Article 48A and Article 51A(g): the Forty-Second Amendment

Article 51 beside them

Article 51, which was in the Constitution from the beginning, directs the State to endeavour to foster respect for international law and treaty obligations. It matters here because it is what licenses an Indian court to use the Stockholm Declaration, the Rio Declaration and the precautionary principle in construing an Indian statute. Without Article 51 a court would have to explain why an international text is relevant at all.

Worked example

The State of Maharashtra notifies a rule requiring every brick kiln within five kilometres of a reserved forest to convert to a zigzag firing technology within eighteen months. Ratan, who runs three kilns, challenges the rule as an unreasonable restriction on his trade under Article 19(1)(g).

The State's first answer is Article 48A. The rule is an exercise of the State's endeavour to protect and improve the environment and safeguard forests. That does not by itself make the rule valid, but it establishes that the restriction serves a purpose the Constitution itself names.

The State's second answer is Article 51A(g). Ratan is a citizen and owes a duty to protect and improve the natural environment including forests. A citizen cannot complain that a law requires of him what the Constitution already declares to be his duty.

Ratan's answer is proportionality. The question is not whether the object is legitimate, which it plainly is, but whether eighteen months is enough, whether the technology is available, and whether five kilometres is rationally connected to the harm. That is where the case will be decided.

What the directive principles cannot do. They cannot supply the power to make the rule. That must come from a statute, here section 3 of the Act of 1986 or the Air Act. And they cannot cure a rule that is arbitrary, because Article 14 is a fundamental right and Article 48A is not.

Distinctions

What it does NOT mean

It does not mean the environment cannot be enforced. It can, through Article 21, and this is the point students most often get backwards. The route is not Article 48A directly; it is Article 21 read in the light of Article 48A.

It does not mean a fundamental duty is unenforceable in every sense. A duty under Part IVA cannot found a writ against a citizen. But it has been used to justify a statute that imposes the same duty, and courts have repeatedly told citizens that Article 51A(g) is why they must obey.

It does not mean the two articles are the same thing said twice. They are addressed to different persons and they do different work. An answer that treats them as a pair without saying so misses the point of having both.

Limits and criticism

The honest criticisms are three.

The word endeavour. Article 48A is among the weakest of the directive principles in its language. Compare Article 47, which says the State shall regard the raising of the level of nutrition as among its primary duties.

Fundamental duties are decorative. Part IVA was added by the same Forty-second Amendment during the Emergency and was recommended by the Swaran Singh Committee. No court can enforce a duty against a citizen without a statute, so Article 51A(g) adds nothing operative to a law that already exists.

Judicial use has been rhetorical. The two articles appear in almost every environmental judgment, usually in a single introductory paragraph, and the decision then turns on Article 21 or on a statute. That is not a criticism of the result, but a student should not overstate what the articles decide.

Quick revision

• Two articles, both inserted by the Forty-second Amendment 1976.
• Article 48A: the State shall endeavour to protect and improve the environment and safeguard forests and wild life. Part IV, non-justiciable under Article 37.
• Article 51A(g): every citizen has the duty to protect and improve the natural environment and to have compassion for living creatures. Part IVA.
• Neither is directly enforceable. Both colour Article 21 and both justify legislation.
• Article 51 lets a court use international environmental texts in construing an Indian statute.
• The phrase protect and improve is repeated in section 3 of the Act of 1986 on purpose.

Test yourself

1. If Article 48A cannot be enforced, what is it for? Four things. It authorises and justifies legislation restricting other rights for environmental ends; it is read together with Article 21 so that the right to life includes a right to a wholesome environment; it makes a restriction on trade more readily reasonable under Article 19(6); and it states an obligation of the State that a court can hold the State to when it is exercising a statutory power.

2. A factory owner says the fundamental duties cannot be used against him because Part IVA gives no remedy. Is he right? He is right that no writ lies to enforce Article 51A(g) by itself. He is wrong if he means the article is irrelevant. It is addressed to every citizen, it is the constitutional answer to the argument that a private person owes no environmental obligation, and it has been relied on to uphold statutes and rules that impose exactly the duty it declares.

3. Which article lets an Indian court rely on the Stockholm Declaration, and why is it needed? Article 51, which directs the State to endeavour to foster respect for international law and treaty obligations. It is needed because a declaration of an international conference is not part of Indian law by its own force, and a court must be able to say why an unincorporated international text bears on the construction of an Indian statute.