Constitutional Provisions of Environmental Law

INTRODUCTION

It is interesting to observe that natural resources are virtually untouched from a very long time on earth. But since the industrial revolution , a vast amount of these natural resources had been exploited within a lesser period of time. Also with the wastes of these exploiting actions being dumped in the environment ( air , land, water ) which has seriously damaged the natural resources. Although it is known that pollution exists since the invention of fire on earth but it is noted that it grew by the 19th century .

In February 1971, the University Grants Commission (India), together with other organizations, launched a symposium on the event of environmental studies within the Indian Universities. The consensus that emerged at the symposium was that ecology and environmental issues should form a part of the courses of study in the least levels. Further, with the thing of generating an awareness of the necessity to take care of ecological balance.

The essential ingredients of the precautionary principle are:

(i) Environmental measures- by the government and therefore the statutory authorities- must anticipate, prevent and attack the causes of environment degradation.

(ii) When there are threats of great and irreversible damage, lack of scientific certainty shouldn’t be used as a reason for postponing measure to stop environmental degradation.

(iii) The “Onus of Proof” is on the actor or the developer/industrialist to means that his action is environmentally benign.

(iv) Precautionary duties must not only be triggered by the suspicion of concrete danger but also by concern or risk potential.

In M.C. Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696)

The supreme court observed that any ‘auto-policy’ framed by the govt must, therefore, necessarily conform to the constitutional principles well as overriding statutory duties cast upon the govt under the EPA. The auto policy must adopt a ‘precautionary principles’ and make informed recommendations which balance the requirements of transportation with the necessity to guard the environment.
The “polluter pays” principle happened within the 1970’s when the importance of the environment and its protection was taken in world over. it had been subsequently promoted by the Organization for Economic Cooperation and development (OECD). The ‘polluter pays’ principle as interpreted by the Court means unconditionally the liability for harm to the environment encompasses not only to compensate the victims of pollution but also the value of reinstating the environmental degradation.

Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment within the seventies prompted the Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment added Art. 48A to the Directive Principles of State Policy. It Declares:-

“the State shall endeavor to guard and improve the environment and to safeguard the forests and wildlife of the country”.

Art. 51(A) (g)

to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to possess compassion for living creatures. The amendments also introduced certain changes within the Seventh Schedule of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list to the Concurrent List. This shows the priority of Indian parliamentarian to supply priority to environment protection by bringing it out the national agenda. Although unenforceable by a court, the Directive Principles are increasingly being cited by judges was a complementary to the basic rights. In several environmental cases, the courts have guided by the language of Art. 48A. and interpret it as imposing “an obligation” on the

govt. , including courts, to protect the environment.

Article 246

Art.246 of the Constitution divides the subject areas of legislation between the Union and thus the States. From an environmental standpoint, the allocation of legislative authority may be a crucial one – some environmental problem like sanitation and waste disposal, are best tackled at the local level; others, like pollution and wildlife protection, are better regulated uniform national laws

Article 253

Art.253 of the Constitution empowers Parliament to make laws implementing India’s international obligations also as any decision made at a world conference, association or other body. Art.253 states: Notwithstanding anything within the foregoing provision provisions of this chapter, Parliament has power to form any law for the entire or any an area of the territory of India for implementing any treaty, agreement or convention with the opposite country or countries or any decision made at any international conference, association or other body. The Tiwari Committee in 1980 recommended that a replacement entry on “environmental Protection” be introduced within the concurrent list to enable the centre to legislate on environmental subjects, as there was no direst entry within the 7th seventh enables Parliament to enact comprehensive environment laws. the advice , however, did to believe parliament’s power under Art.253

Article 14 and Article 19 (1) (g)

Article 14 states “The states shall not deny to a private equality before the law or the equal protection of the laws within the territory of India.’’ the proper to equality also can be infringed by government decisions that have an impact on the environment.

Article 21

Right to Wholesome Environment

“No person shall be bereft of his life or personal liberty except according procedure established by law.”

In Maneka Gandhi v Union of India, the Supreme Court while clarifying on the importance of the ‘right to life’ under Art. 21 held that the right to life isn’t confined to mere animal existence, but extends to the right to live with the essential human dignity.

CONCLUSION

The powers vested to the Pollution Control Boards aren’t enough to prevent pollution. The Boards do not have power to punish the violators but can launch prosecution against them within the Courts which ultimately defeat the aim and object of the Environmental Laws thanks to long delays choose the cases. Thus, it’s imperatively necessary to offer more powers to the Boards.

What we’d like is social awareness from below, not laws from the above.

Author: Khushi Maheshwari Maheshwari,
Fairfield Institution of Management and Technology , 2nd year/BBALLB

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