Author-Roshini T
ABSTRACT
Environmental protection is a component of our cultural tradeans and ideals, and a healthy environment is crucial to a welfare state. One of the foremost reasons for any country’s overall development is environmental protection. Enhancing and preserving the quality of the environment is called environmental protection.It should be highlighted that judicial activism for environmental protection is commendable.This paper explores the intersection of constitutional law and environmental protection, examining how constitutional frameworks can safeguard environmental rights and promote sustainable development goals. It highlights the evolution of environmental provisions in constitutions worldwide and analyzes case studies where constitutional law has been leveraged to address environmental degradation and uphold the rights of communities. The research identifies key principles of constitutionalism such as the rule of law, participatory governance, and judicial enforcement that bolster environmental protection efforts. Furthermore, it discusses the role of constitutional courts in interpreting environmental rights as fundamental human rights and their impact on policy formulation. By assessing various legal mechanisms and international obligations, this paper argues that robust constitutional frameworks are essential for advancing environmental justice, ensuring the well-being of present and future generations and achieving long-term sustainability.
Keywords: Constitutionalism, Environmental Protection, Sustainable Development Goals, Legal Principles, Environmental Rights, Governance, Sustainability.
INTRODUCTION
Our Constitution has enormously grown and evolved over the years and is said to be one of the most amended constitution so far. In the Indian background, the status of environment protection has not only raised to the fundamental law of land but after a long time in recent past it is corresponded with human rights and is now accepted as well established fact that it is basic human right to every citizen of India. Constitutional environmental protection is not a new phenomenon. It has been part of constitutional systems for more than a hundred years, and of the environmental and constitutional law discourse for at least 40 years. During this time, environmental protection has been connected with constitutional phenomena such as rights, democracy, separation of powers, the rule of law and the constitutional state, among
others. Environmental constitutionalism as a concept is, however, an entirely new term of art that has only emerged in the last 3 years. Even though the discourse surrounding it is gathering pace, environmental constitutionalism still hovers at the periphery of conceptual clarity. In the context of environmental protection, constitutional provisions play a crucial role in upholding ecological rights, fostering conservation efforts, and enhancing the sustainability of human activities. This paper seeks to explore the connections between constitutionalism and environmental protection, highlighting the potential for legal mechanisms to support environmental goals and objectives.
ENVIRONMENT PROTECTION HISTORY IN INDIA
The idea of environmental conservation is a long-standing one that has been ingrained in Indian culture from the beginning of time. Understanding the current legal framework for environmental preservation and resource conservation requires an understanding of earlier Indian environmental traditions and practices. To instil a sense of devotion in people, Vodasidealized every component of nature as gods and goddesses, including the sun, water, ivers, animals, etc. Four stages have been identified in the development of environmental protection:
- Indian policies in ancient times: It might be argued that environmental awareness existed even in the pre-Vedic Indian Valley Civilization, which inhabited northern India approximately 5,000 years ago wherein archaeological evidence has been used to obtain all this information. Building dwellings, strects, weils, and other structures demonstrates a concern for hygiene and sanitation. The Vedic civilization placed a strong emphasis on cleanliness. There are numerous directions for using water to maintain its cleanliness in the Charuk Samhita, a medical science text written between 900 and 600 BC. Environmental ethics of nature protection were not only applicable to the common man but also the rulers and monarchs; they were outlined in the Arthashastra ancient text statecraft economic policy, and military strategy
- Indian policies in the mediaeval period: The Mughal emperors regarded forests merely as hunting grounds. Muslim rulers dominated historic India’s history, and it was only under the Mughal Emperor Akhar that environmental law significantly advanced. Except for the nilers, no one che was alkowed to de shikur or go hunting during Akbar’s reign. Yet, because the monarchs were solely concerned with war, the spread of religion, and empire building, no significant measures were made throughout the mediaeval era prevent environmental protection and resource conservation. There was no prohibition on cutting other trees, hunting animals, etc, other than “royal trees” that benefited from patronage and were not allowed to be cut without payment. Throughout this time, the size of the forests gradually decreased.
- British policies in India: The Merchant Shipping Act of 1858 addressed the prevention of oil pollution of the sea. “The Fisheries Act of 1897, The Bengal Smoke Nuisance Act of 1905 The Bombay Smoke Nuisance Act of 1912. These are some of the important laws for the environment. protection that was introduced. The Shore Nuisance (Bombay and Kolaba) Act of 1853 limitations on the fouling of seawater.
