ABSTRACT

Environment plays a fundamental role in human life as well as in the development of society.
With budding technological progression and industrialization, the purity of the environment
has been in danger of extinction. The need to protect and improve the environment is so
compelling for the peaceful survival of mankind and other life forms on planet Earth that
right to environment has emerged as a human right. Over the last four decades, the Indian
Judiciary has fostered an all-embracing and pioneering approach towards environmental
rights in the country. Complex matters of environmental management have been resolved and
consequently a series of innovative procedural remedies have evolved to accompany this new
substantive right. The new environmental right is therefore championed as a legal gateway to
speedy and inexpensive legal remedy. The human right culture has percolated down to Indian
human right regime within a short period of time. An interdisciplinary approach to
environmental protection may be a reason for the operation of the right to healthy
environment. This has been undertaken through international environmental treaties and
conventions, national legislative measures and in Judicial Responses.

This paper commences with the varied ingredients of Indian environmental jurisprudence. A
highlight of efforts made by judiciary in skirmishing environment related problems is also
made. Ultimately, the authors throw light on the Indian experience of environmental law and
its resultant tool of the human right to live in a clean and healthier environment.
“The Sky is like Father the Earth is like Mother and the Space as their Son, 
the Universe consisting of the Three is like a Family and Any kind of damage done to any
one of the Three- Throws the Universe out of Balance”

“ON THE CONDUI T OF SUSTAINABILITY

.......ENVIRONMENTAL RIGHTS”

“We have not inherited this planet from our ancestors

But we have borrowed it from our children”

Introduction

Over the past 6 decades the right to a healthy environment has gained recognition faster than
any other human right. The rights protected by a right to healthy environment include
breathing clean air, drinking clean water, consuming safe food, accessing nature and knowing
about pollutants and contaminants that are released into the local environment.
Environmental rights basically mean access to the unspoiled natural resources that enable
survival, including land, shelter, food, water and air. They also include more purely
ecological rights, including the right for a certain beetle to survive or the right for an
individual to enjoy an unspoiled landscape. All the rights, be it political, civil or human rights
are equally important, and they are all interdependent.
Since the future of humanity depends on maintaining a habitable planet, effective measures to
protect the environment are crucial to any project for advancing human rights. In this sense
human rights rely ultimately on achieving a secure environment.1

RIGHTS AND ENVIRONMENT

1
Oxfords handbook on International Environmental Law, John G. Merrills, Pg. 664
For full development as human beings, exercise and enjoyment of Human Rights by all the
people is necessary. Human Rights and fundamental freedoms help us to develop our intrinsic
qualities, intelligence, talents and conscience to meet our material and spiritual needs.2
Environmental rights are human rights, as people's livelihoods, their health, and sometimes
their very existence depend upon the quality of and their access to the surrounding
environment. As a part of basic human right, individuals have a right to live in a healthy
environment, or to speak, of right to a generally satisfactory environment. 3 This is now a
proved principle that environmental rights are an extension of the basic human rights that
mankind requires and deserves. In addition to having the right to food, clean water, suitable
shelter, and education, having a safe and sustainable environment is paramount as all other
rights are dependent upon it. The desire to ensure access for all of Earth’s inhabitants to this
essential standard of living is the primary concern of Environmental rights. In the recent
years, the language of Rights and Environment law has emerged as a potential counterpoint
to the discretionary, flexible basis of much of environmental law and decision making.4
Beyond equal distribution and access to clean and sustainable resources, Environmental
Rights also include an additional obligation from those in the industrialized nations. It
requires us to act responsibly in our own use of natural resources, and to regulate our levels
of consumption in a more equitable manner.

