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CHAPTER 3In the preceding chapter the study was focused on the legal principles and legislations of the erawhen water pollution was not taken a a subject of law. The principles and enactments though werenot specifically designed to control and prevent the water pollution but the court invoked those

principle and provisions to check the apprehended damages. The problem of water pollution is becoming grave and grave, law being an instrument to control the human behavior should cope upwith the increasing menace. The relevant provisions under the Indian Constitution to deal with the

problem is a subject of study under the present chapter.(i) Legislative Competence

India is a quasi-federal state. The Constitution of India distributes the legislative power between Parliament and the States and thus Parliament and states are two co-ordinate unitsenjoying ordinarily the exclusive powers to make law with respect to the subject mattersallocated to them under schedule VII of the Constitution. The enumeration under scheduleVII is more complete than anything attempted in the worlds leading federations i.e. UnitedStates of America, Canada and Australia. Nevertheless, the anxiety1 of the founding faters to

provide for the legislative supremacy of the Union in respect of three lists is quite apparentfrom the language of Article 246 of the Constitution. The scheme of distribution of legislative powers is reproduced as under ;

Article 246( 1) Notwithstanding anything in clauses (2) and (3) Parliament hasexclusive power to make laws with respect to any of the matters enumerated in list I in the

Seventh Schedule (in this Constitution reference to as the "Union list") .

(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the

legislature of any state also, have power to make laws with respect to any of the matter

enumerated in list III in the Seventh Schedule (in this Constitution referred to as the

Concurrent list").

(3) Subject to clauses (1) and (2) the legislature of any state has exclusive power to

make laws for such State or any part thereof\vith respect to any of the matters enumerated in

list II in the Seventh Schedule (in the Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory

of India not included (in a state) notwithstanding that such matter is a matter enumerated in the State

list.

The opening words of clause (1) and clause (3) of Article 246 indicate distinctly the effect of

these provisions that the legislative powers of the Union and State legislatures demarcated in list


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I and list II of Schedule VII cannot fairly be reconciled,as the latter must give way to the

former. Equally, the opening words of clause (2) "Notwithstanding anything in clause (3) ..."

make it clear that the Union power shall prevail in case of conflict between list II and list III.

Notwithstanding the efforts of the Constitution, makers to make the lists exclusive theimperfections of human language necessarily result in entries in different list or in the same

list\:tbverlapping, and some times appearing to be in direct conflict with one another.2 In such cases

the court gives reconciliat Ory interpretation. Sir Maurice Gwyer's observation on the interpretation

of entries provides a remarkable guide lines when he stated, ( A)n endeavour must be made to

solve it as the judicia,l committee have said, by having rpcourse to the context and scheme of

the Act and a reconcillati_n attempted between two apparently conflicting jurisdictions by

reading the two entries together and by interpreting, and, where necessary, modifying the

language of the one by that of the other. If in such a reconciliation should prove

impossible,then and only then will the non-obstante clause operate and the federal power

prevail. 3 .

Article 248 provides for the residuary power of.parliaments as under (1) Parliament has exclusive

power to make any law with respect to any matter not enumerated in the concurrent list or state

list.

(2) Such power shall include the power of making any law imposing a tax not mentioned in

either of those lists.

In addition to the distribution of powers made and assigned exclusively to Parliament

and the State legislatures the Constitution provides for certain circumstances mentioned below in which Parliament may enact laws on the state subjects. 1) When a subject, which is

normally on the State list, assumes national importance and it is reasonable to expect that the

Union Parliament will legislate upon it, this can be done only if the council of states, which may


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be said to represent the states as units lpasses a resolution to that effect by a two third majority.4II) During the period of proclamation of emergency, 5 Parliament shall have power to make laws for thewhole or any part of the territory of India with respect to all matters on the state list.6

III) Article 252 provides for th_ power of Parliament the exercise of which is conditionedupon an agreement between two or more states. It says that if two or more states are desirousthat on any particular matter in the State list there should be a single Act, which would applyin those States, they can invoke the aid of Parliament to make such an Act for them. But thecondition is that the resolution to the effect should have been passed by both the Houses of thelegislatures of the consenting States. The law passed by Parliament applies . only, in the firstinstance, to the consenting States. Any other State which subsequently desires to adopt that Actmay do so by passing a resolution to that effect by its legislature.

IV) The scheme of the Constitution is to vest the legislative and executive power in respect of

all treaties and international agreements in the general government. It is in pursuance of this

scheme that the Constitution makes provisions in Article 253 giving power to Parliament to

legislate for giving effect to international agreements.!t provides; Notwithstanding anything

in the foregoing provisions of this chapter, Parliament has power to make any law for the

whole or any part of the territory of India for implementing any treaty, agreement or

convention with any other country or countries or any decision made at any international

conference, association or other body.

Seventh Schedule compdsing of three lists7 enumerates the subject matters for exercise of legislative power by Parliament and the state legislatures. In other words, the subjects and the area l1ave beendemarcated in these lists. The substantive powers defined in the above mentioned Articles may beexercised by the legislative authorities with respect to the subject matters mentioned in therespective lists. The problem of water pollution has been identified since very long andIndian traditfons have heavily emphasised the value and respect for the nature. TheConstitution, however, as originally adopted had no reference to the water pollution in p_rticular or environment degradation in general. This constitutional oversight of the problem iseuphemetically called by Prof. Baxi as "Constitution is itself environment blind"g Due to this"blind(ness)", the two legislative units of the Indian States and Parliament in particular have

felt handicapped in formulating a uniform piece of legislation to cope up with the problem.The damage done to the quality of water at one place has consequential effects not

confined to that particular place, but pervades through out the course of the running water.

Pollution is transported across the state boundaries through the river and thus attracts the attention of

Parliament as the State legislatures have definite and limited territory to operate upon. Keeping


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in view the same one fails to find any specific entry in the Union list or Concurrent list with

the aid of which Parliament can enact laws on water Pollution. The state list does mention

water9 but scope of the State authority is limitedlO under the Constitution. Within these

parameters, one of the possible measures is that the States should jointly deal with the inter-

state water pollution. But this may besubject to criticism on the counts that there would be no

uniform law, no coordination among the different units and the insitutional capabilities would alsodiffer. The role of the Union Government in such a situation would be no better than that of amundane observer. Parliament cannot resort to the residuary legislative powers too under Article 248read with entry 97 list 1 as it covers those subjects which fall outside the domain of the three lists. IIIt may be noted that the item 'water' is mentioned in list II.

The analysis of the above mentioned existing constitutional provisions suggests that

the best viable technique is resorting to Article 252 of the Constitution as the environmental

problems, like water pollution are better regulated by uniform national laws. 12 Strong and longstanding need felt by the Centre and States to have an uniform law to control and prevent the water

pollution culminated into passing of the water (Prevention and Control of Pollution) Act 1974. The

preamble to the Act endorsed the Parliament's inability as "Parliament has no power to make laws

for the states with respect to any of the matters aforesaid except as provided in Articels 249 and 250

of the Constitution." it simply suggest that only the state legislatures can enact water

pollution laws.13 The Act was, therefore, passed by Parliament under clause (1) of Article

252 of the Constitution in pursuance of the enabling resolutions passed by the Houses of the

legislatures of twelve State9'namely, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh,

Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan Tdftura and West

Bengal. In course of time all the States of the Union have adopted the Water Act and

respective State Pollution Control Boards have been constituted. Parliament resorted to the

residuary clause under Article 248(2) entry 97 list I, to pass the water (Prevention and Control of

Pollution) Cess Act, 1977.

The Water Cess Act was pas}'ed to generate revenue to help meet the expenses I of the Boards constituted tinder the Water Act of 1974. The Water Cess Act can be labelledas supplementary to the Act of 1974 as it was passed to collect revenue for the purposes of the Water Act.


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The Constitutionality of the Water Cess Act was challenged in case of Municipal Cor por ati on lul/unde r C ity v. U nion of I ndia. 16 The petitioner contended that the imposition of tax on water consumption was not mentioned in the State list and since the cess was being levied for the purposes of the Act of 1974 and utilisation of water thereunder, and the water being a Statesubject, Parliament could not enact any such law. Parliament under Article 252 of theConstitution could exercise on a resolution past by two or more States the same power whicha State legislature has with respect to subject matters under list II.

