Health and the Environment

Article 48A, inserted by the Forty-second Amendment, is headed Protection and improvement of environment and safeguarding of forests and wild life, and provides that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."

Article 51A(g), a fundamental duty and also inserted in 1976, places the corresponding duty on the citizen. Together they are what a court points to when it is asked where in the Constitution the environment is to be found, and the answer is that until 1976 it was not there at all.

Emergency medical treatment

Facts. Pt. Parmanand Katara v. Union of India, 1989 AIR 2039, 1989 SCR (3) 997, (1989) 4 SCC 286, decided 28 August 1989. The petitioner filed a writ petition in the public interest on the basis of a newspaper report about a scooterist knocked down by a speeding car. The injured man was taken to the nearest hospital, where the doctors refused to attend on him and said he should be taken to another hospital some twenty kilometres away which was authorised to handle medico-legal cases. He died before he could be taken there.

Held. There is an obligation on the State to preserve life. Every doctor, whether at a government hospital or otherwise, has a professional obligation to extend his services to protect life, and all government hospitals and medical institutions are to provide immediate medical aid in all cases. The Court also dealt with the practical reason doctors gave for hesitating, and directed that a medical professional should not be summoned unless his evidence is necessary and should not be made to wait and waste time unnecessarily.

Why it matters. It is the clearest case of article 21 imposing a positive duty rather than a restraint. The State was not accused of killing anybody. It was held responsible for a system in which a dying man was turned away because of a rule about jurisdiction over medico-legal cases. Note also the second half of the holding: the Court identified the real obstacle, which was the doctor's fear of police and court entanglement, and removed it. A right that ignores why people do not comply achieves little.

The health of a worker

Facts. Consumer Education and Research Centre v. Union of India, 1995 AIR 922, (1995) 3 SCC 42, decided 27 January 1995. The petition concerned the hazards of the asbestos industry and the disease asbestosis suffered by workers in mines and asbestos factories, and sought the adoption of stricter permissible exposure limits and proper medical monitoring of workers.

Held. "The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery." Compelling economic necessity to work in a hazardous industry "should not be at the cost of the health and vigour of the workman". The Court therefore held "that right to health, medical aid to protect the health and vigour to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles", and that continued treatment during service or after retirement is "a moral, legal and constitutional concomitant duty of the employer and the State".

Why it matters. Two things. First, the right extends after retirement, which is what makes it expensive and therefore real. Second, look at how the holding is expressed: article 21 "read with" four directive principles. That formula is the whole method of this chapter in one line, and quoting it is worth more in an answer than describing it.

A clean environment

Facts. Subhash Kumar v. State of Bihar, 1991 AIR 420, 1991 SCR (1) 5, (1991) 1 SCC 598, decided 9 January 1991. The petitioner alleged by way of public interest litigation that West Bokaro Collieries and the Tata Iron and Steel Company were polluting the river Bokaro by discharging sludge and slurry from their washeries, making the water unfit for drinking and irrigation.

Held. The right to live includes the right to the enjoyment of pollution-free water and air, and a citizen has a right to invoke article 32 for the removal of pollution. But the petition failed. There was no material to substantiate the allegations, and the Court held the petition had been brought not in the public interest but for the petitioner's personal interest. Public interest litigation should be resorted to by a person genuinely interested in the protection of society; a personal interest cannot be enforced in the garb of public interest litigation, and entertaining petitions that satisfy a personal grudge is an abuse of the process of the court, which it is the duty of the court to discourage.

Why it matters. Students cite this case for the first half and stop, which gets the case exactly half right. Subhash Kumar is simultaneously the leading authority for the environmental content of article 21 and one of the leading warnings about the abuse of public interest litigation, and the petitioner lost. Saying so is what distinguishes an answer written from the report from one written from a list of case names. The point is developed in [Public Interest Litigation].

The principles the Court brought home

Facts. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, (1996) 5 SCC 647, decided 28 August 1996. Tanneries in Tamil Nadu were discharging untreated effluent, damaging agricultural land and contaminating water.

Held. Sustainable development is to be accepted as a balancing concept, and "the Precautionary Principle and the Polluter Pays principle are essential features of Sustainable Development". Both "have been accepted as part of the law of the land". In the context of municipal law the precautionary principle means, in the Court's own numbering:

1. Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation.
2. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as the reason for postponing measures to prevent environmental degradation.
3. The onus of proof is on the actor or the developer or industrialist to show that his action is environmentally benign.

The polluter pays principle means that 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", so that remediation of the damaged environment is itself part of sustainable development.

Why it matters. Item (iii) is the one to learn. The burden of proof is reversed. Ordinarily a person complaining of harm proves it; here the developer must prove the absence of harm. That single sentence changes the practical outcome of most environmental litigation, and it is why the precautionary principle is more than a slogan.

