Human Right to Environment

It is a basic right of all to live in a healthy environment. The protection of

environment is a global issue and it is not an isolated problem of any area or nation.
The depletion of ozone layer and global warming are the major problems before the
present generation. Indian Constitution is perhaps one of the rare Constitutions
of the world which contains specifi c provisions relat ing to environmental
protection. The judicial grammar of interpretation has made the right to live in
healt hy environment as sanctum sanctorum of human rights. Now it is considered as
an integral part of right to life under Article 21 of the Constitution. The Indian
judiciary has made an extensive use of these constitutional provisions and developed
a new "environmental jurisprudence" of India. The Indian Supreme Court was
one of the first courts to develop the concept of the right to 'hea lt hy environment' as
part of the right to ‘life' under Article 21 of the Constitution. This principle has now
been adopted in various countries today. The judiciary has been the major source of
providing environmental safeguards in India.

International Provisions:

The United Nations Conference on Human Environment and

Development at Stockholm in 1972 is considered to be the Magna Carta of
environment protection. This is the first formal internat ional recognit ion of the
need for protection of environment. This Conference resulted in the Stockholm
Declaration on the Human Environment. The Declarat ion recognizes the concept of
sustainable development which means that development should be condit ioned wit h
due regard to environment. The Declaration formulates 26 principles and the first
principle gives the substance of the other principles. It states :

"Man has the fundamental right to freedom, equalit y and

adequate conditions of life, in an environment of a qualit y that
permits a life of dignit y and well-being, and he bears a solemn
responsibilit y to protect and improve the environment for present
and future generations."
 Based on the Stockholm Declaration, number of international Convent ions and
Treaties were entered by the nations. The most significant among them is the Rio
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Declaration of 1992. Recognizing the concept of "intergenerational rights,"
Principle 3 of the Declaration provides :

"The right to development must be fulfilled so as to equitably

meet developmental and environmental needs of present and
future generations."

Principle 25 of the Declaration states :

"Peace, development and environment protection are

interdependent and indivisible."

Co-ordinat ion among the countries of the world is needed to protect this planet Earth
from further deterioration.

Constitutional Provisions:

The Constitution of India obligates the State as well as Citizens to

protect and improve the environment. The e xample of the Indian constitutional
provisions regarding the environmental protection has been followed by other
nat ions in the world. 2 The Constitution (Forty-second Amendment) Act, 1976, added
a new directive principle in Article 48-A which provides as follows :

"The State shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the
country."

However, being a Direct ive Principle, under Article 37, it is not just iciable and thus
cannot be enforced in a court of law. The Court, therefore, may not be able to
actively enforce the directive principles by compelling the State to apply them in the
making of laws. However, the Court can, if the State commits a breach of its duty by
acting contrary to these directive principles, prevent it from doing so. Further,

1. The Declaration Consists o f 27 principles.

2. P.S. Jaswal and Nishtha Jaswal , “ Environmental Law", 2003 (Reprint 2004), p.
36.
Article 51-A(g) specifically deals with the fundamental duty of citizens with respect
to environment. It provides :

"It shall be the duty of every cit izen of India to protect and
improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures."

Thus, the fundamental duty imposed o n every cit izen is not only to protect the
environment from any kind of pollut ion but also to improve the qualit y of
environment if it has been polluted. This fundamental duty has played an important
role in the emergence of an environmental right under Article 21 of the Constitution.

Judicial Interpretation:

The first indicat ion of recognizing the right to live in healthy

environment as a part of Article 21 was evident from the case of R.L.& E. Kendra,
Dehradun vs. State of U.P. 3 This was the first case of its kind in the country
involving issues relating to environment and ecological balance. In this case, the
Supreme Court ordered the closure of number of lime-stone quarries. The Court
did not explicit ly ment ion any fundamental right which was infringed. However,
exercise of jurisdiction under Article 32 pres upposes the infringement of
fundamental rights. As the disturbance of ecology and pollut ion by reason of
quarrying operation affects the life of the person so the violation of right to life
guaranteed under Article 21 of the Constitution occurs and it must be for the
infringement of this right to life, that the Court entertained the petit ion under Article
32 of the Constitution. Besides, the Court indirectly made a reference to the "right of
the people to live in healthy environment with minimal disturbance of ecological
balance." However, the legal source of this right was not discussed. Thus, the Court
provided a remedy without an attendant fundamental right.

