ALIGARH MUSLIM UNIVERSITY

MURSHIDABAD CENTRE
SESSION: 2020-21

TUTORIAL ASSIGNMENT

SUBJECT - ENVIRONMENTAL LAW

TOPIC = CONSTITUTIONAL DIMENSION OF
ENVIRONMENT PROTECTION

SUBMITTED TO SUBMITTED BY

Dr. Masood Ahmad M. DANIYAL SIRAJ

(Asst. Professor) 18BALLB55
GL0749
4TH YEAR
8th SEMESTER
CONSTITUTIONAL DIMENSION OF ENVIRONMENT
PROTECTION
INTRODUCTION
A rapid increase in global warming, deforestation, air, water and other forms of pollution is
posing a great threat to the environment and its living beings. The degradation of the
environment through a plethora of activities carried on by individuals is detrimental to the health
of all the living beings, including human beings, plants and animals. Fundamental status has been
given to the concept of protecting the environment as it is essential to promote human health to
have a healthy environment and affords a right to a healthy environment to all. Preserving the
environment protects the health of every individual and a healthy individual promotes the
development of the environment which is the need of the hour1.

LEGISLATIVE POWERS AND MATTERS OF ENVIRONMENTAL PROTECTION

Under the Indian Constitution, there are three types of lists, namely- Union, state and concurrent.
Powers of the government are shared at the state and union level. Central government deals with
the matters of union list, where state government deals with the matters of state list. Thus, the
exclusive power to legislate the matters of union list, which is the list I, is with the Parliament.
State list which is the list II covers matters like, sanitation, the health of the public, drainage,
supply of clean water etc. It covers matters relating to defence, military, atomic energy,
regulation of oil fields, air traffic etc. Power of dealing with the matters of the concurrent list (list
III) is shared between both the state and central government. It covers matters like protection of
forests, wildlife, conserving mines, population control etc. But in the instance of conflict, the
decision of the central government prevails.

There are various projects taken up by the state to develop the environment but they might pose a
serious threat to the environment. In such circumstances there is always a conflict between
development and environment protection and such matters are dealt through the Environment
Impact Assessment (EIA). This has also been recognized by the planning commission.

1 Constitutional Provision for Environment Protection by Subodh Asthana available at

https://blog.ipleaders.in/constitution-environment-provisions/ last visited on 24th April 2021.
OBLIGATION OF STATE AND ENVIRONMENTAL PROTECTION

The authorities are under the obligation to follow the law and regularize the conduct for the
benefit of the people who have elected them. Article 47 puts an obligation on the state that it
shall regard the raising level of nutrition and standard of living of its people. Also, the primary
duty of the state shall be to improve public health. It is the responsibility of the state to prohibit
except for medicinal purposes, the consumption of alcohol and drugs which can be injurious to
the health of the living beings and pose a great threat to their lives.

In the year 1976, the constitution was amended. With this amendment, Article 48-A was inserted
in the constitution with the aim to afford better provisions so as to preserve and protect the
environment. The provision of this article imposes the duty on the state to protect and improve
the environment and safeguard the forests and wildlife of the country. The word “Environment”
has been interpreted widely in this article. The state shall not only play a role of being
protectionists but also enact adequate measures for improvement of the environment.

Every natural resource is interconnected with other natural resources of this country. Forests are
directly linked with providing pollution-free air, helps in reducing global warming and is also
connected with water resources. They help in maintaining the ecological balance. Thus, this
resource is crucial and hence, its protection is equally important to avoid atmospheric pollution.
Hence, the specific insertion of this section is justified.

OBLIGATION OF CITIZENS AND ENVIRONMENTAL PROTECTION

Part IV-A of the constitution deals with Fundamental Duties. Article 51-A(g) specifically deals
with the fundamental duty of the citizens to protect and improve the natural environment which
includes forests, rivers, lakes, wildlife and to have compassion for living creatures. Like the duty
of the state, it is the duty of all the citizens of not only protecting the environment but also taking
measures which are adequate enough to improve the environment.
In Kinkeri Devi v. State2, Himachal High Court that in Article 48-A and Article 51-A(g) it was
held that it is both constitutional pointer to the state and the constitutional duty of the citizens
not only protect the environment but also improve it and to preserve and safeguard the forests,
the flora and the fauna, the rivers and the lakes and all other water resources of the country.

