CHAPTER 3

INDIAN CONSTITUTIONAL PROVISIONS FOR SUSTAINABLE

DEVELOPMENT AND ENVIRONMENT PROTECTION

3.1. INTRODUCTION

Environment protection and preservation is integral part of Indian religious practices

and beliefs1. It is belief of all Indian religions that to preserve the environment is one of
the ways to serve the humanity and God. Undoubtedly, Indian Constitution implements
the religious faith of Indian community on environment preservation by the insertion of
various provisions concerning protection of natural resources like forests, lakes and
wild life. Moreover, keen participation in various international conventions, conferences
rather affirms that, most of the issues, which the
humanity is facing today, are revolving around the human beings. Environmental
pollution and unsustainable pattern of development is such kind of issue. It is
emphasized that these issues are not for single nation, therefore it is the obligations of
the all nations whether developed or developing, rich or poor must concentrate to find
out the solutions of these problems. Undoubtedly, various resolutions have been taken
by world community through international conferences, conventions, declarations to
resolve the above said issues. The first international conference for environment
preservation and sustainable development is Stockholm Declaration on Human
Environment, 1972, in which India participated and promised to implement the
principles of Stockholm declaration in regional level. In other words, one can say that
consciously, it was initial step of the Indian Government to fight against the problem of
environment pollution and unsustainable development.

Development that is environment friendly and meets the needs of people is the object
set for governance by the modern welfare governments for themselves. Various laws
passed by Parliament and numerous provisions inserted in Constitution regarding the
protection of environment and sustainable development are an indication towards the
ernest approach of the government in this direction. We have the satisfaction that our

1
According to Hindu conception earth, water, air, energy and space are basic elements and are
essential for sustainable life. Moreover in Sikhism the concept of Kar Sewa (voluntary Service) of
cleansing and constructing has important place in the lives of the Sikhs.

122
constitution is one of the longest and written constitutions of the world, having
sufficient backing to the principles of environment protection and sustainable
development. Articles 14, 19(1) (g), 21, 26, 32, 47, 48-A, 51 (A) (g), 226, 253, Seventh
Schedule and Eleventh Schedule of Indian Constitution has relevance with the
environment protection and sustainable development. When the people of India express
their will for India to be an advanced nation, they primarily intend worthier provision of
basic needs such as pure water, air, health and clean environment. To fulfill that desire,
government of India at different times has always endeavoured to achieve the object.

The Constitution of India being the highest law embodies in itself a greater national
commitment to preserve and protect the clean and healthy environment. It guarantees
right to life and personal liberty. They are further fortified by various pronouncements
of Indian judiciary2. To achieve the above said object, the Indian Constitution has
imposed an obligations both on the State as well as the citizens to protect and preserve
the natural environment3. These provisions form the kernel of our constitutional
mandate and highlight the national consensus on the importance of environmental
protection and improvement, to lay the foundation for a jurisprudence of environmental
protection4. Moreover, from Stockholm Declaration, 1972 to Rio+20 Declaration, 2012
and BRICS Summit, 2014, India always has been a key player among the nations,
which are committed for environment protection and sustainable development
principles.

3.2. CONSTITUTIONAL PROVISIONS FOR ECOLOGICAL

PRESERVATION AND BALANCED DEVELOPMENT

At the time of Constituent Assembly debates, there was no particular provision

regarding environment protection. At that time, environmental issues were left out. But
on the other hand, judiciary was working very actively. Judicial consciousness in the
sphere of environment protection and balanced progress makes government and people

2
Parmanand Katara v. Union of India. AIR 1989 SC 2039, Kharak Singh v. State of U.P. AIR 1963
SC 1295; Pashchim Bang Khet Mazdoor Samiti v. State of West Bengal AIR 1996 SC 2426;
Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42; Kirloskar Brothers v.
Employees State Insurance Corporation (1996) 2 SCC 682; State of Punjab v. Mohinder Singh
Chawla AIR 1997 SC 1225; N.D. Jayal v. Union of India, (2004) 9 SCC 362
3
Article 48-A and 51(A)(g) of the Constitution of India.
4
See M.C. Mehta v. State of Orissa, AIR 1992 ORI 225.

123
more conscious about the concept of sustainable development. Moreover, national
environmental movements in India have also played a very important role to create
environmental renaissance. The rise and development of environmental movements in
The primary causes of these
movements are undoubtedly the nature of development model adopted by India in the
said period. Appiko Movement is one of the forest-based environmental movements in
India, often looked at as a continuation of the Chipko Movement 5. The Movement took
place in the Uttara Kannada District of Karnataka in the Western Ghats. It was for
saving forests from destruction by felling trees. Further, Silent Valley Movement6 was
led by Kerala Sastra Sahitya Parishad (KSSP) with the demand that the government
should stop the execution of the project, because that particular project is harmful to
environment and eco-system. It has 8,950 hectares of rainforest, one of the few
remaining rainforests in India, with valuable flora and fauna. In 1973, the State
Government of Kerala decided to build a dam across a valley in the Kunthipuzha River,
which flows through the silent valley. The proposed project would generate 200 MW of
electricity, and form the basis for regional economic development. However, the
proposed project was not ecologically viable, as it would drown a chunk of the valuable
rainforest of the valley and threaten the life of a host of endangered species of both flora
and fauna. Hence, by 1979, students, rural school teachers, science forums, journalists,
citizens, and voluntary organizations made a well-reasoned case against the project 7.
Apart from above, Chilika Bachao Andolan 8, Baliapal Movement 9, The Movement

