RECOGNITION OF INTERNATIONAL ENVIRONMENTAL LAW OBLIGATION UNDER INDIAN CONSTITUTION
– Dr. Vinod Kumar Patidar1
It is interesting to note that natural resources had been stored virtually untouched in the Earth for millions of years. Since the start of the industrialrevolution vast amounts ofthese resources had been exploited within a period of just a couple of hundred years at an unimaginable rates, with all the waste from this exploitation going straight in the environment (air, water, land) and seriously damaging its natural processes2. Although, pollution had been known to exist for a very long time (at least since people started using fire thousands of years ago), it had seen the growth of truly global proportions only since the onset of industrial revolution during 19th century.
Environmental degradation in India has been caused by variety ofsocial, economic, institutional and technological factors. Rapidly growing population, urbanization and industrial activities have all resulted in considerable deterioration in the quality and sustainabilityof the environment. Environmental ethics have also formed an inherent part of Indian religious precepts and philosophy3.
The importance of Judiciary in a democratic setup for protection of life and personal rights can hardly be overestimated. India has a highly developed judicial system with the Supreme Court having plenary powers to make any order for doing complete justice in any cause or matter and a mandate in the Constitution, to all authorities, Civil and Judicial, in the territory of India to act in aid of the Supreme Court. The scope of Writ Jurisdiction of the High Courts is wider than traditionally understood and the judiciary is separate and independent from the executive to ensure impartiality in administration of justice.
In considering the role of judiciary in environmental governance, there are two issues that need to be considered. First is the role of judiciary in the interpretation of environmental law & in law making and second is the capability of jurists to effectively interpret the increasingly cross-linked issues brought to their attention.
The Environment Protection Act 1986 defines environment as “it 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, microorganism and property.”
Besides the physical and biological aspect, “environment” embraces the social, economic, cultural, religious, and several other aspects as well. The environment, thus, is an amalgamation of various factors surroundings an organism that interact not only with the organism but also among themselves. It means the aggregation ofallthe externalconditions and influences affecting life and development of human beings, animals and plants.
POLICY AND LAWS IN ANCIENT INDIA
In ancient India, protection and cleaning up of environment was the essence of Vedic culture. The conservation of the environment formed an ardent article offaith, reflected in daily lives of the people and also enshrined in myth folklore, art, culture and religion. In Hindu theology forests, trees and wildlife protection held a place of special reference.
POLICY AND LAWS IN BRITISH INDIA
In 1860’s, Britain emerged as the world leader in deforestation, devastating its own woods and the forest of Ireland, SouthAfrica and North Eastern United States to draw timber for shipbuilding, iron-smelting and farming. In the early nineteenth century, Britisher’s carried out a fierce onslaught on the sub continent’s forests. The revenue orientation of the colonial land policy also worked towards the denunciation of forests.4
The imperial forest department was formed in1864, with the help of experts from Germany, the country, which was at the time leading European nation in forest management. The first inspector-general of forests, Dietrich Brandish, had been a botanist and recognised benevolint task of checking the deforestation, forging legal mechanism to assert and safeguard states control over the forests etc. It was his dual sense that the railway constituted the crucial watershed with respect to the water management in India & the need was felt to start an appropriate department and for its effective functioning legislation was required to curtail the previously untouched access enjoyed by the rural communities.
POLICY AND LAWS POST-INDEPENDENT INDIA
Indian Constitution, as adopted in 1950, did not deal with the subject of environment or prevention and control of pollution as such until 1976 Amendment. The original text of the constitution under Article 372(1) has incorporated the earlier existing laws into the present legal system and provides that notwithstanding the repeal by this constitution of enactment referred to inArticle 397, but subjected it to the other provisions of the constitution, all laws in force immediately before the commencement of the constitution shall remain in force until altered, repealed or amended by a competent legislature or other competent authority. As a result, even after five decade of independence, plethora of such laws are still in operation without any significant changes to them.
THE PRINCIPLES ON ENVIRONMENT
With a view to protect and improve the environment, different legislations have been made and different regulations, rules have been issued. The Government of India, through its Ministry of Environment and Forest has enacted nationwide comprehensive laws.
1972 Stockholm Declaration affirms that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations…” This shows that it has been internationally recognized that man’s fundamental rights embraces the need to live in an uncontaminated environment but it also puts forth man’s obligation to protect the environment for posterity.
The Supreme Court has laid down “Precautionary Principle” and “Polluter Pays Principle” which are essential features of “Sustainable Development”. These concepts are part of Environmental Law of the country.
“Precautionary Principle” establishes that, a lack of information does not justify the absence of management measures. On the contrary, management measures should be established in order to maintain the conservation of resources. The assumptions and methods used for determination of the scientific basis of the management should be presented.
THE ESSENTIAL INGREDIENTS OF THE PRECAUTIONARY PRINCIPLE ARE :
• Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environment degradation.
• When there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing the measures to prevent environmental degradation.
• The “Onus of Proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.
• Precautionary duties must not only be triggered by the suspicion of concrete danger but also by concern or risk potential.
In M.C. Mehta v. Union of India5 (CNG Vehicle Case)
The supreme court observed that any ‘auto-policy’ framed by the Government must, therefore, of necessity conform to the constitutional principles as well as overriding statutory duties casted upon the Government under the EPA. The auto policy must adopt ‘precautionary principle’ and make informed recommendations which balance the needs of transportation with the need to protect the environment.
