12 Chapter 3

Chapter-III
ROLE OF GREEN CONSTITUTION IN PREVENTING

ENVIRO-CRIMES IN INDIA
3.1. Introductory Outline
“The earth, the air, the land, and the water are not an inheritance from our fore
fathers but on loan from our children. So we have to handover to them, at least, as it
was handed over to us.”
-Mahatma Gandhi
India has inherited a culture of tolerance, non-violence, equity and compassion for
animated objects. In the olden times, environment was a part of daily life and
synthesized with the religion. Religious teachings, social and political norms, and
economic policies treated man as a part of nature, not as moulder or superior to it. Air,
water, land, animals, plant and human beings are the creation of one superior power
i.e. God.1 Therefore, the fundamental ethics of behavior with each other was to live in
harmony with each other because it was well realized that each one of them is
dependent on one another, and destruction or damage to the other is the destruction of
self, and is complimentary to each other.
Therefore, inter-dependence, cooperative living and close association with each other
and these components of environment was the real basis of human life. Wisdom of
Vedas, religious principles of Hindus, and moral doctrine, taught the lesson of
coexistence between man and his environment which later on became a part of the
daily life of people.2
The above mentioned philosophy of peaceful coexistence with nature got mentioned, in
one way or another, in the Indian Constitution. Our Constitution is a complete document
to maintain its wholesomeness. When we are discussing about environmental pollution,
we should look into our Constitution to trace out the provisions for their prevention and
protection. Although, initially when our Constitution was drafted no specific provision
was there not even „environment‟ term found any place in the constitution.
1
Satish C. Shastri, Environmental Law 08 (Eastern Book Company, Lucknow, 4 thedn. 2012).
2
Ibid.
81
However, there were some incidents of environment which were there in the original
draft constitution such as:
“Improvement of public Health, 3 organization of agricultural and animal

husbandry on modern and scientific lines4 and protection of natural monuments
from spoiled, disfigurement, etc.”5
Article 47 of the Constitution is of specific importance as it provides that:
“The state shall regard the raising of the level of nutrition and the standard of
living of its people and improvement of public health as among its primary
duties.”6
Safeguarding and preserving of environment is basically inbuilt in the improvement

of public health because without clean environment public health cannot be assured. It
shows that our forefather were very much aware about the environmental problems.7
However, after two and half decades of long journey of the Constitution in 1976, four
years after the Stockholm Conference, the significant development happened when
the Constitution (Forty-second Amendment) Act, 19768, was passed by the Indian
legislature and for the first time provisions relating to the protection of environment
were incorporated by inserting a new provision that is Article 48A in the Chapter of
Directive Principles of State Policy. Further, a new provisions Article 51A in the form
of “Fundamental Duties” was also inserted by the 42ndAmendment. Article 48A is a
Constitutional pointer to the State to “protect and improve the environment”, and
Article 51-A (g) impose a fundamental duty on the citizens of India to:
“Protect and improve the environment and have compassion for living
creatures”.
This clearly shows that the Indian Legislature has fallen in the category of old
traditional values. The language used in the Articles clearly indicated the principle of
equity, coexistence, reverence for nature and non-violence has been given
3
Constitution of India, art. 47.
4
Ibid, art 48.
5
Ibid, art. 49.
6
Sukanta K. Nanda, Environmental Law 82 (Central Law Publications, Allahabad, 4thedn., 2015).
7
Ibid.
8
The Constitution of India (42nd Amendment) Act, 1976 received the assent of the President of
India on 16/12/1976.
82
Constitutional recognition. 9 The Indian constitution contains specific provisions
relating to the protection of environment. It imposes positive duty on both state as
well as citizens to protect as well as improve environment. 10 The protection of
environment is also implicit in our preamble as it talks about the socialistic pattern of
life and substantive justice it implies natural environment belongs to everyone and
right to live in pollution free environment is inherent in that concept .
The creative judicial interpretation of Article 21 by the Indian Judiciary, which

provides “right to life and personal liberty”, has immensely contributed to the
development of the environmental jurisprudence in India specially in post Meneka
era. The Supreme Court has asserted that:
“In order to treat a right as a fundamental right, it is not necessary that it

should be expressly stated in the Constitution as a fundamental right.”
Since, Maneka Gandhi era, Article 21 has been stretched to its various dimension. This
ambit of article 21 is expanded by many judicial decisions. The meaning of “life and
personal liberty” in Article 21 has been reinvented to its best possible manner, narrow
interpretation was replaced by the broad one clothed with the doctrine of due process.11
The right to life enshrined in Article 21 has been liberally interpreted so as to mean:
“Something more than mere survival and mere existence or animal existence”.
It therefore, includes in its folds all those dimensions of life which is fundamental in
making a man‟s life meaningful, complete and worth living. 12 The Supreme Court
asserted that “Article 21 is the heart of the Fundamental Rights.”13 Though the wording
of Article 21 suggests its negative content however, it has larger implicit positive
content.14 The Supreme Court held in catena of cases that it is not always important that
fundamental rights must be expressly given it may be implicit as many cases apex court
brought many directive principles into the fold of Fundamental rights.15
9
Ibid.
10
Iqbal Ali Khan, Environmental law 35 (Central Law Agency, Allahabad, 2ndedn., 2002).
11
M.P. Jain, Indian Constitutional Law 1120 (Wadhwa and Company, Nagpur, 5thedn. (reprint),
2005).
12
Ibid.
13
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.
14
P. Rathinam v. Union of India, AIR 1994 SC 1844.
15
See, Directive Principles of State Policy and Fundamental Duty.
83
Besides several Civil and political rights which the Supreme Court has derived out of
Article 21, as stated above, “the Supreme Court has made a vital contribution to the
welfare of the people by its creative interpretation of Article 21 for the improvement
and protection of the environment. The liberal interpretation of „Life‟ in Article 21 has
led to the unprecedented development of environmental jurisprudence in India.
Although a number of statutes have been enacted with a view to protect environment
against pollution, and administrative machinery has been put in place for the purpose
of enforcement of these statutes, given the fact that having sufficient legislative and
administrative structure.”
The unfortunate fact remains that the enforcement agencies did not work properly in
protecting environment no concrete steps have been taken by the administration to
control environmental pollution and perhaps because of this vacuum court had to take
step. And in doing so, Court has taken steps to protect environment by interpreting
such Directive Principles as those contained in Articles 47 and 48 as well as on the
Fundamental Duty contained in Article 51A(g) of the Constitution of India, 1950.16 In
a case of the effect of asbestos exposure on “the health of workers, the Constitution of
India provides the right to health and medical aid to protect the health and vigour of
a worker while in service or after retirement.” The Court held that:
“It is a fundamental right under Article 21 read with Article 39 (e), 41, 43, 48-
A and all related Articles and fundamental human rights to make the life of the
workman meaningful and purposeful with dignity”.17
Therefore, any disturbance in any of the fundamental environment elements, namely,

“air, water, and soil, which are basic for „life‟ would be construed as hazardous to
„life‟ within the meaning of Article 21 of the Constitution of India, a person has
remedy under Article 32 or Article 226 for removal of such pollution of water or air
which may be hazardous or detrimental to the quality of Life. A affected person, or
persons or even group of social worker, NGOs or journalist have locus standi to file
petition for the prevention of pollution.”18
16
M.P. Jain, op.cit, at 1137.
17
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
18
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
84
Article 246 distributes the subjects of legislative power in these three lists between the
Center and the States. The Union List19 and State List20 attached with the Seventh
Schedule. But Article 253 of the Constitution of India empowers Parliament to
legislate on any matter for implementing the international obligations and decisions
taken at the international conferences, conventions, treaty, associations or other
body‟s meeting. Thus, to implement the decisions of the Stockholm Conference of
1972, Parliament of India passed many laws. 21It is to be noted that this power of
Indian Parliament has never been disputed. List III (Concurrent List) 22 of Seventh
Schedule also provides power to the Indian Parliament on various aspects related to
environment.
3.2. Constitution of India and Right to Healthy Environment
Although no global international agreement has explicitly recognized a right to a

healthy environment, over 90 national constitutions now recognize some form of the
right. Many sub-national governments also recognize rights to a healthy environment,
even if the right is not recognized in their national constitution. The constitutional
right to a healthy environment arises in two primary ways:
a. either the right is explicitly adopted in a national constitution; or

b. it is implied or derived by courts from other constitutional rights, such as right
to life or health.
In addition, many constitutions include procedural rights, such as rights to

information, that are explicitly linked to the environment. In 1976, Portugal became
the first state to adopt an explicit constitutional right to a healthy environment. France
and Costa Rica are the two leading examples of the adoption and implementation of
environmental rights into national constitutions. Courts in about 20 countries have
ruled that the constitutional right to life includes an implicit right to a healthy
environment.
19
The Constitution of India, 1950, Union List I consists of 97 items.
20
The Constitution of India, 1950, State List II consists of 66 items including public health and
sanitation, agriculture, water-supply, irrigation, drainage and fisheries.
21
Example, The Water (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and
Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1981; and the
Environment (Protection) Act, 1986.
22
The Constitution of India, 1950, Concurrent List consists of 47 items on which Parliament of India
and States Legislatures both can make laws. But if both the laws are inconsistent, the law passed
by Parliament will prevail.
85
3.2.1. Preamble a Key to Unlock the Legislative Intent in the Field of
Environmental Sphere
It is worthwhile to take note of the wording used in the Preamble of our Constitution
which has been given a place of pride by the makers of the Constitution to trace the
concern for the environmental pollution. The importance of the Preamble has been
emphasized by the Supreme court in several cases as it has been regarded as the “key
to open the mind of the makers,” 23 Holding the Preamble to be a part of the
Constitution24, the Supreme Court observed that:
“The Preamble of our Constitution is of extreme importance and the

Constitution should be read and interpreted in the light of the grand and noble
vision expressed in the Preamble.”
The Preamble starts with these prophetic the words, „We, the people of India‟ which
indicates source of power and legitimacy, i.e., the people of India. Thus:
“We the people solely responsible for constituting India into a sovereign,
socialist, secular, democratic, republic.”
Initially term secular and socialist was not mentioned in the Preamble of the
Constitution. It was inserted by the 42nd Amendment Act, 1976. The importance of
this amendment is not hard to visualize. This amendment imposes several new
positive duty on the State. The State is tasked with big responsibility of making social
justice a reality to its people.25 The problem of environmental pollution is not isolated
one it indeed has social context affecting the society at large. Environmental pollution
is perhaps one of the most important and complex contemporary social problems that
a nation is called upon to face. The challenge of environmental pollution, like the
population problem, is ever increasing. The problem hits every nation whether
developing or developed.
The Preamble of the Indian Constitution, 1950 envisages our country to be based on
“socialistic” pattern of the society where priority of the State is society as a whole
rather benefit of some individuals. The fundamental aim of socialism is to provide
23
The Supreme Court held this view in Re Berubari Union v. Union of India, AIR 1960 SC 845.
24
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
25
Narender Kumar, Constitutional Law of India 37 (Allahabad Law Agency, Faridabad, Haryana, 8th
edn, 2012).
86
“decent standard of life to all”, which can be enjoyed only in a pollution free
environment. Pollution is one of the most complex social problems and the:
“State is required under the supreme law of the land to pay more attention to
this problem and march towards the avowed aim of just social order”.26
This objective of the preamble is reflected clearly and specifically in Part IV of the
Constitution of India, 1950. The preamble of the Constitution also declares India to be
a Democratic Republic:
“In a democratic set up, people have the right to participate in government
decisions. People also have right to know and access information regarding
government policies which is very important for the success of environmental
policies. The other objective of preamble, i.e. justice, liberty and equality find
place in Part III.”27
Further, the Preamble of the Constitution declare “core rights and freedoms which the
people of India intended to secure to all its citizens i.e. justice, social, economic and
political. Here, justice includes environmental justice.28 Although the particular word
„environment‟ does not find a place here, we can very well interpret this to include
environmental justice. Environment as a subject-matter has entered in our day to day
life in such a way that we cannot separate us from ecological matter when discussing
about socio-economic or socio-political scenario of the nation.” In this connection, it
is important to quote a learned author who says29:
“Environment as a subject, environment as a concern and environment as a

part of socio-economic-political structure in the country seems to have taken
of. In fact it has entered the structure in such a way that no intellectual,
political or even academic discourse is complete without it.30”
Thus, in our discourse about social, economic or political justice we must not forget to
include environment, as it has become an inseparable part of the social structure. The
26
The Constitution of India, 1950, art. 38 states that: “Mandates the state to secure social order for
the promotion of welfare of the people”.
27
P.S. Jaiswal, Environmental Protection, Sustainable Development and the Law 37 (2nd edn., 2007).
28
Sukanta K. Nanda, op.cit, at 83.
29
K.S. Dakshinamurthy in “Politics of Environment” XXI: 18 Economic and Political Weekly 773
(3rd May, 1986).
30
Ibid.
87
State, therefore, should endeavour to take all requisite steps to secure its citizens
environmental justice.
3.2.2. Fundamental Rights a Constitutional Conspectus
Fundamental Rights is being considered as a superior class right. The Constitution of