5
Chipko Andolan was initiated under the leadership of Shri Sunder Lal Bahugana (a noted
environmentalist) in early 1970s in protection against indiscriminate cutting of trees and
deforestation.
6
Padam Nepal, Environmental Movements in India- Politics of Dynamism and Transformations, Ed.
1st, Authors Press, 2009, p. 105-06
7
Ibid.
8
Chilika Bachao Andolan one of the most discussed environmental movements in India. The
movement began as a grassroots movement and in subsequent years it evolved in to an organized
mass movement. Although the movement has achieved the initial objective of preventing the entry of
b
the livelihood of the poor, yet the movement continues with greater environmental and ecological
objectives. It has been a movement that has attracted a wide academic interest, a movement that
highlighted the importance of local communities in the maintenance of natural environment. (See,
Padam Nepal, Environmental Movements in India- Politics of Dynamism and Transformations, Ed.
1st, Authors Press, 2009, p. 108).
9
Baliapal movement is an agitation against the establishment of the National Testing Range (NTR),
ct.

124
against Tehri Dam, and Narmada Bachao Andolan are evidenced that modern Indian
nation state favoured the development strategies based on the eco-friendly development.

For balanced development, India is emerging as a role model for the other nations. Her
performance could visualize at global level. International conventions, conferences,
covenants and declarations like Stockholm declaration, 1972 (popularly known as
Magna Carta of Environment), Rio declaration, 1992 (popularly known as Earth
Summit), Kyoto Protocol, Johannesburg Declaration, 2002, Copenhagen Meet, 2009,
Cancun, 2010, Durban Declaration, 2011, Rio+20, 2012, BRICS Summit, 2014 and
G20 Leaders Summit, 2014 shows that Indian government has always sincere about
environment protection and sustainable development.

Till 1976, the idea of ecological safety was set apart from legislative policies, but
Articles like 14, 19, 21, 32, 39, 42, 47, 48, 49 etc. had an indirect impact on
environment and reinforcing sustainable development which was hitherto an ignored
objective. The constitution being a grundnorm of the land shall be binding not only on
the citizens but on the non-citizens and the States itself10. In pursuance of Stockholm
Declaration, Constitution 42nd Amendment, 1976 was inserted in the constitution. It was
a successful attempt of legislature to secure the protection of environment. Part-IV 11 &
IV-A12 of constitution is to realize the abatement of pollution for ecological safety.
Above facts makes it clear that India has unique constitution with numerous provisions
relating to environment preservation and sustainable development. These are listed and
discussed as below:

3.2.1. Preamble

The public, fiscal and opinionated righteousness sembodied inside preamble comprises
in itself the theme of environmental protection as well. The 42 nd Amendment has
inserted three words in the preamble i.e. secularism, socialism13 and integrity. These

10
S.K. Shukla, Environment Protection and the Law, Shashi publications, Jaipur, 1989, p.26.
11
Constitutional Directives to State Governments.
12
Fundamental Duties.
13
The word was added to the preamble and has always been the goal of Indian
Constitution, even prior to the amendment of 1976. (P.S. & Nistha Jaswal, Environmental Law,
Pioneer publication, 2008, p.31).

125
concepts are implicit in the Constitution. The amendment merely spells out clearly these
concepts in the preamble14. Now the preamble comprehends as thus:

We, the people of India, having solemnly resolved to constitute India

into Sovereign, Socialist, Secul
Though India has always been following the ideal of socialistic society, yet it was for
the first time that the ideal was given a constitutional recognition by the 42 nd
Amendment Act, 197615. In this regard, S.K. Verma explains ecological infectivity
is a common dilemma as it affects to all. The transformation from the laissez faire
society to the socialistic pattern of the society raised works and responsibilities of the
government and State are burdened with the weighty tasks like the assurance of societal
justice and abolishment of community vulnerabilities. Continuous contamination of
nature is most serious social problems that a nation may face. The developing countries
must take a lesson from the enormity of the problem of environmental pollution that the
16
developed countries are struggling . India was participant to the Stockholm
Conference and consequently was under an obligation to give effects to the
recommendations made by the said conference. So, the 42nd Amendment Act, 1976, has
. Term socialism stresses more attention
towards the social problems than any individual problem, and the environmental
conservation is one of them.

3.2.2. Fundamental Rights

Principle 1 of the Stockholm Declaration provides that:

Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn responsibility to protect
and improve the environment for present and future generation .
Above given principle finds reflection in series of fundamental rights, which are
explained as below:

14
J.N. Pandey, Constitutional Law of India, Central Law Agency, 2003, p.32.
15
Enacted in December 18, 1976. Some of the provisions became operative on January 3, 1977, while
others were enforced from February 1, 1977. (M.P. Jain, , Ed. 2005,
Wadhwa and Company, Nagpur, p. 1671.
16
S.K. Verma, Climate Change: Copenhagen and Beyond, 39th Annual Conference of Indian Society
of International Law, held on 24-25 April, 2010 at New Delhi.

126
3.2.2.1.Article 14: Right to Equality

To protect persons against arbitrary and unfair State actions is one of the agenda of
equality clause. This Article being a general Article under Part III plays a very
important role because it prohibits arbitrariness. It will not be wrong to say that co-
existence of equality and arbitrariness is impossible. The new dimension of the right to
equality which excludes arbitrariness is often used by judiciary for quashing the
permission of construction granted arbitrarily by State without giving due importance to
environmental concern.