THE ROOT OF THE PREDICAMENT

Due to the “modern world’s” values on material goods, most of the world’s inhabitants lack
these basic human and environmental rights. For now, the brunt of the environmental
consequences is experienced by people outside of the realm of consumerism. The increasing
rate of consumption and waste production in the modern world has an intense effect on those
in developing nations. The confounding amount of waste produced, due to rapid levels of
consumption, finds its way to impoverished nations for discarding, where lax environmental
regulations allow for cheaper disposal. For example, an increasing amount of waste produced
in the modern world comes in the form of e-waste, or electronic waste. This growing mass of
discarded cell phones, laptops, monitors, and tablets creates a heavy environmental burden
due to the bevy of toxic chemicals released when they are improperly disposed of. And, as is
often the case, they are shipped away for disposal. Environmental law and human rights law
2
National Human Rights Commission, Environment and Human Rights, Ashish Kothari and Anuprita Patel
3
The Oxford Handbook of INTERNATIONAL ENVIRONMENTAL LAW,Pg.664
4
Stuart Bell & Donald McGillivray, Environmental, online resource centre, Pg.13
have intertwined objectives and ultimately strive to produce better conditions of life on earth.
They both seek to tackle universal challenges that must often be solved at the same time at
the individual and global level.5 There are two broad strands of right that might be used as a
means of protecting the environment. The first concept is of the legal rights for the natural
environment such as trees, rivers, plants and geographical features. The second strand of
rights as a means of protecting the environment is more anthropocentric in nature- that is it is
used to protect human interests. Thus a right to bring a nuisance action may help to prevent
pollution of environment as well as protecting the private property rights.6

In the long evolution of the human race on this planet, a stage has been reached when,
through the rapid acceleration of science and technology, we have acquired the power to
transform our environment in countless ways and on an unprecedented scale. We see around
us growing evidence of human-caused harm in many regions of the earth: Dangerous levels
of pollution in water, air, earth and living beings;

• Destruction and depletion of irreplaceable life forms and natural resources;

• Major and undesirable disturbances in the earth’s climate and protective layers;
• Gross deficiencies, harmful to physical, mental and social health, in the living and working
environments of humans, especially in cities and industrial complexes.7
In the above context, it is important to recognize our dependence on the earth’s natural
resources. Natural resources are fundamental to all life forms: they are, much more than
money and economic infrastructure, the base of our survival. Life, livelihoods, culture and
society, are fundamental aspects of human existence – hence their maintenance and
enhancement is a fundamental human right. Destruction of environment and thereby of the
natural resources, is therefore, a violation or leads to the violation of human rights – directly
by undermining the above aspects of human existence, or indirectly by leading to other
violations of human rights, for example through social disruption, conflicts and even war.
There are three main dimensions of the inter-relationship between human rights and
environmental protection:

5
International environmental research centre, Geneva Switzerland
6
Stuart Bell & Donald McGillvary, Environmental line, online resource centre, Pg.14
7
National Human Rights Commission, Environment and Human Rights, Ashish Kothari and Anuprita Patel
  The environment as a pre-requisite for the enjoyment of human rights (implying that
human rights obligations of States should include the duty to ensure the level of
environmental protection necessary to allow the full exercise of protected rights);
 Certain human rights, especially access to information, participation in decision-
making, and access to justice in environmental matters, as essential to good
environmental decision-making (implying that human rights must be implemented in
order to ensure environmental protection); and
 The right to a safe, healthy and ecologically-balanced environment as a human right
in itself (this is a debated approach).

Environmental problems in India arise from a number of proximate or surface causes:

• Economic growth has necessitated a corresponding expansion in energy availability for
industrial, agriculture and domestic purposes. There has, till recently, been little regulation of
the environmental impacts of such expansion.
• The level of environmental literacy is low, especially amongst decision makers, and there is
a gross under-valuation of the economic and material values of the environment.
• The policies and programmes of the Central and State Governments have not incorporated
environmental principles, with the result that many development projects have been
conceived for short-term gains without considering their long-term ecological and social
impacts.
• The growing human and animal populations are making increasing demands on natural
resources resulting in the exploitation of resources in an unsustainable manner.
• The general indifference of the industrial sectors on aspects of environmental safety and
protection has led to the spread of avoidable air, water and soil pollution.
• The inability to convert the oft-repeated rhetoric of growth with equity into reality and the
neglect of the livelihood needs of the adivasis and rural people have resulted in persistence of
real poverty (including scarcity of resources).
• The uncontrolled consumerism of the upper classes, which seem completely oblivious to the
limits of resource use, has put serious pressure on natural resources.
But while these are the proximate or immediate causes, the fundamental factors behind the
crisis are deeper. This environmental crisis is causing enormous disruption of lives and
livelihoods, threatening the collapse of its entire life-support system. The poor and
disadvantaged classes of humans and the other non-human species unfortunately have to bear
the main brunt of these environmental problems. Ironically, the crisis is rooted deep in
social, economic and political structures, more specifically in relations of inequity of three
kinds
1. Intra-generational inequity: Hierarchical relations between classes, castes, races,
communities, countries and sexes, within one generation, create conditions for ecological
destruction. Those in power are able to dictate the use of the majority of resources regardless
of consequences on others, while forcing the powerless to depend on and further degrade
meagre resources. This has been the case with land, for instance, in societies with a
tremendously skewed ownership pattern.
2. Inter-generational inequity: Entire generations of human beings, as yet unborn, who will
depend on the same resources that we do, have no voice in decisions regarding these
resources. This generation’s overexploitation of water, land, soil, and biodiversity, will leave
little for future generations, except abundant toxic wastes, barren wastelands, polluted water
bodies, and a handful of pest species that have thrived on human wastes.
3. Inter-species inequity: Humanity shares the earth with a mind-boggling diversity of life-
forms, perhaps up to 50 million species of plants, animals, and micro-organisms. This
explosion of biodiversity is not only a source of wonder, but the very bedrock of human
existence. Yet, simply because we have the might we have considered it our right to colonise
ever-increasing spaces on earth, driving out thousands of species. Over one-fourth of all
biodiversity is threatened with extinction in the next few decades, unless we can drastically
change the way we deal with the earth.

