FUNDAMENTAL RIGHTS TO CLEAN AND HEALTHY

ENVIRONMENT
A research prepared submitted in partial fulfilment of the course
Environmental Law for obtaining the degree BBA LLB (Hons.) for
the academic year 2021-2022

Submitted by
RAHUL KUMAR
2032
Submitted to
Mr. Hrishikesh Manu

Sept. 2021
Chanakya National Law University, Patna
Mithapur Nayaynagar, Patna

1
 INTRODUCTION

For leading a quality life a clean and a healthy environment is indispensable. A person will remain healthy only
if he is provided with fresh air to breathe, clean water to drink and other basic requirements. So in order to live
a dignified and healthy life it is important for a person to be surrounded by a clean environment. Thus, the
right of the people to live in a clean and healthy environment is a basic human right.

The concept of human rights in general emerged after the Second World War, but the right to a healthy
environment, as one of those human rights, was never a priority. Today, this right is an emerging concept that
is being hotly debated in the human rights arena. A healthy environment is an essential aspect of the right to
life, not only for human beings but also for other animals on the planet. Violation, therefore, of the right to
healthy environment is potentially a violation of the basic right to life.

Environmental deterioration could eventually endanger life of present and future generations. Therefore, the
right to life has been used in a diversified manner in India. It includes, inter alia, the right to survive as a
species, quality of life, the right to live with dignity and the right to livelihood. In India, this has been expressly
recognised as a constitutional right. Article 21 of the Indian Constitution states: ‘No person shall be deprived of
his life or personal liberty except according to procedures established by law.’ The Supreme Court expanded
this negative right in two ways. Firstly, any law affecting personal liberty should be reasonable, fair and just.
Secondly, the Court recognised several unarticulated liberties that were implied by article 21. It is by this
second method that the Supreme Court interpreted the right to life and personal liberty to include the right to
a clean environment.

In the past several decades, there is a momentous shift in the international environmental concerns as well.
The call for environmental protection and preservation has brought international recognition of the right to
clean and healthy environment. For effective implementation of this notion and to create awareness globally,
international organisations and communities have conducted numerous conferences and established various
international instruments, resolutions and global and regional agencies. Around 200 treaties are registered
under United Nations Environment Protection Programme and in total there are approx. 900 bi-lateral and
multilateral treaties.

 Aim
The current study is at establishing the importance of environment in our life while realising the rights
enshrined to us by our constitution. The study seeks to provide an account describing the
fundamental rights which can be invoked in case of environmental degradation.

 Objective
1. The objective of the research is bring up into the common knowledge the rights enshrined in
our constitution through different rights.
2. The research tends to Analyse and account for all the rights and decisions supporting the
environmental rights.

 Research methodology
In this part the researcher outlines the research strategy, sources of data, the research method and
the second part deals with review of literature.

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 1. Research strategy

The research held with respect to the given topic was an applied one, but not new. As such, the
proposed research took the form of a new research but on an existing research subject.

2. Sources of Data

Secondary data is used in this project. Secondary data are the data collected by a party not related to
the research study but collected these data for some other purpose and at different time in the
past. If the researcher uses these data then these become secondary data for the current users.
Secondary data is also used to gain initial insight into the research problem. Secondary data is
classified in terms of its source – either internal or external. The present study relies on information
drawn from various secondary sources including books,
journals, and government survey reports.

3. Research Methods

This project is based upon doctrinal method of research. It has been done after a thorough research
based upon intrinsic and extrinsic aspects of the project.

 Hypotheses
The researcher while undertaking the research hypotheses that
1. The constitution of India implicitly as well through express provisions provides for the
rights of environmental protection.
2. That the right of life includes right to clean and healthy environment
3. That protection of environment is an implicit duty of the government under constitution.

-page break-

1. Meaning

o Right to Life

Article 21 of the Constitution of India deals with the protection of life and personal liberty enshrined under the
fundamental rights. This article states that-“No person shall be deprived of his life or personal liberty except
according to procedure established by law. 1”

This article is considered to be the most important article of all. Although all articles are equally important but
since it deals with our life which is the foremost thing for individual and also all other rights of the individual
revolve around this article, that is why, it is very important. the phraseology of Article 21 starts with negative
word but the word No has been used in relation to the word deprived. The right to life is difficult to define as it
is not just taking away one's life rather it has a much wider application. Earlier the scope of Article 21 was a bit
narrow as it was held in A.K. Gopalan vs. State of Madras2 that “the personal liberty was confined to freedom
of detention and therefore, deprivation does not restrict upon the right to move freely which came under
article 19 (1) (d).”

