its inspiration and the comparison with the
Foreign Laws are also further explained in the present paper.

Kishita Gupta

Semester 5

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................... 4

PREAMBLE OF THE CONSTITUTION: ................................................................................ 4

DUTIES OF CITIZEN TOWARDS ENVIRONMENTAL PROTECTION: ......................... 6

DUTIES OF THE STATE TOWARDS ENVIRONMENTAL PROTECTION..................... 7

ENVIRONMENTAL PROTECTION & RIGHT TO LIFE .................................................... 8

Right to Life of endangered species .................................................................................. 9

Right to Live in a healthy and pollution-free Environment ........................................... 9

Right to clean and Healthy environment ....................................................................... 12

Right to Livelihood and Shelter ...................................................................................... 13

Right to Equality and Environment ............................................................................... 14

FREEDOM OF SPEECH AND EXPRESSION AND ENVIRONMENT ............................. 15

FREEDOM OF TRADE AND COMMERCE AND ENVIRONMENT ................................ 15

CONCLUSION ........................................................................................................................... 16

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 INTRODUCTION

The Constitution is known as the “basic law of the land” from which all other laws derive its
sanctity or validity. Therefore, it must be a living and growing law – means it must be able to
cope with the newer situations and development.1 It is intriguing to take note that common assets
had been put away basically immaculate in the Earth’s surface for many years. Be that as it may,
since the beginning of the modern insurgency immense measures of these assets had been abused
inside a time of only several many years at unbelievable rates. The misuse of the Environment by
directly degrading the harmful substances into air, water, soil, etc., thus harming the natural
resources at large. Environmental debasement in India has been caused by various factors like
socio-economic, institutional, infrastructural and technological. When our Constitution was
drafted it didn’t have any provision for the word “Environment” no importance was given to
such an asset of the Earth, to a great extent public health provisions was given importance 2 as
well as provisions related to organization of agricultural and animal husbandry on modern and
scientific lines3 and protection of natural monuments.4

PREAMBLE OF THE CONSTITUTION:

The Preamble5 provides that our country is based on the “Socialistic” pattern, where the State
gives more consideration to the social issues than on any individual issues. Ecological
contamination which has developed as one of the greatest social issues is being viewed as a

1
S.C. Shastri, Environmental law, 5th Ed., Eastern Book Company, 2015
2
Article 47 “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 as among its primary duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health”
3
Article 48 “The State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines
and shall, in particular, take steps for preserving and improving the breeds and prohibiting the slaughter, of cows and
calves and other milch and draught cattle”
4
Article 49 “It shall be the obligation of the State to protect every monument or place or object of artistic or historic
interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement,
destruction, removal, disposal or export, as the case may be”.
5
The Constitution of India 1949 Preamble: “We, The People of India, Having Solemnly Resolved to Constitute
India into a Sovereign, Socialist, Secular, Democratic, Republic and To Secure to all its Citizens: Justice, Social,
Economic and Political; Liberty of Thought, Expression, Belief, Faith and Worship; Equality of Status and of
Opportunity; and to Promote among them all Fraternity Assuring the Dignity of the Individual and the Unity and
Integrity of the Nation; In Our Constituent Assembly this Twenty Sixth Day of November 1949 , Do Hereby Adopt,
Enact and Give to Ourselves this Constitution.

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genuine issue influencing the society everywhere and along these lines state is under a
commitment to satisfy the fundamental point of socialism, that is, to give not too bad way of life
to all which can be conceivable from a contamination-free condition.

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 our day-to-day life in such a way that we cannot ignore deliberations on environmental
matters when discussing the socio-economic or socio-political scene of the country.6

The Preamble also declares India to be a “Democratic Republic”. In a democratic setup, people
have the right to participate in government decisions. They also have the right to know and
access to information about government policies which is very important for the success of the
environment policies7

In the famous CNG Vehicle Case, 8the Supreme Court observed that any ‘auto-policy’ framed by
the Government must, therefore, of necessity conform to the constitutional principles well as
overriding statutory duties cast upon the government under the EPA. The “polluter pays”
principle came about in the 1970s when the importance of the environment and its protection
was taken in the world over. It was subsequently promoted by the Organization for Economic
Cooperation and Development (OECD). The ‘polluter pays' principle as interpreted by the Court
means that the absolute liability for harm to the environment extends not only to compensate the
victims of pollution but also the cost of restoring the environmental degradation.