3.2.2.1.1. Arbitrary Sanction of Authorities in Environmental Matters

The judiciary has on several occasions declared that the arbitrary sanction of the
authorities in environmental matters as unconstitutional17. Article 14 has been
frequently invoked by Indian judiciary for environment protection. Its contents contain
witnessed effectuation especially in cases involving mining and stone crushing
activities. Arbitrary grant of lease and unwarranted operation of mines may lead to
destruction of wild life and nature. When the mining activities resulted in pollution of
Mussoorie Hill range forming part of Himalayas, then the issue of development and
environment was brought into sharp focus for the first time.

In 2010, the Communist Party of India (CPI) was urged to then Prime Minister Dr.
Manmohan Singh to review the mega steel project awarded to South Korean Steel Gaint
Posco in Orissa and urged him to immediately withdraw the arbitrary environmental
clearance accorded to the project in light (Article 14) continued violence and atrocities
against the local population. CPI has stated that the project did not provide any kind of
direct benefit to the people of the locality or the economy of the country or the state and
was rather aimed at stripping the area of its rich mineral resources 18.

3.2.2.2. Article 19(1) (a)

Article 19(1) (a) assures to people of India the freedom of speech and expression
subject to reasonable restrictions . Due to societies progress, new means for
communication have been developed, which can be used for the purpose of speech and
17
Ajay Hasia v. Khalid Mujib All India Reporter 1981 Supreme Court 487.
18
The Hindu, Withdraw Eco-Clearance for Posco Project: CPI, May 18, 2010, p-6.

127
expression. Law prohibits us, to use these means violently, because public health
demands control of the use of such appliance as produces loud noise by day or by night.
Kerala High Court in P.A. Jacob v. Superintendent of Police, Kottayam, (AIR 1993 Ker
1), has also recognizes the above view and held that: the freedom of speech does not
include freedom to use loud speakers or sound amplifiers to cause noise pollution and
risk to human health . The Court has also made it very clear that operation of
mechanical sound amplifying devices conflict with quite enjoyment of men in park and
freedom of speech does not involve freedom to use sound amplifiers to drawn out
natural speech of others .

3.2.2.2.1. Freedom to Know and Unsustainable Projects

The freedom to know which can be seen as a part of dignified life; has close link by
Article 19 (1) (a). Right to know has proved very effective in environmental matters,
where plans of the government may create danger for health and life of people. In light
of this right every government plan regarding construction of any dam, nuclear plant,
hazardous industrial units and thermal plants, which is unsustainable and have
capability to distress the lives and well being of masses, must be given wide
publication. The example of the Narmada Valley Project in Madhya Pradesh,
Maharashtra and Gujarat, and the National Missile Testing Range at Baliapal in Orissa
are relevant here. All these projects have resulted in popular agitations against
government, which if sustained, may ultimately change the very approach of economic
development that India has followed so far.

In this context, Brundtland Report, 1987 has observed that:

Some
inquiries and hearings on the development and environment impacts can
help greatly in drawing attention to different point of view. Free access
to information and the availability of alternative sources of technical
expertise can provide an informal basis for public discussion when the
environmental impact of a proposed project is particularly high, public
scrutiny of the case should be subject to prior public approval, perhaps
by referendum?
Above discussion very much clears that Article 19(1) (a) and right to know both are
inter-related to each other and backed by the environment protection laws and
Sustainable Development principles.

128
3.2.2.3. Article 19(1) (g)

Satish Bhatia rightly explains trade is not an end in itself but a means to an end -
the goal of sustainable development. Sustainable development aims at maximizing net
welfare of economic activities, along with maintaining or increasing the stock of
economic, ecological and socio-cultural assets overtime. It implies the role of many
19
non-economic and non-material environmental factors and equity aspects also .
Article 19(I) (g) confers right upon the citizens to practice any profession or to carry
any occupation, trade or business and this particular right carries certain reasonable
limitations as given under Article 19(6), which may be compulsory for the welfare of
By virtue of a range of judgments of Supreme Court as well as the
High Courts, now it is well settled that the right to freedom of profession, occupation,
trade or business is subject to the condition that it should not be a cause for
environmental pollution. In Abhilash Textile v. Rajkot Municipal Corporation, AIR
1988 Gujarat 57, Court held that:

Though a person has a right to carry on any business of his choice, but
there is no right to carry on any business inherently dangerous to
society, because the interests of society are to be balanced with the
interests of citizens to carry on business 20.

hotels are source of environmental pollution. Several times, the Indian judiciary
directed that closure of certain industries which were not showing any progress towards
setting up of air pollution control system in compliance with its earlier order. But it does
not mean that State is against the concept of industrialization. It is true industrial
development is essential for handling the problems like unemployment, poverty etc. but
the preservation of ecological balance has a paramount place, because it is concerned
with the life and health of the masses. Thus, no polluting industry can be permitted to
run under the garb of development if it results in public nuisance and imbalance of the
ecosystem.

19
The Charted Secretary,
Vol. 32, January 2002, p. 51.
20
Abhilash Textile v. Rajkot Municipal Corporation, AIR1988 Guj. 57

129
Generally environmental and trade issues can broadly be classified into two categories
i.e.

(a) Local or National pollution problems including problems like pollution of national
soil, water and air resources. Mostly, the business activities are responsible for
environmental degradation of such nature, which endanger the quality of life of its
citizens.

