Fortifying ecofront

Can existing constitutional safeguards adequately address the environmental concerns?

By Samar Singh
Published: Tuesday 15 January 2002

-- (Credit: Kumar)Environment protection as it exists today is more in the nature of response to a public outcry over government apathy. When the Indian law makers fashioned the constitution, little did they envisage the need for environmental legislation. The adoption of the great political document in 1950 was, therefore, sans any specific provision relating to environment protection or nature conservation. But, with the next few decades witnessing a growing public outcry about the intensifying problem, efforts were made to address some of these concerns in principle. Consequently, certain aspects relating to environment were broadly incorporated in the framework of the Constitution in 1970s and 1980s. Two major developments in this connection deserve mention. The first was the enactment of 42nd Amendment to the Constitution in 1976 which provided for certain special provisions to address environmental concerns. Issues relating to certain aspects, particulary for the protection of forest and wild life, finally found a niche in the Directive Principles of State Policy, the Fundamental Duties and in the Concurrent List. While the state was expected to make endeavours to protect and improve the environment and to safeguard the forests and wildlife in the country, it was regarded as a fundamental duty of every Indian citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for the living creatures. Also, protection of forests and wildlife became a part of the Concurrent List.

Though these constitutional safeguards marked a new beginning in the realm of environment protection, the key word 'environment' did not find specific mention in legislation for the next 10 years. Its absence in any of the lists of the Seventh Schedule of the Constitution was viewed by environmentalists as a major policy slip. As a result, a second major development took place with the enactment of the Environment (Protection) Act 1986. However, this was in pursuance of national obligations arising from certain international conventions and treaties to which India is a party. But what exists today on paper reflects a myopic vision and a grossly inadequate response to a mounting problem.

Apart from these constitutional developments, there has been the jurisprudence arising from certain remarkable judicial pronouncements in recent years, more specially relating to Article 21 of the Constitution dealing with 'the Right to life'. The rather liberal interpretation of Article 21 by the Supreme Court in a number of cases has become the bedrock of environment jurisprudence in India and has served the cause of enviroment protection in the country very significantly.

Despite the aforesaid major developments, the environmental conditions have definitely deteriorated and worsened all over the country due to several aggravating factors. This is adversely affecting the quality of life of the people and eroding the very foundations of the national economy as well as national security. The situation is compounded by slack and inadequate enforcement. Moreover, neither the executive nor the legislative organs of the state have risen to the challenge. In such a scenario, there is a strong case, in the larger public interest, for further strengthening the constitutional safeguards for ecoprotection. To this end, certain amendments to the Constitution are essential. The Supreme Court has given wide and liberal interpretation to the term 'the Right to life', keeping in view the growing crisis that is threatening the vitals of the life supporting systems on which human existence itself depends. But it has now become necessary to recognise and incorporate certain Environmental Rights, as separate and independent Fundamental Rights, in the Constitution of India. These are the 'Right to clean drinking water' and the 'Right to clean and pollution free environment', especially in relation to air, water and other life supporting natural ecosystems, such as forests, rivers and lakes.

In the existing Directive Principles, it is necessary to add the words 'life supporting natural ecosystems' so that it reads: 'The State shall take suitable steps by legislation or in any other way, to protect and improve the environment and to safeguard the life supporting natural ecosystems such as forests, rivers, lakes, and wildlife.' In much same manner, the Fundamental Duties should incorporate the words 'life-supporting natural ecosystems'. The main justification for this proposal is the fact that the courts and other authorities, including some forest departments, have been interpreting the term 'forest' to mean land with tree growth. As a result, there is a general lack of interest in protecting other important natural ecosystems, such as grasslands, wetlands, mangroves and arid areas, which have great ecological value and are vital for the livelihoods of the local people.

With the 73rd and 74th Amendments to the Constitution, the role of Panchayat has become very important in the rural setting. Likewise, in respect of urban areas, the Municipalities have a crucial role. These are the grassroot legal entities and they have to assume specific responsibility for environmental matters as well. Currently, this is not clearly laid down in the articles which stipulate the powers, authority and responsibilities of the Panchayats and the Municipalities. It is essential that the preparation of plans for economic development and social justice by both these bodies should be with due regard to ecological aspects and to protect the environment, including life supporting natural ecosystems such as forests, rivers and lakes and wildlife. Further, it is necessary to add 'protection of environment and promotion of ecological aspects' in the Eleventh Schedule relating to the Panchayats. In respect of Municipalities, such provision already exists in the Twelfth Schedule of the Constitution.

At present, 'the Right to life' under Article 21 of the Constitution is enforceable only against the State and not against any private party. As a result, even the writ jurisdiction of the higher court (under Article 32 and 226) is unable to provide remedy by way of payment of compensation in cases where the culprits are private parties. The only remedy available is a suit for damages in a civil court, which is time-consuming, cumbersome and costly. This is undoubtedly a serious shortcoming and suitable amendments have to be made in the Constitution to empower the Supreme Court and the High Courts to grant compensation in cases involving violation of 'the Right to life'. There should be a specific provision in the Constitution requiring the Government to prepare annually a State of the Environment Report, somewhat like the Audit Report under Article 151 of the comptroller and auditor general relating to the accounts, which should be submitted to the President of India and to be placed before both the Houses of Parliament. The necessity and relevance of this is self-evident and needs no elucidation.

The working of the Indian Constitution is currently being reviewed by the National Commission appointed by the Government, under the chairmanship of Justice M N Venkatachalaih, former Chief Justice of the Supreme Court. While the commission seems to have gone into various aspects of the working of the Constitution over the past five decades, matters relating to environment protection and nature conservation had not engaged its attention until recently, when two committed organisations -- The Foundation for Ecological Security and law-e -- got together and prepared a paper on the subject for the consideration of the Commission. It is hoped that this will be supported and endorsed by all those who care for nature and the environment.

Samar Singh is a former director of World Wide Fund

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