CHAPTER-2

HISTORY OF ENVIRONMENTAL DEGRADATION IN INDIA

2.1 Introduction

In India, people have been conscious about environmental pollution and to

take steps not only to prevent it but also to improve natural environment ever since
the dawn of civilization. The damage caused would be minimal and negligible if the
human beings act in such a way, which7 leads to harmony in nature and utilizing the
resources merely for fulfilling the needs and necessities only. It is unfortunate that
greed in the human beings resulted in over exploitation and indiscriminate use of
natural bounties and resources ensuing in irreversible and irreparable damage causing
to the environment India has an ancient traditional philosophy protecting and
promoting environment. India possesses a great diversity of ecosystems, wetlands,
islands, estuaries, oceans, and rich variety of diversified natural greeneries. The
efforts of people in the past century to conserve and preserve natural resources are
exemplary. Many customary and community practices were evolved by the society to
protect the environment. The rapid industrial development, increased population,
urbanization, pollution, deforestation, mismanagement of water resources etc., have
resulted in degradation of environment.

2.2 Protection of Environment in Ancient period

The Sages and Saints of India lived in forest. In the history, people attitude
towards plants, trees, sky, air, water and animals was to keep a sympathetic attitude
towards them. Hindu religion instructed man to show reverence for presence of
spirituality in nature. The flora and fauna, hills, mountains, rivers are worshiped as
symbols of veneration. The cutting of trees, polluting air, water, and land were
regarded as sins and they were to be respected as associated with gods and goddesses.

India possesses a great-diversified ecosystem including forests, wetlands,

islands, estuaries, parks, landscapes, oceans and rich blend of variety of natural
surroundings. Many customary or community practices were evolved by the ancestors
to protect the environment. The efforts of the people in local community in
conservation of natural resources quite deserve to eulogize. In consequence to rapid
 13

industrialization, sophisticated science and technological advancement, increased

population, urbanization, deforestation, indiscriminate utilization of natural resources
etc., the traditional practices to preserve and conserve natural resources have not been
taken seriously by the people in modern times which have resulted in environmental
degradation. The phenomenon of environmental protection is not a new concept to the
human civilization. The efforts of people in ancient times for improving the
environment can be traced out from early Indian history. Indians have understood the
complete significance of environment for their survival on earth. It was considered
that the primary duty of the individual is to protect the nature. The people used to
worship the gods and goddesses associated with their objects of birds and animals.
Hinduism said to be dealt with various aspects of nature and ways of worshipping the
nature. The plants like tulsi, peepal, birds like eagle, the animal like lion are
worshipped in Hindu culture from centuries associated with reverence equivalent to
gods and goddesses. Hindu Gods and Goddesses have animals and birds as their
vahanas, examples like Eagle, Peacock, Rat, and Lion etc. The bird eagle called
garuda said to be the vehicle of lord Vishnu , the lion, the king of the forest, vehicle
of goddess Durga, the Rat, vehicle of lord Ganesh, the peacock, the vehicle of lord
subramanyashwar swami etc,. The tulasi plant is worshipped in each and every house
considered as a part of religious practice in Hindu culture.

The Hindu Religion inculcated spirit of duty and reverence for the presence of
holiness and harmony in nature. The trees, animals, hills, mountains, rivers are
worshiped as symbols of reverence. The cutting of trees, polluting air, water, and land
were regarded as sins of elements of nature were to be respected and treated as gods
and goddesses.

The five elements of nature were recognized as ‘panchabhutas1 and people

considered that they are divine incarnations. Long before ecological concerns became
a global phenomenon, India had developed a pristine tradition of the sensible use and
judicious conservation of all environmental resources useful to human beings. The
Indians were first amongst other countries to show their reverence to natural elements
with religious beliefs. Such endless devotion to the nature continued unabated for the
past many generations.
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The priceless and valuable natural resources are not only protected but
conserved. Conservation of water, protection of forests and wild life considered as
the important factors for the local inhabitants. Water was considered as the most basic
and essential element for the survival of people. The people developed notion of
hygiene and a strong belief in the purificatory effects of water. Like water, trees were
equally revered in the Hindu culture. The enthusiastic study reveals that the human
body is nothing but a collection of the five elements of nature: Earth, Water, Fire, Sky
and Air associated with the gods and goddesses like Indra (the god of rains), Varuna
(the god of water), Agni (the god of fire) Prithvi (the goddess of earth) sky (the god of
heaven) etc. Not only the human body but these elements were the basis of all the
lives on earth. Punishments were prescribed for causing injury to animals and plants.
Water was considered the most basic and essential element for the people. The people
developed notion of hygiene and a strong belief in the purificatory effects of water.
Like water, trees were equally revered in the Hindu culture. Such endless devotion to
the nature continued unabated for centuries to come. The priceless and valuable
natural resources were protected and conserved. According to Manusmruti one should
undergo penance for killing of animals and spoilage of Plant Diversity, causing injury
to Biodiversity were considered as an offence2. Manu imposed various conditions on
humankind to protect animals and social discouragement against animal cruelty.3 The
Mouryan period was perhaps the most glorious chapter of Indian History from
environment protection point of view. It was in this period we find detailed
perspective legal provisions followed in Kautilya Arthasastra.4 The Arthasastra also
prescribed punishments for causing pollution and uncivic sanitation.5
In medieval period though there have been instances of establishment of
magnificent gardens and fruit orchards and green park by the moghal rulers
around their places and along banks of rivers, they did not have any definite
policy to protect the forest or wild life. By and large they merely considered forest
were to be a good source of some revenue.6

During the time of the British, there were few laws which are proved to be
inadequate. The advent of British rule in India ushered in an era of plunder of natural
resources.7The British government expanded the powers of the state by providing for
reserved forest and imposed penalties for any violation of provision under the
Forest Act 1927. The Forest Act of 1927 embodied land use policy whereby the
 15

British government could acquire forestland, villages, forest, protected forest, and
other common properties resources8. Besides, the forest laws the British government
partially regulated water pollution and wild life.

