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CONSTITUTIONAL OBLIGATION - ENVIRONMENTAL PROTECTION

CONSTITUTIONAL OBLIGATION - ENVIRONMENTAL PROTECTION


The Constitution of India, which is the supreme. Law of the land, has imposed an obligation to protect the natural environment both on the State as well as the Citizens of India. Part IV of the Constitution called the Directive Principles of State Policy has imposed certain fundamental duties on the State to protect the environment. Part IV A of the Constitution has imposed a fundamental duty on every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures".

OBLIGATIONS ON THE STATE Article 39 (b) of the Constitution of India provides that the State shall direct its policy to see "that the ownership and control of the material resources of the community are as distributed as best to sub serve the common good." The term `material resources of the community' embraces all things, which are capable of producing wealth for the community.' The expressions 'material resources of the community' has been held to include such resources in the hands of the private persons and not only those, which have already vested in the State.2

The Constitution of India through Article 42 has directed the State to endeavor to secure just and human conditions of work.

Under Article 47 it imposes a duty upon the State to raise the level of nutrition and the standard of living of its people and improve public health.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed, "The State will realize that Article 47 makes it a paramount principle of governance that step are taken for the improvement of public health as amongst its primary duties,"

Under Article 48 directs the State to take to organize agriculture and animal husbandry on modern and scientific lines. In particular, it is directed to take steps for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other much and draught cattle .

Of all articles, Article 48A which was added to the Constitution by the Constitution of India 42nd Amendment Act in the year 1976, expressly directs the State to "to protect and improve the environment and to safeguard forests and wild-life"


The Madras High Court in M.K.Janardhanam v. District Collector, Tiruvallur served that "the phrase used (in Articles 48A and 51A) is 'protect and improve' which implies that the phrase appears to 'contemplate affirmative govern-mental action to improve the quality of the environment and not just to preserve the environment in its degraded form." The State is also required under Article 49 "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.' Article 51 provides that the State should strive to "foster respect for international law and treaty obligations".

Most important of all articles is Article 37 which declares that the directive principles contained in Part IV of the Constitution are 'fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." In all the above articles, the expression 'State' is used and one should under-stand the meaning of the word 'State'. The framers of the Constitution of India chose to adopt the same definition for the word 'State' as defined in Article 12 for the purpose of Part IV of the Constitution as wells. This was done to enable the judiciary to interpret it so widely to bring all agencies and instrumentality of the State under the scope of the word 'State'. The object was to direct all such agencies and instrumentality of the State to apply the directive principles in making laws. The Supreme Court in M.C. Mehta v. Union of India6 held that "these directive principles (Articles 39 (b), 47 and 48A) individually and collectively impose a ty on the State to create conditions to improve the general health level in the country, and to protect and improve the natural environment.

The Word State as defined in Article 12 and as interpreted by the Supreme Court through various cases decided by it means and includes:

(1) The executive and the legislature of the Union,

(2) The executive and the legislature of the State,

(3) The judiciary'

(4) Local authorities like Municipalities, District Boards, Panchayats, Townships, Corporations, Improvement Trusts, etc., and


(5) Other authorities which are agencies or instrumentality of the States By a generous interpretation, of the word 'State', the Supreme Court has now included many institutions including societies registered under the Societies Registration Act, 18609; a Government Company is incorporated under Sec,617 of the Companies Act, and every 'Other authority' as a 'State' if it is an instrumentality of the State. The wide interpretation given to the expression 'State' by the Supreme Court is to widen the scope and amplitude of the Fundamental Rights and the Directive Principles of State Policy. Hence, now it has become the fundamental duty of all ‘authorities’; coming under the purview of Article 12 to fulfil the obligations contained Part IV of the Constitution of India.


The Legislature, both the Union and the State, to fulfil their fundamental obligations contained in the Constitution, have enacted a number of legislation to protect and improve the natural environment and to safeguard forests and wild-life.


The Executive, both the Union and the State, to fulfil their constitutional obligations, have made sufficient number of rules to effectively implement the laws made by the legislatures to protect and improve the natural environment and to safeguard forests and wildlife.


