Environmental Law

9th July 2020

Constitution Provisions and Environment Protection in India
Introduction: you can write
Preamble:
Socialistic:
Preamble provides that our country is based on socialistic pattern
where state pays more attention to the social problem rather than
individual problem.
The word Socialistic was added to the Preamble by 42 nd Amendment
Act 1976.
The basic aim of socialism is to provide “decent standard of life to
all”, which can be possible only in Pollution free environment.
Pollution is one of the social problems and “this state is required
under supreme law to pay more attention to this social problem and
march towards the aim of just social order (Article # 38 refer)”.
Article 38 – Promotion of Welfare of the people.
Democratic Republic
Preamble also declares India to be Democratic Republic.
In a Democratic set up, people have a right to participate in the govt.
decisions. People also have right to know and access to information
of govt. policies, which is very important for the success of
environmental policies.
Federal System of Govt.:
The problem of environment is tackled thru various statues.
Therefore, from an environmental point of view the allocation of
legislative authority is very important. India has adopted Federal
System in which the governmental power is shared between Union or
Central Govt. and the State govt.
Part 11 of the constitution Article 245 to 263 regulates the legislative
and administrative relations between the Union and States.
Articles 245 empowers the parliament to make laws for the whole
country, where as the state legislatures have the power to legislate for
their respective states.
Article 246 further divides the subject areas of legislation between the
Union and the States. This division is based on 3 lists
a) Union List
b) State List
c) Concurrent List
Which are given in 7th Schedule to the Constitution.

Union List (List I) contents 97 subjects over which the parliament

along has a power of legislation.
The subjects mentioned in Union list are Atomic energy and mineral
resources, Defence, UNO, participating and implementing the
decisions in International conferences, treaties and agreements with
foreign countries, air traffic, oilfields and mineral oil resources and
development of interstate rivers and fishing.
States List (List II) contents 66 subjects over which state legislatures
of different states have the exclusive power of legislation subject to
their territorial limit.
The subjects include public health and sanitation, hospitals and
dispensaries, agricultural, water supply, irrigation and drainage
Concurrent (List III) contents 52 subjects over which both
Parliament and State legislature of different states have the
jurisdiction to make laws.
The subjects included are forest, protection and wildlife and birds,
pollution control and family planning, minor ports, factories etc.
Article 254: It removes the inconsistency which may arise between
the laws made by the parliament and the laws made by the legislatures
of different states. However, a State law pass subsequent to the
Central law will prevail if it has received the ascent of the President
under Article 254.
3) Fundamental Duties:
The Constitution under 42nd Amendment Act 1976 added a new Part
IV A dealing with “Fundamental Duties” in the constitution of
India.
Article 51 a of this part enlist 10 fundamental duties.
It is interesting to note that this part was added on the
recommendations of the Swaran Singh Committee brining the
constitution of India in a line with Article 29 1 of UDHR (Universal
Declaration of Human Rights)
Article 29 1 “Everyone has a duty to the community in which
alone the free and the full development of the personality is
possible”.
Article 51 A g: says that it shall be 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;
The above article refers to Fundamental duty of every citizen to
protect and improve “Natural environment” but in the present days
the pollution is caused not only by exploiting the natural environment
but otherwise also. It is submitted that the word “Natural” before
environment has to be understood in broad sense. Nature has given us
the gift of pollution free environment. The fundamental duty imposed
on every citizen is not only to “protect” the environment but also to
“improve” the environment quality if it has been polluted.
Article 51 A, only citizens are under the obligation of fundamental
duties. The parliament has used the “word citizen” instead of the
word subject to create a feeling of citizenship amongst the masses and
also to see that the persons living in the country do not feel that they
are the subjects.
Cases:
LK Kulwal Vs. State AIR 1988 Rajasthan. Very Important and
interesting case
Highlights
Where the Municipal Authority under the Rajasthan Municipality Act,
was charged with a primary duty to clean public streets, places and
severs and all spaces, not been private property, which are opened to
the enjoyment of a public, removing of toxic vegetation and all public
nuisance and to remove filth, night soil, odour or any other toxic or
offensive material. Mr.Kulwal moved to high court under Article 226
and highlighted that Municipality has failed to discharged its
primary duty resulting in the acute sanitation problem in Jaipur which
is hazardous to the life of the citizens of Jaipur.
The court allowed the petition and explained the true scope of article
in the following terms “we can call article 51 A ordinarily as a duty of
citizen but in fact it is a right of a citizen as it creates the right in
favour of citizen to move to the court to see that the state perform its
duty faithfully and the primary duties are performed in accordance
with the law of the land”.
The court also pointed out that “Right and Duty co-exist” there cannot
be any right without any duty and there cannot be any duty without
any right. Insanitation leads to slow poisoning and adversely affects
the life of the citizen and hence it falls within the purview of Article
21 of the Constitution.
MC Mehta Vs. State AIR 1992, where it was held that duty of every
citizen to see that the rights which has acquired under constitution as
a citizen are fulfilled.