The Indian Penal Code enacted in 1860 imposed fine on the person who
voluntarily fouls the water of any public spring or reservoir.9 The Code also imposes
penalty on negligent acts with poisonous substance that endangered to life10 and
public nuisance.11 The laws related to controlling the air pollution were introduced
such as Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisance Act of
1912. Madras government enacted the forest wild life statute for the protection of wild
elephants in 1873. The Central Government enacted wild birds and animal protection
Act in 1912.12 Though it is often criticized that the British government adopted
legislative measures towards earning only revenue themselves, it should be regarded
that it is a primary step towards environmental protection and conservation of natural
resources in British India.

2.3 Protection of Environment in Independent India

After India became independent, the Constitution of India, which came into
force in 1950, had few provisions regarding environmental administrative directions.

Article 39(b) provides that

Certain principles of policy to be followed by the State -- The state

shall, in particular, direct its policy towards securing--
(a)…
(b) That the ownership and control of the material sources of the
Community is so disturbed as best to sub serve common good;
Article 47 provides that,
Duty of the State to raise the level of nutrition and the standard of
living and to improve public health---The State shall regard the
rising level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties ….”
Article 48 direct that,
Organization of agriculture and animal husbandry---The State
shall endeavor to organize agriculture and animal husbandry on
modern and scientific lines and shall, in particular, takes steps for
 16

preserving and improving the breeds, and prohibiting slaughter of the

cows and calves and other milch and draught- cattle
Article 49 directs that,

Protection monuments and places and objects of national

importance-- It shall be the obligation of the state 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 as
the case may be.
Article 48-A13 provides that,

Protection and improvement of environment and safeguarding of

forest and wild life---The state shall endeavor to protect and improve
the environment and to safeguard the forest and wild life of the
country.

2.3.1 The Concept of Duty and Article 51-A (g)

The duty to protect environment is not new to Indian culture. In Hindu
tradition, the term dharma stands for concept of duty. It is the sum and substance of
all religious, moral, social and legal duties. The sacred religious Book of Hindu
people the Bhagwad Gita also narrate the importance of duty in the following Shloka:
“Karmanye vadhikaraste ma phaleshu kadachana”.
The rights lie in by performing one’s own duties and not in seeking its fruits.
The word karma speaks of that man has the right to perform actions and should not
show his interest in its outcome. The fundamental duties enshrined in an Article 51-A
are of great importance as they signifies the intrinsic and inherent part of Indian social
and cultural values. These duties are intended for all general public and therefore, are
treated as global in their application.
The Constitution (Forty Second Amendment) Act 1976,14 has added a new
part IV_A dealing with “Fundamental Duties” of the citizens in Indian Constitution. It
is interesting to note that the chapter on fundamental duties is in agreement with
article 29(1) of Universal Declaration of Human Rights 1948. Article 51-A(g)
specifically deals with the fundamental duty with respect to environment. It provides
that:

It shall be the duty of every citizen of India --to protect and improve
the natural environment including forests, lakes, rivers, and wild life,
and to have compassion for living creatures
 17

Article 51-A (j) provides that,

It shall be the duty of every citizen of India-- to strive towards

excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavor and achievement.
The Indian Constitution is regarded as one of the rare Constitution where
specific provisions were incorporated imposing an obligation on the part of the state
as well as citizen to protect and improve the environment.

2.4 The Indian Constitution and Environment

The recent achievement of contemporary law in India is the recognizing the

environmental problems by the Supreme Court of India. Prior to the year 1980 there
were few legislations about control of pollution in India but much little had been done
to make pollution control and it is not a main concern of the national issues. The
courts have been successful in developing certain principles such as principle of
absolute liability. Sustainable Development, which were instrumental in making the
problem of environmental degradation as a priority in the state agenda. Justice
Krishna Iyer speaking through Supreme Court in a landmark judgment in Municipal
Council, Ratlam v. Vardhichand.15 Said in eloquent words:

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.16

In this case, the Municipal Council of Ratlam has failed to take steps to
maintain roads in a safe, sanitary and hygienic condition in a residential locality. The
only justification of the municipal board was that it has paucity of funds and no
money to maintain the road. The court has noted that the matter had been pending for
more than seven years. It deliberately read into the situation a constitutional directive
for the court and observed as the result of the 42nd amendment to the Constitution the
Directive Principles categorically asserted that the need for a healthy environment and
accordingly indicated the do’s and don’ts needed for a healthy environment.

The necessary proposition was that the courts have a duty to relentlessly
enforce law. It was resulted in opening the doors of apex courts to interfere in
enforcement of environmental legislative enactments. The outcome of Ratlam case is
 18

that in the following 25 years there has been an increase in judicial verdicts from the
apex court that have formally set the environmental problems on a constitutional
guidelines. It has been repeatedly held by the Supreme Court that the right to life and
safe environment is implicit in article 21 of the Indian Constitution.17 The rationale
for the acceptance of the right as a fundamental right is not difficult to imagine.

18
The Supreme Court in K.M. Chinnappa v.Union of India pertinently stated
that 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 enjoyed19 In Subhash Kumar v. State of Bihar,20 the Supreme Court
observed:

Right to live is a fundamental right under Article 21 of the Constitution

and it includes the right of enjoyment of pollution free water and air
for full enjoyment of life. If anything endangers or impairs that quality
of life in derogation of law, 'a citizen' has right to have recourse to
Article 32 of the Constitution for removing the pollution of water or air
which may be detrimental to the quality of life.21
In Virendra Gaur v. State of Haryana, the Supreme Court observed

Enjoyment of life and its attainment including, their right to live

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 the life cannot
be enjoyed….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 human and healthy environment.

