Right to Environment Vs.

Right of Environment
• Environment (Section 2-a of the E.P. Act, 1986): Environment includes
water, air and land and the inter-relationship which exists among and
between water, air and land, and human beings, other living creatures, plants,
micro-organism and property.
• No explicit reference either in the Constitution of India or in any of the
domestic environmental laws.
• Established in domestic law as a result of judicial interventions.
• The most common source of this right is Article 21 of the Constitution.
• The relationship between the fundamental right to life and the right to
environment has been expressed in different forms.
• Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
and Ors. (1981) 1 SCC 608: the Supreme Court observed that the right to life
includes ‘the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life’.
 Judicial Interpretation of Right to Environment

• Cases in which environmental issues do not explicitly refer to the right

to environment.
• Cases which do not specifically involve an environmental issue but
the court made an explicit reference to the right to environment.
• Cases which involved environmental issues where the court explicitly
recognized the right to environment with reference to the fundamental
right to life.
 Rural Litigation and Entitlement Kendra & Ors v.
State of U. P. & Ors AIR 1988 SC 2187
The first case in which right to live in a healthy environment as part of Article 21 of the Constitution
was recognized by the court.
The Supreme Court had received a writ petition 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.
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 economic 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.
 Quality of Life and Right to Environment
Case: Subhash Kumar vs State Of Bihar And Ors. AIR 1991 SC 420
Article 32 is designed for the enforcement of Fundamental Rights of a
citizen which provides for an extra-ordinary remedy to safeguard the
fundamental rights of a citizen.
Right to life 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 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.
 Environment Literacy
M.C. Mehta vs Union Of India And Ors. AIR 1992 SC 382:
Directions to remove environmental illiteracy or to create environmental
awareness were given-
• Cinema halls/video parlors to exhibit not less than two slides on
environment prepared by the ministry of environment.
• Doordarshan and All India Radio to allot 5-7 minutes daily for
interesting programmes on environment.
• Environment be made a compulsory subject in a graded way in
schools and colleges and universities shall prescribe a course for the
same.
 Right of Environment
Right of Environment is ecocentric concept.
Rights of Natural Resources: Water, Lakes, Rivers, Forests, Animals
etc.
M. C. Mehta v. Kamal Nath and Ors. (1996) 1 SCC 38: the Court held:
‘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’.
Animal Welfare Board Of India vs A. Nagaraja & Ors (2014) 7 SCC
547 (Rights of Animals);
Md. Salim v. State of Uttarakhand [2017 SCC Online Utt 367] (rights of
river);
Lalit Miglani v. State of Uttarakhand (2017) (rights of rivers).
 Animal Welfare Board Of India vs A. Nagaraja &
Ors (2014) 7 SCC 547 (Rights of Animals)
This particular case had two sets of cases, one challenging the Division
Bench Judgment of the Madras High Court on the validity of the Tamil
Nadu Registration of Jallikattu Act and few writ petitions regarding the
validity of Ministry of Environment and Forests (hereafter referred to as
MoEF) Notification dated 11.07.2011 prohibiting all Bullock-cart races,
games, training, exhibition etc and another case challenging the
Division Bench Judgment of the Bombay High Court upholding the
MoEF Notification.
The Supreme Court on banned hundreds of year’s old Jallikattu-
bullfights and bullock-cart racing composed amid celebrations in Tamil
Nadu and neighboring states.
 Centre for Environment Law, WWF-I Vs Union of
India & Others 2013 SC
This petition was for an order to force the State of Gujarat to create a second home for
Asiatic lions at Kuno Wildlife Sanctuary.
Contention: State of Gujarat contended that there are already Asiatic lion sanctuaries in
the forest of Gir and that there was no need to create a new one in Kuno Wildlife
Sanctuary.
State of Gujarat pointed out that the reintroduction of the Asiatic lions in Kuno would
create some conflict with the local communities, especially with the farmers.
The supreme Court held that re-introduction of the Asiatic lion in Kuno was a priority that
cannot be delayed if we want to protect this species from extinction.
The court considered that the fact that the Asiatic lion had been historically present in
Kuno and that there was an important prey ratio is a guarantee that the re-introduction
should take place there.
The court requested the Ministry of Environment and Forest to issue an order to
re-introduce the Asiatic lion in Kuno within a six month period.
 Md. Salim v. State of Uttarakhand [2017 SCC
Online Utt 367] (rights of river)
In this case, the Uttarakhand High Court noticed that despite its decision for constitution of
Ganga Management Board, the States of Uttar Pradesh and Uttarakhand have not
cooperated with the Central Government in this regard.
The Court, in exercise of its parens patriae jurisdiction declared the Rivers and all their
tributaries, streams, natural water flowing body with continuous or intermittent flow, as
juristic/legal persons/living entities, having the status of a legal person with all corresponding
rights, duties and liabilities of a living person read with Articles 48-A and 51-A(g) of the
Constitution.
The Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the
Advocate General of the State of Uttarakhand were declared as persons in loco parentis i.e.
the human face bound to protect, conserve, preserve, uphold the status and promote the
health and well being of Ganga and Yamuna.
The Court made it clear that, “Rivers Ganga and Yamuna are breathing, living and sustaining
the communities from mountains to sea” and the constitution of Ganga Management Board
has become all the more necessary for the purpose of irrigation, rural and urban water supply,
hydro power generation, navigation and industries as well.
 Lalit Miglani vs State Of Uttarakhand And Others
2017 Utt.