1
M. P Jain, Indian Constitutional Law, 7th Edition, 2014, pg 1260
2
AIR 1950 SC 27

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But then the case of Maneka Gandhi vs. Union of India3 which resolved the issue of reasonableness of law
with respect to article 14 and 19 and held that “the procedure must be right, fair and not arbitrary, fanciful or
oppressive.”

Then further it was argued that the ‘life' in Article 21 does not mean merely ‘animal existence' but living with
‘human dignity'. In the case of Francis Coralie vs. Union territory of Delhi 4, it was held that “the right to life
includes the right to live with human dignity which further incorporates basic necessities like adequate
nutrition, clothing and shelter and facilities for reading writing and expressing oneself, freely moving and
mixing and commingle with fellow human beings.” Also, the minimum requirements like protection of the
health and strength of the workers and of the children against abuse, educational facilities, just and humane
conditions of work and maternity relief, etc. must exist for a person to live with dignity. Then from there
onwards, Courts went on discussing cases about the right to life and thus, widened the concept of Article 21.
Now it includes right to food, water, shelter, clean environment, education, medical care, privacy, etc. So, the
Article 21 is actually like a mini constitution and it was mentioned in the case of Unni Krishnan vs. State of
Andhra Pradesh5 that “the Article 21 is the heart of the Fundamental Rights.” So, the main object of this article
is to prevent one's personal liberty and deprivation of one's life against the acts of the State and the procedure
of law has to be strictly followed. But in my assignment, since I am concerned with the right to clean
environment within the ambit of Article 21 of the Constitution, so my entire focus now will be on the
relationship of environment with right to life. But again before actually dealing with relationship, I would like
to throw light on the basic background of environment.

o Environment

The term ‘environment' cannot be defined precisely as it is linked with many subjects like ecology, biology,
geography physiology, psychology etc. But, in the layman terms, environment can be defined as the
surroundings like natural resources, atmosphere, water bodies, etc. in Which an individual or an organism
lives. According to Einstein, “the environment is everything that isn't me.6” The resources form an important
part of an individual's life. Not only individuals but also animals are dependent on the environment to fulfill
their needs. Man is constantly interacting with the environment in order to fulfill his needs. These needs
include the basic needs of oxygen, food and shelter in addition to the social needs like entertainment,
medicines, etc. In the earlier periods (Vedic period), the environment had been seen altogether differently.
There were ethical rules behind environment.

According to S.C. Shastri7, “The main motto of social life since Vedic period was ‘to live in harmony with
Nature'. People used to worship plants, trees, Mother Earth, sky, water, air and animals so as to be kind to
everything. The Hindu religion enshrined a respect for Nature, environmental harmony and conversation. The
philosophy behind it was that these all are creations of God, so destruction of nature means destruction of
mankind.”

In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh 8, it was mentioned that, “air
and water are the most indispensable gifts of Nature for preservation of life. In ancient times, trees were
worshipped as gods and forests were necessary for mankind as they provided shelter. The world is considered
to be the beloved place as it has the blessings of nature's bounties.”

3
AIR 1978 SC 597
4
AIR 1981 SC 746
5
AIR 1993 SC 2178
6
James Marrow, Where the everyday begins: A study of Environment and Everyday life, 2017, p14
7
S.C. Shastri, “Environmental Law”, 3rd Edition, Eastern Book Company, 2008, pg.8
8
AIR 1988 SC 2187

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The crux is that in the ancient times, environment was considered to be an inseparable part of one's life as a
healthy environment is absolutely necessary for the well-being of all organisms. All our needs, big and small
are being met by the environment only. However, now the position is changed. With the time, man's needs
has also increased, he has become greedy. Man has felt the urge to transform his surroundings to meet his
increasing material needs and desires. He started exploiting the resources of the earth and has been
transformed from preserver to destroyer. The problem of pollution is one which concerns most as it has
gained threatening position. So, the need has been felt to look into this matter seriously and for that purpose
our judiciary has tried to do a lot.

2. Environment: a basic human rights

The concept of human rights in general emerged after the Second World War, but the right to a Healthy
environment, as one of those human rights, was never a priority. Today, this right is an Emerging concept that
is being hotly debated in the human rights arena. A healthy environment Is an essential aspect of the right to
life, not only for human beings but also for other animals On the planet. Violation, therefore, of the right to
healthy environment is potentially a violation Of the basic right to life.