(b) Transboundary Pollution Problems have a global impact. This would include
pollution of transnational water resources, air pollution, ozone layer depletion etc.

No doubt industrial pollution contaminates environment. Trade or industrialization

affects transnational water resources. When the harmful chemicals are released from the
factories and mixed with the stream, rivers or ocean waters, there definitely affect the
ground water. Moreover, world is suffering from transfrontier air pollution.
Trail Smelter Arbitration is one of the best examples of transboundary air pollution.
Ozone layer depletion is another affect of transboundary pollution. Thus it is very clear

the name of fundamental right.

3.2.2.4. Article 21

Out of the constitutional provisions regarding environment, Article 21 is remarkable

which includes all the finer graces of human civilization and thus embraces
environment also and thus the credit goes to Indian judiciary to incorporate the
der domestic domain by its various
21 22
pronouncements . Article 21 emphasizes that every citizen can claim dignified life.
Though it does not explicitly mention the word environment but courts have given a
wider interpretation to the term life by including in it the right to congenial environment
for human existence 23. This Article creates a new way for all the persons to approach
the courts for appropriate relief when they are deprived of hygienic environment. In this
context Gurdip Singh rightly explained that:

21
Prakash Chander Shukla,
Study of India and Nepal ya Deep, Vol.X, Issue 2, April 2009, p.75.
22
No person shall be deprived of his life or personal liberty except according to the procedure
.
23
For detail see; Chapter V of present study.

130
 The right to clean environment is a fundamental right as well as a
human right simply because it is the basic need for the survival of the
human race. The contaminated environment will kill human beings.
Thus, right to pure and decent environment underlies the right to life
supporting ecosystem which sustains life 24.
In various countries25 the rights to healthy environment and to sustainable development
are fundamental human rights implicit in the right to life. Indian judiciary also recognized
the idea of balanced progress as a part and parcel of Indian law in a series of cases and
also elevated it to the status of a fundamental right implicit in Article 21 of the Indian
Constitution26. Moreover, numerous pronouncements have considerably widened the
compass of Article 21 . In Madhu Kishore v. State of Bihar27 court stated that:
There are two conflicting, yet complementary, aspects involved. These
are the right to development and the right to clean and healthy
environment. Both had been declared an integral part of the right to life
under Article 21 .
3.2.2.4.1. Clean wind is an Integral Part of Right to Life
The . To inhale clean air is the basic requirement of
dignified life. Following the above view, the Supreme Court, directed for the closure of
a factory which was creating air pollution 28. Allahabad High Court held right to
life as a fundamental right under Article 21, which includes the right of enjoyment of
29
pollution free water and air . Again, Apex Court observed that the emissions resulted
in violation of the right of life of the people living in the Taz Trapezium (TTZ) and it
30
has also damaged the prestigious monument like the Taj .

24
Gurdip Singh, Environmental Law in India, Macmillan India Ltd., 2003, p. 60.
25
(i) Art. Twenty Four of Greek Constitution 1975 The protection of natural and cultural
environment . (ii) Article 45 of the Spanish Constitution 1978
everyone has right to enjoy an environment suitable for the development of person as well as the
. (iii) Aricle. Twenty One of Netherland Constitution t shall be the concern of
authorities to keep the country and habitable and to protect and improve the (iv)Art.
225 Brazilian Constitution veryone is entitled to an ecol
26
See, Annual Survey of Indian Law, XL (2004), 501-618, at pp.
593- Banaras Law
Journal, Vol. 30, 2001, pp. 114-
and Human Rights Banaras Law Journal, Vol. 30, 2001, pp. 100-113.
27
(1996) 5 SCC 125.
28
Mahesh Chandra. Mehta v. U.O.I. (1992) 41 Del. L.T. 421.
29
In DD Vyas v. Ghaziabad Development Authority, AIR 1993 ALL. 57.
30
In Mahesh Chandra Mehta v. U.O.I. All India Reporter 1997 Supreme Court 734.

131
Further, the Karnataka High Court observed that water and air pollution caused by
stone crushing had adverse effects on human health, animals and vegetation, therefore,
it violates the dignified life. The court also ordered crusher units to pay compensation to
the victims of pollution31. Moreover, in CNG case32, the Supreme Court treated air
pollution in Delhi caused by vehicular emissions as violation of Article 21 and
therefore, by keeping in view the concept of sustainable development directed all
commercial vehicles operating in national capital to replace to CNG gas type for
conserving the healthiness of the masses Thus, from the above discussion, it is very
much obvious that Article 21 does not mean mere animal existence, it includes pollution
free environment also.

3.2.2.5. Article 26: Freedom to Manage Religious Affairs 33

India is a secular country and all religions have equal protection. Everyone is free to
manage its religious matters. But no religion allows us to spoil the decent environment
on the name of God. Judiciary interpreted the above Article in its own way by keeping
in view the sustainable development concept. With the development, the mode of prayer
to God has been changed and it has become very problematic for the environment.
According to Supreme Court of India, no religion prescribes that the prayers are
34
required to be performed through amplifiers or beating of drums . Freedoms to
administer religious affairs are subject to public order, goodness and wellbeing of
masses35. Where level of is beyond permissible limit then it would not be just and
proper to permit the religious institutions to propagate through amplifiers36. This view

31
See; Obaya Pujari v. Member Secretary, Karnataka State Pollution Control Board, Banglore, AIR
1999 Karn. 157.
32
See; Mahesh Chandar Mehta v. U.O.I. All India Reporter 1998 SCW 2813.
33
Art. 26 states
section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire moveable and immovable property and
(d)
34
T.S. Doabia (J.), Environmental Pollution Laws in India, Volume 1, Wadhwa and Company, Nagpur,
2005, P.291.
35
Good health of the citizens is prime duty of the State. No one has right to use any noisy means which
create pollution and damage to the health of citizens. So far as the Sustainable Development is
36
This control affected through Noise Pollution (Regulation and Control) Rules, 2000 is justified and
can be regulated and enforced even against religious institutions.

