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Judiciary thumped time and again for protection of Environment suitable for Human Being against the malpractice done by states and citizens. Although, numerous legislative steps are taken by the state to ensure the rights to citizen to live in sound environmentand corresponding duty on the state and citizens to preserve and conserve the environment. The main objective behind this article is to portray the current status of Environment through various statute, law, convention and judicial pronouncements. This paper starts with meaning and importance of Environmental Governance vis-à-vis Rights provided under Constitution of India. Also analysing the Judicial Remedies obtainable for Environment protection and principle lay down by judiciary for meeting the ends of justice. It further views upon Constitution aspects and new trends in judicial approach to deal with environmental issues. The proposed study intent to give more encyclopaedic and detailed understanding of Environment law and role of Supreme Court in present context to combat the menace effectively.

Keywords:- Environmental Governance,Biodiversity, Environment Justice, Industrial Effluents, Equality, Pollution.

Introduction

Environmental Governance “is the term which is used to describe as to how we humans exercise our rights under law over natural resources and natural systems”

Using this wider concept the environmental governance includes many other things then the work of governments. It includes all the section of the society like governments, businessman, farmers, consumers, manages etc. who deals with the environment, how they delegate their power and whom should be made answerable in the end.

Article 47 of the Constitution is considered to be one of the prominent Articles as it enforce obligation on the state to provide with public health and sanitation and it also has to maintain the hygiene facility to improve the standard of living.

Part XI of the Constitution controls legislative and administrative relation between union and state. It also gives power to Parliament to enact law for the country and powers to state to enact laws for their respective states. Article 256 of the Constitution provides with the subject matter of law which should be made by the Parliament and which should be made by the State. The legislature has residuary powers to make laws with respect to any subject matter included in State List and Concurrent List. Whenever there is conflict between State law and Central law, the law made by Central will always prevail over State law. But if the state law is subsequently passed after central law than state law will prevail with the assent of the President. This environmental legislation came only after the United Nations Conference on Human Environment (Stockholm, 1972). 

Environment law & The Indian Constitution

Duties Of The Citizen Towards Environmental Protection

The protection of environment is not only the duty of state alone. All the members of the society have to take part in this effort. The role of each person in protecting the environment is of great importance because if everyone will contribute significantly the impact will be visible not to the local or city or national but to the global level. In the end the society is the one who has to face consequences of environmental degradation.

In 1976, after Forty Second Amendment Act in the Constitution, a new Part IV- A was added which talks about Fundamental Duties which should be abide by the citizens of India. Article 51 A (g) talks about fundamental duty regarding the protection of environment. It says 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”.

Problems regarding environment is getting serious day by day and due to this the fundamental duty has to be imposed on each individual of the nation to protect and preserve the environment from degradation and also try to improve it by taking useful steps. But in the present time is not only caused by consuming natural resources from the environment but also due to pollution cause by cars, industries, noises, poisonous gases etc.

In Rural Litigation and Entitlement Kendra v. State of U.P. there were lime stone mining happening into Mussoorie hills and the lime stone was used for production of higher grade of steel which were used for production of armaments for military. The question here was that Mussoorie hills used to cover 70% of the greenery which was reduced to 10% due this mining activity in that hills. The court said that one cannot use the natural resources however and whenever they want. For developmental activities one can use resources but it should be controlled and regulated by the government. It is not only state duty to protect environment but it is also duty of citizens to protect and improve the environment and safeguard the natural beauty like lakes, rivers, other natural resources etc. State and citizen must undertake the task reservation of environment and maintain ecological balance.

In Indian Council of Enviro Legal Action v. Union of India, the Hindustan Nitro Chemical was using oleum gas and without their knowledge the gas was leaked to air and it was inhaled by the villagers residing in surroundings. The court said that any company which are dealing with hazardous substance has to take care of every responsibilities and the company cannot take the excuse of due diligence and under Article 51 A it is the duty of the company to protect the right of the villagers that is right to life.

