Right to a Clean and Healthy Environment as a Basic Fundamental Right: Revisiting Landmark Judgements

Introduction:

A clean and healthy atmosphere is essential for living a good life. A person will only be healthy if he has access to fresh air to breathe, clean water to drink, and other fundamental necessities. So, to live a dignified and healthy life, a person must be surrounded by a clean atmosphere. Thus, the right of the people to live in a clean and healthy environment is a basic human right, essential for living a decent life, and its violation will be regarded as a violation of the basic right to life.

Indian Laws Dealing with Environmental Issues

Environmental Policy: Pre Stockholm Period (before 1972)

During this time, legislation was primarily focused on infrastructure development, which obscured the need for environmental policy. Certain rules were in place to safeguard forests, prevent uncontrolled city expansion, and preserve mining and minerals.

• Wild Birds and Animals Protection Act 1912^[1]: It was declared a crime to kill, capture, sell, or buy any wild bird or animal included in the schedule.
• The Indian Forest Act, 1927^[2]: It created the structure and procedures for establishing and safeguarding reserved forests, protected forests, and village woods.
• The Factories Act, 1948^[3]: It emphasised the importance of treating toxic gases, liquid effluents, and solid waste created during the production process before ultimate disposal to reduce the environmental impact.
• The Mines and Minerals (Regulation and Development Act, 1957^[4]: To avoid any exploitation of nature’s richness, the Union assumed control of mining regulation and mineral development.

Environmental Policy: Post Stockholm Period (after 1972) 

The Stockholm Conference in 1972 had a significant impact on the structure of India’s environmental policy. Following the Stockholm Conference, the Department of Science and Technology established the National Council for Environmental Policy and Planning in 1972 to establish a regulatory agency to oversee environmental concerns. In 1985, this Council was transformed into a full-fledged Ministry of Environment and Forests (MoEF). The Conference had such an impact that the Constitution was amended to reflect the idea of environmental conservation and preservation.

Constitutional Provisions

The Indian Constitution of 1950 had no mention of environmental conservation or preservation. However, the Constitution (Forty-second Amendment) Act of 1976 included Articles 48-A and 51A (g), which granted environmental protection constitutional significance.

Directive principles 

• Article 48-A^[5]: According to this article, “the State should endeavour to maintain and develop the environment, as well as to safeguard the country’s forests and animals.” Though directive principles are not legally binding, the state is required to follow them when making legislation.
• Article 47^[6]: Article 47, which declares that the “State should regard enhancing the level of nutrition and the standard of life of its people, as well as the enhancement of public health, as among its major tasks,” also attempts to provide residents with the right to a healthy environment.

Fundamental Duties^[7]

Article 51-A(g) states that “it shall be the obligation of every citizen of India to maintain and develop the natural environment, including forests, lakes, rivers, and animals, and to have compassion for living beings.”

Fundamental Rights

The Supreme Court approached the matter of noise pollution using the clause of Article 19 (1) of the Constitution dealing with freedom of speech and expression. It has been argued that the right to free expression does not encompass the use of amplifiers or loudspeakers. Such a privilege cannot be exercised in such a way that it causes issues for others.^[8]

Article 21 of the Constitution addresses the protection of life and personal liberty, stating that “no individual shall be deprived of his life or personal liberty unless following the method provided by law.” It is the State’s negative responsibility not to do anything that deprives a person of his or her life or personal liberty. To protect this and other basic rights, Article 32^[9] of The Constitution gives the Supreme Court the authority to intervene if there is a breach of Fundamental Rights. Although the right to a clean environment was not specifically recognised by the Constitution, the judiciary has determined it to be inherent in the right to life under Article 21 through its pronunciation. Courts have given Article 21^[10] the broadest interpretation possible, arguing that the right to life entails more than just ‘animal existence,’ but also a life with ‘human dignity.’ It was decided that the right to life encompassed all those rights that are necessary and basic for the enjoyment of a decent quality of living, such as the right to shelter, the right to food, and the right to be free of environmental pollution and other environmental threats.

Through Public Interest Litigation, Articles 32 and 226 of the Constitution have been invoked several times to highlight the subject of environmental preservation (PIL).^[11] 

Environment Protection Laws

The 1972 Stockholm Conference had a significant impact on India’s environmental policy making. Following it, several significant pieces of legislation were enacted. To address the issue of environmental contamination, the following Acts were enacted.