132
was expressed in Haddon v. Lynch37, Court held that the ringing of a church bell in the
early morning hours of Sundays and public holidays was held to be a legal nuisance if it
disturbs persons residing in the neighbourhood . In another case, court held that during
the religious ceremonies normal sound may not be nuisance but if an attempt is made to
38
play a band either with or without a compliment of singing it may cause nuisance .

3.2.2.6. Article 32:- Writs as remedies for Environment Protection and

Sustainable Development

Therefore, Dr. B.R.

Ambedkar stated39 that:

If I was asked to name any particular article in this constitution as the

most important an article without which this constitution would be a
nullity I would not refer to any other article except this one. It is the very
soul of the constitution and the very heart of it .
The scope of these rights has been enlarged through judicial interpretations from time to
time. Through various judicial announcements, it has been cleared that the right to life
does not simply means an animal existence. The aggrieved person alleging complaints
regarding environment pollution can move a petition for redressal of his grievances in
the higher court of the land through Art. 32. In this context, the High Courts entertains
much wider power for protection & improvement of environment under Art. 226.

For elimination of water and atmospheric pollution, the Supreme Court 40 has directed
the erring parties not to discharge effluents into river water without adequate treatment.
In the Taj Trapezium case41, to protect and preserve the beauty of the Taj Mahal, certain
industries affecting the nearby environment, were ordered to be closed down 42. In
another writ petition, directions were sought to prevent the pollutions released by
industries in Tamil Nadu43. The Apex Court held that though such industries are of
vital importance in the development process of our country, they could not be permitted

37
1911VLR (Aus.).
38
Soletan v. De Held, 61ER 291.
39
J.J.R. Upadhaya, Administrative Law, Central Law Agency, 2004, P. 217.
40
M.C. Mehta v. U.O.I, AIR 1988 SC 1037.
41
AIR 1997 SC 734.
42
Ashwin .N. Karia, Environmental Law, C. Jamnadass and Company, Mumbai. 2008, P. 77-78.
43
See; Vellore Citizens Welfare Forum v. U.O.I., (1996) 5 SCC 650.

133
to continue their operations unless they set up pollution control devices . The Court
further held that such industries could not be permitted to destroy ecology, degrade the
environment and pose health hazards . In this case, tainable development
principles were evolved. Justice Kuldip Singh (popularly known as Green Judge)
maintained that Precautionary principle and the polluter pays principle are essential
.

Apart from above cases, series of public interest litigations (Discussed in Chapter-V)
have drawn the attention of Supreme Court in the direction of environmental pollution
and Apex Court has issued necessary directions in such public interest litigations so that
the people living in the area can lead the pollution free life.

3.2.3. Directives Principles of State Policy and Environment Protection and

Sustainable Development

No doubt, Part-IV is not judicially enforceable like basic rights provided under Part-III
but according to Article 31-C No law giving effect to the policy of the State towards
securing these principles contained in clause (b) or Clause (c) of Article 39 of the
Constitution shall to be deemed void on the ground that it is inconsistent with or takes
away and abridges any of the fundamental rights conferred by Article 14 and Article
19 .

Originally, no notable provision regarding ecological preservation was inserted in the

Part-IV. But cautious studies of Constitution reveals that certain Articles are related to
the nature conservation are in existence even prior to 42 nd Amendment, 1976, which
reads as under:

Article 42

Article 43

andards

134
 Article 48

and scientific lines and shall, in particular, take steps for the preserving and improving
the breeds and prohibiting the slaughter of cows and claves and other milch and draught

Article 49

artistic or historic interest, declared by or under law made by Parliament to be of

national importance from spoliation, disfigurement, destruction, removal, disposal or

3.2.3.1. Post Forty Second Amendment (1977- 2006)

3.2.3.1.1. Article 47

According to Principle 1 of the Rio Declaration1992

Human beings are at the centre of concerns for sustainable

development, and that they are entitled to a healthy and protective life, in
harmony with nature .
For balanced development, close linkage between environment, health and development
is needed, because sustainable development is hardly possible without poverty
eradication and healthy people. As per the Vision Statement on Environment and
Human Health, July 2003:

is an urgent need to address the causes of ill health, including

environmental causes, and their impact on development, with particular
emphasis on women and children, as well as vulnerable groups of
society, such as people with disabilities, elderly persons and indigenous
44
.
Director General Emeritus, World Health Organization, Dr. Gro Harlem Brundtland ,
insists that Healthy life is an outcome of sustainable development as well as a powerful
and undervalued means of achieving it. We need to see health both as precious asset in
itself and as a means of stimulating economic growth and reducing poverty .

44
Vision Statement on Environment and Human Health
Published by Environment and Human Health Cell, New Delhi, July 2003, p.13.

