Environmental Law

Constitutional Provisions for Environmental Protection in India

The Indian Constitution establishes a distinctive federal system for the country. It is a large piece of law that lays forth the Directive Principles of State Policy that the legislature should keep in mind while enacting legislation in addition to giving shape to the dreams of freedom fighters by emphasizing fundamental rights. The division of topics on which the Union and State governments may pass laws is outlined in detail in Part XI of the Constitution, which deals with legislative relations. This section of the article discusses the various sections of the constitution’s environmental provisions.

Preamble to the Indian Constitution

The Indian Constitution’s Preamble, which begins with “We the People,” lays forth the Constitution’s purposes and objectives. A Sovereign Socialist Secular Democratic Republic is proclaimed for India. It has been declared to be a key to the constitution’s creators’ minds.i Even though the 42nd Amendment later added the words “Secular and Socialist” to the Constitution, the document already had a secular and socialist foundation. The Constitution has several articles that address the socialist and secular structures of the country, with Part IV placing emphasis on the socialist mode of government and Part III defining the secular structure of the nation.

When Part IV of the Indian Constitution is read in connection with the word socialist, it is clear that the Constitution adopted a welfare state with socialism as its primary model. Social welfare is impossible if individuals are made to live in filthy conditions that put their health and life in danger. The phrase “Democratic Republic” emphasizes the idea that the people have a right to participate in the political process and that the government should work for their welfare. This suggests that the government will work to ensure that there is a clean environment that is fit for human habitation in addition to other things.

Right to life and Environment Protection

The constitutional right to life is protected under Article 21. According to this, no one’s right to life or personal liberty may be taken away from them until legal procedures are followed. According to one interpretation, the phrase “except in accordance with procedures established by law” means that this rule is subject to exception and is governed by legislation, which differs from instance to case.

In addition to the basic essentials of life, such as food, shelter, clean water, and clothing, the right to life also encompasses the right to live in dignity. The right to life includes the ability to live in a decent and safe environment free from danger to one’s life. The surroundings must be free of illnesses.

According to the ruling in Charan Lal Sahu v. Union of India, the state has a responsibility to take reasonable and decisive action to uphold and defend constitutional rights protected by Articles 21, 48-A, and 51-A(g).

Right To Equality and Environmental Protection

Article 14 of the Constitution guarantees everyone equal protection under the law as well as equality before the law. The state cannot violate article 14 since this fundamental right implicitly imposes an obligation on it to act fairly while pursuing environmental protection measures. The judiciary has played a stringent role in prohibiting the arbitrary sanction in cases where state authorities have used their arbitrary powers. The fundamental right to equality of all persons is violated when discretionary powers are used without considering the needs of the general public.

Freedom of Speech and Expression and Environment

Article 19(1)(a) of Part III of the Constitution specifically mentions the right to free speech and expression as a basic right. As in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where people complained about the violation of their right to a clean and safe environment and a right to livelihood, there have been numerous instances where people have approached the court through speech and by expressing themselves in writing.In India, the media has been playing a crucial role in moulding the perception of people in issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well.

Freedom of Trade and Commerce and Environmental Protection

According to Article 19 (1)(g) of the Constitution, every Indian citizen has a basic right to practice any profession, business, trade, or commerce at any location in Indian territory. However, as this is not a universal right, there are certain fair limitations. This basic right to avoid environmental hazards is subject to a reasonable restriction as set forth in Article 19(6) of the Constitution. The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.

Fundamental Duties of Indian Constitution:

Part IV A of the Constitution of India inserted by Constitution (Forty-second Amendment) Act, 1976 imposes duties upon very citizen of India. Article 51A casts eleven duties upon the citizens of India.iv Article 51A(g) casts the following duty upon the citizens of India To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Directive Principles of State Policy

Guidelines for State Policy are outlined in Part IV of the Indian Constitution. They specify the nation’s socioeconomic objectives. Although Directive Principles are not subject to the law, Article 37 declares them to be essential to the nation’s government. There was no explicit clause in Part IV that dealt only with the environment prior to the 42nd Amendment.
The provisions entrenched in Articles 38, 47, and 50 read with Article 37, however, can be used to infer the Indian Constitution’s intention to safeguard the environment.

Legislative powers and matters of environmental protection

The Indian Constitution recognizes three different lists: concurrent, state, and union. At the state and union levels, the government’s authority is divided. State government handles matters of state list, while central government handles matters of union list. As a result, only the Parliament has the authority to pass legislation regarding list I, which is the list of topics of union. The state list, or list II, deals with issues including public health, drainage, the availability of clean water, and sanitation. It deals with issues pertaining to military, nuclear power, oil field regulation, air traffic, etc.

If a state law is passed after a federal law, in order for it to take effect, it must first receive presidential assent in accordance with Article 254. Parliament has the authority to legislate state matters as well in times of national emergency. To enact laws that can address environmental issues, these legislative authorities must be divided. The state has undertaken several projects to improve the environment, yet they could represent a major threat to the ecology. Development and the conservation of the environment are in conflict in these situations, and the Environment Impact Assessment (EIA) is used to address these issues. Additionally, the planning commission has acknowledged this.

International Environmental Agreements

India has been a signatory to a myriad of international agreements pertaining to environmental preservation. Because it was agreed upon in the Stockholm Declaration in 1972 that there is only one environment on Earth. India is required to translate these provisions and implement them in the nation as a signatory to such international agreements. This is expressly mentioned in Article 51(c) of the Indian Constitution, which states that the state will promote adherence to treaty obligations and international law.