India, 1950 under Part III guarantees fundamental rights which are:
“Essential for the development of every individual and to which a person is

inherently entitled by virtue of being human alone.”
Our Constitution in Part III gives much importance on equality, freedom and liberty
and also prescribes Constitutional remedies. When human rights are guaranteed by a
written Constitution, they are called Fundamental Rights, because a written
Constitution is the fundamental law of the State.31India has a written Constitution and
while framing the same the framers were influenced by the concept of human rights
and therefore our Constitution guarantees most of the human rights. 32 The respect for
the basic human rights in India is also reflected in its resolution adopting the
International Covenant on Civil and Political Rights, which was came into being in
the year 1966. The aim of the expression „human rights‟ is to:
“Promote individual welfare as well as the social welfare as it embraces the

rights of man both as an individual and as a member of the society”.33
Principle 1 of the Stockholm Declaration finds its image in “Articles 14, 19, 21 of the
Constitution of India, 1950 dealing with the right to equality, freedom of expression
and right to life and personal liberty respectively.” 34 Constitutional provisions are
never static, narrow, pedantic, or syllogistic approach. Constitutional provisions in
general and fundamental rights in particular must be broadly construed unless the
context otherwise requires. The scope and ambit of such provisions, in particular the
fundamental rights, should not be cut down by too astute or restricted approach.35
31
D.D. Basu, Human Rights in Constitutional Law 01 (Prentice Hall of India, New Delhi, 1994).
32
Id. at 13.
33
34
Principle 1 of the Stockholm Declaration 1972 provided that: “man has the fundamental right to
freedom, equality and adequate conditions of life, in an environment of equality 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.”
35
See, Life Insurance Corporation of India v. Manubhat D. Shah, A.I.R. 1993 S.C. 171; See also
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305.
88
These fundamental rights are intended to serve generation after generation. These are
not only the rights in themselves but to move the Supreme Court for their enforcement
to seek the constitutional remedy is also guaranteed by these, thus, imposing a duty on
the Supreme Court to protect these rights.36
The scholars of eminence with detail deliberation to protect the humanity adopted this
fundamental right part of the Indian Constitution. Denial of these basic rights means
“denial of all others rights because none of the other rights would have any utility and
existence without it. 37 They had to be stated in broad terms leaving scope for
expansion by courts ensuring that the honour, dignity, and self-respect of the people
are of prime importance.”
In order to treat a right as a fundamental right it is not always necessary that” it should
be expressly stated in Part III of the Constitution of India.” In other words, there are
many un-enumerated fundamental rights evolved by the judiciary and included in Part
III .judiciary in India has taken a lead in interpreting various un-enumerated rights in
Part III of the Constitution. Environment protection is one of them. The Supreme
Court of India has contributed significantly especially during 1980‟s in broadening
the contents and contours of some of these basic rights. Thus, the judiciary in India
has provided impetus to the human rights approach for the protection of environment.
3.2.2.1. Equality before Law and Concept of Healthy Environment
Article 14 of the Constitution provides:
“State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”38
It indicates that any action of the State relating to environment must not infringe upon
the right to equality as enshrined in Article 14 of the Constitution. The Stockholm
Declaration, 1972 has also recognized this principle of equality in environmental
management. Principle 1 of the Declaration states:
36
Id., at 57.
37
Shailaja Chander, Justice V.R. Krishna Iyer on Fundamental Rights and Directive Principles 159
(Deep & Deep Publication, New Delhi, 1995).
38
P.M. Bakshi, The Constitution of India 19 (Universal Law Publishing Co. Pvt. Ltd., 12 th edn.,
2013).
89
“Man has the fundamental right to freedom, equality and adequate conditions of
life, in environment of a quality that permits a life of dignity and well-being…”39
On various occasions, the Indian Supreme Court has declared “unconstitutional

arbitrary official sanction in environmental matters on the basis that it was violative of
Article 14 of the Constitution of India, 1950.”40 Article 14 of the Constitution of India
is the principal instrument that:
“Strikes at the arbitrariness in executive/administrative action because any

action that is arbitrary must necessarily involve the negation of equality. One
need not confine the denial of equality to a comparative evaluation between
two persons to arrive at a conclusion of discriminatory treatment. An action
per se arbitrary itself denies equal protection of law. It is thus, too late in the
day to contend that an executive action shown to be arbitrary is not either
judicially reviewable or within the reach of Article 14”.41
The Indian Constitution is perhaps one of the unique Constitutions of the world which
manifest the Human Rights approach to environment protection through various
constitutional provisions and interpretations. In India:
“The concern for environment protection has not only been raised to the status
of fundamental law of the land, but it is also wedded with the human right of
every individual to live in pollution free environment with full human dignity.
The Constitution of India obligates the “State” as well as “citizens” to
“protect” and “improve” the environment”.42
3.2.2.2. Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex

or Place of Birth and Environment
The Constitution of India generally prohibits discrimination on grounds of religion,

race, caste, sex, or place of birth. According to Article 15(2) (b):
39
Declaration of the United Nations Conference on the Human Environment, 1972, available at:
http://www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503,
(accessed on 19th May 2014).
40
See, Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487.
41
A.L. Kalara v. The Project & Equipment, AIR 1984 1361, available at: http://www.harjinder
singh.in/arbitrariness-is-antithetic-to-the-right-to-equality, (accessed on 19th May 2014).
42
Deepika Chouhan and Prabhash Dalei, “Right to live in Healthy Environment–In framework of
Indian Constitution” International Conference on Humanities, Economics and Geography 231
(March 17-18, 2012).
90
“No citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them be subjected to any disability, liability, restriction or condition
with regard to: the use of wells, bathing ghats, roads and places of public
resort, maintained wholly or partly out for state funds or dedicated to the use
of general public.”43
The public places, which are integral part and parcel of the human environment,
should be kept open to the public. 44 The preamble to our constitution ensures
“socialistic pattern of the society and decent standard of life, which can only be
realized in pollution free environment.”45
Thus, the Constitution of India says that any part of natural or man-made available to
the use of general public, no social disabilities and social system should be disturbed
by showing discrimination against any citizen on the grounds mentioned in the above
Article.46
3.2.2.3. Protection of certain rights regarding freedom of speech, etc. and

Environment Protection
Article 19 of the Constitution of India, 1950 guarantees to the citizens of India the
following six fundamental rights:
a. freedom of speech and expression,

b. freedom of peaceful assembly and without arms,
c. freedom to form associations or union,
d. freedom of movement,
e. freedom to reside and to settle, and
f. freedom of profession, occupation, trade or business.
The freedoms enumerated in Article 19 (1) are those which forms core of civil and
political rights which are recognized as the natural rights inherent in the status of a
43
MP. Jain, Indian Constitutional Law 932 (LexisNexis, Gurgaon, 7thedn., 2014).
44
Kamaluddin Khan, “Constitutional provision and the environmental protection”, available at:
http://twocircles.net/book/export/html/135417, (accessed on 24th June, 2015).
45
The Constitution of India, 1950, art. 15.
46
Rsedear S.R.A., Environmental Law, 20 (Lexis Nexis, Gurgaon, 1st edn., 2014).
91
citizen. But none of these freedoms are absolute or uncontrolled and may be restricted.
A restriction to be constitutionally valid must satisfy the following two tests47:
i. the restriction must be for the purposes mentioned in clause (2) to (6) of
Article 19, and
ii. the restriction must be reasonable.
a. Freedom of Speech and Expression
Noise pollution caused by loudspeaker, amplifier, and horn, etc. can be restricted
under Article 19 (1) (a) of the Constitution of India. Excessive noise creates pollution
in the society having many of its ill effects. The constitution of India under Article 19
(1) (a) read with Article 21 of the constitution guarantees right to decent environment
and right to live peacefully. In the case of P.A. Jacob v. The Superintendent of
Police Kottayam48, the Kerala High Court held that:
“Freedom of speech under article 19 (1)(a) does not include freedom to use
loud speakers or sound amplifiers. Thus, noise pollution caused by the loud
speakers can be controlled under article 19 (2) of the constitution”.
In Rajni Kant v. State49, Allahabad High Court examined how far refusal to permit
loudspeaker for public meeting would affect free speech. In Moulana Mufti Syed Md
Noorur Rehman Barkati v. State of West Bengal50, and in Om Birangana Religious
Society v. State51, Calcutta High Court scrutinized the dimension of control over the
use of microphones and loudspeakers. Their excessive noise would affect human
health.
b. Freedom of Information and the Right to Know
Public participation in environmental decision-making can be meaningful and

effective only if people have a right to know. This is imperative in environmental
matters because, for example, government decisions to site dams and large projects
may displace thousands of people and deprive them of their life styles and
47
Ashok K. Jain, Law Guide for Judicial Service Examinations Vol. II 36 (Ascent Publications,
Delhi, 4th edn., (reprint), 2014).
48
A.I.R. 1993 Ker 1.
49
AIR 1958 All 360.
50
AIR 1999 Cal. 15.
51
(1996) 100 Cal WN 617.
92
livelihood.52 Right to know strengthen participatory democracy also as armed with
information on government programmes; citizens may influence decision-making
through representations, lobbying and public debates. Public access to government
information enables citizens to exercise their political options purposefully. Thus, the
right to be informed of public acts can help check abuse of executive power.
Likewise, access to government records, can better equip a public spirited litigant,
particularly environmental groups, to fight cases of environmental degradation and
clearly establish where public interest lies.53
This right to know is a basic democratic right.54 The Supreme Court has derived this
right from two constitutional Articles of great potential i.e. “the fundamental right to
freedom of speech and expression granted in Article 19 (1) (a) and the fundamental
right to life and personal liberty enshrined in Article 21 of the Constitution of India.”
The enunciation of the right to know as forming part of Article 21 bears close
relationship with issues of health, life and livelihood flowing from environmental
degradation and ecological imbalance. In an unreported judgment,55 the Bombay High
Court recognized that an environmental group has a right to examine municipal
permissions granted to private builders. This case is of seminal importance in as much
as “right to know has been recognized as a distinct and self-contained right
independent from the government‟s claim to privilege under Section 123 of the Indian
Evidence Act, 1872.”56
c. The Right to Clean Environment and its Impact on the Right to Trade,
Occupation, or Business
Article 19 (1) (g) of the Indian constitution guarantees, “fundamental right on every
citizen to practice any profession or to carry on any occupation, trade or business.
52
Arvind Jasrotia, “Environmental Protection and Sustainable Development: Exploring the
Dynamics of Ethics and Law”, 49 JILI, 54 ( 2007).
53
Id., at 55.
54
See, the observation of Mathew J. in State of U.P. v Raj Narain (AIR 1975 SC), court said that “in
a government of responsibility like ours where all the agents of public must be responsible for
their conduct, there can be but few secrets. The people of this country have a right to knoe every
public act, everything that is done in a public way, by their public functionaries. They are entitled
to know the particulars of every public transactions in all its bearing. The right to know which is
derived from the concept of freedom of speech, though not absolute, is a factor, which should
make one wary when secrecy is claimed for transactions which can, at any rate, have no
repercussion on public security.”
55
Bombay Environmental Action Group v. Pune Cantonment Board.
56
Arvind Jasrotia, op.cite, at 55.
93
This is subject to reasonable restrictions. A citizen cannot carry on business activity,
if it causes health hazards to the society or public. Thus, safeguards for environment
protection are inherent in this.” For example, Supreme Court in a related Case said
that:
“Right to carry on business against the danger to public health from the
discharge of dirty water into public roads and drains will be balanced.”
The Supreme Court, while deciding the matter relating to carrying on trade of liquor
in Cooverjee B. Bharucha v. Excise commissioner57, observed that:
“If there is clash between environmental protection and right to freedom of

