Author: Anshu Bansal, Research Associate
“We have to live on the earth. We cannot go and live on the other planets. Let us keep the earth clean. Let us keep the atmosphere peaceful”. -V.D.KULSHRESHTHA
Indian constitution is the bulkiest constitution in the world and it is the only constitution which recognises the right to healthy environment in its broadest sense. Taken together, the provisions under the constitution highlight the national consensus on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection ((Shyam Divan, Armin Rosen, Environmental Law and Policy in India, Second Edition, Oxford University Press, New Delhi, Pg. 45)).
Important amendments to the Indian constitution relating to environment
The Forty- Second Amendment Act:Protection of Environment and improvement was for the first time explicitly incorporated into the constitution of India. In the Directive principles of state policy (Article 48A) ((The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.))was also added. Further it is also recognises under the fundamental duties to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
The seventy-third amendment act: The Eleventh Schedule of the Constitution (Art. 243G) is added by the constitution 73rd Amendment Act, 1992, which received the assent of the President on 20th April 1993. This schedule has 8 entries (2, 3, 6, 7, 11, 12, 15, and 29), providing for environmental protection and conservation.
The seventy-fourth amendment act: The entry number 8 which provided for the Urban Local bodies, with the function of protection of environment and promotion of ecological aspects to them was added to Twelfth Schedule of the Constitution. It received the assent of the President on 20th April 1993.
Fundamental rights and directive principles of state policy relating to environmental
Article 21: According to Article 21 of the constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. It is the heart of the fundamental rights and has received expanded meaning from time to time after the decision of the Supreme Court in Maneka Gandhi vs. Union of India ((AIR 1978 SC 597.)). The Interpretation given by the Supreme Court in Maneka Gandhi’s case has added new dimensions to the concept of personal liberty of an individual. It laid down that a law affecting life and liberty of a person has to stand the scrutiny of Articles 14, 19 and 21 of the Constitution ((Kailash Thakur, Environment Protection Law and Policy In India, Deep and Deep Publications, New Delhi, Pg. 204.)). Right to life include right to wholesome environment and now the position is crystal clear that it will be in violation of article 21, if right to healthy environment is not available to any person.
Besides this under Article 47 of the Constitution incidentally touch on the environmental aspect by commanding the State to improve the standard of living and public health. The improvement of public health also includes the protection and improvement of environment without which public health cannot be assured. Under fundamental duties section, it is the fundamental duty to protect and improve environment ((Art. 51-A (g).)).
Reflection of Stockholm declaration in part iii of the constitution
Principle 1 ((Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.))of the Stockholm Declaration finds reflection in Article 14, 19 and 21 of the Constitution of India dealing with the right to equality, freedom of expression and Right to life and personal liberty of an individual respectively. All these rights are secured to the People of India under the Constitution of India particularly in Part III dealing with Fundamental Rights ((P.S. Jaswal, Nishta Jaswal, Environmental Law, Allahabad Law Agency, Faridabad (Haryana), Pg 51.)). Hence, it can be concluded that Indian constitution bears a solemn responsibility to protect and improve the environment for present as well as future generation.
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various Legislative provisions dealing with environment
The Police Act, 1861 (5 of 1861)
The Police Act makes provisions for the prevention and control of public nuisance including the noise pollution, visual pollution and other pollution etc.
The Code of Civil Procedure (1908)
Resources like land are the property of the public or state. The State or members of public in their representative capacity may approach a civil court under this code to seek relief against a polluter of resources like air, water and vegetation.
The Income tax Act, 1961 (43 of 1961)
This Act provides that 30% depreciation allowance on the written down value of certain Air and Water Pollution Control equipments can be claimed. Under the Income Tax Act 1961 a deduction towards depreciation in equipments meant for control of pollution from income from business or profession is allowed at the rates mentioned in the Income Tax Rules 1962 ((Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/6868/10/11_chapter%206.pdf)).
The Indian Penal Code
The Indian Penal Code has a chapter on offences affecting Public Health, Safety, Convenience (Chapter XIV). Sec. 268 provides that “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.”
There are over 200 Central and State government Acts specifically dealing with the protecting the environment in India. Following are some of the key ones ((Available at http://cpreec.org/environadvance.htm)).
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Rules, 1975
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Water (Prevention and Control of Pollution) Cess Rules, 1978
- The Air (Prevention and Control of Pollution) Act, 1981
- The Air (Prevention and Control of Pollution) Rules, 1982
- The Environment Protection Act, 1986
- The Environment (Protection) Rules, 1986
- Hazardous Wastes (Management and Handling) Rules, 1989
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
- The Forest Conservation Act, 1980
- The Forest (Conservation) Rules, 1981
- The Wildlife Protection Act, 1972
- The Wild Life (Transactions and Taxidermy) Rules, 1973
- The Wild Life (Stock Declaration) Central Rules, 1973
- The Wild life (Protection) Licensing (Additional Matters for Consideration) Rules, 1983
- The Wild Life (Protection) Rules, 1995
- The Wild Life (Specified Plants – Conditions for Possession by Licensee) Rules, 1995
- The Public Liability Insurance Act, 1991 etc.
- The Public Liability Insurance Rules, 1981
- The National Environment Tribunal Act, 1995
- The National Environment Appellate Authority Act, 1997
Most important among them are Environmental (Protection) Act 1986. This is a significant and all-inclusive Act. It is designed to provide a framework for Central government activities including the Water Act and Air Act. It deals with protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property ((Environment Protection Act,1986)).
Conclusion
It can be concluded that there are several legislations which explicitly deals with environmental concerns and there are some which incidentally touches upon it. The most important achievement of modern law in India is the constitutionalisation of environmental problems by the apex court of India. It mean that the right to wholesome environment is ipso-facto a part of the right of life and personal liberty too well understood to require rationalization ((Faiyaz Khan, Environmental Pollution and Indian Constitution: A New Trend.)).