In the case of Vellore citizen welfare forum v. Union of India, The Supreme Court has laid down
that the "precautionary principle" and the "Polluter Pays Principle" are essential features of
"sustainable development". These concepts are part of the Environment Law of the country.
Some of the salient principles of "Sustainable Development", as culled out from Brandt land
Report and other international documents, are Inter-Generational Equity, Use and Conservation
of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays

6
Dr. Sukanta K Nanda, Environmental Law, 1st Edn, Central Law Publication: Allahabad, 2007).
7
P. S. Jaswal and Nishtha Jaswal, Environmental Law, 3rd Edn., Allahabad Law Agency: Haryana, 2009).
8
M.C Mehta v Union of India AIR 2002 SC 1696

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principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to
the developing countries. We are, however, of the view that "The Precautionary Principle" and
"The Polluter Pays" principle are essential features of "Sustainable Development". The
"Precautionary Principle" - in the context of the municipal law - means:

1. Environmental measures – by the state government and the statutory authorities who
must anticipate, prevent and attack the causes of environmental degradation.
2. When there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.
3. The “Onus of Proof” is on the actor or the developer/industrialist to show that his
action is environmentally benign.
4. Precautionary duties must not only be triggered by the suspicion of concrete danger
but also by concern or risk potential9

DUTIES OF CITIZEN TOWARDS ENVIRONMENTAL PROTECTION:

The Constitution (Forty-Second Amendment) Act, 1976 added a new part IV-A dealing with
“Fundamental Duties” in the Constitution of India Article 51-A (g) specially deals with
fundamental duty with respect to environment that: “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”.

In Rural Litigation and Entitlement Kendra v. State of UP10 Justice R.N. Mishra opined that
“preservation of the environment and keeping the ecological balance unaffected is a task which
not only the government but also every citizen must undertake. It is a social obligation and let us
remind every Indian citizen that it is his fundamental duty as enshrined in Article 51-A(g) of the
Constitution”.

9
Vellore Citizens Welfare Forum v. Union of India MANU/SC/0686/1996
10
Rural Litigation and Entitlement Kendra v. State of UP AIR 1987 SC 359.

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In Kinkari Devi v. State11 Justice P.D. Desai remarked: “There is both a constitutional pointer to
the state and a constitutional duty of the citizens not only to protect but also to improve the
environment and to preserve and safeguard the forest, the flora and fauna, the rivers and the lakes
and all other water resources of the country. The neglect or failure to abide by the pointer or to
perform the duty is nothing short of betrayal of the fundamental law which the state and indeed
every Indian is bound to uphold and maintain”.

DUTIES OF THE STATE TOWARDS ENVIRONMENTAL PROTECTION

Article 47 of the Constitution of India12 declares the duties of the State towards the
Environmental protection which was further interpreted and reiterated by the Indian Judiciary
through various cases.

In Hamid Khan v. State of Madhya Pradesh13 it was held that there was a gross negligence on the
part of the state government is not taking proper measure before supplying drinking water from
hand-pumps which has resulted in colossal damage to the people, the Court held that the State
was responsible and has failed to discharge its primary responsibility.

A new Article 48-A was inserted into the Constitution which reads:

“The State shall endeavor to protect and improve the environment and safeguard the forests and
wildlife of the country”.

Article 48-A further provides “to safeguard the forests and wildlife”. This is an important
provision as the environment is greatly influenced by forests and wildlife. The forests, in
particular, has a direct relation with water pollution as the forest is responsible for natural rain
which protects against pollution to a great extent and again by maintaining a balance, it
constitutes an important safeguard against atmosphere pollution. In this way, the forests
contribute a lot in protecting the pollution of water14

11
Kinkari Devi v. State AIR 1988 HP 4.
12
Supra 2
13
Hamid Khan v. State of Madhya Pradesh AIR 1997 MP 191.
14
Dr. Sukanta K. Nanda, Environmental Law, 1st Edn., Central Law Publication: Allahabad, 2007

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In Shri. Sachidanand Pandey v. State of West Bengal15 the Supreme Court pointed out that
whenever a problem of ecology is brought before the court, the court is bound to bear in mind
Articles 48-A and 51-A (g) of the Constitution, the Court further observed:

“When the Court is called upon to give effect to the directive principles and the fundamental
duty, the court is not to shrug its shoulders and say that priorities are a matter of policy. The least
the Court may do is to examine whether appropriate consideration is borne in mind and
irrelevancies excluded. Inappropriate cases, the Court may go further, but how much further
must 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 nice balancing of relevant considerations, the court may feel justified in
resigning itself to acceptance of the decision of the concerned authority”.