2.4.1) Fundamental Right to a Healthy Environment

The fundamental right to a Healthy environment is not specifically guaranteed

by the Constitution. Part III of the Constitution does not specifically enumerate any
such right. The Supreme Court in a series of cases has recognized the right to Healthy
environment. It is understood that the right to Healthy environment is a part of the
right to life and personal liberty. The recognition by the Court of a fundamental right
to Healthy environment is a creation of the process of widening the scope of Article
22
21 of the Constitution which have begun with Maneka Gandhi case, while
elucidating the importance of the right to life under Article 21, the Court held that the
 19

right to life is not confined to mere animal existence, but extends the right to live with
basic human dignity.

The liberal interpretation of the Article 21 has opened the new approach to
incorporate the right to a healthy environment within the ambit of the Constitution.
Bhagwati J. in Maneka Gandhi case observed:

It is indeed difficult to see on what principle we can refuse to give its

plain natural meaning to the expression ‘personal liberty’ as used in
Article 21 and read it in a narrow and restricted sense so as to exclude
those attributes of personal liberty which are specifically dealt with in
Article 19. We do not think that this would be a correct way of
interpreting the provisions of the Constitution conferring fundamental
rights. The attempt of the Court should be to expand the reach and
ambit of fundamental rights rather than attenuate their meaning and
content by a process of judicial construction”23
Bhagwati. J had an opportunity in widening the scope of article 21, and extend
the protection of Article 21 to the right to healthy environment in Rural Litigation and
Entitlement Kendra, Dehradum v. State of U. P.24 In this case the question was in
respect of the closure of certain limestone quarries in the region of the town of
Mussoorie. The court noted that the case was relating to issues of environment and
ecological balance. The court observed that the situation involved is that of conflict
between development and conservation. It emphasized the need for reconciling the
two in the larger interest of the country. The Court observed

This would undoubtedly cause hardship to them, but it is a price that

has to be paid for protecting and safeguarding the right of the people to
live in healthy environment with minimal disturbance of ecological
balance and without avoidable hazard to them and to their cattle,
homes and agricultural land and undue affection of air, water and
environment.25
Bhagwati J. apparently did not refer an issue whether right to healthy
environment was incorporated in right to life and personal liberty but proceeded to
issue a remedy on a writ under article 32 devoid of establishing that article 32 was
available to the petitioners.

In Shri Sachidanand Pandey v. State of W. B. Chinappa Reddy,J.,26 after

referring articles 48A and 51A(g) of Indian Constitution should have considered
whether the right to healthy environment was a fundamental right but it was avoided
and held
 20

‘When the Court is called upon to give effect in the Directive Principle
of State Policy and the Fundamental duty, the Court is not to shrug its
shoulders and say that priorities are a matter of policy and so it is a
matter for the policy making authority. The least that the Court may do
is to examine whether appropriate considerations are borne in mind
and irrelevancies excluded. 27
The Supreme Court in Shri Sachidanand Pandey case has ignored the basic
problem that a remedy under article 32 could not be provided either for enforcement
of the directive principle or for fundamental duty. The basic issue whether violation of
a fundamental right was taken place or not has not been determined.

It is the duty of the State to create awareness of the environmental issues and
education .The Supreme Court have accepted that the syllabus is to be prepared by
National Council for Educational Research Training for introduction in all schools in
the country28

2.4.2 Merging of Directive Principles into Fundamental Rights

The Indian Constitution contains specific Provisions for environmental

protection under Part IV Directive Principles of State Policy and fundamental Duties.

A crucial extension was taken place in Keshavananda Bharti v. State of

Kerala29 wherein the merging of the directive principles of state policy into the
fundamental rights, which was guaranteed by, part III of the Constitution. Mathew J
speaking the relationship said:

“I think there are rights which are inherent in human beings because
they are human beings – whether you call them natural right or by
some other appellation are immaterial. As the preamble indicates, it
was to secure the basic human rights like liberty and equality that the
people gave unto themselves the Constitution and these basic rights are
an essential feature of the Constitution; the Constitution was also
exacted by the people to secure justice, political, social and economic.
Therefore, the moral rights embodies in Part IV of the Constitution are
equally an essential feature of it, the only difference being that the
moral rights embodied in Part IV are not specifically enforceable as
against the State by citizen in a court of law in case the State fails to
implement its duty but, nevertheless, they are fundamental in the
governance of the country and all the organs of the State, including the
judiciary, are bound to enforce those directives. The Fundamental
Rights themselves have no fixed content; most of them are merely
empty vessels into which each generation must pour its content in the
light of its experience. Restrictions, abridgment, curtailment, and even
abrogation of these rights in circumstances no visualized by the
 21

Constitutional makers might become necessary; their claim to

supremacy or priority is liable to be overborne at particular stages in
the history of the nation by the moral claims embodied in Part IV. 30

The courts have applied provisions of article 48-A and 51-A (g) to involve
fundamental right to healthy environment as a part of the right of life. At first glance,
it appears something innovative but it is an innovative approach to interpret the
fundamental rights in the light of directive principles. It is actually a move forward to
elevate environmental issues to the status of fundamental rights instead of referring
and take assistance of directive principles.

2. 4.3 The Constitutional Provisions

The forefathers of the constitution of India did not envisage adding any direct
provision concerning protection of natural environment and it does not contain the
word “environment”.

2.4.4) Relevant Provisions of the Constitution of India

Part III

Article 21. Protection of life and personal liberty: No person shall be deprived of
his life or personal liberty except according to procedure established by law.

Part IV

Directive Principles of State Policy

Article.48-A31 Protection and improvement of environment and safeguarding of

forests and wild life: The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country.

PART IV-A 32

Fundamental Duties

51-A. Fundamental duties: It shall be the duty of every citizen of India…

(g) To protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;
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PART IX 33

The Panchayats

243 G: Powers, authority and responsibilities of Panchayats

Subject to the provisions of the Constitution, the Legislature of a State may,

by law, endow the Panchayat with such powers and authority as may be necessary to
enable them to function as institutions of self – government and such law may contain
provisions for the devolution of powers and responsibilities upon Panchayat, at the
appropriate level, subject to such conditions as may be specified there in, with respect
to –

(a) The preparation of plans for economic development and social justice;

(b) The implementation of schemes for economic development and social justice
as may be entrusted to them including those in relation to the matters listed in
the Eleventh Schedule.