The High Court of Punjab and Haryana held the Water Cess Act to be valid and observed

that the State legislature was not competent to levy any tax on the water consumed by the

petitioners as the same was not provided under any entry in list II, and if it was so, the

provisions of Article 248(2), entry 97 List I could be attracted. The Act was rightly held

constitutional as there being no specific entry prescribing for the tax on water under list II, III or

list I. Article 252, cannot be taken help of as the State has no such power in its specified field and,

therefore, the State legislature cannot adopt any resolution to this effect.

Parliament resorted to Article 253 to pass Act like the Environment protection Act 1986 and

Environment Tribunal Act, 1995. Out of these legislations the Environment protection Act, 1986 has

been enacted in pursuant to the decision 17 taken at the United nations Conference on the

Human Environment held at Stockholm in June 1972. The United Nations Conference on

Environment and Development held at Rio de Janeiro in 1992, in which India participated

has called upon the States to develop National Laws regarding liability and compensation for

the victims of pollution and other environmental damage. i8 The Environment Tribunal Act has been

passed in pursuant thereupon.

Since environment as such is not mentioned in the VII Schedule and need was felt to have acomprehensive legilslation, Parliament took resort to Article 253 of the Constitution to pass theEnvironment Protection Act. The consitutional provisionsrelated with !he creation of tribunals,however, may be discussed in view of the Environment Tribunal Act. Chapter XIV of theConstitution deals with the Tribunals. It provides for the establishment of Tribunals for theadjudication or trial of disputes complaints or offences with respect to certain specific mattersmentioned therein. Parliament or the state legislature has the authority to set up tribunalwithkespect to such subjects falling within their respective powers. The inventories under theVII Schedule of the


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Constitution however, do not mention environment. No tribunal therefore, can be established either

by Parliament or the State legislature for the environmental causes.

Parliament and State legi_atures have concurrent powers with the aid of entry 11A, 19 list III, to enact laws setting up courts for the administration of justice. In addition to

entry 11 A there are six other entries2 in the seventh schedule dealing with the constitution, jurisdiction and powers of different courts or to abbreviate it with the administration of justice. The different entries speak for very definite purposes. The opening words of entrydoes refer to the establishment of courts with respect to administration of justice but it cannot

be interpreted to mean establJhment of the Environment Tribunal as the concept of environmental justice could not be anticipated to have been included in it.

The meaning is to be taken keeping in view the latter part of the entry. The Calcutta High

Court in lndu Bhushan Df; v. S tate of WE . 21 rightly observed that the expression used in the

entry22 would include in ordinary and natural meaning the authority to set up 'Additional

Court' for the purpose of administration of justice. Thus, for the, purpose of Environmental

Tribunal this entry cannot be invoked. With respect to the subject matter, environment,

falling outside the domain of seventh schedule Parliament could enact law to establish

Environment Tribunal under the residuary power under Article 248( 1) entry 97 list I without

waiting for an international conference.

(ii) Local Self Government:

The establishment of village Panchayat and Municipality and entrusting certain

responsibilities to them has been a notable feature of the Indian legal 19, Administration of

Justice; Constitution and organisation of all Courts except Supreme Court and High Court.

20. Entries 77, 78, 79, 95- list I, entry 65 list II and entry 46 list III. 21. AIR 1972 Ca1160.

22. By the 42nd Consti_ution (Amendment) Act 1976, the subject matter has been deleted from list II

and added to list III as entry rIA.

system but laying down some consitutional norms to provide a constitutionalstatus is and innovation

made in the beginning of the decade instant. The Consitution (Seventy-third Amendment) Act, 1992


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and the Constitution (Seventy fourth Amendment) Act, 1992, Resurrected Part IX23 and added IXA

in the Constitution in the form of "The Panchayats" and "The Municipalities" respectively

along with Eleventh and Twelfth schedule. Recognition of the Panchayats and Municipalities

under the- Constitution in terms of federal principles, is considered to provide for the third tier of

government in our modified federaL structure. It helps provide some uniformity andrespectability to the system ofloca} self-governments. Now all States have to constitute these

institutions and confer on them some powers and fun_tions as institutions of local self-government,

involve them in planning and development and ensure financial resources and autonomy. Referring

to the power, authority and responsibilities of Panchayats Article 243-G of the Constitution says:

Subject to the provisions of th_ Consitution, the Legislature of a State may, by law,

endow the Panchayat with such powers and authority as may be necessary to enable them to

function as institutions of self government and such law may contain provisions for the devolution of

powers and responsibilities upon Panchayats at the appropriate level, with re;pect to .I

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes, for economic development and social justice as may be

entrusted to them including those in relation to the matters listed in the Eleventh Schedule.23. Part IX was repealed by the Constitution (Seven_lfi_ Amendnent.) Act, 1956.

" Eleventh schedule contains 'Drinking Water24 and 'Health and Sanitation125

f t' "_hich may be related with the pollution free water as a basic requirement of .cial justice. The Panchayat, therefore, may take up these matters and act as

. instrument of constitutional organisation.Article 243- W states about the

_wers, authority and responsibilities of Municipalities. It states as- Subject to.e provisions of this Constitl}tion the legislature ofa State may, by law, endow

(a) the Municipalities with such powers and authority as may be necessary enable them to

function as institutions of self government and such law may


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hcontain provisions for the devolution of powers and responsibilities upon Municipalities,subject to such conditions as may be specified therein with respect

(i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be

entrusted to them including those in relation to the matters listed in the twelfth

schedule;

(b) the committees with such powers and authority as may be necessary to enable them

to carry out the responsibilities conferred upon them including those in relation to the matters

listed in the twelfth schedule.

The Twelfth Schedule enumarates 18 items including protection of the environment

and promotion of ecological aspects,26 cremation grounds and

24. Item 11.25. Item 23.

electric crematoriums27 and regulation oftanneries.28 These items are directly

connected with the water, as the purity of water is affected by such activities.

The Municipal committees with their respective jurisdiction, therefore, may. formulate' and

implement schemes to control and prevent the contamination of water.

The Constitution of India, a federal with more unitary features demarcates the power

of local bodies and thus creates a third level government. The body particularly the

municipalities have been assigned some responsibilities with respect to the ecological

aspects as well but no provision has been made guaranteeing the. free and unterrupted exercise

of the power by such bodies. One may apprehend possible conflicts in the local laws, schemes and

the laws with uniform applicability like the vVater Act Water Cess Act and Environment

Protection Act. Under such situation .whether the constitutional status of the local bodies and

their function and power would ever see the light of the day or remain lying on the statute book?

(Hi) Fu ndamental Rights


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Part III of the Constitution guarantees fundamental rights to the individuals. Some of

these can only be claimed by a citizen of I kndia others apply equally to non-citizens also.Fundamental rights are inviolable and no law, ordinance, custom, usage or

administrative/order can abridge or take away a fundamental right. Some of the fundamental

rights connected with the pollution of water or the measures to control it are discussed as under.

27. Item 14. 28. Item 18.

(a) Definition of the State

The fundamental rights are not absolute but subject to certain mentioned restrictions

that may be imposed by the State. The Constitution framers had the will to confer legally

enforceable fundamental rights (Articles 12 to Articles 35). And this fact is further

strengthened by the provisions, under the Constitution, pointing out afinst whom thefundamental rights are to be enforced. It is undoubtedly atainst "the State" not as ordinarily

understood but as widely defined by Article 12. It says:

. In this part, unless the context otherwise requires, "the State" includes the Government

and Parliament of India and the government and the legislature of each of the states a?d all local

or other authorities within the territory of India or _nder the control of the Government

of India.

Thus fundamental rights are enforceable against "the State" as referred to under the

Constitution- and with fewer exceptions not against the private persons. The state consists of

three separate departments, the Legislature, Executive and the Jild:ici3:ry as the definition bem9

mcJusive .29 The legislative and administrative organs of the Government are specific and

hardly needs any explanation and therefore, the first two categories are self explanatory. Theexpression "local authorities" refers to authorities like Municipalities, District _oards,

Panchayats and like bodies. As to the meaning of "other authorities in Article 12 there was a

conflict of opinion. One view3

29. H.M.S. Seervai: Constituti onal law of I ndia VoL 1,370. 1991.


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30. U niver sity of Mad r as v. Shanta Bai AIR 1954 Mad 67, B. W . Devdas v. S electi on

Comm ittee AIR 1964 Mys 6; Kr ishna Go pal v. P unjab U niv AIR 1966 Punj 34.