In L. K. Koolwal v. State of Rajasthan and Ors., the Jaipur Municipal corporation failed to perform its duty of discharging the drainage and due to people has to face sanitation problem which was hazardous to life. The court said that under Article 51 A it is duty of citizens to maintain clean environment but along with that it is also a right to citizens to have clean environment and for that the State has to perform its duty to maintain the sanitation of the city and abide by the law of the land. Article 51 A also gives right to the citizens to approach the court of law if their rights are infringed and also to enforce the duties of the state which state failed to perform.

The court noted that right is co related with duties. In both the above cases if one party fails to perform its duty the other party has to face its consequences. In Indian Council of Enviro Legal Action v. Union of India, the villagers were the one who has to inhale those hazardous gases as the company failed to perform its duty. Similarly, in L. K. Koolwal v. State of Rajasthan and Ors, the citizen has to face sanitation problem which is their right under Article 21 of the constitution due to no performance of state’s duty. So, it is the duty of every individual of the nation that the rights which are provided by the constitution are fulfilled.

In Municipal Council Ratlam v. Virdichand,the court held that it is the duty of the municipality to maintain proper sanitation in the city. The government cannot take the excuse that they do not have funds to clean the sewage system and maintain the hygiene. It is state’s prerogative to generate money and mitigate the risk. Also asked the respondent to stop discharging the waste on the roads or in the drainage system.

Duties Of State Towards Environmental Protection

Various laws has been enacted and brought in force by the Government of India to protect and preserve the environment and public health. Article 47 talks about the “duty of the state to raise the level of nutrition and the standard of living and to improve public health.”

Prior to Environment (Protection) Act, 1986 The Water (Prevention and Control of Pollution) Act, 1974 came into picture to deal with environmental problems. Water is one of the subject matter which is included in Entry 17 List IIof the Seventh Schedule that is the subject matter of State. Thus, under Article 252 (1)Union government enacted The Water (Prevention and Control of Pollution) Act, 1974 which gives power to Central Government to enact laws. The main objective to enact the Water (Prevention and Control of Pollution) Act, 1974 was to protect the various water bodies from industrial effluents which are discharged in the main stream without any proper treatment. 

After that various other acts like Biodiversity Conservation Act, environment Protection Act, Wildlife Preservation Act, Air Pollution Prevention Act, and National Green Tribunal Act etc. were enacted by the government of India. The National Green Tribunal Act, 2010 was enforce with main objective to set up National Green Tribunal (NGT) to deal with the cases which are pertaining to environment protection and preservation of forest and other natural resources for providing damages and reliefs to the injured person.

Under section 133 of Civil Procedure Code the magistrate took the cognizance of the matter and under section 136 of the Code it passed the conditional order for removal of nuisance for the public utility that sewage which has to go down stream was not moving due to blockage of water which created pollution. Air Act and the Water Act do not provide for the affected person any right to prosecute violators of the provisions. So Court made it clear that citizen can bank upon section 133 CrPC for removal of public nuisance which make prohibitory act as mandatory duty by adding punishment clause under section 188 of IPC.

In Delhi Bottling Co. Pvt. Ltd. v. Central Board for the Prevention and Control of Water Pollution, the board ordered to take some specimens of the effluents of the water discharged by the company. Later the case was filled under section 21 of the Water (Prevention and Control of Pollution) Act, 1974 and court has power to take cognizance.

In the year 1976 the Constitution was amended for better protection and preservation of the environment and a new Article 48 A was introduced in the Constitution which says that

“The State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country.” This article is one of the Directive Principles of State Policy which creates a moral imperative on the state to safe guard and protect the environment. Along with Article 48-A Article 21 and Article 51-A (g) base of the environmental jurisprudence in India.

The Supreme Court said that whenever the issue of environmental balance arises, the court is bound to consider Article 48-A and Article 51-A (g). In the view of Article 48A and Article 51 A (g) the court also said that it not the only duty of citizens to protect the environment but it is also the responsibility of the state and various state authorities to preserve the environment.

Thus Article 39(e), article 48-A and article 51-A(g) all together imposes duty on the state to protect, preserve and reserve the environment.

