ABSTRACT-
The paper contains the idea about the detailed concept of article 21 of the Indian Constitution which plays a vital role in strengthening the spirit of other fundamental rights that serves as the backbone for basic human rights as mentioned in part 3 of the constitution itself between articles 12 to 35. The paper takes into account the concept of the provisions under the ambit of the Environment Protection Act of 1986 and how does it impact the notion of other established fundamental rights in the same part which is of enforceable nature under article 32 by the apex Supreme Court and under article 226 by the High Court and also how does it contribute in preserving and enhancing our environment. The study involved in the research paper is a critical analytic approach.
The paper takes into picture an analysis of such a concept in the light of the topic concerned.
KEYWORDS-
Article 21, Indian Constitution, Fundamental Right, Golden Triangle, Evolution of basic human rights, Environmental Law, Environment Protection, Flora and Fauna Protection,
Environmental Jurisprudence evolution, Environmental Study, Sustainable Development.
INTRODUCTION-
Environment word has been derived from the word ‘environ’ which means ‘surrounded’ or ‘encircled’. Environment plays a vital and paramount role in all living beings life be it flora or fauna. The notion of conservation of biotic as well abiotic components of the environment is of significant importance to create a healthy balance and for preserving the rich biodiversity nationally for a country and globally for achieving various Sustainable Development Goals or SDGs that got adopted by the world leaders in September 2015 in a historic United Nation’s or UN Summit which focused upon the established notion of meeting development demands of the present generation without compromising the environmental resources of the future or upcoming generation and harmony of balance should be there between developmental needs and environment protection and conservation for a healthy human civilized just and fair yet reasonable society.
The Indian Constitution in part 3 between articles 12 to 35 talks about the concept of fundamental rights which are very much essential and required for the dignified and basic standard lifestyle of an individual that will lead to an overall healthy human civilization and will enhance the Human Development Index of the country as well.
In this part, several types of rights such as the Right to Equality between articles 14 to 18, the Right to Freedom between articles 19 to 22, the Right against Exploitation in articles 23 and 24, the Right to Religion in articles 25 to 28, Cultural and Educational Rights in article 29 and 30, Right to constitutional Remedies in articles 32 to 35; talks about the established notion that these rights gives a wide spectrum for covering further various legal and constitutional rights and also serves as the backbone or spine of further development of statutory provisions in the concerning legal area of law such as criminal law, administrative law; etc.
It is to be noted that the Right to Property after 44th Amendment has been transformed into a basic legal right and not mere a fundamental right anymore. This was done in the light of striking balance between the individual and societal interest and how to strike a balance and to give effect to both the complimentary spirit of fundamental rights given in part3 of the constitution between the articles 12 to 35 and part4 of the constitution which talks about DPSP or Directive Principles of the State Policy which are positive in nature and empowers or inspires the state defined in article 12 in relation with the effect of article 36 to ensure certain guidelines in policy-making of the government and for the fundamental governance of the land and also as per the effect of article 37 these are non-enforceable in nature which means in case of their violation unlike in the case of fundamental rights one can seek the remedy of the court under article 32 in the apex Supreme Court and in High Court under the article 226 where respective courts can grant the 5 types of writs (Writs of Certiorari, Prohibition, Quo-Warranto, Mandamus and Habeas Corpus) for the respective concerned matter in the light of the facts and circumstances of the case, in DPSP context its not possible to do the same. Thus, there needs to keep a balance in them and for this from time to time discussion and evolution has taken place as per the judiciary role is concerned through various landmark judgements and established precedents.
RESEARCH METHODOLOGY-
The research methodology adopted for this paper includes the descriptive nature that is of paramount and significant importance for the understanding of the concept and topic concerned and doing analysis on and of its contemporary situation. The supportive data has been used from authentic sources and the author has used the creative liberty of discussing the topic by sticking to the legal roadmap of the evolution of Article 21 of the Indian Constitution which talks about the right to life and personal liberty in relation of discussing the significant aspects and provisions of the Environment Protection Act of 1986. The data taken has been classified, analyzed interpreted, and then presented in a summarized manner for the qualitative and quantitative aspects in order to validate the significance and urgency for the awareness of the topic concerned. It can be said that the research methodology adopted for this research paper is scientific and rational in nature.
REVIEW OF LITERATURE-
The Environment (Protection) Act of 1986 – (Act no. 29 of 1986) is an initiative to provide protection and improvement of the environment, it was enacted by the Indian Parliament in the 37th year of the Republic of India and it has a total of 26 sections and 4 chapters. It extends to the whole of India in matters of its jurisdiction and came into force on 19 November 1986. The incident of the Bhopal Gas Tragedy in Madhya Pradesh, India on the night of 2-3rd December 1984 by the UCIL or Union Carbide India Limited (UCIL) has been a major factor for introducing such legislation into the picture for environmental concerns. The disaster was caused by the chemical leak of MIC or Methyl Isocyanate gas and other harmful toxic chemicals from the UCIL pesticide plant due to several maintenance issues, faulty or improper storage, and lack of safety systems or mechanisms, and resulted in several drastic negative impacts upon the environment and the components of the environment including human beings.