- Policies enacted upon independence: Environmentalism and the prevention and control of pollution were not covered by the 1950-adopted Indian Constitution. The Stockholm Declaration of 1972 drew the Indian government’s attention to the horder viewpoint of environmental preservation. Central Government pussed extensive (special) environmental legislation as follows: In India, the central government passed extensive environmental legislation as follows:
- The Ministry of Environment and Forests (MoEF) was established in 1985 after the National Council for Environmental Policy and Planning was established in 1982.
- Modern, logical wildlife management was the goal of the Wildlife (Protection) Act of 1972.
- In order to act as protectors for the pollution control and prevention efforts, the Water (Prevention and Control of Pollution) Act of 1974 calls for the setting up of pollution control boards at the federal level and in each state.
- The 1980 Act of Forest (Conservations Act sought to prevent deforestation, divert forest area away from frostery and advance social forestry.
- With the use of pollution control boards, the Air (Prevention and Control of Pollutions Act of 1981 from forestry, and advanced social forestry sought to reduce air pollution.
- The Environment (Protection) Act of 1986 is a piece of legislation that tries to close legal gaps and gives the country a singular focus on environmental protection.
- The Public Liability Insurance Act of 1991 mandates insurance in order to help anyone harmed by mishaps that occur when handling any hazardous product by providing them with instant relief.
- The Biological Diversity Act, passed in 2002, is a significant piece of law that is intended to safeguard the biodiversity in the area around communities.
The 2006 policy of National Environment Policy has its goals in the preservation of important ecological environmental resources, intergenerational equity, the security of poor people’s livelihoods, the incorporation of environmental issues into economic and social development, the efficient use of environmental resources, and the implementation of strategies for environmental protection.
ENVIRONMENT AND CONSTITUTION OF INDIA:
The protection and improvement of the environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare State. The Indian Constitution contains specific provisions for environment protection under the chapters of Directive Principles of State Policy and Fundamental Duties. The absence of a specific provision in the Constitution recognizing the fundamental right to a clean and wholesome environment has been set off by judicial activism in recent times.
Articles 48-A and 51-A. Clause (g):
Initially, the Constitution of India had no direct provision for environmental protection. Global consciousness for the protection of environment in the seventies, Stockholm Conference and increasing awareness of the environmental crisis prompted the Indian Government to enact 42nd Amendment to the Constitution in 1976. The Constitution was amended to introduce direct provisions for protection of environment. This 42nd Amendment added Article 48-A to the Directive Principles of State Policy.
Article49-A:
The Article states: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” The said amendment imposed a responsibility on every citizen in the form of Fundamental Duty.
Article 51-A, Clause (g):
Article 51-A (g) which deals with Fundamental Duties of the citizens states:
“It shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living creatures.”
Thus, protection and improvement of natural environment is the duty of the State (Article 48-A) and every citizen (Article 51- A (g)).
Article 253:
Article 253 states that ‘Parliament has power to make any law for the whole or any part of the
country for implementing any treaty, agreement or convention with any other country. In simple words this Article suggests that in the wake of Stockholm Conference of 1972, Parliament has the power to legislate on all matters linked to the preservation of natural environment. Parliament’s use of Article 253 to enact Air Act and Environment Act confirms this view. These Acts were enacted to implement the decisions reached at Stockholm Conference.
LEGISLATIVE MATTERS AND ENVIRONMENT PROTECTION
Since in Indian Constitution , there are three lists:
- Union List
- State List
- Concurrent List
As we know the authority of dealing with the matters of the concurrent list (list III) is shared between both the state and central government. It covers matters like protection of forests, wildlife, conserving mines, population control etc. but in the instance of conflict, the decision of the central government will supersede. The legislative and administrative relations between the central and the state government are precisely dealt in with the part XI of the Constitution. The power to make rules for the whole country is with the Parliament of the country, while for that of the state lies with the state government of every state. In an instance of passing state laws successive to the central laws, for it to prevail, requires a Presidential assent first as in accordance with Article 254. 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. The Constitution of India has made a double provision:
(i) A directive to the State for protection and improvement of the environment.
(ii) Imposing on every citizen in the form of fundamental duty to help in the preservation of
natural environment. This is the testimony of Government’s awareness of a problem of
worldwide concern. Since protection of the environment is now a fundamental duty of every citizen, it is natural that every individual should do it as a personal obligation, merely by regulating the mode of his natural life. The citizen has simply to develop a habitual love for pollution.The Constitutional provisions were,
1. Article 48(A)
2. Article 21
3. Article 253
4. Article 51(A)
5. Article 19(1)(g)
6. Article 51
7. Article 14.
EXPLICIT ENVIRONMENTAL CONSTITUTIONALISM- DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
The Indian Constitution of 1950 is a lengthy, elaborate, detailed document. Following the Stockholm Declaration in 1972, the Constitution was amended by the 42nd amendment in 1976 to explicitly incorporate environmental protection provisions within the directive principles of state policy and fundamental duties. The directive principles of state policy though not enforceable in courts of law are accepted as fundamental moral principles and values in the governance of the country to secure social and economic freedoms. They constitute fons-juris in a welfare state and obligate the state to take positive action to promote the welfare of the people. They set forth the humanitarian socialist precepts that were the aims of the Indian social revolution.