Case 2: Goa Foundation Vs. State of Goa, AIR 2001

Where the Bombay Highcourt examine the question of Locus Standi
from the premises of the Fundamental Duties under the constitution of
India.
Article 51 A g: says that it shall be 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;
The court answers this question in affirmative and held that such a
society also has the same duties.
The Petitioner society was held to have locus standi to move to the
court to prevent ecological degradation, to formulate and implement
programs for rehabilitation of environment and to restore ecological
balance.
Case: Sitaram Chaparia Vs. State of Bihar AIR 2002
Where PIL was filed by 5 persons the residents of the same locality
seeking the directions from court for the closure of Tyre retreating
plant set up in Industrial area which was emitting carbon dioxide gas
causing harm to the environment of the locality. Patna Highcourt
held that protecting the environment is our Fundamental duty under
Article 51 A g, and accordingly the respondent were directed to wind
up their industry.

Environmental Law – 11th July 2020

Text Book Dr. Paramjit S. Jaswal
Covered Fundamental duties in last lecture
Directive Principals of State policy and Fundamental Rights
Part IV constitutes Directive Principals of State Policy
It is primary duty
Article 47 it is a directive principle of state policy where state can
Health is Wealth
Improvement of Public Health
Directive Principles of State Policy:
It comes under Part IV of the constitution and these principles represents –
Socio Economic Goals which the nation is expected to achieve.
Article 47 : The State shall regard the raising of the level of nutrition and the
standard of living of its people and improvement of public health as amongst
its Primary duties.
Article 48A : Added by 42nd Amendment Act 1976 (Very very Imp)
“The state shall endeavour to protect and improve the environment and to
safeguard the forest and wildlife of the country”.
Thus, Indian Constitution is one of the rarest constitutions in the world where
specific provisions were incorporated putting obligation on the “State” as well
as “citizens” to “protect and improve” the environment.
The state cannot treat the obligation of protecting and improving the
environment as just a mere obligation. The directive principles are not mere
showpiece in the window dressings. They are “fundamental in the governance
of the country”.
Article 37: The provisions contains in this Part IV shall not be enforceable by
court, but the principles therein led down are never the less fundamental in
the governance of the country and it shall be the duty of the state to apply
these principles in making laws.
In the view of this above, article the court may not be able to actively enforced
the directive principles by compelling the state to apply them in making of law.
The court can, if state commits the breach of its duty by acting contrary to
these directive principles, prevented from doing so.
Thus, Directive Principles serve the court as a code of interpretation.
AB Sangh Vs. Union of India AIR 1981
Where it was held that Fundamental Rights should be interpreted in the light
of Directive Principles and the later should, whenever and where ever possible
be read into the former.
Unnikrishnan Vs. State of Andhra Pradesh AIR 1993
It was held that Part III dealing with Fundamental Rights and Part IV dealing
with Directive Principles are complementary and supplementary to each other.
Shri Sachidanand Pandey Vs. State of West Bengal AIR 1987
Where SC pointed out that where ever a problem of ecology is brought before
the court, the court is bound to bear in mind Article 48 and Article 51A g of the
constitution. It was further observed that the court is not shrug its shoulders
and say that the priorities are the matter of policy and so it is a matter for
policy making authority. The court may always give the direction that are
necessary however the court will not attempt to nicely balanced the relevant
consideration. Therefore, it is been observed that SC is evident in certain cases
that the judges take affirmative action commanding the other organs of the
state.
T. Damodar Rao Vs. SO Municipal Corporation Hyderabad AIR 1987
The court pointed out that in the view of Article 48 A and 51A g it is clear that
protection of environment is not only the duty of every citizen but it is also the
obligation of the state and all other state organs including courts.
(State Organs - legislative, judicial, and executive).
Kinkri devi Vs. State of Himachal Pradesh AIR 1988
Where HP high court held that Article Article 48 A and 51A g both are
constitutional pointers to the state and constitutional duties of the Citizens.
Not only to protect but also to improve the environment and to preserve and
safe guard the forest, the flora and fauna, the rivers and lakes and all other
water resources of the country.
MC Mehta Vs. Union of India CNG Gas Case:
Constitution and Environment
We are dealing with our rights as a citizen.
Principle 1 of Stock holm declaration finds reflection in the articles 14, 19 and
21 of the constitution.
In order to treat a Right as a Fundamental Right, it is not necessary that it
should be expressly stated as one in Part III of the Constitution dealing with
Fundamental Rights. The provisions of Part III and Part IV dealing with
Fundamental Rights and Constitution are supplementary and complementary
to each other. Fundamental Rights are but the means to achieve the goal
indicated in Part IV thus it must be considered in the light of Directive
principles. (This was held in Unnikrishnan Vs. State of Andhra Pradesh AIR
1993)
Freedom – Article 19
Equality - Article 14
Adequate Conditions – Article 21