ENVIRONMENTAL PROTECTION & RIGHT TO LIFE

Article 21 of the Constitution of India reads as:

“No one shall be deprived of his life or personal liberty except according to the procedure
established by Law.”

In the past many years, the active Judicial Interpretation has played a major role in the
transformation of Article 21 into positive rights. After the case of Maneka Gandhi16, the Right to
Life and Personal liberty has witnessed major development and interpretations of fundamental
rights enshrined under Article 21. In the case of Francis Carolie Mulhin v. Administrator Union
Territory of Delhi,17 the court observed that “ the right to life enshrined in Article 21 cannot be
restricted to mere animal existence. It means something more than just physical survival”.

Considering the judgments given by the Apex Court, Shyam Divan and Armin Rosencranz
reflecting the relationship between Fundamental Rights and the Environment observed that
“Encouraged by an atmosphere of freedom and articulation in the aftermath of the emergency,
Supreme Court entered one of its most creative periods. Especially, the court fortified and

15
Shri. Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109.
16
Maneka Gandhi v. Union of India 1978 AIR 597
17
Francis Carolie Mulhin v. Administrator Union Territory of Delhi 1981 AIR 746

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expanded the fundamental rights enshrined in Part III of the Constitution. In the process, the
boundaries of the Fundamental right to life and personal liberty guaranteed in Article 21 were
expanded to include environmental protection.”18

 Right to Life of endangered species

The Apex Court while clarifying that the Right to Life is also available to species of animals
observed that “We are committed to safeguard the endangered species because this species has a
right to live on this earth, just like Human beings.” It further observed that “Article 21 protects
not only human rights but also casts an obligation on human beings to protect and preserve a
species becoming extinct, conservation and protection of environment is an inseparable part of
the right to life.”19

 Right to Live in a healthy and pollution-free Environment

It is evident from the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of
U.P., the court held that “This is the first case of its kind in the country involving issues relating
to environment and ecological balance and the questions arising for consideration are of great
moment and significance not only to the people residing in the Missouri Hill range but also in
their implications to the welfare of the generality of people, living in the country.”20

In the popular Oleum Gas Leakage Case, the Supreme Court rightly noted the right to live in a
pollution-free environment as a part of the fundamental right to life under Article 21.21 Again in
another case popularly known as the Ganga pollution case, it was held that “ We are conscious
that closure of tanneries may bring unemployment, loss of revenue but life, health and ecology
have greater importance to the people.”22 The Supreme Court of India further held that, in the
context of our national dimensions of human rights, right to life, liberty, pollution-free air and

18
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 2nd Edn., Oxford University Press:
New Delhi, 2003.
19
Centre for Environmental Law, World Wide Fund – India v. Union of India (2013)
20
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. AIR 1985 SC 652
21
M.C. Mehta v. Union of India AIR 1987 SC 1086
22
M.C. Mehta v. Union of India AIR 1988 SC 1037

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water is guaranteed by the Constitution under articles 21, 48–A and 51 – A (g). It is the duty of
the State to take effective steps to protect the guaranteed Constitutional rights.23

In Subash Kumar v. State of Bihar, the Supreme Court observed: Right to live is a fundamental
right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free
water and air for full enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality of life.24

The Apex court in another M.C. Mehta v. Union of India where the issue concerned stone
rushing activities in and around Delhi pronounced that environmental changes are the inevitable
consequences of industrial development in our country, but at the same time the quality of
environment cannot be permitted to be damaged by polluting the air, water, and land to such an
extent that it becomes a health hazard for the residents of the area.25

In Virender Gaur v. State of Haryana,26 the Supreme Court observed: “Enjoyment of life and its
attainment including their right to live with human dignity encompasses within its ambit, the
protection and preservation of the environment, ecological balance free from pollution of air and
water, sanitation without which the life cannot be enjoyed. Environmental, ecological, air and
water pollution, etc., should be regarded as amounting to violation of Article 21. Therefore, a
hygienic environment is an integral facet of the right to healthy life and it would be impossible to
live with human dignity without a human and healthy environment”.