Article 253 of the Constitution, which gives the Parliament of our nation the power to pass laws that can be applied to the entire or any territory of the country for implementing any agreement or convention signed with the other country or countries, is another crucial provision that deals with protecting the environment.Parliament may also pass laws to carry out decisions made at international conferences. Any provision made in connection with environmental protection in line with Article 253 read with Articles 13 and 14 cannot be contested in court on the grounds that the legislator lacked the authority to make the provision.

With the use of this power, it is pertinent to know that Parliament has enacted Air ( Prevention and Control of Pollution) Act 1981, and Environment Protection Act, 1986. It has been clearly stated in the Preamble of these acts that the purpose of their enactment was to implement the decisions taken at the United Nations Conference on the Human Environment, held at Stockholm in the year 1972.

In Vellore Citizens’ Welfare Forum v. Union of India AIR 1996 SC 2715 the supreme court ruled that, as long as they are not in conflict with them, municipal rules must take into account international customary law. It is a recognized legal theory. The domestic courts of law so regarded adherence to international law as mandatory.

Role of the Supreme Court in environmental protection

In lieu of the wide range of cases dealt by supreme court with regard to environmental protection, a plethora of judgements have been passed which have laid down various principles to be taken care of before indulging in any activity which might pose a threat to the environment. Also, different aspects of the environment have been highlighted by giving them immense importance like natural resources. Air and water have been given the status of the gift of nature and inalienable part of life.

Polluter Pays Principle

That “if you make a mess, it becomes your duty to clean it up” is the fundamental idea behind this tenet. The polluter pays principle places more focus on the remedial strategy to restore the ecological harm produced by any individual or group of individuals than it does on the ‘fault’. In the OECD Guiding Principles for International Economic Aspects of Environmental Policies, this idea was originally mentioned in 1972.Additionally, same idea was utilized in the Vellore Citizens Welfare Forum v. Union of India case. In M.C Mehta v. Union of India and Ors( Calcutta Tanneries Case), the polluter pays principle was applied where industries were directed to be relocated and these industries were ordered to pay 25% of the cost of the land.

Precautionary Principle

The precautionary principle is outlined in Rio Declaration Principle 15. In light of this. Applying the precautionary principle is crucial for environmental protection. According to this principle, the absence of complete scientific certainty cannot be used as an excuse for failing to issue cost-effective procedures where there is a likelihood of significant harm or irreparable environmental damage.Another judicial decision based on the precautionary principle was made in M.C. Mehta v. Union, often known as the Taj Mahal Case. A public interest lawsuit was filed in this instance, stating that environmental contamination is to blame for the Taj Mahal’s decline. Court referred the case to the expert committee to seek technical advice on the matter. On the basis of the report of the committee. This monument is a monument of international repute. The industries located in the Taj Trapezium Zone(TTZ) were using coke/coal as the industrial fuel, thus emitting effluents.

The doctrine of Public trust

This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life like air, water etc hold great importance to the people at large that it would be completely unjustified to make these resources available to private ownership. Since these resources are the gift of nature that is why they should be made freely available to every individual of the society irrespective of the status in life. The doctrine obliges the government to protect resources for public use rather than being exploited by a private person for making economic gains.

Thus, commercial use of natural resources is completely prohibited under this doctrine. For the effective and optimum utilization of resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens are empowered to question the authorities if resource management is ineffective.

Case Laws:

M.C. Mehta v. Union of India AIR 1997 SC 734 where a petition was filed for preventing the degradation of the Taj Mahal due to pollution caused by coal using industries via Trapezium, the Apex Court issued directions to 292 industries located in Agra to change over within a time schedule to Natural Gas as industrial fuel or stop functioning with coal/coke and to apply for relocation or otherwise stop functioning w.e.f. 30-04-1997 on account of violation of Articles 21, 48A, 51A and 47 of the
Constitution.
M.C. Mehta v. Kamal Nath AIR 2000 SC 1997 it was contended by the petitioner that if a person disturbs the ecological balance and tinkers with the natural conditions of rivers, forests, air and water, which are the gifts of nature, he will be violating the fundamental right guaranteed under Article 21 of the Constitution. Supreme Court accepted the contention of the petitioner and held that any disturbance of basic environment elements namely air, water, soil which are necessary for “life” would be hazardous to “life” within the meaning of Article 21 of the constitution. The court after holding it to be a violation of article 21 proceeded to observe that in these cases polluter pays principle and principle of Public Trust Doctrine applies

Subash Kumar v. State of Bihar AIR 1991 SC 420 it was held that right to live is a fundamental right under Article 21 of the constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a 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.

Ratlam Municipality v. Vardhi Chand AIR 1980 SC 1622 supreme court ordered the closure of limestone quarries in Dehra Dun-Mussooorie Area. It realised that the closure of limestone quarries would cause financial hardships but the court observed that it is the price that has to be paid for protecting and safeguarding the right of the people to live in a 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.

Conclusion:

The term “environment” was not specifically mentioned in the Constitution in the past, and there were no provisions in place to address environmental hazards and control human behavior that was significantly contributing to the degradation of the environment while purporting to be exercising fundamental rights. The supreme law of the land is the constitution. Therefore, including clauses that particularly address environmental issues might prove advantageous for the environment.