The court by invoking parens patriae jurisdiction, declared the Glaciers

including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air,
meadows, dales, jungles, forests wetlands, grasslands, springs and
waterfalls are legal entity/ legal person/juristic person/juridicial person/
moral person/artificial person having the status of a legal person, with
all corresponding rights, duties and liabilities of a living person. In order
to preserve and conserve them, they are also accorded the rights akin to
fundamental rights/ legal rights.
 Fundamental Duty and Environmental Protection

“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.” Article 51-A (g)
 Environmental Duties
Application of the principles contained in this Part (Article 37): The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country
and it shall be the duty of the State to apply these principles in making laws.
Certain principles of policy to be followed by the State (Article 39-e): The State shall, in particular, direct its policy
towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Duty of the State to raise the level of nutrition and the standard of living and to improve public health (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.
Protection and improvement of environment and safeguarding of forests and wild life (Article 48-A): The State shall
endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
Protection of monuments and places and objects of national importance (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.
Promotion of international peace and security (Article 51-c): The State shall endeavour to foster respect for international
law and treaty obligations in the dealings of organised peoples with one another.
 Approach of Judiciary towards Directive Principles and
Environmental Protection
Case: Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: Supreme Court while dealing with
inhuman and pitiable conditions of the labourers working in stone quarries held that the right to live with
human dignity, enshrined in Article 21, derives its life-breath from the directive principles of the State
policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42.
Case: T. Damodhar Rao And Ors. vs The Special Officer, Municipal Corporation of Hyderabad
AIR 1987 AP 171: Protection of the environment is not only the duty of the citizen but it is also the
obligation of the State and all other State organs including Courts. In that extent, environmental law has
succeeded in unshackling man’s right to life and personal liberty from the clutches of common law theory
of individual ownership.
Case: Sachidananda Pandey vs State Of West Bengal & Ors AIR 1987 SC 1109: Whenever a problem
of ecology is brought before the Court, the Court is bound to bear in mind Art. 48 A of the Constitution
which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard
the forests and wild life of the country, "and Art. 51A(g) Which proclaims it to be the fundamental duty of
every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and
wild life, and to have compassion for living creatures.” When the Court is called upon to give effect to
the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that
priorities are a matter of policy and so it is matter for the policy making authority.
 Constitutional Remedies for Environmental Protection
Right to a wholesome environment as an implied fundamental right, the writ petitions can be filed to
the Supreme Court under Article 32 and the High Court under Art.226, in the case of a violation of a
fundamental right.
Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental matters.
Mandamus to command action by a public authority when an authority is vested with certain power and
that authority wrongfully refuses to exercise it. E.g. It lies against a municipality that fails to construct
sewers and drains, clean street and clear garbage (Rampal v State of Rajasthan), state pollution control
board may be compelled to take action against an industry discharging pollutants beyond the
permissible level.
Certiorari and prohibition are issued when an authority acts in excess of jurisdiction, acts in violation of
the rules of natural justice, acts under a law which is unconstitutional, commits an error apparent on the
face of the record, etc.
Certiorari can lie against a municipal authority which considers a builder's applications and permits
construction contrary to development rules. It can also lie against pollution control board that wrongly
permits an industry to discharge effluents beyond prescribe levels.
 PIL and Environmental Protection
Public Interest Litigation (PIL) is an important tool/procedure through which the Indian
Environmental Jurisprudence has attained a different stature.
PILs act as a mechanism for the protection of public interest in India where citizen suits and
class action suits are not available.
The seeds of the concept of PIL were initially sown in India by Krishna Iyer J. in 1976 in
Mumbai Kamagar Sabha Vs. Abdulbhai Faizullabhai & Ors AIR 1976 SC 1455, and further
in Fertilizer Corporation Kamgar v Union of India AIR 1981 SC 344 as, “Law, as I conceive
it, is social auditor and this audit function can be put into action when someone with real
public interest ignites the jurisdiction.”
PIL may be entertained by a court either suo motu or upon an application of the aggrieved
party or another third party.
It can be filed by any public spirited individual, institution or non-governmental
organisations.
PILs may be accepted under article 32 in the Supreme Court and 226 in the High Court.
 Judicial Decisions through PIL
Tarun Bharat Sangh, Alwar Vs. Union of India, (Sariska Bio- reserve) AIR 1992 SC 514: In
this case, a distinguished NGO had filed a PIL in the Supreme Court in the year 1991, regarding large
scale mining activities illegally sanctioned by the State Government within the protected area that
was steadily destroying the Tiger habitat and pushing them towards virtual extinction.