PART IX A34

The Municipalities

243W. Powers, Authority and Responsibilities of Municipalities, etc. Subject to the

provisions of this Constitution, the Legislature of State of a State may, by law,
endow–

(a) The Municipalities with such powers and authority as may be necessary to
enable them to function as institution of self – government and such law may
contain provision for the devolution of power and responsibilities upon
Municipalities, subject to such condition as may be specified therein, with
respect to –
(i) the preparation of plans for economic development and social justice ;
(ii) The performance of functions and the implementation of schemes as
may be entrusted to them including those in relation to the matters
listed in the Twelfth Schedule.
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(b) The Committees with such powers and authority as may be necessary to
enable them to carry out the responsibilities conferred upon them including
those in relation to the matters listed in the Twelfth Schedule.

Eleventh Schedule 35 (Article 243G)

(1) Agriculture, including agricultural extension.

(2) Land improvement, implantation of land reforms, land consolidation and soil
conservation.
(3) Minor irrigation, water management and watershed development.
(4) Animal husbandry, dairying and poultry.
(5) Fisheries.
(6) Social forestry and farm forestry.
(7) Minor forest produce.
(8) Small-scale industries, including food processing industries.
(9) Khadi, village and cottage industries.
(10) Rural housing.
(11) Drinking Water.
(12) Fuel and fodder.
(13) Roads, culverts, bridges, ferries, waterways and other means of
communication.
(14) Rural electrification, including distribution of electricity.
(15) Non – conventional energy sources.
(16) Poverty alleviation programme.
(17) Education, including primary and secondary schools.
(18) Technical training and vocational education.
(19) Adult and non – formal education.
(20) Libraries.
(21) Cultural activities.
(22) Markets and fairs.
(23) Health and sanitation, including hospitals, primary health centers and
dispensaries.
(24) Family welfare.
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(25) Women and child development.

(26) Social welfare, including welfare of the handicapped and mentally retarded.
(27) Welfare of the weaker sections, and in particular, of the Scheduled Castes and
the Scheduled Tribes.
(28) Public distribution system.
(29) Maintenance of community assets.
Twelfth Schedule
(Article 243 w)
1) Urban planning including town planning.
2) Regulation of land use and construction of buildings.
3) Planning for economic and social development.
4) Roads and bridges.
5) Water supply for domestic, industrial and commercial
Purposes.
6) Public roads, sanitation conservancy and solid waste
Management.
7) Fire services.
8) Urban forestry, protection of the environment and promotion of
Ecological aspects.
9) Safeguarding the interests of weaker sections of society, including the
Handicapped and mentally retarded.
10) Slum improvement and up gradation.
11 Urban poverty alleviation.
12) Provision of urban amenities and facilities such
as parks, gardens, playgrounds.
13) Promotion of cultural, educational and aesthetic aspects.
14) Burials and burial grounds, cremations, cremation grounds
and electric crematoriums.
15) Cattle Pounds, prevention of cruelty to animals.
16) Vital statistics including registration of births and deaths.
17) Public amenities including street lighting, parking lots, bus
stops and public conveniences..
18) Regulation of slaughterhouses and tanneries.
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2.4.5 The Constitutional (Forty-Second Amendment) Act, 1976

The Indian judiciary has shown first time by expanding the scope of Article 21
by including it right to clean and healthy environment. This accomplishment is
remarkable in so far as even some of the developed countries have yet to achieve such
distinction. The Constitution of India did not contain express provision for protection
of environment. After historical Stockholm Conference on environment in 1972 and
environmental consciousness, Indian Government added under the Constitutional
(Forty-Second Amendment) Act. 1976, articles 48-A and 51-A (g) for protection of
environment. The provisions are not enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and
it shall be the duty of the state to apply these principles in making laws.36

As far as the dissimilarity between Article 48A and Article 51-A (g) is
concerned, the former uses the expression “environment” and the latter uses the
expression “natural environment”. It seems to be that the difference is only in form
and not in substance. Rivers and wild life and used the expression ‘natural
environment’ It excludes many other in the field of pollution such as noise, light,
radiation, hazardous substances, etc. Further Art 51 (A) (g) imposes no obligation on
‘’non citizens’.

The legislative relations between Union and the States are governed by the
provisions contained in Part XI of the Constitution. Parliament can make laws with
respect to the matters contained in the Union List37 of the Seventh Schedule and State
Legislature with respect to matters contained in State List.38 But Parliament and the
Legislature of any State are competent to make laws with respect to any of the matters
contained in the Concurrent List39 of the Seventh Schedule40. Parliament has power to
make laws in respect of any matter for any part of territory of India not included in a
State, notwithstanding that such matter is a matter enumerated in the State List.41
According to Article 248, residuary powers of legislation are also vested in
Parliament.42

Article 252 of the Constitution enables Parliament to legislate for two or more
States by consent. Article 253 also empowers the Parliament for exclusive legislation.
It provides:
 26

‘Notwithstanding anything in the foregoing provisions of this article,

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’.
The related entries in the Union List are 10, 13 and 14. Hence, Article 253
empowers the Central Government to legislate even on the matters enumerated in the
State List. The Parliament enacted the Air (Prevention and Control of Pollution) Act,
1981 in view of this Article. Preamble of Air Act states that, it was enacted to
implement the decisions reached at the 1972 Stockholm Conference insofar as they
related to the preservation of the quality of air and control of air pollution. As far as
environmental legislation is concerned, centre can legislate easily by virtue of Article
248,252 and 253. However, the duty to manage all Central enactments is a difficult
task. Hence, Article 258 empowers the Union to confer powers etc., on States in
certain cases.43

The National Commission to Review the Working of the Constitution was

constituted in 200144 to examine, in the light of the experience of the past fifty
years, as to how best the Constitution can respond to the changing needs of efficient,
smooth and effective system of governance and socioeconomic development of
modern India within the frame work of Parliamentary democracy and to recommend
changes, if any, that are required in the provisions of the Constitution without
interfering with its basic structure or features.

