‘’Earth provides enough to satisfy every man's needs, but not every man's greed.” - Mahatma Gandhi
A talk on the environment does not relates to the laws made by human but the laws of the nature which is omnipotent and self-reliant and sometimes an abstract and a metaphysical but at the end certainly “divine”. Man is also one of the units of the nature but the only difference is intellect is bestowed upon him by the nature. Bestowing intellect certainly demands that he should work for the solidarity and safeguarding the creatures of nature from any calamities and impediments. In the case of Ridge v. Baldwin Lord Reid observed on the natural justice of a human being, where a police officer was unheard by the authority and dismissed. He challenged the same on the principle of audi alteram partem (hear the other side too): His Lordship observed:
“The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the Courts is much more definite than that”. (Italics supplied)
The reason for quoting these wordings of the most revered Justice in England is that environment though bestowed on every individual equally and where none of us know how the air looks like, few of us touched the moon and stars in the galaxy but not we all, none of us dare to touch the Sun but we perceive it by our sense and none of us know the range of sky and why it looks blue but we enjoy its omnipresence. What here the author would like to stress that not necessary that the every aspect of the environment and its existence could be defined but still it has its own perennial existence. Environment therefore cannot be encompassed and measured. It does not have its own voice but has its expression by existence. It proves sometimes a boon to the humanity and sometimes a bane. All existence on the earth therefore depends on the behavior of the environment which itself is beyond the range of human imagination. So what is left into the hands of human intellect is to walk on the path of protection and preservation of cohesive environment because secret of his own survival depends on it.
So, as the learned judge in the above case has observed natural justice is the right of every human being i.e. “Right to be heard” in the same sense though environment is voiceless the human has to pay heed to it and shall not pay blind eye or deaf ear as he is the product of the same. Environment is the basic structure of the universe and therefore author would like to define it as “What man creates is an Environment and it is the product of keen or casual observation of duties by him and the ultimate impact of which will be there on his and others living rights.” (Emphasis added).
Environment – International scenario, Constitution, Legislations and Judicial Decisions.
It was defined by UNEP as “that outer physical and biological system in which man and other organisms live- is a whole, albeit a complicated one with many interacting components” which includes “rocks, mineral, soils and water, its land and their present and potential vegetation, its animal life and potential for livestock husbandry and its climate” ii. It was defined as “the physical surroundings, conditions, circumstances etc. in which a person lives”iii. As per the Environment (Protection) Act, 1986iv. “Environment includes water, air and land and the inter relationship which exists among and between water, air and land and human beings, other living creatures, plants, microorganism and property”. The Encyclopaedia Britannica observed “Environment means the entire range of external influence acting on an organism, both the physical and biological and other organism.
So environment is nothing but the relation of biotic and abiotic things forming part of the ecology. Existence of abiotic things is that necessary for the biotic things as that of walls in the making of house. But making of the house is not enough because the house is known by its homeliness and this responsibility utterly rest on the man who is the intellect dweller in this nature and its bastion. He can grace or disgrace the nature by his intellect but same is not the case with other creatures. Every individual creature of nature may be living beneath or above the earth, beneath or above the water or in the air redeem the nature what it takes. This process of pollination and giving back to the nature for rejuvenation can be witnessed in other creatures except the man. Hence the intellect of the man only extracts from the nature and never pays back. May it be Water, Earth, Wood, Food and Air. Therefore to regulate his uncontrolled greed for development a thought was given by the International and National community for laying some yardstick for development of which no ambit no scope was defined under the garb of exhuming from the nature forgetting deliberately or intentionally the existence of other creatures. The author would like to touch upon some obligations laid down at the International platform in the hard work for “Environment and its Protection”.