Environmental deterioration could eventually endanger life of present and future generations. Therefore, the
right to life has been used in a diversified manner in India. It includes, inter alia, The right to survive as a
species, quality of life, the right to live with dignity and the right to Livelihood. In India, this has been expressly
recognized as a constitutional right. Article 21 of the Indian Constitution states: ‘No person shall be deprived of
his life or personal liberty except according to procedures established by law.’

The Supreme Court expanded this negative right in two ways. Firstly, any law affecting personal liberty should
be reasonable, fair and just. Secondly, the Court recognized several unarticulated liberties that were implied by
article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty
to include the right to a clean environment.

3. International obligations
The human conference on human environment held at Stockholm in 1972. Popularly called as The Magna
Carta of human environment warned that the “natural resources of the Earth Including air, water, land, flora
and fauna and especially the representative sample of natural Ecosystem must be safeguarded for the benefit
of the present and future generations through Careful planning or management as appropriate. 9” The Report
on the World Commission on Environment and Development suggested 22 legal principles for environmental
protection and Sustainable development. ‘Caring for the Earth 1991’ and the ‘Earth Summit’ of 1992’ also
Declared that human beings are entitled to a healthy and productive life in harmony with Nature. 10

4. Environment and Indian constitution

The relevant provisions of the Constitution of India are the backbone. India, 1950, certain provisions of the
Constitution relating to environmental protection and nature conservation are not included. Perhaps, the
country is now facing severe environmental problems through the framers of the Constitution were not
visualized. However, over the past five decades, the progress of these two witnesses.

9
https://www.google.co.in/search?q=Stockholm+in+1972&oq=Stockholm visited on 10 sept. 2021.
10
http://www.un.org/geninfo/bp/envirp2.html, Vsited on 10 sept. 2021

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The Constitution (Forty Second Amendment) Act, 1976, passed through the seventies, when the development
took place. Schedule of the seventh - and a list of the third - specific provisions related to certain aspects of the
concurrent list, more particularly for the protection of forests and wildlife, in Part IV - Directive principles of
policy have been incorporated in the Constitution. Part IV: Principles of State Policy Guidelines (Article 48A):
the protection and development of forests and wild life and protect the constitution specifically to
environmental protection and nature conservation is the following provisions: State to protect and improve the
environment and to protect the country's forests and wild life shall be seeking 11.

Part IV A: Fundamental duty (Article 51 - A): It shall be the duty of every citizen of India - (g) to protect the
forests, lakes, rivers and wild life and the natural environment, including advanced, and to have compassion for
living creatures. Seventh Schedule (Article 246) of the third accompanying list of items. Animal cruelty reported
in 17 of Prevention, Item no. 17A Forest, Item no. 17B Protection of wild animals and birds. Even we can say
that the real panic in India came to be felt only after the Bhopal gas tragedy in 1984, yet it began concentrating
on the problem of pollution soon after the Stockholm conference.

India parliament passed many statutes to protect and improve the environment viz. Wildlife (protection) Act,
1972; Water (prevention and control of pollution) Act, 1974; the forest (conservation) Act, 1989; the air
(prevention and control of pollution) Act,1981 and above all the Environment (protection) Act, 1986.

5. Environment and Right to Life

In order to proceed further it was necessary to present the picture of Article 21 and environment in general.
“Environment and life are interrelated and the existence of life on earth depends on the harmonious
relationship between ecosystem and environment.” Every individual, from the moment of his birth, acquires
certain rights. One such right is the right to live in a clean environment.

While framing the Constitution of India, there was no mention of specific provision relating to the protection of
environment or conservation of nature. The problems were prevalent in the earlier times also but they were
very acute as the living of the people was simple and there were not much industries, transport facilities etc.
but now with the advancement in technology and sciences, the problems have become grave. “In India,
around 70% of the population directly depends on the land-based occupations, forests, wetlands and marine
habitats, for basic subsistence requirements with regards to water, food, fuel, housing, fodder and medicines
as also for ecological livelihoods and cultural sustenance.”

The first major development related to the article 21 of the Constitution of India dealing with ‘the right to life'.
The concept of the right to life has been broadened through the judicial pronouncements 12. While resolving
cases relating to environment, the judiciary considered the right to clean or good environment as fundamental
to life and upheld as fundamental right.