Difference between strict liability and absolute liability

Meaning of Strict Liability

The concept of Strict Liability in torts is also referred as “No-Fault Liability”, which can very explain this concept in an obvious manner- “that liability would exist irrespective of any fault”. There exist certain activities which are inherently so dangerous in nature that merely carrying them on poses a duty on the person who does so, to compensate for any damage irrespective of any carelessness on their part. The rationale behind imposing such liability is the foreseeable risk involved in such activities. This principle was first applied by the House of Lord in the case of Rylands v. Fletcher.

Meaning of Absolute Liability

Following the infamous “oleum gas leak case,” M.C. Mehta v. Union of India, the idea of absolute culpability was developed in India. One of the landmark cases in Indian law is this one. Strict liability is applied in the M.C. Mehta case, but no exceptions are provided and the defendant is held entirely responsible for his actions.

According to the ruling in the Ryland v. Fletcher case, the defendant will not be permitted to raise a defense if he or she was at fault.There was an urgent need to establish a strict responsibility rule with no exceptions accessible to the defendant in the wake of the Bhopal gas leak case since many people perished and continue to suffer from some of the fatal diseases down the generations.

Difference:

Sr. No.	Strict Liability	Absolute Liability
1	In Strict Liability, the point of contention is the ‘non-natural’ use of one’s land in using or handling an object/thing.	In Absolute Liability, the presence of hazardous or inherently dangerous substances or objects is necessary.
2	The escape of the dangerous thing is imperative, and it cannot be applied to damage caused inside the premises of the defendant, as seen in the case of Read Vs. Lyons and Co. here in above.	In Absolute Liability, the escape of such dangerous things is not necessary, but the mere use of a hazardous substance makes the party subject to this rule. It is applicable to damage caused to people inside as well as outside the defendant’s premises.
3	The Strict Liability rule has some defences and exceptions that can be used by the defendant. These include: Act of GodConsent of PlaintiffAct of Third PartyAn act done under Statutory Authority.The defendants, therefore, have a chance to be relieved of the liability by proving that their act falls in one of the abovementioned exceptions to Strict Liability.	3. In Absolute Liability, the defendant does not have any scope for defence or exceptions but is held completely liable for the damages caused by them in all circumstances.
4	The rule solely applies to the non-natural use of land.	This rule applies to the natural or the non-natural use of any land.
5	Compensatory damages are paid to the plaintiff, depending on the nature and quantum of the damages caused to them.	The damages paid to the victims are exemplary in nature and are much greater as the defendants are liable for people’s lives and environmental conditions in such cases.
6	The Strict Liability concept was independently formed in England in 1868.	The Absolute Liability rule was formulated in India after the courts realized the shortcomings of Strict Liabilities. Absolute Liability was inherently Strict Liability – the exceptions.

Vienna Convention for The Protection Of Ozone Layer, 1987 an overview

In the stratosphere of the earth, there is a layer of ozone made up of three oxygen atoms per molecule. It is believed to screen against the sun’s harmful UV rays and regulate the stratosphere’s temperature structure. At lower altitudes, ozone also contributes to global warming and irritates the respiratory system while hurting plant development. Since 1960, there have been significant losses in the ozone layer over Antarctica during the spring in the Southern Hemisphere, and more recently, a hole has developed in the ozone layer over the Arctic.

Human activity-related emissions of some inert gases, mainly CFCs, are to blame for the ozone layer’s thinning. These gases break down when they are exposed to UV rays in the stratosphere, releasing free chlorine from CFCs and bromine from halons, which fragments the ozone molecule and thins the ozone layer. The 1985 Vienna Convention for the Protection of Ozone Layer and the 1987 Montreal Protocol on Substances that Deplete Ozone Layer make up the complicated framework that addresses protecting the ozone layer from these harmful substances.

Vienna Convention for The Protection Of Ozone Layer, 1987

Under the supervision of UNEP, the Vienna Convention was negotiated over a five-year period. The 22nd of March 1985 saw its adoption, and the 22nd of September 1988 saw its entry into effect. 185 States have joined as parties to it as of this writing. All States are welcome to participate in the first treaty to address the issue of the world’s atmosphere. There are 2 Annexures and 21 Articles in the Convention. It created a framework for adopting policies “to protect human health and the environment from adverse effects resulting from or likely to result from human activities which modify or are likely to modify the Ozone layer.”

What is the purpose of the Vienna Convention?

The purpose of the Vienna Convention is to protect the ozone layer from depletion. 28 countries originally signed the convention on 22nd March 1985. On 16th September 2009, Vienna Convention along with Montreal Protocol was universally ratified and thus became the first treaties in the history of the United Nations to achieve universal ratification.

Important Articles of Vienna Convention for The Protection Of Ozone Layer

The ozone layer is described in Article 1(1) of the Convention as the layer of atmosphere ozone above the planetary boundary layer.Article 2(1) of the Convention requires parties to take four categories of “appropriate measures” in accordance with the resources at their disposal, their capabilities, and the basis of pertinent scientific and technological considerations. It does not, however, prescribe any targets or deadlines for activities.

Co-operation on systematic observation;
Research and information exchange;
Adoption of appropriate legislative or administrative measures and co-operation on policies to control, limit, reduce or prevent activities that are likely to have adverse effects resulting from modifications to ozone layer;
Co-operations in the form of measures, procedures, standards to implement the Convention as well as with competent international bodies.

Article 2 further provides that parties are free to adopt additional domestic measures in accordance with international law [in the form of enactments, rules and regulations, policies] and maintain in force, compatible measures already taken.