135
Following the concept of sustainable development, Article 47 imposes a duty upon the
State to raise the level of nutrition and the standard of living of its people and improve
public health . Accordingly, the State Governments are primarily responsible to ensure
formulation45 and enforcements of measures for raising the living standard of its public.
As such individual State Governments have introduced various policies/programmes
aimed at providing adequate public health facilities. The Central Government has also
been rendering assistance and when requested, particularly for eradication of vulnerable
disuses, environmental pollution, drug control and prevention of food adulteration, etc.

As per the report of Ministry of Health and Family Welfare government initiatives in
public health sector have recorded some noteworthy successes overtime. Small Pox and
Guinea worm disease have been eradicated from the country, Polio is on the verge of
being eradicated; Leprosy, Kala Azar and Filariasis can be expected to be eliminated in
the foreseeable future. There has been a substantial drop in the total fertility rate and
46
infant mortality rate .

According to National Health Policy, 2002:

The figure on the health of Indian population indicates that during the
period of 1981 to 2000 the life expectancy increased from 54 to 64.6;
crude birth rate has come down from 33.9 to 26.1; Crude death rate has
come down from 12.5 to 8.7. Malaria cases (in Millions) decreased from
2.7 to 2.2, leprosy case per 10,000 population decreased from 57.3 to
3.7447.
Apart from above, legislative efforts are also praiseworthy for the better health of the
people. Keeping in view the fundamental right of health, The National Health Bill,
2009 was introduced into the Parliament. According to the Section 3 of the Bill,
Government of India and the State Governments have under general obligations at all
times, within the maximum limits of their available resources, towards the progressive
48
realization of health and well being of every person in the country .

In 2010, Assam has become the first State in the country to introduce an Assam Public
Health Bill. As per Section 3 under Chapter II of the Bill, Government in the Health

45
Drugs and Cosmetics Act, 1948; NDPS Act, 1985.
46
http://mohfw.nic.in/np2002.htm, accessed 12.01.2010.
47
National Health Policy, 2002.
48
No. of 2009 (MoHFW, Gol Working Draft: Version January 09.

136
and Family Welfare Department has the general obligations at all times, within the
limits of their available resources, towards the progressive realization of health and
49
well-being of every person in the State .

Article 47 thus, achieving its object i.e. progress of public health. because health is one
of the outcome of balanced society. Above discussed achievements are impressive but
are not enough as a large section of Indian population is still not benefitted by these
well being measures. Under this situation, it is imperative that one is made aware of not
only health hazards but also measures that exist for the protection of health, because
economic development and healthy environment cannot be achieved without healthy
life50.

3.2.3.1.2. Article 48-A

Article 48- protect, The Parliament

in its wisdom and taking note of Stockholm conference, which is considered to be
global grand-norm of environment and growing awareness of the environment crises
amended it to add direct provision of the protection of environment. The 42 nd
amendment has included Article 48-A in Directive Principles of State Policy having
direct bearing on environment. Under this Article, the State may not only adopt the
protection policy but also may provide measures for the improvement of polluted
environment. The State may impose instructions on the use of the factors adversely
affecting the environment, and it may adopt means to safeguard forests and wildlife.
Safeguard of forests is an important factor because the forests maintain balance between
oxygen and carbon dioxide in the atmosphere, which constitutes an important safeguard
against environment degradation, which is important to maintain balance and hence
sustainable development. The Constitution (42nd Amendment) Act 1976 was turning
point and gave the Centre Government also the power to legislate on forests by entry
17-A in List-III .

The aforesaid provisions related to environmental protection as they are in Part-IV.

49
www.indiaenvironmentportal.org/public-health/.../The_Assam_...Bill_2010.pdf, lat assessed 22-5-
2014.
50
Parduman Singh, Health Protection in India, Conway Printers, Amritsar, Punjab, 2000.

137
nevertheless fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in the making laws51

3.2.4. Fundamental Duties52 and Concept of Sustainable Development

As Hohfeld said, every right has a corresponding duty which means for every violation
of right to environment which is also a part of right to life under Article 21,
corresponding duty has been breached . The 42nd Amendment Act inserted Part-IV-A
of the Constitution of India. According to National Commission to Review the Working
of the Constitution, Fundamental Duties of citizens serve a useful purpose. In
particular, no democratic polity can ever succeed if the citizens are not willing to be
active participants in the process of governance by assuming responsibilities and
53
discharging citizenship duties and coming forward to give their best to the country .
Further, it is recommended that duty of the government is to sensitize the
masses and to create ecological alertness among citizens regarding the fundamental
duties

3.2.4.1. Duty to Protect Natural Environment: Article 51 A(g)

In 1976, -A was added in the Constitution under the heading of Fundamental

Duties . Ten duties were included in this Part. Fundamental duties are social
obligations. According to Article 51-A (g), it is duty of every citizen to protect and
improve the natural environment including forests, lakes, rivers and wildlife and to
have compassion for living creatures . This social obligation has relevance with the
World Charter for Nature, 1982. Article 23 of the Charter insists that the right of the
individual and non-governmental entities by providing that all persons shall have access
54
to means of redress when their environment has suffered damage or degradation .

51
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789. (Apex Court held that, the courts are
vested with the powers of judicial review and they can examine the constitutional validity of a law
made by the Parliament as well as by State Legislature. A law, which is declared unconstitutional by
the Court, becomes void and imperative).
52
The inclusion of Fundamental Duties in our Constitution brings it in line with Article 29(1) of
Universal Declaration of Human Rights
53
Vol. 1, Ed. 2002, p.77.
54
Article 23, World Charter for Nature, Doc.A/Res/37/7, November, 1982.

