Right to Clean Environment

The context of the right to live in a healthy and clean environment is not a current invention of the higher authorities in India, but this has been going on during the medieval period of Vedas where the concept of environmental protection, ecological balance, and other related topics are found to be made. But the invention of thermal plants, automobiles, factories etc has lead to environmental depletion, the consequences of which are deforestation, global warming, climate change, waste disposal etc.

In order to lead a dignified and quality life, it is essential for a person to have a clean and pollution free environment in their surrounding. We need pure air to take oxygen, fresh water to drink and shelter to live, etc. all these things can only be derived from nature. “Right to Clean and Health environment is protected under the Constitution of India. Moreover, if the person wants to lead a good and joyful life where he/she will be healthy and even not suffering from any health hazards issues. So he/she must need to protect the environment. Further, after a plethora of enactment made by the parliament on the issue of Environment, finally, the environmental laws came to enforced in 1986.

Introduction

The environment protection law was enacted in 1986 and it is applicable to the whole of India, including the state of Jammu and Kashmir. It was called umbrella legislation. It fills the gaps in the earlier laws regarding the protection of environmental law. It was the Bhopal gas tragedy that necessitated the government of India to make an advanced law on environmental legislation including rules regarding handling and storing and use of hazardous waste. On the basis of these rules, the parliament enacted the environment protection act, 1986. The objective of this act to environmental protection was to protect and improve the environment. Under this act, the Ministry of Environment and Forest (MOEF) was assigned the overall responsibilities for administering the laws and policies in India.

Important Provision of Environment Protection Act, 1986

As per the Section 2(a) of the Environment Protection act, 1956, the definition of Environment is “Environment basically involves air, land and water, the interrelation is exists between water, land, air and human being and the other living organism plans, property and microorganism”. Environment and life are inter-connected, human totally depends on the earth’s natural resources such as air, water and land.
The definition of environment pollution is given under section 2(b) of the environment protection, 1986 means any solid, liquid or gaseous substance present in such concentration or maybe or tend to be injurious to the environment. Wrongful contaminations of the atmosphere or water, or soil, to the material injury of the right of an individual are the main reason to caused Environment pollution.
Section 15 of the Environment Protection Act, 1986 provides that penalty must be given in case of contravening the provision of this act as well as the order, rules and directions. Whoever fails to comply with the provision of this Act shall be liable to punished with imprisonment for a term of 5 years or a fine too.
Article 48A states that the state shall strive to improve and protect the environment. It will also provide safeguards to the wildlife and forest of the country.
Section 51 (A) of the Environment Protection Act, 1986 states every citizen shall protect the environment.

Constitutional Mandate on the Environmental Protection

As per the 42^nd Constitutional Amendment 1976, two Provisions were made added to the Indian Constitution i.e. Article 51A and article 48A for the protection of Environment Law. The fundamental provides the right to live in a clean environment, it is also useful in securing a pollution-free environment for people who reside in urban and rural areas or each and every part of the nation. It is necessary for controlling and preventing the destruction of resources, such as plants, trees, water, wildlife and wetlands as well as keeping them healthy.

Environment Protection and Fundamental Duties

Article 51(A) (g) of the Indian Constitution states that it shall be the duty of every citizen to improve and protect the natural environment including river, forest lakes, and wildlife. It is the fundamental duty of each and every citizen to improve and protect the natural assets such as gas, iron, air, water, wood, oil, and coal and wind energy.

The Right to Clean Environment is a basic Fundamental Right guaranteed to all the citizen as well as non-citizen Fundamental right

In the case of MC Mehta v/s Union of India (1998) 6 SCC 63, The Supreme Court of India held that under article 51(a) g of the Indian constitution, it is the duty of the central government to launch compulsory teaching for 1 hr in a week on environment protection to all the educational institution.

Damodar Rao v/s S.o Municipal Corporation– The apex court held that polluting the environment amounts to violate the right to life under article 21 of the Indian constitution. Article 21 of the Indian Constitution provides the protection of the right to life and liberty except the procedure established by law. So, here right to life means rights to die, pollution-free environment.