Article 48 A, was added to the directive principles of state policy by the 42nd amendment to the Constitution. The article requires the state to ‘endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.’ Environmental constitutionalism recognises that ‘environmental care’ expressed through moral and ethical principles because of established cultural, social, and legal experiences and practices can help achieve such environmental protection necessary for human welfare. Readings from ancient Indian law serve as a window on the varying interests and increasing demand on natural resources and the subsequent state policy responses. For example, Kautilyan jurisprudence states that it is the dharma (duty) of the king not only to protect forests but also establish new forests. The dharma of protecting the environment was to sustain and ensure progress and welfare of all and balance the ecosystem. Today the responsibility for environmental protection rests with the Supreme Court of India.
In Ivory Traders and Manufacturers Association v Union of India, the court acknowledged that Article 48A is based on moral values and ethics. It draws heavily from religious Hindu scriptures to show compassion towards nature, animals and birds as all are considered to have come from the same source. To quote:
‘Lord Krishna in the Bhagavad Gita declared that ‘SERVE YONISU AHAM BIJA PRADAHPITAH’ which means I am the father of all. The followers of the Gita are steeped in the belief that even the leaves of the trees, the petals and the flowers have life and God pervades in them. The state has a solemn duty to give effect to Article 48 A …ensure that the survival of man co-exists with nature… to sub-serve the common good.’
JUSTICIABLE ENVIRONMENTAL CONSTITUTIONALISM:
The Indian judiciary promotes the justiciability of environmental rights and obligations thus bringing ‘environmental care’ under the constitutional aegis. Broad and diffused standing or locus standi opens constitutional remedies to ‘environmental care’ to enforce environmental rights and secure environmental justice. The use of Public Interest Litigation (PIL) since 1980’s as a broad-based, people-oriented approach envisioned access to justice as a ‘wheel of transformation’ through judge-fashioned processes and remedies in a wide variety of socio-economic cases60. PIL has emerged as a procedural tool ‘redressing public injury, enforcing public duty, protecting social, collective, “diffused” rights and interests or vindicating public interest’. Environmental PIL is a product of the higher judiciary’s response to the inaction of the state or failures of state agencies to perform their statutory duties resulting in endangering or impairing people’s quality of life as guaranteed by the constitution. This has prompted environmentalists, NGOs and affected citizens to approach the courts, particularly the higher judiciary, for remedial action. In this context, environmental constitutionalism embodies PIL as a transformative approach to provide access to justice to victims of environmental degradation. The use of Article 32 as a ‘constitutional remedy’ for the enforcement of fundamental rights, in particular Article 21, in
environmental PIL constitutionalised ‘environmental care’ to forge new remedies and fashion new strategies for environmental protection. ‘A right without a remedy is a legal conundrum of the most grotesque kind. Article 32 confers one of the highly- cherished rights’
The Supreme Court has relaxed the traditional standing or locus standi rule in environmental PILs to provide access to environmental justice to people who otherwise would be denied it. Procedural technicalities take a back seat in environmental PILs when a matter of grave public importance is considered by the court. Strict rules of pleading may not apply to the PIL. Pleadings prepared by a layman are construed generously as he lacks the standards of accuracy and precision particularly when a wrong is committed to a determinate class. Thus, the relaxation of the rule of locus standi has resulted in a major procedural innovation.
Despite these criticisms, environmental PIL has produced a major change to India’s environmental constitutionalism landscape. Environmental PIL is transformative and promotes ‘environment care through ‘collaborative approach, procedural flexibility, judicially supervised interim orders and forward-looking relief’. It is a ‘testament to Indian democracy’ to improve environmental governance through constitutional attributes including fundamental rights and duties, rule of law and separation of powers.