The United Nations assembled at Stockholm in 1972 to take a look on the environment quality for human existence where some principles were laid down by the member nations. The measures taken by this Conference was to intensify at national, regional and international level an elimination of impairment of the human environment and improve the surroundings for human survival The object of the Conference was (1) Planning and management of human settlements; (2) Natural resources and its management; (3) Identify and control the Pollutants and nuisances affecting international world. (4) Importance of environment in educational, social, cultural sphere and information thereof in general; (5) To highlight upon development and environmental aspect and (6) Implementation of decisions taken at international platform on environmental concern. Interestingly the efforts for conservation were appreciated and the “Stockholm Declaration” accordingly presses upon seven important truths of man and also laid down the 26 principles for Human Environment. The seven truths highlight upon the fact that man is the creator and alternator of his environment and hence an intellect of man should always incline in favor of environment and its preservation on the path of development. The 26 Principles had been laid down at the same conference showing a concern that man has the fundamental right to live and at the same time his duty is towards the inter-generational equity, so that each generation could enjoy the vital resources of nature. The principles are nothing but a call for developed and developing countries to ensure economic development with prerequisite of environmental protection and natural resources conservation.
After this In 1976 UN Habitat Conference on Human settlement held at Vancouver, 1976. It was convened on the recommendations of the UN conference on Human Environment where the General Assembly expressed that there is a need to consider conditions of Human settlements, especially in developing countries. Basing upon the principles of the United Nations Charter, the conference was called upon to provide solutions for world problems and to create an international community based on equity, justice and solidarity. The issues of concern dealt with in the conference were Social, economic, ecological and environmental deterioration, World population growth trends in the next 25 years and their need for growth, food and shelter etc., Uncontrolled urbanization and related problems, Rural backwardness compelling many to live in backwardness, Involuntary migration from own region, establishment of a just and equitable world economic order establishment of a just and equitable world economic order, recognizing that there is a need of establishment of a just and equitable world economic order and its imperativeness. The Conference highlighted upon “Opportunities and solutions” to deal with all these problems. General principles laid down that the Economic development must result into the Quality of life, dignity of human. No forceful settlements in the territory should take place and it should be condemned. Sovereignty of the country must be respected and every State has the right to take the necessary steps to maintain under public control the use, possession, disposal and reservation of land. Every individual have a right of free movement and have a right of settlement within the domain of his own country. Every State has the right to take the necessary steps to maintain the use, possession, disposal and reservation of land. Every State has the right to plan and regulate use of land, which is one of its most important resources, in such a way that the growth of population centers both urban and rural are based on a comprehensive land use plan. Every State has right to protect its Historical Monuments and settlements against any attacks or aggression. Developing countries must try to involve youth and women in political, economic and social activities of the country. “Guidelines for actions” had been given in details (1-22) so that the Governments and the International organizations should strive for the better Human settlements for the future world by maximum utilization of land in a planned manner for the betterment of human existence. The United Nations Environment Programme (UNEP) was established by UN in June 5, 1972 especially to deal with Environmental issues in the world and to coordinate the global activities relating to Environment, having it Head Office at Nairobi, Kenya. The Mission of the UNEP is “To provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.” Its functional programs are carried through (1) Division of Early warning and Assessment (DEWA) It provides timely, scientifically credible, policy-relevant environmental analyses, data and information for decision-making and action planning for sustainable development. It monitors, analyzes and reports on the state of the global environment, assesses global and regional environmental trends and provides early warning of emerging environmental threats. (2) Division of Environmental Policy Implementation (DEPI) It functions for Ecosystem management for human well-being and covers Ecosystem services, and economics, Fresh water and terrestrial ecosystems, and Marine and coastal ecosystems. It also addresses environmental causes and consequences of disasters and conflicts; and Adaptation to climate change. It deals also with Poverty and environment initiative thorough UNDP-UNEP Partnership. Also it emphasizes upon the Environmental education programs. (3) Division of Technology, Industry and Economics (DTIE) Set up in 1975, three years after UNEP began. It (DTIE) provides solutions to decision-makers and helps change the business environment by offering platforms for dialogue and cooperation, innovative policy options, pilot projects and creative market mechanisms.(4) Division of Communication and Public Information( DCPI). Communication lies at the very heart of UNEP's mandate and effective communication is an integral part of the strategic management of the organization. It communicates for Public awareness via different media. Celebrate World Environment Day and campaign on food waste (Think, Eat and Save).Organizing activities and events on environmental issues. Own publications “Our Planet” and “Tunza” and maintaining Library for public enquiry and questions. UNESCO organized intergovernmental conference on Environmental Education in Soviet Georgia. It had given the emphasis on Environmental problems, Role of Education, Inter-Governmental efforts in preservation of environment. The Report suggested that the It would be advisable to associate in the efforts of Environmental protection efforts, not only educational research institutions but also universities, scientific research centers and other institutions concerned with research into various aspects of the environment.