The Water (Pollution Prevention and Control) Act of 1974^[12]

• The Act’s goal is to keep the country’s water pure and to encourage the cleanliness of streams and rivers.
• It resulted in the formation of the Central Pollution Control Board (CPCB) and the State Pollution Control Board (SPCC) (SPCB).
• It forbids the release of effluents into bodies of water above a particular level.
• It was last modified in 2003.

The Air (Pollution Prevention and Control) Act of 1981^[13]

• It addresses air pollution prevention, control, and abatement.
• The boards established under the ‘Water Act’ were also tasked with carrying out the terms of this Act.
• It allows the State Government to proclaim any area or locations within the State as an air pollution control area or areas after consulting with the SPCBs.
• The Act demands SPCBs’ permission before developing or running an industrial facility in the pollution control region.

The 1986 Environment (Protection) Act^[14]

• This Act was enacted as a response to the 1984 Bhopal Gas Disaster.
• It is regarded as umbrella legislation designed to cover gaps in current legislation and assist CPCBs and SPCBs in coordinating their actions under multiple laws.
• The Act authorises the Centre to take all necessary measures, including establishing standards for emissions and discharges of pollution into the atmosphere by any person carrying on an industry or activity, regulating the location of industries, managing hazardous wastes, and protecting public health and welfare.

The National Green Tribunal Act of 2010 is a piece of legislation that was passed in 2010^[15]

• It resulted in the formation of the National Green Tribunal (NGT) to expedite the resolution of environmental protection and preservation disputes.
• According to Schedule I of the NGT Act, the NGT will be established to deal with all environmental legislation about air and water pollution, the Environment Protection Act, the Forest Conservation Act, and the Biodiversity Act.

Certain policies were also developed to meet the goal of environmental conservation. Among them are:

• 2004 National Environment Policy
• Marine Fishing Policy
• National Environment Policy, 2006
• 11th Five-Year Plan, (2007 -2012)
• National Wetland Conservation Plan

Penal Provisions

Certain articles of the Indian Penal Code, 1860 define numerous offences connected to public annoyance.

Section 268 of the IPC defines public nuisance. Sections 269 to 271 of the IPC deal with careless activities that are likely to transmit illness and endanger people’s lives. These actions are penalised under the aforementioned provisions. Water contamination is addressed under Section 277 of the IPC. It makes contaminating the water of a public spring or reservoir a crime punishable by jail, fine, or both.

Section 278 of the IPC deals with air pollution. It stipulates that whomever wilfully vitiates the environment in any area in such a way that it is noxious to the health of individuals in general living or carrying on business in the vicinity or walking along a public road shall be penalised with a fine of up to 500 rupees.

Section 290 of the IPC renders public annoyance criminal and sets penalties for it. Section 133 of the Criminal Procedure Code of 1973 authorises the Magistrate to take prompt action to remove any public nuisance reported to it by the police after evaluating any evidence as it deems appropriate.^[16]

Role of Judiciary in Evolving Environmental Laws

The judiciary has played a critical role in environmental preservation. The history of the last few decades, which is packed with landmark judgments, demonstrates the importance of the judiciary in providing broad interpretation to the fundamental rights of persons in our nation. The introduction of Public Interest Litigation was one of the significant advancements (PIL). The Supreme Court recognised that the great majority of our country is unable to access the court due to the locus standi rule, which states that only the person offended can approach the court. However, in the 1980s, the courts loosened this norm, allowing any person whose interests had been impacted in some manner to approach the court. The 42nd Amendment to the Constitution established PIL as a constitutional right. PIL was a game-changer, especially in the sphere of environmental litigation, since it broadened the purview of social justice. It encouraged people, NGOs, and organisations impacted by a specific activity or project to go to court for the benefit of society as a whole without having to pay any court expenses. There have been several historic decisions that demonstrate the judiciary’s active engagement in environmental preservation. Some of these are:

Municipal Council, Ratlam vs Shri Vardhichand & Ors^[17]

It was one of the first instances that helped to broaden the scope of environmental protection. In this instance, inhabitants of a municipality in Ratlam filed a petition saying that the municipality is not installing suitable drains, resulting in the smell and stink created by the faeces of surrounding slum-dwellers. According to the Supreme Court, the right to life includes the right to a healthy environment, and residents have the right to exercise it against the state. It recognised the consequences of deteriorating environmental conditions on the poor and obliged the municipality to construct basic sanitation and drainage.