The forms of study and systematic observations that must be conducted either directly or through international organizations are described in Article 3 and Annexure I. In a similar vein, Article 4 and Annexure II call for cooperation in legal, scientific, technical, socioeconomic, and legal information pertinent to the Convention, subject to confidentiality rules, as well as the development and transfer of technology and knowledge, taking into account the specific needs of Developing countries. The Common But Differentiated Responsibilities of the Nations when it Comes to Ceasing the Emission Reduction are Embodied in the Text of This Article of the Convention.

According to Article 6, the parties must also advise the Conference of Parties [CoP’s] about the techniques and measures they plan to use for implementation. Aside from adopting Protocols and additional Annexes, as well as amending existing Protocols and Annexes, the CoP also has the authority to take any other actions that may be necessary to carry out the objectives of the Convention.In Articles 8 to 10,

In case of disputes between parties, the Convention under Article 11 lays down several methods of dispute settlement mechanisms:

Mediation at the request of parties under Article 11(2)
Voluntary submission to Arbitration and ICJ under Article 11(3)
Submission of disputes to Conciliation bodies under Article 11(4)

Article 18 provides that there may be no reservations to this Convention. Article 20 provides that the Secretary-General of UN shall assume the functions of Depositary of this Convention and any Protocol.

National Environment Tribunal Act 1995

Brief notes

On June 17, 1995, the National Environment Tribunal Act was passed by the parliament. As a result of India’s expanding population, which not only contributes to pollution and environmental degradation but also plays a significant role in environmental accidents, the country is grappling with a number of environmental issues. India contemplated implementing the Tribunal addressing the protection of the environment and the payment of compensation to persons, property, and the environment as a participant in the 1992 United Nations Conference. A tribunal was established by an act to handle cases involving environmental issues and compensation

Salient features of Act

An act to establish a National Environmental Tribunal for the effective and speedy resolution of cases arising from such accidents, with a view to providing relief and compensation for damages to persons, property, and the environment for matters connected therewith, and to provide for strict liability for damage arising out of any accident or handling (any) hazardous substance.
Environment is made up of water, air, and land as well as the relationships that exist between these elements, as well as with people, other living things, plants, animals, microorganisms, and property (Sec 2). Whether an accident results in permanent or temporary damage, a disability, lost wages, medical expenditures, or death, the owner is responsible for making restitution (Sec 3) Sec. 4 details the application process for compensation. Processes and powers granted by this Act to the Central Government to form a tribunal (Section 8) and its makeup are specified (Sec 9).

Objective

The Tribunal is tasked with providing effective and expeditious remedy in cases relating to environmental protection, conservation of forests and other natural resources and enforcement of any legal right relating to environment.

summary of act

National Environment Tribunal Act, 1995 consists of 31 Sections to fulfill the broad objectives laid under Act. As the Act enacted with a broad objective to provide compensation to person who got injured, the owner has to pay compensation under Section 3, where there been damage caused to the environment and the death or injury has been resulted due to the accident. The person can make application with respect to claim for compensation to the Tribunal under provision as specified under Section 4(1), Tribunal while dealing with the application of compensation as specified in the provisions of Act shall exercise the same jurisdiction and authority as that of matters as specified in Public Liability Insurance Act, 1991. Owner who responsible for the environmental accident is liable to pay compensation not only under National Environment Tribunal Act, 1995, but also liable to pay relief specified under the provisions of Public Liability Insurance Act, 1991and the relief paid be substantiated by the compensation paid.

According to Section 8, the Central Government established the National Environment Tribunal to carry out the authority and powers granted by the Act’s provisions. The Chairman, Vice-Chairperson, other members, and the Benches under the Act have the authority to exercise the authority, jurisdiction, and powers of the Tribunal in order for it to carry out the duties outlined in the Act. Those appointed as members of the Tribunal should be more qualified for the designated role because qualifications are important in any office and the topic at hand is a sensitive one relating to the environment.

Persons are only appointed as members if they meet the requirements outlined in Section 10 of the Act. Persons appointed as chairs are not required to be judges of the Supreme Court or of the High Court, and those appointed as vice chairs and judicial members must be judges of the High Court or members of the Indian Legal Service as specified by the Act. According to Section 12, members of the Tribunal maintain office for a period of five years. They are also permitted to resign from their positions by writing to the president, who has the power to do so if he believes the member to be unsuited for the position or has demonstrated misconduct.

According to Section 13 (3), the President may issue an order to remove any member from office, but the order must be approved following a thorough inquiry and investigation by a Supreme Court Judge. The Central Government may also establish rules and regulations for the Section 13 inquiry and investigation process (2).

After the Act’s implementation, the Tribunal has a particular competence to handle cases connected to applications and compensation claims. According to Section 23, the Tribunal has the same authority as the Civil Court in cases involving the provisions of the Act, and any awards made by the Tribunal are executable just like a judgement rendered by the Civil Court. If the owner does not comply with the Tribunal’s order, the Tribunal may seek payment from the owner as unpaid land revenue. Tribunal Constituted under Act has the jurisdiction to punish the person who contravene the provisions stipulated under Act and those who responsible for environmental dangerous. Anyone who disobeys the tribunal’s order will be punished for an additional three years or fine up to ten lakh rupees or both based on the guilt.