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was that the words should be construed ejusde m g ene r is, with government or legislature, and the

other was that the word "authority" meant a body exercising power, i.e. power to issue rules by laws,

or regulations having the force oflaw,

as propounded by the Supreme Court in E lect r icity Boar d, Rajast han v. M ohan Layl and

thus overruling the former view taken by the High Courts. In M.C.Mehta v. U nion of I ndia32

Bhagwati J , however, observed why should a private corporation engaged in hazardous

activities under the functional control of the State and imbued with public interest be not

subject to the same limiation as public corporation was? This observation necessitates to

examine the scope of "other authorities" in Article 12 in relation to the enforcement of

fundamental right of clean environment against "the State".

The Rajast han E lect r icity Boar d33 case is the firs_ case where in the apex court was called

upon to interprete the term "other authority". Bhargava J , who delivered the judgment of the

majority pointed out that the expression other authorities" in Article 12 would include all

constitutional and statutory authorities on whom powers are conferred by law. The learned

judge further said that if any body of persons has the authority to isue directions, the

disobedience of which would be punishable as a criminal offence, that would be an indication that

the concerned authority was 'the State' Shah J ., delivering a concurrent judgment obseryed that the

authorities constitutional or statutory, would fall within the expression" other authorities"

only if they are inv_te9 with the sovereign powers of the State naI?ely, the power to mak_

rules and regulations which have the force of law. S uk hdev S in gh v. Bha g at r am ,34 followed the

test laid down in the

31. AIR 1967 SC 1857. 32. (1987) lSCC 395.

34. AIR 1975 1331.

Rajast han S tate E lect r icity Boar d_vand the Oil and Natural Gas Commission,d

the Life Insurance Corporation and the Industrial Finance Corporation were held to be "other authorities" and hence "the State" in Article 12 : Mathew J, in a concurring judgment,


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however, adopted a new line of approach and propounded a broader test. The learned judgeemjJhasised that the concept of 'State' had undergone drastic changes in recent years and'State' could no longer be looked upon simply as" a coercive machinery weilding thethunderbolt of authority; rather it has to be . viJ ed mainly as a service corporation.35 Mat hew,

1. expanded this dictum by stating that a public corporation being an instrumentality or

agency of the 'State' is subject to the same constitutional limitations as the 'State' itself. There

are, however, two pre conditions to it, namely, that the corporation is the creation of the

"State" and that there is existence of power in the corporation to invade the constitutional

rights of the individuals.36 Thus the criteria made by .Mathew, J. may be stated as a

corporation would be classified as a State agency if it is a State's. creation, functioning

under the unusual degree of control of the state over management and policies having theState financial support and the State has assigned important public functions. A state mayhelp a corporation otherwise than by financial assistance e.g. by granting it the power of eminent d omain, or by creating a monopoly in its favour or by granting it tax exemption.37

The Supreme Court in Ramana Daya r am Shetty v. I nte r nati onal Air por ts Aut hor ity of

I ndia38 adopted justice Mathew's reasoning, but observed that it was not possible to formulate

an all inclusive or exhaustive test which would

35. Id 1349.

36. Id1351.

37. Id 1356.

38. AIR 1979 SC 1628.

adequately answer the criteria to determine whether a corporation is acting as instrumentality or

agency of the government, Bhagwati, J., however said that iltest of Governmental Instrumentality or agency as one more test and perhaps a more satisfactory one for determining whether a statutory

corporation, body or other authority falls within the definition of 'State'. If a statutory

corporation, body or other authority is an instrumentality or agency of Government it

would


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be an 'authority' and therefore 'State' within the meaning of expression in Article

The apex court in Shetty Case after rounding off the earlier decisions enumerated the

following five factors though not extensive as relevant criteria for determining whether a

corporation is an instrumentality or agency of the State or not;

a) financial assistance given by the State and magnitude of such assistance;

b) any other form of assistance whether of the usual kind or extra ordinary;

c) control of management and policies of the corporation by the State. d) State

conferred or State protected monopoly status, and

e) functions carried out by the corporation, whether public functions closely related to

governmental functions.

These criteria, thus formulated, were appli_d _Jld confirmed in the cases of A jay

H asia v: Khalid Mujib,40 and S am Pr akas h R ek hi v. U nion of I ndia41 . The Supreme Court

with an endeavour to enlarge the scope and width of the fundamental rights, in A jay H asia case,

observed that every authority which is an insturmentality or agency of the government whether

through natural persons

39. Id.1646-1647. 40. AIR1981SC487.

41. AIR 1981 SC 212. uv

or through corporate entities is _bject to the basic obligation ofthe fundamental Rights.42 In

this case, the court also set at rest the controversy as to whether the manner in which a

coporation is brought into existence had any relevance to the question whether it is a Stateinstrumentality or agency. The Court said that it is immaterial for the purpose of determining

that a corporation is an instrumentality or agency of the State or not to inquire whether it is

created by a statute or under a Statute:l


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The inquiry has to be not as to how the juristic person is born but why it has been broughtinto existence. The Corporation may be a statut or y cor por ati on created by a statute or it may

be a go ver nment com pany or a com pany form ed unde r t he Act 1956 or it may be a society registered under the societies Registration Act 1860, or any other similar statute43.( emphasisadde l)

The Constitutional law must seek the substance and not the form has been a the emphasis of the Court in A jay H asia and, therefore, to pro tect the fundamental rights the functional realismhas been given due consideration and made a decisive factor. The court makes no distinctionwhether the government acts through the instrumentality or agency of natural persons or itemploys the instrumentality or agency of jurisdical persons to carry out its functions.

Highlighting the reality of the situation lyer, J., in Som Pr akas h Rek hi remarked What wewish to emphasis is that merely because a company or other legal person has functional and

jural individuality for certain purposes, it does not necessarily follow that for the effectiveenforcement of

42. Supra note 40, 493.

43. Ibid.


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fundamental rights, we should not scan the real character of that entity; and if it is found to be a mere

agent or surrogate of the state, in fact owned by the state, in truth controlled by the state and in

effect an incarnation of the state constitutional lawyers must not blink at these facts and

frustrate enforcement of fundamental rights despite the inclusive definition of Article 12 that

any authority controlled by the Government of India is itself State.44

The Supreme Court held the Bharat Petroleum Corporation registered as a company under the

companies Act, as the State within enlarged meaning of Article 12. Thus, the company having

under the cop orate veil, a separate and distinct identity could not successfully claim its

separate personality if it was found to functioning as an instrumentality or agency of t!1e

State. The Court did not permit the corporate device t9 be utili sed as a barrier ousting the

constitutional control of the fundamental rights.

Development of the constitutinallaw since 1967 on the scope of "other authority" in Article 12

got a new dimension at the hand of Bhagwati, in Al.C .Mehta v. U nion of I ndia45 wherein, he

advanced a strong argument for including even the non-government companies within the meaning

of State. The question was whether Article 21 was available against Shriram which was

owned by Delhi Cloth Mills Ltd. a public company and which is engaged in an industry I

vital to public interest and with potential to affect the life and health of the people. It wascontended that Article 21 was available as Shriram was carrying on an industry under theactive control and regulation of the Government. Special emphasis was laid on the regulatorymes;hanisms provided under the Industries Development and Regulation Act 1951, where industriesare included in44. rd,218.

the schedule if they vitally affe&t}'public interest. Since Shriram is carrying on a schedule industry,

its activities are subject to extensive and detailed control and supervision by the government. It is

subject to extensive environmental regulations under the Water (Prevention and Control of

Pollution) Act 1974, and Air (Prevention and Control of Pollution) Act 1981. It is also

required to obtain licences under the Factories Act, 1948 and the Delhi Municipal Act, 1957.

It was also pointed out that si_eable aid in the form ofloans were granted by the governmentto Shriram in carrying on the industry. The question is whether these factors are


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cumulatively sufficient to bring Shriram within the ambit of Article 12.The unanimousopinion of the Court was delivered by Bhagwati, C.J.

Why should a private corporation under the functional control of the State engaged in anactivity which is hazardous to the health and safety of the community and is imbued with

public interest and which the State ultimately proposes to exclusively run under its industrial

pobcy, notbe subj2cttD the sam e lim :itations.46

The apex court, however, did not give ruling whether a private corporation like Shriram

would fall within the scope and ambit of Art 12, due to short of "sufficient time". But the Shr ir am

f er tilize r s case shows that the Chief Justice was in favour of treating Shriram as "The

State"47. It may be noted here that the Supreme Court in S uk hadev's case,48. laying down the

criteria to determine

45. (1987) ISCC 395. 46.Id. 417.