trade and occupation, the courts have to balance environmental interests with
the fundamental rights to carry on any occupations”.
The pollution is mainly from trade and industries. For example tanneries, acid
factories, dye factories, distilleries, hotel industries are contributing to environmental
pollution. There is a growing problem of balancing the right to development and right
to clean and healthy environment.
Article 19 (1) (g) 58 of the Indian Constitution guaranteeing “freedom of trade and
commerce but at the same time it states that this right is subject to reasonable
restriction.” Some of the industries or trades are carried in manners which endanger
vegetation cover, animals, aquatic life, and human health. Time and again, it has been
clearly mentioned by the Supreme Court that this freedom of trade is subject to
reasonable restriction. Any business or trade that is offensive to flora and fauna or
human beings cannot be permitted to be carried on in the name of fundamental right.59
It is observed that:
“Any activity which pollutes the environment and makes it unhealthy,

hazardous to human health and flora and fauna, is violative of right to
57
(1954, SC 220).
58
All citizens of India shall have a right to practice any profession, to carry out on any occupation,
trade or business. This right is subject to reasonable restrictions.
59
See, M.C. Mehta v. Kamal Nath, AIR 2000 SC1997.
94
wholesome and living environment which is violative of right guaranteed in
Article 21 of the Constitution”.60
The right given by Article 19 (1) (g) is undisputedly subject to the same restrictions.
Beside the restrictions placed on “the right under Article 301, by the provisions of
Articles 19(6), 47, 302 and 303, the provisions of Article 304 also place such
restrictions on the said right. So, do the provisions of Article 305, as far as they
protect existing laws and laws creating State monopolies. The provisions of the
aforesaid Articles, as far as they are relevant for our purpose, read together, therefore,
make the position clear that the right conferred by Article19 (1) (g) is not absolute. It
is subject to restrictions imposed by the other provisions of the Constitution. Those
provisions are contained in Articles 19(6), 47, 302, 303, 304 and 305.”61
Article 19 (1) (g) of the Constitution guarantees “to all citizens of India, the right to
practice any profession or to carry on any occupation or trade or business. The
freedom however, is not absolute it is controlled. The aggrieved party such as
industrialist may resort to Article 19 in case his business interests are affected by the
action of governmental agencies in the name of the environmental protection.”
As environmental regulation grows more stringent and its enforcement becomes more
vigorous, industrial challenge to agency action is likely to increase. Courts will need
to take balance approach in protecting environmental interests and the fundamental
right to carry on any occupation, trade the fundamental right to carry in any
occupation, trade or business guaranteed in Article 19 (1) (g). The Government for the
discharge of different pollutants has prescribed various standards. An industry may
invoked fundamental rights and challenge an unreasonable or arbitrary standard which
cannot be complied with, despite best efforts by available technology or if it is
otherwise unreasonable.
In quite a few cases, the issues of the relationship of the right of clean environment to
freedom of trade, occupation or business, and the freedom of religion has come before
the Indian judiciary for examination and decision. The Courts have been asked to
harmonize the competing claims of these conflicting rights. For the purpose of the
60
61
See, also Ashish Pathak, “Right to Environment and Right to Development the Conflict” 2:2 IJRA
(2014).
95
present study, the question is-can this right be exercised in such a way as to adversely
affect the environment? This question has been examined in a number of cases and
answered in the negative.
In Sushila Saw Mills v. State of Orissa,62 the Supreme Court upheld the validity of
Section 4 (1) of the Orissa Saw Mills and Saw Pits (Control) Act, 1991 under which a
notice was issued to petitioner to close down the operation of his Saw Mills in a forest
area in the State of Orissa on the ground that it was intended to protect, preserve
forest environment. In re Noise Pollution Implementation of Laws for Restricting
Use of Loudspeaker and High Volume Producing Sound System within forum,
Prevention of Environment and Sound Pollution v. Union of India,63 Chief Justice
R.C. Lahoti, speaking for the Court in the context of a Writ Petition seeking strict
implementation of laws pertaining to anti-noise and sound pollution, observed:
“Article 19 cannot be pressed into service for defeating the fundamental right
guaranteed by Article 21.”64
It may also be mentioned that following the ratio laid down in the above mentioned
cases, some of the High Court‟s enunciated their perceptions of the right to
environment. Thus, in Damodar Raov. SO, Muncipal Corporation 65 , Hyderabad,
Justice P.A. Chaudhary observed:
“The right to life inherent in Article 21 of the Constitution of India does not
fall short of the requirements of qualitative life which is possible only in an
environment of quality where an account of human agencies, the quality of air
and the quality of environment are threatened or affected, the court would not
hesitate to use its innovative power within its epistolary jurisdiction to enforce
and safeguard the right to life to protect public interest. Specific guarantees in
21 Article uphold penumbras shaped by emanations from those constitutional
assurances which help give them life and substance.”
62
(1995) 5 SCC 615.
63
(2005) 5 SCC 733.
64
Id. at para 10.
65
AIR 187 AP 171.
96
In M/s Mahavir Timber Merchant v. Government of A.P. 66 , the petitioner, a
partnership firm, who was engaged in the trade of sawmill cum timber business,
questioned the validity of Rule 7 (6) of the A.P. Saw Mill (Regulation) Rules, 1969 on
the ground that it imposed an unreasonable restriction on his right under Article 19 (1)
(g) of the Constitution of India, 1950. Rejecting the challenge, the Court held that the
rule was only a regulatory measure and that therefore, on the basis of the ratio laid
down in State of Tamil Nadu v. M/s Sanjeeetha Trading Co.67, the rule was not
violative of the right under Article 19 (1) (g) of the Constitution. In Ivory Traders and
Manufacturers Association v. Union of India 68 , Sections 49, 49A and 49B of the
Wildlife (Protection) Act, 1972 were questioned on the ground of violation of Article
19 (1) (g) read with Article 19 (6), were held valid. The Delhi High Court declared that:
“Where legislation imposes a restriction on the right of a trader for giving

effect to any of the provisions of Part IV of the Constitution it would be
deemed to be in the interest of the general public”.
To mention one more case, in Burra Bazar Fireworks Dealer Association v.

Commissioner of Police, Calcutta69, a police notification prohibiting the manufacture,
sale of fireworks without any restriction and also imposing a ban on certain items of
noisy fireworks was questioned on the ground of violation of right under Article 19 (1)
(g) read with Article 19 (6) of the Constitution. Upholding the validity of the
notification which was eventually meant to enforce the ambient air quality standard
prescribed by Environmental Protection Rules, 1986 and Environmental Protection
(Third Amendment) Rules, 1986, the Calcutta High Court held that:
“Article 19 (1) (g) of the Constitution of India did not guarantee the
fundamental right to carry on trade or business which created pollution or
which took away the community‟s safety, health and peace”.70
The Court declared that:
“There was no inherent or fundamental right in a citizen to manufacture, sell,

and deal with fireworks which would create sound beyond permissible limit
66
AIR 2002 AP 58.
67
AIR 1993 SC 237 at 244.
68
AIR 1997 Del. 267.
69
AIR 1998 Cal. 21.
70
Id. at 134.
97
and which would generate pollution, and which would endanger the health
and public order”.
According to the Apex Court:
“A citizen cannot be made a captive listener to hear the tremendous sounds

caused by bursting out fireworks. It observed that it might give pleasure to one
or two persons, who burst it, but others have to be a captive listener whose
fundamental rights guaranteed under Article 19(1) (a) and other provisions of
the Constitution are taken away, suspended and made meaningless”.71
For business to work and survive in 21st century, it should believe in long term, focus
on all stake holders than just the shareholders, and care for people and planet also in
addition to profits. Business can sustain itself and develop if it believes in practices
that are geared to sustainable development with societal responsibility. This is the
idea that business should be pursued as its religion with missionary zeal.72
3.2.2.4. Right to Life and Right to Clean, Green, Pollution Free and Healthy
Environment Expanding the Meaning of Article 21
When the period of emergency was over of emergency there was an atmosphere of
freedom and obviously, Supreme Court did not remain untouched, 73 the Supreme
Court of India entered one of its most creative periods, this period mark as post
Meneka era. Most notably, the court fortified and expanded the ambit of fundamental
rights. In the process, environmental protection also comes under the fold of Article
21 of the constitution of India. Article 21 state that:
“No person shall be deprived of his life or personal liberty except according
to procedures established by law.”
This is perhaps the most important Article .Law is not static; it is evolving and
moulding accordingly to take the challenges of time. Therefore constitution
provisions, especially fundamental rights and in particular Article 21 has been
liberally interpreted by the judiciary. Essential principles were adopted to understand
71
Ibid.
72
See, Resolution 41/128 Dated 4th December 1986 of the General Assembly.
73
On 25th June 1975 a Proclamation of emergency was issued on the ground of „internal disturbance‟
threatening the security of India.
98
procedure established by law.74 The Supreme Court and high courts have taken most
of the environmental cases where they considered right to clean environment as basic
requirement for life and upheld them as fundamental right. Thus, we may take Article
21 as positive right for life saving environment. This Article 21 focuses on some of
the path breaking cases that have a long lasting ramifications on the person‟s right to
life and right to clean environment.75
The constitution makers had approached the fundamental rights as to give wide
amplitude, particularly “right to life.” The Supreme Court of India has given “essence
to the right so that every person can enjoy life fully.”
Two methods are used by Supreme Court to interpret Article 21 and to approach
rights which are not mentioned under Article 21, firstly, “it laid down the test
affecting personal liberty and to pass the tests of Article 14 and 19 of the constitution,
and making sure fair, just and reasonable has been followed.” Secondly, “court
recognized many implied or inferred rights. By this method the Supreme Court
interpreted the right to life and personal liberty to include the right to wholesome
environment and all other rights.” Thus, Courts have undertaken to explicate the
development of ideology of environment as being part of the right to life by various
judicial pronouncements.76
Thus, it is clear that article 21 has a multi facet dimension. “Any arbitrary, whimsical,
and fanciful act on the part of any state, depriving the life or personal liberty would be
against Article 21 of the Indian constitution.”77
Beside Article 21 of the Constitution of India. The Universal Declaration of Human