In a case popularly known as H-Acid Case,27 a public interest litigation was filed by an
environmentalist organization, against the Union of India, State Government and State Pollution
Board concerned to compel them to perform their statutory duties on the ground that their failure
to carry on such duties violated rights guaranteed under Article 21 of the residents of the affected
area.

23
Charanlal Sahu v. Union of India 1990 AIR 1480
24
Subash Kumar v. State of Bihar (1991) 1 SCC 598
25
M.C. Mehta v. Union of India (1992) 3 SCC 256.
26
Virender Gaur v. State of Haryana (1995) 2 SCC 577.
27
Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212

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In Dr. Ashok v. Union of India,28 the Supreme Court held that by giving an extended meaning to
the expression “life” in Article 21 of the Constitution, the Court had brought health hazards due
to pollution within it and so also the health hazards from the use of harmful drugs. In A.P.
Pollution Control Board (II) v. Prof. M.V. Nayadu,29 the Supreme Court stated that the rights to a
healthy environment and to sustainable development are fundamental human rights implicit in
the right to life. Our Supreme Court was one of the first Courts to develop the concept of
“healthy environment” as part of right to “life” under Article 21 of the Constitution.

Not only the Supreme Court, but the High Courts of various states have also shown a
revolutionary concern about Environmental protection. In the catena of cases, the courts have
observed development cannot be done keeping the environment at sake.

The Madras High Court has rightly pointed out that today’s emerging jurisprudence,
environment rights, which encompass a group of collective rights, are described as “third-
generation rights”. The first generation rights are political rights, while the second generation
rights are social and economic. Thus, the right to have a noise-free environment is a third-
generation right.30

In T. Damodhar Rao v. S.O. Municipal Corporation, Hyderabad the A.P. High Court observed
that: “It would be reasonable to hold that the enjoyment of life and its attainment and fulfillment
guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s
gifts without which life cannot be enjoyed. There can be no reason why the practice of violent
extinguishment of life alone should be regarded are in violation of Article 21 of the Constitution.
The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation
should also be regarded as amounting to a violation of article 21 of the Constitution”.31

In Law Society of India v. Fertilizers and Chemicals Travancore Ltd., the Kerala High Court
held that deprivation of life under Article 21 of the Constitution of India comprehends certainly

28
Dr. Ashok v. Union of India (1997) 5 SCC 10.
29
A.P. Pollution Control Board (II) v. Prof. M.V. Nayadu (2001) 2 SCC 62 at 70-71
30
Shobana Ramasubramanyam v. Chennai Metropolitan Development Authority, AIR 2002 Mad 125
31
T. Damodhar Rao v. S.O. Municipal Corporation, Hyderabad AIR 1987 AP 171.

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deprivations other than total deprivation. The guarantee to live is certainly more than immunity
from the annihilation of life. The right to a healthy environment is part of the right to life. 32

In Kholamuhana Primary Fishermen Co. Op. Society v. State, the Orissa High Court held that
the right to life conferred by Article 21 of the Constitution includes the right of enjoyment of
pollution-free atmosphere.33

 Right to clean and Healthy environment

The right to clean and healthy environment is also not directly conferred under Article 21 of the
Constitution of India. But in the catena of cases, the court has observed that this right is inclusive
of the Right to life.

In Hinch Lal Tiwari v. Kamla Devi, the Supreme Court declared that material resources of a
community like forests, ponds, hillocks, mountains, etc., are nature’s bounty. They maintain a
delicate ecological balance. They need to be protected for a proper and healthy environment
which enables people to enjoy a quality of life which is the essence of the guaranteed right under
Article 21 of the Constitution of India.34

In M.C. Mehta v. Kamal Nath, it was clarified by the Supreme Court that “any disturbance of the
basic environmental elements, namely, air, water and soil, which are necessary for ‘life’, would
be hazardous to ‘life’ within the meaning of Article 21 of the Constitution.”35