Rural Litigation & Entitlement … vs the State Of U.P^[18]

Rural Litigation and Entitlement Kendra filed a petition on behalf of Doon valley inhabitants in 1987 to prohibit the extraction of limestone in the Mussorie valley. It was stated that the quarrying activities are disrupting the valley’s biological and natural equilibrium. The Supreme Court put a halt to quarrying activity in the valley, which was eventually designated as an environmentally sensitive region under the Environment Protection Act.

F.K. Hussain vs Union Of India (UOI) And Ors.^[19]

Recognizing that the right to health is a component of the right to live under Article 21, the Kerala High Court has stated that the right to clean water and air are aspects of the right to life.

Principles Evolved by the Indian Judiciary

The judiciary has used certain ideas from international environmental law to assist them in resolving conflicts in environmental situations. These are the principles:

Inter-Generational Equity^[20]

• According to this idea, the state is obligated to maintain and utilise the environment and its natural resources for the benefit of both current and future generations. It asserts that because every generation owns Earth in common, its resources should be exploited judiciously and for the benefit of all.
• It is the cornerstone of long-term development.
• The right to a clean environment is not just an individual right, but also a social right that applies equally to present and future generations.

According to SC, Sustainable Development and CSR are inseparable twins, interwoven within the concepts of Inter-Generational Equity that are not only human-centric but also eco-centric. It is the company’s responsibility to evaluate the current consequences of their thermal projects on the environment as well as the long-term effects on future generations.

 Polluter Pays Principle^[21]

• The Organization for Economic Cooperation and Development (OECD) Guiding Principles Concerning International Economic Aspects of Environmental Policies were originally established in 1972.
• It stipulates that the polluter must pay for the harm done to the natural environment.
• Union of India v. Vellore Citizens’ Welfare Forum 1996^[22]

The court viewed the Polluter Pays concept as an absolute duty of the polluter, not only to compensate victims for the harm caused to them but also to pay expenditures for the repair of the natural environment destroyed by the polluter’s actions.

Precautionary Principle

• The Rio Declaration of 1992 established the precautionary concept (Principle 15).
• It asserts that, even in the absence of scientific data, steps must be made to predict and avert environmental damage. It is the State’s social obligation to safeguard the public from any reasonable risk.
• Prof M V Nayadu vs. AP Control Pollution Board 1999^[23]

The court ruled that it is preferable to take safeguards to preserve the environment rather than waiting for the problem to manifest itself. Even if there is no scientific evidence of probable environmental impact, it is critical to take action.

Public Trust Doctrine

• It asserts that resources such as water, air, sea, and forest are so important to the broad public that making them private property would be unjustified. It imposes an obligation on the state to safeguard such resources for the benefit of everybody and to prohibit commercial exploitation of them.
• The general public is the beneficiary, and the state is the trustee, with a legal obligation to safeguard these resources.
• Kamal Nath v. M C Mehta, 1997^[24]

In this example, an attempt was made to alter the river’s flow to assist the commercial activities of a hotel. It was determined that the State is the trustee of all-natural resources that cannot be utilised for commercial interests and must instead be used for the benefit of the people as a whole.

Sustainable Development Principle

• It was initially proposed during the Stockholm Conference in 1972.
• It asserts that the government should strive to achieve a balance between development and the environment.
• Ganesh Wood Products v. State of Himachal Pradesh 1995^[25]

The Supreme Court rejected a forest-based enterprise, recognising the concept of intergenerational justice as critical to forest resource protection and sustainable development.

M.C. Mehta vs Union of India 1986: Landmark Judgement^[26]

The Shriram gas leak case was a watershed moment in the environmental movement. In this case, the Supreme Court attempted to restore public trust in the legal system by correcting a mistake made a year before in the Bhopal gas catastrophe case.

Facts of the Case

• Shriram Food and Fertilizer Industry, a division of Delhi Cloth Mills Limited, was a privately held enterprise that produced caustic chlorine and oleum gas.
• M.C Mehta, a social activist lawyer, filed a writ case seeking the closure of the Shriram Food and Fertilizer Industry, which was located in a heavily populated region of Delhi.
• While the appeal was still pending, on December 4th and 6th, 1985, a massive leak of petroleum gas occurred from one of Shriram Food and Fertilizers Limited operations in the heart of Delhi, resulting in one fatality and multiple health complications.
• The Inspector of Factories and the Assistant Commissioner of Factories issued two orders to close the factory on the 7th and 24th of December, respectively, under the Factories Act (1948).
• Shriram replied by filing writ petitions (No. 26 of 1986) to overturn the two rulings and to allow the temporary operation of its caustic chlorine facility, which manufactures glycerine, soap, hard oil, and other products.
• Along with the initial petition of M.C. Mehta, the Delhi Legal Aid and Advice Board and the Delhi Bar Association filed for compensation on behalf of the gas leak victims, and it was also requested not to allow the shuttered institution to reopen.