The definition clauses discuss the environment concept from a wider perspective including water, air, and land, and also inter-relationship which exists among these and humans and other living or micro-organisms or property.
An environmental pollutant is any solid, liquid, or gaseous substance that will be proved harmful or injurious to the health and condition of the environment and the presence of such will impart the phenomena of environment pollution in several forms.
The hazardous substance means that has the property of causing harm to humans or other living beings, plants, micro-organisms, property, or environment.
In the landmark case of M.C.MEHTA vs. UNION OF INDIA- the court took the view that pollution of the Ganga River amounts violation to Article 21 and it needs to be taken care of. In the case of VELLORE CITIZENS WELFARE FORUM vs. UNION OF INDIA- the court recognized the relation between sustainable development in the light of the precautionary principle and directed the guidelines for environmental protection regulations.
In the case of T.N GODAVARMAN THIRUMULPAD vs. UNION OF INDIA – the notion of forest conservation with afforestation and discouragement of deforestation was there as it is related to the enforcement of Article 21.
In the case of MANEKA GANDHI CASE- the concept of the golden triangle was formulated which propounds the relation between articles 14.19 and 21 and how these are related in the wider perspective that can also be applicable in environmental matters.
In the case of M.C.MEHTA vs. UNION OF INDIA – the court has expressly said that Article 21 includes the right to a clean and healthy environment which includes a direct relation between the right to life and environmental protection.
Furthermore, cases from time to time related to Article 21 and environmental rights have been highlighted by the judiciary in their respective judgments which is proof of their concerned effects and notions.
PROVISIONS-
The chapter 2 of the respective act talks about the provisions with regards to general powers of the central government that can be reasonably taken to fulfill the objective of the act.
In this several enabling and restricting powers are there with the central government on an arena of national level. Also, state government and allied officials need to be coordinative in the acts concerned in this manner. The central government has been also assigned with inspection and appointment powers for the respective works that need to be done under the ambit of the act for environmental protection and all these need to be exercised without a prejudiced manner. The central government has a directive role too and can formulate rules to regulate and handle environmental pollution.
All of these show the affirmative role of the central government in handling and implementing the three main principles of the environmental law arena-
- Polluter Pays Principle- which shows the concern matter that the one who pollutes the environment will eventually be held liable to pay for its consequences.
- Public Trust Doctrine- which says that the environment and the associated properties with it are for the interest of the public and not for just private concerns and therefore, the government is entitled to the duty to protect, conserve and maintain it.
- Precautionary Principle- which throws light on the concerned idea that precaution is better than cure and government should take active role beforehand, in order to prevent environmental damages from time to time which will be essential for fulfilling environmental protection needs.
Chapter 3 of the act talks about the notion of prevention, control, and abatement of environmental pollution, and Chapter 4 talks about miscellaneous provisions.
Note- chapter 1 talks about preliminary provisions.
Although, provisions are there but their counter loopholes need to be balanced from time to time as per the need of the hour.
The act talks about the provision where the concerned person would not be allowed to produce a discharge of environmental pollutants in excess of the standards but these standards and this implementation of provision need to be checked in the main area as well as remote areas of the country and corruption or malpractices should be prohibited in such concerns. The act also talks about the provision of environment laboratories but the research involved in its development and maintenance need to be taken care of. The act also imposes penalties where one does not comply with its provisions but its proper implementation and escape from liabilities need to be taken care of with proper awareness and zeal.
Currently, in the contemporary arena, the act needs to work on its weaknesses by taking positive notes from other countries’ environmental laws and needs to strengthen its positive side by addressing and allocating resources for the work prescribed in the alignment of the act to improve its overall efficiency for the specific regions of the country and for the whole country as well in a wholesome manner.
The strength and weaknesses of the act needs to be balanced in order to seek or reach its fullest potential and higher purpose and it needs to complement other statutory provisions with regard to the environmental matter so that, all can work together for the betterment of the environment and society in general.
The point to be highlighted is that the Indian Constitution expressly deals with environmental matters when it comes to the notion of Article 48A of DPSP or Directive Principles of the State Policy – which says that the state shall endeavor to protect and improve the environment and work for forest and wildlife so that the biodiversity could be enhanced and conserved.
On the other hand part 4A talks about the Fundamental Duties of the citizen in which Article 51A(g)- says that it should be the duty of citizens of the country to protect and improve the natural environment and to foster compassion for living creatures here, the environment includes forests, lakes, rivers, and wildlife.