138
Moreover, in M.C. Mehta55 case, the Apex Court has held that:

Under Article 51-A (g), it is the duty of the Central Government to

introduce compulsory teaching of lessons at least one in a week on the
protection and improvement of natural environment in all educational
institutions of the country. It directed the Central Government to get text
books written on the subject and distribute them to educational
institutions free of cost. In order to create awareness amongst the
people, the consciousness of cleanliness of environment, the desirability

suggested .
There is no doubt, Article 51-A (g) contains a social obligation regarding nature. At the
same time, it imposes constitutional obligation on the polluter to pay the cost of
pollution for

i. compensating the victims of pollution and

ii. adoption of the ecological remediation measures.

Thus, Article 51 A (g) gives effect to the well known fundamental principle of
international environmental jurisprudence, namely polluter pays principle by requiring
the polluter to bear the costs of pollution. Apart from Article 51(A) (g), Department of
Environment and Forests also plays a very important role for the improvement of
forests, lakes and human health. Time to time, it has initiated numerous steps and
policies for the conservation of the natural treasures like lakes, rivers, biodiversity,
forests, wildlife and ensuring the welfare of animals and the prevention and abatement
of pollution. While implementing these policies and programmes, the ministry is guided
by the principles of sustainable development and enhancement of human well-being. 56.

3.2.5. Other Constitutional Provisions for Environment Protection and

Sustainable Development

3.2.5.1. Article 253

Article 253 of the Constitution empowers Parliament to make any law for implementing
any treaty, agreement or convention with other country or countries or even any

55
M.C. Mehta v. U.O.I., (1983) 1 SCC 471.
56
For detail, See; http://moef.nic.in, last assessed 21-05-2014.

139
decision made at any international conference, association or other body. This power is
limited to implementation of decision and that too for a limited period 57. Article 253
read with Entry 13 apparently gives Parliament the power to enact laws on virtually in
regard to any entry contained in the State list. Parliament has used its powers under
Article 253 read with Entry 13 of the Union List to enact The Water (Prevention and
Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act of
1981 and Environment (Protection) Act of 1986. Preamble of the these statutes states
that Acts were passed to implement the decisions reached at the United Nations
Conference on Human Environment held at Stockholm in 1972.

According to Tiwari Committee Report 1980 (chaired by Shri N.D. Tiwari) the broad
language of Article 253 suggests that in the wake of Stockholm conference in 1972,
Parliament has the power to legislate on all matters linked to the preservation of natural
resources . Therefore, Parliament of India enacted under Article
253

Moreover, Town planning, building regulations and local zoning are state subjects 58.
Consequently, provisions for development along the coast and foreshore are found in
several municipal statutes and the land codes of the coastal states. These local laws,
however, proved inadequate to protect the coastal ecology, prompting the central
government to impose stringent national coastal development norms in 1991. The
norms severely restrict the nature of development in a 500m wide strip along the entire
Indian coast, adding up to more than 3000 sq .km. of land. Understandably, several state
governments are irate at the sweeping assumption of power by the centre 59, particularly
since the coastal norms are delegated legislation issued by the executive under the
Environment (Protection) Rules of 1986 which, in turn, were framed under the
Environment (Protection) Act of 1986 (EPA).

57
According to the Entry 13 of List-I: Participation in international conferences, associations and
other bodies and implementing of .
58
List
II.
59
Coastal Zone Rules be Amended Soon, Economic Times, New Delhi, 13 November, 1996.

140
3.2.5.2. Seventh Schedule of the Constitution

Seventh Schedule confers plenary powers upon the Centre to make agreements with
other nations and can frame needed laws to effectuate same. Keeping in view the
implementation of the international agreements, the power of Parliament is further re-
inforced by Article 253 which confers an over-riding power on legislature to frame any
statute for the whole nation or for any part of the country . Prof. M.P. Jain in his book
rightly insists that if the Centre Government enters
into any international obligation, Parliament is fully authorized to enact legislation to
implement it even if the subject-matter falls within State List. Moreover, Constitution
of India consciously or unconsciously deals exhaustively with legislative powers
pertaining to environmental law. Further, the 42nd Amendment Act, for the first time,
introduced a new entry 20-A in List III. This deals with the population control and
family planning. In fact, high population growth is mainly responsible for
environmental pollution. The State legislature has been given powers to frame
legislations relating to healthiness of the masses and hygiene under Entry 6 of Seventh
Schedule.

With respect to matters contained in State List 60 from an environmental standpoint,

some environmental problems such as cleanliness and disposal of wastes are handled
best at local level. Issues like wild life preservation, water contamination and air
pollution are required to be handled at national level.

H. Seervai, in his book, Constitutional Law of India: A Critical Commentary, (Vol. 1,

1991) has rightly pointed out that he Constitutional Assembly while framing
Constitution did not specify as to which of the two whether Parliament or the State
Legislatures should regulate environmental matters. Instead of, the distribution of
environmental subjects within the three lists was influenced by the Government of India
Act of 193561 and by the conflict between those who wished to create a strong Centre
and others who preferred to secure more powers for the States .

60
Article 246 (3) of Constitution of India.
61
Government of India Act 1935 was a lengthy document, detailed and complicated having 321
sections with 10 schedules. The basic feature of the Act was the introduction of partial responsibility
at the Centre, Provincial autonomy and an All India Federation.

