Government and its duty to protect the Environment

Written by: Harpreet Lamba, Jindal Global Law School

Government and its duty to protect the Environment

The Government of India owes it citizens a duty to protect the environment. A constitutional duty to protect the Environment was first introduced to India as a part of the 42nd Amendment of the Constitution after the Stockholm Conference held by the UN on ‘Human Environment’. [1] This was done by adding the subject “ecology and environment” through article 48A and 51A(g) of the Constitution.[2]

Article 48A, which is in part IV of the Constitution, provides a Constitutional mandate to protect and improve the environment and also to safeguard the flora and fauna of India, in the form of a Directive Principles of State Policy (DPSP). While Article 48A gives the States a fundamental duty to protect their environment, Article 51A(g) on the other hand gives a fundamental duty to all citizens of the country to protect the environment and also to treat all living creatures with care and compassion.[3] It is also important to note that not only do these articles mandate the State and the Citizens to protect the environment, but to improve the environment as well.

Article 21 of the Constitution provides for the right to life and personal liberty to every citizen. In the landmark case of Rural Litigation and Entitlement Kendra & Ors v. State of U. P. & Ors[4](also known as the Dehradun quarrying case) the Supreme Court held that the pollution caused due to the quarrying has caused adverse effects on the health, physical well being as well as safety of the people and thus ordered for the quarry to be shut down. The Court did this holding the pollution caused as violative of right to life under Article 21. This was the first case in India where the Supreme Court ruled that the right to environment is also a right to life and personal liberty under Article 21.[5] Even in the case of Subhash Kumar v. State Of Bihar[6], the Supreme Court held that the right to clean air, water etc is a fundamental right and it is provided under the right to life under Article 21 of the Constitution. Here, the court said “Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have resources according to Article 32 of the Constitution for removing the pollution of water or air which may deteriorate the quality of life”.[7] These two cases were landmark cases in the context of Indian environmentalism and were also very important in establishing a culture of environmental litigation in India.

The Oleum Gas Leak case[8] also proved to be quite fundamental for environmental litigation in India. Here, Chief Justice Bhagwati had held that the right to live in a healthy and safe environment should be treated as a fundamental right under Article 21 of the Constitution. Here, the learned Chief Justice Bhagwati stated “These applications for compensation are for the enforcement of the fundamental rights to life enshrined in Article 21 of the Constitution and while dealing with such applications, we cannot adopt a hypertechnical approach which would defeat that ends of 15 AIR 1987 SC 1986 87 justice. If this Court is prepared to accept a letter complaining of violation of the fundamental rights of an individual or a class of individuals who cannot approach the Court for justice, there is no reason why these applications of compensation which have been made for the enforcement of the fundamental right of persons affected by oleum gas leak under Article 21 should not be entertained.”[9]

There have also been cases decided by the High Court of various states that have upheld the right to environment. One of the earliest cases to do so was the case of V. Lakshmipathy v. State of Karnataka[10]. In this case, the Court held “The right to life inherent in Art 21 of the Constitution of India does not fall short of the requirement of quality of life which is possible only in an environment of quality where, on account of human agencies, the quality of air and 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.”[11] This clearly shows that Article 21 of the constitution also guarantees a right to environment under right to life.

In conclusion, India’s environmental litigation began after the Stockholm conference post which the 42nd Amendment that incorporated was introduced which mandated States and Citizens to protect and improve the environment under Article 48A and 51A(g). There were also a number of Supreme Court cases that held that the right to environment is a part of right to life and personal liberty under Article 21 and these helped accelerate environmental litigation in India.

[1] Bhaskar Chakarvarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND JUDICIARY, 48 Journal of the Indian Law Institute 99-105 (2006).

[2] The Constitution of India, 1950

[3] Bhaskar Chakarvarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND JUDICIARY, 48 Journal of the Indian Law Institute 99-105 (2006).

[4] 1985 AIR 652

[5] 1985 AIR 652

[6] 1991 AIR 420

[7] Ibid.

[8] 1987 AIR 1086

[9] Ibid.

[10] ILR 1991 KAR 1334

[11] Ibid.

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