env project.docx

8/9/2019 env project.docx

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Introduction

In India, environment was hailed highly in the ancient and medieval eras but till 1976 there

were no major legislations relating to environmental protection. It was the Stockholm

on!erence on "nvironment and #evelopment which e$erted great in!luence on

environmental policymaking leading to an amendment o! the onstitution, passage o!

important legislations such as the %ater &'revention and ontrol o! 'ollution( )ct, 197* and

the )ir &'revention and ontrol o! 'ollution( )ct, 19+1 and creation o! institutions such as

entral and State 'ollution ontrol oards !or implementing the provisions o! the )cts.

-he hopal gas tragedy in 19+* !urther triggered the passage o! comprehensive environment

legislation in 19+6 and 'ublic iability Insurance )ct in 1991. esides this the principle o!

social justice runs through and through the onstitution and the ourts apply this principle

while deciding environmental matters. y way o! judicial activism 'art III o! the onstitution

was interpreted widely by /on0ble udges like '.2. hagwati, 3uldip Singh, 4.5. 3rishna

Iyer, and /.5. 3hanna who recognied the third generation rights0 &environmental rights( as

a constitutional mandate and applied them remarkably. Indian constitution, in this sense, is

truly uni8ue in having such provisions in its !old.


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Preamble

)t the very outset, the preamble o! the onstitution o! India provides that our country is

based on socialist:1 pattern o! society where the State pays more attention to the social

problems than on any individual problems. -he basic aim o! socialism is to provide decent

standard o! li!e to all:, which can be possible only in a pollution !ree environment. 'ollution

is one o! the social problems and the state is re8uired under the Supreme law to pay more

attention to this social problem and march towards the avowed aim o! just social order. ; -his

object o! the preamble is re!lected clearly and in speci!ic terms in 'art I4 o! the onstitution,

dealing with directive principles o! state policy.

FEDERAL SYSTEM OF GOVERNMENT


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!ishing.@ -hus, the subjects which have interBterritorial environmental impact, are under the

legislative jurisdiction o! the 'arliament so that they are better regulated by uni!orm national

laws.

-he State list contains 66 subjectBmatters over which the State egislatures o! di!!erent States

have the e$clusive power o! legislation subject to their territorial limitation. -he subjects

mentioned in the State list, inter alia, include public health C sanitation, hospitals and

dispensaries, agriculture, ponds, water supply, irrigation and drainage.*

-he oncurrent ist contains ?; subject areas over which both 'arliament and State

legislature, o! di!!erent States have the jurisdiction to make the laws. -he subjects mentioned

in the oncurrent ist, inter alia, include !orests, protection o! wild animals and birds,

population control and !amily planning, minor ports, !actories, and boilers.? -hus, the subjectB

matters, the environment impact o! which has local as well as national bearing, are le!t to be

tackled by the entre as well as States.

Role of Panca!at and Munici"alitie#

-he onstitution &Seventy third )mendment( )ct 199; and the onstitution &Seventy !ourth

)mendment( )ct 199; have given a onstitutional status to the panchayats and the

Dunicipalities respectively. )rticle ;*@B provides or the establishment o! intermediate and

district levels. )rticle ;*@B< authorises the legislature o! State to endow the 'anchayats with

such powers and authority as may be necessary to enable them to !unction as institution o!

sel!Bgovernment. -he "leventh Schedule along with other matters contains !ollowing maters

which are directly or indirectly related to environment like, agriculture, soil conservation,

water management and watershed developmentE !isheriesE social !orestry and !arm !orestryE

minor !orest produceE drinking waterE health and sanitationE and maintainace o! community

assets.

-he matters which are related to environment in the twel!th Schedule may be enumerated as

!ollowsB

# ntries o' !,,9,1",1#,1*,"" to #+ and " to o% the nion list

* ntries o' ,!,"*,"!,1 and "* o% the &tate list

ntries o' 1-A, 1-., "+-A, #1, #! and # o% the Concurrent /ist'


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=rban planning including town planning regulation o! land use water supplyE public health,

sanitation, conservancy and solid waste management, urban !orestry, protection o! the

environment and promotion o! ecological aspectsE provision o! urban amenities such as park

grounds E cremation grounds and electric crematoriumsE prevention o! cruelty to animals

regulation slaughter houses and tanneries.

-hus it is evident that the onstitution imposes the duty to protect and preserve the

environment in all the three tiers o! the


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embraces the protection and preservation o! nature0s gi!ts without which li!e cannot be

enjoyed. -here can be no reason why practice o! violent e$tinguishment o! li!e alone should

be regarded as violative o! )rticle ;1. -he slow poisoning by the polluted atmosphere caused

by environment pollution and spoilage should also be regarded as violation o! article ;1:.1G

Similarly many /igh courts have observed that environmental degradation violated the

!undamental right to li!e.11

#iscussing the nature and restrictions to be imposed on noise pollution, the Supreme ourt

has observed that H)nyone who wishes to live in peace, com!ort and 8uiet within his house

has a right to prevent the noise as pollutant reaching him. 2o one can claim a right to create

noise even in his own premises which would travel beyond his precincts and cause nuisance

to neighbours or others. )ny noise which has the e!!ect o! materially inter!ering with the

ordinary com!orts o! li!e judged by the standard o! a reasonable man is nuisance. /ow and

when a nuisance created by noise becomes actionable has to be answered by re!erence to its

degree and the surrounding circumstances including the place and the time.:1;

Supreme ourt talking about the need !or balance between environmental restrictions and

development stated that Hthe adherence o! sustainable development principle is a sine 8ua

non !or the maintenance o! the symbiotic balance between the rights to environment and

development. 5ight to environment is a !undamental right. An the other hand right to

development is also one. /ere the right to sustainable development0 cannot be singled out.

