Constitutional Provisions for the Protection of Environment

Constitutional Provisions for the Protection of Environment

“For us, Protection of environment is an article of faith. We have natural resources because our previous generation protected these resources. We must do the same for our future generations.”

  • Narendra Modi, Prime Minister in India-

Human life is indistinguishable from the environment. Even if man does not understand the value of the environment, one day man will understand its value. Also, the constitution is the basic document of the legal or political dependence of a state. The future of a state cannot be discussed without a constitution. Therefore, in connection with this article, there will be a detailed discussion of two of the most important aspects that apply to people. That is, the introduction of the Constitution and the environment, Inquiry into the basis for addressing environmental issues through the Constitution, Inquiries into how environmental issues have been addressed through modern constitutions, the potential for future growth will be discussed here. Finally the conclusion contains related comments.

Constitutional provisions and environmental protection

  • Constitutional Provisions: A constitution is simply the supreme document of a state and provides for the validity of all laws in force in the state. With the advent of modern democratic governments, the importance of the provisions of the Constitution increased. Therefore, the Constitution is the supreme document that elevates a nation and paints the future of a nation. In association with India it is known as “bharathiya samvidhana” and was drafted in 1948 and given force from 1950 onwards. The 90th Amendment to the Constitution of India is the longest and most comprehensive constitution in the world, consisting of 395 articles and 10 appendixes. In connection with Sri Lanka, the Constitution of the Democratic Socialist Republic of Sri Lanka, enacted in 1978, has been amended 20 times. It also consists of 24 chapters, 172 clauses and six schedules.
  • Environmental Protection: Environmental protection is a field that cannot be summed up in just a few words. If the environment is everything around us, then protecting every aspect of it is called environmental protection. How to define the environment protecting all matters related to it is called environmental protection. Environmental protection has become a global topic as issues related to it have been discussed both locally and internationally. But the basis for environmental protection in any country is laid down through the Constitution. Therefore, it is most appropriate to interpret environmental protection on the basis of the Constitution.

Rationale of incorporating environmental protection issues through the provisions of the Constitution.

As mentioned above, the Constitution is the supreme document of a state, so all institutions are based on it. Also, as constitutionalism acknowledges, a constitution adds some meaning to the way of life of the people through the foundations of the Constitution. Therefore, the Constitution is the driving force that can motivate not only the people but every aspect of the state as a whole for environmental protection. Furthermore, a constitution applies to all who live in a state

. This is confirmed by the statement “We the people of India” in the preamble of the Constitution of India and by the statement “We the people of sri lanka” in the preamble of the Constitution of Sri Lanka. The enactment of other statutes varies, but the constitutional provisions provide a fundamental basis for the protection of the environment on the basis of the general nature of the Constitution.

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The Constitution is the primary source from which every law of a state is enforced. Laws that are unconstitutional are therefore invalid. Article 13 of the Constitution of India emphasizes this. The Supreme Court has been empowered to inquire into the legitimacy of a Bill under Article 120 of the Constitution of Sri Lanka. Therefore, addressing issues of environmental protection through constitutional provisions does not provide an opportunity to legislate in a way that negates environmental protection on the basis of power.

As Aharon Barak points out, “a constitution is a decisive factor in changing not only the present, but also the future.” In states such as Canada, the Constitution is referred to as the living tree. In the case of Dalip Singh Gill vs Union of India (1993 103 PLR 701) the Constitution is seen as an eye for the future. Issues related to environmental protection are also growing day by day, for example new issues related to industrialization, globalization and climate change have to be discussed. Since the Constitution is a growing document, it is more appropriate to build environmental protection based on the constitutional provisions on the ability to address a peace issue through interpretation. In addition, this situation is further enhanced by the fact that every provision of the Constitution can be read together with every word to address the sensitive issue of environmental protection.

How matters relating to environmental protection are incorporated in the Constitutional Provisions.

In the study of the Constitution of India, environmental protection is directly stated in the provisions of Article 51-A (g). “It shall be duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures”. From the point of view of the purpose of the constitution makers, environmental protection is clearly stated as a fundamental duty of the citizens through a constitutional provision. It can also be interpreted as an attempt to affirm the right to nature, stating that conservation of natural resources is a human duty. Even more positive is the fact that the Constitution itself provides for the development of a biocentrism system that is being discussed by many countries today. Article 28 (f) of Chapter VI of the Constitution of Sri Lanka states that “the protection of natural resources and natural resources is the duty of every citizen of Sri Lanka”. In a comparative analysis, the Constitution of India has a broad duty to protect the environment of Indian citizens through its approach.

In relation to directive principles, Article 48A of the Constitution of India outlines the policy responsibility of a State to protect the environment. It states that “the state shall endeavor protect and improve the environment and to safeguard the forests and wildlife of the country”. Issues related to directive principles and environmental protection in Sri Lanka can be explained in a more important and concise manner. Article 27 (14) of Chapter VI states that the Government shall protect, safeguard and improve the environment for the benefit of the people. However, as stated in Article 29 of the same chapter, it is stated that no right arises from the law due to the provisions of this chapter. The question then arises as to whether Article 27 (14) is merely a constitutional embellishment. The Ravindra Gunawardhana Kariyawasam vs. Central Environment Authority (Chunnakkam Power Plant Case) (SC FR Application No. 141/2015) judgment of the Supreme Court in 2019 confirming that this is not the case is a significant milestone in Sri Lanka’s environmental protection law. The decision is as follows. “The directive principles of the state policy are not wasted ink in the pages of the constitution. They are living set of guidelines which the state and its agencies should give effect to.” Accordingly, this decision reiterates the importance of the provisions of the Constitution of Sri Lanka for environmental protection.