The Commission in its final report recommends the incorporation of 'right to

safe drinking water, prevention of pollution, conservation of ecology and sustainable
development in a new Article 30-D. Every person shall have the right:

1) To safe drinking water;

2) To an environment that is not harmful to one's health or well-being; and

3) To have the environment protected, for the benefit of present and future
generations so as to:

a) Prevent pollution and ecological degradation;

b) Promote conservation; and
c) Secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social development.
 27

This provision is a progressive provision giving due importance to safe

drinking water, pollution control, conservation of ecology, and sustainable
development. Vital provisions regarding climate change are, however, missing.
The Ministry of Environment and Forests (MoEF) has not, so far, shown any
interest in incorporating these provisions.

2.4.6 Environmental protection and Fundamental Rights

In recent times, the judiciary, in India has extended to new dimensions, the
concepts ‘right to life’ and procedure established by law in Art 21. The Supreme
Court, in various cases, interpreted the right to life and personal liberty to include the
human right to healthy environment

The important feature of the right life is the right to livelihood. The Supreme
Court recognized the right to livelihood in the case of Olga Tellis v. Bombay
Municipal Corporation.45 The petitioners, a journalist and two pavement dwellers,
challenged a government scheme to expel the pavement dwellers from Bombay to
their original places of residence. The bone of the contention of the petitioners’
argument was that the right to life includes the right to livelihood; their eviction
would be equal to deprivation of their life and was accordingly unconstitutional.
Accepting the petitioner’s argument, the Court held

“Deprive a person of his right to livelihood and you shall have

deprived him of his life … The State may not, by affirmative action, be
compellable to provide adequate means of livelihood or work to the
citizens. But, any person, who is deprived of his right to livelihood
except according to just and fair procedure established by law, can
challenge the deprivation as offending the right to life conferred by
Art. 21.”46
In Banawasi Seva Ashram v. State of U. P. 47. The Supreme Court on the basis
of letter received from Banawasi Seva Ashram provided safeguards to protect tribal
forest dwellers those who were being ousted from forest land by the National Thermal
Power Corporation Limited for the Super Thermal Power Project. The Court issued
directions safeguarding and protecting ghe Adivasis and backward persons who were
expelled from their forest land by National Thermal Power Corporation. The Court
allowed attainment of the land only after the National Thermal Power Corporation
agreed to provide certain Court-approved facilities to the forest dwellers.48 In this case
 28

even though the Court did not directly place any reference to article 21 however, the
Court was impliedly treating the right of the Adivasis under Article 21. Hygienic
environment is considered as an essential part of the right to a healthy life. It is not
possible to enjoy the right to life without healthy environment. The courts laid
emphasis on the duties of the State and citizens in articles 47, 48–A, and 51 – A (g) of
the Constitution of India. In K. M. Chinnappa v. Union of India49 explaining the
concept of right to life in article 21 of the Indian Constitution the Supreme Court held:

Enjoyment of life and its attainment including their right to life with
the 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.50
The right to healthy environment provided in the MC Mehta group of cases
decided in the eighties. Right to life has been interpreted in a different way. In the
first famous case of M.C.Mehta v Union of India51 also known as oleum gas leakage
case, due to leakage of olem gas one advocate practicing in court was died and
affected the health of others. Public spirited environmental conscious lawyer filed the
case against the alleged leakage of olem gas from a factory. The leakage of gas
causing direct threat to the life of the workers and general Public in and around
Shriram Fertilizers and India private limited engaging in manufacturer of hazardous
Products. The Supreme Court held that states had the powers to place restrictions on
carrying of hazardous industrial activities for protecting the right of the people to live
in a healthy environment.
In the second case of M. C. Mehta v Union of India52 the court has modified
some of the conditions which were laid down by the Supreme Court in the first M. C.
Mehta case for the restarting of the industries which were earlier ordered to be closed.
The third case M. C. Mehta v Union of India53 dealt with determining the
amount of compensation payable to the victims affected by the leakage of oleum gas
from the industry. The Court held that:

“where an enterprise is engaged in hazardous or inherently dangerous

activity and results to anyone on account of an accident in the
operation of such hazardous or inherently dangerous activity resulting,
for example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exceptions
 29

which operate vis-à-vis the tortious principle of strict liability under

the rule in Rylands v. Fletcher” 54
55
The fourth M. C. Mehta v Union of India also known as Ganga water
pollution case or Kanpur tanneries case dealing with leather tanneries which were
polluting the holy river Ganga by allowing the effluents into the rivers. In this case,
the court held that the pollution of River Ganga is affecting the life, health and
ecology of Indo-Gangetic plains. The Supreme Court held that:

We are conscious that the closure of tanneries may bring unemployment, loss
of revenue, but life, health and ecology have greater importance to the people.56
57
In the fifth M. C. Mehta v Union of India he Supreme Court has given
directions to Mahapalika to get the industries shifted to a place outside the city. The
court also held that:

Immediate action should be taken by the Kanpur Nagar Mahapalika to

construct sufficient number of public latrines and urinals for the use of
the poor people in order to prevent defecation by them on open
land…the practice of throwing corpses and semi burnt corpses into the
river Ganga. This practice should be immediately brought to an end.
The cooperation of the people and police should be sought in enforcing
these restrictions. Steps shall be taken by the Kanpur Nagar
Mahapalika and the Police authorities to ensure that dead bodies or
half burnt bodies are not thrown into the river Ganga. 58
The directions were held to be applicable and extended all other Mahapalika’s
and Municipalities which have jurisdiction over the areas through which river Ganga
has been flowing. The Supreme Court has declared that the right to environment is
implicit in Article 21. In Chhetriya Pardushan Mukti Sangarsh Samati v State of
Uttar Pradesh,59 Sabyasachi Mukherjee CJ observed:

Every citizen has a fundamental right to have the enjoyment of quality

of life and living as contemplated in Article 21 of the Constitution of
India.60
In Subhash Kumar v State of Bihar61 KN Singh J observed that