Rights also proclaims78:
74
See, also Neepa Jani, “Article 21 of Constitution of India and Right to Livelihood” 62 Voice of
Research, Vol. 2 Issue 2 (2013).
75
Indira Priya Darsini and K. Uma Devi, “Article 21 of Indian Constitution- A Mandate to Pollution
Free Environment, Legal Service India”, http://www.legalserviceindia.com/article/l399-A-
Mandate-To-Pollution-Free-Environment.html (last visited on 14th August, 2014).
76
Ibid.
77
Narender Kumar, op.cit, at 314-317.
78
Paras Diwan and Peeyushi Diwan, Human Rights and the Law 133 (Deep and Deep publications,
New Delhi, 1st edn., 1998).
99
“Everyone has the right to life, liberty, and security of person. Article 6 of the
Second Covenant proclaims the right to life thus, every human being has
inherent right to life. This right shall be protected by law.”79
The Fifth Amendment of the American Constitution also provided that:
“No person shall be deprived of his life or personal liberty, except according
to procedure established by law.”80
The 14th Amendment “imposes a similar limitation on the State authorities.”81 The
Interpretation given by the Supreme Court in Maneka Gandhi v. Union of India82
“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 and 19 of the Constitution.”
To put in a different way any law as declared under Article 13 of Indian Constitution
which curtails fundamental rights have to be just and fair. 83 In other words,
Environmental pollution amounts to derogation of Article21 of Indian constitution.84
The importation from the back door of the “due process” clause by the activist
approach of the Supreme Court in Maneka Gandhi’s case has “broadened the ambit
and scope of the expression „right to life‟ enshrined in Article 21 of the Constitution.”
It rightly said that:
“The right to live in healthy environment is one golden feather of Article 21”.
The Supreme Court of India, in 1980, implicitly upheld this right in a landmark case
of Ratlam Municipality v. Vardichand, 85 fact of the case is that the neglect of
sanitation of the town of Ratlam by Municipal Council was regarded as health hazard
79
Article 3 of the Universal Declaration of Human Rights.
80
Id. at 135.
81
J.N. Pandey, op.cit, at 272-280.
82
AIR 1978 SC 597.
83
Deepika Chouhan and Prabhash Dalei, “Right to live in Healthy Environment: In framework of
Indian Constitution”, International Conference on Humanities, Economics and Geography,
Bangkok 230 (March 17-18, 2012).
84
Kailash Thakur, Environment Protection Law and Policy in India 204 (Deep and Deep
Publications, New Delhi, 1997).
85
AIR 1980 SC1622.
100
and thus violative of Article 21. “The human rights under Part III of the Constitution
have been respected by the State regardless provision. Decency and dignity race, non-
negotiable facts of human rights are a first charge on local self-governing bodies.” In
the landmark case of case of Rural Litigation and Entitlement Kendra v. State of
U.P.86 (Popularly known as Dehradun Quarrying Case). For the first time it was held
that “right to live in a healthy environment is fundamental right.” the fact of the case
is that a voluntary social organization filed a Public Interest Litigation under Article
32 of the Constitution of India. It was stated that due to increase in number of lime
stone mining quarries near Dehradun Valley area, 70% of green coverage has come
down to 10%.
Further, natural water system and the supply of water both for drinking and irrigation
has substantially gone down. This activity would cause the disappearance of water in
the coming year in the entire belt as the mining operations cut down the forests in the
area, which is a storehouse of deep forest, herbs, shrubs, and plants. Thus, it has
resulted in large-scale pollution and adversely affected the safety and health of the
people living in the area. It also affected the natural beauty and structure of the hills.
The court also appointed a committee for inspecting certain lime stone quarries.
During the inspection, the committee found large-scale pollution caused by the
quarries which has been adversely affecting the safety and health of the residents of
that locality. Hence, it suggested for the closure of certain categories of stone quarries
in that area.
It was the first case of this kind in India, involving issues relating to environment and
ecological imbalance in which Supreme Court moving under Article 32 directed “to
stop the excavation (illegal mining) under the Environment (Protection) Act, 1986.
The Supreme Court complained about the illegal or unauthorized mining in the
Missouri, Dehradun belt. As a result, the ecology of the surrounding area was
adversely affected and it led to the environmental disorder. The Supreme Court of
India observed that the right to wholesome environment is a Fundamental Right.”87 It
also, further, observed that, “right to live is not a real right to live until it is
accompanied with free and pure air, land, and water.”
86
AIR 1988 SC 2187.
87
101
In M.C. Mehta v. Union of India,88(Shri Ram Food and Fertilizers, Oleum Gas Leakage
Case), a writ petition under Article 32 of the Constitution of India, 1950 was brought
before the Supreme Court by way of a Public Interest Litigation in 1985 for the closure of
Shri Ram on the ground of health hazards and for laying down the principles and norms
for determining the ability of the large enterprises engaged in the manufacture and sale of
hazardous products. A question was raised sometimes in March 1985 in Parliament in
regard to the possibility of major leakage of liquid chlorine from the Caustic Unit of Shri
Ram and of danger to the lives of thousands of workers and others.
The writ petition was pending and on 4th and 6th December 1985 there was escape of
Oleum gas from one units of Shri Ram and as a result of such leakage several persons
were affected and according to the petitioner and the Delhi Bar Association, one
advocate practicing in the Tis Hazari Court also died. The Delhi Legal Aid and
Advice Board and the Delhi Bar Association for award of compensation to the person
who had suffered harm on account of the escape of Oleum Gas filed application. The
Supreme Court, by issuing a writ directed:
“The company to deposit a sum of Rs.20, 00,000/- by way of security for

payment of compensation claims of the victims of Oleum gas. In addition to
that the court directed the company to give a bank guarantee for sum of Rs.15,
00,000/- lakhs.”
In this case, the matter of leakage of chlorine gas from the plant resulting in death of
one person and causing hardships to workers and residents of the locality through a
Public Interest Litigation was covered. Further, the Supreme Court imposed on the
company some other conditions and allowed for the partial opening of the plant and
the Supreme Court included pollution free environment under right to life guaranteed
by the constitution.
In M.C. Mehta v. Union of India89 (Ganga Water Pollution Case), a social worker
brought a matter to the notice of the Court through a Public Interest Litigation. He
claimed that the tanneries at Jajmau near Kanpur were polluting the water of the
Ganga River. The Court ordered:
88
AIR 1987 SC 1086.
89
AIR 1988 SC 1115.
102
“For the closure of these tanneries to stop the grave public nuisance caused
by them. Further, the Court said that the government had not taken any steps
to prevent nuisance and water pollution in spite of the duty to implement the
provisions contained in the Water (Prevention and Control of Pollution) Act,
1974 and the Environment (Protection) Act, 1986. The Court issued
appropriate directions for the Ganga‟s waters from being polluted.”
In the above case, one person brought a public interest litigation claiming that,
“although the Parliament and State legislatures have passed several laws imposing
certain duties on the Central and the State Boards which have been constituted under
the Water (Prevention and Control of Pollution) Act and the Municipal Laws. No
proper action has been taken in pursuance caused by the pollution of the river Ganga
is a public nuisance and that a number of persons were being affected due to the wide
spread of this public nuisance.” The Court directed:
“The Kanpur Local Authority to effective prevents and control water pollution
within six months of the Board being constituted under the Water (Prevention
and Control of Pollution) Act, 1974. It also directed them to make proper
arrangements for removal of wastes accumulated at the dairies to prevent
Ganga from any further pollution. Further, the Court also issued directions to
lay down a sewerage line, wherever it is not constructed, to construct public
urinals into the river Ganga.”
The concept of right to “healthy environment” was first articulated in the case of
Bandhua Mukti Morcha v. Union of India90 and then continues to be expanded. The
Supreme Court upheld “the right to clean water as a facet of the right to a healthy
environment in a view of water pollution cases coming before it from the early
nineties onwards.” A landmark judgment of the Indian Supreme Court in A.P.
Pollution Control Board II v. Prof. M.V. Nayudu, 91 fact of the case is, the
government of Andhra Pradesh had “granted an exemption to a polluting industry and
allowed it to be set up near two main reservoirs in Andhra Pradesh the Himayat Sagar
lake and the Osman Sagar lake, in violation of the Environment Protection Act 1986.”
The Supreme Court struck down such exemption and held that the:
90
AIR 1984 SC 802.
91
(2001) 2 SCC 62.
103
“Environment Protection Act and the Water (Prevention and Control of
Pollution) Act 1974 did not enable to the State to grant exemption to a
particular industry within the area prohibited for location of polluting
industries. Exercise of such a power in favour of a particular industry must be
treated as arbitrary and contrary to public interest and in violation of the right
to clean water under Article 21 of the constitution of India….The Government
could not pass such orders of exemption having dangerous potential, unmindful
of the fate of lakhs of citizens of the twin cities to whom drinking water is
supplied from these lakes. Such an order of exemption carelessly passed,
ignoring the „precautionary principle‟ could be catastrophic.”92
The Court pointed out “India‟s active participation in the United Nations water
conference and espouse that the right to access to safe drinking water is fundamental
to life and State is duty bound under Article 21 to provide clean drinking water to its
citizens.” The Supreme Court also referred to the Narmada Bachao Andolanv.
Union of India,93 Kirpal, J. observed that:
“Water is the basic need for the survival of human beings and is part of the
right to life and human rights as enshrined in Article 21 of the Constitution of
India....and the rights to healthy environment and to sustainable development
are fundamental human rights implicit in the right to life”.94
In another landmark judgment of Vellore Citizens’ Welfare Forum v. Union of

India,95also known as tanneries case , the Supreme Court, recognized, “the common
law right of the people to a clean and healthy environment, awarded compensation to
the victims of pollution based on the precautionary principle and the polluter pays
principle.” The „precautionary principle‟ as per Indian condition means:
“Environmental measures taken by the state and the statutory authorities must
anticipate, prevent and attack the causes of environmental degradation; that
where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for posting measures to prevent
92
Ibid.
93
(2000) 10 SCC 664.
94
Ibid. at para 248.
95
(1996) 5 SCC 647.
104
environmental degradation; and that the „onus of proof‟ is on the actor or the
developer/industrialist to show that his action is environmentally benign.”
By applying the two above named principles as part of the environmental law
jurisprudence of the country, the Supreme Court has assimilated the common law
remedial measures of compensation regarding tortuous liability in water pollution
cases.96 Importantly, the Supreme Court held that:
“The constitutional and statutory provisions protect a person‟s right to fresh

air, clean water and pollution-free environment, but the source of the right is
the inalienable common law right of clean environment.”97
The Supreme Court has in area of water pollution, ordered, “the cleaning up of water
sources including rivers, 98 the coastline 99 and even tanks and wells. 100 The concern
over pollution of ground water by unregulated discharge of effluents has led the court
to issue mandatory directions for clean up by the polluter and restitution of the soil
and ground water. 101 The court has also applied the „precautionary principle‟ to
prevent the potential pollution of drinking water sources consequent upon the setting
up industries in their vicinity.” 102 The court has recognized that, “water is a
community source which is to be held by the State in public trust in recognition of its
duty to respect the principle of inter-generational equity.”
In M.C. Mehta v. Kamal Nath103 the court declared that:
96
M. Batra, “Water Rights”, available at http://www.india-seminar.com/2000/492/492%20m.%20
batra.htm, (21st September, 2015).
97
Vellore Citizens Welfare Forum case, at 661.
98
For orders relating to the pollution on the river Ganga, see M.C. Mehta v. Union of India AIR
1988 SC 1037, 1115 and (1997) 2 SCC 411. For an important decision regarding closure of a hotel
resort which was polluting the Beas river in Himachal Pradesh, see M.C. Mehta v. Kamal Nath
(1997) 1 SCC 388.
99
See, S. Jagannath v. Union of India (1997) 2 SCC 87.
100
In Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496, the court said: “It is important to notice
that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are
nature‟s bounty. They need to be protected for a proper and healthy environment which enables
people to enjoy a quality of life which is the essence of the guaranteed right under article 21 of the
Constitution of India.”
101
In Re: Bhavani River-Shakti Sugars Ltd. (1998) 6 SCC 335. In Indian Council for Enviro-Legal
Action v. Union of India (1995) 3 SCC 77, “a compensation package was worked out for farmers
affected by their only source of irrigation, a river in Andhra Pradesh, was polluted by discharge of
untreated effluents by industries alongside its banks.”
102
See, A. P. Pollution Control Board v. Prof. M. V. Nayudu (1999) 2 SCC 718 and A. P. Pollution
Control Board (II) v. Prof. M. V. Nayudu (2001) 2 SCC 62.
103
1997 (1) SCC 388.
105
“Our legal system based on English common law includes the public trust
doctrine as part of its jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. Public at
large is the beneficiary of the seashore, running waters, air, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot be
converted into private ownership”.104
In M. C. Mehta v. Shriram Food and Fertilizer Industries and Union of India or

