The Environment in the Constitution

Broken down

"Shall endeavour." This is the weakest verb Part IV uses. Article 42 says the State shall make provision; article 47 calls its objects primary duties; article 48A only requires an attempt. Nothing turns on the difference in a court, because article 37 makes none of Part IV enforceable, but it matters in an answer: article 48A is a statement of direction, not of standard, and it fixes no level of environmental quality that the State must reach.

"Protect and improve." Two duties, not one. Protection is conservative: keep what is there from getting worse. Improvement is restorative: make it better than it is now. The second is the more demanding, and it is the one usually forgotten. A State that merely stopped further damage would have satisfied half of article 48A.

"The environment." The article does not define the word, and no other article of the Constitution defines it either. That is a real gap, and it is also why the provision has stayed useful: an undefined term of 1976 can absorb harms that nobody had heard of in 1976, which a defined term listing smoke, effluent and noise could not have done.

"The forests and wild life of the country." Two things are named specially, and only two. Neither pollution, nor water, nor air, nor soil, nor hazardous waste, nor any technology appears anywhere in the text of article 48A. Everything this paper is about therefore reaches article 48A through the general words, not through the specific ones.

Article 51A(g) is wider in its list and narrower in its subject. It speaks of the natural environment, and it names lakes and rivers, which article 48A does not. It then adds a duty that has no counterpart in Part IV at all: to have compassion for living creatures. But its subject is the individual citizen, and a duty on a citizen carries no sanction. What a fundamental duty is, and why India has them, is taken in [Scientific Temper as a Fundamental Duty].

What article 48A does not do

It confers no right on anybody. It is addressed to the State, and a person who wants a court to act cannot ask it to enforce article 48A, for the reason given in [The Directive Principles on Health and Work]. If there is an enforceable claim in an Indian environmental case, its textual home is elsewhere, and this book takes that route in [Science Under Article 21].

It does not bind the polluter. A factory is not the State, and article 48A says nothing to it. The route from a constitutional direction to a private defendant runs through legislation, which is why the answer to "what does article 48A do about a chemical plant?" is "it obliges the State to have passed and enforced a law about chemical plants". [The State's Duty to Regulate Technology] takes that step, and [Environment and Technological Harm] takes the industrial disaster that made the question urgent in India.

It fixes no standard and provides no remedy. It tells nobody how clean the air must be, and it gives nobody anything when the air is dirty.

The international material that says the same thing

Three instruments in this paper's authority base carry the same idea, and each is stronger than article 48A in one respect.

The Covenant on Economic, Social and Cultural Rights, in article 12(2)(b), requires States to take steps towards "the improvement of all aspects of environmental and industrial hygiene" as part of the right to health. That is a treaty obligation rather than an unenforceable direction, and it is examined in [The Right to Health in the Covenant].

The Universal Declaration on Bioethics and Human Rights of 2005 devotes its article 17 to the protection of the environment, the biosphere and biodiversity, requiring due regard to "the interconnection between human beings and other forms of life" and to the role of human beings in protecting them. It is taken in [The Bioethics Declaration: Society and the Future].

General Comment No. 25 of 2020 supplies the standard article 48A lacks. In paragraph 56 the Committee describes the harm that must be guarded against in advance of full scientific certainty as harm to humans or to the environment that is "threatening to human life or health", "serious and effectively irreversible", "inequitable to present or future generations", or "imposed without adequate consideration of the human rights of those affected". Those four descriptions are the nearest thing this subject has to a definition of unacceptable environmental risk, and they belong to [The Precautionary Principle].

A worked example

An electroplating unit at Taloja discharges rinse water into a creek. The discharge is within the limits of the consent the unit holds. Over eleven years the creek silts up, the fish die, and the families in Sonavane village who fished it move to daily wage work. A resident, Suresh, wants to know what the Constitution gives him.

Can he sue on article 48A? No. It is in Part IV, it is addressed to the State, and article 37 forecloses enforcement. If his petition says nothing else, it fails.

Does article 51A(g) help him against the unit? No. It is a duty on citizens and it carries no sanction, and in any event the unit is a company rather than a citizen exercising a duty. Article 51A(g) is a reason, not a remedy.

Where does article 48A actually bite? In three places. It tells him whom to complain about, namely the State that set the consent limits. It tells a court what the pollution statute was for, so that a doubtful provision in that statute is read in the way that protects the creek rather than the way that does not. And if the State tightens the consent limits and the unit challenges the tightening as ruinous, article 48A is the State's constitutional justification for having done it.

What must Suresh add to make a case? The right to life, and the statutory scheme, and a claim for compensation. All three are elsewhere in this book, and the point of this chapter is that article 48A never travels alone.