The Supreme Court in N.D. Jayal v. Union of India, where the petitioner urged the court to issue
necessary direction to conduct further safety tests to ensure the safety of the dam at Tehri for
hydel power and look into the rehabilitation aspects of the migrants, made it clear that the right
to health, clean and healthy environment is a fundamental right under Article 21 of the
Constitution.36

The Supreme Court, in a recent judgment, was of the view that “for the jurisprudence developed
by this court environment is merely a statutory issue. Environment is one of the facets of the

32
Law Society of India v. Fertilizers and Chemicals Travancore Ltd AIR 1994 Ker 308
33
Kholamuhana Primary Fishermen Co. Op. Society v. State the Orissa AIR 1994 Ori 191
34
Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC 496
35
M.C. Mehta v. Kamal Nath (2000) 6 SCC 213
36
N.D. Jayal v. Union of India (2004) 9 SCC 362

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right to life guaranteed under Article 21 of the Constitution.” Adding further, Court held “if the
court perceives any project or activity as harmful or injurious to the environment, it would feel
obliged to step in.”37

The Rajasthan High Court has also explained that the right to life enshrined under Article 21
takes within its sweep right to life which is worth living, and it includes right to food, clothing
and shelter and right to decent environment including the right to live in a clean city.38

In a significant pronouncement, the Supreme Court has declared that the court could order for the
closure of industry under Article 21 if the court feels that there was no other remedial measure so
that the industry maintains the standard of emission and affluence as prescribed by the
Environment (Protection) Act, 1986; the Water (Prevention and Control of Pollution) Act, 1974;
and the Air (Prevention and Control of Pollution) Act, 1981 to have safe, clean and healthful
environment.39

 Right to Livelihood and Shelter

In Intellectuals Forum v. State of A.P., the Apex Court held that shelter is one of the basic human
needs just next to food and clothing. The court then approved the project of housing and declared
that such projects require a high degree of judicial scrutiny.40

In G. Sundarrajan v. Union of India, the court explained that the right to shelter includes
“adequate living space, safe and decent structure, clean and decent surroundings, sufficient light,
pure air and water, electricity, sanitation, and civil amenities.41

The right to livelihood as a part of the right to life under Article 21 was recognized by the
Supreme Court in various cases42. The court observed the view that “If the right to livelihood is
not treated as a part of the constitutional right to life, the easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood to the point of abrogation. Such

37
Noida Memorial Complex Near Okhla Bird Sanctuary, re, (2011) 1 SCC 744
38
Suo Motu v. State of Rajasthan AIR 2005 Raj 82,83
39
Sterlite Industries (India) Ltd. V. Union of India (2013) 4 SCC 575,600
40
Intellectuals Forum v. State of A.P (2006) 3 SCC 549
41
G. Sundarrajan v. Union of India (2013) 6 SCC 620
42
Sodan Singh v. N.D.M.C., (1989) 4 SCC 155; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,
(1997) 11 SCC 121; Ramesh Chander v. Imtiaz Khan (1998) 4 SCC 760

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deprivation would not only denude the life of its effective content and meaningfulness but it
would make life impossible to live”.43

In a case popularly known as Taj Mahal case, the Supreme Court once again followed the path of
sustainable development and directed that the industries operating in Taj Trapezium Zone (TTZ)
using coke/coal as industrial fuel must stop functioning and they could relocate to the alternate
site provided under the Agra Master Plan. In this case, also the Supreme Court specified the
rights and benefits to which the workmen of such industries were entitled and thus, protected
their right to livelihood.44

The Supreme Court once again showed its concern for the right to livelihood of the tribal
villagers and observed that it could have been more desirable, had the tribe’s been provided with
suitable fishing areas outside the National Park or if land had been given to them for
cultivation.45

 Right to Equality and Environment

The Indian Constitution guarantees ‘right to equality’ under Article 14 of the Constitution of
India to all persons without any discrimination. The Stockholm Declaration, 1972, also
recognized this principle of equality in environmental management93 and it called up all the
worlds’ nations to abide by this principle. 46

The Indian judiciary, on various instances, have struck down the arbitrary official sanction in
environmental matters on the basis that it was in violation of Article-14.47 In a case, R. M. Sahia
J, asserted that the decision taken at the instance of the Chief Minister of the State to convert an
open space reserved for public park into a site for constructing hospital and to allow the site to a
private person was vitiated by non-application of mind and was arbitrary, hence ultra vires and
violation of Article 14 of the Constitution.48