In Nairobi in 1982, 105 nations gathered for declaration on long term environmental strategies till 2002 and beyond and the same was endorsed by UNEP. They have adopted the “Nairobi Declaration” in support of the Stockholm Declaration and the pledge was taken so that the small planet earth would be transferred to our future generation fruitfully for their enjoyment. It was also decided to form a Commission which will provide a guideline on “Sustainable Development” till the year 2000 and onwards. Accordingly an Inter-Governmental Committee was established on Development and Utilization of New Renewable resources of energy. In the same year the UN General Assembly adopted “World Charter for Nature” for guidelines to human in dealing with nature. The Charter for Nature is a collective call to for promoting nature conservation. Important coverage was given at the apex international forum for first time, for sustainability of life on the earth and it was readily accepted by the nations of the world. The General principles lay down the essential process in the nature shall not be impaired and the natural habitat in the atmosphere viz. on the soil, sea or else shall not be affected by human developments. The ecosystem in all its form should be preserved. Charter shall be mandatorily followed by all the States by implementing the principles in the charter at their domestic laws and similarly at the International level. In 1982 International conference on “Environmental Education” was held at New Delhi calling for education, research and monitoring and emphasized on formal and informal education on environment. An urge was also made to the NGO's to join in the mission. Non- Aligned Movement (NAM) also joined in the momentum in that year in New Delhi and where the Prime Minister Mrs. Indira Gandhi expressed “Some people still consider concern for the environment an expensive and perhaps unnecessary luxury.
In any policy decision and its implementation, we must balance present gains with likely damage in the not too distant future. Human ecology needs a more comprehensive approach”. In the year 1985 again the emphasis was given upon the “Protection of the Ozone Layer” and a Vienna Convention was held towards international cooperation for the protection of the ozone layer. A thought was given that the atmospheric area between 15-30 km. above the earth surface where ozone is prevalent; should be protected, which prevents and filters the harmful ultraviolet radiation (UV) from the sun reaching towards earth. It was also decided appropriate legislative and administrative measures should be taken by the contracting parties. The Convention was followed by an international agreement in 1987 in the form of a treaty “Montreal protocol on Substances That Deplete the Ozone Layer” and a concrete step was taken to avoid and control all those pollutants which affect the ozone layer. Later on the “Earth Summit” at Rio-de-Janerio in 1992 was called upon on “Environment and Development” to preserve Environment form irreversible damage and reaffirming the Declaration of Stockholm in 1972. Agenda 21 as a blue print and About 27 principles were laid down for the guidance of States in 1992.The Principles again emphasized upon sustainable development. States are bound to control the damages caused by their developmental activities to other trans boundary States and shall give such prior intimations. Environmental impact assessment should be mandated which likely to cause adverse impact on environment and the same is subjected to the decision of competent authority. Women and youth should be given the participatory role in environment protection. Indigenous people and their communities and other local communities should be made aware about environment protection by preserving their identity, culture and interests. Also States shall strive for the protection of environment even during warfare likely to cause destruction. States and the people should cooperate in furtherance of the principles embodied in the declaration for sustainable development. In 1996 UN Conference at Human Settlement (Habitat-II) held in Istanbul, Turkey and adopted the “Habitat Agenda” highlighting on “everyone has right to adequate standard of living for themselves and for their families, including adequate food, clothing, housing, water and sanitation and to continuous improvement of living conditions”. So (Habitat II) addressed upon two themes- “Adequate shelter for all" and "Sustainable human settlements development in an urbanizing world". Human beings and their shelter (sustainable human settlements) are the concerns for sustainable development balancing with the nature.