3. AIR 1985 SC 652 (popularly known as Doo n Valle y case).

 In the case of M.C. Mehta vs. Union of India, 4 the Supreme Court took note of
environmental pollut ion due to stone crushing activit ies in and around Delhi. The
Bench, after noting the World Healt h Organizat ion’s study declaring Delhi as the
World's third most grubbiest, polluted and unhealt hy cit y, gave certain direct ions for
stopping stone-crushing activities in and around Delhi, Faridabad and
Ballabhgarh complexes. The Court further ordered the government to rehabilitate
these stone crushers in 'crushing zone' wit hin the period of six months. Showing
deep concern to the environment, the Court stated :

"Needless to say that every citizen has a right to fresh air and to
live in pollution-free environments."

Thus, the Supreme Court once again treated it as violat ion of Article 21 of the
Constitution and passed the order in absolute terms under Article 32 of the
Constitution.

The decision given by the Supreme Court in the case of Indian Council
5
for Enviro-Legal Action vs. Union of India, is a monumental judgment on
environment protection. In this case a Public Interest Lit igation (PIL) was filed
alleging environmental pollut ion caused by private industrial units. The petition
was filed not for issuance of writ, order or direct ion against such units but 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 the right to life of cit izens under Article 2 1 of the
Constitution. The industrial units were located in Rajasthan. They were producing
certain chemicals like oleum and H-Acid, etc. They had not obtained the necessar y
clearances/ consents/ licences nor did they install any equipment for treatment of
highly toxic effluents discharged by them. The highly toxic effluent of these
industries percolated deep into the bowels of the earth pollut ing the ground water

4. (1992) 3 SCC 256.

5. AIR 1996 SC 1447 (popularly known as H -Acid case).
and making it unfit for drinking by human beings and cattle and for irrigat ing the
land. The soil became unfit for cultivat ion. In fact, it spread diseases, death and
disaster in the concerned village and the surrounding areas. The Court rightly held
that the contention that the respondents being private corporate bodies and not
"State" within the meaning of Article 12, a writ petit ion under Article 32 would not
lie against them, could not be accepted. The Court observed :

"If this Court finds that the said authorities have not taken the
action required of them by law and that their inaction is
jeopardising the right to life of the citizens, it is the duty of this
Court to intervene."

The Court pointed out that it could certainly issue the necessary direct ions to protect
the life and libert y of the cit izens. The Court directed the closure of all such
industries. The Court applied the 'Polluter Pays Principle,' according to which the
responsibilit y for repairing the damage caused to the environment is that of the
offending industry. Thus, the court directed the offending industries to compensate
for the losses due to damage and to pay towards the cost of restoration of
environmental qualit y.

The polluter pays principle is a basic principle of sustainable

development. In the case of M.C. Mehta vs. Kamal Nath, 6 while applying the
Polluter Pays Principle, the Supreme Court invoked the Doctrine of Public Trust
Which was founded on the ideas that certain common properties such as rivers,
seashore, forests and the air were held by Government in trusteeship for the free and
unimpeded use of the general public. The doctrine enjoins upon the Government to
protect the resources for the enjoyment of the general public rather than to permit
their use for private ownership or commercial purposes. The Court declared :

"Our legal system – based on English common law – includes the

public trust doctrine as part of its jurisprudence. The State is the
trustee of all natural resources which are by nature meant for

6. (1997)1 SCC 388.

 public use and enjoyment. Public at large is the beneficiary of
the sea-shore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public
use cannot be converted into private ownership."

The Court held that the public trust doctrine is a part of the la w of the land. The
Court further held that M/S. Span Motel would pay compensation by way of cost for
the restitution of the environment and ecology of the area. A show cause notice was
issued to Motel why pollut ion fine, in addit ion, be not imposed on it. This public
trust doctrine in our country has grown from Article 21 of the Constitution."

In the case of M.C. Mehta vs. Kamal Nath, 7 the Apex Court decided the
question as to the determination of the quantum of poll ution fine. The Court
observed

"Any disturbance of the basic environment 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.

In order to protect the "life", in order to protect "environment"

and in order to protect "air, water and soil" from pollution, this
Court, through its various judgments has given effect to the
rights available, to the citizens and persons alike, under Article
21 of the Constitution."

