ECOLOGY AND AIR POLLUTION AS A PART OF ARTICLE 21
– Dr. Varsha Upadhyay
Asst. Professor, Indore Institute of Law
– Mr. Vivek Wilson
Asst. Professor, Indore Institute of Law
The Supreme Court of India has made huge contribution in the environmental jurisprudence of this country. SC has entertained maximum number of genuine public interest litigation (PIL) cases under Art. 32 of the Constitution. Even the High Court’s under Art. 226 of the Constitution have played a vital role on the environmental jurisprudence. The Indian Courts have issued various directions environmental writ to develop a vast environmental jurisprudence. Even the Art. 21 of the Constitution of India has also expanded the meaning of the word life in that Article which includes that every person has a right to leave in the healthy environment.
Juristic view in Environmental Issues
If anyone examines the juristic approach in the case which involves the environmental related issues against the construction of the building projects then one can generally conceptualise some juristic approaches under three categories.
I. It can be described as a pro-project approach where the judges tend to stress the latent profit of a particular project or trade activity.
II. It can be described as that of juristic control there has been determinations made by managerial agency and expert with regard to the feasibility of the environmental.
III. It is a rigorous juristic review where it has been examining the environmental blow on particular activities.
The judiciary has to suffice its constitutional obligations where to issue a proper instructions, orders and the writs was against those persons who has caused environmental pollution and disturbed the ecology. The evidence can be taken from the plethora cases which are decided on the basis of Ratlam Municipality Case. This case has aggravated the awareness of the judiciary to see the environmental problem. The Supreme Court has responded with fretfulness and raise that the issue of environment should come within the mandate of the Constitution of India.
Developments of The Environmental Law by The Decision of Supreme Court Rural Litigation and Entitlement Kendra vs. state of U.P. in this case the Supreme Court has given the directions for elimination of open drains and prevention of public seepage by the nearby slum dwellers. This matter was bought up by the way of a criminal appeal. Son in this case the Court has relied upon Art 47 which is the Part IV of the Constitution and which relates to the Directive Principles of state policy. This Article refers to the improvement of public fitness so in this judgment, the Supreme Court has given several directions in the Ratlam Municipality case also which is for the maintenance of public fitness. In this case the court has held that there is threat to ecological balance which is resulting into the decline of the environment and it is threat to right to life also. In other words it can be said that the right to have clean environment was indirectly recognized as an integral part of right to live. This has been followed in the judgment of B.L. Wadhera vs. Union of India and directions were given to the Municipal Corporation of old Delhi and New Delhi, for removal of garbage etc.
The Supreme Court, in the case of Sachidanand Pandey vs. State of West Bengal AIR 1987 SC 1109, has laid down the rules which were like Wednesbury principles which is applied in administrative law. If there is a problem of ecology which is brought before the Court, then the Court is bound to hear, under article 48 and Art. 51A (g) of the Constitution of India. The Court is liable to examine whether appropriate considerations are borne in mind or not. Even the Court may go for further circumstances of the case. Even the Court may also give necessary directions for the ecology. In present scenario the Courts appoint independent experts to test the claims of parties which is based on the basis of the expert advice which is given to the Court.
The Supreme Court has also emphasized the importance of the forest conservation in the Ambica Quarry Works v. State of Gujarat and others, In this case, the petitioner has appealed to the Court that when the State Government has rejected an application for restoration of a mining lease under Section 2 of the Forest (Conservation) Act o f 1980, where the permission is to be obtained by the Central Government for using the forest areas for non-forest purposes. In this the State government has rejected the application of the appellant for restoration of lease on the ground that the land falls under the Reserved Forest area. In the appeal the Supreme Court has centred the question of a proper balance between the need of misuse of the mineral resources lying within forest areas, the protection of ecological balance, and curbing the growing environmental deterioration.
