Right to Environment is guaranteed to most people of the world through their legislative and legal frameworks. Rights and duties pertaining to the environment are enshrined in the Indian Constitution.
Articles 12(1) and 12(2) of the Constitution establish as a basic human right, the right to live in a healthy environment, while a combined reading of the clauses of Articles 48 and 51 makes abundantly clear that the State and citizens have fundamental duty to protect the environment.
These objectives, well supported by well supported by a set of legislative and regulatory measures, aimed at the preservation, conservation and protection of the environment fall in the framework of “Green Legislation
The Ministry of Environment and Forests (MoEF) has been appointed the nodal agency for the implementation of policies and programmes relating to conservation of the country’s natural resources including its lakes and rivers, its biodiversity, forests and wildlife, ensuring the welfare of animals, and the prevention and abatement of pollution.
While implementing these policies and programmes, the Ministry is guided by the principle of sustainable development and enhancement of human well-being. Its broad objectives are:
- Conservation and survey of flora, fauna, forests and wildlife
- Prevention and control of pollution
- Afforestation and regeneration of degraded areas
- Protection of the environment and
- Ensuring the welfare of animals
India participated in the United Nations Conference on the Human Environment (UNCHE) in Stockholm in June 1972 which advocated taking appropriate steps for the preservation of the natural resources of the earth which, among other things, includes the preservation of the quality of air and control of air pollution.
The Ministry of Environment and Forests has enacted the Biological
Diversity Act, 2002 under the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992 of which India is also a party. This Act provides for “the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of biological resources, knowledge and for matters connected therewith or incidental thereto.”
However the view held and expounded in this Conference which upholds that human beings are at the centre of concern for sustainable development and are entitled to a healthy and productive life in harmony with nature finds critics in the environmental circles.
Such a viewpoint has many critics. Joel Kovel, the Green Party candidate for nomination for the President of the United States in 1970, describes this thinking as an ‘anthropocentric delusion’. He writes in ‘Enemy of Nature,’ that such a concept has Judaic roots and attributes it to Genesis (1:26), where Yahweh has given Adam “dominion over fish of the sea and fowl of the air, and over cattle, and over the earth and over every creeping thing that creepth upon the earth”. He states that apart from Christianity, no other world or tribal religion propagates such subservience of nature to human wants and needs. Christianity sees “nature, in all its intricate glory, like so many planets around the human sun” He has extolled the ancient cultures of China and India as having a far greater symbiotic relationship with the natural world.
Respect, indeed reverence, for nature is deeply rooted in the south-east Asian psyche, though it is fast getting eroded by globalization and capitalistic tendencies. However the disastrous consequences of these trends which manifest themselves as climate change and catastrophic global events are being felt across the world causing the thinking public to develop an acceptance of the controls that green legislation invariably imposes.
India has been consciously enacting pro-environment laws for the past three decades. The 42nd amendment to the Constitution, 1974 makes it State Governments responsible for protecting and improving the environment and safeguarding India’s forests and wildlife. Environmental implications are woven into the framework of the Environment and The Electricity Act, 2003 pertaining to power sector development. While the Electricity Act does not explicitly deal with the environment and ecological implications of activities related to power production, the involvement of the Ministry of Environment and Forests is acutely felt.
However as the enforcement regime of India’s stringent environmental laws however leave much to be desired, civil society organization and concerned citizens are increasing through an ever increasing number of Public Interest Litigations giving the judicial branch of the Government the right to enforce green legislation.
No discussion on Green Legislation can be complete without the enumeration of judicial activism and decisions taken by respective courts of law.
Some significant Declaration of Rights by the Supreme Courts and High Courts of India are given below which shed light on the environmental framework in which the country operates.
Damodar Rao v. Municipal Corporation, Hyderabad (AIR AP 170)
-“there can be no reason why practice of violent extinguishments of life alone would be regarded as violative of Art.21 of Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Art. 21 of the Constitution.”
L.K.Koolwal v. State of Rajasthan (AIR 1988 Raj 2)
- “Maintenance of health, sanitation and environment falls within Art. 21 thus rendering the citizens the fundamental right to ask for affirmative action.”
Attakoya Thangal v. Union of India (1990 KLT 580)
- “The right to sweet water and the right to free air are attributes of the right of life, for these are the basic elements which sustain life itself.”
V. Lakshmipathy v. State of Karnataka (AIR 1992 Kant 57)
- “Entitlement to clean environment is one of the recognized basic human rights….The right to life inherent in Art. 21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.”
- “Where on account of human agencies, the quality of air and the quality of environment are threatened or affected, the Court would not hesitate to use its innovative power… to enforce and safeguard the right to life to promote public interest.’
Declaration of Right by Supreme Court
Subash Kumar v. State of Bihar (AIR 1991 SC 420)
- “The right to life enshrined in Art. 21 include the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32.”
Virendra Gaur v. State of Haryana (1995 2 SCC 577)
-“Article 21 protects right to life as a fundamental right. Enjoyment of the life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts would cause environmental pollution. Environmental, ecological, air, water pollution etc., should be regarded as amounting to violation of Article 21.”
The ever-growing judicial activism and pro-environment or ‘green’ judgments of courts of law in India points to serious non-observances of the letter and spirit of the Indian Constitution and according to Dr. Sairam Bhat, of National Law School, begs the question whether “the right to healthy environment guaranteed or is it illusory?