The Indian Penal Code operates broadly under the Act because all Tribunal members are considered to be Public Servants under Section 21 of the Code and because all actions taken to implement the provisions of the enacted Act fall under the definition of judicial proceedings as set forth in Sections 193, 219, and 228 of the Code. Rules pertaining to the Act’s provisions may be made by the Central Government by publication in the Official Gazette, as indicated in Section 31. (2). In accordance with Section 22, the Central Government is empowered to determine whether the compensation sum credited to the Environment Relief Fund will be completely utilized (2).

Act was a specific piece of legislation that dealt with environmental issues and compensation. Although the Act has the power to punish anybody who violates the rules set forth in the Act relating to the protection of the environment, it has fallen short of meeting the obligations and goals set forth. India needs a strong legal system to address environmental challenges because of its dense population.

OZONE DEPLETION & GLOBAL WARMING

Global Warming: meaning-The increase in the global mean temperature is called “global warming”. The global warming is due to increase in greenhouse gases in the atmosphere. Air Pollution traps more heat in the atmosphere, rendering the earth more-warmer. This effect is called as “global warming”.

What is the ozone layer

Earth’s atmosphere has many layers, and each layer has its unique features. The ozone layer is a crucial part of the atmosphere. It is a part of the stratosphere (a layer of the atmosphere). The ozone layer works as a shield for the earth and reflects most of the UV rays produced by the sun. It protects the earth like an umbrella and interrupts harmful UV or ultraviolet rays to reach the earth’s surface. Therefore, the ozone layer also helps maintain the earth’s natural temperature.

Global warming and ozone layer depletion

Global warming and ozone layer depletion are environmental phenomena that are closely intertwined. The term ozone hole means depletion in the ozone layer. This layer works as a protective layer of earth and helps absorb an excessive amount of UV rays, CFCs, Halon gas etc., that are harmful to living creatures of the earth. Depletion in the ozone layer can create various severe health problems.

Increased Greenhouse gases, heat, pollution etc., are causing global warming and depletion of the ozone layer. Also, UV rays entering the earth’s atmosphere because of ozone layer depletion increases the temperature of the earth. So, both of these alarming environmental phenomena result from human activities like pollution, carbon release, deforestation, increased Greenhouse gases etc.

Causes of Global Warming

Man-made Causes of Global Warming

Deforestation

Plants are the main source of oxygen. They take in carbon dioxide and release oxygen thereby maintaining environmental balance. Forests are being depleted for many domestic and commercial purposes. This has led to an environmental imbalance, thereby giving rise to global warming.The Deforestation is one of the main reasons of global warming. Cutting and burning of about 34 million acres of trees every year results in urbanisation and the land for factories timber lead to deforestation. In addition to the deforestation, the below mentioned GHG’s contributes to the global warming.

Use of Vehicles

The use of vehicles, even for a very short distance results in various gaseous emissions. Vehicles burn fossil fuels which emit a large amount of carbon dioxide and other toxins into the atmosphere resulting in a temperature increase.

Chlorofluorocarbon

With the excessive use of air conditioners and refrigerators, humans have been adding CFCs into the environment which affects the atmospheric ozone layer. The ozone layer protects the earth surface from the harmful ultraviolet rays emitted by the sun. The CFCs have led to ozone layer depletion making way for the ultraviolet rays, thereby increasing the temperature of the earth.

Industrial Development

With the advent of industrialization, the temperature of the earth has been increasing rapidly. The harmful emissions from the factories add to the increasing temperature of the earth.

In 2013, the Intergovernmental Panel for Climate Change reported that the increase in the global temperature between 1880 and 2012 has been 0.9 degrees Celsius. The increase is 1.1 degrees Celsius when compared to the pre-industrial mean temperature.

Agriculture

Various farming activities produce carbon dioxide and methane gas. These add to the greenhouse gases in the atmosphere and increase the temperature of the earth.

Overpopulation

An increase in population means more people breathing. This leads to an increase in the level of carbon dioxide, the primary gas causing global warming, in the atmosphere.

Global warming is the phenomenon of gradual increase in the average temperature of earth . It is caused by the release of greenhouse gases like carbon dioxide, methane, CFCs etc. into the atmosphere.

Effects of Global Warming

Following are the major effects of global warming:

Rise in Temperature

Global warming has led to an incredible increase in earth’s temperature. Since 1880, the earth’s temperature has increased by 1 degrees. This has resulted in an increase in the melting of glaciers, which have led to an increase in the sea level. This could have devastating effects on coastal regions.

Threats to the Ecosystem

Global warming has affected the coral reefs that can lead to the loss of plant and animal lives. Increase in global temperatures has made the fragility of coral reefs even worse.

Climate Change

Global warming has led to a change in climatic conditions. There are droughts at some places and floods at some. This climatic imbalance is the result of global warming.

Spread of Diseases

Global warming leads to a change in the patterns of heat and humidity. This has led to the movement of mosquitoes that carry and spread diseases.

High Mortality Rates

Due to an increase in floods, tsunamis and other natural calamities, the average death toll usually increases. Also, such events can bring about the spread of diseases that can hamper human life.

Loss of Natural Habitat

A global shift in the climate leads to the loss of habitats of several plants and animals. In this case, the animals need to migrate from their natural habitat and many of them even become extinct. This is yet another major impact of global warming on biodiversity.