Oleum Gas Leak Case-I105, petitioner filed the writ against the oleum gas leakage and
for closing down one of the units of Shriram food and Fertilizers industries belonging
to Delhi Cloth Mills Ltd. The Court allowed restarting plant subject to certain
stringent conditions laid down in the order. But the Court held that:
“Enterprise engaged in any hazardous or inherently dangerous industry which

could pose a threat to public health and absolute duty to the community to
ensure that no harm resulted to anyone”.
In III Oleum Gas Leak Case, M.C. Mehta v. Union of India106, Chief Justice P. N.
Bhagwati observed that:
“Rights to live in a healthy environment as fundamental right under Article 21

of the Constitution. He stressed on the need to develop a law recognizing the
rule of strict and absolute liability in cases of hazardous or dangerous
industries operating at the cost of environment and the human life.”
In the case of Subhash Kumar v. State of Bihar107, a PIL was filed under Article
32seeking a writ or direction preventing alleged pollution of the Bokaro river water
from the sludge/slurry discharged from the washeries of the Tata Iron and Steel Co.
Ltd. (TISCO). It was further alleged by the petitioner that the effluent discharged
from the washeries was deterrent to the health of the people living in the surrounding
104
S. Muralidhar, “The Right to Water: An Overview of the Indian Legal Regime” in Eibe Reidel and
Peter Rotheneds., The Human Right to Water, International Environmental Law Research Centre
(Berlin: Berliner Wissenschafts-Verlag, 2006) at 65-81, available at http://www.ielrc.org/content/
a0604.pdf, (accessed on 16 October, 2015).
105
AIR 1987 SC 1965.
106
AIR 1987 SC 1086.
107
AIR 1991 SC 424.
106
areas and had aggravated the problem of pure drinking water. Justice K. N. Singh and
Justice N. D. Ojha held:
“Right to live is a fundamental right under Article 21 of the Constitution and it

includes the right of enjoyment of life”.
In case of prevention environmental pollution remedy is available under Article 32 of

the constitution by evoking writ jurisdiction however, such plea must not be for the
fulfillment of private interest. Expanding upon this theme in a town planning case,
Virender Gaur v. State of Haryana,108 the Supreme Court observed:
“Article 21 protects the right to life as a fundamental right. Enjoyment of

life…including (the right to live) with human dignity encompasses within its
ambit, the protection and preservation of environment, ecological balance free
from pollution of air and water, sanitation, without which life cannot be enjoyed.
Any contra acts or actions would cause environmental pollution. Environmental,
ecological, air, water pollution, etc. should be regarded as amounting to violation
of Article 21. Therefore, hygienic environment is an integral facet of right to
healthy life and it would be impossible to live with human dignity without a
human and healthy environment. There is a Constitutional imperative on the State
Government and the municipalities, not only to ensure and safeguard proper
environment but also an imperative duty to take adequate measures to promote,
protect, and improve both the man-made and the natural environment.”109
In addition, several High Courts have explicitly recognized, “an environmental

dimension to Article 21. For example, while considering a writ petition to enjoin the
Life Insurance Corporation and the Income tax Department from building residential
houses in a recreation zone”, the Andhra Pradesh High Court in the Case of T.
Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad110 held
that:
“It would be reasonable to hold that the enjoyment of life and its attainment and
fulfillment guaranteed by Article 21 of the Constitution embraces the protection
and preservation of nature‟s gift without which life cannot be enjoyed. There can
108
1995 (2) SCC 577.
109
Id. at 580-581.
110
AIR 1987 AP 171, 181.
107
be no reason why practice of violent extinguishment of life alone should be
regarded as violative of Article 21 of the Constitution. The slow poisoning by the
polluted atmosphere caused by environmental pollution and spoliation should
also be regarded as amounting to violation of Article 21 of the Constitution…”
In the same sentiment, the High Court of Rajasthan in L.K. Koolwal v. State111, held
the view that:
“Maintenance of health, preservation of sanitation and environment fall

within the purview of Article 21 of the Constitution as it adversely affects the
life of the citizen and it amounts to slow poisoning and reducing the life of the
citizen because of the hazards created, if not checked.”112
On similar line the High Court of Kerala in Madhavi v. Tilakan113 , the Himachal
Pradesh High Court in Kinkri Devi v. State of Himachal Pradesh114, the High Court of
Karnataka in V. Lakshmipathy v. State of Karnataka115, the High Court of Madhya
Pradesh in K.C. Malhotra v. State of Madhya Pradesh116, and again inHamid Khan v.
State of Madhya Pradesh117and Allahabad High Court in S.K. Garg v. State of U.P.
and Others118too, have observed that:
“Environmental degradation violates the fundamental right to life which is

enshrined in Article 21 of the Constitution of India”.
Recently in Santosh Govind Mahajan v. State of Maharashtra,119 the Bombay High

Court was of the view that:
“The citizen‟s right to accesses clean drinking water is a fundamental right

and the State is bound to supply portable water to the citizens.”
Justice P. N. Bhagawati’s in his last pronouncement just before his retirement in M. C.

Mehta’s case has espoused a new horizon in the development of environmental law and
111
AIR 1988 Raj. 2.
112
Id., at 4.
113
1988 (2) Ker.L.T. 730.
114
AIR 1988 HP 4, 9.
115
AIR 1994 KAR 57, 67.
116
AIR 1994 MP 48, 52.
117
AIR 1997 MP 191.
118
AIR 1999 All 41.
119
2013 (3) FLT 56.
108
also administration of environmental justice. This aspect has been very rightly upheld by
the summit Court in the case of M.C. Mehta v. Union of India120 observed that:
“A close reading of the spate of cases discussed above reveals the fact that the
Indian judiciary in our country has done a great service by declaring the right
to a pollution free environment as a fundamental right thereby emphasizing the
prioritization of human needs and new value systems in these broad areas”.
3.2.2.5. Right against Exploitation and Role of Article 24
Article 24 of the Constitution prohibits exploitation of child labour. It says that:
“No child below the age of 14 years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.”121
This Article has been inserted in the interest public healthand safety of children. This
is so, because, children are assets to the Nation.122 Further, “Article 39 (e) and 39 (f)
under Directive Principles of State Policy provide for the protection of the health and
strength of children below the age of 14 years. Article 39 of the Constitution of India
imposes an obligation upon the State to ensure that the health and strength of the
workers, men and women, particularly, employed in any factory, mine or who are
engaged in any other hazardous employment.”
In Labours Working on Salal Hydro Project v. State of J&K123, the Court held that:
“Children below 14 years of age cannot be employed in the construction

work, which is termed a hazardous employment.”
Further, in People’s Union for Democratic Rights v. Union of India124, the Supreme
Court applied the same principle and held that:
“The prohibition under Article 24 could be enforced against any one,

in the State or private individual. In pursuance of this obligation,
parliament enacted the Child Labour (prohibition and Regulation)
120
AIR 1992 SC 382.
121
M.P. Jain, op.cit, at 1242.
122
Rosedar S.R.A., op.cit, at 22.
123
AIR 1984 SC 177.
124
AIR 1982 SC 1473.
109
Act, 1986. The Act prohibits specifically the employment of children in
certain industries.”
3.2.2.6. The Right to Clean Environment and the Right to Religion with a special
reference of Article 25 of the Constitution
India‟s Constitutional commitment to secularism, which is one of the basic features of

the Indian Constitution, along with the Constitutional guarantee of the right to
freedom of religion 125 has brought to the fore the issue of harmonization of the
conflicting claims of the religious organizations to practice their religion with the
need to protect the environment from noise pollution, water pollution, etc. In a couple
of cases, the Indian Courts were confronted with this issue.126
In Church of God (Full Gospel) v. KKR Majestic Colony Welfare Association,127 the
issue whether or not a particular religious community or a sect of that community can
claim the right, as part of its religious practice, to the beating of drum or reciting of
prayers by the use of microphones and loudspeakers with the consequential
disturbance to the peace or tranquility of the neighborhood was brought for judicial
adjudication. It may be mentioned that under the Environment (Protection) Act, 1986,
rules for the regulation of noise pollution levels have been framed which have
prescribed permissible limits of noise in residential, commercial, industrial areas or
silence zones. The question before the Court was whether the appellant could be
permitted to violate these rules and add to the noise pollution? The appellant was a
Church of God, which indulged in the practice of reciting prayers by using
loudspeakers, drums and other sound producing instruments which caused noise
pollution thereby causing disturbance and nuisance to the normal daily life of the
residents of the respondent‟s colony. The respondents made a complaint to the Tamil
Nadu Pollution Control Board against this practice.
Rejecting the appellant‟s contention that its religion has sanctified the practice of the
use of loudspeakers for the recital of prayers, Justice Shah, who delivered the
judgment of the Supreme Court, referred, with approval, to the decisions of the
125
The Constitution of India, 1950, Article 25 (1) declares: “Subject to public order, morality, and
health and other provisions of this Part (Part III), all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and propagate religion…….”.
126
ArunaVenkat, Environmental Law and Policy 67 (PHI Learning Private Limited, New Delhi,
2011).
127
AIR 2000 SC 27773.
110
Calcutta High Court and the Supreme Court in Om Birangana Religious Society v.
State,128 and AMSNPAP Maharaj v. State of Gujrat,129 respectively, where similar
contentions were rejected. His Lordship observed:
“No religion prescribes or preaches that prayers are required to be

performed through voice amplifiers or by beating of drums. In any case,
if there is such practice, it should not adversely affect the rights of others
including that of being not disturbed in their activities.”
3.2.3. The Directive Principles of State Policy is a Constitutional Mandate
Article 36 to 51 of the Constitution of India as mentioned in Part IV of the Constitution

form Directive Principles of State Policy.130 The Constitution of India directs the State to
achieve the Constitutional goals. In other words, “directive principles form the
fundamental feature and are designed to achieve socio economic goals. The directive
principles of state policy prescribe the guidelines to the government. Some of them are in
the nature of economic rights which could not be guaranteed when the Constitution was
enacted, but that were expected to be realized in succeeding years.”131
In a welfare State like India, it is the paramount object of the State to secure to its
citizens justice, social, economic and political as enshrined in the Preamble of the
Constitution. We can achieve these objectives by implementing the directives given in
Part-IV of the Constitution. By simply making laws, we cannot achieve the
objectives, so it is the utmost responsibility of the State to act in a proper direction to
see that the directives are properly implemented.132
The importance of Directive Principles lies in the fact that the directives contained in
Article 38 of the Constitution envisages a social order in which social, economic, and
128
(1996) 100 Cal WN 617.
129
AIR 1974 SC 2098. In this case the Court observed: “No right is an organized society can be
absolute. Enjoyment of one‟s right must be consistent with the enjoyment of rights also by others.
Where in a free play of social forces it is not possible bring about a voluntary harmony, the State
has to step in, to set right the imbalance between competing interests… A particular fundamental
right cannot exist in isolation in a water tight compartment. One fundamental right of a person
may have to co-exist in harmony with the exercise of another fundamental right by others also
with reasonable and valid exercise of power by the State in the light of Directive Principle in the
interest of social welfare as a whole.”
130
131
See, SomPrakashRekhi v. Union of India, AIR 1981 SC 212, 221-22.
132
ShailajaChander, op.cit, at 57.
111
political justice may be ensured to the people of India and the provision is intended to
promote the welfare of the Indian masses. As it has been rightly put:
“Directive principles aim at making the Indian masses free in the positive
sense, free from the passivity engendered by centuries of coercion by society
and by nature, free from abject physical conditions that had prevented them
from fulfilling their best selves.”133
Article 39 of the Constitution has provided certain principles of policy to be followed

by the State. Article 39 provides the following principles of policy to be secured:
a. Equal rights for both men and women to adequate means of livelihood.
b. Distribution of ownership and control of the material resources of the
community for the common good.
c. To ensure that the economic system should not result in concentration of
wealth and means of production to the common detriment.
d. Equal pay for equal work for both men and women.
e. To protect health and strength of workers and the tender age of children and to
ensure that they are not forced by economic necessity to enter into vocations
unsuited to their age or strength.
f. Those children are given opportunities and facilities to develop in a healthy
manner and under conditions of freedom and dignity and that their childhood
and youth are protected against exploitation and against moral and material
abandonment.
Article 39 (b) of the Constitution prescribed the special material resources of the
community, govern the lands held by private owners also. The Government is
authorized to acquire any private land for public purposes to develop human
environment such as constructing houses, buildings and providing public amenities
like shopping complexes, parks, roads, drains, play grounds, etc. Clause (f) of Article
39 was modified by the 42nd Amendment to the Constitution (1976) with a view to lay
emphasis on the constructive role of the State with regards to children.134
3.2.3.1. Article 47 of the Constitution and the Environment Preservation
133
Ibid.
134
See, Mahendra Kumar, “Salubrious Environment and Hazardous Process in Industry: Legislative
Aspects” 51 Civil & Military Law Journal 122 (2015).
112
The directives are in the nature of duties which the State is required to perform as per
the direction of the Constitution and „raising the level of nutrition and standard of
living and improving public health‟ are among such duties which is covered from the
environmental point of view. As indicated earlier although our Constitution does not
contain the word „environment‟ at the initial stages, the concern of the framers was
reflected in Article 47 of the Constitution of India which reads:
“The State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about prohibition
of the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.”135
Thus, this basic principle embodied in the Article very clearly denies the “statement to
some of the learned authors that initially our Constitution was environmentally
blind136and environment as a subject has been left out of the Constitution.”137 The
essence of Article 47 is the “raising the level of nutrition,138 the standard of living and
the improvement of public health. The State is required to promote the Directive
Principles and not to go against them.”139
The whole gamut of the above discussion is that public health is above all interest.
Article 47 of the Indian Constitution requires that, “the State should endeavour to see
the improvement of public health and it becomes an imperative duty of the State to
see that the health of the people is not jeopardized and in a welfare State like India the
government and the government agencies are responsible to look after the welfare of
the people.”
3.2.3.2. Article 48A-Protection and Improvement of Environment and