RIGHT TO LIFE AND ENVIRONMENT PROTECTION

Article 21 of the constitution provides for the fundamental right of life. It states that no person
shall be deprived of his right to life or personal liberty except in accordance with procedures
established by law. The words “except in accordance with procedures established by law” can be
interpreted to mean that this provision is subject to exception and is regulated by law which
varies from case to case.

This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and
disease-free environment, otherwise granting such right would prove to be meaningless. This
aspect of Article 21 has been evidently discussed in the case of Rural Litigation and Entitlement
Kendra, Dehradun v. State of Uttar Pradesh 3, where the petitioner along with the other citizens
wrote to the supreme court expressing their views against the progressive mining which denuded
the Mussoorie hills of trees and forests and soil erosion. This lead to having an adverse effect on
the environment and resulted in landslides along with blockage of underground water channels.

In Charan Lal Sahu v. Union of India45, it was held that the duty of the state is to take adequate
and effective steps for the enforcement and protection of Constitutional rights guaranteed under
Article 21, 48-A and 51-A(g).

In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone6 were using coke
and coal as an industrial fuel. These industries were ordered to be relocated to an alternative site

2 AIR 1998 HP 4
3 AIR 1985 SCR (3) 169
4
5 AIR 1480
6 Constitutional Provision for Protection of Environment by Pranshuta Pandey available at
http://www.legalserviceindia.com/legal/article-3906-constitutional-provisions-for-protection-of-environment.html
last visited on 27 April 2021.
as provided under Agra Master Plan. The rights and duties of the workmen in the industries were
also specified by the court following the principle of sustainable development.

RIGHT TO EQUALITY AND ENVIRONMENTAL PROTECTION

Equality before the law and equal protection of the law has been granted under article 14 of the
Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking
actions in regard to environmental protection and thus, cannot infringe article 14. In cases of
exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict
role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the
interest of the public violates the fundamental right of equality of the people.

In Bangalore Medical Trust V. B.S Muddappa7, an improvement scheme was prepared by the
City Improvement Board of Bangalore for the purpose of extending the city. A low-level park
was to be developed for which an area was kept under this scheme. But under the direction of the
chief minister the area kept for the low-level park was to be converted into the civic amenity site
where the hospital was to be constructed. As soon as the construction began, the residents moved
to the high court.

FREEDOM OF SPEECH AND EXPRESSION AND ENVIRONMENT

Right of speech and expression is a fundamental right expressly mentioned in article 19(1)(a) of
Part III of the Constitution. There have been a number of cases where people have approached
the court through the way of speech and expressing themselves by writing letters like that in the
case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh8 where they
have expressed the violation of their right to have a clean and safe environment and a right to
livelihood.

7 AIR 1991 SC 1902

8 AIR 1985 SCR (3) 169
In India, the media has been playing a crucial role in moulding the perception of people in issues
relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the
press as well.

FREEDOM OF TRADE AND COMMERCE AND ENVIRONMENTAL PROTECTION

All the citizens of India have a fundamental right to carry on any profession or business, trade or
commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution.
But this is not an absolute right and thus, has reasonable restrictions to it. Article 19(6) of the
Constitution lays down the reasonable restriction to this fundamental right to avoid the
environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name
of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of
business or profession, one cannot cause harm to the environment.

In M.C Mehta v. Union of India 9, certain tanneries were discharging effluents in the holy river
Ganga which was causing water pollution. Further, no primary treatment plant was being set up
despite the constant reminders. It was held by the court to stop the tanneries from working
because the effluents drained were ten times more noxious as compared to the ordinary sewage
water which flows into the river.

The court ordered while directing tanneries to be stopped from working which have failed to take
necessary steps as required for the primary treatment of effluents from the industries. The court
while passing this order contended that, though the court is conscious about the unemployment
that might usher due to the closure of the tanneries but health, life and ecology holds greater
importance in the eyes of law.

9 AIR 1998 SC 1037

CONCLUSION

This article begins with laying down emphasis on why environmental protection is necessary,
why did a need arise to protect the environment followed by the causes of ecological degradation
in the introductory part. Various reasons have been considered to be a major factor in polluting
the environment and affecting the lives of the people and posing a great threat to other living
beings of the country.

To have a healthy environment is so essential because a healthy environment promotes good

health of the greater number which leads to less diversion of resources or spending of the huge
amount of money on the treatment of the people. In these situations, the poor suffer the most as
they do not have enough resources to afford their health issues. Moreover, healthy beings are
valuable assets for the country who when healthy and fit can contribute much towards the
economy and develop the nation thoroughly by paving a path of progress, generating
employment and increasing the GDP.