47. C.M . Jariwala, ; Direction of Environmental Justice in India: Critical Appralsal of

1987 Case Law, 35 JIL l (1993),92,101.

48. Supra note, 34, Ray, C.J. and the majority view, 1339.


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whether a body corporate is "the State" within the purview of Article 12 had emphasized upon the

mode of creation of the impunged body and a company was held not to be a statutory body because

it was not created by statute, but was incorporated in accordance with the provisions of a statute

i.e. the Companies Act. Thus, there is apparent shift in the opinion of the Supreme Court in

the Shr ir am' case .It may be referred in U nni Kr ishnan v. S tate of A. P .49, however, the apex

court declined to hold a private educational institution on account of either by recognition or affiliation to the University as an instrumentality of State but the bodies granting recognition

and/or affiliation were held to be the authorities of the State". The Court did acknowledge

the fact that the educational activity of the Private educational institutions is supplemental to

the main effort by the State5O and some instutions have surpassed51 the Colleges run by the

Government in many respects and are under the regulatory controp2 of the recognising or

affiliating body, never theless, the court categorically, unlike Shr ir am's case, stated it

impossible53 to hold that a private educational institution could ever be called an

instrumentality of the State.S am Pr akas h Rek hi54 held the company after due examination of certain factors accrediting

as "the State" in Article 12. The facts in the Shr ir am case, however, are not alike and the

'Regulation', by the Government, of the private Corporation, it is submitted, should not be

given much weight, in order to call a

49. (1993) 1SCC 645, 693. 50. Id. 763.

51. Id.701.

52. Ibid.

53. Id.693.

54. Supra note 44. See also Bihar S tate H ar ijan K alyan P ar ishad v. U nion of I ndia. (1985) 2SCC 644;

Mahabi r Aut o S t or es v. I ndian Oil Cor por ati on AIR 1990 SC 1031: S ta r

E nter pr ises v. C ity and I ndust r ial Devel o pment _9r pn of Mahar ast r a Ltd. (1990) 3SCC

private corporation a State. In _odern times, when we have opted for liberal economy and the

least cumbersome process of delicencing and functional autonomy a good number of companies might fall beyond the ambit of Article 12 which would otherwise have fallen

within. The analogy of Shriram's case has not been a guidingfactor to the Supreme Court as

the opinion was even not referred in the U nnik r ishan case. It is noticeable further that

Rangnath Misra CJ. who was also among the judges in Shr ir am's case. iri U nion C ar bide C


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oIporaron v. U nion ot- I nia,55 did not support the earlier view. His lordship observed:

In M.C.Mehta case no co mpensation was awarded as the court could not reach the

conclusion that Shriram (the dealinquent companmy) came within the meaning of "State" in

Article 12 so as to be liable to the discipline of Article 21 and to be subjected to a proceeding

under Article 32 of the Constitution. Thus what was said was essentially obiter"56

In Indian Council for Emiro-Iegal Action v. U nion of I ndia, 57 B.PJeevan Reddy J.,

however, has some reservation in accepting the same as obiter. The extension of the meaning of

"other authority" to cover the private corporation should also be looked into in relation to Article 36

of the Constitution which says: I n t his par t, unless t he context ot her wise r equi r es, " t he S tate "

has t he same meanin g as in par t III . (emphasis added) This Article provides that the

definition of the expression "the State" in Article 12 Shall apply throughout Part IV,whenever that word is needed58 Article 36 is part of the chapter relating

55. AIR 1992 SC 248 .

56. Ibid.

57. AIR 1996 SC 1446, 1463.

58. M.P.Singh(ed.) Shukla's Constituti on of I ndia

to the Directive Principles of State Policy wherein obligations have been imposed up on the State to

strive and secure social economic and political justice to the individuals in the country. The bjectives

behind the incorporation and adoption of State's policy in chapter IV might raise much more vibrant

issue of imposing the same degree of active obligations on the private corporations than what was

initially kept in the mind of the judges like Bhagwati in terms of enforcement of the fundamental

rights against them.

From the above discussion it appears that it is not feasible to insist that the private

corporation to be included in the definition of "State" so as to maker them accountable for the

infringement of fundamental rights to healthy environment. Judicial remedy may be sought under

Art. 226 of the Constitution against the pollutor as he is under statutory duty to take effective


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measure to prevent and control the pollution. The law has been 'well settled in the case of

Audi Mukta S ad g ur u Shr ee Muktajee V andas S ava mi S uva r na J ayuanti l\ IJ ahotsav S amar ak

Tr ust v. VR. Rudani,59 where madamus was issued to a private College. It was held:

The term 'authority' used in "Article 226, thecontext must receive a liberal, meaning unlike the term in Article 12 . Article 12 is relevantonly for the purpose of enforcement of fundamental rights under Article 32 Article 226confers power on the High Courts to issue write for enforcement of the fundamental rights aswell as non fundamental rights. The wor ds' any per son or -aut hor ity used in Ar ticle.

226 ar e, t her e for e, not t o be con f ined bnly t o statut or y aut hor ities and inst r umentalities of the S tate. They may cover any ot her per son or body perform in g public duty. The form of thebody conce r ned is not ver y much r elevant. What is r elevant is the natu r e of the duty im po sed on the body. The duty must be judged in the light of positive obligation owed by the personor authority to the affected party. No

59. (1989) 2 see 691.

matter by what means t_f duty is imposed if a positive obligation

The same view has been reiterated by the apex Court in U nni Kr ishnan's case61, by holding

that the meaning of authority under Article 226 can be laid down distinguishing it from Article 12 of

the Constitution. It is submitted that in addition to resorting Artyce 226, Article 32 may also be

invoked on the lines of A siad's case62 directI'hg the Union of India to take appropriate

measures to check the violation of fundamental rights by the private industries.

(b) Right to life

Stockholm Declaration of United Nations on Human Environment, 1972 Principle 1 reads as

Man has the fundamental right to freedom equality- and adequate condition of life. In an nvironment

of equality that permits a life of dignity and well being and he bears a solenm responsibility to

protect and improve the environment for present and future generations.

Right to life has been categorically stated under Article 21 as follows: No person shall be

deprived of his life or personal liberty except according to procedure established by law.


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The plain meaning of the provision is that the life and personal liberty of a person is protected

against any act which i-s not in accordance with the law of the land.

Over a quarter of a century since the enforcement of the Indian Constitution the Supreme

60. I d. para 20.61. Supra note 49, 697, See also Rakes h G upta v. H yder abad S t ock E xchan g e Ltd. AIR

1996 AP 413, 425.

62. P eo ple's U nion for D emocr atic Ri ghts v. U nion of I ndia AIR 1982 mfra note 105. SC 1473 . See

Court interpreted this Article underlining the requirement of law to support the actions taken by

executive. Maneka Gand hi's63 case may be said to be the turning point in the history of thedevelopment 'life and personal liberty' jurisprudence in the Indian soil. Supreme Court

strengthened Article 21 ensuring that the procedure under the law should not only be a piece

of legislation but also be reasonable, fair and just64 The Scope of the fundamental right got

an indication ofliberal expansion to cover all those areas which are some how connected with

the person and personality as is evident from the observation of Bhagwati , 1.( as he then

was)

The attempt of the court should be to expand the reach and ambit of the funda_ental rights rather

than attenuate their meaning and content by a process of judicial construction.65

The literal meaning of word 'life' cannot be attended to the word 'life' if scope of the

right guaranteed under Article 21 is to be read more than what one reads on its face. This

fanciful idea can be traced back to over a century back in an American case, namely Munn

v. IUo nois66 where Field, J , observed as

Bay the term "life" as here used, something more is meant than mere animal existence.

The inhibition against its deprivation extends to all those limbs and faculties by which the

life is enjoyed ... The deprivation not only of life but of whatever God has given to everyone

with life, for its growth and enjoyment is prohibited by tre provision in question.


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The rights guaranteed under Article 21 have been considered and termed63. Maneka Gand hi v. U nion of I ndia AIR 1978 SC 597.