Constitutional Provisions for Environmental Protection in India

Introduction

The ecosystem and all living things are under severe threat from the rapid growth in global warming, deforestation, air, water, and other types of pollution. All living things, including people, plants, and animals, are negatively impacted by the environment’s degradation as a result of a wide range of human activities.Because a healthy environment is essential to sustaining human health and because everyone has a right to a healthy environment, the concept of environmental protection has been given fundamental significance. Environmental protection safeguards everyone’s health, and a healthy person fosters the vitally required environmental growth. To live in an environment which provides a pollution free atmosphere is not only a basic human right but also enhances human dignity. Principle of sustainable development is one such approach which if followed can fulfil the basic human right of having a dignified life.

The preamble of the constitution and environment protection

The Indian Constitution’s Preamble opens by proclaiming that the Indian people earnestly pledge to establish India as a socialist nation. This shows that our Constitution gives us access to a socialist social structure. attempting to address and address society problems first, rather than focusing on personal issues. What is best for the general population is crucial in this situation.

Socialism is the primary goal of the Preamble, and it is the state’s duty to carry it out by enacting strict regulations to rid the environment of all sorts of pollution. The state also has a duty to ensure that all living things have access to a good level of living in addition to a pollution-free environment. All the citizens of India intend to secure freedom which also includes securing justice. Justice can be interpreted and sought in many forms. Thus, citizens have a right to environmental justice. Increasing degradation of the environment is posing a great threat to the lives of living beings and hence, protecting the environment is becoming a crucial in each day of life because ignoring it would pose a serious threat to the environment at large.

The state is required to abide by all regulations, and because India is a Democratic Republic, its citizens have a very important right to scrutinize the state’s behaviour and the steps the government takes periodically to restore the environment..

Legislative powers and matters of environmental protection

Under the Indian Constitution, there are three types of lists, namely- Union, state and concurrent. Powers of the government are shared at the state and union level. Central government deals with the matters of union list, where state government deals with the matters of state list. Thus, the exclusive power to legislate the matters of union list, which is the list I, is with the Parliament. State list which is the list II covers matters like, sanitation, the health of the public, drainage, supply of clean water etc. It covers matters relating to defence, military, atomic energy, regulation of oil fields, air traffic etc.

The concurrent list’s (list III) issues fall under the purview of both the state and the federal governments. It addresses issues including population management, mine preservation, forest and wildlife protection, and many others. Nonetheless, if a dispute arises, the central government’s decision is final.

Part XI of the Constitution deals especially with the interactions between the national and state governments in terms of legislation and administration. The country’s Parliament, as opposed to each state’s state government, has the authority to enact laws that apply to the entire nation.

In the situation of national emergency, Parliament has the power to legislate the state subjects also. The division of these legislative powers is essential to make provisions which can deal with environmental problems. There are various projects taken up by the state to develop the environment but they might pose a serious threat to the environment. In such circumstances there is always a conflict between development and environment protection and such matters are dealt through the Environment Impact Assessment (EIA). This has also been recognized by the planning commission.

International Environmental Agreements

India has been a signatory to a myriad of international agreements pertaining to environmental preservation. Because it was agreed upon in the Stockholm Declaration in 1972 that there is only one environment on Earth. India is required to translate these provisions and implement them in the nation as a signatory to such international agreements. The Indian Constitution’s Article 51(c) makes it very apparent that the country must promote adherence to international law and treaty responsibilities..

Parliament may also pass laws to carry out decisions made at international conferences. Any provision made in connection with environmental protection in line with Article 253 read with Articles 13 and 14 cannot be contested in court on the grounds that the legislator lacked the authority to make the provision.

It is important to be aware that Parliament passed the Environment Protection Act of 1986 and the Air (Prevention and Control of Pollution) Act of 1981 in order to employ this power. The Preamble of these statutes makes it abundantly plain that the goal of their passage was to put into effect the resolutions made at the 1972 Stockholm United Nations Conference on the Human Environment.

In Vellore Citizens’Welfare Forum Vs. Union of India, the supreme court held that it is essential to incorporate the international customary laws in the municipal laws, provided they are not contrary to them. It is an accepted principle of law. Thus, it was considered essential to follow international laws by the domestic courts of law.

Obligation of State and Environmental Protection

In order to serve the interests of the voters who chose them, the authorities have a duty to uphold the law and maintain order. According to Article 47, the state is required to take into account the rising level of nutrition and standard of living of its citizens. Also, the state’s main responsibility is to promote public health. Alcohol and drug use, which can be harmful to the health of living things and seriously endanger their lives, must be outlawed by the state, with the exception of for medical reasons.

From the word “responsibility” it can be interpreted that state shall take effective, adequate and necessary steps to improve the health and standard of living of all and promote awareness in the context of environmental protection. In the environment development projects cannot be taken up by the individuals which harm society as a whole. Thus, the state needs to keep a stringent check on these activities and projects.

The amount of pollution in the environment is constantly rising for a number of reasons. For instance, the draining of dirty water from rivers, which not only contaminates the nation’s natural resources but also harms the health of its population, is a common cause of water pollution. As a result, it became imperative to enact legislation requiring the state to safeguard the environment.

In the case of Hamid Khan Vs. State of Madhya Pradesh AIR 1997 MP 191,, the state was negligent to supply water from the hand pumps, colossal damage was caused to the citizens, which affected their health massively. Hence, due to this gross negligence on the part of the state, it was held that the state failed to perform its basic duty.

The constitution was amended in 1976. With this modification, Article 48-A was added to the constitution with the intention of providing for improved environmental protection and preservation protections. The clause in this article requires the state to safeguard the nation’s forests and wildlife as well as to maintain and improve the environment. In this article, the term “Environment” has been used in many different ways. The state must take appropriate action to improve the environment in addition to acting as a protectionist.