Absolute liability

Facts. M.C. Mehta v. Union of India, 1987 AIR 1086, 1987 SCR (1) 819, (1987) 1 SCC 395, decided 20 December 1986. Oleum gas escaped from a caustic chlorine plant of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi, shortly after the Bhopal disaster.

Held. The Court laid down the rule of absolute liability for an enterprise engaged in a hazardous or inherently dangerous activity: such an enterprise owes an absolute and non-delegable duty to the community, and if harm results it is liable to compensate, without the exceptions the nineteenth century English rule of strict liability allows. That English rule, which every torts course knows by the name of the case that settled it, is not cited here: its report has not been read for this book, and the point taken from M.C. Mehta is what the Indian rule does differently, which is to remove the exceptions.

Why it matters. It is the domestic origin of the polluter pays principle that Vellore later described as part of the law of the land, and it shows the Court legislating a rule of liability in a writ petition under article 32. Whether that is a proper use of the jurisdiction is the argument in [Continuing Mandamus and Judicial Guidelines]; that it happened is not in doubt.

A worked example

A State Pollution Control Board grants consent to a dyeing unit to discharge treated effluent into a canal used for irrigation. Farmers downstream find their crops failing. The Board says there is no conclusive scientific study linking the discharge to the crop failure, and that consent cannot be withdrawn without one.

Step one, what right is engaged? On Subhash Kumar, the right to life in article 21 includes the enjoyment of pollution-free water and air, and a citizen may move the court under article 32 for the removal of pollution.

Step two, which forum? Article 32 lies to the Supreme Court, article 226 to the High Court, and the National Green Tribunal has its own statutory jurisdiction. The constitutional route is available; whether it should be taken first is a separate question, dealt with in [Article 226].

Step three, who must prove what? This is where the case turns. On the precautionary principle as stated in Vellore, the onus is on the developer to show his action is environmentally benign. The Board's argument inverts the burden.

Step four, does the absence of scientific certainty help the Board? No. Vellore item (ii) says in terms that where there are threats of serious and irreversible damage, lack of scientific certainty shall not be a reason for postponing preventive measures.

Step five, what relief? On the polluter pays principle, liability covers both compensation to the farmers and the cost of restoring the land and water. Restoration is not an extra; Vellore treats remediation as part of the obligation.

Step six, what must the farmers still show? That there is a real threat, on material. Subhash Kumar is the caution: an allegation without material fails, and a petition brought for a private grievance dressed as public interest will be dismissed and criticised.

What it does NOT mean

It does not mean the directive principles have become enforceable. They have not, and article 37 is unamended. What is enforceable is article 21, and the directive principles are used to determine its content. A student who writes that Part IV is now justiciable has stated the position wrongly and will be marked down for it.

It does not mean any pollution violates article 21. The right is to freedom from pollution of a degree that impairs life, proved on material. Subhash Kumar shows the Court refusing a claim for want of it.

It does not mean article 48A created the environmental jurisdiction. Article 48A is a directive principle and unenforceable on its own terms. It supplies content and legitimacy; article 21 supplies the remedy.

Quick revision

• Articles 47 (public health) and 48A (environment) are directive principles; article 37 makes Part IV unenforceable. Article 48A and article 51A(g) were both inserted by the Forty-second Amendment 1976.
• The method: the directive principle supplies the content of "life", article 21 supplies the enforceability. Learn the CERC formula, article 21 "read with" articles 39(e), 41, 43 and 48A.
• Parmanand Katara: every doctor has a professional obligation to give immediate aid to preserve life; hospitals may not turn away a medico-legal case. A positive duty, not a restraint.
• CERC: the right to health and medical aid of a worker, in service and after retirement, is a fundamental right under article 21.
• Subhash Kumar: the right to life includes pollution-free water and air, and article 32 may be invoked. But the petition was dismissed as a personal grievance in the garb of public interest.
• Vellore: the precautionary principle and polluter pays are part of the law of the land. Precautionary principle has three limbs, and the third reverses the burden of proof onto the developer.
• Polluter pays covers compensation to victims and the cost of restoring the environment.
• M.C. Mehta (oleum gas): absolute liability for hazardous enterprises, and unlike the English rule of strict liability it admits no exceptions.

Test yourself

1. Article 37 says the directive principles are not enforceable by any court. Explain how articles 47 and 48A are nonetheless given effect, and state the method precisely.

2. What did Parmanand Katara decide, and why did the Court also give directions about summoning doctors as witnesses?

3. State the holding in the Consumer Education and Research Centre case in the Court's own terms. Why does it matter that the right continues after retirement?

4. Subhash Kumar is cited for the right to a clean environment. What else did it decide, and what happened to the petitioner?

5. Set out the three limbs of the precautionary principle as stated in Vellore. Which one changes the practical outcome of most cases, and how?

6. A factory says no study proves its effluent caused the harm complained of. Answer that argument using Vellore.