In my assignment, I am discussing the right to clean environment with respect to the provisions of Article 21 of
the Constitution. “The evolution of the right to health under Article 21 is invariably linked with the right to a
clean environment, no less because without the latter the former was impossible.” Earlier there was a time
when people thought of the environment, they thought of its beauty, they used to maintain greenery, and
most of the time they used to spend in the fresh air, in a sense, there was an interaction between the
environment and the men. “But with the growth of civilized society, man has become more and more
materialistic and in his endeavour to conquer the earth and establish his supremacy, unfortunately, he lost
sight of the need to protect and conserve the natural resources.” In the whole process, some of the people do
not understand the adverse effects of their harmful activities and as a result of those few, innocent people

11
Mahendra P. Singh, V.N. Shukla’s “Constitution of India”, 11 th Edition, Eastern Book Company, 2008
12
Menaka Gandhi vs. Union Of India, AIR 1978 SC 597

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have to suffer. They are being deprived of their right to life. Central to all the issues is ‘pollution', which
involves the introduction of harmful substances into the air, land, and water.

Although this problem of pollution is not a new one but the only difference is that it was not that acute
problem as it is now and therefore, it is much recognized now. Pollution has a direct impact on one's health,
thereby, degrading one's life.

The Scholar Shubhankar Dam in his article talks about the risks posed by the households, the workplace,
outdoors and transportation to the health:

“The air which people breathe is of poor quality because of pollution all around in the environment, thereby,
causing hazards like acute respiratory diseases. The air pollution contains different harmful chemical variants
like carbon dioxide, hydrocarbons, sulphur and nitrogen dioxide etc. when people are exposed to such air, then
it can cause lung cancer, respiratory infections, etc. because of these harmful chemicals. Noise pollution is
associated with miscarriages, physical deformities, deafness, hypertension, etc. 13”

So, it is quite clear that the environment in which we live greatly affects our health. The diseases from which
people suffer are sometimes impossible to treat, thereby, leading to death of an individual. So, unhealthy
environment actually interferes with person's living life in dignity and deprives him from his life. Therefore, the
boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were expanded to
include environmental protection.

The right to clean environment is now being seen as an inbuilt constituent of the right to life under Article
21.There is tide of Judicial Activism exhorting to adopt new dimensions along with the right to life under article
21. Under the article 21 the term personal liberty means life in a pollution free environment and if state fails to
ensure reasonable environment, it would amount to the violation of fundamental right to life and personal
liberty under Article 21.

“Then the Supreme Court interpreted the right to life and personal liberty to include the right to a wholesome
environment.” The first attempt of the right to a wholesome environment i.e. the issues relating to
environment and ecological balance was recognized in the case of Rural Litigation and Entitlement Kendra,
Dehradun vs. State of Uttar Pradesh14. In this case, the representatives of the Rural Litigation and Entitlement
Kendra, Dehradun wrote to the Supreme Court alleging that illegal lime stone mining in the Mussorie-
Dehradun region was causing damage to the fragile eco-systems in the area. The Court treated this letter as a
public interest petition under Article 32 of the Constitution. And also several committees have been appointed
for the full inspection of illegal mining sites. All the committees came at the conclusion that the lime stone
quarries whose adverse effects are very less, only those should be allowed to operate but that too after further
inspection and all. Therefore, the Court ordered the closure of a number of limestone quarries.

Although the Court did not mention any violation of fundamental right explicitly but ad impliedly admitted the
adverse effects to the life of people and involved a violation of Article 21 of the Constitution.

The concept of right to wholesome environment was also recognized in the case of Subhash Kumar vs. State
of Bihar15. In this case, the company in Jamshedpur carries on mining operation against which the suit filed.
The allegations were that the slurry gets settled in the land affecting fertility of land, polluting the drinking
water, thereby risking the health of people living in surrounding areas. The Court held that “the right to life
includes the right to enjoy unpolluted air and water. If anything endangers or impairs the quality of life in
derogation of laws, a citizen has a right to recourse to Article 32 of the Constitution and also it said that
recourse should be by the person genuinely interested in the protection of society on behalf of the community.”

13
Shubhhankar Dam, “Green Laws For Better Health: The Past That Was And The Future That May Be –
Reflections From The Indian Experience”, 2004, 16 Geo. Int’l Envtl. L. Rev. 593.
14
AIR 1988 SC 2187
15
AIR 1991 SC 420

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Similarly, in the case of Virender Gaur vs. State of Haryana, there has been a great discussion about the
environment within its ambit of “hygienic atmosphere and ecological balance”. The observation by the Court
was that: “Article 21 protects the 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 pollution. Environmental, ecological, air, water,
pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an
integral facet of right to healthy life and it would be impossible to live with human dignity without a humane
and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for
human existence. Promoting environmental protection implies maintenance of the environment as a whole
comprising the man-made and the natural environment 16.”

So, in this regard no doubt the State has the foremost responsibility to take care of individuals by protecting
and improving the environment. But at the same time, every citizen also has to contribute his help to the
government in maintaining the hygienic environment.