The Supreme Court directed the constitution of a Committee headed by a retired Supreme Court
Judge, (Justice M.L. Jain) to prepare a list of the mines within the protected area and to ensure the
enforcement of the notifications and the orders of the Court. It prohibited all mining activities in
Sariska National Park and the area notified as a Tiger Reserve.

Law Society of India v. Fertilizers & Chemicals Travancore Ltd. AIR 1994 Ker 308: A PIL was
instituted challenging the operation of a 10,000 tonne Ammonia storage tank by the respondents as
being dangerous. It was contended that the Tank regularly causes air pollution and is thus causing
serious damage to the environment. If a leak was to develop in the plant, it could exterminate all
living things in the Cochin. Finally an order was passed saying this storage violated Article 21 and 3
months time were given to empty it.
 Vellore Citizen’s Welfare Forum v. Union of India
[AIR 1996 SC 2715]
Vellore Citizen Welfare Forum’, has filed a Public Interest Petition against 900 tyrannies against severe
pollution of soil and water due to discharge of untreated sewage discharge in 5 districts of Tamil Nadu.
The Palar River in Tamil Nadu which was main Source of potable water in that area, used for
consumption and irrigation was completely polluted due to this tyrannies.
A survey of sewage water was done and 176 different types chemicals were found present in the tyrannies
water.
35,000 hectares of land near the tannery was declared unfit for cultivation and 350 wells present that
area was declared unsafe for consumption.
An order of the Tamil Nadu Pollution control board to built a effluent plant for proper disposal of
effluents was left unheard.
ISSUES:
• Whether polluter based principle and precautionary principle as important part of sustainable
development holds any place in Indian law?
• Up to what extent we can compromise environment safety for future economic development?
• Whether tanneries should be allowed to keep on working at expense of life of lakhs of people residing
there?
Continued……
1. Court realized the harm caused by the tanneries to the Palar river and decided the
case in favour of Vellor forum and ordered the Tanneries to deposit a sum of Rs.
10,000 as fine.
2. Even after shutting down of the tanneries, they set up singular contamination
control devices and continue to operate.
3. No tanneries will work unless theset up contamination control devices under the
guidance of pollution control board.
4. Supreme court directed the Madras High Court to constitute a special Bench "Green
bench" to deal with this case and other environmental matters. The working of the "Green
Benches" functioning in Calcutta, Madhya Pradesh and some other High Courts are
mentioned in this case.
5. The Registry was directed to send the records to the registry of the Madras High matter as
a petition under Article 226 of the Constitution of India and deal with it in accordance with
law and also in terms of the directions issued by the supreme court.
6. Parties were given liberty to approach the High Court as and when necessary.
 Right to Public Participation/Consultation
Public Participation means the citizen’s right to participate in decision-making
processes. Example: right to vote, rights to peaceful assembly and association,
freedom of opinion and expression, right to education.
Ministry of Information and Broadcasting v. Cricket Association of
Bengal (1995) 2 SCC 161: The Supreme Court has recognized this right
to public participation as fundamental right and held that ‘democracy cannot
exist unless all citizens have a right to participate in the affairs of the polity of
the country’.
Research Foundation for Science Technology and Natural Resources
Policy v. Union of India and Anr. (2005) 10 SCC 510: ‘The right to
information and community participation is necessary for protection of
environment and human health and it is an inalienable part of Article 21.
Opportunities for participation in decision-making, along with access to
information is mandatory for proper implementation of fundamental duty of
citizen to protect the environment [Article 51A(g)]
 Supreme Court and Right to Public Consultation
Cellular Operators Association of India v. Telecom Regulatory
Authority of India (2016) 7 SCC 703: Supreme Court adopted the
definition of public consultation provided by the Court of Appeal in
England:
“To be proper, consultation must be undertaken at a time when
proposals are still at a formative stage; it must include sufficient
reasons for particular proposals to allow those consulted to give
intelligent consideration and an intelligent response; adequate time
must be given for this purpose; and the product of consultation must be
conscientiously taken into account when the ultimate decision is taken
...” R. v. North and East Devon Health Authority: (2000) 2 WLR
622 (CA)
 Advantage of a public hearing
Samarth Trust v. Union of India (2010) SCC Online
Del 2127
“It brings about transparency in a proposed project and thereby
gives information to the community about the project; there is
consultation with the affected parties and they are not only taken into
confidence about the nature of the project but are given an opportunity
to express their informed opinion for or against the project. This form of
a social audit, as it were, provides wherever necessary, social
acceptability to a project and also gives an opportunity to the EAC to
get information about a project that may not be disclosed to it or
may be concealed by the project proponent.”