Right To Life And Environment Governance

Article 21 of the Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by Law”

The expression “personal liberty” in Article 21 is of the broadest dimension and it covers various rights which go to form personal liberty of an individual and some of them have been raised to the status of distinct fundamental rights and given extra protection in Menaka Gandhi v. Union of India under Article 19.

Right to life is assured by Article 21 of the Constitution of India is fundamental human right and the idea of personal liberty has been modified into positive rights by active judicial interpretation. Prior to Menaka Gandhi case the fundamental rights which were assured under part III of the Constitution were considered as negative rights which imposed negative duties on the state.

In Francis CarolieMullin v. Union Territory of Delhi the supreme court interpreted these rights into positive manner and observed that “right to life which is guaranteed under article 21 is something more than physical survival of life.” Court further said that

“Right to life includes the right to life with human dignity and that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for writing and expressing oneself in diverse forms with fellow human beings. Of course, the magnitude and contents of the components of this right would depend upon the extent of the economic development of the country but it must, in any view of the matter include the right to basic necessities of life”.

3.1 Right To Live In Healthy Environment

Article 21 assures the right to life, a life of dignity, to be lived in a clean environment, free of deadly disease. It is an important fact that there prevails a close connection between life and environment. Right to life will be endangered if there no healthy environment.

The right to live in clean environment under Article 21 was discussed in a case were lime stone mining happening into Mussoorie hills and the lime stone was used for production of higher grade of steel which were used for production of armaments for military. The question here was that Mussoorie hills used to cover 70% of the greenery which was reduced to 10% due these mining activities in that hill and due to this there were various soil erosion which results in land sliding and blockage of road and rives in the valley of Mussoorie. The matter went to Supreme Court under Article 32 of the constitution of India and the court appointed a committee to examine into the matter. On basis of the investigation report submitted by the committee, the court directed to stop the mining activities in that valley.

The court said that one cannot use the natural resources however and whenever they want for any developmental activities which results into the ecological imbalance and pollutes the air, water and environment thus violates the personal life and life and liberty under Article 21 of the Constitution of India.

In T.N. GodvarmanTirumalpad v. Union of India, in 1995 the state went under timber business. The forest department as to chop the timber from Nilgiri forest Tamil Nadu. Now, due to deforestation there was an ecological imbalance and the livelihood of people residing there was under question. Article 39 says that the material resource which is used should be used in such a manner that it best sub serve the citizens of the nations. Thus the court said that when any Directive Principle of state policy is contrasted to any Fundamental rights that is Article 21 then it is enforceable and question in court of law.

In Murli S Deora v. Union of India it was pointed out that smoking in public should be banned as it is harmful for the health of non smokers as well because tobacco smoking includes dangerous contents like nicotine, tar, potential carcinogens, carbon monoxide, and irritants, asphyxiates and smoke particles which are the reason of many deadly diseases including the cancer. It was contented that every year around three million people dies due to smoking activities. Due to such activities the health of passive smokers is also at risk. So a Bill was introduced in the Parliament and till the statutory provision is enacted and brought into force the court ordered to prohibit smoking in public in order to safeguard right of passive smokers under article 21.

In M.C. Mehta v. Union of India, the Supreme Court once again said that the right to live in a pollution-free environment as part of the fundamental right to Life under Article 21 of the Constitution. In M.C. Mehta v. Union of India, A group of tanneries that were doing business on the banks of the Ganga River were contented to be damaging river.

“It is reasonable to say that to appreciate and fulfilment of life the application of Article 21 of theConstitution includes the protection of the gifts of nature without which you can not enjoy life.”

In CharanlalSahu v. Union of India the Supreme Court said that under article 21, 48A and 51A (g) in purview of human rights and clean and pollution free environment which the government has assure the citizen should be fulfilled by taking the proper steps.

In Hindustan Nitro Chemical was using oleum gas and without their knowledge the gas was leaked to air and it was inhaled by the villagers residing in surroundings. The court said that any company which are dealing with hazardous substance has to take care of every responsibilities and the company cannot take the excuse of due diligence and under Article 51 A it is the duty of the company to protect the right of the villagers that is right to life which is enshrined under Article 21.