The Court further observed that pollution was a civil wrong. By its very nature, it
was "a Tort committed against the communit y as a whole." The Court held :

"A person, therefore, who is guilty of causing pollution has to

pay damages (compensation) for restoration of the environment
and ecology. He has also to pay damages to those who have
suffered loss on account of the act of the offender. The powers of
this Court under Article 32 are not restricted and it can award
damages in a PIL or a Writ Petition… In addition to damages
aforesaid, the person guilty of causing pollution can also be held

7. AIR 2000 SC 1997.

 liable to pay exemplary damages so that it may act as a deterrent
for others not to cause pollution in any manner."

This approach of the Supreme Court is based on Polluter Pays Principle. The Court
further observed that the Water (Prevention and Control of Pollut ion) Act, 1974, the
Air (Prevent ion and Control of Pollution) Act, 1981 and the Environment
(Protection) Act, 1986 contemplated the taking of the cognizance of the offences by
the Court. Thus, a person guilt y of contravent ion of provisions of any of those Acts
which constituted an offence had to be prosecuted for such offence and in case the
offence was found proved "then alone" he could be punished with imprisonment or
fine or both. Thus, though the Court, in proceedings under Article 32 or Article 226
of the Constitution, could grant compensat ion to vict ims of environmental pollution,
pollut ion fine could not be imposed "without there being any trial and without there
being any finding" that such person was guilt y of the offence under the Act. The
Court, therefore, withdrew the notice for payment of pollut ion fine and issued a
fresh notice to M/S. Span Motel to show cause why in addit ion to damages,
exemplary damages be not awarded for interfer ing with the natural flow of river.
Later, the Court, after considering the reply of M/S. Span Motel, imposed Rs. 10
lakhs as exemplary damages. 8

It is heartening to note that on March 17, 2004, the United States

Federal Court, in a historic decision, he ld that it could direct Union Carbide to clean
the soil and ground water beneath the plant which was closed down as a result of
leak of Oleum gas in December, 1984 causing death of many people subject to the
declaration by Government of India that it had no object ion. This decision conforms
to the polluter pays principle which is the basic principle of environmental
jurisprudence. This decision has given us an opportunit y to extend this principle to
mult inat ionals that operate outside the borders of the cou ntries where they are
registered. However, this requires a co -operative spirit between all countries of the
world.

8. See M.C. Mehta vs. Kamal Nath, (2002) 3 S CC 653.

 In the case of M.C. Mehta vs. Union of India, 9 on 6 th May, 2002, the
Apex Court directed the Chief Secretary, Government of Haryana to stop all
mining activities in an area upto 5 kilometers from the Delhi -Haryana border in
the Haryana side of the ridge and also in the Aravalli hills . The question to be
considered was whether the order should be made absolute or vacated or modified.
In other words, whether the mining act ivit y in this area should be banned altogether
or permitted and if so, on what conditions it should be permitted. In this context, the
Court reiterated :

"…the right to live is a fundamental right under Article 21 of the

Constitution and it includes the right to enjoyment of pollution -
free water and air for full enjoyment of life.

The most vital necessities, namely, air, water and soil, having
regard to right of life under Article 21 cannot be permitted to be
misused and polluted so as to reduce the quality of life of
others."

Resorting to the concept of sustainable development, the Court observed that the
development and the protection of environment are not enemies . If without
degrading the environment, it is possible t o carry on development activit y applying
the principles of sustainable development then the development has to go on. A
balance has to be struck. However, cases may arise when if an activit y is allowed to
go ahead, there may be irreparable damage to the environment and if it is stopped,
there may be irreparable damage to economic interest. The Court observed :

"In case of doubt, however, protection of environment would

have precedence over the economic interest."

Regarding the mining activit y, the Court stated that the grant of permission for
mining and approving mining plan by the Ministry of Mines, Government of India,

9. AIR 2004 SC 4016.

"by itself" 10 did not mean that mining operation could commence. A mining lease
holder was also required to comply wit h other statutory prov isions such as the
Environment (Protection) Act, 1986, etc. The measures required to be taken by the
lessee for the protection of environment had to be "strict ly complied." The Court
held that a complete ban of mining operations on forest land was not nece ssary so
long as it could be cont inued on the basis of sustainable development and on
compliance of stringent condit ions. However, in case despite stringent conditions,
there was an adverse irreversible effect on the ecology, the total stoppage of mining
activit y in the area could also be considered because the Aravalli hill range had to be
protected "at any cost." The Court further observed that violat ion of any of the
conditions would entail the risk of cancellation of mining lease. The Court was so
cautious that instead of lift ing the ban, it adopted the safer course of first to
constitute a Monitoring Committee to inspect the mines, get a report from it and
only thereafter consider on lift ing of ban imposed by the order of the court.

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