Shubhash kumar v/s State of Bihar– The Apex court held that right to get pollution-free water and the air is our fundamental right guaranteed under article 21 of the Indian constitution.

Mincipilaty v/s Vardicharan– The supreme court held that if the Pollution was created due to private pollution and hazardous town planning. In such cases, organization will be absolutely liable and it is the duty of the accused to stop the hazardous work at the time. Further, The Supreme Court held that a pollution-free environment is an integral part of Article 21 of the Indian constitution.

Environment and Directive Principle of State Policy

Article 48A inserted with the 42^nd Constitutional Amendment in the Indian Constitution deals with the protection of ecology and protection of environment pollution. It says that the state shall strive to protect and improve the environment and provide safeguards to the forest and wildlife of the country. AP Pollution Control Board v/s M.V Naidu, 1999:– In this case, the significance of Precautionary was established. The Supreme Court observed that if environmental harm is anticipated then precautionary measures be adopted to avoid it. In this case, the Supreme Court discussed the development of the precautionary principle.

T.N. Godavarman Thirumulpad v. Union of India

In a recent case of conservation of forests, The Supreme Court held that considering depletion of forest and the compulsions of the States, legislative have shifted the responsibility from States to the Centre. However, any threat to the ecology can amount to be a violation of the right to enjoy the healthy life guaranteed under Art 21 of the Indian Constitution, which is required to be protected. The Constitution imposed a duty on the court to protect the environment. As Court is the protector of the Constitution, it is the duty of the court to protect the environment.

Few Directive Principles of State Policy denotes a slight inclination towards environmental protection i.e. Art 39(b), Art 47, Art 48 and Art 49, these articles are collectively responsible for imposing a duty on the State to create conditions to improve the general health level in the nation and to improve and protect the natural environment.

Environment and Public Interest Litigation

Article 32 of the Indian constitution clearly states that an aggrieved person can move to Supreme Court for the violation of fundamental for the appropriate remedy right under article 32 of the Indian constitution pertaining to the matter of environment protection. In case Sher Singh v/s state of Himachal Pradesh: The Apex Court held that state government is under the obligation to protect and improve the environment which is provided under article 48A and article 51A of the Indian Constitution.

Public Interest Litigation would be maintainable before the High Court under Article 226 and before the Supreme Court under article 32 pertaining to the matter of environment protection. In the case of M.C Mehta v/s Union of India, the victim of gas leak got successful in claiming damages by the means of PIL.

State of W.B v/s Sujit Kr. Ratna:- In this case, the Apex Court held that the provision of Article 48(a) and Article 51A (g) should be kept in mind while doing interpretation only in statutory provisions.

Environment Protection and Fundamental Right

Article 21 of the Indian Constitution, states that every person has a right to life and personal liberty except the procedure established by law.

In case of Maneka Gandhi v/s Union of India:- The supreme court held that while highlighting the importance of the right to life under article 21 of the Indian Constitution held that right to life is not confined to mere animal existence but extends to the right to live with the human dignity. It has been noted that the environment protection act 1986 was enacted under Article 253 of the Indian Constitution.

Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh– In this case, the petitioner wrote to the Supreme Court by alleging that illegal mining in the Mussorie-Dehradun region was causing damage to the fragile eco-systems in that area. The Court treated that letter as a public interest petition under Article 32 of the Constitution. Apart from this, several committees have been appointed for inspection of illegal mining sites. Therefore, the Court ordered the closure of a number of limestone quarries. Therefore, the Court admitted the adverse effects to the Fundamental right “life of people” and held it was an absolute violation of Article 21 of the Constitution.

International Convention for the protection of Environmental Law

As we know, Environment protection is an international concern. United nation has adopted a plethora of conventions and protocols to protect the environment such as the United Nation Convention to combat desertification, Vienna convention, Convention on the conservation of migratory species of wild animals (CMS) Geneva convention, Montreal Protocols etc. The following Conventions are discussed as follows.