3.2 Right To Livelihood And Environment

The scope of Article 21 is further widen by the judiciary which includes “right to livelihood” in right to life. Right to earn for livelihood is also considered under right to life under Article 21 of the Constitution of India. The interpretation of this article also includes all those people who are dislocated from their home place in order to carry out certain development activities.

Right to livelihood under Article 21 was identified in various cases like Shubhas Kumar v. State of Bihar, Vellore Citizen forum v. Union of India, Enviro Legal Action v. Union of India, Narmada BachaoAndolan v. Union of India and T.M. GodavarmanTiruvarmal v. Union of Indiaread with Olga Tellis v. Bombay Municipal Corporationtalks about right to dignity that right to free and clean environment under Article 21.

In Animal and Environment Legal Defence Fund v. Union of India,in 1927 British Government came up with Wildlife Protection Act and under that section 35 says that centre in consultation with any state can declare any land protected area. So under that section Pench Forest located in borders of Madhya Pradesh and Maharashtra was declared as National Park and under the law of land no human habitation is allowed in any protected area in order to protect the extinct species. As per the law, the people dwelling in the forest have to be relocated and their livelihood was solely based upon the fishing activities done in the Pench River located in the forest. Now their livelihood which everyone’s fundamental right was in question. The Supreme Court said that all the efforts must be made to conserve the fragile ecology of the forest while the rights of the people residing in the forest shall also be considered. Further, Trible people when resettled shall be in position to earn their livelihood.

Similarly in BanwasiSeva Ashram v. State of U.P, a part of land was declared as reserved in order to construct thermal power plant in that area and along with certain area was also acquired to set up the National Thermal Power Corporation Ltd., (NTPC). The issue was that to step up that plant certain tribal people have to shift to another place and their livelihood was again in question. The Court directed that the government has to assure that the tribal people will be provided with certain facilities in order to resettle them.

In K.Chandru v. State of T.Nthe supreme court said that if government wants to plan any construction of dams or projects or to declare any area as reserved place as sanctuary or national park and in order to such activity if they have to resettle the villagers or tribal people from that area that they have to give proper facilities to those people in order to protect their livelihood and the procedure of resettlement should be fair and, just and reasonable enough.

3.3 Right To Know And Environment

Right to is art of article 19 (1) (a) and it has connection with article 21 of the constitution specifically in the matters of environment where the decisions of the government affect the fundament right of the people. The right to know and get the data and information regarding government policies is also a fundamental right.

Right to know has a vital function in the matters of environment. Any government plans including projects like building dams, thermal power station or nuclear power station, etc the citizen at large has right to know about it and showed be declared amongst all.

In S. P. Gupta v. Union of Indiathe Supreme Court has widen the view of right to know and said that right to know should be included in freedom of speech and expression. The Supreme Court also observed that:

“This is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The concept of open government is the direct emanation from the right to know which seems to be implicit in Article-19(1) (a). Therefore, disclosures of information in regard to the functioning of the government must be the rule and secrecy exception justified only where the strictest requirements of public interest so demands”.

In Research Foundation for Science Technology and Natural Resource Policy v. Union of India the Supreme Court said that the right to know and participate in the community for the preservation of human life and environment is an absolute right under Article 21 and it is controlled by environmental principles.

Right To Equality And Environment Governance

The Indian Constitution guarantees ‘right to equality’ to all person without any discrimination. This stipulates that any action of the ‘State’ regards to environment must not violate the right of any person as mentioned in the Article 14 of the Constitution. The Stockholm Declaration of 1972 also acknowledged this principle of equality in environmental management and called on the entire ‘world’ to adhere to that principle.

The judiciary has struck down various arbitrary provisions and imposed sanctions timely in environment matter on the ground of violation of Article 14 of Constitution of India. The right to equality is often used in urban development area where authorities granted arbitrarily permission for construction under their discretion without considers the public interest at large and without knowing its impact on environment.

