Environmental Jurisprudence in India

Nature provides a free lunch, but only if we control our appetites…[1]

The word Environment has been derived from the French word ‘Enviorn’ which means surrounding. The environment comprises and constitutes of everything around us. The environment consists of all biotic (living organisms) and abiotic (non-living objects) that surround us. Example- When we go out for a walk in the park, the grass and trees around us are the biotic constituents and the benches of the park are abiotic constituents. These are just some tangible examples. Air, sunlight and atmosphere around us also constitute our environment.

The survival of human beings, flora, fauna and all life forms depend upon the symbiotic relationship we hold with the environment. The reason why I call it symbiotic because it is like a contract of nature where we have to guarantee protection, growth and provide balance to the environment while it provides us with resources, food, shelter, air to breathe etc. However, Humans have been in breach of their part of the agreement. We have been inclined towards extracting resources recklessly and exploiting the environment which has put a threat to the survival of humanity itself.

The world entered a phase of transition post world war and terms like nature, environment and clean air were replaced by industrialisation, westernization and modernisation. Furthermore, the world saw exponential growth in human population in the 19th Century and it still tends to grow. As of 2020, the world population stands at 7,794,798,739[2]. With such exponential growth in population and man’s desire for power led to extensive depletion of the environment and natural resources. Thus, came a requirement for setting up laws and policies to prevent us from exploiting the environment.

Environment Law is a branch of law which deals with protection and safeguarding the nature and environment from the reckless action of man. According to the Oxford Dictionary- “The body of official legal rules, decisions, and actions that relate to environmental quality, natural resources, and ecological sustainability.”[3] Environment law gained momentum post-1960s[4] and now Right to a clean and healthy environment has become part of the Constitutions of many countries. Example- South African constitution states Right to an environment which is not harmful to people. Similarly, the German Basic law called, German Grundgesetz has enshrined that Government must protect the environment for future generations.[5]

Similarly, The Indian Constitution also contains provisions which directly and indirectly direct the state to safeguard the environment and health of citizens. According to Article 21- No person will be deprived of his life and liberty except for the process made by law. There have many cases in the Supreme Court where the court has held that the importance of Right to life comes with a healthy and safeguarded environment which thus enunciates a right to the environment under the ambit of Article 21. Further, Article 48-A and 51A(g) which are a part of the Directive Principle of State Policy and Fundamental Duties respectively under Constitution of India, the state and the citizens of the country have to protect environment and ecology of the country.

Jurisprudence is the essence or basics from which law is devised. It is the philosophy or theory involved behind the formation of such law. Under, the Indian law, Environmental law has developed over time in India. From amendments in constitutions to separate enactments protecting the environment and lately the impact of PILs and Judicial activism has changed the Environmental law and its principles, it was based.

Protection and Conservation of the environment have been essential in India since ancient times. In the Rig Veda, which is the largest of all 4 Vedas is a sermon “Ma hinsyah sarva Bhutani”[6]. This sermon means that ‘do not harm anything’. The ancient Indian system and society were more careful, cautious and conscious towards the environment. Under the Manusmriti [VERSE- 8:285]- Harming plants is held punishable and whoever destroys or hampers herbs/shrubs/trees of essential utility and the person who destroys such plant will be punished in accordance with that. The book of Arthshastra written by Kautilya has also chapters which assign duties to the village headman, king to set up new forests and to protect flora and fauna of the kingdom.

However, colonial rule India saw the exploitation of the environment recklessly. The colonisers were not at all concerned about the environment of the Indian subcontinent. They were more inclined towards their goal of making the European markets richer by utilising the resources found in Asia. A peculiar example of this is the Western Ghats of India[7]. Once a biodiversity hotspot and the most unique ecosystem of India, today it has lost its essence due to ill-informed and selfish decisions of British. A study was conducted on this by the National Centre for Biological Sciences (NCBS), Bengaluru, the University of Leeds, UK, and Manipal Academy of Higher Education, Manipal. The British started to use the timber and grassland here extensively and thus today the area is not the same as it was.