The “Polluter Pays” principle came about in 1970’s when the importance of the environment and its protection was taken in world over. It was subsequently promoted by the Organization for Economic Cooperation and development (OECD).
The ‘Polluter Pays’ principle as interpreted by the Court means that the absolute liability for the harmdone to environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
In other words, Polluter should bear the cost of pollution as the polluter is responsible for pollution. This principle demands that, financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which causes the pollution. It may be noted that the polluter pays principle was evolved out of the rule of ‘absolute liability’ as laid down by the apex court in Sriram Gas Leak Case.
THE CONSTITUTIONAL AND LEGISLATIVE MEASURES TO PROTECT THE ENVIRONMENT
To protect and improve the environment is a constitutional mandate. It is the commitment for a country wedded to the ideas of a welfare State. The Indian constitution contains specific provisions for environmental protection under the chapter of Directive Principles of the State Policy and Fundamental Duties. The absence of any specific provision in the Constitution recognising the fundamental right to (clean and wholesome) environment has been set off by judicial activism in the recent times.
Article 48A and 51 (A) (g) : A global adaption consciousness for the protection of the environment in seventies prompted the Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment added Art. 48Ato the Directive Principles of State Policy. It Declares: “the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.
Art. 51A (g): Article 51A (g) states that “to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures”.
The amendments also introduced certain changes in the Seventh Schedule of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list to the Concurrent List. This shows the concern of Indian parliamentarian to give priority to environment protection by bringing it out the national agenda. Although unenforceable by a court, the Directive Principles are increasingly being cited by judges as complementary to the fundamental rights.
In several environmental cases, the courts have guided by the language of Art. 48A. and interpret it as imposing “an obligation” on the government, including courts, to protect the environment.
In L.K Kollwal v. State of Rajasthan, a simple writ petition by citizens of Jaipur compelled the municipal authorities to provide adequate sanitation. The court observes that when every citizen owes a constitutional duty to protect the environment (Art.51A), the citizen must be also entitled to enlist the court’s aid in enforcing that duty against recalcitrant State agencies. Court gave administration six month to clean up the entire city, and dismissed the plea of lack of funds and staff.
The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that certain common properties such as rivers, forests, seashores and air were held by Government in Trusteeship for free and unimpeded use by the general public. Granting lease to a motel located at the bank of the River Beas would interfere with the natural flow of the water and that the State Government had breached the public trust doctrine.
A matter regarding the vehicular pollution in Delhi, in the context ofArticle 47 and 48 of the Constitution came up for consideration in M.C. Mehta v. Union of India (Vehicular Pollution Case). It was held that it is 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 stated that the right to clean air also stemmed fromArticle 21 which referred to right to life. This case 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. Delhi owes its present climatic conditions to the attempt made to maintain clean air.
In M.C. Mehta v. Union of India6 (The Ganga Water Pollution Case), the owners of some tanneries near Kanpur were discharging their effluents from their factories in Ganga without setting up primary treatment plants. The Supreme Court held that the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants.
The Court directed to stop the running of these tanneries and also not to let out trade effluents from the tanneries either directly or indirectlyinto the river Ganga without subjecting the trade effluents to a permanent process by setting up primary treatment.
In a very recent case of T.N. Godavarman Thirumulpad v. Union of India, a case concerning conservation of forests, Justice Y.K. Sabharwal, held : 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 Article 21, which is required to be protected. The Constitution enjoins upon this Court a duty to protect the environment.
Article 246: Art. 246 of the Constitution divides the subject areas of legislation between the Union and the States. The Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines and inter-state rivers. The State List (List II) includes public health and sanitation, agriculture, water supplies, irrigation and drainage, fisheries. The Concurrent list (List III) (under which both State and the Union can legislate) includes forests, protection ofwildlife, mines and minerals and development not covered in the Union List, population control and factories. Froman environmental standpoint, the allocation of legislative authority is an important one – some environmental problem such as sanitation and waste disposal, are best tackled at the local level; others, like water pollution and wildlife protection, are better regulated uniform national laws.
Article 253: Art. 253 of Constitution empowers Parliament to make laws implementing India’s international obligations as wellas anydecision made at an international conference, association or other body. Art. 253 states : Notwithstanding anything in the foregoing provision provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. Tiwari Committee in 1980 recommended that, a new entry on “environmental Protection” be introduced in the concurrent list to enable the centre to legislate on environmental subjects, as there was no direct entry in the 7th schedule enabling Parliament to enact comprehensive environment laws.
Article 14 and Article 19 (1) (g) : Art. 14 states: “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The right to equality may also be infringed by government decisions that have an impact on the environment. An arbitrary action must necessary involve a negation of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal permission for construction that are contrary to development regulations.
Article 21: Art. 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
In Maneka Gandhi v. Union of India, Supreme Court while elucidating on the importance of ‘right to life’ under Art. 21 held that the right to life is not confined to mere animal existence, but extends to living with basic human dignity (Bhagwati J.). Similarly while interpreting Art.21 in Ganga Pollution Case as discussed before, Justice Singh justified the closure of polluting tanneries observed that “we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life. Health and ecology have greater importance to the people.”