In Bangalore Medical Trust v. B.S. Muddappa the Supreme Court stop the government authority from convert Public Park into a nursing home. Under the development schemes of City Improvement Board of Bangalore, the land is kept free for public space as low level park but subsequently this park was attempt to convert into civic amenity site where appellant would construct the hospital by the authority of chief minister of the state. The appellant came in appeal before the court and contended that the development authority has the discretion to decide whether the land should be reserved for Public Park or rather allot for a site to hospital. The Supreme Court dismissed the appeal and highlighted the importance of public parks and open space in Urban Development as follows:

“Protection of the environment, open spaces for recreation and fresh air, play grounds for children and other conveniences are matters of great public concern and are vital interest to be taken care of in a development scheme. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user; it would be in direct conflict with the Constitutional mandate”.

Supreme Court held that the decision taken by chief minister of the state to convert Public Park into site for hospital was vitiated by arbitrariness and irrational. This is not a legitimate action by the state and hence ultra vires and violation of Article 14 of Constitution of India.

The court also used article 14 of constitution to justify whether all actions of state have to be fair and for legitimate reasons or not. In the case of KholamuhanaPrimary Fisherman Cooperative Society v. State of Orissa, the government has drafted certain rule and policies regarding fishing in Chilka Lake so as to preserve the traditional rights of fisherman. The court held that there is no violation of Article 14 of Constitution because the policies were neither arbitrary nor ambiguous. Supreme Court rule out that Public interest is to be primary consideration for dispensation of natural resources by the state.

In Ivory Traders and Manufacturers Association v. Union of India, the Delhi High Court justified the ban on the business in animal species on verge of extinction. The court held that the state can classify the things and place a ban on trade by making law which must bear a just and rational relation to the object sought to be achieved and is not violation of Article 14 of Constitution of India.

Freedom Of Speech & Expression And Environment Governance

Excessive noise creates pollution in the society. The constitution of India under Article 19(1) (a) guarantees every citizen a fundamental freedom of speech and expression. In India mostly environmental jurisprudence has evolved through judicial activism. Most of the cases have been brought before court in form of Public Interest Litigation (PIL) which mainly focus on violation of fundamental rights to live in a healthy environment which are very essence to constitution of India or otherwise filing petition before the courts. Supreme Court also held that freedom of press is also vital part of Freedom of speech and expression under Article 19(1)(a) of COI. In current period of time media played an important role in shaping the outlook for environmental issues. But this fundamental right is not an absolute right as they are subject to limitation under article 19(2) of COI.

In the caseKerala High Court held that freedom of speech and expression does not include freedom to use loud speakers or amplifiers. Court also attach criminal liability against this act as no one can claim a right to create a noise pollution even in their premises if it will travel beyond the premises of accused and disturbed the neighbour of vicinity termed as nuisance. To establish relationship between Article 19(1)(a) and Article 21 of Constitution of India that a fundamental can’t violate other fundamental rights. Supreme Court can curtail one fundamental right by putting a limit to protect other because no fundamental right is absolute in nature.

Freedom Of Trade & Occupation And Environment Governance

The constitution of India guarantees under article 19(1)(g) to all citizens shall have right “to practise any profession, or to carry on any occupation, trade or business”. As constitution drafter does not want to make any fundamental right absolute in nature so they put a clause of reasonable restriction under Article 19(6) of constitution for limiting the right in the interest of general public.

In a case of M.C. Mehta v. Union of India, where tanneries located on bank of river were discharging trade effluents, which were highly toxic in nature, into the river Ganga. Court held that water pollution problem mainly related to noxious substances should be dealt with strictly. Court order for stopping tanneries which had failed in taking a minimum steps for noxious effluents until they install pre-treatment plant for trade effluents. And also the financial capacity of the tanneries is not matter when requiring them to establish primary treatment plant. At that point of time we are only concern with life, health and ecology of the citizens.