JUDICIAL APPROACH FOR THE ENVIRONMENTAL PROTECTION IN INDIA
There have been several environmental protection-related court decisions and regulations over the years, both small-scale and significant. Because of its practical and realistic outlook, the judiciary has been able to interpret Article 21’s right to life and personal liberty to include the right to live in a clean environment. The most notable aspect of this enlargement of Article 21 is that by using the magic wand of judicial activism, many of the non-justiciable Directive Principles enshrined in Part-IV of the constitution have now been revived as enforceable fundamental rights. Environmental litigation increased dramatically as a result of Public Interest Litigation under Articles 32 and 226 of the Indian Constitution. The Supreme Court has made significant environmental decisions in instances involving the closure of limestone quarries in the Dehradun region, the installation of safeguards at a chlorine factory in Delhi. M.C. Mehin v. Union of India, and other issues. The court noted that “the Precautionary Principle” as well as “the Polluter Pays Principle are crucial components of “Sustainable Development in Vellore Citizens Welfare Forums. Government of India. Society is polluted by excessive noise. The right to a decent environment and the right to live in peace are guaranteed under Article 19 (1) (a) of the Indian Constitution when read in conjunction with Article 21. The Kerala High Court ruled in PA Jacob v. The Superintendent of Police Kottayaon, that using loudspeakers or sound amplifiers is not protected by article 19 (1)(a) of the constitution. As a result, Article 19 (1) (a) of the constitution allows for the control of noise pollution brought on by loudspeakers.
In M.C. Mehta v. Union of India 1988, the supreme court instructed the national and stale governments, as well as numerous municipal organisations and boards operating under various statutes, to take the necessary precautions to avoid and manage water pollution. The doctrine of public trust was discussed in Association for Environmental Protection v. State of Kerala AIR 2013, and it mandates that private ownership or commercial exploitation to state the greed of the few.
The Supreme Court of India ruled in M.C. Mehta Union ludia that Article 21 of the Constitution, which is a fundamental right under Part III of the Constitution, covers and protects the citizens health and their right to life, and that all buses running in Delhi must switch to C.N.G. fuel niode. As a result, it would supersede all statutory provisions, including the Motor Vehicles Act. In this decision, the court emphasised that the requirements of the Environment (Protection) Act, 1986 are in addition to those set forth in the Motor Vehicles Act and do not supersede them. The Supreme Court of India ruled in the case of Murli S. Deora v. Union of India that no smokers only develop lung cancer or heart problems because they must enter public spaces. Without any legal procedure, it is indirectly taking his life. Smoking is harmful to health and can have an impact on smoker’s health, but there is no reason why passive smoker’s health should also be negatively impacted. The Court stated that there is no justification For making non-smokers and passive samplers into helpless victims of air pollution in any situation.
The supreme court mandated the closure of limestone quarries in the DehraDun-Mussoorie
Region in Ratlam Municipality v. Vardhichand. The court acknowledged that the closure of limestone quarries would put a strain on the economy, but it pointed out that this is the cost of defending the public’s right to live in a healthy environment with little disruption of the ecological balance, without. avoidable risk to themselves and to their cattle, homes, and agricultural land, and without excessive harm to the air, water, and environment. In the case M.C. Mehta v. Kamal Nathh The petitioner argued that anyone who interferes with the ecological balance or the gifts of nature including rivers, woods, air, and water would be breaching a fundamental busic right protected by Article 21 of the Constitution. The Supreme Court agreed with the petitioner’s argument and decided that any disruption of the fundamental elements of the environment Le, air, water, and sod that are required for “life” would be dangerous to “life” as defined by Article 21 of the Constitution. After its ruling that it violated article 21, the court went public trust doctrine and the polluter pays principle also applied in these situations. note that the In M.C. Mehta v. Union of India,” a suit was brought to stop the Taj Mahal from deteriorating because of pollution from coal-using establishments via trapezium. In response to violation of Articles 21. 484. 51A, and 47 of the Constitution, the Apex Court issued directives to 292 industries in Agra to switch over to natural gas as their industrial fuel within a set time frame of cease operating with coal or coke and to petition for relocation or cease operations altogether.
The Supreme Court ruled in Corporation of Greater Mumbai v. Kohinoor CTNL. Infrastructure Co. Pvt. Ltd. that the right to a clean, healthy environment a component of Article 21 guaranteed the right to life and personal liberty.
CONCLUSION
India, a nation of 1.3 billion people, continues to experience environmental challenges that are both significant and numerous. Within this context environmental constitutionalism helps augment environmental care through a transformative approach involving broader constitutional, environmental law and governance responses. The legitimacy of the environmental constitutionalism paradigm depends on the creativity of those working on the problem. In the Indian context, the role of the judiciary is critical as it shapes the normative interpretation of the constitutional and regulatory framework. The Indian Supreme Court, a bedrock institution, has earned public respect and increased credibility through innovative and creative judicial craftsmanship. In conclusion, this research paper underscores the vital role of constitutionalism in promoting environmental protection, framing environmental rights as core values enshrined in constitutional texts. By strengthening the nexus between constitutional law and environmental governance, societies can strive towards a more resilient, equitable, and ecologically sustainable future.