64. Id. 623-624. 65.Id 622.

66. (1877) 94 US 113, 142.

by the apex court to be residuary6'hn nature and therefore protects all those rights to which

are not specifically mentioned in Part III of the Constitution Bhagwati, J. in Fr ancis Cor alie

v. U nion T err it or y68 elaborated the concept of right 'life' to include the" faculties of thinking

and feeling". He observed:

(T)he right to life include the right to live with human dignity and all that goes along_it_it

namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over thehead and facilities for reading writing and expressing oneself in diverse forms69.

The court's endeavour to protect the individual's life and liberty extends and pervades

over various types of rights essen_ial to maintain and uphold the human dignity.7 The

horizon of Article 21 was extended to include the right to clean environment which is the

very basis of sustaining the life: The Rat/a m Municipality C ase 71 starts the deliberation on

the human right in the polluted environment where the health of the residents of a particular locality of the Ratlam city was put

67. S atwant S in gh v. A. P .O. N ew Del hi AIR 1967 SC 1836, 1844, see also A. VChandel v. Del hi

U nive r sity AIR 1978 Del 308, 314 wherein Deshpande J opined that expression 'life and personal liberty' in

Art 21, included variety of right, though not included in Part III of the Constitution provided they were

necessary for the full development of the personality of the individuals.

68. AIR 1981 SC 746,753. See also S amat ha v. S tate of And hr a Pr ades h AIR 1997 SC 3297, 3330.

69. 70.

Id 753.

S tate of H imac hal Pr ades h v. Umed Ram AIR 1986 SC 847, Mukherji, 1. at p. 851 observed that right to life embraces

not only physical existence of life but the quality of life.


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71. Ratla m Municipality v. V ar d hichand AIR 1980 SC 1622. 1628.

on risk because of the failure of duty of the Municipal authorities on account of financial

deficit. Krishna Iyer J ruled out the ugly and shameless plea and held that the human right

had to be reputed regardless of budgetary provision. In this cas.e though a reference wasmade to the human right it was the Criminal Procedure Code which was activised to rouse

the municipality from its long hibernation. The problems related with the disturbance of

ecology and pollution and affectation of air water and the environment were brought in before the

Supreme Court in the Dehradun quarrying Case72 about sixteen years back seeking appropriate

relief against the violation of fundamental rights due to the ecological abberation . Representatives

of the Rural litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that

illegal limestone mining in the Mussorie- Dehradun region was devastating the fragile ecosystems in

the area the court treated the letter as a writ petition under Article 32 of the Constitution. Supreme

Court issued several orders73 at different stages, however, none of these orders mentioned about the

fundamental right infringed but it did contain words of caution, 'the right of the people to live

in healthy environment'. Since the petition was admitted by the supreme court in exercise of

jurisdiction under Article 32 it presupposed the violation of a fundamental right. It can

therefore, reasonably be drawn that the apex court had in view about the violation of

fundamental rights in connection with the ecological balance while pass_ng such orders.

The Kanpur Tanneries case74may be labelled as the first case of its kind where the Supreme

court categorically stated that the life, health and ecology have greater importance to the

people.7s In this casJ, the petitioner, an active social worker and senior advocate of the

Supreme Court filed the petition for issue of

72. Rur al liti g ati on and E ntitle ment K end r a v. S tate of UP AIR 1985 SC 652.

73. Ibid. see also AIR 1985 SC 1259, AIR 1987 SC 359, AIR 1987 SC 2426, AIR 1988 SC 2187.

75. Id. 1048.

74. M.C Mehta v. U nion of I ndia. AIR 1988 SC 1037.


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some directions in the nature of m_da_us to the tannery owners restraining them trom letting

out the trade effluents into the river Ganga till such time they put up necessary treatment

plants. The Supreme Court observed that the effluent discharged from a tannery was ten

times more noxious when compared with the domestic sewage water which flew into the

river from any urban area on its bank.

The court, therefore directed for the closure of such tanneries which failed to take

minimum steps for the primary _eatment of the industrial affluents even at the risk of

rendering the workers une_loyed and loss of revence to the nation. Citizens right to file a

petition on account of deterioration of quality of life was further noted by the apex court in

Chh et r iya P ar dus han Mukti S an g ar sh S amiti v. S tate of U.p.76Clean air and fresh water,

necessary for the very survival oflife, was explicitly reiterated by the Supreme Court in the

case of S ub has h K umar v. S tate of Bihar?as the fundamental right under Article 21 of the Constitution. K.N .Singh, J. observed Right

to live is a fundamental right under Article 21 ofthe Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment oflife.78

The quality of life' is stated to be a prime concern where the development plans are desired to

be implemented. Protection of environment is of great public concern and of vital interest in the

development scheme. The actions taken by the State is inspired by the basic values of individual

freedom and dignity and addressed to the attainment ofa quality of life which makes the guaranteedrights a reality for all the citizens.79 The case of V ir end r a Gau r v. S tate of H ar yana80 is a

g ood

76. AIR 1990 S.c. 2060,2062. 77. AIR 1991 SC420.

78. Id 424.

79. Ban g l or e Medical Tr ust v. B.S .Muddappa and ot her s AIR 1991 SC 1902. 1913.

80. (1995) 2SCC 577.

example wherein the Supreme Court in very distinct terms emphasised and enunciated the

link between pollution free air and water and right to life under Article 21 of the

Constitution. The Court observed.


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Article 21 protects right to life as a fundamental right. Enjoyment of life and itsattainment including their right to life with human dignity encompass within its ambit, the

protection and preservation of environment, ecological balance free from pollution of air andwater, sanitation without which life cannot be enjoyed. Any contra acts or action wouldcause environmental pollution. Environmental, ecological air, water pollution etc should beregarded as amounting to violation of Article 21. Therefore, hygienic environment is anintegral facet of right to healthy life and it would be impossible to live with human dignity

without a humane and healthy environment.8!

The violation of right to life under Article 21 d_e to discharge of toxic untreated waste water

was duly recognised and protected by the Supreme Court in I ndian Council for E nviro - I e g al Action

v. U nion of I ndia82 . In this 'case a writ petition was filed by an environmentalist organisation

projecting the woes of people living in the vicinity of chemical industrial plants in India. The case

also highlighted the disregard of the law and lawful authorities on part of the enterpreneurs. The

Supreme Court, however, did not issue appropriate direction against the enterprises engaged in the

production of chemicals but did direct the Union of India, State Government and the Pollution

Control Board to perform their statutory duties. The Court observed that their failure to carry out

their statutory duties was seriously undermining the right to life of the people of the ;ffe_ted area

guaranteed under Article 21 of the Constitution. The apex court underlining its own obligations

towards the protection of fundamental rights observed:

81. Id. 580-581. See also Consumer E ducati on" and Resea r ch C ent r e v. U nion of I ndia (1995) 3

see 42,72.

82. AIR 1996 se 1446.

If the court finds that the,1\flid authoritiers have not taken the action required of them by law ariatheir inaction is jeopardising the right to life of the citizen of this country or of any section thereof it

is the duty of this court to intervene.83

The High Courts in India have also had the occasions to deliberate upon the

fundamental rights guaranteed under Article 21 of the Constitution and environment related

issues affecting such rights. It is interesting to note that the Andhra Pradesh High Court may


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be saiq. tOJf._ave a leading role in this pursuit to pronounce a judgment covering the

protection and preservation of nature's gift within the ambit of Article 21 of the Constitution.

In TDamoda r R ao v. S pecial Off ice r , Municipal Cor por ati on,84 the High Court referred to

the case of Rur al liti g ati on and E ntitle ment K end r a v. S tate of U tta r Pr ades h85 and drew an

inference that Article 21 could be extended to protect the citizen's life against the polluted

environment as the Supreme Court entertained the petition under Article 32 of the

Constitution. The High Court observed:

Protection of environment is the obligation of the state and all other state organs includingcourt ........................................ it would be reasonable to hold that the enjoyment oflife andits attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the

protection and preservation of nature's gift without (which) life cannot be enjoyed. There can be no reason why practice of violent ex,tinguishment of life alone should be regarded as

violations of Article 21 of the Constitution. The slow poisoning by the polluted atmospherecaused by environmental pollution and spoilation should also be regarded as amounting toviolation of Article 21 of the Constitution.86

Keeping the above view point the High Court made acknowledgement of its duty, as

the enforcing organ of the Constitution, to forbid all actions of the State and the citizen from

upsett_ng the environmental balance.

