Article 21 and the Right to a Wholesome Environment

Held. The Court stated the proposition for which the case is famous: the right to live is a fundamental right under Article 21 and it includes the right of enjoyment of pollution free water and air for full enjoyment of life, and if anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 for removing the pollution of water or air. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even of a group of social workers or journalists.

And then it dismissed the petition. Recourse to Article 32 must be taken by a person genuinely interested in the protection of society. Personal interest cannot be enforced in the garb of public interest litigation, and the entertainment of petitions satisfying a personal grudge is an abuse of the process of the court which the court has a duty to discourage.

Why it matters here. It is the case every book cites for the environmental content of Article 21, and it is a case the petitioner lost. Both halves are the holding, and an examiner who knows the case will ask about the second.

The other case to know

Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 SC 359, Supreme Court of India, P.N. Bhagwati CJ and Ranganath Misra J.

Facts. Limestone quarrying in the Mussoorie hills of the Dehradun valley was causing landslides, blocking underground water channels and damaging the ecology of the area. A letter to the Court from a voluntary organisation was treated as a writ petition. The Court appointed expert committees and by an order of 12 March 1985 directed the closure of a number of mines. This judgment sets out the reasons.

Held. The Court proceeded on the footing that the ecological balance of the valley, and the hazard to individuals, cattle and agricultural land, were matters it could weigh against the mining leases, and dealt with whether the schemes the lessees had put to the committee had rightly been rejected.

Why it matters here. It is the first case in which the Supreme Court closed an established industry to protect the environment. It shows Article 21 doing work before it had been stated in the crisp form Subhash Kumar gave it, and it is the origin of the court-appointed expert committee as a technique.

A worked example

Deepa lives beside a nullah in Mumbai into which a small industrial estate discharges effluent. The Maharashtra Pollution Control Board has taken samples, found the discharge above the standard, and issued directions which the units have not obeyed. Nothing further has happened for two years.

What has she got? Not a claim in nuisance alone, though she may have one: proving damage to herself is difficult and the remedy would help only her. What she has is a fundamental right.

The chain runs: the discharge impairs the quality of her life; it does so in derogation of laws, because the units are in breach of section 24 of the Water Act and of directions lawfully given; therefore under Subhash Kumar she may move the court under Article 32, or the High Court under Article 226.

Notice the words "in derogation of laws" in the holding. The right is not a general right to the environment she would prefer. It is engaged where the impairment is unlawful, and in practice the unlawfulness is almost always a breach of the pollution statutes. In this book, Modules I to III are where the derogation is found and this chapter is what turns it into a fundamental right.

Where she would actually go. Since 2010 the National Green Tribunal has jurisdiction over civil cases raising a substantial question relating to environment arising out of the scheduled Acts, and it is quicker and cheaper. The writ route survives and is used where the Tribunal cannot give the relief, which Module IV takes up.

What it does NOT mean

It does not mean there is a fundamental right to an unpolluted environment in the abstract. The right is to the enjoyment of pollution free water and air for full enjoyment of life, engaged where the quality of life is impaired in derogation of laws. It is not a right to have every development stopped.

It does not mean the Directive Principles became enforceable. Article 48A is still unenforceable of its own force. What the courts have done is to read Article 21 in the light of Article 48A, which is a different thing and is the subject of the next chapter.

It does not mean anybody may petition. Subhash Kumar is authority for the opposite. Standing has been relaxed, not abolished, and the case where the point was decided is the case where the environmental right was stated.

Quick revision

• The Constitution creates no express fundamental right to the environment. Article 48A is unenforceable; Article 51A(g) binds citizens.
• Subhash Kumar v. State of Bihar, AIR 1991 SC 420: the right to life under Article 21 includes the right of enjoyment of pollution free water and air; recourse to Article 32 lies where the quality of life is impaired in derogation of laws.
• The same case dismissed the petitionfor abuse of the process, because the petitioner was pursuing a private grievance.
• Rural Litigation and Entitlement Kendra, AIR 1987 SC 359: the first closure of an industry on environmental grounds, and the origin of the court-appointed expert committee.
• In practice the first forum today is the National Green Tribunal, not the writ court.

Test yourself

1. State the holding in Subhash Kumar in full. Two limbs. First, the right to live is a fundamental right under Article 21 and includes the right of enjoyment of pollution free water and air for full enjoyment of life, so that a citizen whose quality of life is impaired in derogation of laws may move the Supreme Court under Article 32, and such a petition is maintainable at the instance of affected persons or of a group of social workers or journalists. Second, recourse to Article 32 must be taken by a person genuinely interested in the protection of society, personal interest cannot be enforced in the garb of public interest litigation, and the petition before the Court was dismissed as an abuse of process because the petitioner was pursuing a private supply dispute.

2. Why did the courts have to use Article 21 rather than Article 48A? Because Article 48A is a Directive Principle and Article 37 makes the Directive Principles unenforceable by any court, while Article 51A(g) imposes a duty on citizens rather than a right against the State. Article 21 is in Part III and is enforceable under Articles 32 and 226, so it was the only enforceable provision available.

3. What is the significance of the words "in derogation of laws"? They tie the constitutional right to the statutory scheme. The right is engaged where the impairment of the quality of life is unlawful, which in practice means a breach of the Water Act, the Air Act, the EPA or the rules. It is not a freestanding right to the environment a petitioner would prefer, and it is the reason the rest of this book matters to a constitutional claim.

4. Why is Rural Litigation and Entitlement Kendra cited if it states no crisp ratio? Because it is the first case in which the Supreme Court ordered an established industry closed to protect the environment, and because of its method: it treated a letter as a writ petition, appointed expert committees to find the facts, and supervised the outcome over a series of orders. That method, rather than a single proposition, is what it contributed.