‘Right to live is fundament al right under art.21 of the Constitution and

it includes the right to enjoyment of pollution free water and air for
full enjoyment of life’ 62
Laws relating to environment may sometimes come into disagreement with
other laws which the courts will have to observe and resolve. In Indian Handicrafts
Emporium v. Union of India 63 the 1991 Amendment to the Wildlife (Protection) Act,
 30

1972 was challenged. In the opinion of the court, the prohibition of import of ivory is
absolutely justified under article 19(6) of the Constitution. Balancing the social
interest and the fundamental rights, a total prohibition is justified. The court observed:

‘The primal object for which dealing in ivory imported from Africa
had been prohibited was to see that while holding the stock, the people
may not deal in Indian ivory which may be procured from illegal
killings of Indian Elephant. The Amending Act indirectly seeks to
protect Indian Elephant and to arrest their further depletion….Wild life
forms part of our cultural heritage. Animals play a vital role in
maintaining ecological balance. The amendment have been brought
for the purpose of saving the species from extinction as also for
arresting depletion in their numbers caused by callous exploitation
thereof’ 64

2.4.7 Open space and parks:

Open spaces are considered as the one of the most essential places for
people to breath fresh air and other recreational purposes in most of the metropolitan
cities in India. The judiciary is conscious about the right to health of the people. In
Bangalore Medical Trust v. Muddappa.65 The Supreme Court disapproved an attempt
to convert a public park into a nursing home. The Supreme Court held:

A private nursing home cannot be a substitute for Public Park. No

town planner would prepare a blue print without reserving a space for
it. Emphasis on open air and greenery has multiplied and the city or
town planning or development acts of different states require even
private owners to leave open space in front and back for lawn and fresh
air. 66
In M. C. Mehta v Union of India 67 the state government proposed to convert
an area earmarked as zonal park in Agra Development Master plan to light
industrial area. The Supreme Court had issued directions to the State Government for
not converting the park area into a light industries area and take immediate action for
removal of any encroachments in the area.68

2.4.8 Vehicular Pollution

In MC Mehta v Union of India69 the Supreme Court held that Articles 39(e),
47 and 48–A collectively cast a duty on the state to secure the health of the people,
improve public health and protect and improve the environment. On this principle to
protect the health of the public of state of Delhi, the Court issued several guidelines to
 31

phase out grossly polluting old vehicles and non–CNG buses. The court rightly
discarded the government’s request that CNG was in short supply. The court
observed:

Conferring economic advantage upon industry by making available

cheap gas in preference to the need for supplying gas for
environmental reason is inconsistent with settled constitutional
position. 70

2.4.9 Noise Pollution

In recent times, the problem of noise pollution has become more serious with
the rapid industrialization, urbanization, and modern civilization resulting in vicious
effects on human health.

In Church of God (Full Gospel) in India v KKR Majestic Colony Welfare

Association71 the Supreme Court dealt with the question of noise pollution vis-à-vis
religious freedom under Articles 25 and 26 of the Constitution. A complaint was
made that prayers in the using loudspeakers, drums and other sound producing
instruments caused noise pollution and nuisance to the residents of the colony. The
appellants argued that the higher noise level was not due to playing the musical
instruments within their prayer hall, but was solely caused by vehicles plying outside.
The court found that the directions of the high court were lawful. In a civilized
society, every person is entitled to enjoy his natural right to calmness without being
interfered by noise pollution. The Court observed

In our view, in a civilized society in the name of religion, activities

which disturb old or infirm persons, students, or children having their
sleep in the early hours or during day-time or other persons carrying on
other activities cannot be permitted….Similarly, old and infirm are
entitled to enjoy reasonable quietness during their leisure hours
without there being any nuisance of noise pollution72

2.5) Human Rights and Environment

It is said that the Human Rights are those essential conditions of life without
which man cannot be at his best .These are inherent in all individuals irrespective of
their case, religion, sex etc. On the other hand, meaning of the term Environment is
very wide in the sense that takes into account all those factors, which directly or,
indirectly have bearing upon the natural surroundings of human beings
 32

In 1972, United Nations Conference on the Human Environment held at

Stockholm has considered that the environment concerns are an important issue
before the whole world. The Stockholm Declaration was considered an important
landmark in creating right to environment for the international environmental concern
the ‘right to a healthy environment” has emerged as a natural, indisputable and
fundamental right of a man. Stockholm Declaration which is known as Magna Carta
of the environment adopted by the International Conference on Human Environment
in June, 1972. It proclaims that:
Men are both creature and moulder of his environment, which
gives him physical sustenance and affords him the opportunity for
intellectual, moral, social and spiritual growth. In the long and
tortuous evolution of the human race on this planet a stage has been
reached when, through the rapid acceleration of Science and
Technology, man has acquired the power to transform his environment
in countless ways and on an unprecedented scale. Both aspects of
man’s environment, the natural and the man-made, are essential to his
well-being and to the enjoyment of basic human rights-even the right
to life itself.73 The protection and improvement of the human
environment is a major issue which effects the well-being of peoples
and economic development throughout the world, it is the urgent desire
of the peoples of the whole world and the duty of all Governments74

The Stockholm Declaration was considered as an important landmark in

creating right to environment for the international environmental concern. Article 24
of African Charter on Human and Peoples’ Rights, 1981, declares that:
All people shall have the right to a general satisfactory environment
favorable to their development.

The most recent International Conference on environmental issues held at Rio

De-Janerio in Brazil in June 1992 is another landmark in developing Right to
Environment as a Human Right also proclaims under Principle 1 states that:

Human beings are at the centre of concerns for sustainable development.

They are entitled to a healthy and productive life in harmony with nature.