The Judiciary, to fulfil its Constitutional Obligations was and is always pre-pared to issue 'appropriate' Orders, 'directions and writs against those persons who cause environmental pollution and ecological imbalance. This is evident from a plethora of cases decided by it starting from the Ratlam Municipality Case". Vardhichand12 provoked the consciousness of the Judiciary to a problem, which had not attracted that much attention.' The Supreme Court responded with equal anxiety and raised the issue to come within the mandate of the Constitution. In this case, the question related to the court's power to force public bodies under public duties to implement specific plan in response to public grievances, which related to environmental pollution,


The Supreme Court in Ratlam-Municipality case observed: "Why drive com-mon people to public interest 'action? Where Directive Principles have found statutory expression in Do's and Don'ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the, plea, of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a. new enforcement dimension not merely through some of the provisions of the Criminal Procedure Code but also through activated, tort consciousness. The officers in charge and even 'the elected representatives will' have to face the penalty of the law if when the Constitution and follow-up legislation direct them to do are defied or denied wrongfully".


The Supreme Court in Aural litigation and Entitlement Kendra v. State of U.P.13 ordered the closure of. Certain lime stone quarries causing large scale pollution and adversely" affecting the safety and health of the people living in the area. Likewise, the Supreme Court in M.C. Mehta v. Union of India" directed an industry manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighbor hood, to take all necessary safety measures before reopening the plant. In yet another case filed by Mr. M.C. Metha it ordered the chisure of all tanneries, which were found to be polluting the river Ganga". The Supreme Court on another occasion"' directed the Mahapalika to get the dairies shifted to a place outside the city and arrange for removal of wastes accumulated at the dairies so that it may not reach the river Ganga. In the same case, it also directed the Mahapalika—

I. to lay sewerage line wherever it was not constructed,

2. To construct public latrines and urinals for the use of poor people free of charge,

3, to ensure that dead bodies or half burnt bodies are not thrown into the River Ganga and

4. To take action against the industries responsible for pollution.

In the Delhi industries pollution case", the Supreme Court ordered for the shifting of 168 hazardous industries operating in Delhi as they were causing danger to the ecology.

In S. Jagannath v. Union of India's the Supreme Court has held that setting up of shrimp culture farms within the prohibited areas and in ecologically fragile coastal areas have adverse effect on the environment, coastal ecology and economics and hence, they cannot be permitted to operate.

The Supreme Court in A:P. Pollution Control Board II v. M. V. Nayudu' referred to the Resolution of the UNO" passed during the United Nations Water Conference in 1977 to which India is a party and observed that "the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens."

2 "All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs."

What is stated above is only a very small portion of the contributions made by the Judiciary to protect and improve the environment and to safeguard forests and wildlife.

OBLIGATIONS ON THE PART OF CITIZENS

The constitution under part IV A, Article 51 A (g) has declared that it shall be the fundamental duty of a citizen of India " to protect and improve the natural Environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures’:

Article 51A (j) has imposed on citizens another fundamental duty "to strive to-wards excellence in all spheres 'of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement".


The Rajasthan High Court in Vijay Singh Puniya v. State of Rajasthan observed that "any person who disturbs the ecological balance or degrades, pollutes and tinkers with the gifts of the nature such as air, water, river, sea and other elements of the nature, he not only violates the fundamental right guaranteed under Article 21 of the Constitution but also breaches the fundamental duty to protect environment under-Article 5-1A (g). This observation was made in a writ petition filed against dyeing and printing units, which were discharging effluents and he polluting the water sources used' for agricultural and drinking purposes.

The question before us is whether we as, citizens of India have fulfilled our part of obligation imposed by the constitution of India? The answer is "No".

In Plato's phrase, " We are still -like cave men, with our backs turned to the light, watching the shadows on the' wall ".

Dr. Konrad Adenauer, the form-ex-Chancellor of West Germany, remarked that in creating man, God had hit upon a very poor compromise. If he had made man more intelligent, he could have known how to behave; if he had made matt less intelligent, he would have been easier to govern23. Since man does not know how to behave, the necessity arises of legal responsibilities to prevent liberty from degenerating into license. It, is true that eternal vigilance is the price of liberty. But it is true, in even a deeper sense, that eternal responsibility is also part of the price of liberty. Excessive authority, without liberty, is intolerable; but excessive liberty without authority and without responsibility, soon becomes equally intolerable. 24 De Tocqueville made the profound observation that "liberty cannot stand alone but 'must be paired with, a companion virtue, liberty and morality; liberty and law; liberty and justice; liberty and the common good; liberty and civic responsibility,""