Most of the environmental cases are related to pollution of hazardous gases, wastes disposal, etc. the world
industrial disaster took place in the year 1984 which is referred to as ‘Bhopal Gas Disaster case'. The Bhopal
plant of Union carbide India Ltd (UCIL)17, an Indian company which was a subsidiary of the Union carbide
Corporation, USA (UCC) was set up. On the midnight of 2-3 December in 1984 there was a massive leak of
methyl isocyanate from this plant which killed more than 3000 persons and serious personal injuries. The
whole surrounding was covered with the black smoke of hazardous chemical gas. But the court could not reach
any conclusion that by the time another disaster happened in Delhi which was not as that severe as the Bhopal
tragedy.

This other incident was referred as the Oleum Gas Leakage case18. In this case, there was a leak of oleum gas
from a factory in Delhi of Shri Ram Foods and fertilizer Industries which enveloped the parts of Delhi in yellow
smoke. Although the chemical gas was not that toxic and harmful as that was in Bhopal gas case, but there
were some adverse effects to the people living in that surrounding. Through this case only rule of ‘absolute
liability' established which says that the enterprise will be liable no matter even if there is an act of God like
earthquake, floods etc. or an act of terrorism or enemy action. The Court suggested that ‘an enterprise which
is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and
safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-
delegate duty to the community to ensure that no harm results to anyone on account of hazardous or
inherently dangerous nature of the activity which it has undertaken and therefore, such corporations would be
subjected to the limitations of right to life under Article 21 of the constitution.”

Then this case was referred to solve the Bhopal gas leak case. The effects of this tragedy were so adverse,
people developed many diseases. This incident happened long time back but the after effects are still known.
The mothers who were pregnant at that time gave birth to disables children and children suffering from severe
diseases. If a person is not able to live his life properly, his health is not perfectly fine then, his/her life cannot
be said to be dignified life. Such type of corporations for their profits does not take care of the after effects of
their activities and the result is in front of all of us.

All the above cases which I have mentioned in some sense talk about the industrial pollution which is not just
limited to that. Another landmark case which also supported the view that the right to a healthy environment
is part to life under Article 21 of the Constitution is the ‘Ganga Pollution case19'. In this case, a writ was filed
mentioning that the industries mostly tanneries located on the banks of the river and populated areas of

16
(1995) 2 SCC 577 (at 580)
17
AIR 1990 SC 273
18
AIR 1987 SC 965
19
((1987) 4 S.C.C. 463)

8
Kanpur and Calcutta were discharging highly toxic trade effluents into the river Ganga. As a result of which the
water in the river Ganga could no longer be used by the people either for drinking or any other purposes. The
Court held that “the polluting tanneries have to be closed down even though it would bring unemployment,
loss of revenue because the preservation of life, health and ecology are the most important than anything
else”.

It's not just about the life of the people who get affected, also the animals who drink this water. Although they
cannot go to the Court that does not mean their life is nothing. So, the water-pollution problems (especially
discharging noxious and poisonous matter into rivers) should be dealt with strictness.

In T Damodar Rao case20, the Andhra Pradesh High court held that the slow poisoning by the polluted
atmosphere was a violation of Article 21 of the Constitution. In this case, the High Court enunciated: it would
be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by the Article 21
of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be
enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as
violate 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 violation of Article 21 of the
constitution.

Mohit Singhvi in his article mentioned the observation by the Supreme Court, “Water is a gift of nature.
Human hand cannot be permitted to convert this bounty into a curse, oppression and the primary use to which
water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to
remain thirsty21.”

Now the other aspect is that of smoking. People smoke after knowing the ill effects of smoking and also
corporations support them in the sense by providing them with cigarettes. Tobacco smoking definitely
contributes to the air pollution as tobacco smoking contains harmful chemicals like nicotine, tar, carbon
monoxide and other smoke particles. When people smoke, these harmful substances get mixes in the air
which we breathe, therefore is responsible for various fatal diseases including cancer. 22 In the case of Murli S.
Deora vs. Union of India23, it was pointed out by the Court that: “Since article 21 of the Constitution
guarantees that none should be deprived of their life, then why should a non-smoker become the victim of the
whole process? It was contended that smoking is injurious to health and may affect the health of smokers but
there is no reason that health of passive smokers should also be injuriously affected. So, till the statutory
provision is made and implemented by the legislative enactment, it was held that it would be in the interest of
the citizens to prohibit smoking in public places and the person not indulging in smoking cannot be compelled
to passive smoking on account of the acts of the smokers.”