In a casewhere U.P state came out with the rule that saw mills were prohibited within 80 km of any protected forests area. This rule was challenged by the petitioners before the Supreme Court on the ground of violation of its fundamental rights which was guarantee under article 19(1)(g) of Constitution of India. Court held that this is reasonable restriction and the state can make law which should not be arbitrary or an excessive in nature. This made for stopping uncontrolled cutting of green trees and for maintenance of ecology balances and forest wealth for the interest of people.

Judicial Remedies

Depending on the nature of the grievance, there are various types of remedies which are available. The main forum which deals with the environmental issues is National Green Tribunal for civil matters. The tribunal mainly has original and appellate jurisdiction with deals with matters under various laws like the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, the Biological Diversity Act, 2002. The magistrate can take cognizance in matters of criminal nature.

The matter can also be filed in High Court or directly to the Supreme Court if fundamentals rights of any citizens are violated. The Supreme Court and High Court have wide powers under Article 32 and 226 respectively under writ jurisdiction. If citizens at large are being affected then matter can be also filed as Public Interest Litigation before High Court or Supreme Court.

Requirements to establish an approach to High Court or Supreme Court:

Locus Standi: It means the right or ability to bring an action before court of law. Prior to the judgements of S.P. Gupta v. Union of India only aggrieved person or victim can approach to the court but after that judgement, any person who is not victim can also approach the court.

Exhaustion of Local remedies: This stops a litigant from seeking remedy in an upper court of jurisdiction until the original jurisdiction remedy is not exhausted.

Res judicata: Once a law suit is declined or rejected the person, the same parties cannot approach the same court with same subject matter again unless they do not have new material evidence.

Reasonable time: The amount of time which that is adequately considered to be required to be done particularly under the legitimate conditions.

Panchayat&its Role In Environment Governance

In the fifty years of independence whatever people needs were dealt from the top (centre) results in creating a problem in implementing programmes at local level which suffice the protection of life and property and improving their quality of life. 73^rd Constitution Amendment enables government to constitute an institution (Panchayati Raj Institution) as third tier of governance which converge all administrative, planning and implementation activities at district level from Gram Sabha, Gram Panchayat etc. Panchayat was constitute by virtue of Eleventh Schedule of Constitution and also provided list of 29 subjects brought under Panchayat. Some of them are Water management, Social Forestry, Sanitation, Maintenance of Assets etc. are subject related to Environment management.

Rapid growing of Urbanisation in our country causes Environment Degradation in urban area at greater gravity. To combat this problem Government amends the Constitution which gives existence to local bodies (Municipalities) at District level. They have to undergo various activities like liquid waste management, supply of potable drinking, public health, park and gardens and tree plantation etc. for providing quality life to public.

Court also in various judgements reiterates the duties of local bodies for maintaining environment. Court held that it is the duty of municipality to maintain proper sanitation in the city. Providing drainage system in a working condition sufficient to meet the needs of the people cannot be evaded by the municipality on ground of financial inability.

Right To Education And Environment Governance

By looking the present situation it can be ponder able that how much human action has impacted environment degradation and climate change, especially the greenhouse gases, and attention shall have turn to Environment education and awareness. Education helps in reducing dependence on environment by encouraging people to use energy and water more efficiently and recycle household waste. It also promotes and support political actions by engaging in an action that protects the environment.

Supreme Court directed In Re Noise pollution case that the State Education Resource Centre in all the states and Union Territory shall take appropriate steps to educate student about the ill-effect of pollution on Environment.

Conclusion         

Environment is the part of our culture which helps in sustaining the life on earth. The constitution of India provides framework for protection of environment and for making ecological balance & forest wealth for betterment of people. The role of higher judiciary has been worth appreciating in deciding the cases and performed its duty well. It’s our submission that judiciary is not only take cognizance of cases which came before court but also took suo-motu for the preservation of environment. When the environmental issue are complex and need to dwell on point of science and technology then in such situation court take recourse of expert committee for making an opinion on such situation. Also establish environment court which was presided by judicial member and a technical member for speedy disposal of environment cases. There is intense need to people sit with the state for protecting the current environment for current and future generation.

BY LAWZ BUREAU