Safeguarding Forest and Wildlife
135
Narender Kumar, op.cit, at 492.
136
K.L. Bhatia, “Human Rights and Human Environment-A Study in the Policy Perspectives” 10
ALJ, 46 (1990).
137
P. Leelakrishnan (ed.), Law and Environment 07 ( Eastern Book Company, Lucknow, 1992).
138
State of Maharashtra v. Nagpur Distillers (2006) 5 SCC 112.
139
State of Punjab v. Ram Ludbhaya Bagga, AIR 1998 SC 1703.
113
With the objective of affording better protection to the environment, the Constitution
was amended140 and a new Article 48A141 was inserted into the Constitution of India
which states that:
“The State shall Endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country.”142
In 1972, the United Nations Conference on the human environment was held at
Stockholm. India was one of the countries to the final decisions taken in that
conference. To complete the obligation, the Constitution was amended and Article 48-
A was added as a direct provision for the protection of the environment. It casts the
“obligatory duty on the State to endeavor to protect and improve the environment and
to safeguard the forest and wild life of the nation.” 143 This Article used the word
„environment‟ in a wider sense which affects, “all the living being and influences the
conditions of their lives.” Water and air are among such important factors which
mould the life of the citizens and are regarded as the causes of the life and
development. “Billions of years have passed and the society is still dependent on
water and will also continue to do so, thus proving the necessity and vitality of water
for the existence of the mankind. Hence, it becomes the pious duty and responsibility
of the State to protect the water and water resources as well as the whole environment
from all activities. So, if we construe the Article, this necessarily requires the State
not only to adopt the protectionist policy but to provide for the improvement of the
environment also.”144
This Article further provides “to safeguard the forests and wildlife.” This is an
important provision as the environment is greatly influenced by forest and wildlife.
The forest in particular has a direct relation with water pollutions. The forest is
responsible for natural rain which helps and protects in maintaining a balance, it
constitutes an important safeguard against atmospheric pollution. Thus, one cannot
ignore the role played by the forests. Forests should not be separated from the
environment as they have direct bearing on the environment. But in recent times in
the name of development a great danger has been put to the existence of forests.
140
Constitution (42nd Amendment) Act, 1976.
141
Inserted by the Constitution (Forty-second Amendment) Act, 1976, section 10 (w.e.f. 3-1-1977).
142
143
See, H.N. Tiwari, Environmental Law 80 (Allahabad Law Agency, 3rd edn., 2008).
144
114
Hence, preservation and conservation of forests has become a reality or need of the
hour. This was even reflected in the views of the Prime Minister Mrs. Indira Gandhi
when draft Article 48A came up for consideration in the Parliament.145
The Supreme Court in its decisions has relied on the directive principles to enlarge the
scope and content of the fundamental rights, thereby bringing them within the ambit of
justifiable rights. Thus, the preservation of ecology and environment, based on the
principle of sustainable development to reconcile the conflicting interest of development
with the preservation of healthy environment, has been recognized as a facet of right to
life. The principle adopted is that ecology and environment are not objects of ownership
but are nature‟s gift intended to be preserved in trust for future generations.
The courts have been guided by the language of Article 48A, and interpreted it as
imposing “an obligation” on the government, including courts, to protect the
environment. In T. Damodar Rao v. The Special Officer, Municipal Corporation of
Hyderabad146; Sachidanand Pandey v. State of West Bengal147, the decision given
by the Supreme Court tend to narrowing the level of scrutiny as opposed to enlarging
it to include the various dimensions environmental jurisprudence. In this, case the
proposal for the construction lodging by the Taj Group Hotels, amidst the zoological
gardens of Allipore, for improving tourism in West Bengal was accepted by the
Government and subsequently, when the case came before the Supreme Court, the
decision of the Tourism Ministry was upheld. The Court justified its stand that
appropriate considerations had been borne in mind and irrelevancies were excluded.
In General Public of Saproon Valley v. State of Himachal Pradesh148, the Himachal
Pradesh court described Article 48A as:
“Constitutional pointer to the state not only to protect but also to improve the
environment and failure to abide by the pointer is nothing short of a betrayal
of the fundamental law which the State is bound to uphold.”149
145
LokSabha Debates, 18th Session, 5th Series, Vol. LXV, No. 3, 27th October, 1976.
146
AIR 1987 A.P. 171.
147
AIR 1987 SC 1109.
148
AIR 1993 H.P. 52.
149
Ibid.
115
Thus, it is clear whenever any matter is brought before the Court for safeguarding the
environment be it under Article 21 or violating the directives as provided in Article
48A, the Court immediately comes forward to issue necessary directions.
3.2.4. Fundamental Duties and Environmental Scheme
The Forty-Second Amendment to the Constitution also incorporated a new Part

namely Part-IVA which directly deals with environment. This Part deals with
fundamental duties which are laid down for the citizens of India. According to it,
“every citizen of India has to abide by the Constitution and respect its ideals and
institutions.” Article 51A (g) states that:
“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”.150
Rights and duties are very important ingredients of law. They are correlated to each
other in such a way that, “one cannot be conceived without the other. A right is always
against someone upon whom the correlative duty is imposed.” Thus, to give a concrete
shape to the Constitution, Part IVA was rightly inserted for healthy administration of
justice. The Supreme Court of India in M.C. Mehta v. Union of India151, relating to the
public interest litigation, ordered the closure of tanneries at Jajmau near Kanpur which
were proved to be polluting the Ganga. Further, the problem of environmental pollution
assumed world-wide recognition. Adding the above provisions to the Constitution, the
meaning and scope of environment is widened for the protection and improvement of it.
In view of achieving the objects, “the Water (Prevention and Control of Pollution) Act,
1974 followed by the Air (Prevention and Control of Pollution) Act, 1981 and the
Environmental Pollution problem has got constitutional recognition.”
In State of Gujrat v. Mirzapur Moti Kureshi Kassab Jamat and Others 152 , the
Supreme Court held that:
“By enacting Article 51-A (g) and giving it the status of a fundamental duty,
one of the objects sought to be achieved by Parliament is to ensure that the
150
151
AIR 1988 SC 1115.
152
(2005) 8 SCC 534.
116
spirit and message of Article 48 and 48A are honoured as a fundamental duty
of every citizen. Article 51-A (g) therefore, enjoins that it was a fundamental
duty of every citizen to have compassion for living creatures. These few words
refer to concern for sympathy, suffering and kindliness, etc. to all kinds of
living creatures.”
But the true scope of the Article 51-A (g) came for consideration before the Rajasthan
High Court in L.K. Koolwal v. State, where Mr. Koolwal153, an enlightened citizen
moved the court against the Jaipur Municipality for failing to discharge its duty to
clean public streets, places, sewages and all places not being private property which
are the „primary duty‟ of the Municipality. Allowing the petition, the high Court was
of the opinion that:
“We can call Article 51-A ordinarily as the duty of the citizens, but in fact it is
the right to the citizens as it creates the right in favour of the citizens to move
to the court to see that the State performs its duties faithfully and the
obligatory and primary duties are performed in accordance with the law of the
land. Omissions or commissions are brought to the notice of the court by the
citizen and thus, Article 51-A gives a right to the citizens to move the court for
the enforcement of the duty cast on State instrumentalities, agencies,
departments, local bodies and statutory authorities created under the
particular law of the State.”154
Thus, if we have inner look we can feel that the underlined emphasis of this
fundamental duty is that, “every citizen has a duty to make an endeavour to preserve
the natural environment in the same way as nature has bestowed it upon all of us.”
3.2.5. Right to Constitutional Remedies and Judicial Activism
One of the most striking features of the Constitution of India is that, “the right to
enforce the fundamental rights by moving the Supreme Court is itself a fundamental
right under Article 32 of the Constitution of India. 155 Writ jurisdiction has been
conferred on the Supreme Court under Article 32 and on all the High Courts under
153
(2005) 8 SCC 534.
154
Id., at 4.
155
The Constitution of India, 1950, Article 32 (1) provides: “The right to move the Supreme Court by
appropriate proceedings for the enforcement of right conferred by Part III is guaranteed.”
117
Article 226156 of the Constitution of India. Under these provisions, the Supreme Court
and High Courts have the power to issue any direction or orders or writs, including
writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which is
appropriate.” 157 The writs of mandamus, certiorari, and prohibition are generally
resorted to in environmental matters. The relative speed, simplicity, and cheapness of
the writ remedy have made it immensely popular with litigants. The only difference
between the writ jurisdiction of the Supreme Court and High Courts is that, “one can
move the Supreme Court only for the enforcement of fundamental rights whereas in
High Courts, it may be for the enforcement of the fundamental rights or for any other
purpose.” From this point, the writ jurisdiction of the High Court is wider in scope.
However one must remember that “the law declared by the Supreme Court shall be
binding on all Courts within the territory of India.”158 The Supreme Court also possess
sweeping power under Article 142 to do to do complete justice and pass the order
thereon.
In Rampal v. State of Rajasthan, 159 the petitioners were residents of Mundara

Mohalla, situated in the town of Mandal in Bhilwara District. Their case was that in
Mundara Mohalla, there was a blind lane and a common chowk in the Centre, which
was surrounded by the houses of the petitioner and others. The petitioners‟ grievance
was that water of domestic use, including dirty water from the houses of the Mohalla,
as also rainwater had collected in the chowk and because there was no drain for the
discharge of the accumulated water, there were growth of mosquitoes and insects and
there was possibility of spread of epidemics.
The petitioners had relied upon a letter written in connection by the Medical and Health
Officer, Government Hospital, Bhilwara, on 18th June 1979, to the executive Officer of
the Municipal Board, Mandal inviting his attention to the fact that stagnant water, which
156
The Constitution of India, 1950, Article 226 (1) provides: “Notwithstanding anything in Article 32
every High Court shall have the power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of Habeas corpus,
mandamus, prohibition, quo warranto, and certiorari or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.”
157
The Constitution of India, 1950, Article 32 (2) provides: “The Supreme Court shall have the
power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, certiorari, prohibition, and quo warranto, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part (Part III).”
158
159
AIR 1981 Raj 121.
118
has collected in the common chowk of the Mundara Mohalla, had become the breeding
place of mosquitoes and insects and might cause the spread of diseases.
The Medical and Health Officer in his aforesaid letter expressed the view that
immediate steps should be taken for making a permanent arrangement for the disposal
of such water as has collected in the chowk and which had caused a nuisance, for the
residents of the area. As the Municipal Board had not cared to take any action in the
matter, the petitioners filed a writ of mandamus praying for a direction to the
Municipal Board for removal and discharge of filthy and dirty water and the
construction of proper drainage or sewage for the discharge of such water. The court
directed the Municipal Board:
“To remove the water and filth collected in the chowk in Mundara Mohalla,
Mandal by the construction of proper sewers and drains, so as to remove the
cause of possible nuisance in the locality, within a period of three months.”
Usually, environmental law provides for a system of regulation by statutes. However,