Issues Raised

The matter was originally considered by a three-judge panel, who allowed the reopening of the shuttered institution under specific circumstances. Because the questions are of constitutional significance, the case was referred to a bigger bench of five judges.

1. If Shriram should be permitted to recommence its operation of producing caustic chlorine and petroleum, which might pose a health risk, and whether this would constitute a breach of Article 21?
2. What is the standard of responsibility for a company that manufactures a hazardous or intrinsically dangerous material that may endanger the health of the community as a whole?
3. Is Shriram Industry a ‘state’ and so subject to Article 12 to be held accountable under Article 21?
4. Can Shriram Industries be sued for compensation under Article 21?

Judgement

• The verdict was handed down on December 19, 1986.
• The Supreme Court chose not to rule on whether Shriram Industries should pay compensation under Article 21.
• They asked the Delhi Legal Aid and Advice Board to file a comprehensive action in an appropriate court on behalf of all persons who claimed to have suffered as a result of this incident within two months of the date of the judgement.
• It further noted that the amount of compensation should be proportionate to the degree of the harm done to the community and should be tied to the capabilities of the Shriram sector to serve as a deterrence.
• The court also ordered Shriram to follow all of the recommendations of the Nilay Choudhary and Manmohan Singh Committees and issued a severe warning that failing to do so would result in the plant’s immediate shutdown.

Analysis

The case’s verdict was essential for future enviro-legal issues since it established numerous important viewpoints that are still honoured today. The Supreme Court took a proactive role in the case’s resolution, ensuring that people’s fundamental rights were not infringed by granting a broad interpretation to the right to life under Article 21. The Court needed to address the issues expressed following the Bhopal Gas catastrophe verdict, which came only a year ago, to restore the country’s trust in the judicial system. It was thought that such a harsh judgement was required to assure the public that industries will be held completely accountable for their conduct and will be penalised for endangering the community’s life.

Revisiting Apex Court Judgements

Today’s environmental law in India is mostly shaped by the many interpretations provided by the Supreme Court involving several components, some of which are as follows:

1. M. C Mehta v. Kamal Nath^[27]: The Supreme Court made it quite apparent that any disruption of key natural components such as air, water, and soil, which are required for life, would be harmful to life and could not be polluted. (The hotel discharged sewage into the river, disrupting aquatic life and water cleanliness.)
2. Rural litigation and entitlement Kendra v. the State of U.P^[28]: Limestone mining, which depleted the Mussoorie hills’ forest cover and exacerbated soil erosion, resulting in the blocking of subsurface water conduits, was prohibited.
3. Tarun Bharat Sangh (NGO) v. UOI^[29]: Closure of all 400 marble mines surrounding the Sariska Tiger Reserve, which posed harm to the area’s biodiversity.
4. Preventing pollution of Ganga and Yamuna, 1995: The Supreme Court, under the Environmental Protection Act of 1986, requested the relocation of all polluting factories located on the banks of the Ganga in Kanpur, the Hoogly in Calcutta, and the Yamuna in Delhi.
5. Protection of Silent Valley Biodiversity in Western Ghats, 1970: The construction of a hydroelectric dam in Kerela was halted, potentially destroying the world’s richest biodiversity after Amazonia.
6. Vellore Citizens Welfare Forum v. UOI^[30]: It developed the precautionary principle and the polluter pays principle. It was a case of tanneries polluting Tamil Nadu’s pure drinking water.
7. T.N Godavarman Thirummalpad v. UOI^[31]: The Himachal Pradesh government was fined one crore for permitting corporations to paint advertisements on eco-sensitive rock walls on both sides of the Rohtang-Manali route.
8. P.A. Jacob v. Superintendent of Police, Kottayam^[32]: The Kerela High Court ruled in this case that freedom of expression does not include the right to use loudspeakers or sound amplifiers to generate noise pollution and endanger human health.
9. T.K. Koolwal v. the State of Rajasthan^[33]: The High Court expanded the right to know to include a person’s right to comprehensive information regarding the municipal corporation’s sanitation programme. As a result, residents’ access to official environmental information within appropriate boundaries is now a legal right.
10. Indian Council for Enviro-Legal Action v. Union of India^[34]: It is also known as the coastal zone preservation case because the Supreme Court took a serious view of the executive’s sluggish approach toward executing laws aimed to safeguard the right to life and urged them to strictly enforce the relevant legislation to maintain ecological balance.
11. Subhash Kumar v. State of Bihar^[35]: The right to enjoy pollution-free water and air for the full enjoyment of life was recognised as a component of the right to life under Article 21.
12. Consumer Education and research forum v. Union of India^[36]: The court, in this case, held that the right to excellent health was an essential component of a meaningful right to life and extended the employees’ right to strong health and vigour, without which the workers would live a miserable existence.
13. Murli S. Deora v. Union of India^[37]: The Supreme Court ruled that non-smokers cannot be forced to be helpless victims of air pollution and thereby prohibited smoking in public places.
14. Sacchidanand Oandey v. State of West Bengal^[38]: When called upon to give effect to directive principles and fundamental obligations, the court stated that it should not shrug its shoulders and declare that priorities are a matter for the policymaking authorities. As a result, the court may always provide required instructions.