There are a lot of after effects of this dangerous activity. There are psychological effects of smoking. Pregnant
women who smoke, they don't realize that they are actually the accusers of their kids. Children of such
mothers are likely to born with low birth weight, small brain, short term memory span, are likely to get
addicted to smoking, etc.

Subhash Kumar v. State of Bihar24, in the instant case the Court observed that ‘right to life guaranteed by
article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ Through
this case, the Court recognized the right to a wholesome environment as part of the fundamental right to life.
This case also indicated that the municipalities and a large number of other concerned governmental agencies

20
T. Damodhar Rao And Ors. Vs The Special Officer, Municipal, AIR 1987 AP 171
21
Mohit Singhvi, “Water Management – Law and Policy in India, 2012
22
Ronald J. Rychlak, “Cards and Dice in Smoky Rooms: Tobacco Bans and Modern Casinos”, 2009, 57 Drake L.
Rev. 467
23
AIR 2002 SC 40
24
AIR 1991 SC 420

9
could no longer rest content with unimplemented measures for the abatement and prevention of pollution.
They may be compelled to take positive measures to improve the environment.

M.C. Mehta vs. Union of India (Vehicular Pollution Case) 25

A matter regarding the vehicular pollution in Delhi city, it was held to be the duty of the Government to see
that the air did not become contaminated due to vehicular pollution. The Apex court again confirming the right
to healthy environment as a basic human right and stated that the right to clean air also stemmed from Art 21
which referred to right to life. This case has served to be a major landmark because of which lead-free petrol
supply was introduced in Delhi. There was a complete phasing out old commercial vehicles more than 5 years
old as directed by the courts.

T.N. Godavarman Thirumulpad v. Union of India26

In this very recent case concerning conservation of forests, Justice Y.K. Sabharwal, held that, 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 Art 21, which is required to be protected. The Constitution enjoins upon this
Court a duty to protect the environment.

M.C Mehta v. Union of India27, in this case the Supreme Court has given certain directions to

remove environmental illiteracy were given-

 Cinema halls/video parlors to exhibit not less than two slides on environment prepared by the
ministry of environment.
 Doordarshan and AIR to allot 5-7 minutes daily for interesting programs 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.

M. C Mehta v. Kamal Nath28

Supreme Court made it crystal clear that any disturbance of basic environmental elements namely air, water
and soil which are necessary for life would be hazardous to life and can’t be polluted. (Hotel was discharging
effluent into river and hence causing disturbance to aquatic life and water sanitation).

M.C Mehta v. UOI29

Also famous as the Taj Trapezium case, in which industries were asked to shift from the use of coke/ coal to
natural gas. For those who can’t will have to stop functioning.

25
W.P.(Civil) No. 817 of 2015
26
2003 (6) Scale 354
27
1988 AIR 1115
28
AIR 2002 SC 1997
29
(1997) 2 SCC 353

10
P.A. Jacob v. Suprintendent of police, Kottayam 30

In this case the Kerala high Court held that the freedom of speech does not include freedom to use
loudspeakers or sound amplifiers to cause noise pollution and risk to human health.

T.K. Koolwal v. State of Rajasthan31

The High court extended the right to know to entitle a person to have complete information about the
sanitation programme of the municipal corporation. Hence, the citizens’ access to official environmental
information within reasonable limits is now a guaranteed right.

Indian council for Enviro-Legal action v. Union of India32

It is also popularly known as the coastal zone protection case, the apex court took a serious view of the
executive’s lethargic attitude in implementing the laws meant for the protection of right to life and directed
them to implement the relevant laws strictly to maintain ecological balance.

Even the Principle of ‘Sustainable Development' came to be recognized in which says that there must be a
balance between development and ecology. “Economic development without environmental considerations
can cause serious environmental damage affecting the quality of life of the population, both present and
future.” Therefore, there is an urgent need to maintain a balance between the demands of development and
the levels of environmental protection in order to ensure sustainable development. Since pollution is the
major cause of environmental degradation and of imbalance, so, pollution control will be of greater
significance for sustainable development.

Some of the basic principles of sustainable development include:

 Inter-Generation Equity which talks about the right of every generation as the most important
principle of ‘sustainable Development'.
 The Precautionary Principle: this principle has been considers as the most important principle of
sustainable development. It means-
 Environmental measures by the state government and the local authority must anticipate,
prevent and attack the causes of environmental degradation.
 Where 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.
 The ‘onus of proof' is on the actor or the developer to proof that his action is environmentally
benign.
 Polluter pays principle: it is quite obvious that the object of the above principle was to make the
polluter liable not only for the compensation to the victims but also for the cost of restoring of
environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his
act irrelevant of the fact that whether he is involved in development process or not 33.