In State of Bihar vs. Murad Ali Khan, AIR 1989 SC, the Supreme Court has been dealing with an appeal which is concerning with the protection to wild life in Kundurugutu Range forest in Bihar. The Supreme Court has quoted from an order issued by Emperor Asoka in the third century BC, that there should be a particularly contemporary ring in the matter of protection of wild life and environment. In the decree it was said that some of the animals should not be killed like parrots, mynas, the arunas, ruddy-geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses and all quadrupleds which are not useful or edible forests must not be burned. The Supreme Court has observed and said by citing the case Damodar Rao Vs S.O., Municipal Corporation that the slow poisoning by the polluted atmosphere is causing an environmental pollution and spoliation which should be regarded as amounting to the violation of Article 21 of Indian constitution.
In the case of Subash Kumar vs. state of Bihar, the Supreme Court has observed that the right to life is a fundamental right under Art 21 of the constitution and it includes the right to enjoyment of a pollution free water and air for the life. If anything creates a hindrance to get such quality of life which is in an derogation of laws of a citizen then there is an Article 32 of the constitution for removing the pollution from water or air, which is, harmful to the quality of life.
In the case of M. C. Mehta V. Shriram Food and Fertilizer Industries and Union of India (Oleum Gas Leak Case -I) the petitioner has filed the writ against the oleum gas leakage and to close down the one of the units of Shriram food and Fertilizers industries which is belonging to Delhi Cloth Mills Ltd. The Court has allowed for restarting the plant which subject to some certain rigorous conditions laid down in the order. But the notable development has been made in Rylands vs. Fletcher and it was modified by the Court , by holding that the enterprises were engaged in a hazardous industry which has poses a potential threat to the health and the safety of the person who were working in the factory and residing in the surrounding areas of that factory, which given an absolute and non-delegable duty to the community which ensure that no harm will results to anyone on the account of hazardous activity though the enterprise must be absolutely liable to compensate for such harm .
The decision which was laid by the Supreme Court in Narmada Bachao Andolan v. Union of India 2000 (10) SCC 664 at p.727 which has clearly said that the sustainable development means what type of development can take place, what can be sustained by nature or ecology with or without alleviation. In Vellore Citizens Welfare Forum v.
Union of India AIR 1996 SC 2715, the Supreme Court has clearly recognized that the precautionary principle as an principle of Indian environmental law. In the case of A.P. Pollution Control Board v. M.V. Nayudu AIR 1999 SC 812, the Court has also discussed about the development of the precautionary principle. In the case of S. Jagannath v. Union of India (Shrimp Culture case), AIR 1997 SC 811, and in the case of Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751., the Court has explained that when there is a state of uncertainty due to lack of something which creates damage to the environment, then, in order to maintain the ecological balance, then balance will be maintained by the industry or the unit which is likely to cause the pollution.”
To figure out, The Supreme Court, in the interpretation of Article 21, has given the environmental jurisprudence in India, by reinforcement of human rights jurisprudence. There are number of decisions which are related to the right to a clean environment, drinking water, and a pollution-free atmosphere, etc. which has been giving the status of indisputable human rights which are the fundamental rights of Indian citizens. The above judgments of the Supreme Court of India also show the broad range of cases which is related to environment and it is decided by the Court from time to time. Some of the judgments of the Supreme Court have been given an original writ petitions which is filed under Art. 32.
• P. Shrivastava Memorial Lecture -? The role of the judiciary in environmental protection by Honble Mr. K.G. Balakrishnan, Chief Justice of India.
• Environmental Governance and Role of Judiciary In India by Geetanjoy Sahu p-24.
• Green Decisions: Summary of some Important Judgments by Bhat Sairam.
• Indian Constitutional Law:- By- Prof. Mp Jain.
• The Right To Information Act,2005: A Handbook:- By- Sudhir Naib.
• Right To Information Act In India:Concepts And Problems:- Ritu Banerjee.
• Ambika Quarry Works v. State o f Gujarat, AIR 1987 SC 1073.
• M.C.Mehta vs. union of India, AIR 1987 SC 965.
• Law Commission of India One Hundred Eighty Sixth Report On Proposal To Constitute Environment Courts p-25
• Law Commission of India One Hundred Eighty Sixth Report On Proposal To Constitute Environment Courts
• The constitution of India
• Environmental Act