A preliminary reading of Part III of the Constitution of India does not provide for any specific and explicit provision that guarantees the right to healthy environment. In order to fill this gap, the Parliament thought it necessary and for the same Article 48A and 51 (A) (g) were inserted in the Constitution of India. The constitutional amendment act which was parked in the year 1976 was responsible for inserting these provisions relating to environmental protection and it reinforced the need of environmental protection considerations and it led to the development of the Indian framework of environmental jurisprudence.
They are persisted a doubt with regard to the enforceability of these provisions which in turn compelled the need of making it constitutional duty of the state to protect and preserve the environment. This innovation was welcomed as a measure adopting multi-dimensional and rights-based approach that was extensively endorsed in Stockholm Conference. It was significantly later that Indian judiciary began to pronounce that any “encroachment of right to have a healthy environment will affect right to life under Article 21”. The Indian judiciary has made words time and again in order to expand the scope of fundamental rights during the incorporation of right to healthy environment within the purview of fundamental rights. These attempts are being labelled as judicial activism or overarching-reach of judicial powers in the matters related to public policy. In a decision of the Honourable Supreme Court construed the right to clean environment and a fundamental offshoot of constitutional right under Article 21. The Apex Court moved a step ahead to rule that any violation impairing the citizens’ enjoyment of this expanded right would entitle him to seek recourse by approaching and invoking writ jurisdiction of the Apex Court under Article 32 of the Constitution of India. the same was reinforced in another decision of the Honourable Supreme Court in which right to enjoy the ecological balance was read in consonance with the right to life entitled under article 21. Moreover, Justice Saghir Ahmed affirmed, in the case of M.C. Mehta v. Kamal Nath, that “any disturbance of the basic environment elements, namely, soil, water, air” would pose danger to the meaning of ‘life’ as understood within the purview of right to life embodied in Part III.
The constitutional framework of India upholds the human rights approach which has been conferred through Part III and IV of the Constitution and the same is considered as innovative and rare. The provisions of the Constitution of India provided under Article 21, 51 (A) (g) and 48A not only confers a duty on the state but it also mandates on the citizen I duty to preserve and protect the environment.
Through the formulation of jurisprudential principles, the social economic right to environment by virtue of Article 21 has been formulated by the Indian judiciary. The case of Rural Litigation Entitlement Kendra v. State of Uttar Pradesh is one of the benchmark decisions which was based on creative interpretation by the judiciary and it led to subsequent unravelling of jurisprudential principles. The activist approach of Apex Court was witnessed in this case, the court read the Article 48A within the Right to Life and Personal Liberty under Article 21 of the Constitution of India. Right to life was recognised as the fundamental facet of the constitutional framework and within it included the right to live in a healthy environment of the citizens with minimum disruption to the ecological balance. The case was related to the mining operations occurring in the Mussoorie hills and many committees were set up for the examination and monitoring of the same. The court ordered against the mining operation and the lessee was directed to pay compensation in order to safeguard the right to healthy environment. The polluters pay principle’s touchstone is considered to be this case.
One Principle that the Indian judiciary has endorsed and relied upon is the ‘Polluter pays’ principle. This principle was adopted by the members of the OECD and was affirmed at the international front of environmental law frame. The Supreme Court has looked upon this principle as a rule which is within constitutional mandate provided by the legislature and also realized how crucial it is while dealing with environment legal frame of India. It was held by the court that principle of ‘polluter pays’ is authoritative and should be followed mandatorily in case where a person or entity is involved in harming the ecological balance by infliction through activities which are hazardous in nature, in such a case that person or rntity is responsible to make up for what is undone by compensating for the adverse effects that are brought upon to the environment even though reasonable care was taken by the ‘Polluter pays’ is based on the fundamental principle that the polluter is bound to take necessary action for limiting the pollution caused by action undertaken by the polluter. The case of M.C. Mehta v. Union of India recognized the importance of introduction of a policy that would impose liability against the person or industry engaging in hazardous activity and reinforcing the responsibility of person or industry to undertake remedial measures for rectifying the damage.
The Supreme Court, in the decision of T.N. Godavarman Thirumalpad (through K.M. Chinnappa) v. Union of India, asserted that the principle of sustainable development and precautionary principle. In this decision, the Court highlighted the significance of sustainable development for ensuring promotion of economic development without posing danger to the environment. The Court clearly acknowledged the duty that the citizens owe to future generation. The court noticed that these principles are germane in the context of anthropocentric principles that govern the environmental scheme of India. It was further observed by the court that when it comes to the application of Precautionary Principle puts the burden upon the government and its agencies to maintain precautionary measures, even in cases where the danger comprehended is supported by scientific uncertainty and when it involves serious danger of irreparable damage This principle was firstly discussed in in Principle 15 of Rio Declaration. This principle has been positively welcomed by Indian judges. For example In Narmada Bachao Andolan v. Union of India, the Court was of the view that the affects of the construction of a dam over Narmada river can be easily ascertained. The Apex Court undertook a limited approach with regard to precautionary principle and hesitated in extending the principle’s scope to non-industrial projects.
This principle has been declared to be elemental to the constitutional provisions concerning environment protection. This molded version deviates from the accepted standard and imposes the onus of proof on the polluter.
Another substantive aspect of environmental jurisprudence is ‘public trust’ doctrine which was adopted and relied on by the Supreme Court. The Supreme Court in M.C. Mehta stated that the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The issue related to the diversion of natural flow of water by a private motel. It was laid down that government agencies are the “trustee of resources” and any breach in their duty is a breach to the public trust doctrine.