Every natural resource is interconnected with other natural resources of this country. Forests are directly linked with providing pollution-free air, helps in reducing global warming and is also connected with water resources. They help in maintaining the ecological balance. Thus, this resource is crucial and hence, its protection is equally important to avoid atmospheric pollution. Hence, the specific insertion of this section is justified.

Obligation of citizens and environmental protection

The rights of the people are essentially what the state is required to do in order to protect the environment. Both the idea of rights and that of duties coexist. They are linked together. Citizens must conserve the environment and refrain from engaging in actions that endanger the health of the entire community as well as all other living things if they want to maintain a reasonable standard of life and a pollution-free environment.

Prior to the 42nd amendment to the constitution, the idea of rights was much more common than the idea of duties. The ultimate law of the land gave rights a higher priority than obligations. Yet, the constitution’s authors believed that both the state and its inhabitants must share responsibility for environmental protection. Moreover, people began to overlook their obligations in favour of their rights. The Constitution (Forty Second) Amendment Act of 1976 therefore included part IV-A.

Part IV-A of the constitution deals with Fundamental Duties.Article 51-A (g) specifically deals with the fundamental duty of the citizens to protect and improve the natural environment which includes forests, rivers, lakes, wildlife and to have compassion for living creatures. Like the duty of the state, it is the duty of all the citizens of not only protecting the environment but also taking measures which are adequate enough to improve the environment.

Nature has endowed us with resources and a pollution-free environment, and as such, it is the responsibility of the people to preserve these resources for future generations. As a result, the notion of intergenerational justice is crucial to the sustainable use of natural resources that protects the environment.

In Kinkeri Devi V State, Himachal High Court that in Article 48-A and Article 51-A(g) it was held that it is both constitutional pointer to the state and the constitutional duty of the citizens not only protect the environment but also improve it and to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all other water resources of the country.

The negligence to abide by the pointer or perform the duty is nothing basically the straight betrayal of the fundamental law of the land. In the case of betrayal, the courts cannot remain a silent spectator. A court can intervene at any time to make the implementation of the provisions by issuing writs, orders and directions as it thinks fit and necessary.

In L.K Koolwal Vs State of Rajasthan and Ors AIR 1988 Raj 2 , the municipality of Jaipur was being negligent in carrying on its basic duty of maintaining the hygiene of the state. This caused acute sanitation problem thereby leading to the to have hazardous effects on the lives of the people of the state. Mr Koolwal along with other residents moved an application under Article 226 of the Indian constitution before the high court highlighting the gross negligence of the municipality.

The court explained that, in determining the true scope of Article 51-A in this case, it is not only a duty but also a right to move to court to have a check on the government’s activities and determine whether or not the authorities are carrying out their duties in accordance with the country’s fundamental laws. For the correct execution of the obligations of the state, as well as of their relevant departments, municipal bodies, etc., citizens are allowed the right to file a court case.

Neglecting to maintain hygiene and sanitation standards poisons the environment as a whole and slowly impacts the lives of living things. This violates the citizen’s fundamental right to life, guaranteed by article 21 of the constitution, which also includes the right to a decent standard of living and a clean and safe environment. As a result, it is justified for citizens to protect their fundamental right to life from being violated. As a result, the court ordered the municipality to remove all of the filthy material that was endangering the lives and health of the populace.

In another case of Goa Foundation Vs. the State of Goa, PIL WP 32/2017 the petitioner was a society registered under the rules relating to registration of societies and its members were the citizens of India who had a fundamental duty to protect and improve the environment, lakes, forests, rivers and have compassion for living creatures as laid down under article 51-A . The question of whether the society had locus standi to move to the court or not was raised before the court.

The court answered this question in a strong affirmative, holding that society had the same fundamental obligation. The petitioner was determined to have locus standi to petition the court in order to not only stop the degradation of our ecology but also to create and carry out policies aimed at repairing the ecology and upholding ecological balance.

Public interest litigation was filed before the high court by five persons, who were residents of a specific area, in the case of Sitaram Champaran Vs. State of Bihar AIR 1960 Pat 288, 1960 (1) to seek the directions of the court for the closure of the tyre retreading plant, in the interest of public health. This plant was situated in the residential area and was emitting carbon dioxide along with other obnoxious gases causing harm to the environment. The respondents were directed to wind up the plant in the interest of environmental protection and were considered a fundamental duty under Article 51-A.

Right to life and Environment Protection

Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be deprived of his right to life or personal liberty except in accordance with procedures established by law. The words “except in accordance with procedures established by law” can be interpreted to mean that this provision is subject to exception and is regulated by law which varies from case to case.

Since the provision begins with the word ‘no’ that is the reason it has been given a negative impact. But post-Maneka period this provision has been given a positive interpretation and positively casts a duty on the state to enforce the due implementation of this law. Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections.

This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-free environment, otherwise granting such right would prove to be meaningless. This aspect of Article 21 has been evidently discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun Vs. State of Uttar Pradesh 1985 SCC (2) 431 , where the petitioner along with the other citizens wrote to the supreme court expressing their views against the progressive mining which denuded the Mussoorie hills of trees and forests and soil erosion. This lead to having an adverse effect on the environment and resulted in landslides along with blockage of underground water channels.

The registry was ordered by the Hon’ble supreme court to consider this letter as a writ filed under Article 32 of the Constitution.

