Constitutional Remedies – Environment Law Notes

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  • Entries in List I, II and III.
  • List I – Entry 56 and 57
  • List II – Entry 17, 21 and 57
  • List III- Entry 17, 7A and 17B
  • Fundamental duties (Articles 48A, 51-A(g))
  • 21 – Right to life jurisprudence
  • 245 and 246 – distribution of powers between State and Parliament – Concurrent list – both have powers
  • Article 248 – Parliament has residuary powers
  • Article 249 – power of parliament to legislate with respect to matter in the State list in national interest (2/3’s majority in Rajya Sabha)
  • Article 250 – power of parliament to legislate with respect to matter in the State list (during emergency)
  • Article 251 – Inconsistency between laws – Parliament and State – Parliamentary act will prevail
  • Article 252 – Parliament power to legislate when 2 or more states consent
  • Article 253 – legislation for giving effect to international agreements
  • Article 254 – Inconsistency between laws made by Parliament and laws made by Legislature
    •  Parliament law will prevail over state law – subjects under list I or Concurrent List
    • Repugnant state law – if it  has been reserved for the consideration of the President – subject under Concurrent list – will prevail in the State
    • Proviso – nothing shall prevent Parliament – wrt same matter – any law amending, varying or repealing the law made by the legislature of the State
  • Constitutional (Forty Second) Amendment Act 1976 (Part IV – DPSP)
    • Article 48 – The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country
    • Article 51-A(g) – It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures

Fundamental Duties cases

K. Koolwal v. State of Rajasthan

L.K.Koolwal moves to the court in the matter of sanitation of Jaipur city. It is against the municipality and its failure to provide clean streets.

Article 51A – states that it is the duty of citizens, but in fact, it is also the right of citizens as it gives them a right to move to the court. Article 51A gives the right to move to the court for the enforcement of the duty cast on state, instrumentalities, agencies, departments, local bodies and statutory authorities created under the particular law of the state.

It is the primary duty of the municipal council to remove filth, rubbish, noxious odour or any offensive matter and financial inability cannot be a plea.

Mumbai Kamgar Sabha v Abdulbhai

Fundamental duties cannot be enforced by writs- they can be promoted only through constitutional methods – can be used for interpreting ambiguous statutes.

Sachinand pandey v. State of WB

Group of citizens challenged the location of a hotel on the ground that the construction would interfere with the flight path of migratory birds. The question raised is whether the government of WB has shown such lack of awareness of the problem of the environment in making allotment of land.

Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Article 48 and Article 51 A(g). When the court is called upon to give effect to DP and fundamental duties, the court may examine whether appropriate considerations are borne in mind and irrelevancies are excluded.

Right to Life and Right to live in a Healthy Environment

RELK v. State of UP

The case arose from haphazard and dangerous limestone quarrying practices in the Mussoorie hill range of Himalayas. Miners blasted out the hills with dynamite, extracting limestone from thousands of acres. Landslides killed villagers and destroyed their homes, cattle and agricultural lands.

The court prohibited blasting operations pending a review to determine if the mines were being operated in compliance with safety standards. Court-appointed an expert committee to assess the mines.

Most dangerous mines and those falling within the Mussorie city board limits be denied leases and their operations cease immediately.

Damador Rao v. S.O, Municipal Corporation of Hyderabad

The people living in a residential area challenged the attempt to convert open space in their vicinity into another residential complex.

The court noted that the owners of the area concerned can only use their property with the law and in conformity with the provisions of the developmental plan.

Protection of the environment is not only the duty of the citizen but it is also the obligation of the state and all other organs including the court. Enjoyment of life and its attainment and fulfilment guaranteed by Article 21 embraces the protection and preservation of nature’s gifts.

Slow poisoning by the polluted atmosphere caused by environmental pollution should also be regarded as amounting to a violation of Article 21. It, therefore, becomes the legitimate duty of the courts as the enforcing organs of constitutional objectives to forbid all action of the state and citizen from upsetting the environmental balance.

Subhash Kumar v. State of Bihar

Subhash Kumar wanted to carry away slurry from the Tata Iron & Steel Company’s ponds. Kumar tried various means to pressure the company into giving him business. When the company refused, he filed a PIL under Article 32 claiming that the slurry discharged was polluting the river and was a serious health risk.

Court stated that personal interest cannot be enforced through the process of this court under Article 32 of the constitution.

A person invoking the jurisdiction of court under Article 32 must approach this court for vindication of fundamental rights of the affected persons and not for vindication of personal rights. Right to life includes the right to enjoy unpolluted air and water.

Right to Livelihood

Pradeep Kishan v. Union of India

Petitioner is an environmentalist – filed a petition under Article 32- challenging legality and constitutionality of an order which permitted collection of tendu leaves from sanctuaries and NP’s by villagers living around the boundaries – object of maintenance of traditional rights.

Petitioner contends that this is ultra vires to the provisions of Wildlife Protection Act. Petition denied

C. Mehta v. Union of India – 1996

M.C. Mehta asked the SC to enforce a plan for Delhi which contemplated shifting of hazardous industries away from the city. Environmental pollution in Delhi – relocation of 168 industries in Delhi – compensation package for workers

Right to know

Article 19(1)(a) – close link to article 21- people have a right to know with reference to a policy decision that impacts environment and health.

Bombay Environment Action Group v. Pune Cantonment

Petitioners wanted that they should be granted either inspection or copies of applications made for building permissions, plans accompanying such applications and official proceedings relating to permissions including renewals. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a).

Research Foundation for Science Technology v. UOI (2005-sc)

Right to information and community participation important with respect to matters relating to environmental pollution.

Right to know – since people are most affected by it and right to know is a precursor to right to information.

Right to practice any profession

Art. 91(1)(g) – right to practice any profession or to carry on any occupation, trade or business  – Art. 19(1)(6) – reasonable restriction can be  imposed by the State in the interest of the general public

Abhilash Textile v. Rajkot Municipal Corporation

The petitioners are discharging dirty water from the factory on public road/ public drainage without purifying the same, thereby causing damage to public health. The petitioners contended that they are carrying on the business since last about 20 to 25 years and the industry is providing employment to a lot of families.

The contention that the petitioners are carrying out the business since past 20-25 years has no merit. Business activity that results in general public health hazard cannot be carried out. It is not an absolute right.

C. Mehta v. Union of India (1988-SC)

PIL filed for restraining the respondents from letting out the trade effluents into the Ganga river till they put up necessary treatment plants for treating the trade effluents. If the tannery does not set up a primary treatment plant, it will have to stop its business.

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