Post-independence, the Indian laws are not stringent and mandatory and more of regulatory and suggestive. Though these are in the form of laws yet they often appear to be suggestions and advises to states and citizens. Let’s take a look at the legal and Constitutional Provisions and analyse them to understand the jurisprudence and philosophy of laws enacted in India.

Constitutional Provisions

  • Article 48A[8] – According to this article, the state has been given the duty to safeguard and protect the environment and improve it. Furthermore, The State has to protect forest and wildlife in the country. It was introduced in the constitution by the 42nd Amendment in the year 1976. Though a Constitutional provision, it falls under the category of Directive Principle of State policy and hence, it is not enforceable by the court.
  •  Article 51A(g)[9] – According to this article, citizens have been assigned a fundamental duty to protect the environment and its constituents like forests, lakes etc.
  • Article 21[10]This article guarantees the Right to life and personal liberty to citizens. Citizens will not be deprived of these two without the process established by law. Though this article, does not states or hints towards any protection of environment yet it has clearly instructed the state to protect citizens right to life. This right to life has been interpreted by the courts as the state’s duty to protect and conserve the environment to protect and sustain life itself. The Supreme Court in the case of Charan Lal Sahu v. Union of India[11] held that the right to life includes right to a wholesome environment. Furthermore, in the case of Subhash Kumar v. the State of Bihar,[12] the apex court held that “right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.”[13]

We can see the constitutional provisions above and we observe that Article 48A and 51(A)(g) are merely suggesting the state and not instructing it. These are directory in nature. These cannot be enforced by court as well neither can any damage happened to be brought before the court under the constitutional provisions. The DPSP and Fundamental duties were enacted to remind state and citizens of their duty. According to B.N. Rau[14]– DPSPs have an educative value for people in power to understand what Indian Polity is and what it should aim at[15].

B.R. Ambedkar opined that even though these are not enforceable yet they have a political justifiability towards electors. However, the author believes that these provisions should have been made enforceable seeing the current scenario of the environment. In today’s Indian polity DPSPs have lost their educative and remaining value to the Indian polity and electors. The laws in India are only made after protests or when the legislature has the threat of losing their seats in the assembly. “The legislators of our country do not act unless their tails are on fire.”[16]

Article 21 though has enforceability and it has interpreted by apex court yet, its mandatory nature has not been enough in the protection of the environment. The implementation of such laws and precedents in has been very weak in Indian perspective. So, their mere interpretation has not been very efficient as many citizens, bureaucrats, legislatures themselves are not aware that the environment falls under the ambit of Right to Life.

Legal and Statutory Provisions

  1. Wild Life (Protection Act), 1972- This legislation was aimed to protect the wildlife, prohibit hunting and poaching and promote international conventions like CITES (Convention of International Trade in Endangered Species of Fauna and Flora). The article empowers the central government under Section 38 to declare any area zoo or wildlife sanctuary. Furthermore, Section 39 prohibits the sale of animals and ivory, weapons used to hunt wild animals. In the case of Rajendra Kumar v. Union of India [17]a licensed ivory carver petitioned the Supreme court against restrictions for trading ivory. The court upheld the restrictions because of the virtue of Chapter 6A of the act to prevent hunting and poaching of elephants.
  2. Indian Forest Act, 1927- State has the right to make rules under Section 32f of the act and anyone who contravenes these rules is punishable under Section-26(i).
  3. Environment (Protection) Act, 1986- The Act. has been aimed at protection and improvement of environment and prevention of hazards to human beings, plants and other living creatures.
  4. Other important legislatures which have provisions for protection, conservation and improvement of the environment are-
  5. The Serais Act, 1867
  6. Air (Prevention and Control of Pollution) Act, 1981
  7. The Noise Pollution (Regulation and Control) Rules, 2000
  8. The Water (Prevention and Control of Pollution) Act, 1974
  9. National Green Tribunal Act, 2010

Even though we have strong statutory provisions for each violation yet India’s environment condition has not improved. According to Hindu Article, 22 species of flora and fauna went extinct in the year 2019 in India[18]. Furthermore, every year in October, Delhi NCR is covered under a blanket of smoke, dust and harmful particles. So, we can see that the laws which have been made are not effective in the way they should be.