ANTHROPOCENTRIC TO ECOCENTRIC APPROACH

For last few decades there has been witnessed a worldwide faction for the protection and
preservation of the environment. The first International conference on Human Environment
was held in 1972 at Stockholm and thereafter in the years 1982 at Nairobi, in 1992 at Rio de
Janeiro, in 2002 at Johannesburg and in 2012 at Rio de Janeiro. The central argument of these
conferences was to shield and improve the human environment for the present and future
generations.
The natural resources of the earth, including the air, water, land, flora and fauna, especially
representative samples of natural ecosystems, must be safeguarded for the benefit of the
present and future generations through careful planning or management.8
The Supreme Court of India has made a comprehensive exodus from the anthropocentric
approach and advocated for the espousal of ecocentric approach. This approach stresses on
8
Principle 2 of Stockholm Conference.
the intrinsic values of all the naturally present things and that they, if preserved and protected
would help to preserve and protect other forms of life on earth.
Elucidating the need of ecocentric approach, the SC has clarified that: ecocentric approach to
environment stresses the moral imperatives to respect the intrinsic value, interdependence and
integrity of all forms of life. Ecocentrism supports the protection of all life forms, not just
those which are of value to humans or their needs and underlines the fact that humans are not
just one among the various life forms on earth.9

THE CONSTITUTIONAL AND JUDICIAL RETORT

India has a large body of legislative measures relating to environmental issues. The backbone
of these is relevant provisions in India’s Constitution. The Constitution of India, 1950, did
not include any specific provision relating to environment protection or nature conservation.
Presumably, the acute environmental problems being faced now in the country were not
visualized by the framers of the Constitution. However, the past five decades have witnessed
two major developments in this connection. The first development took place when the
Constitution (Forty-second Amendment) Act, 1976, was adopted in the mid-seventies. The
Indian Constitution, under Part XI, provided for legislative relations between the centre and
the state governments.10 Specific provisions relating to certain aspects of the environment,
more especially for the protection of the forests and wildlife in the country, were incorporated
in Part IV- Directive Principles of the State Policy and List III (Concurrent List) of the
Seventh Schedule of the Constitution. 11

As a result, the Constitution has now the following provisions specifically relating to
environment protection and nature conservation:

Part IV: Directive Principles of State Policy (Article 48A): Protection and improvement
and safeguarding of forests and wild life: The State shall endeavour to protect and improve
the environment and to safeguard the forests and wild life of the country.

Part IV-A: Fundamental Duties (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 wild
life, and to have compassion for living creatures.
9
T.N. Godavarman Thirumulpad v. UOI, (2012) 2 SCC 362
10
Articles 245 to 255 deals with Legislative Relations between the Centre and the States
11
S.C. Shastri, Eastern Book Company , Pg. 57
SEVENTH SCHEDULE (Article 246)
List III - Concurrent List
17: Prevention of cruelty to animals
17-A: Forests
17-B: Protection of wild animals and birds.