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The constitution of any country is fundamental to the protection of human rights. The right to life under Article 21 of the Constitution of India transcends all rights. In particular, the Court has been moved to interpret Article 21 together with almost all other provisions of the Constitution. “No person shall be deprived of his life or personal liberty expect according to procedure established by law”

In particular, the provisions of Articles 14 and 19 and Articles 21 and 21 have been confirmed by a number of cases. Its main milestone was the MC. Metha vs. Union of India (1987 SCR 819) case, which stated that “living in a pollution-free environment is also a part of the right to life.” In the case of Rural Litigation and Entitlement vs State (1988 SC 2187) part of the right to life was recognized as the right to a healthier environment. That is to say, this provision can be described as a provision that guides environmental protection for future justice as well. Fundamental rights are enshrined in Chapter III of the Constitution of Sri Lanka, but the right to environmental protection is not directly disclosed. However, there are instances where cases have been filed under Article 12 (1) addressing issues of environmental protection on the basis of equality of law. That is, the entire constitution helps to protect the environment.

The ample provision for environmental protection in a constitution is not sufficient and there must be a locus standi to be able to go to court to enforce those conditions. Proof of this is stated in the Public Interest Litigation under Sections 32 and 226. This is an opportunity to create new principles for environmental protection by interpreting the problematic situation before the judiciary through the provisions of the Constitution. Examples include emphasizing the pecuniary principle and polluter pay principle through the Vellore Citizens Welfare Forum vs. Union of India (1996 5 SCC 647) case decision, public trust doctrine through the MC.Metha vs. Kamalanath (1997 1 SCC 388) case decision, and the absolute liability principle through the OLEUM Gas Leak case. Public interest litigation is also on the rise under Sri Lankan law. The Bulankulama and Others vs Secretary, Ministry of Industrial Development and Others (SC FR Application 884/99), Deshan Harindra vs. Ceylon Electricity Board ( SC FR Application No. 323/ 97) judgments are  examples of this.

A Constitution enforces not only domestic law but also international law to the extent necessary. International law relating to environmental protection is a universal cause for environmental protection. Provision 253 is the provision that empowers Parliament to enforce internationally important legal conditions applicable to Indian domestic law. An example of this is the enactment of the Environmental Protection Act 1986 with effect from 1972 Stockholm convention in India. In the case of Sri Lankan law, international conventions through the Bulankulama and Others vs Secretary, Ministry of Industrial Development and Others (SC FR Application 884/99) case were soft law, but a progressive case for environmental protection was delivered, demonstrating the potential for its application. In addition, Sri Lanka as well as India is working to achieve the environmental protection goals under sustainable development goals, which have been strengthened by the constitutional provisions.

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Future Environmental Protection and Constitutional Provisions

The importance of environmental protection is not limited to the present and it is important to protect the environment so that the rights of future generations are protected. It can therefore be argued that the existing provisions of the Constitution are sufficient for future environmental protection as well. In relation to India, Sandeep Kharb vs. Ministry of Environment Forest & Climate Change (2020 SCC NTG 857) emphasized that environmental protection is possible even in the face of potential development-related issues that may arise in the future through increased litigation. Under Sri Lankan law, the Court of Appeal in November 2020 issued a landmark judgment (Centre for Environment Justice Ltd vs. Department of Forest Conservation and Others) on environmental protection. Reforestation was ordered under the polluter pay principle to redress the environmental damage caused by the Wilpattu forest. It is also important to note that in passing judgment in this case, which was filed under Article 140 of the Constitution, the judges cited a number of Indian judgments.

The current trend is that the tendency to file lawsuits on environmental issues is high. Therefore, man acts to protect the environment and related human rights based on his belief in the Constitution. In this way, human beings can exercise their rights as well as emphasize their responsibility and duty to protect the environment. It will also enable a government to repeatedly remind and commit to the importance of protecting the environment. Furthermore, the Constitution itself provides a precedent for amending the Constitution to address future environmental issues and to protect the environment under existing conditions.

Conclusion

When Sri Lanka and India are treated separately, it is clear that there is some degree of concern for environmental protection, despite differences in the constitutional provisions for the protection of the environment. The Constitution addresses only the fundamental as well as the nationally important issues when inquiring into the fundamental principles relevant to the drafting of the Constitution. Therefore, environmental protection is a fundamentally important principle of national importance. Paddy is a legal system aimed at the welfare of the people in a state, but the environment must be in order for it to work. It is unthinkable that there is a law that is detached from environmental factors. Therefore, every country or to some extent contributes to the achievement of that goal and that contribution is the cause of the existence not only of that country but of the whole universe.

Author: Tharuka Hettiarachchi,
Faculty of Law, University of Colombo, Sri Lanka

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