Constitutional Provisions for Environmental Protection

1. The text

(a) Directives and duties, added by the Forty-second Amendment, 1976.

• Article 48A: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”
• Article 51A(g): it is 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.”
• Article 47: the State’s primary duty to raise the level of nutrition and the standard of living and to improve public health. Article 39(b): ownership and control of the material resources of the community to be distributed to subserve the common good. Article 49: protection of monuments and places of national importance.

(b) Fundamental rights.

• Article 21: the right to life includes the right to a pollution-free environment (see section 2).
• Article 14: arbitrary grants of environmental clearances or leases of public resources can be struck down.
• Article 19(1)(g): the freedom of trade is subject to reasonable restrictions in the public interest under Article 19(6), which covers environmental controls and closure of polluting units.
• Articles 32 and 226: the routes for environmental PIL.

(c) Competence and implementation.

• The Forty-second Amendment moved “forests” and “protection of wild animals and birds” from the State List to the Concurrent List (entries 17A and 17B). Public health and sanitation, water and land remain State subjects; Parliament used Article 252 (resolutions of two or more States) for the Water Act 1974.
• Article 253: Parliament may legislate for the whole or any part of India to implement any treaty or decision of an international conference. The Air Act 1981 and the EPA 1986 rest on it, as implementations of the Stockholm decisions, and the Biological Diversity Act 2002 implements the CBD.
• Articles 243G and 243W, with the Eleventh and Twelfth Schedules (73rd and 74th Amendments, 1992): panchayats and municipalities may be given functions such as social forestry, minor forest produce, drinking water, public health, sanitation and protection of the environment. The Biodiversity Management Committees under the BDA work at this level.

2. Article 21 and the judicial principles

The principles in more detail.

1. Polluter pays. In Indian Council for Enviro-Legal Action (Bichhri village), chemical units that had poisoned groundwater with sludge were made liable for the cost of remediation, not only compensation to victims. Vellore applied the principle to tanneries in Tamil Nadu.
2. Precaution. Vellore stated three parts: the state must anticipate and prevent environmental degradation; lack of scientific certainty should not postpone measures; and the burden of proof is on the developer to show that the action is environmentally benign. Nayudu elaborated this and suggested the use of expert bodies.
3. Public trust. In Kamal Nath a lease of riverbed land for a motel in Himachal Pradesh was quashed: the state holds natural resources such as rivers, forests and the sea-shore as trustee for the public and cannot transfer them for private use.
4. Intergenerational equity: part of sustainable development; recognised in State of Himachal Pradesh v. Ganesh Wood Products (1995) and later cases.
5. Absolute liability: an enterprise engaged in hazardous activity is absolutely liable for harm, with no exceptions, and compensation correlates to the enterprise’s size and capacity.
6. Continuing mandamus: in Godavarman (order of 12 December 1996) the Court gave “forest” its dictionary meaning, applied the Forest (Conservation) Act to all forests whatever their ownership, and has supervised forest governance ever since through its Central Empowered Committee.

3. The National Green Tribunal

The Court itself suggested specialised environmental courts. The National Green Tribunal Act, 2010 set up the NGT, with judicial and expert members. Section 20 directs it to apply the principles of sustainable development, precaution and polluter pays. It hears civil cases involving a substantial question relating to the environment arising from the statutes in its Schedule I (including the Water, Air, Forest Conservation, Environment Protection and Biological Diversity Acts), with appeals to the Supreme Court. The Wild Life Act and Forest Rights Act are outside its Schedule.

4. Assessment

5. The IP connection

Two constitutional points reach into IP. First, Article 48A and the precautionary principle support section 3(b) of the Patents Act and section 29 of the PPV&FR Act, which exclude inventions and varieties harmful to the environment. Second, Article 253 is the source of power for the Biological Diversity Act, which regulates IP over Indian biological resources, and for laws implementing climate commitments that bear on technology transfer.

How this is examined

Likely long questions: “Discuss the constitutional mandate for environmental protection in India and the role of the judiciary,” “Explain the polluter pays and precautionary principles with Indian case law,” or “The public trust doctrine is part of Indian law. Discuss.” Short notes: Article 48A; Article 51A(g); Vellore; Kamal Nath; the NGT. Use the three-group structure, then the principles table, then the critique.