The African charter of Economic Rights and Duties of States proclaimed in 1974 also
states that:
The protection, preservation and the enhancement of the environment for the
present and future generations is the responsibility of all states.75
 33

Right to healthy environment as a basic human right recognized in Universal

declaration of Human Rights 1948. It declares under Article 25 that:
everyone has right to life and every has right to a standard of living
adequate for the health and well being of himself and of his family.
Article 11 of the international covenant on economic social and cultural rights 1966
declares that:
The state parties to the covenant recognized the right of every one to
an adequate standard of living for himself and his family and to the
continuous improvement living conditions.
Article 6 of the international covenant on Civil and Political rights 1966. Proclaims
that
Every human being has the inherent right to life and this right shall be
protected by the law.

2.6 Right to Environment as a Third Generation of Human Rights

The idea of third generation of Human Right was introduced as a theoretical
concept, by distinguished French lawyer, Karel Vasak. He led the idea of Human
Rights form a basic concept to an advance conception of natural rights. The Third
Generation Human Rights considered both collective rights as well as individual right.
Human Rights emerged as an individual right against the state. Solidarity rights are
treated as collective rights similar to right to environment. The subject of solidarity
rights are the individuals, the local and regional bodies. The foundation of recognition
of the Human Rights of individuals to a healthy and decent environment is the quest
of new world order.
Universal Declaration of Human Rights laid down the general principles of
international law recognized by civilized States. At the philosophical level, the rights
of individuals, groups and non-governmental entities have been set forth in the
Declaration, but no legal obligations have been imposed on States to refrain from
certain act harming the human environment. Notwithstanding the fact that several
provisions in the Universal Declaration of Human Rights deal with related areas
namely, Right to health and well being, and right to proper working condition, there is
no substantial evidence the right to a pure and healthy environment was conceived
formulating it a fundamental Human Right.
In spite of the introduction of Articles 48A and 51A in the Constitution of
India in 1976, they remained as lifeless letters until 1980 when the apex Court in a
 34

land mark judgment in Ratlam Municipality case76 held that the state cannot escape
the duty under Directive Principles of State Policy to provide healthy environment.
Judicial recognition of environmental rights was achieved in India through the
mechanism of Public Interest Litigation. The judicial innovation of Public Interest
Litigation by the Supreme Court boosted the confidence of the public-spirited citizens
and environmental organizations.
Rural Litigation and Entitlement Kendra,Dehradun v.State of Uttar Pradesh
77
can be said to be the pioneer of the new trend. When the lime stone quarries in the
Mussories Hills created imbalance to ecology and hazard to healthy environment, the
Supreme Court ordered the quarrying activities to be closed down.
The Courts in India have been relying on Articles 48A and 51A (g) of the
Constitution to remedy the malady. However, the most important contribution of the
Indian courts was to bring environmental protection within the well-established
fundamental right i.e. Right to life under Article 21 of the Constitution. Article 21
mandates that “no person shall be deprived of his life or personal liberty except
according to the procedure established by law.”
2.7 Difference between Human Rights and Right to Healthy Environment

Universal Declaration of Human Rights was formulated in 1948. Before 1948,

the undesirable impact of environmental damage was not much felt by the people. At
that time industrialization and growth of economy were the most important concern
of the Nation. In the pursuit for economic development, environmental protection
accepted as a lesser priority. The environmental protection was considered only as a
secondary importance.

The international environmental law intended at protecting environmental

rights of man during the pre-Stockholm period was primarily restricted to the right to
life. The UN Convention on Civil and Political Rights 1966 provided that ‘every
human being has the inherent right to life'. The UN Covenant on Economic, Social
and Cultural Rights 1966, guaranteed the rights to satisfactory standard of living and
to enjoy the highest attainable standard of health. In consequence of the growing
concern for environmental protection the subsequent international agreements has
given ever-increasing importance to environment.
 35

The Rio Declaration 1992 is humankind's most recent opportunity to save the
world from many disasters. It declares that Human beings are at the centre of
concerns for sustainable development. They are entitled to a healthy and productive
life in harmony with nature.78 The right to development must be fulfilled so as to
equitably meet the developmental and environmental needs of present and future
generations.79 In order to achieve sustainable development, environmental protection
shall constitute an integral part of the development process and cannot be considered
in isolation from it..80
States shall cooperate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the earth’s ecosystems. In view of the different
contributions to global environmental degradation, states have common but
differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable development in
view of the pressures their societies place on the global environment and of the
technologies and financial resource they command.81 The State should effectively
cooperate o discourage or prevent the relocation and transfer to other states of any
activities and substances that cause severe environmental degradation or are found to
be harmful to human health.82 National authorities should endeavor to promote the
internationalization of environmental costs and the use of economic instruments,
taking into account the approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting international
trade and investment.83 Indigenous people and their communities, and other local
communities, have a vital role in environmental management and development
because of their knowledge and traditional practices. States should recognize and
duly support their identify, culture and interests and enable their effective
participation in the achievement of sustainable development84
Healthy environment as a human right increasingly began to find a place in
certain regional treaties. Article 24 of the African Charter on Human and Peoples’
Right 1981, specifically provides that:

All people have the right to a general satisfactory environment

favorable to their development.

Article 24 of the Convention of the Rights of the Child 1989 recognizes that:
 36

Right to combat disease taking into account of the dangers and risks of
environmental pollution
European Convention on Human Rights 1950 and the European Social Charter 1961
are the essential international conventions on human rights, which were deals with
Human Rights.

Universal Declaration of Human Rights was proclaimed in 1948. Before 1948,

the detrimental or consequential effects of environmental damage were not much felt
by the people in the world. In those times, industrialization and growth of economy
are the most important concern of the Nation. In the quest for economic development,
environmental protection received lesser attention and irrelevant concern.

