Constitutionalization of Environmental Issues

Posted 21 May 2024

4 min read

Why in the news?

The Supreme Court (SC), in a recent judgment, stated that the right to be free from the adverse effects of climate change should be recognised by Articles 14 and 21 of the Constitution.

Powers of Supreme court to protect environmental rights under the Constitution

Article 32: SC can issue directions, orders or writs to protect fundamental rights (High Courts can do the same under Article 226)
- This can be viewed in combination with Article 13(2) which prohibits the State from making any law which takes away or abridges the fundamental rights.
Article 142: SC can pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Other SC judgements regarding constitutionalization of environmental issues

Rural Litigation and Entitlement Kendra vs. State (1988): Recognised the right to live in a healthy environment as part of Article 21 of the Constitution.
M.C. Mehta vs. Union of India (1987): Treated the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the Constitution.

Virender Gaur vs. State of Haryana (1995): Stated that protection and preservation of the environment, ecological balance free from pollution as part of Article 21.
T.N. Godavarman Thirumulpad vs Union Of India & Ors (1996): Expanded ‘forest’ meaning to preserve green expanses, irrespective of their nature, classification or ownership.
Vellore Citizens Welfare Forum vs. Union of India (1996): Observed that “the Precautionary Principle” and “the Polluter Pays Principle” are essential features of “Sustainable Development.”

Other Constitutional provision regarding Environment

Article 48A: State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
Clause (g) of Article 51A: Makes it the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Challenges in implementation

Judicial delays: The overburdened judicial system can result in lengthy delays in resolving environmental disputes and cases, affecting timely compliance and enforcement.
Difficulty in identifying polluters: Pollution can be caused by a chain of activities, making it challenging to identify the source.
Development and environment conflict: Often the environmental law and ruling come in conflict with the development for ex-construction of infrastructure projects.
Difficulty identifying and addressing risks and environmental impacts: Of development projects and industries due to lack of clear provisions.
Weak monitoring: Regulatory bodies such as State Pollution Control Boards suffer from insufficient funding, lack of modern equipment and infrastructure etc. to monitor compliance.
Lack of public awareness and sensitisation: They are unaware of their right and duties towards the environment.

Way forward

Effective implementation: The government can set up more separate machinery, like the National Green Tribunal, to reduce the delays that are hindering implementation.
Global action: As environment concern often not confined to boundaries, commitment by various countries such as in Paris agreement should be fulfilled.
Legislation regarding climate change: As said by the SC in M.K. Ranjitsinh and Others v. Union of India case there is need for umbrella legislation which relates to climate change and the attendant concerns.
Strengthen institutional capacity: by allocating adequate financial resources and investing in capacity building of environmental agencies.
Rights awareness: The European Court of Human Rights ruling supported a citizen lawsuit against the government for climate change inaction. Such cases can generate awareness globally.