20-A: Population Control and Family Planning.12

The second major development 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’. Some examples:
• In Francis Coralie Mullin vs. Union Territory13, the Supreme
Court held that “The right to life includes the right to live with human dignity and all that
goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and
shelter….”
• In Shanti Star Builders vs. Narayan Totame1990(1)SCC 520, the Supreme Court held
that right to life is guaranteed in a civilised society would take within its sweep the right to
food, the right to clothing, the right to decent environment and a reasonable accommodation
to live in.
• In Subhash Kumar vs. State of Bihar14, the Supreme Court held that right to life is a
fundamental right under Art. 21 of the Constitution and it include the right to enjoyment of
pollution free water and air for full enjoyment of life. If anything endangers or impairs that
quality of life in derogation of laws a citizen has recourse to Art.32 of the Constitution for
removing the pollution of water or air which may be detrimental to life.
• In M. C. Mehta vs. Union of India & Ors.15 (the Oleum Gas Leak case), the Supreme
Court established a new concept of managerial liability – ‘absolute and non-delegable’ – for
disasters arising from the storage of or use of hazardous materials from their factories. The
enterprise must ensure that no harm results to anyone irrespective of the fact that it was
negligent or not.
• In Vellore Citizens Welfare Forum vs. Union of India,16 AIR 1996 SC 2715, the

12
S.C. Shastri, Eastern Book Company,Pg. 57
13
(1981) 2 SCR 516
14
(1991) 1 SCC 598
15
(1987) 1 SCC 395
16
(1996) 5 SCC 647: AIR (1996) SC 2715
Supreme Court held that industries are vital for the country’s development, but having regard
to pollution caused by them, principle of ‘Sustainable Development’ has to be adopted as
the balancing concept. ‘Precautionary Principle’ and ‘Polluter Pays Principle’ has been
accepted as a part of the law of the country.17
• In Indian Council of Enviro-Legal Action vs. Union of India, 18(the Bichhri pollution
case), following the decision in the Oleum Gas leak case and based on the polluter pays
principle, the polluting industries were directed to compensate for the harm caused by them
to the villagers in the affected areas, specially to the soil and to the underground water.
• Enunciating the doctrine of ‘Public Trust’ in M. C. Mehta vs. Kamal Nath19, the SC held
that resources such as air, sea, waters and the forests have such a great importance to the
people as a whole that by leasing ecologically fragile land to the Motel management, the
State Government had committed a serious breach of public trust.

Such wide interpretations of Article 21 by the Supreme Court have over the years become the
bedrock of environmental jurisprudence, and have served the cause of protection of
environment (and to a lesser extent, of livelihoods based on the natural environment). Adding
to this is a large number of laws relating to environment, enacted over the last few decades.
The following amendments in the Indian Constitution, for ensuring environment protection
and conservation of Biological diversity are indispensable .These include:
1. Recognition and incorporation of Environmental Rights as separate and independent
Fundamental Rights in the Constitution of India. These follow from the above-mentioned
interpretation to the term ‘Right to Life’, as given by the Supreme Court. This could be

17
Precautionary Principle as interpreted by the Supreme Court means that the required environmental
measures should be taken by the State and statutory authorities and the lack of scientific certainty cannot be a
ground for postponing such measures where there are serious threats to ecology. That the State and statutory
authorities must anticipate, prevent and address the causes of environmental degradation and the ‘onus of proof’
is on the industry to show that its actions are environmentally benign.
Polluter Pays Principle as interpreted by the Supreme Court means that the absolute liability for harm to the
environment extends not only to compensate the victims of pollution but also the cost of restoring the
environmental degradation. Remediation of environment is part of the process of ‘Sustainable Development’
and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the
damage to the environment.
18
(1996) 3 SCC 212
19
(1997) 1 SCC 388
further specified to include right to clean drinking water, and to a clean and pollution-free
environment.
2. Replacement, within the Directive Principles of State Policy, of the term ‘forest’ by the
term ‘life supporting natural ecosystems’. The reason for this suggestion is that the Courts
and other authorities, including the forest departments, have been interpreting the term forest
to mean land with trees. As a result, land without trees is not considered as a forest and there
is a lack of interest in protecting other important ecosystems such as grasslands, deserts,
marshes, mangrove, etc. With the better understanding of these diverse ecosystems and their
importance to humankind there is a need to preserve them.