Public Interest Litigations and Judicial activism

With the advent of PIL in India, the judiciary has actively reviewed and instructed the executive and legislature to ensure the safekeeping of citizens. In many cases, the judiciary has played an important role in laying down principles for the protection of the environment. Following are a few examples of the same-

  • MC Mehta vs. Union of India[19]– In this case, the apex court directed all vehicles under commercial use to utilise CNGs as a source of fuel.
  • MC Mehta vs. Union of India[20]– This case is popularly known as Kanpur Tanneries case or Ganga Pollution Case. In this case, the court gave directions to prevent discharge of untreated industrial effluent in river Ganga.
  • Rural Litigation and Entitlement Kendra vs. the State of UP[21]– In this case, the Supreme Court banned mining in Mussoorie hills as it caused degradation of the environment.
  • Vellore Citizen’s Welfare Forum vs. Union of India[22]– Court order shutting of tanneries around palar river which were discharging untreated waste in the river. The ‘polluter Pays Principle’ was devised in this case.

Conclusion

The environment is the key to our survival. The environment needs to be protected by the state and the citizens and it is a non-negotiable contract with nature and survival of life itself. However, we have been in breach of our duty and our laws have been inefficient in tackling the situation for us. The reason behind this is that the jurisprudence behind environmental law in India is based on punishments of rehabilitation and restoration. The author believes, it should be more stringently enforced in India and awareness of the same must be imparted in the society.


[1] William Ruckelshaus, Business Week, 18 June 1990

[2] https://www.worldometers.info/world-population/

[3]https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095753628#:~:text=The%20body%20of%20official%20legal,Dictionary%20of%20Environment%20and%20Conservation%20%C2%BB

[4] http://lawtimesjournal.in/history-of-environmental-law/

[5] https://www.britannica.com/topic/environmental-law/Levels-of-environmental-law

[6] Sustainable Development Law: The Law for the Future- By Kartikey Hari Gupta

[7] https://theprint.in/science/study-traces-how-the-british-ruined-western-ghats-one-of-indias-most-unique-ecosystems/147041/

[8] Constitution of India- Article 48A- https://indiankanoon.org/doc/871328/

[9] Constitution of India- Article 51A(g)- https://indiankanoon.org/doc/1644544/

[10] Constitution of India- Article 21- https://indiankanoon.org/doc/1199182/

[11] 1990 AIR 1480

[12] (1991) 1 SCC 598

[13] http://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-Free-Environment.html

[14] Sir Benegal Narsing Rau, CIE, was an Indian civil servant, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. – https://www.hindustantimes.com/india-news/bn-rau-an-idealist-and-a-staunch-constitutionalist/story-lG9tBvsvmm2TTfTs5L9I0N.html

[15] https://www.lawctopus.com/academike/scope-of-enforcement-of-dpsps/#:~:text=Thus%2C%20DPSPs%20are%20not%20enforceable,does%20not%20make%20them%20useless.&text=Ambedkar%2C%20%E2%80%9Cthe%20government%20has%20to,the%20electorate%20at%20election%20time.%E2%80%9D

[16] An Overview of Environmental Jurisprudence in India, Sukhvinder Singh Dari & Rangam Sharma, JOURNAL OF GENERAL MANAGEMENT RESEARCH

[17] AIR 1998 Raj 165, 1998 (1) WLC 277

[18] https://www.thehindu.com/news/national/vanishing-wildlife-22-species-have-gone-extinct-in-india/article28733215.ece

[19] AIR 2001 SC 1948

[20] AIR 1987 SC 1086

[21]  AIR 1985 SC 652

[22] AIR 1996 SC 2715

Rishi Raj from Symbiosis Law School, Noida

He is a criminal and constitutional law enthusiast who someday aspires to serve the Armed Forces of our country.

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