-here!ore, the concept o! sustainable development0 is to be treated an integral part o! li!e0

under )rticle ;1.1@

1+ T 7amodar;ao 2' &''0'C'


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I! anything endangers or impairs the 8uality o! li!e in derogation o! laws, a citien has the

right to have recourse to )rticle @; o! the constitution !or removing the pollution o! water or

air which may be detrimental to the 8uality o! li!e. 1*

5ight to e8ualityF

)rticle 1* o! the onstitution guarantees to every person the right Hnot to be denied e8uality

be!ore the law or the e8ual protection o! the laws. -he possibility o! in!ringement o! this

)rticle by a government decision having impact on the environment cannot be ruled out.

)rticle 1* strikes at arbitrariness because an action that is arbitrary must necessarily involve a

negation o! e8uality.:1? -hus, permission !or contractions that is contrary to town planning

regulation by the municipal authority may be challenged. Similarly, )rticle 1* may be

invoked to challenge governmental sanction o! projects having adverse impact on the natural

environment and where such sanctions involve arbitrary considerations.

reedom o! tradeF

)rticle 19&1( &g( o! the onstitution guarantees to all citiens o! India, the right to practice

any pro!ession or to carry on any occupation or trade or business. -he !reedom however, isnot uncontrolled. -he aggrieved industrialist may resort to )rticle 19 in case his trade and

business interests are a!!ected by the action o! governmental agencies in the name o! the

environmental protection. )s environmental regulation grows more stringent and its

en!orcement becomes more vigorous, industrial challenge to agency action is likely to

increase. ourts will then need to balance environmental interests with the !undamental right

it carry on any occupation, trade the !undamental right to carry in any occupation, trade or

business guaranteed in )rticle 19&1( &g(. 4arious standards have been prescribed by the

ay


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)rticle *+)F 'rotection and improvement o! environment and sa!eguarding o! !orests and

wild li!e -he State shall endeavour to protect and improve the environment and to sa!eguard

the !orests and wild li!e o! the country. -he parliament had considerable debate over the

wording o! the dra!t )rticle *+B ). Several amendments were moved in both the houses o! the

'arliament. /.D. Seervai has correctly pointed outF )rticle *+B) re!lects an increasing

awareness o! people all over the word o! the need to preserve the environment !rom pollution,

especially in urban areas. Smoke, industrial waste, deleterious e$haust !umes !rom motor cars

and other combustion engines are injurious to the health and wellBbeing o! the people and

!oul the atmosphere. -he preservation o! !orests and their renewal by a!!orestation has long

been recognised in India as o! great importance both with re!erence to rain!all and to prevent

erosion o! the soil by depriving it o! !orests which protect it. -he preservation o! wild li!e is

looked upon as necessary !or the preservation o! ecological balance0. )rticle *+B) rightly

emphasises on the !act that the State should try not only to protect but to improve the

environment.16

)rticle @9&e(, *7 and *+B) o! the #irective 'rinciples o! State 'olicy have a de!inite bearing

o! environmental problems. -hey, by themselves and collectively impose a duty on the State

to secure the health o! the people, improve public health and protect and improve the

environment.

"nvironmental pollution may damage the monuments o! national importance, the protection

o! which is a duty o! the State under )rticle *9 o! the onstitution. )rticle *9 o! the #irective

'rinciples o! State 'olicy provides !or the obligation o! the State to protect monuments,

places and objects o! national importance. In the -aj case17 the Supreme ourt o! India seems

to have got inspiration !rom )rticle *9 while protecting the -aj Dahal, a monument protected

under the )ncient Donuments and )rchaeological Sites and 5emains )ct, 19?+, !rom

harm!ul Industrial emissions originating in and around )gra.

)rticle ?1&c( directs the State to !oster respect !or international law and treaty obligations in

the dealings o! organised peoples with one another. -here!ore, in view o! the range o!

international treaties law and treaty obligations in )rticle ?1 &c(, read to conjunction with the

speci!ic treaty provision, may also serve to strengthen the hands o! proBconservation judge.

1!


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&rit 'uri#diction and Public Intere#t Liti$ation#

Ane o! the most innovative parts o! the onstitution is that the %rit urisdiction is con!erred

on the Supreme ourt under )rticle @; and on all the /igh ourts under )rticle ;;6. =nder

these provisions, the courts have the power to issue any direction or orders or writs, including

writs in the nature o! habeas corpus, mandamus, prohibition, 8uo warranto and certiorari,

whichever is appropriate. -his has paved way !or one o! the most e!!ective and dynamic

mechanisms !or the protection o! environment, that is, 'ublic Interest itigations.

or e$ample, in Subhash 3umar v. State o! ihar,1+ a petition under )rticle @; by way o!

public interest litigation was !iled seeking a writ or direction preventing alleged pollution o!

the okaro river water !rom the sludgeJslurry discharged !rom the washeries o! the -ata Irondischarged !rom the washeries was posing risks to the health o! people living in the

surrounding areas and had aggravated the problem o! pure drinking water. It was alleged that

the sludge or slurry gets deposited on the agricultural land which is absorbed by the land

leaving on the top o! the soil a carbonaceous !ilm, which adversely a!!ects the !ertility o! the

land.

1$ A'3';' 1991 &'C' *"+

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env project.docx