83. Id. 1460.

84. AIR 1987 AP 171.

85. Supra note 72.

86. Id. 181. See also C lzameli S in gh v. S tate o j u. P . (1996) 2SCC 549, 555.

In K ink r i Devi v. S tate of H imac hal Pr ades h87, the Himachal Pradesh High Court

while considering the legality of mining operations held that if a balance was not struck between the needs of development and that of protection of the ecology it would result in a

violation of citizen's fundamental rights guaranteed under the Constitution of India. The

court further observed that to ensure the attainment of the constitutional goal of protection

and improvement of natural wealth and environment the court would intervene effectively by


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issuing appropriate writs or orders or directions.88

Kerala High Court in Mad havi v. Thilakan89 did not uphold the argument of means of

livelihood at the risk of environmental pollution and nuisance as valid and sustainable. Mere

fact that the workshop, that causes nuisance "provides livelihood to some persons unmindful

of consequences to others, cannot be a valid ground", the High Court observed.

I n L. K . Koo lwal _. S tate ofRajast han90 the High Court of Raj as than observed that it

was duty of the citizen to see that the rights which he had acquired under the Constitution as

a citizen were fulfilled. Maintenance of health was held to be such rights guaranteed to the

citizens and affected by defiled environment. The High Court observed:

Maintenance of health, preservation of the sanitation and environment falls within the perview of Article 21. of the Constitution as it adversely affect the life of the citizens and itamounts to slow poisoning and reducing the life of the citizens because of the hazardscreated if not checked.91

87. AIR 1988 HP 4. 88. Id.9.

89. 1988 (2) KL T 730. 90. AIR 1988 Raj 2.

91. Id.4.

The water management has_tpeen pointed out to be the biggest challenge in the

opening decades of the next century. And therefore, the High Court of Kerala in the case of

F . K . H ussain v. U nion of I ndia. 92 , suggested for the conservation of water resources. The High

Court maintained that the executives had onerous responsibility in the matter of providing

civic amenities but observed that there must be an effective and wholesome interdisciplinary

interaction and the administrative authorities could not be pennitted to function in such a

manner as . to make inroads into the fu_ndcJnental right under Article 21. The Court

further observed:

The right to sweet water and the right to free air are attributes of the . right to life, for, these


27/52

are the basic elements which sustain the life itself.93 In v. Laks hmipat h y v. S tate of a r nataka94,

the Karnataka High Court dispensing a writ petition observed that "restoring nature to the

natural state" had become a "cause of all the people". The preservation of environment is the

need of the time. It is a cause of particular concern to the living young generation because

the future generation will reap the grim consequences of the failure of the present day failure.

The court observed that an onerous obligation which we owed to posterity was clean air_ water,greenary and open spaces. These ought to be elevated to the status of birth rights of every citizen.95

Commenting on the right to life with reference to the clean environment the court further

observed:

The right to life inherent in Article 21 of the Constitution of India does not fall short

of the requirements of qualitative life which is possibly only in an environment of quality.

Where on account of human agencies, the quality of air and quality of

92. AIR 1990 Ker 321. 93. Id.323.

94. AIR 1992 Kant 57.

95.Id 65-66.

environment are threatened or affected, the court would not hesitate to use its innovative power

within its epistolary jurisdiction to enforce and safeguard the right to life to promote public interest

specific guarantees in Article 21 unfold penumbras shaped by emanations from those constitutional

assurances which help give them life and substance."96

In D. D. V yas v. Ghaziabad Devel o pment Aut hor ity,97 The Allahabad High Court directed the

Ghaziabad Development Authority to take appropriate steps to achieve the statutory object of sec

uring preservation of environment and developm ent of the residential colonies. The High Court

observed:

Right to live is a fundamental right under Article 21 of the Constitution and it includes the

right of enjoyment of pollution free water and air for full enjoyment oflife. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32

of the Constitution for removing the pollution of water or air which may be detrimental to the quality

of life. 98


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Kerala High Court in Ant ony v. Commissi oner Cor por ati on of Co chin, 99 got another

apportunity to deliberate upon the issue and observed;

As regards the contention of the petitionh based on the right to life guaranteed under

Article 21 of the Constitution of India it has to be noted that by a catena of decisions of the

Supreme Court and the High Courts the expression "life" occuring in Artile 21 is given as

96. Id 70.

97. AIR 1993 All 57.

98. Id 62.

99.1994(1) KLT 169.

expanded meaning and JHder the expanded meaning, the right to pure drinking water, pollution free

air and right to good roads, etc have all been held to be the facet of the right to life guaranteed under

Article 21 of the Constitution of India.

The fundamental rights are guaranteed under the Constitution and restrictions thereon

are also mentioned therein. This kind of arrangement shows that the rights can be enjoyed by

the indiyidJ_ls subject to the restrictions, if any, imposed by a piece oflegislation by the

State. And, possibly to clarify the stand the Constitution makers defined the tenn "State"!OO

and "law"lO! in the Constitution. Thus the Constitution does provide for the enforcement of

the fundamental rights if there is viol"ation by the State machinery but there is nothing to

suggest that the infringement of fundamental right of any person in the form of causing

pollution by another is enforceable. In order to have the projections made by the Supreme

Court on this issue the relevant cases may be studied as under.

In Go palan v. state of Mad r as, 102 the apex court categorically stated that it was a

misconception to think that protectioin was available against the private

individuals. Pantanjali Sastri, 1. held that the protection against violation of the right by


29/52

individual must be sought in the ordinary law.lo3 In the case of A. D M J abalpu r v. S. K ant

Shukla, 104 Bhagwati, 1. observed that the protection of Article 21 was available against the State

action and not against private individuals. The Asiad Case,1O5 may be underscored as the

turning point, wherein, the apex court relaxed the rigour oflaw. In this case, the violation of

rights of labourers by the

100. Article 12.

101. Article 13.

102. AIR 1950 SC 27.

103. Id.74.

104. AIR 1976 SC 1207, 1361.

105. P eoDle's U nion for D emocr atic Ri< Jh ts v. U nion o(J ndia AIR 19 R2 Sf: 1471


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private contractors who had engaged them in the construction projects of the Asiad Games,

1982, was held to be the violation of Articie 21 of the Constitution. Bhagwati J. observed:

It is the constitutional obligation of the state to take necessary steps for the purpose of interdicting

such violation and ensuring observance of the fundamental rights by the private individual who is

transgressing the same."IO6The learned Judge has changed his own view when he has to deliberate upon an issue

evolving the protection of the health and strength of the workers, tender age of the childrenagainst abuse and, just and humane conditions of work. The court took into account and gaveemphasis on the basic essentials or the minimum requirements which could enable a personto live with human dignity. The status of the respondent qua State or private individual

becomes insignificant if the persons are deprived of the basic human needs and the court tracesthe vitality of Article 21 to the Directive Principles of State Policy which incorporates social'sectionurity measures to be taken by the State.

Expanding the scope of Article 21 and providing more flesh and blood to its

provision's the apex court entertained a petition for appropriate relief against the leakage of

elium gas from a chemical plant of private company, resulting in loss of lives and injury to

health.1O7 Though the Supreme Court did not decide that a private company like Shriram

fertilizers the expression "other authority" inArticle 12 of the Consitution, the court did incli'\e to treat such undertakings as State.

Moreover, the reasons given by the court in passing orders are based on the infringement of fundamental rights of persons working in the factory and residing in the surrounding areas of an enterprise engaged in a hazardous or inherently dangerous activities and posing a potential threat.Bhagwati C.J.noted that this court had not permitted the corporate device to be utilised as a barrier ousting the 106. 1d 1490.

107. lv1.C .Mehta v. U nion of I ndia- (1987) lSCC 39$\,>

constitutional control of the funda_ental rights. 108 The court insisted to inject respect for

human rights and social conscience in the corporate structure. J .K. Ramaswamy, 1. in Consu mer

E ducati on and Resea r ch C ent r e'sl O9 case preferred to ignore the

difference between the State and private individuals in industry on the question of implementation of

the court's order under Articles 32 and 142 of the Constitution with respect to prevention of pollution

at work place, and preservation of unpolluted water for the safety and health of the people.

