RIGHT TO POLLUTION-FREE ENVIRONMENT


Authors: Niharika Mukherjee, University of Calcutta

Vanshika Gupta, VIPS, GGSIPU, New Delhi


Editor: Rahul Kumar Roy (Manipal University Jaipur)

INTRODUCTION:-

Environment and life are interrelated and the existence of life on earth depends on the balanced relationship between the ecosystem and the environment. -A clean and healthy environment is essential for the survival of human beings as well as other species. Thus, the right to live in a clean, pollution-free environment is a precondition for the fulfillment of the right to life.


There have been many efforts in recent years by the Indian legal system and the judiciary, in particular, to promote and ensure the right to a pollution-free environment as a fundamental right.


This article endeavour’s to throw light on the issues related to the environment protection by discussing various environmental laws in India, Environment and Indian Constitution, the role of the Indian judiciary in environmental protection and relevant case laws.

ENVIRONMENTAL LAWS IN INDIA:-

Indian Environmental Law mainly deals with the law and policy analyzing the protection of environment. The Constitution of India states that is the duty of the state to protect and upgrade the environment. It also states to preserve the forests and wildlife of the country.


In India, there are multiple acts which has been enacted so as to control the pollution and eventually to screen the environment:

  • The Water Prevention and Control of Pollution Act,1974:- This act deals with the prevention and control of water pollution. It was established to maintain and restore the wholesomeness of water. The encapsulating aim of this act is to control the diminishing standard of water. It also deals with evaluating the level of pollution and to punish the polluters.


  • The Air Prevention and Control Of Pollution Act, 1981:- This act came into force on 1981 which seeks to provide security for the prevention, control and abatement of air pollution. This act notably grants power to the state government to identify the air polluted areas and to impose the type of fuels to be used in those polluted areas. It was the very first attempt by our Indian government to give a kick-start in tackling the degraded air pollution


  • · The National Green Tribunal Act, 2010:- This act came into force on 2010. The very cardinal objective behind enactment of this law was to establish a National Green Tribunal. It was needed for the quick and systematic disposal of cases related to the protection and conservation of environment.

Other than these Acts, there is The Environment Protection Act, 1986. This act is mainly considered as the one of most important act when it comes to dealing with environment protection laws. The brief of this act is stated as follow:

  • · The Environment Protection Act,1986:- This act was sanctioned in 1986 after the wake of the Bhopal Gas Tragedy. The act was enacted under the umbrella of Article 253 of the Indian Constitution. The main objective of this act was to give protection to the environment and to develop our environment into a better and idyllic place. It also provided with some responsibility which needs to be followed, non compliance of those responsibilities can lead to further punishment.

Therefore, these are the laws which are practiced in India to make a Pollution-Free Environment.

ENVIRONMENT AND THE INDIAN CONSTITUTION:-

Indian Constitution provides various articles which deals with the protection and conservation of environment.

Article 21 of the Indian Constitution deals with the Right to Life which includes the Right to Pollution-Free Environment. Article 21 states that,- “No person shall be deprived of his/her life or personal liberty except according to procedures established by law’’. In the case of Subhash Kumar v State of Bihar the court palpably opined that enjoyment of pollution free water and air are facet to right to life. The court also observed that right to wholesome environment is also a part of right to life.


Article 48-A of the Indian Constitution was inserted in the year 1976 when the constitution was amended. It deals with the protection of environment. It states that the state shall attempt to protect and improve the environment. It also safeguards the wild life and forests of the country.

Article 51-A of the Indian Constitution provides with the duties of the citizens towards the protection and safeguarding of our natural environment. The Supreme Court held that it is the duty of the citizens of the state to take effective steps to control the pollution and to preserve our environment for our future generation.

ROLE OF JUDICIARY IN ENVIRONMENTAL PROTECTION:-

The Supreme Court and other lower courts have been very receptive when it comes to environmental issues. we have observed copiously that when it comes to environmental issues, the Supreme Court goes above and beyond to serve justice, often laying down new principles in the process. Some of these remarkable principles and doctrines propounded by the Indian judiciary are:-

· Doctrine of Sustainable Development

Over a span of time, Sustainable Development has become a part of India’s

Environmental Jurisprudence and is often read with Article 21 of the Constitution. It gained its statutory recognition in 2010 through Section 20 of National Green Tribunal Act

which mandates that cases where Environmental disputes are to be adjudicated, the tribunal

has to apply principle of Sustainable Development.

Different concepts have come out of Sustainable Development like Precautionary Principle and the Pollutant Principle.

· Polluter Pays Principal

This principle is remedial in nature which is concerned with repairing natural harm. It was first introduced by the Organization for Economic Cooperation and Development (OECD) Guiding Principles concerning International Economic Aspects of Environmental policies in1972. However, this principle was first recognized in Indian Jurisprudence in the case Vellore Citizen’s Welfare Forum v. Union of India.[1]

· Precautionary Principle

In Vellore Citizens Forum Case[2], the Supreme Court held that “the precautionary principle and the polluter pays principle are part of the environmental law of the country”[3]. Following three concepts for the precautionary principle were developed:

Ø Environmental measures must anticipate, prevent and attack the causes of environmental degradation

Ø Lack of scientific certainty should not be used as a reason for postponing measures

Ø Onus of proof is on the actor to show that his action is benign


· Public Trust Doctrine

The doctrine enjoins upon the Government to protect certain resources like air, water, sea and the forests for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It was established in case of M.C. Mehta Vs Kamalnath & Others[4].


· Doctrine of Absolute Liability

In M.C. Mehta v Union of India[5] case, the court held that if an industry or enterprise is involved in any inherently dangerous activity, then for any damage arising out of the conduction of that activity, the defendants (the owners of the industry) will have no access to any defense or exception and will be absolutely liable to pay compensation to the aggrieved parties. Thus, this liability has no exceptions.

CASE LAWS BASED ON ENVIRONMENTAL POLLUTION:-

In MC Mehta v Union of India[6]a petition was filed under Section 21 of Indian Constitution for the closure of Shriram Caustic Chlorine and Sulphuric Acid Plant which was located in a thickly populated area of Delhi. The Supreme Court passed a judgment in favour of the petition as it used to cause a lot of pollution to the environment.


In Sachidananda Pandey v State of West Bengal & ORS[7] it was held that whenever any problem regarding ecology is brought to the court, Article 48-A and 51-A(g) has to be considered. It was decided by the Supreme Court that since duties under the Directive Principles should not be ignored but rather taken into emphasis.

CONCLUSION:-

Environment is considered as an inseparable part of one’s life as a healthy environment is absolutely necessary for the well-being of all organisms. It is rather clear that there are more than enough legislations that try to deal with the danger of environment degradation and ensure the right to a pollution-free environment to the citizens.


However, implementation and execution of such laws are lacking. It is the responsibility of individuals and private enterprises to adhere to the laws, rules and regulations laid down by the government, and when failed to do so should suffer firm consequences.

[1]AIR1999 SC 2715 [2]AIR1999 SC 2715 [3] AIR 1999 SC 812 at 821 [4]1997 SCC 388. [5]AIR 1987 S.C 1086 [6]AIR 1987 S.C 1086 [7]1987 SCR (2) 223

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