The two principles, that is, the polluter pays principle and the precautionary principle came to be recognized in
the case of Vellore Citizen's Welfare Forum vs. Union of India 34. In this case, water pollution has been caused
by the tanneries. “The Supreme Court recognized the common law right of the people to a clean and healthy
environment and awarded compensation to the victims of pollution on the basis of the ‘precautionary

30
AIR 1993 ker. 1
31
AIR 1988 Raj. 2
32
(1996) 5 SCC 281
33
S.A.Atapattu, Emerging Principle of International Environmental Law, Vol.7, 2007, pg 438
34
AIR 1986 SC 2715

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principle' and the ‘polluter pays principle' and also held that these both principles are a part of the
environment.”

6. Delhi air pollution issue

Currently the smog and poor air quality in National Capital Region has become an important issue of pollution.
Even right to clean environment is our fundamental right but we are suffering from such poor air quality and
smog which has resulted in many dangerous health problem and has become a big threat to public peace.
Some thinkers suggests that The current smog and poor air quality in the National Capital Region has been
blamed in part on stubble burning by farmers, especially in neighbouring Punjab and Haryana. This belt
produces an estimated 34 million tons (mt) of paddy straw every season, of which some 23 mt is from
combine-harvested fields and burned within less than a month’s span. A bench headed by Chief Justice of
India Dipak Misra issued the notices on a PIL filed by Advocate R K Kapoor, to the Centre, the governments of
Delhi, Haryana, Uttar Pradesh and Punjab and three municipal corporations of Delhi on a plea seeking steps to
tackle rising air pollution in the capital and NCR areas.

However, the apex court said it will not stop any other court from hearing cases related to pollution in Delhi.
The petition wanted the Centre to provide more subsidy and schemes to the states to help them deal with the
issue of stubble burning. It also sought steps to clean dust at construction sites — another contributor to air
pollution — using vacuum cleaners or by sprinkling water and also requested the court to direct the
government to promote the use of solar energy and electric vehicles. The bench also asked the court-
appointed committee, EPCA, to suggest long-term measures to avoid an “emergency-like” situation in Delhi.
“Why don’t you give steps to be taken to prevent the occurrence of such a situation?” Delhi Government has
responded on this issue and implemented the odd-even Rule for tackling the issue of pollution in Delhi. In odd-
even scheme, vehicles whose registration number ends on even digits are allowed to ply on even dates like 0,
2, 4, 6, 8, and 10 and so on. Similarly, vehicles having their registration numbers ending on odd digits, are
allowed to ply on odd dates such as 1, 3, 5, 7, and 9 and so on 35.

Even The National Green Tribunal (NGT) has allowed the Delhi government to go ahead with the Odd-Even
scheme implementation in the Delhi-National Capital Region (NCR), but with certain conditions. The Energy
Policy Institute at the University of Chicago (EPIC) and Harvard University had found reductions in pollutants
in the afternoon hours in Delhi because of the strict adherence of Odd-Even Scheme. According to the study,
PM 2.5 declined by 13 per cent on an average during the odd-even period 36.

The Constitution of India is the main source of incorporating right to clean environment. Though the other
important work of legislation is the Environment (Protection) Act, 1986 which provides a framework of
coordination of activities between the Central government and the State government to prevent and control
environmental pollution and degradation. Since the need for the protection of environment has been felt, so in
this regard the two major developments have been take place in our Constitution. Now, with the help of
various articles and cases, it is very clear that environment is one of the most important which directly affect
our health, thereby can lead to fatal diseases also. In turn all of these deprive a person from his right to
dignified life. “While the highest human right accorded to a person is the right to life, that right could become
meaningless if the environment in which the person is living is so degraded that, in effect, the right to life is
threatened.” But there are some questions remain unanswered which are difficult to answer. This aspect I am
discussing under the next heading.

 Right to developing Vs. Right to environment

35
http://indianexpress.com/article/cities/delhi/odd-even-delhi-pollution Visited on 10 sept. 2021
36
https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact Visited on 11 sept.
2021

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For a person to live a dignified life, a clean environment is the mandatory. But then, in order to
maintain healthy environment, we have to lose out on other aspect, that is, Right to Development.
India is a developing country and in order to compete with the world as a whole, development of
our country is really essential. Development is necessary to ensure the fulfilment of all human rights
and fundamental freedoms. “Industry is important for the development of a country and for meeting
the growing demands of the people. At the same time, it has a negative impact on the environment
as it extracts materials from natural resources and injects both products and pollution into the
human environment.” AS I have already discussed a lot of cases and industries are the main cause
for an unhealthy environment, thereby, reason for violation of Article 21 of the Constitution. So, for
that such industries which produce noxious substances and endanger the surroundings are needed
to be closed which is the best way to stop the pollution at its roots. But again that means we are
preventing our country from development.

