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..

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.

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 

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. 

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- 

Polluter Pays Principle 

The basic concept behind this principle is that “ if you make a mess, it becomes your duty to clean it up”. The polluter pays principle does not lay emphasis on the ‘fault’ rather on the curative approach to repair the ecological damage caused by any person or group of persons. This principle was for the first time referred to in the year 1972 in the OECD Guiding Principles concerning International Economic Aspects of Environmental Policies. 

Further, this principle was also applied in the case of Vellore Citizens Welfare Forum v. Union of India. In M.C Mehta v. Union of India and Ors( Calcutta Tanneries Case) 1996 5 SCR 241, 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. 

The industries which did not pay the cost of the land and did not comply with the direction of the court were further directed to be closed. The Hon’ble court again restored to the directions which were earlier given in the Vellore Citizens Welfare Forum v. Union of India. 

Precautionary Principle

Principle 15 of the Rio Declaration provides for the precautionary principle. According to this. In order to protect the environment, it is essential to apply the precautionary principle. This principle means that where there is a chance of great threat or irreversible damage to the environment, lack of full scientific certainty cannot be taken as a reason of not issuing the cost-effective methods. 

In M.C Mehta v. Union, popularly known as Taj Mahal Case, was another judgment of the court passed on the basis of the precautionary principle. In this case, public interest litigation was filed alleging the degradation of Taj Mahal due to environmental pollution. 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. 

It was held by the court that, the Taj apart from being a cultural heritage, is also an industry by itself and thus, it was directed to all the industries operating in TTZ to use natural gas as a substitute for coke/coal as an industrial fuel and if they cannot be restored to it for any reason, they must stop functioning and they may relocate themselves as per directions of the .`The industries on the relocation in new areas were to be given the incentives. 

The doctrine of Public trust 

This philosophy is based on the idea that certain resources, such as air, water, and other necessities for daily existence, are of such tremendous significance to the general populace that giving them to private ownership is wholly unreasonable. These resources should be made freely available to every member of society, regardless of their standing in life, since they are a gift from nature. According to the idea, the government must safeguard resources so they can be used by the general public rather than being used by an individual for personal financial benefit.. 

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. 

In M.C Mehta V Kamal Nath,1997, the state government granted a lease of riparian forest land to a private company having a mote located at the bank of river Beas, for commercial purposes. The hotel management was intervening with the natural flow of the river by blocking the natural spill channel of the river. This was questioned before the court through public interest litigation. The court explained the scope of public trust doctrine and observed that the doctrine rests on the primary principle that certain resources like air, water, sea and forests have great importance to people and it would be unjustified to make them subject to private ownership. 

Sustainable Development 

At the Cocoyoc Declaration, the phrase “sustainable development” was first used. The Stockholm Declaration, which said that there is only one environment in the world and that man both creates and shapes it, gave it additional momentum in the years that followed. Also, the Brundtland report defined sustainable development as the best possible use of resources for both the present and the generations to come. Intergenerational equity is therefore essential. For both current and future generations, resources must be safeguarded.

Conclusion 

The first section of this article lays forth the reasons why environmental protection is important, how the necessity for environmental protection came about, and the factors that contribute to ecological degradation. Many factors have been identified as important contributors to environmental pollution, human health issues, and a serious threat to the country’s other living things. 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 behaviour that was significantly contributing to the degradation of the environment while purporting to be exercising fundamental rights.

A remedy for this significant health risk was found in the 42nd Amendment to the Indian Constitution. The article’s provisions are highlighted from the base up in order of appearance. starting with the Preamble to the Constitution’s usage of the phrases “democratic,” “socialist,” and “republic,” as well as its relation to environmental preservation. The state has a responsibility to protect the environment because, as an institution chosen by the people, it must serve them. The idea of rights and obligations has since been discussed, including the right of a citizen to a healthy environment as well as the duties of citizens to safeguard and preserve the environment in which they live.