in India, “most of the environmental jurisprudence has been developed through writ
jurisdiction. Judicial activism and the development of the concept of public interest
litigation under the writ jurisdiction of the Supreme Court and the High Courts have
brought a transformation in procedural jurisdiction and it has played a crucialpart in
developing and providing impetus to environmental jurisprudence with Human Rights
approach.” This remedy is preferred over tort action or public nuisance remedy
because “it is relatively speedy, cheaper and provides direct approach to the higher
judiciary thereby reducing the chances of further appeals.”
The relaxed rules of “locus standi and evolution and recognition of epistolary
jurisdiction by the Supreme Court and High Courts has further ensured the public
participation in matters like environment protection.” 160 The remedy under writ
jurisdiction also provides flexibility to the Courts to choose as appropriate relief by
issuing appropriate orders, directions, or writs.161
Thus, the higher judiciary, inter alia, has ordered, “the municipalities to construct
proper drainage system for maintenance of health and preservation of the sanitation
160
See, Rajiv Ranjan Singh v. State of Bihar, AIR 1992 Pat. 86.
161
Paramjit S. Jaiswal, NishthaJaswalet.al.,Environmental Law 80-81 (Allahabad Law Agency,
4thedn., 2015).
119
and environment.” 162 The judiciary has been very cautious in its approach. It has
refused to interfere on imaginary apprehensions of environmental pollution,163 and in
those cases where the government has arrived at a decision after considering relevant
facts and application of its mind without any extraneous compliance with
Environment (Protection) Act, 1986. The Court has been ensuring the compliance of
its orders by granting costs against the parties for non-compliance. A number of times
the Court has appointed monitoring Committees to see that Courts‟ orders are duly
complied with. 164 The Court has also used the affidavits, commissions, panel of
experts and took judicial notice for ascertaining the factual matrix.165
3.2.6. Judicially-led Environmental Protection and Constitutional Framework
One of the hallmarks of the Indian Constitutionalism has been the doctrine of Judicial
Review, 166 which has been one of the two invaluable gifts 167 of the American
Constitutionalism to the Asian Constitutional Governments. Since, “the right to
pollution free environment is an aspect of the right to life, which is one of the
fundamental rights guaranteed by Part III of the Constitution which are enforceable
against the State action, it is necessary to examine and appreciate the Constitutional
framework for the enforcement of these rights.”168
The Indian Constitution, as a Grundnorm’ of the Indian Legal System not only
guarantees fundamental rights but also prohibits “the State legislative organ from
taking away or abridging any of these rights”,169 except as provided in the various
provisions of Part III of the Constitution. Indian higher judiciary has played a pivotal
role in the control and prevention of environmental crimes by directing the concerned
authorities to discharge their statutory responsibilities.
162
L. K. Koolwal v. State, AIR 1988 Raj. 2; See also Ratlam Municipality v. Vardhichand, AIR 1980
SC 1622 where though the directions were issued by the Court under Section 133 of the Criminal
Procedure Code, 1973, yet the Supreme Court in its decision did make reference to the directive
principles of state policy. See also M.C. Mehta v. State, AIR 1992 Ori. 225.
163
Goa Foundation v. Konkan Railway Corporation, AIR 1992 Bom. 471.
164
R.L. & E. Kendra v. State of U.P. (1991) 3 SCC 348; M.C. Mehta v. Union of India, (1991) 1
Supp. SCC 181.
165
M.C. Mehta v. Union of India, AIR 1987 SC 965; M.C. Mehta v. Union of India, (1991) 2 SCC
353; R.L. & E. Kendra, Dehradun v. State of U.P., AIR 1985 SC 652.
166
This doctrine was originally propounded by Chief Justice Marshall in the famous case of
Marbury v. Madison, 1 Cranch 137 (US 1803).
167
The other judicial gift has been the doctrine of Constitutional Supremacy.
168
Aruna Venkat, op.cit, at 183.
169
120
The scope of judicial review in environmental cases was explained by the Supreme
Court in the Calcutta Taj Hotel Case,170 where a group of citizens challenged the
location of a hotel on the ground that the construction would interfere with the flight
path of migratory birds. After referring to the Constitutional provisions relating to
environment, the court outlined the scope of judicial review thus:
“The least that the court may do is to examine whether appropriate

considerations are borne in mind irrelevancies excluded. In appropriate cases the
court may go further but how much further must depend on the circumstances of
the case. The court may always give necessary directions. However, the court will
not attempt to nicely balance relevant considerations. When the question involved
the nice balancing of relevant considerations, the court may feel justified in
resigning itself to acceptance of the decision of the concerned authorities.”171
Likewise, in a challenge directed against the location of a thermal power station in the
horticulture rich Dahanu region on the coast of Maharashtra, the Supreme Court
declined to interfere after holding that the court‟s role was restricted to examining
whether the government had taken into account all relevant aspects and was not
influenced by extraneous material in reaching its final decision.172
All the above efforts and dicta of the Courts through recognizing various provisions
of the Constitution of India, 1958, coupled with the 186th Law Commission report of
India, which suggested the setting up of a separate Environmental Judicial regime to
address the increasing environmental degradation and the issues relating thereto,
culminated in the National Green Tribunal Act, 2010.173 This was a big leap in the
direction of a dedicated environmental forum that would work towards preventing
environment degradation and in turn encourage its protection and preservation for the
future.
3.2.7. Enviro-crimes Prevention through Public Interest Litigation (PIL)
170
Sachidanad Pandey v. State of West Bengal AIR 1987 SC 1109, 1115.
171
Shyam Divan and Armin Rosencranz, op.cit, at 130.
172
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company
Ltd. 1991 (2) SCC 539, 541. Also see Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar
Pradesh 1992 Supp (1) SCC 44; and Dr. Shivrao Shantaram Wagle v. Union of India AIR 1998
SC 952.
173
Law Commission of India, 186th Report on Proposal to Constitute Environment Courts, 136-158
(September, 2003).
121
As already mentioned earlier, the Indian higher judiciary is not content with its role
as a mere arbiter or adjudicator. It has claimed and asserted to play a more activist
role to advance the Constitutional framework for the effective protection and
enforcement of fundamental rights. It is in this context that the concept of PIL
174
assumes significance. This new genus of litigation, which has been the
handmaiden of judicial activism in India, has metamorphosed the very nature of
judicial process. The basic philosophy of PIL in India was inspired by the American
Judicial experience in the field of Public Interest Law and Social Action
Litigation.175 The phenomenon of PIL in India has been built and shaped mainly by
activist judges such as Krishna Iyer and P.N. Bhagwati 176 who have been the main
architect of PIL movement in the country.
It may be noted that it was Justice Krishna Iyer who first inducted the concept of PIL
into the Indian judicial ethos in 1976. This is evident from his observation in Mumbai
Kamgar Sabha v. Abdul Bhai,177 as:
“Test litigation, representative actions, pro bono publico and like broadened
forms of legal proceedings are in keeping with the current account on justice
to the common man and a necessary distinctive to those who wish to bypass
the real issues on the merits by suspect reliance on peripheral, procedural
shortcomings….Public interest is promoted by a spacious construction of
locusstandi in our socio-economic circumstances and conceptual
latitudinarianism permits taking liberties with individualization of the right to
invoke the higher costs where the remedy is shared by a considerable number,
particularly when they are weaker.”
The concept of PIL was further strengthened and developed by the same judge in
Fertilizer Corporation Kamgar Union v. Union of India.178 However, Justice P.N.
Bhagwati in S.P. Gupta v. Union of India effected the first comprehensive exposition
of its philosophy179, where he stated:
174
ArunaVenkat, op.cit, at 188-189.
175
For a historical account of PIL, See S.K. Agrawal, “Public Interest Litigation in India-A Critique”
JILI (1985).
176
See, P.N. Bhagwati, “Judicial Activism and Public Interest Litigation” 23CJTL 561 (1985).
177
AIR 1976 SC 1456.
178
AIR 1981 SC 344. Justice Krishna Iyer was first to use the expression “epistolary jurisdiction.”
179
AIR 1982 SC 149.
122
“Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any constitutional or
legal right or any burden is imposed in contravention of any constitutional or
legal provision or without any authority of law or any such legal wrong or
legal injury or illegal burden is threatened and such person or determinate
class of persons is by reason of poverty, helplessness or disability or socially
or economically disadvantaged position, unable to approach the Court for
relief, any member of the public can maintain an application for appropriate
direction, order or writ in the High Court under Article 226 and in case of
breach of any fundamental right of such person or determinate class of
persons, in this Court under Article 32 seeking judicial orders for the legal
wrong or injury caused to such person or determinate class of persons.”180
3.2.8. The Subjects Related to Environmental Protection and Promotion in the

VII Schedule of the Constitution of India
Being a federal State, in India, the legislative and administrative relation between the
Union and the States are governed by the provisions contained in Part XI of the
Constitution. While Articles 245 to 255 deal with the distribution of legislative
powers, the distribution of administrative powers is dealt within Article 256 to 261.
Article 245 empowers, “the Parliament to make laws for the whole country whereas
the State Legislatures have the power to legislate for their respective States. Article
246 of the Constitution of India divides the subject areas of legislation between the
Union, State, and the Concurrent list.”181These are as follows:182
a. Union List
Entries
52 Industries.
53 Regulation and development of oil fields and mineral oil resources.
54 Regulation of mines and mineral development.
55 Regulation and development of inter-State rivers and river valleys.
180
See, PUDR v. Union of India, AIR 1982 SC 1473; Bandhua Mukti Morcha v. Union of India, AIR
1984 SC 802; Sheela Barse v. State of Maharashtra, AIR 1983 SC 378; and Sanjit Ray v. State of
Rajasthan, AIR 1983 SC 328.
181
See also Mahendra Kumar, op.cit, at 123-124.
182
M.P. Jain, op.cit, at 515-518.
123
56 Fishing and fisheries beyond territorial waters.
b. State List183
Entries
6 Public health and sanitation.
14 Agriculture, protection against pest and prevention of plant diseases.
18 Land, colonization, etc.
21 Fisheries.
23 Regulation of mines and mineral development subject to the
provisions of List-I.
24 Industries subject to the provisions of List-I.
c. Concurrent List184
Entries
17A Forests.
17B Protection of wild animals and birds.
20 Economic and social planning.
20A Population control and family planning
As conferred by Article 246(1), “whereas the Union is supreme to make any law
over the subject enumerated in List I, the States, under Article 246(3), enjoy
competence to legislate on the entries contained in List II, and both the Union and
the States under Article 246(2) have parallel jurisdiction on entries contained in List
III (Concurrent List). The Constitution also provides instances when Parliament can
directly legislate in regard to matters falling within the State list.”185In the event of a
clash, the Union enjoys superiority over States and its legislation Concurrent List
prevails over State legislations.186
183
M.P. Jain, op.cit, at 523-527.
184
J.N. Pandey, op.cit, at 679.
185
See, Constitution of India, 1950, art. 252 and 253.
186
Regarding inconsistency arising out of laws made by Parliament and laws made by the State
Legislatures on a matter falling in the Concurrent List, the law made by the former will prevail.
124
The framers added this list to the Constitution with a view to secure uniformity in the
main principles of law throughout the country.187 The Concurrent list was to serve as
a device to avoid excessive rigidity to two-list distribution. The Concurrent List thus,
in the words of Pyle, is:
“A twilight zone, as it was, for both the union and the States are competent to
legislate in this field, without coming into conflict.”188
In addition, the Parliament has residuary powers to pass on any matter

not quoted within the three Lists (Art. 248).189Article 248 says that, “Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or the State List. From an environmental standpoint, the allocation of
legislative authority is an important one some environmental problems such as
sanitation and waste disposal, are best tackled at the local level.” Uniform national
law better regulates others, like water pollution and wildlife protection.
Article 253 of the Constitution of India confers “parliament exclusive power to make
laws implementing India‟s international obligations as well as any decision made at
an international conference, association or other body.”190
Article 253 exhibits that in implementing a treaty, agreement or convention with