ENVIRONMENTAL RELATED LAWS AND POLICIES IN INDIA

1. The Indian Forest Act, 1927
2. The Prevention of Cruelty to Animals Act, 1960
3. The Water (Prevention and Control of Pollution) Act, 1974, amended 1988
4. Forest (Conservation) Act, 1980, amended 1988
5. The Air (Prevention and Control of Pollution) Act 198, amended 1987
6. The Environment (Protection) Act, 1986, amended 1991-This is an Act to provide for the
protection and improvement of environment and for matters connected therewith with the
following key rules/notifications:
• Declaration of Coastal Stretches as Coastal Regulation Zone (CRZ), 1991, amended 2001
• The Scheme on Labelling of Environment Friendly Products (ECOMARK), 1991
• Eco-sensitive Zone (a series of notifications declaring specific sites)
• Environment Impact Assessment Notification, 1994, amended 2002
• The Rules for the Manufacture, Use, Import, Export and Storage of Hazardous micro-
organisms genetically engineered organisms or cells, 1989
• Hazardous Substances Management (a series of Rules dealing with municipal solid wastes,
batteries, recycled plastics, chemical accidents, hazardous micro-organisms and genetically
engineered organisms/cells, hazardous chemicals, biomedical wastes, and other hazardous
wastes).
• Noise Pollution (Regulation and Control) Rules, 2000
7. The Forest Policy, 1988
8. The Public Liability Insurance Act, 1991, amended 1992
9. National Conservation Strategy and Policy Statement on Environment and
Development, 1992
10. The National Environment Tribunal Act, 1995
11. The National Environment Appellate Authority Act, 1997
12. The Wild Life (Protection) Amendment Act, 2002
13. The Biological Diversity Act, 2002
14. The Right to Information Act 2005
15. Scheduled Tribes (Recognition of Forest Rights) Bill 2005
16. National Green Tribunal Act 2010

PUBLIC INTEREST LITIGATION AND ENVIRONMENTAL PROTECTION

The growing threats to our environment through developmental activities have created an
unprecedented crisis. It has resulted in hazards for decent and healthy environment which is
so crucial for human existence. The public interest litigation (PIL) in India has essentially
emerged through the legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such legal wrong or legal
injury or illegal burden is threatened and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially or economically disadvantaged
position , unable to approach the court for relief, any member of the public can maintain an
application for appropriate direction, order or writ in the High Court under Article 226 and in
case of breach of any fundamental right of such person or determinate class of persons, in this
court under Article 32 seeking judicial redress for the legal wrong .or injury caused to such
person or determinate class of persons.20The Indian judiciary has adopted the modus operandi
of public interest litigation for the cause of environmental protection in many cases. The
Supreme Court and High Courts have sheltered the inhibitions against refusing strangers to
present the petitions on behalf of poor and ignorant individuals. The basic ideology behind
adopting PIL is that access to justice ought not to be denied to the needy for the lack of
knowledge or finances. In PIL a public spirited individual or organization can maintain
petition on behalf of poor & ignorant individuals. In the area of environment protection, PIL
has proved to be a very effective tool. Supreme Court has stated in context of Water pollution
problems, particularly discharging noxious, poisonous and polluting matter into rivers should
be dealt very strictly. It must be stopped altogether as water is the elixir of life and river
valleys have been the cradles of civilization. The cost of checking pollution is irrelevant

20
Indian Journal of International Law
looking to the widespread ramifications of water-borne diseases. Statutory provisions must be
strictly enforced and authorities concerned must implement them faithfully.21

CONCLUSION

Human’s capacity to transform its surroundings, if used wisely and with respect to the ways
of nature, can bring to all communities the opportunity to enhance the quality of life.
Wrongly or heedlessly applied, or applied in iniquitous ways, the same power can do
incalculable harm to human beings and their environment. Dangerous levels of pollution have
caused unprecedented and unaccountable harm to human beings, animal life, vegetation
cover, living creatures. Over exploitation of forests have also destroyed natural soil
conservation, damaged water resources and natural composts natural beauty. It has also
resulted in increased release of carbon dioxide in the air, thereby creating the greenhouse
effect. Emission of Green House Gases has added to global warming and change in climatic
pattern throughout world. Being the most active Judiciaries in the world, Indian Supreme
Court has created a landmark in the quest of international Judicial Activism by developing
the concept of right to healthy environment as a part of right to life under Article 21 of the
constitution.

Rights play a very important role in any deliberations about law and morals, but they raise
theoretical issues that need elucidation. Fundamental Rights guaranteed in Indian
Constitution and all the Environmental values and rights may be constitutionalised either
explicitly by amending the constitution or implicitly by interpreting the existing
constitutional language.

21
M.C Mehta v. UOI (Ganga Pollution Case) (1988) SCC 471