The population is growing at a faster paste and therefore, there is an urgent need to cut trees in
order to provide people with shelter and trees are also required for industrial purposes to fulfill their
demands. This means we have no other option left rather to destroy the environment.

So, a man's indiscriminate use of land, water and air ha considerable impaired their quality so that
they are no longer fit even for his own needs and purposes. Although population can be controlled if
people are made aware, if they will get education but then also till what extent it is possible. Still
population will continue to increase; they will continue to increase their demands in terms of
shelter, luxuries, etc.

According to Gandhian philosophy, “Nature has provided everything for our need but not for
greed.” If they be denied to cut trees in order to get shelter, then again that means they are being
denied their right to live, that is, their right to life and personal liberty are violated. If an activity is
allowed to go ahead, there may be an irreparable damage to the environment and if it is stopped,
then, there may be irreparable damage to economic interest. Then the other remedy could be that
the industries can be shifted. But does that solve the problem? To some extent it does solve the
problem but what about the rights of those who are employed in such industries. They have to
sacrifice their life for their families. It is not possible to ensure this right to all as there are some who
are left, that is, the people who work for such industries. The poor people have to bear the main
brunt of these environmental problems.37

7. Conclusion
Earlier the article 21 of the Constitution had a bit narrow scope but with the time, the concept of Article 21 has
been broadened. The Judiciary has played a vital role in interpreting the Article 21 of the Indian Constitution.
37
Gandhi M.K., Quoted by Mathurs (Ed.), ETMG, pp 476

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The scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court,
which has interpreted the right of life to mean the right to live a civilized life and it also includes the right to
clean environment. But the Constitution does not explicitly provide for the citizen's right to a clean and safe
environment.

Earlier in the ancient times, the hazards of the environment were not that recognized but now with the
advanced technology and increasing population the adverse effects are clearly recognized. Industries
contribute to the environmental pollution which proves to be very harmful for the health of the citizens,
thereby, degrade g their right to life. Then smoking is also the main contributor to the pollution in the
environment. Although many orders have been passed against smoking but nothing fruitful is coming out. If
the orders were to hold any meaning then, no person in India should have now been smoking in public places.

Environmental conservation is the principle concern of the present times. It is the, most urgent necessity,
because a pollution free environment is a foremost requirement for the health and safety of mankind. Further,
environment and development are considered to be the two sides of the same coin. Any one of these cannot
be sacrificed for the other. Rather, both are equally important for the betterment of our future. But
nonetheless, without concerning for the loss of private profit, the preference has to be given to the public
health and to the clean environment. The ultimate responsibility lies on the Courts to deal with these cases
efficiently and with great caution. Such type of environmental issues can be handled properly if people are
educated and are aware of their activities. Also, the government has to take strict measures with proper care
against the hazardous industries. Each individual shall have the opportunity to access to the information
concerning the environment. States shall facilitate and encourage public awareness and participation by
making information widely available.

A healthy environment is an absolute necessity for the well-being of all organisms. But then again is it possible
to make the environment completely pollution free environment. So, the question which remains unanswered is
the “is the right to healthy environment guaranteed or is it illusory?”

References
BOOKS

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  Mahendra P. Singh, V.N. Shukla's “Constitution of India”, 11th Edition, Eastern Book
Company, 2008

 S.A.Atapattu, Emerging Principle of International Environmental Law, Vol.7, 2007

 S.C. Shastri, “Environmental Law”, 3rd Edition, Eastern Book Company, 2008

 M. P Jain, Indian Constitutional Law, 7th Edition, 2014

RESEARCH PAPERS AND JOURNALS

 Shubhhankar Dam, “Green Laws For Better Health: The Past That Was And The Future That
May Be - Reflections From The Indian Experience”, 2004, 16 Geo. Int'l Envtl. L. Rev. 593

 Ronald J. Rychlak, “Cards and Dice in Smoky Rooms: Tobacco Bans and Modern

 Casinos”, 2009, 57 Drake L. Rev. 467

 Mohit Singhvi, “Water Management - Law and Policy in India, 2012

EXTERNAL LINKS

 http://indianexpress.com

 http://www.un.org

 http://www/lawyersclub.com

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