43
Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180
44
M.C. Mehta v. Union of India (1997) 2 SCC 353
45
Animal and Environmental Legal Defense Fund v. Union of India (1997) 3 SCC 549.
46
The Stockholm Declaration, 1972, Principle I, ‘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’.
47
Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 at 499; Kinkri Devi v. State of H.P., AIR 1988 HP 4
48
Ban galore Medical Trust v. B.S Muddappa (1991) 4 SCC 54

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In Kholamuhana Primary Fisherman Cooperative Society v. State, the government had framed a
policy regarding fishing in Chilka Lake so as to protect the traditional rights of fishermen. The
Court held that the said policy was neither arbitrary nor ambiguous and hence not in violation of
Article 14 of the Constitution. Further, the Court pointed out that the adoption of extensive and
intensive prawn culture to earn “prawn dollars” in disregard for ecology was not proper.49

FREEDOM OF SPEECH AND EXPRESSION AND ENVIRONMENT

Article 19(1) (a) guarantees every citizen a fundamental freedom of speech and expression. In
India, most of the environmental jurisprudence has developed by judicial activism. In P.A. Jacob
v. The Superintendent of Police, Kottayam50 the Kerala High Court held that freedom of speech
under Article 19 (1) (a) does not include freedom to use loudspeakers or sound amplifiers. Thus
noise pollution caused by the loudspeakers can be controlled under Article 19(1) (a) of the
Constitution. A similar view was observed in various judgments by the Indian Judiciary wherein
freedom of speech and expression was rightfully restricted with respect to safeguarding the
environment.

FREEDOM OF TRADE AND COMMERCE AND ENVIRONMENT

Article 19(1) (g) guarantees all citizens the right “to practice any profession or to carry on any
occupation, trade or business”. This right of the citizens is not absolute. It is subject to Article
19(6) under which “reasonable restrictions” under the Constitution of India which has also been
observed in various cases51 relating to the environmental issues.

In a case before the Supreme Court where the intensified shrimp (prawn) farming culture
industry by modern method in coastal area was causing degradation of mangrove ecosystem,
depletion of plantation, discharge of highly polluting effluents and pollution of portable as well

49
Kholamuhana Primary Fisherman Cooperative Society v. State of Orissa AIR 1994 Ori 191
50
In P.A. Jacob v. The Superintendent of Police, Kottayam AIR 1993 Ker 1
51
Abhilash Textiles v. Rajkot Municipal Corporation AIR 1988 Guj 57; Burrabazar Fire Works Dealers’
Association v. Commissioner of Police, Calcutta AIR 1998 Cal 121 at 134; n Ashwin Jajal v. Municipal Corporation
of Greater Mumbai AIR 1999 Bom 35; Baleshwar Singh v. State of U.P. AIR 1999 All 84; Obayya Pujari v.
Member Secretary, K S P C B, Bangalore AIR 1999 Kar157 at 164; A.P. Gunnies Merchants Association,
Hyderabad v. Government of A.P AIR 2001 AP 453

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as groundwater, it was held that, the sea beaches and sea coasts are gifts of nature and any
activity polluting the same cannot be permitted.52

CONCLUSION

The Article discussed briefly the relationship of Constitutional law with the Environmental law
and the dynamics concerned herein. The Judiciary has also played a major role in the
interpretation of these Constitutional provisions while protecting the environment. In certainty,
during the most recent decade, the court has shown its lawful grant in the advancement of
environmental jurisprudence. The role of the higher legal executive as is seen from a larger part
of the cases chosen by it has been worth increasing in value. The Court has effectively carried
out its responsibility, satisfied its commitment and played out its obligation. It is our
accommodation, that legal executive isn't the main compelling structure to determine
environment issue which can be adequately comprehended as it were through open mindfulness
and political will instead of legal will. Accordingly, legal executive can also, plays a role of
impetus and in this manner accelerate and rigging up the procedure, however it needs to be
started by and from people in general.

Further, the environment issues are unpredictable and need to harp on purposes of scientific and
technical relevance. The Courts in such circumstances think that it is hard to shape their own
autonomous assessment and take response to the assistance of master boards which is a long and
time-consuming exercise.

52
S. Jagannath v. Union of India (1997) 2 SCC 87

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