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References:

[1] Wild Birds and Animals Protection Act (No. VIII of 1912).

[2] Indian Forest Act, 1927 Act No. 16 of 1927

[3] Factories Act 1948 (No. 63 of 1948).

[4] Mines and Minerals (Development and Regulation) Act, Act 67 of 1957

[5] Const. of India, S.48A

[6] Const. of India, S.47

[7] Const. of India, S.51

[8] Const. of India, S.19(1)

[9] Const. of India, S.32

[10] Const. of India, S.21

[11] Const. of India, S.32,S.226

[12] The Water (Pollution Prevention and Control) Act of 1974, Act No. of 06 of 1974

[13] The Air (Pollution Prevention and Control) Act of 1981, Act no. of 14 of 1981

[14] The 1986 Environment (Protection) Act, Act no. of 29 of 1986

[15] The National Green Tribunal Act of 2010, Act No. 19 of 2010

[16] Pen. Code

[17] 1980 AIR 1622 Municipal Council, Ratlam vs Shri Vardhichand & Ors

[18] 1989 AIR 594 Rural Litigation & Entitlement … vs State Of U.P

[19] AIR 1990 Ker 321 F.K. Hussain vs Union Of India (Uoi) And Ors.

[20] Intergenerational Equity – an overview | ScienceDirect Topics www.sciencedirect.com, 

[21] Polluter pays principle, http://www.ejolt.org/2013/05/polluter-pays-principle/

[22] 1996 5 SCR 241 Vellore Citizens Welfare Forum vs Union Of India & Ors 

[23] 1999(2) SCC 718 Prof M V Nayadu vs. AP Control Pollution Board 1999

[24] (1997)1 SCC 388 Kamal Nath v. M C Mehta, 1997

[25] AIR 1996 SCC 149 Ganesh Wood Products v. State of Himachal Pradesh 1995

[26] M.C. Mehta And Anr vs Union Of India & Ors  1987 AIR 1086

[27] M. C Mehta v. Kamal Nath AIR 2002 SC 1997

[28] Rural litigation and entitlement Kendra v. State of U.P AIR 1985 SC 625.

[29] Tarun Bharat Sangh (NGO) v. UOI AIR 1992 SC 514

[30] Vellore citizen’s welfare forum v. UOI AIR 1986 SC 2715.

[31] T.N Godavarman Thirummalpad v. UOI 2003 (6) Scale 354.

[32] P.A. Jacob v. Suprintendent of police, Kottayam AIR 1993 ker. 1.

[33] T.K. Koolwal v. State of Rajasthan AIR 1988 Raj. 2.

[34] Indian council for Enviro-Legal action v. Union of India (1996) 5 SCC281.

[35] Subhash Kumar v. State of Bihar AIR 1991 SC 420.

[36] Consumer Education and research forum v. Union of India AIR 2001 SC 1948.

[37] Murli S. Deora v. Union of India AIR 2002 SC 40.

[38] Sacchidanand Oandey v. State of West Bengal AIR 1987 SC 1109.