The international environmental law proposed for protecting environmental

rights of man during the pre-Stockholm period was essentially limited to the right to
life. The United Nation Covenant on Civil and Political Rights 1966 provided that
‘every human being has the inherent right to life’. The United Nation Covenant on
Economic, Social and Cultural Rights 1966, guaranteed to reasonable standard of
living and to enjoy the highest attainable standard of health.
The difference between human rights and right to Healthy Environment is
clearly spelt out by the Supreme Court. In Andhra Pradesh Pollution Control Board v
MV Nayudu,85 the Supreme Court observed that
Environmental concerns arising in this Court under Article 32 or under
Article 136 or under Article 226 in the High Courts are, in our view, of
equal importance as Human Rights concerns. In fact, both are to be
traced to Article 21 which deals with fundamental right to life and
liberty. While environmental aspects concern ‘life’, human rights
aspects concern ‘liberty’. In our view, in the context of emerging
jurisprudence relating to environmental matters, as it is the case in
matters relating to human rights, it is the duty of this Court to render
Justice by taking all aspects into consideration. 86

REFERENCES

1 Panchabhutas in Sanskrit means “Five elements of Nature(Prakriti) viz 1) Earth or Prithvi. 2) Fire
or Agni. 3) Water or Jal, 4) Sky or Akash 5) Wind or Vayu
2 Sachidanand Pandhey.et.al Environmental Laws of Manu: A Concise Review. Journal of Human
Ecology of HumaEcology.Vol, 19. Jan 2006. Page.9-10.
3 Ibid. at 10-11.
4 Kailash Thakur, Environmental Protection Law and Policy in
 37

India,(2005) P.104
5 Ibid. at 105.
6 Ibid. at 107
7 Ibid. at 108
8 See chapter III Village Forest and chapter IV Protected Forest
under the Indian Forest Act.1927.
9 see Section:277
10 see Section:269
11 see Section:268
12 see Shyam Diwan & ArminRosencranz, Environmental Law and Policy in India(2007) .P.31
13 Added by the 42 Amendment Act 1976.
14 The 42ndAmendment Act 1976 is significant from the point
of Environment Protection. It added Articles 48-A in Part IV
and Article 51-A(g) in Part IV-A.
15 AIR 1980 SC 1622
16 Ibid. at 163
17 See Municipal Council Ratlam v. Vardhichand, AIR 1980 SC 122 , Subhash Kumar v. State of
Bihar AIR1991 SC 420 at 424 Virendra Gaur v. State of Haryana (1995) 2 SCC 57 at 580-581
Vellore Citizen's Forum v. Union of India (1996) 5 SCC 647at 661 M.C.Mehta.v.Union of India
AIR 1988 SC1037at 1048
18 AIR2003 SC 724
19 Ibid.
20 (1991)1 SCC 598
21 Ibid.at 604
22 AIR 1978 SC 597
23 Ibid. at 621
24 AIR 1985 SC 652
25 Ibid. at 656.
26 AIR 1987 SC 1109
27 Ibid. at 1115
28 M.C.Mehta.v.Union of India.(2005) 10 SCC 217..
29 AIR 1973 SC1461
30 Ibid
31 Article 48-A was inserted by Constitution (Forty-second
Amendment) Act, 1976. Sec.10 (w,e.f.3-1-1977)
32
Inserted by Constitution (Forty-second Amendment) Act, 1976. . Sec.11(w,e.f.3-1-1977)
33
Inserted by Constitution (Seventy-third Amendment) Act, 1992. Sec.2 (w,e.f.24-4-1993
34
Inserted by Constitution (Seventy fourth Amendment) Act, 1992. Sec.2 (w.e.f. 1-6-1993)
35
Added by the Constitution (Seventy third Amendment) Act, 1992. Sec.2 (w.e.f. 24-4-1993
36
Article 37
37
Article 246(1)
38
Article 246(3)
39
Article 246(2)
40
The Constitution(Forty–second Amendment) Act, 1976, added the entries
17A,17B,and 20A on “forests ”, “protection of wild animals and birds”, and “
Population control and family planning ”respectively to Concurrent List, the
former were in the State List.
41
Article 246(4)
42
Article 248 reads:
(1) Parliament has exclusive power to make any law with respect to any
matter not mentioned in the Concurrent List or State List. (2)Such power
shall include the power of making any law imposing a tax not mentioned in either of those Lists.
43
Article 258 provides:
(1) Notwithstanding anything in this Constitution, the President may, with the consent of the
Government of a State, entrust conditionally or unconditionally either to that Government or to its
officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament, which applies in any State may notwithstanding that it, relates to a
matter with respect to which the Legislature of the State has no power to make laws, confer powers and
 38

impose duties, or authorizes the conferring of powers and the imposition of duties, upon the State or
officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or
officers or authorities thereof, there shall be paid by the Government of India to the State such sum as
may be agreed, or in default of by Chief Justice of India, in respect of any extra costs of administration
incurred by the State in connection with the exercise of those powers and duties.
44
See The Report of the National Commission to Review the Working of the Constitution and
Environmenatal Protection, 2001
45
AIR 1986 SC 180
46
Ibid. at 194
47
AIR 1987 SC 374
48
Ibid. at 376
49
AIR 2003 SC 724
50
Ibid. at 731
51
AIR 1987 SC 965
52
AIR 1987 SC 982
53
AIR 1988 SC1086
54
Ibid. at 1099
55
AIR 1988 SC1037
56
Ibid. at 1048
57
AIR 1988 SC1115
58
Ibid. at 1127
59
AIR 1990 SC 2060
60
Ibid. at 2062
61
AIR 1991 SC 420
62
Ibid. at 424
63
AIR 2003 SC 3240
64
Ibid. at 3253,3255
65
AIR 1991 SC 1902
66
Ibid. at 1916
67
AIR 2002 SC 3696
68
Ibid. at 3699
69
AIR 2002 SC 1696
70
Ibid. at 1705
71
AIR 2000 SC 2773
72
Ibid. at 2774
73
See the Preamble Stockholm Declaration on the Human Environment.1972. paragraph 1
74
See the Preamble Stockholm Declaration on the Human Environment.1972. paragraph 2
75
See. Article 24
76
AIR 1980 SC 1622
77
AIR 1995 SC 652
78
Principle 1
79
Principle 3
80
Principle 4
81
Principle 7
82
Principle 14
83
Principle 16
84
Principle 22
85
AIR 1999 SC 812
86
Ibid.