Law and Environment- An Analysis
Environment-
The term environment has been derived from the term ‘environ’, which means ‘to surround’ Thus, etymologically environment means ‘surrounding conditions, circumstances affecting people’s life.
‘Environment’ includes water, air and land and the inter-relationship which exist among and between water, air, land and human beings, other living creatures, plants, micro-organisms and property.
‘Environment’ defined under the Environmental Protection Act, 1986, ‘Environment’ includes Water, air and land and the inter-relationship which exists among and between, water, air, land, and human beings, other living creatures, plants, microorganisms and property.
Environment And The Constitution of India
The Constitution of India is among the few in the world that contains specific provisions on environmental protection.
Laws made by national, provincial and local government add to the rights and responsibilities that are part of the constitution and the common law.
Protection of Life and Personal Liberty is embodied in Article 21- It states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The Indian Constitution guarantees the ‘right to equality’ to all persons without any discrimination. This indicates that any action of the ‘State’ relating to environment must not infringe upon the right to equality as mentioned in the Article 14 of the Constitution. The Stockholm Declaration, 1972, also recognized this principle of equality in environmental management and it called up all the worlds’ nations to abide by this principle.
Article 47 of the Constitution provides that “It is the duty of the state, to raise the level of nutrition and the standard of living and to improve public health, the state shall endeavor to bring about prohibition of the consumption except for medicinal purposes intoxicating drinks and of drugs which are injurious to health.”
Article 48A of the Constitution provides that the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Article 51A, included in the Constitution by the 42nd amendment Act, 1976 has the provisions as fundamental duties, 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 and to develop the scientific temper, humanism and the other spirit of inquiry and reform, and to safeguard public property and to abjure violence.”
One of the most innovative parts of the Constitution is that the Writ Jurisdiction is conferred on the Supreme Court under Article 32 and on all the High Courts under Article 226. Under these provisions, the courts have the power to issue any direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo- warranto and certiorari, whichever is appropriate. This has paved way for one of the most effective and dynamic mechanisms for the protection of environment, that is, Public Interest Litigations.
Judicial Contribution
It was Mr. M.C Mehta who revived the concept of environmental jurisprudence in India through Public Interest Litigations. Others too had their silent but noteworthy roles to play. Some of the landmark judgments having fair share in development of the environmental jurisprudence in India are:
Narmada Bachao v/s Union of India
Way back in 1946, the then government of the Central Provinces and Berar and the then government of Bombay requested the Central Waterways, Irrigation and Navigation Commission to take up investigation on the Narmada river system for basin wise development of the river with flood control, irrigation, power and extension of Navigation as the objectives in view. The matter was referred to a tribunal in 1968 constituted under the Inter-State Water Disputes Act, 1956. Based on the agreement between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and Gujarat] the tribunal declared its award on 16thAugust 1978. In order to meet the financial obligation, consultations started in 1978 with the World Bank for obtaining a loan. In May 1985 the loan was sanctioned, and in 1987 the Ministry of Environment and Forest accorded Environmental Clearance subject to certain conditions.
Ganges Pollution Case:
The Supreme Court of India reacting to the public interest litigations has passed several judgments and a number of Orders against polluting industries numbering more than fifty thousand in the Ganga basin. As a result of these directions millions of people have been saved from the effects of air and water pollution in Ganga basin covering 8 states in India.
In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (Popularly known as “Oleum Gas Leak Case”) – The Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Art.21 of the Constitution. The Supreme Court held that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident in the operation of such hazardous and inherently dangerous activity resulting in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such a liability is not subject to any exception. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part. Absolute liability is one tort where fault need not be established. It is no-fault liability.
Further, the A.P. High Court in T. Damodar Rao vs. S.O., Municipal Corporation, Hyderabad, (AIR 1987 A.P. 171) laid down that right to live in healthy environment was specially declared to be part of Article 21 to the Constitution.
Conclusion
In India, the concern for environmental protection has not only been raised to the status of fundamental law of the land, but it is also well weaved with human rights approach and it is now well established that, it is the basic human right of every individual to live in pollution free environment with full human dignity.
It is high time that the general public, public entities, state and central government realize the damage, which our developmental process has made to the living environment.
Law is a strong medium to compel the citizens to observe cleanliness and thereby to combat pollution. Environmental protection laws in India needs a new orientation in the modern context.