An expert committee was appointed in this behalf by the Supreme Court to advise the Hon’ble court with some technical issue. On the basis of the report provided by the expert committee, the court provided the limestone quarries to be closed because it was infringing the right to life and personal liberty. Quarrying operations lead to ecological degradation and air and water pollution, which affected the lives of the people to a great extent.

In L.K Koolwal v. State of Rajasthan and Ors, AIR 1988 Raj 2, 1987 Rajasthan High Court held that maintaining the quality of the environment, sanitation and health is covered under the purview of Article 21 of the Constitution. Because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of a citizen.

In Charan Lal Sahu V. Union of India , it was held that the duty of the state is to take adequate and effective steps for the enforcement and protection of Constitutional rights guaranteed under Article 21, 48-A and 51-A(g).

In M.C Mehta v. Union of India 1987 AIR 1086 , due to stone crushing activities in and around Delhi was causing a huge problem of pollution in the environment. The court was conscious of the inevitable consequences and the ecological problems caused due to the industrial activities in the country. In the name of environmental development, it cannot be permitted to degrade the quality of the ecology and increase different forms of pollution to the extent that it becomes a health hazard to the lives of all the citizens. It was further held that citizens have a right to fresh air and have a pollution-free environment in which they live.

Further, the scope of article 21 was broadened by the judiciary to include under its purview the right to livelihood as well. It includes the right of citizens to earn their livelihood along with the right to life. The wider interpretation of this article has proved to be beneficial in keeping a strict check on the conduct and actions of the government in the context of measures taken by the authorities to protect the environment. It is also beneficial in keeping a check on the activities of the state which can have a massive impact on the environment, health of the individuals and threat to the livelihood of poor.

Indian judiciary has been very conscious while dealing with the matters of development and the environment protection to avoid the conflict between the two aspects.

In the famous Taj Mahal Case 1987 AIR 1086, ample of industries near Taj Trapezium Zone were using coke and coal as an industrial fuel. These industries were ordered to be relocated to an alternative site as provided under Agra Master Plan. The rights and duties of the workmen in the industries were also specified by the court following the principle of sustainable development.

Right To Equality and Environmental Protection

Equality before the law and equal protection of the law has been granted under Article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people.

In Bangalore Medical Trust V. B.S. Muddappa 1991 AIR 1902 an improvement scheme was prepared by the City Improvement Board of Bangalore for the purpose of extending the city. A low-level park was to be developed for which an area was kept under this scheme. But under the direction of the chief minister the area kept for the low-level park was to be converted into the civic amenity site where the hospital was to be constructed. As soon as the construction began, the residents moved to the high court.

The petition moved in by the residents was allowed by the high court. But in appeal to the supreme court, the appellant contended that the power to allot sites is completely a discretionary one and the developing authority has the right to allow the site for making hospital rather than a park. And thus, the diverted use of the land was justified in the eyes of the appellant.

By explaining the importance of open spaces and parks in the development of urban areas, the supreme court rejected the appeal. The Hon’ble court further stated that the open spaces, recreation, playing grounds and protection of ecology are the matters of vital importance in the interest of public and crucial for the development. Keeping open spaces for the interest of the public is justified cannot be sold or given on lease to any private person solely for the sake of monetary gains.

Freedom of Speech and Expression and Environment

Right of speech and expression is a fundamental right expressly mentioned in Article 19 (1) (a) of Part III of the Constitution. There have been a number of cases where people have approached the court through the way of speech and expressing themselves by writing letters like that in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh 1985 AIR 652where they have expressed the violation of their right to have a clean and safe environment and a right to livelihood.

In India, the media has been playing a crucial role in moulding the perception of people in issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well.

Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any place within the territory of India under Article 19 (1) (g) of the Constitution. But this is not an absolute right and thus, has reasonable restrictions to it.Article 19 (6) of the Constitution lays down the reasonable restriction to this fundamental right to avoid the environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.

InM.C Mehta Vs. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the holy river Ganga which was causing water pollution. Further, no primary treatment plant was being set up despite the constant reminders. It was held by the court to stop the tanneries from working because the effluents drained were ten times more noxious as compared to the ordinary sewage water which flows into the river.

The court ordered while directing tanneries to be stopped from working which have failed to take necessary steps as required for the primary treatment of effluents from the industries. The court while passing this order contended that, though the court is conscious about the unemployment that might usher due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.

In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court that the industries who did not comply or adhere to, with the prior direction of the Hon’ble court regarding the installation of air pollution controlling system should be closed. In this case, the supreme court laid down its greater emphasis on Article 19(6) of the Constitution.

Ins. Jagannath Vs. Union of India, sea beaches and sea coasts were considered to be the gifts of nature, by the Hon’ble supreme court and any such activity which pollutes these natural resources or the gift of nature cannot be permitted to function. In this case, a shrimp farming culture industry by modern method causing degradation to the ecosystem, discharge of polluting effluents, polluting the potable ground-water and depletion of the plantation. All of these activities were held to be violative of constitutional provisions and other legislation dealing with environmental matters, by the court.

The court further held that before the installation of any such industry in a fragile coastal area it is essential for them to necessarily pass the strict environmental test. In other words, reasonable restrictions can be laid in accordance with Article 19(6) of the Constitution.

Role of the Supreme Court in environmental protection

While incorporating the important features to the fundamental right provided in Article 21, certain principles were ascertained by the supreme court to be necessarily ensured for the protection of the atmosphere, which are as follows-