another country, the limitations imposed by Article 245 and 246 are lifted and the
entire field of legislation, in that respect, is open to the Union Parliament. 191The wide
scope of Article 253 suggests that, “in the wake of the Stockholm Conference in 1972,
Parliament has the competence to legislate on all matters linked to the preservation of
natural resources. Parliament‟s use of Article 253 to enact the Air (Prevention and
Control of Pollution) Act, 1981 192 and the Environment (Protection) Act, 1986 193
confirms this view.” The preambles to both laws state that, “these Acts were enacted
But if a State law passed subsequent to the Central law and has received the assent of the President
under Article 254 of the Constitution it will prevail.
187
See, Sukanta K. Nanda, op.cit, at 106.
188
Ibid.
189
P. M. Bakshi, The Constitution of India 390 (Universal Law Publishing Co., New Delhi, 10 thedn.
2010).
190
“Parliament has power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement, or convention with any other country or countries or any
decision made at any international conference, association or other body.”
191
See also The Constitution of India, 1950, Entry 14 in the Union List, which says of entering into
treaties, etc. with foreign countries.
192
Act No. 14 of 1981.
193
Act No. 29 of 1986.
125
to implement the decisions reached at the Stockholm Conference on Human
Environment194 held in the year 1972 under the auspices of the United Nations.” The
Tiwari Committee in 1980 recommended that, “a new entry on “Environment
Protection” be introduced in the concurrent list to enable the Centre to legislate on
environmental subjects, as there was no direct entry in the7th Schedule enabling
Parliament to enact comprehensive environmental laws. The recommendation,
however, did not consider Parliament‟s power under Article 253 of the Constitution of
India, 1958.”
3.2.8.1. Role of Panchayats and Municipalities in Protecting Environment
Parts IX (Eleventh Schedule) and IXA (Twelfth Schedule) have been added to the
Constitution by 73rd and 74thAmendments in 1992 respectively to give Constitutional
backup to democracy at the grassroots level through Panchayats and Municipalities as
envisaged under article 40 of the constitution.195
3.2.8.1.1. Role of Panchayats in Protecting Enviro-crimes: Part IX of the

Constitution of India
The role of Panchayat is of immense importance especially with regard to protection

of Environment. The Panchayats are given constitutional power “to perform such
functions as mentioned in 29 subjects, in the XI Schedule of the Constitution.” The
subjects related to environment are as:
“Agriculture, including agricultural extension; and improvement, implementation

of land reforms, land consolidation, and soil conservation; minor irrigation,
water management, and watershed development; animal husbandry, dairying,
and poultry; fisheries; social forestry and farm forestry; minor forest produce;
rural housing; drinking water; fuel and fodder; roads, culverts, bridges, ferries,
waterways and other means of communication; non-Conventional energy
194
This United Nations Conference on “Human Environment was held at Stockholm from 5th to 16th
June, 1972.”
195
Environmental Laws of India C.P.R. Environmental Education Centre,
http://www.environmentallawsofindia.com/the-constitution-of-india.html, (accessed on 20th Oct.,
2015).
126
sources; health and sanitation, including hospitals, primary health centers, and
dispensaries; and maintenance of community assets.196”
3.2.9.1.2. Role of Municipalities in preventing enviro-crimes in India
The matters related to environment in the XII Schedule (Article 243W) of the Constitution
of India are to be taken care of by the Municipalities (Nagarpalikas). These are:
“Urban planning including town planning; regulation of land-use and

construction of buildings; water supply for domestic, industrial and commercial
and solid waste management; public health, sanitation conservancy, and solid
waste management; urban forestry, protection of the environment and promotion
of ecological aspects; slum improvement and up gradation; provision of urban
amenities and facilities such as parks, gardens, playgrounds; cattle pounds;
prevention of cruelty to animals; and regulation of slaughterhouses and
tanneries.197”
Thus, giving powers to the local bodies on matters relating to the environment means to
make the people actively participate in the process, make laws, act accordingly for the
betterment of their lives, and take necessary and adequate steps for the protection of the
environment and water resources. From the standpoint of environmental considerations it
should not be taken for granted that these perspectives played any dominant role in the
original scheme198 concerning distribution of legislative powers between the Union and
the States. However, the present scheme of the Constitution is open in several ways and
means that with respect to the State subjects Central enactments can be made.
Thus, it may be concluded that, “our Constitution has a flexible structure that could serve
as a springboard for taking meaningful measures in the field of environment.” 199
Environment protection is inseparably connected with our cultural values and traditions.
In Atharvaveda, it has been said that:
“Man‟s paradise is on earth; this living world is the beloved place of all; It has
the blessings of nature‟s bounties; live in a lovely spirit”.200
196
Mahendra P. Singh, V.N. Shukla‟s Constitution of India 1097-1098 (Eastern Book Company,
Lucknow, 11th edn., 2008).
197
Mahendra P. Singh, op.cit, at 1098.
198
In fact, this scheme basically borrowed from the Government of India Act, 1935.
199
P. Chandrasekhar Rao, “The Environmental Perspective in the Indian Constitution” 23 IJIL 512 (1983).
200
Atharva Veda (5.30.6).
127
It also rightly said that:
“Earth is our paradise and it is our duty to protect our paradise. The Constitution
of India embodies the framework of protection and preservation of nature without
which life cannot be enjoyed.”
A general analysis of the provisions of the Constitution of India, 1950 revealed that there
was no direct provision relating to protection of natural environment in our Constitution
previously. However, a careful analysis proves that there are various provisions and many
have been subsequently added through amendments of the Constitution; these provisions
are incorporated for the protection of the environment. The intended meaning of
environment may be studied under the chapters dealing with Fundamental Rights,
Directive Principles of State Policy, Fundamental Duties and legislative relations between
the Centre and the States.
Protection and improvement of environment is pre-condition for safeguarding forests and

wildlife, which in turn protects and improves the environment. Hence, there exists a
symbiotic relation between them. The forests and wildlife, are clearly inter-related and
inter-dependent on each other. They protect each other.201
The Constitution imposes positive obligation to both State and the citizen to protect and
improve the environment and to safeguard the forests, lakes, rivers, and wild life, and to
have compassion for all living creatures. The Constitution of India provides ample of
provisions regarding protection and improvement of healthy environment. What we need
the knowledge and the awareness of Constitutional provisions regarding environmental
protection.
It is the high time need to bring larger and effective public participation, social awareness,
environmental awareness, and environmental education and sensitize the people to
preserve ecology and environment from below, not laws from the above. Bottom to top
approach is required here as no law works out smoothly unless the interaction is
voluntary. 202 In order to educate people about the Constitutional provisions and
environmental related issues, there should be exhibition of slides in the regional
201
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534: AIR 2006 SC 212,
in this case ban on cow slaughter was declared intra-vires the Constitution.
202
Pooja P. Vardhan, “Environment Protection under Constitutional Framework of India”, available
at: http://pib.nic.in/newsite/efeatures.aspx?relid=105411, (accessed on 15 th October 2015).
128
languages at cinema houses, in a public gathering through projector and on television free
of cost.
From the above discussion, it is clear that India has ample positive Constitutional
mandates which may tackle the enviro-crimes in the country. Moreover, Supreme Court
and High Courts have broadened the horizon of environmental jurisdiction through their
landmark pronouncements. However, judicial intervention has not always has yield
positive results it has its own ramifications. First, the judiciary has to function within the
framework of the existing legal norms, which is not commensurate to effect quick and
expeditious relief to the victims of environmental degradation. Second, judicial
intervention can only be preventive and not protective and promotive. Protection,
prevention, and promotion of environment are primarily the job of the legislature and
executive organs of the State. While the legislature has done its job by enacting the
necessary environmental provisions in the Constitution of India not only for the
prevention of enviro-crimes but also for its protection and promotion, it is the executive,
which has to play an active role in the prevention, protection and promotion of
environment by effective implementation of these Constitutional and statutory provisions.
It is unfortunate that the executive has failed to take its responsibility seriously and has
not proved equal to its task. Its failure has been mainly responsible for the vacuum
created in this area and invited judicial activism in the area of protection of environment
in the country. In this context, it may be appropriate to quote Justice Krishna Iyer who
observed:203
“The pressure of the judicial process, expensive and dilatory, is neither necessary
nor desirable if responsible bodies are responsive to their duties.”
Finally, the judiciary cannot directly reach private commercial enterprises for the
enforcement of Constitutional provisions to clean environment unless their operations are
covered and regulated by executive mechanism. Judicial directions should not remain
only direction but should be implemented the executive in its true and religious spirit.
People in our country are not so environment sensitive as in developed country. Thus, in
Indian context, the need of the day is to spread awareness.
203
Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622.
129

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Chapter-III

ROLE OF GREEN CONSTITUTION IN PREVENTING

3.1. Introductory Outline

“Improvement of public Health, 3 organization of agricultural and animal

Article 47 of the Constitution is of specific importance as it provides that:

Safeguarding and preserving of environment is basically inbuilt in the improvement

The creative judicial interpretation of Article 21 by the Indian Judiciary, which

“In order to treat a right as a fundamental right, it is not necessary that it

Therefore, any disturbance in any of the fundamental environment elements, namely,

3.2. Constitution of India and Right to Healthy Environment

Although no global international agreement has explicitly recognized a right to a

a. either the right is explicitly adopted in a national constitution; or

In addition, many constitutions include procedural rights, such as rights to

“The Preamble of our Constitution is of extreme importance and the

“Environment as a subject, environment as a concern and environment as a

3.2.2. Fundamental Rights a Constitutional Conspectus

Fundamental Rights is being considered as a superior class right. The Constitution of

“Essential for the development of every individual and to which a person is

“Promote individual welfare as well as the social welfare as it embraces the

3.2.2.1. Equality before Law and Concept of Healthy Environment

Article 14 of the Constitution provides:

On various occasions, the Indian Supreme Court has declared “unconstitutional

“Strikes at the arbitrariness in executive/administrative action because any

3.2.2.2. Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex

The Constitution of India generally prohibits discrimination on grounds of religion,

3.2.2.3. Protection of certain rights regarding freedom of speech, etc. and

a. freedom of speech and expression,

a. Freedom of Speech and Expression

b. Freedom of Information and the Right to Know

Public participation in environmental decision-making can be meaningful and

“If there is clash between environmental protection and right to freedom of

“Any activity which pollutes the environment and makes it unhealthy,

“Where legislation imposes a restriction on the right of a trader for giving

To mention one more case, in Burra Bazar Fireworks Dealer Association v.

The Court declared that:

“There was no inherent or fundamental right in a citizen to manufacture, sell,

According to the Apex Court:

“A citizen cannot be made a captive listener to hear the tremendous sounds

Beside Article 21 of the Constitution of India. The Universal Declaration of Human

The Fifth Amendment of the American Constitution also provided that:

“The company to deposit a sum of Rs.20, 00,000/- by way of security for

In another landmark judgment of Vellore Citizens’ Welfare Forum v. Union of

“The constitutional and statutory provisions protect a person‟s right to fresh

In M.C. Mehta v. Kamal Nath103 the court declared that:

In M. C. Mehta v. Shriram Food and Fertilizer Industries and Union of India or

“Enterprise engaged in any hazardous or inherently dangerous industry which

“Rights to live in a healthy environment as fundamental right under Article 21

“Right to live is a fundamental right under Article 21 of the Constitution and it

In case of prevention environmental pollution remedy is available under Article 32 of

“Article 21 protects the right to life as a fundamental right. Enjoyment of

In addition, several High Courts have explicitly recognized, “an environmental

“Maintenance of health, preservation of sanitation and environment fall

“Environmental degradation violates the fundamental right to life which is

Recently in Santosh Govind Mahajan v. State of Maharashtra,119 the Bombay High

“The citizen‟s right to accesses clean drinking water is a fundamental right

Justice P. N. Bhagawati’s in his last pronouncement just before his retirement in M. C.

3.2.2.5. Right against Exploitation and Role of Article 24

Article 24 of the Constitution prohibits exploitation of child labour. It says that:

“Children below 14 years of age cannot be employed in the construction

“The prohibition under Article 24 could be enforced against any one,

India‟s Constitutional commitment to secularism, which is one of the basic features of

“No religion prescribes or preaches that prayers are required to be

3.2.3. The Directive Principles of State Policy is a Constitutional Mandate