United nation Convention to combat desertification

These conventions are mainly framed for those countries that are facing the problem of serious drought and desertification. Particularly in the African region this convention is used to combat desertification and to eradicate the effects of droughts through the national action program.

It formulates the long term strategies which are highly supported by International Corporation and partnership arrangement. Here the terms desertification means to convert the land into desert like areas. For E.g .Sub-Saharan Africa. The partnership and decentralization, address, arid, semi-arid and dry sub-humid are known as dry land where the most vulnerable and ecosystem and people can be founded.

Convention on the conservation of migratory species of wild animals (CMS)

The conventions are located in (Rhine) Germany and this convention came into existence in 1983. The aim of that convention is to protect the marine, terrestrial and avian, migratory species throughout their range. The Wildlife and habits are conservation if the global is concerned by the intergovernmental treaties of the United Environment Programme (UEP).

Geneva Protocol

This protocol is used to prohibit the use of poisonous, asphyxiating, poisonous gases during the wartime and also bacteriological methods of warfare. The treaty prohibiting the use of a biological and chemical weapons in International armed conflicts. Specific treaties like the 1993 Chemical Weapon Convention (CWC) and the biological Weapon convention also covers it in exhaustive details.

Vienna Convention

it came into force in the year 1988, this convention overall aims to protect the Ozone layer. It does not include the reduction goals for the use of CFC’s, although it is a main chemical agent causing ozone depletion. These are accompanying Montreal protocols

Montreal Protocol

the Montreal protocol depletes the ozone layer a protocol to the Vienna Convention for the protection of the Ozone layer. It is an international treaty designed to protect and improve the ozone layer by phasing out the production of manifold substances which are responsible for ozone depletion.

Conclusion

The Laws and awareness of the environment are widely assumed by today’s society though several Acts, related to Environment Law have been enacted by the Indian Legislation but the Environment Protection Act, has been drafted in such a away to cover all aspects and problems related to the environment and therefore, it is said to be lucrative to understand the important aspects related to the environment specifically.

References

The Environment Protection Act, 1986, Professional Bare Act, with short comments, 2010.
P. Leelakrishna, Law and Environment (Chapter 10 at 144, Eastern Book Company, India 1992)
Murli S. Deora v. Union of India AIR 2002 SC 40
Mc Mehta v/s Union of India (1998) 6 SCC 63,
M.C Mehta v. UOI AIR 1997 SC 734.
T.N Godavarman Thirummalpad v. UOI 2003 (6) Scale 354.
Maneka Gandhi v. Union of India AIR 1978 SC 597
State of W.B vs Sujit Kr. Ratna, AIR 1987 2 SCC 2965
Subhash Kumar v. State of Bihar AIR 1991 SC 420.
Vellore citizen’s welfare forum v. UOI AIR 1986 SC 2715.
Damodar Rao v/s S.o Municipal Corporation, AIR 1987 SC 765
Rural litigation and entitlement Kendra v. State of U.P AIR 1985 SC 625
Sher Singh v/s state of H& P, AIR (2014)14 SCC 664.
AP Pollution Control Boardv/s M.V Naidu, AIR (1999) 2 SCC 710
Mohd. Afandi Salleh. International Environmmet Convention and treaties 2002. International Law Book Services.
Veinna Convention for the Protection of Ozone Layer, 1985 United Nations, Treaty Series, vol. 1155, p. 331.
Implementation of the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, 1999 A/RES/53/191, available at: https://www.refworld.org/docid/3b00f52.html.
The International convention on the Conservation of Migratory species of Wild Animal 95, (1979) Issue-4, Volume 29 https://www.cms.int/en/species.
Dr Gyan Basnet, The Right to Healthy Environment available at http://www.nepalnews.com/home/index.php/guest-column/19926-the-right-to-healthy-environment-.html.
Indian constitution: R.K Bhagia (21^st edition)

Questions

What are the important provisions of Environment Protection Act, 1986
What is the Constitution Mandate for protection of environment in India?
What are the steps taken by government for the protection of Environment?
What are the major causes of environment Degradation explain in detail?
What are the International Convention in respect of Environment protection?