[Model Answer QP2022 GS2] “The most significant achievement of modern law in India is the constitutionalism of environmental problems by the supreme court”. Discuss this statement with the help of relevant case laws.

Introduction

Environmental constitutionalism is a relatively recent phenomenon at the junction of constitutional law, Human rights, international law and environmental law, it inculcates the recognition that the environment is a proper subject for protection in the constitutional text and this protection is similar to the rights granted to  human beings as part of their fundamental rights.

India was one of the signatories of Stockholm conference also known as magna carta of environmental law. To incorporate the principles of the treaty into our constitution 42nd amendment was made in 1976 which incorporated specially two Articles (Article 48 A and Article 51 A-(g)) relating to protection and improvement of environment where in the Constitution of India obligates the “State” as well as “Citizens” to “Protect and Improve” the environment.

Constitutionalism of environmental problems by the supreme court:

1. Article 21: A new era ushered in the post Maneka Gandhi period, the concept of right to life witnessed new developments and new dimensions were added to the interpretation of fundamental rights embodied in Article 21.
   1. In Francis Carolie Mulhin v. Administrator Union Territory of Delhi where Justice Bhagawati observed that “the right to life enshrined in Article 21 cannot be restricted to mere animal existence. Again the Apex Court in Chameli Singh v. State of UP held that the need for a decent and civilized life includes the right to food, water and a decent environment. In the process, the boundaries of the Fundamental right to life and personal liberty guaranteed in Article 21 were expanded to include environmental protection.
   2. In M.C. Mehta v. Union of India the Supreme Court once again impliedly treated the right to live in a pollution- free environment as a part of fundamental right to life under Article-21 of the Constitution.
2. Precautionary principle: The Indian Judiciary actively supports the Precautionary Principle. In the judicial pronouncement of Vellore Citizens Welfare Forum v UOI, 1996, the Court opined that sustainable development is the need of the hour. The court emphasized on the fact that there should be a balance between economic growth and protection of the environment. The Court opined that the Precautionary Principle was evolved because of lack of scientific certainty only, and the principle involves anticipating the harm the environment may suffer and acting on the basis of that.
3. Polluter pays principle: The Oleum Gas Leak case (M.C. Mehta vs.Union of India, the Court laid down that an enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise is absolutely liable to compensate for such harm and irrespective of all reasonable care taken on his account.
4. The principle of Public trust: This doctrine came up for consideration in the M.C. Mehta v.Kamal Nath (1997).  The flow of the river Beas was deliberately diverted because it used to flood Span Motels in the Kullu Manali valley in which a prominent politician’s family had a direct interest. The Supreme Court used the public trust doctrine in this case to restore the environment to its original condition. Applying the public trust doctrine, the Supreme Court canceled the lease of forest land granted in favour of Span Motels and the State Government was directed to take over the area and restore it to its original condition.
5. Inter-generational equity principle: In the case of State of Himachal Pradesh v. Ganesh Wood Products (1995), the court held that maintenance and preservation of forest, natural resources etc for future generation is a duty on the part of governments as well as on the citizens based on the concept of sustainable development and Inter-Generational equity principle.
6. Absolute liability principle: The concept of absolute liability evolved in India after the case of M.C Mehta vs Union of India (1987), famously known as Oleum Gas Leak case. After the Bhopal gas leak case many people lost their lives and are suffering from some of the fatal diseases through the generation and because of this there was an urgent need to develop a rule under strict liability which had no exceptions available to the defendant to escape from the liability.

Conclusion

Thus, it is evident that the Supreme Court is, at the present time, stretching the different legal provisions for environmental protection. In this way, the judiciary tries to fill in the gaps where there is laciness of the legislation. These new innovations and developments in India by judicial activism open the numerous approaches to help the country.