The opinion of Bhagwati c.J. got application in the case of I ndian Council for E nviro - Le g al


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Action v. U nion of I ndia 1 10 where a petition was filed by an environmentalist group to

protect the human life of the people of Bichhri village against the toxic untreated waste water

flushed out by privately owned chemical factories. The court avoided to go into the

controversy of the private enterprises to be included within the definition of "the State" or

not, and took serious note of the inaction on part of the government and government

agencies. B.P.Jeevan Reddy. J. observed;

This writ petition is not really for issuance of appropriate writ order or directions against the

respondents but is directed against the Union ofIndia, Government of Rajasthan and RPCB

to compel them to perform their statutory duties enjoined by the Act.

The inaction of the authorities amounted to breach of duty under the Environmental

legislations viz, \Vater (Prevention and Control of Pollution) Act,

108. Id 414, see also S am Pr akas h Rek hi v. U nion of I ndia AIR 1981 SC

212,218.

109. Supra note 81.

110. AIR 1996SC 1446. Ill. Id 1460.


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1974, Air (Prevention and Control of Pollution, Act, 1981 and Environment Protection) Act

1986, and the breach resulted into consequences harmful to human survival. Jeevan Reddy J .

further observed:

(T)heir failure to carry out their statutory duties is seriously under mining the right to life (ofthe

residents ofBicchri and the affected area) guaranteed by Article 21 of the Constitution. I 12

The apex court acknowledging its obligation to more forward to extend appropriate

relief to the citizens whose life is at stake due to poisonous pollutants emitting from the

industries if there is nOne to monitor the compliance of the laws. The court observed:

If an industry is established without obtaining the requisite permission and clearances and if

the industry is cqntinued to be run in blatant disregard oflaw to the detriment oflife and

liberty of the citizens living in the vicinity, can it be suggested with any modicum of

reasonableness that this court has no power to intervene and protect the fundamental right to

life and liberty of the citizens of this ountry. IJ3

The fundamental right to clean air, water and, collectively a clean and livable environment did

not find a place in the scheme enviFaged in the original constitution as is evident from the omission

of the use of the word "environment" in any of the provisions of the consitution that emerged from

the Constituent Assembly. The right to life and personal liberty embodied in Art.21 have been

transformed into positive rights by an activist judicial interpretation. The active and progressive

interpretation may be traced down to the post emergency case of Maneka Gand hi.

112. Ibid.

113. Ibid.

Until the advent of this case on th_ constitutional scene all the fundamental rights guaranteedin Part III of the Constitution were considered to be negative in nature imposing only

negative obligation on the state which inhibited it from interfering with the enjoyment of

these rights. But in Maneka's case the apex court for the first time added a new dimension

and held it to have a positive content as well. The post-Maneka period, has witnessed an


33/52

unprecedented judicial activism in the country elevating Article 21 of the Constitution to the position

of a "brooading omnipresence" and converting it into a "sacry of human values."

Fr ancis Cor alie's case underlines "human dignity" in the meaning of expression "life

or personal libertytl and provides impetus for the further development ofthis right. The seeds

of "right" to have "elementary facilities" under the broader head of "social justice", however,

one finds in the Rat/a m Municipality case. The Supreme Court did not refer to Article 21 but

by referring to the primary duties of the Municipality to take steps "for the improvement of

public health", and holding the pollutants being discharged by big factories to the detriment

of the poorer sections as a challenge to the social justice, did recognize a right in favour of such

people to have a clean and hygienic environment.

The limestones quarry case talks about "healthy environment" and "minimum

disturbance" to the fine web of the environment and indicates the judicial approach to the

problem. It also recognises three consumers of the right to environment, viz, man, animal and

property and their inter relationship with "air, water, and environment" I 14

The T anne r ies case, directly concerned with the pollution of the river Ganga,

recognises categorically, the citizen's right to initiate legal proceedings through writ to

prevent the affectation of environment. This right has been expanded into

114. C.MJariwala: Emerging Right to Environment. An Indian Perspective; Souvenir, I nter nati onal Con f er ence on

Shapin g t he F utu r e by Law: Child r en E nviro nment and H uman

H ealt h 61, 73 (1994).


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three dimensions namely, life, health and ecology. 'The right to defend the human environment for

the present and future generation" has also been held to be recognized under this right. Right in

Article 21 refers to the quality of life and pollution free water and air have been held to be essential

for the full enjoyment oflife. The right to clean environment was further elaborated in V ir end r a

Gau r 's case and right to live with 'human dignity' propounded in Fr ancis Cor alie's case has been

linked with right to 'humane and healthy environment". It is submitted that in the final analysis the

apex court has rightly and convincingly expanded the horizon of "right to life" in Article 21 to

include right to clean water and air without which it is needless to say that no one can survive- what

to talk of life with "human dignity".

This interpretation is nothing but a literal meaning of the word; 'life' which the apex court has

given after a period of staggering forty five years since the working of the Constitution of free India.

It is interesting to note that the High Courts in India have not been trotting behind the

Supreme Court in the endeavour to protect the citizen's right to clean enviroment. The High courts

have interpreted Article 21 of the Constitution to include right to "enjoyment oflife and its

attainment". The right has been extended to include the "right to sweet water or "the right to have

clean water".

The entity against whom fundamental rights are enforceable should fall in the definition of

"the State" in Article 12 of the Constitution. In pursuit to protect and uphold the human right, the

Supreme Court lpls held the State responsible to see that the private individuals should not violate

t_e fundamental rights. In passing such order the court has taken help of the Directive Principles of

the State policy. On the issue of right to clean environment the court though entertained the petitions

but left the question of determination of private enterprise as the State, open. In Consumer E ducati on

and Resea r ch C ent r e case, the cour,t entertaining a writ under Article 32, made an observation on

the binding effects of its order on each and every individual or legal person in the countrx.but

deffered the actual point to be decided in an appropriate case". In the I ndian Council for E nviro -

le g al Actions case the court mainly relied on {_action or failure of duty of the administrative

agencies of the government and passed orders accordingly. It is submitted that the court has been

passing orders when the petitioners have invoked Article 32 with an exception of enforcing the

statutory duties in I ndian Council for E nviro le g al

Action's case. The judicial wave length reveals that save with V ir end r a Gau r case, all the cases have


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been filed against the pollution caused by the industrial activities carried on by the private

corporation. Nevertheless, the court has kept 'pending matter on the plea- of ja proper and detailed

consideration at a later stage' or in the search of 'an appropriate case'.

. (c). Right to carry on trade and business:

Article 19( 1 )(g) of the Constitution guarantees that all citizens have the right to practise any

profession or to carry on any occupation or trade or business. The freedom like other fundamental

right is not uncontrolled, for clause (6) of the Article authorises legislation which inte r -alia imposes

reasonable restricitions on this right in the interests of the general public. The expression "in the

interest of general public", the Supreme Court held," is of wide import comprehending public order,

public health, public sectionurity, morals, economic welfare of the community and the objects

mentioned in Part IV of the Constitution. A law providing for basic amenities; for the dignity of human labour. is a social welfare measure in the interest of general public." 11 5

In order to determine reasonableness of the restriction, regards is made to the nature of the

business and conditions prevailing in that trade. It is obvious that these factors must differ from trade

to trade. Thus trades in noxious or dangerous goods may be prohibited. or trades causing pollution

may be regulated keeping

115. Municipal COlpor ati on v. jan M ohd. (1986) 3 see 20, 31.

inview the dangerous effects it may cause on life and health of people.

Environmental legislations in general and the Water Act in particular lay down regulations

requiring the industries to take measures to prevent the pollution of water. As the Pollution

Control Boards prescribes standards for the effluents discharged by the industries which

th.ey have to comply with. Such types of regulations may be tested under the provisions of

Article 19( 1 )(g) and 19(6) of the Constitution. The conditions imposed under the laws may

be labelled as excessive or the non-compliance of such conditions might lead to the closure

of the industrial activities affecting the fundamental right of the citizens to carry on trade and

business.