Paras Diwan, in his "Environment Administration, Law and Judicial Attitude" has pointed out that the people in India love pollution to such an extent that they cannot live without it, because, "traditionally we are a pollution loving nation. We pollute air by bursting crackers on Dussehara, Diwali and on the occasions of marriages and other festivals. We pollute our rivers by disposing of dead bodies and all other human and other wastes. We take out so much from wood from our trees for fuel that in many areas trees have become scarce. We are lovers of cleanliness and, therefore, broom out all of our household and other waste on the public streets. Any space 4 ow enough for us to ease; we are country which believes in open latrines. Municipalities are oblivious of their duties and all city wastes, human and' industrial effluents are allowed to flow in open drains and to 'flood the streets. We are equally fond of noise pollution. Godman's voice must be heard by all, day and night, and our Ratjagas, Akhandpaths and azan must use loudspeakers and amplifiers; no one should be deprived from hearing God and Godmen's voice-and Gods too are far away beyond' the hell and heaven. Our voice must reach them; otherwise our spiritual needs will remain administered. We are not less noisy in our secular matters. Our marriage and funeral processions must be accompanied by bands, twists and Bhangras.

While this being one view, there also exists another view that traditionally we are nature loving people. We worshipped nature in all forms: the sun, forests, trees, rain, air, rivers, etc. Though it will not be relevant here, to argue whether we, the people of India are nature loving people or pollution loving people. Whatever it may be we will have to certainly agree that the unprecedented in-crease in the number and activities of human, since the industrial-revolution and particularly in the later part of this century, have given rise to a deterioration of the environment and depletion of natural resources that threaten the future of the planet Earth.

Though this subject is of everyone's concern, in fact, pollution and Environ-mental Protection has drawn the attention of a very few social conscious people like Vardhichand, M.C.Mehta, Avadash Kaushal, founder of Rural Litigation and Entitlement Kendra, and other NGOs like Kalpavriksh, Kerala Sastra Sahitya Parishad, World Wide Fund for Nature - India (WWF India), Bombay Natural History Society, Narmada Bachao Andolan, CPR Environmental Education. Centre, etc.

In M. K. Janardhanam v. District Collector, Tiruvallur27 the Madras High Court appreciated the petitioner for the efforts taken by him. "Under Article 51A(g) it is the fundamental duty of every one of the citizens of this country to protect and improve the natural environment including forests, lakes, rivers, all other water resources and wild life and to have compassion for living creatures. The petitioner should be complimented for discharging his constitutional obligation by bringing to the notice of this Court at the risk of his personal safety the unimaginable aggression on natural resources by unscrupulous element."

But on the other hand, according to one Survey, majority of the population in India, mostly the poor and the slum dwellers are not even aware of the problem, leave alone the seriousness of the problem.

Various legislative and administrative measures adopted by the. Government both the State and the Central show its serious concern for protecting the environment. Judicial Activism in India provides' impetus to the campaign against pollution. Vardhichand showed the path for people's involvement in the just icing process, without which the system would crumble under the burden of its insensitivity.

Judicial Activism is the hope, but just as to get the butter, churning is essential, similarly its vibrational impact would not be possible so long as no-action status continues due to ignorance of the seriousness of the problem and the obligations imposed by the Constitution of India. While we are commendably concerned with the issue of 'Human rights', we may ask ourselves - are we equally mindful of the paramount need of legal responsibilities?




FUNDAMENTAL RIGHT TO LIVE IN A HEALTHY ENVIRONMENT --JUDICIAL ACTIVISM IN INDIA

The right to live in a clean and healthy environment is not a recent invention of the higher judiciary in India. This right has been recognized by the legal system and by the judiciary in-particular for over a century or so. Tile only difference in the enjoyment of the right to live in a clean and healthy environment today is that it has attained the status of fundamental right the violation of which, the constitution of the India will not permit it was only from late eights and there rights as a fundamental prior to the period as pointed as pointed out earlier the people of the country has enjoyed the right. Not as constituently guarantied fundamental right but a right recognized and enforced by the court of law under different laws like torts, Indian penal code, and civil procedure code. Etc.


In today immerging jurisprudence environmental rights which encompass a group of collective right are described as 3rd generation rights the 1st generation rights are generally political rights such as those found in the international covenant on civil and political rights while 2nd generation rights are social and economical rights as found in the international covenant on economics social and cultural rights.


RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS BASIC HUMAN RIGHTS

Right to life being the most important of all human rights implies the right to live without the deleterious invasion of pollution environmental degradation and ecological imbalance .


There is building up in various countries a concept that rights to healthy environment and to sustainable development a fundamental right implicit in the right to life.


The universal declaration of human rights 1948 has declared that every one has right to life and that every one has right to a standard of living adequate for the health and well being of himself and of his family the international ..



CONSTITUTIONAL OBLIGATION - ENVIRONMENTAL PROTECTION




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