Distinctions

What beginners get wrong

Saying article 48A gives a right to a clean environment. It gives a direction to the State. Any right in this area has to be found in Part III, and locating it correctly is half of a good answer.

Swapping the two provisions. Article 48A binds the State and article 51A(g) binds the citizen. The mistake is easy because both use the words "protect and improve", and it is expensive because the whole point of quoting them together is that they are addressed to different people.

Thinking "shall endeavour" makes the article decorative. It weakens the language and it does not remove the direction. Part IV is unenforceable whatever verb it uses, so the softness of the verb changes far less than students assume.

Treating 1976 as the moment India acquired environmental law. The amendment put the subject into the Constitution. It did not create the statutory or common law machinery, and it did not by itself make anything actionable.

Limits and criticism

A direction without a standard. The article says protect and improve and stops. It does not say from what, to what level, or by when, and a duty with no measurable content cannot be failed in any way a court could recognise even if Part IV were enforceable.

The named subjects are the wrong ones for this paper. Forests and wild life are named; industrial effluent, hazardous waste, emissions, radiation, chemicals and every technology that produces them are not. A student answering a technology question from article 48A is arguing from the general words of a provision whose specific words are about something else.

Nothing about future generations. The most distinctive feature of technological environmental harm is that it lands on people who cannot be consulted because they do not yet exist. Article 48A does not mention them. General Comment 25 does, in the phrase "inequitable to present or future generations", and the international instruments in Module III go further still.

Nothing about the causer. The article obliges the State and says nothing to the person who did the damage. That is a design feature of Part IV rather than a defect in article 48A, but it means the constitutional provision on the environment is silent about polluters, which surprises every student who reads it for the first time.

Quick revision

• Article 48A: the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Part IV, unenforceable by article 37.
• Article 51A(g): 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. Part IVA, also unenforceable.
• Both inserted by the Constitution (Forty-second Amendment) Act 1976, sections 10 and 11, with effect from 3 January 1977. The original Constitution of 1950 said nothing about the environment.
• Article 48A names only forests and wild life. Pollution, waste, water, air and technology appear nowhere in it.
• Two duties in the words "protect and improve": one conservative, one restorative.
• International mirrors: Covenant article 12(2)(b), environmental and industrial hygiene; Bioethics Declaration 2005 article 17; General Comment 25 paragraph 56 on serious, effectively irreversible harm inequitable to present or future generations.
• Article 48A never travels alone. It identifies the duty bearer, colours the reading of a statute, and justifies a restriction.

Test yourself

1. State article 48A, say where it sits in the Constitution, and say how it got there. Article 48A provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. It is in Part IV, the Directive Principles of State Policy, so by article 37 it is not enforceable by any court although it is fundamental in the governance of the country. It was inserted by section 10 of the Constitution (Forty-second Amendment) Act 1976 and took effect on 3 January 1977; section 11 of the same Act inserted Part IVA, which contains the citizen's parallel duty in article 51A(g).

2. A village downstream of a tannery petitions a court relying only on article 48A. What happens, and what should the petition have said? It fails, because article 48A is in Part IV and article 37 provides that Part IV is not enforceable by any court. The petition should have relied on a fundamental right in Part III, on the statutory pollution regime, and on a claim for compensation, using article 48A to show that the State was constitutionally directed to regulate, to argue for the reading of the statute that protects the watercourse, and to answer any complaint that the regulation is too strict.

3. Compare article 48A with article 51A(g). Why does it matter that they were inserted together? Article 48A directs the State; article 51A(g) imposes a duty on every citizen. Article 51A(g) is the wider list, adding lakes and rivers and a duty of compassion towards living creatures; article 48A is the one addressed to the body that can actually legislate. They were inserted by the same amendment, sections 10 and 11 of the Forty-second Amendment Act 1976, which shows that the framers of the amendment treated environmental protection as a shared burden rather than as a purely governmental one. Neither is enforceable.

4. What does article 48A fail to say that a technology question needs? It fails to define the environment, to name any source of harm, to fix any standard of quality, to say anything to the person or company that caused the damage, to provide a remedy, and to mention future generations. Every one of those gaps has to be filled from somewhere else: from a fundamental right, from a statute, or from the international material, where paragraph 56 of General Comment 25 supplies the account of harm that is serious, effectively irreversible or inequitable to present or future generations.

5. Why is it significant that article 48 speaks of organising agriculture on modern and scientific lines? Because it shows how the original Constitution understood science. In the text of 1950 science and technology appear in Part IV as instruments of development, something the State should apply more of. The idea that scientific and technological activity is itself a source of risk that the State must guard against enters the Constitution only in 1976, with article 48A and the fundamental duties. That change of posture, from science as a means to science as a hazard as well, is the whole of this paper in one amendment.