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In K anpu r tanne r ie's 116 case the Supreme Court observed that the financial capacity of

the tanneries should be considered irrelevant while requiring them to establish primary

treatment plants. This shows that in die matter of pollution of water due to discharge of toxic

effluents the restrictions imposed canno.t be negated on the ground of such regulations being

excessive. The court categorically stated that a tannery which could not set up a primary treatment

plant could not be permitted to continue to be in existence for the adverse effect on the public at

large.117

The court in the public interest has preferred protection of water from the pollutants, over the

opportunities of employment, to the labour and inconvenience caused to the management and

directed for the closure of erring tranneries. I

In V el/ or e C itizens W el f ar e For um v. U nion of I ndia 1 18 the Supreme Court passed regualtory and compensatory orders against the Tanneries in the State of Tamil Nadu.The court directed the authority concerned to ask for the closure of

116. M.C Mehta v. U nion of I ndia AIR 1988 SC 1037.

117. Id. 1045.

118. AIR 1996 SC 2715.

t.:


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industries owned/managed by polluters in case he evades or refuses to pay the compensation

awarded against him. Likewise in the C alcutta T anne r ies case, the Supreme Court ordered

for relocation of the tanneries out of congested habitations failing which they were directed

for the closure of the tanneries. In this case the court also passed order with respect to the

employment of the workers and their service conditions in the event they do not wish to go

to the new location of the tannenes.

It is notable that the Supreme Court in all these cases kept the public interest over and

above the industrialist's right to carry on activities and the right of individual workman to

employment. In non of these cases, however, the protection of righfto carry on trade was

claimed by the owner of industries.

The High Court of Gujarat120 had the oGcassion to dispose of these two conflicting interests.

The issue was; Is there any right to carry on business or trade in unregulated manner and cause

nuisance _o the public at large? The High Court held that the fundamental right was subject to

reasonable restrictions which might be placed in the interest of general public as provided for in sub-

clause (6) of Article 19 itself. No one has a right to carry on business so as to cause nuisance to the

society. In Rajiv Ranjan S in gh v. S tate of Bihar , 121 Patna High Court observed that it was

necessary to strike a balance between the necessity to preserve the environ ment on the one hand

and the pressing need for the industrialisation of the backward State. The Court ordered for

restart of distillery after making appropriate arrangement to contain the pollution at

minimum.

Thus the court may declare any reasonable restriction valid in the public interest. In

case of water pollution under the Water (Prevention and Control of Pollution) Act, 1974 and

the Environment (Protection) Act 1986, the closure of the 119.

M.e. Mehta v. U nion of lndia (1997) 2 see 411.

120. A Milas h T extile v. Rajk ot Municipal Cor por ati on AIR 1988 Guj 57.

121. AIR 1992 Pat 86.


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industries not complying with the regulation/orders may be directed by the Pollution Control

Board or the Central Covernment It may be submitted that these Acts do not prohibit

carrying on activities resulting into pollution but lay down certain standards to be followed.

The freedom being not aboslute the right to business or trade may be controlled and stopped

if one fails to comply with. This proenvironmental apporach has helped to reduce the

pollution load.

(d) Right to Equality :

Article 14 of the Constitution guarantees to every person the right not to be denied

equality before the law or the equal protection of the laws. The guiding principle of the

Article is that all persons and things similarly circumstanced shal1 be treated alike both to

privileges conferred and liabilities imposed. It professes to check arbitrariness. Artilce 14 may be

infringed by government decisions that have an impact on the environment. The environmental

group plead to quash arbitrary decisions for constructions that are contrary to development

regulations. Article 14 may be invoked to challenge government sanctions for actitivies with high

environmental impact, where permissions are "arbitrarily" granted without an adequate consideration

of environmenfal impacts.122

(e). Right to know:

Part III ofthe Constitution does not mention the right to know or the right of access toinformation as a fundamental right. Article 19( 1 ) ( a) enshrines fundamental right to speech andexpression to the citizens of the country and the judiciary has successfully interpreted to mean by itthe freedom of press also.123 The press has

122. M.C . Mehta v. K amal N at h (1997) ISCC 388. See also K ink r i Devi v. S tate of H imac hal

Pr ades h AIR 1988 H P 4,9.

123. Ramesh Thappe r v. S tate of Mad r as AIR 1950 _C 124; Br ij Bhushan v. Del hi AIR 1950

SC 128.


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in India assumed the role of the Pl1blic educator and become most effective and popular media

among the masses. Right to information in India on the other hand is in the process of development

and yet to claim a clear status as "India celebrates the bureaucratic culture of confidentiality and

secrecy", 124 In a democratic polity dissemination of information is foundation of the system.

Keeping the citizens informed is an obligation of the go_ernment. In the modern age of

highly industrialised society where the leakage of poisonous gases in air in the residential

areas and discharge of highly to1fic wastes into the water near the human settlements is the

ordinary course oflife, the right of the citizens to know the nature ofhazardous or polluting

activities requires urgent deliberations and legislations.

. The state of affairs is not better in the more industrialised European countries, if one looks at

the European Environment law. Though commentators on Austrian and Fiench

Environmental laws have suggested to make available to the people an adequate education

and regular and objective sources of information in environmental matters for the citizens.'25

At the international forum, Stockholm Declaration, 1972 may be held as the first document

stressing the need for information to the people regarding the environment. Principle 19 of

the Declaration passed in mternational conference on Human Environment reads as :

Education in environmental matters for the younger generation as well as adults,

giving due 'consideration to the under-privileged is essential in order to broaden the basis for

an on lightened opinion and responsible conduct by individuals, enterprises and communities

in protecting and improving environment in its full human dimensions. It is also essential.

that mass media of communication avoid contributing to the deterioration of the

environment, but, on the contrary, disseminate information of an educational nature, on the

need to protect arid improve the environment in order to enable

124. Upendra Baxi ; Democr atic Dimensi ons of t he Ri gh t t o I n form ati on, Brochure released by Ministry of

Information and Broadcasting, Government of India (1990).

125. S. Ercman (ed) E uro pean E nvironmental Law. Le g al and E conomical A ppr aisal. 344(19"'7).


40/52

man to develop in every respect.

W orId commission on Environment and Development,126 Gro Harlem Brundtland,

being its chairman in 1987, recommended for free access to relevant information, public

inquiry and improvement of education for the better use of resources. United Nations

Conference on Environment and Development, 1992 once again put stress for access toinformation to the individual. Principle 10 reads as:

Environmental issues are best handled with the participation of all concerned citizens at

the relevant level. At the national level, each individual shall have appropriate access to

information concerning the environment that is held by public authorities including

information on hazardous materials and activites in their communities and the opportunity to participate in decision-making processes. States shall facilitate and encourage public

awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

In the backdrop of the World Declarations, looking b ack to the Indian Constitution one

finds Article 19( 1) (a) which has been interpreted by the Supreme Court to include various rights

including right to get information. The development of this right can be traced down to the case of

S akal N ewspape r s (P) L td. v. U nion of I ndia,128 where the Supreme Court tacitly aBmitted

that if circulation of a newspaper was restricted, not only the press suffered but the reader ineffect was denied the information. The govemmen_ could not under the guise of regulating

the distribution of newsprint, control the growth and circulation of newspapers. 129

126. Our Common Future, 63-64 (1987).

127. Rio Declaration, 2 (1992).

128. AIR 1962 SC 305.

129. Bennett Coleman v. U nion a fI ndia AIR 1973 S(;_1O6.


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Mathew, 1. in S tate of U tta r Pr a J _sh v. Raj N ar ainl3 O was the first to recognise the citizen's

right to know:

The people of this country have a right to know every public act, everything that is donein a public way, by these public functionaries. They are entitled to know the particulars of

every public transaction in all its bearing. The right to know, which is derived from theconcept of freedom of speech, though not absolute, is a factor which should make one wary,

when ,secrecy is claimed for transactions which can at any rate, have no repercussion on

public security.13l

A more explicit mention of the right to know as a constituent of the right of freedom of

speech and expression guaranteed by Article 19(1) (a) of the Constitution came in the judge's

case 132 where Bhagwati,J, observed that disclosure of information in regard to the functioning of

government must be the rule and secrecy an exception justified only where the strictest

requirement of public interest so demands. 133

In Reliance P et ro chemicals Ltd. v. Pro pr iet or s of I ndian E xpr ess, 134 Sabyasachi

MukheIji, J, raised the right to know as basic right to recognise as an element of right to live.

He observed:

We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a

basic right which citizens of a free country aspire in the broader horizon of the right to live in

the age on our land under Article 81 of the constitution. That right has reached new

dimension and urgency. That right puts greater responsibility upon those who take upon

130. AIR 1975 SC 865.131. Id 884.

132. s. P .Gupta v. U nion of I ndia AIR 1982 SC 148.

133. Id 234, see also I ndian E xpr ess N ewspape r ,_ Bombay P . Ltd. v. U nion of I ndia

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