Stockholm Declaration, 1972:

Principle 1. 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: Right to life and Right to live in the Healthy environment:

It is a heart of Fundamental right because life is more important anything else

and has received expanded meaning from time to time and there is no
justification as to why to live in healthy environment, cannot be interpreted in
it. For healthy existence and preservation of essential ingredients of life,
stable ecological balance is required. This article also guarantees life of
dignity, to be lived in a proper environment, free of danger of disease and
infection.
The talk of Fundamental Rights and in particular, Right to life would become
meaningless if there is no healthy environment.
Landmark Case:
Rural Litigation and enlighten Kendra Dehradun Vs The State of UP 1985
Popularly known as Doon Valley case
A group of citizens wrote a letter to SC against the progressive mining which
denuded. The Mussoorie hills of tress and forest covered and asselrated soil
erosion resulting in land slides and blockage of underground water channels
which fed many rivers and springs in the valley. The court order to writ the
It is interesting to note that SC did not make any reference to the basic Article
48 A, the object of which it sought to achieve nor did it articulate any
fundamental rights specifically infringed where as exercise of jurisdiction under
Article 31, presupposes the infringement of Fundamental Rights. It is
submitted that the disturbance of ecology and pollution of water, air and
environment by the reason of mining or quarrying definitely affecting life of
the person and thus involves the violation of Article 21 of the Constitution.
MC Mehta Vs. Union of India AIR 1987
Oleum Gas leakage case
SC treated that Right to live in pollution free environment as a part of
fundamental right to life under Article 21 of the Constitution.

T. Damodar Rao Vs. SO Municipal Corporation Hyderabad AIR 1987

It is observed that Slow poisoning of polluted atmosphere caused by
environmental pollution should be regarded as amounting to violation of
Article 21 of the constitution.
LK Kulwal Vs. State AIR 1988 Rajasthan. Very Important and interesting case
Rajasthan HC held that maintenance of health, preservation of sanitation and
environment fall within the scope of Article 21 of the constitution.
Charanlal Shahu Vs. Union of India 1990
Where SC while upholding the validity of Bhopal Gas leak disaster held that in
context of our national dimension of human rights, Right to live, liberty
pollution free air and water is guaranteed by the constitution under Article 21,
48 A and 51 A g.
FK Hussain Vs. Union of India AIR 1990
Where keral highcourt pointed out that Right to sweet water and Right to free
Air are the attibutes of the Right to Life.

Subhash Kumar Vs. State of Bihar

Where SC observed that Right to live is a fundamental Right under Article 21.
If anything in endangers the quality of life, citizen has a right to have recourse
to Article 32 of the Constitution for removing the pollution which may be
detrimental (hazardous) to the quality of life.
MC Mehta and Union of India 1992
Crushing Zone area of the Faridabad
Where SC took a note of Environmental Pollution due to crushing of stones in
an around Delhi, Faridabad. It was held that every citizen has right to fresh air
and to live in pollution free environment.
TA Jacob Vs. Superintendent of Police
Where Kerala High court observed that compulsory exposure of unwilling
person to dangerous levels of noise would amount to the clear infringement of
their constitutional rights under Article 21.

LANDMARK CASE
Indian Council for Enviro Legal Action Vs. Union of India 1996
Popularly H acid case.
Where PIL was field by environmentalist organization again industrial units
polluting the environment

Narmada Bachav Andolan Vs. Union of India 2000

Vellore Citizen Welfare Forum Vs. Union of India 1996 (T N Tanaris case)
SC held that in the view of constitutional provisions contained in Article 21, 47,
48A and 51 A g, and the other statutory provisions Water Prevention and
Control of Pollution Act
The precautionary principle and polluter pace principle are the part of the
environmental law of the country.

Murli Deora Vs. Union of India

Passive and Active Smokers
To ensure the prohibiting of smoking in public places.

Amarnath Yatra 2013

Conditions were not good. Found its difficult, urination sanitation was not
properly designed.
Court observes right to life right to dignity safety and clean environment.

Article 19 which talks about your profession