Article 21 and the Right to a Wholesome Environment

Held. The Court dismissed the petition as an abuse of process, but in doing so it stated the principle for which the case is always cited: the right to life 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 recourse to Article 32 for removing the pollution of water or air which may be detrimental to the quality of life. The Court added a warning: public interest litigation must not be used for a personal grudge or an oblique motive.

Why it matters. It is the sentence every later judgment quotes, and its facts are a caution against treating the jurisdiction as costless.

The supporting line

Four other decisions do the work with which the principle is usually completed.

Facts. In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652, a letter from a voluntary organisation alleging unauthorised and dangerous limestone quarrying in the Mussoorie hills was treated as a writ petition. Held. The Court ordered the closure of a number of quarries, holding that the consequence of an order on the quarry owners was a price that had to be paid for protecting the right of the people to live in a healthy environment with minimal disturbance of the ecological balance. Why it matters. It is the first case in which the Court closed an industry to protect the environment, and it did so before any of the modern statutes applied.

Facts. In T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171, land reserved as a recreational park in a development plan was sought to be built upon. Held. The Andhra Pradesh High Court held that the enjoyment of life and its attainment and fulfilment guaranteed by Article 21 embraces the protection and preservation of nature's gift without which life cannot be enjoyed, and that slow poisoning by a polluted atmosphere caused by environmental pollution should be regarded as a violation of Article 21. Why it matters. It is among the earliest clear statements that environmental degradation is itself a deprivation of life.

Facts. In Virendra Gaur v. State of Haryana, (1995) 2 SCC 577, land vested in the Thanesar Municipality and earmarked as open space in its town planning scheme was leased by the State to a private society for building. Held. Environmental, ecological, air and water pollution should be regarded as amounting to a violation of Article 21, and hygienic environment is an integral facet of the right to healthy life; the State has a duty to protect and improve the environment under Article 48A and every citizen a duty under Article 51A(g). Why it matters. It ties all three articles together in one paragraph and is the most quotable statement of the composite right.

Facts. In M.C. Mehta v. Union of India (the Ganga Pollution, Kanpur Tanneries case), AIR 1988 SC 1037, an advocate petitioned about the discharge of tannery effluent and municipal sewage into the Ganga at Kanpur. Held. The Court ordered the closure of tanneries that had not set up primary treatment plants, holding that the financial capacity of the tanneries should be regarded as irrelevant while requiring them to establish primary treatment plants, just as an industry which cannot pay minimum wages cannot be permitted to exist. Why it matters. It is the answer to the argument that a polluter cannot afford to comply, and it is regularly set as a question about the role of the judiciary.

Worked example

Farida lives in a chawl next to an unlicensed plastic recycling shed in Govandi. The shed burns waste at night. There is a Pollution Control Board, there are standards, and nothing happens.

Her statutory route is a complaint to the Board, and if that fails an application to the National Green Tribunal, which may be quicker than either.

Her constitutional route is a petition under Article 226 in the High Court, or Article 32 in the Supreme Court, alleging that the burning impairs the quality of her life and that the inaction of the Board is a failure of the State's duty under Article 48A. She does not need to own the chawl, and she does not need to prove special damage, because standing has been relaxed in this jurisdiction.

What she must still show. That the pollution is real, that it affects her, and that the authority which ought to have acted has not. A writ court will not fix a standard, but it will direct the authority to apply the one that exists.

What it does NOT mean

It does not mean any environmental grievance is a fundamental rights case. The Court in Subhash Kumar itself refused relief, and it warned that the jurisdiction is not for personal grudges. Where a statutory remedy exists and is working, a writ court will usually send the petitioner to it.

It does not mean the right is absolute. It is balanced against development, employment and the rights of others under the doctrine of sustainable development, and courts have repeatedly refused to close an industry where a less drastic order would do.

It does not mean Article 21 replaces the statutes. It supplements them. A court exercising this jurisdiction usually enforces a statutory duty rather than inventing one.

Limits and criticism

The most serious criticism is that a right which no one drafted, whose content no one defined, and whose limits are settled case by case is not a right but a discretion. The answer usually given is that the same is true of much of Part III, and that the alternative was no environmental remedy at all in a country where the statutory regulators were not functioning.

A second and narrower criticism is that the jurisdiction has grown so wide that the Court now supervises the administration of the environment rather than adjudicating disputes about it. That is dealt with in the chapters on judicial activism and on continuing mandamus.

Quick revision

• Article 21 says no person shall be deprived of life or personal liberty except according to procedure established by law.
• Maneka Gandhi (1978) made the procedure required to be fair, just and reasonable, and opened Article 21 to unwritten content.
• Subhash Kumar (1991) is the leading case: the right to life includes the right to enjoyment of pollution-free water and air.
• Rural Litigation and Entitlement Kendra (1985) closed quarries; Damodhar Rao (1987) and Virendra Gaur (1995) state the principle; Kanpur Tanneries (1987) answers the plea of poverty.
• The right is enforced under Article 32 and Article 226, is not absolute, and is balanced by sustainable development.

Test yourself

1. Trace, in three steps, how a right to a clean environment came to exist under Article 21. First, Maneka Gandhi in 1978 held that the procedure under Article 21 must be fair, just and reasonable and read Articles 14, 19 and 21 together, which made it possible to read unwritten content into the right to life. Second, the Forty-second Amendment in 1976 had already put the environment into the Constitution in Articles 48A and 51A(g), giving a court a textual foundation. Third, a line of decisions from Rural Litigation and Entitlement Kendra in 1985 to Subhash Kumar in 1991 held that a life of dignity requires an environment fit to live in, so that pollution impairing that quality of life is a deprivation of the right to life enforceable under Article 32.

2. The petitioner in Subhash Kumar lost. Why is the case still the leading authority? Because the statement of principle was not necessary to the dismissal and was made deliberately. The Court set out the right in full and then held that this particular petitioner had come with an oblique motive, having himself bought slurry from the companies he was complaining about. The principle stands; the facts are a warning about the misuse of the jurisdiction.

3. An industry says it cannot afford effluent treatment and that closing it will cost four hundred jobs. What is the answer? The answer given in the Kanpur Tanneries case is that financial capacity is irrelevant to the obligation to install primary treatment, in the same way that an industry that cannot pay minimum wages has no right to exist. That is not the end of the matter in every case, because a court will consider a phased order or a common treatment facility, but poverty is not by itself a defence to a duty not to poison a river.