141
Further, S. Rao, in the Farming of Indian Constitution: A Select Documents, (Vol. IV,
1968) emphasized that understandably, there was a tussle for control over natural
resources such as forests and fisheries which were important economic subjects. In
July, 1949 the drafting committee of the Constituent Assembly convened a meeting of
the premiers of Indian States and provinces, the representatives of Central Ministers to
62
discuss the division of legislative powers .

Under the Seventh Schedule, number of provisions (entries) has been inserted, which
allows both Parliament and State Legislatures to enact statutes for the conservation of
nature and hence on sustainable development.

3.2.5.2.1. List-I

Article 246 provides that the Parliament has the exclusive powers to make laws for the
whole or any part of India with respect to matters inserted in List-I (Union List)
Therefore, for the preservation nature, Union Government has
powers to frame any laws under entries 1, 14, 24, 25,29,52,53, 54, 56 and 57 , which
are discussed as below:

Entries under Explanation

the Union List
1 Atomic Energy and Mineral resources necessary for its production .
14 ntering into treaties and agreements with
foreign countries and implementing of treaties, agreements and
conventions with foreign countries .
24 Shipping and navigation into water ways .
25 Maritime shipping and navigation, including shipping and navigation on
tidal waters .
29 Airways, regulation and organization of air traffic and of aero-dromes .
52 Industries, the control of which by the Union is declared by Parliament by
law to be expedient in the public interest .
53 Regulation and development of oil fields and mineral resources .
54 Regulation of mines and mineral development to the extent to which such
regulation and development under the control of the Union is declared by
Parliament by law to be expedient in the public interest .
56 Regulation and development of inter-state rivers and river valleys .
57 Fishing and fisheries beyond territorial waters .

62
S. Rao, The Farming of Indian Constitution: A Select Documents, Vol. IV, 1968, p. 315.

142
 3.2.5.2.2. List II :

Article 246 provides that the State Legislature has the exclusive power to make laws for
such State or any part thereof with respect to matters enumerated in List-II (State List)
comprising 66 subjects .
6 Public health and sanitation; hospitals and dispensaries .
10 Burials and burial grounds; cremation grounds .
14 Agriculture, including agriculture education and research, protection
against pests and prevention of plant diseases 63.
15 Preservation, protection and improvement of stock and prevention of
animal diseases .
17 Water, that is to say, water supplies, irrigation and canals, drainage and
embankment. Water storage and water power subject to the provisions of
entry 56 of List I .
18 Land, that is to say, rights in over land, land tenures including the
relation of landlord and tenant and the collection of rents; transfer and
attention of agricultural land, land improvement and agricultural lands;
colonization .
21 Fisheries .

3.2.5.2.3. List III Concurrent List 64

17 Prevention of cruelty to animals .

17A Forests
17B Protection of wild animals and birds .
18 Adulteration of foodstuffs and other goods 65.
19 Drugs and poisons, subject to the provisions of Entry 59 of List I with
respect to opium .
20 Economic and Social planning 66.
20A Population Control and family planning .
29 Prevention of the extension from one state to another of infections or
contagious diseases or pests affecting men, animals or plants .
31 Shipping and Navigation on inland waterways as regards mechanically
propelled vessels .
36 Factories .
37 Boilers .
40 Archaeological sites and remains other than those declared by or under
law made by Parliament to be of national importance .

63
Under entry 52, List I, certain agro-industries have been taken by the Centre under its control. Under
entry 33, List III, Parliament has enacted the Essential Commodities Act, 1955.
64
Under Article 246, both Parliament and the State Legislatures have the power to make laws with
respect to matters contained in List-III (Concurrent List) Comprising of 52 subjects.
65
Prevention of Food Adulteration Act, 1954 has been enacted by Parliament under this entry.
66
Bombay Town Planning Act, 1954 was enacted under this entry.

143
3.2.5.3. Eleventh Schedule of the Constitution

The Constitution 73rd Amendment Act 1992 on Panchayats adds a new Schedule, the
Eleventh Schedule to the Constitution. Contents of the Schedule relating to environment
protection and conservation are as and improvement, implementation of land reforms,
land consolidation and soil conservation, minor development, water management and
watershed, forestry, social forestry and farm forestry, minor forest produce, fuel and
fodder, non-conventional energy resources and maintenance of community assets

Under 73rd Amendment Act, following functions were assigned to the Panchayats,

conservation, water management, watershed development, social

and farm forestry, drinking water, fuel and fodder, non-conventional
energy sources and maintenance of community assets, which are
considered to be significant items from the environment management
point of view
The above discussed constitutional provisions very much clear that concept of
environment protection and sustainable development is a hidden aspect of our
Constitution and connected with our religious and social beliefs. Under these, a good
number of legislations have been enacted and they are capable of producing good
results but the most important thing is the strong will power of government and
community participation to produce the desired results. In order to control
environmental pollution in April 1981 the National Committee on Environmental
Planning (NCEP) was established. The NCEP is doing commendable work in the areas
of appraisal of development projects, human settlement planning, and formulation of
environmental planning and in creating environmental awareness at various levels.
Moreover, dignified life could not be achieved without affording the right of sustainable
development and right to live in clean environment to citizens. Constitutional Forty-
Second (Amendment) Act, 1976, inspired from the Stockholm Conference on Human
Environment, in which India participated very actively and promised to the world
community for implementation of sustainable development principles. Apart from that,
Part-IV and Part IV-A also deal with the same concept. Above provisions makes it clear
that India has fulfilled all its obligations, which India has promised in international
treaties, conventions, and declarations on Environment Protection and sustainable
development.

144