Both these provisions shows the collaborative effort of state and citizens to protect the environment for a higher purpose and calling.
Thus, it can be said that the Environment Protection Act of 1986 has a detailed and comprehensive approach but a few things or parameters need to be checked or kept in mind for critically analysing this respective act which includes the established notion of checking its effectiveness and implementation at times or from time to time pre and post environmental concerned events in the contemporary era. Also, regulatory oversight and accountability with regard to efficiency and loopholes or malpractices need to be addressed for handling or counter-attacking the negative aspects of this act. Public Participation and Accountability play a paramount and yet significant role and aspect in strengthening the spirit and fulfilling the objective of this act,
The proper implementation of environmental protection laws will impart environmental justice and equity in the land which is of utmost importance and this is high time to be aware and aroused with regards to environmental governance that will further help and contribute to addressing global environmental issues such as of global warming, climate change; etc.
Furthermore, proper formulation of legal provisions of environmental laws needs to be done after addressing and dealing with the core ethics and principles of environmental law of jurisprudence and its evolution for this thorough research needs to be done in a scientific and justified manner.
Committees of experts should be set up that will eventually study the grassroots level of the problem with proper surveys and primary collection of data and will address the problem with an adequate and creative solution.
The top-to-bottom and bottom-to-top approach in the hierarchy set up of administrative powers needs to be managed in such a way that each unit can fully address the required efforts in the concerns of environmental matters for the betterment.
The provisions should be stated and formulated in the light of balancing the scope between environmental protection concerns and development aspects, one should not underpower or overpower the other as both are just and required for the betterment of the country and for global development as well as also technical irregularities needs to be handled with proper care and caution. Justice in environmental matters also contributes to justice in political, social, economic, cultural, ethical, anthropological, religious, spiritual, psychological, and holistic manner.
Rights and duties with regard to environmental matters have to be balanced for the betterment and solving the various disasters to the mother environment and one should be aware of these through proper legal and statutory provisions as in the case of the Environment Protection Act of 1986 as in this several positive approaches is already taken but still much is need to be done for the proper notion of environmental protection on a wider and real practical scale besides just on the theoretical and minimal matters as the maximum needs to be reached.
Thus the author likes to spark a light on the mind of readers to give it a thought with regards to the actual condition of the environment and the upcoming and as well existing challenges for the environment.
SUGGESTIONS-
Although definition clauses cover a wide ambit but loopholes are there in understanding several terms with respect to the facts and circumstances of the cases that need to be addressed in order to grasp the true and pure spirit of the act concerned with its objective of delivering the focus of environmental protection.
Moreover, challenges with respect to practical implementation, theoretical interpretation challenges and awareness aspects need to be taken into account for the betterment and the possible arenas to be focused in relation to Article 21
( fundamental right which talks about the right of life and personal liberty) that the State defined in article 12 of the Indian Constitution needs to protect the life of an individual be it, a citizen or foreigner, on account of the natural justice principle, that no one should be left unheard or Audi Alteram Partem and no one should be a judge in one’s own case or where one’s own interest is involved or Nemo Judex in Causa Sua except procedure established by law and the Environment Protection Act of 1986 needs to be made more crisp and clear with their respective guidelines in order to conduct a path of a healthy wholesome life with dignity and better environment which is essential for harmonizing balance.
CONCLUSION-
In this light of the discussion, it is evident to conclude that the study and concept of Article 21 of the Indian Constitution in relation to the Environment Protection Act of 1986 plays a vital role in ensuring the evolution of Constitutional Jurisprudence and Human Rights Law together with the protection of our environment on a wider scale and the loopholes concerned in addressing the gap between the theoretical and practical aspect is indeed important so that the rights get the proper enforcement and for that affirmative active role needs to be taken by the various organs of the government which includes the legislature, the executive and the judiciary in a collaborative manner in order to protect and conserve our environment for the just and better society.
REFERENCES-
1. MP JAIN, CONSTITUTIONAL LAW BOOK (2022).
2. J N PANDEY, CONSTITUTIONAL LAW BOOK (2022).
3. INDIAN CONSTITUTION,1950.
4. S. C. SHASTRI, ENVIRONMENTAL LAW (2020).
5. ENVIRONMENT PROTECTION ACT, 1986 (India).
6. SCCONLINE- (FOR CASES).
(THANK YOU FOR BEING AN ENTHUSIASTIC READER!)
AUTHOR NAME: MALLIKA KUMARI
UNIVERSITY OR COLLEGE NAME: AMITY UNIVERSITY PATNA
YEAR OF STUDYING LAW: 2ND YEAR STUDENT
COURSE: BA.LLB.(H)