The UN Millennium Declaration in its Fifty Fifth sessions held on 8th Sept.2000 and it was pledged that UN shall work as an effective instrument for development and against poverty, ignorance and disease, injustice, violence, terror and crime, degradation and destruction of our common home.” It was in 2002 the International conference on “Sustainable Development” was called at Johannesburg. It was mostly directed on the measures- Commitment for sustainable development, global society with human dignity, provide future generation a world free from indignity, indecency caused by poverty and degradation caused by unsustainable development, to strengthen upon sustainable development by economic development, social development and environmental protection - at the local, national, regional and global levels, to assure the future generations that they will inherit the sustainable environment from the preceding generations and to have a practical and visible plan to bring about poverty eradication and human development at the crossroads. Afterword, United Nations Conference on Sustainable Development Rio+20, Earth Summit 2012 takes place. This conference came with a political outcome document containing clear practical measures for the sustainable development. The Sustainable Development Goals (SDG's) and Millennium Development Goals (MDG's) with post 2015 development agenda speaks for the same. Also a highlight was made on Green Economic Policies. The Conference also pledged for number of thematic, including energy, food security, oceans, cities, and decided to convene a Third International Conference on SIDS in 2014. The Rio+20 Conference also galvanised 700 voluntary commitments and witnessed the formation of new partnerships to advance sustainable development. It highlighted upon the thematic “Future We Want” – and generated new momentum for achieving sustainable development. So this synergy, in between the countries at UN level certainly ends into a world of sustainable development. Many more efforts at National, International and domestic level are taking place under the directives of UN for the growth with sustainable environment. India is bound by those international covenants vide its constitutional provision where Parliament is mandated to make legislations on the same parametersv.
Our Constitution has taken care for sustainable development of all in the very prologue of the Constitution called “Preamble”. It States that citizens of India pledged for securing Justice, Liberty, Equality, Dignity and permeate Fraternity, Unity with Integrity in the Country. This pledge is taken by all for the citizens of India, but now the real issue is whether we have succeeded in making our pledge true.
If we talk in terms of Justice- Social, economic and political we can say that only one is satisfied i.e. political but not social and economic. In terms of Liberty- of thoughts, expression, belief, faith and worship we still not achieved that in its true spirit because the liberty brings differences and clashes mostly on ethnic and religion basis in our heterogeneous democracy. Equality- for status and opportunity is still fighting though we have many policies on the issue. In this backdrop fraternity, unity and integrity of the nation seems to be fragile. Then what is the solution? In the view of author it is only our pledge in the same Preamble for “dignity of the individual” if sustained then we may fulfill the dream of our versatile democracy. This dignity of the individual certainly has a concern with the wholesome environment too because livable environment could only survive the people of India and secure as promised in the preamble.
Our Constitution makers certainly had given a thought to this “Environment” concern and had taken care while granting “Fundamental Rights” under Part- III that though they are fundamental they are not absolute in all sense and hence let us have a look on those prominent Articles imbibing on the concern for environment.
Art-19- Protection of certain rights regarding freedom of speech, etc.-
The freedom of speech is subjected to reasonable restriction in the interest sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. In the same way freedom of assembly is restricted in the interests of the sovereignty and integrity of India or public order. Freedom of association is restricted in the interests of the sovereignty and integrity of India or public order or morality. Freedom of movement, residence and settlement is restricted by in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Freedom of practicing profession. Restricted by the State by making any law imposing in the interests of the general public the reasonable restrictions and at the same time the State can prescribe professional or technical qualifications for practicing any profession or carrying any occupation, trade or business or even the State can exercise monopoly in the matter of any trade, business, industry or service to the exclusion complete or partial of citizens or otherwise. (Italics supplied)
So for the present topic in hand if one give a detailed look at Art-19(6) imposing reasonable restrictions on the trade or profession in the interest of general public vested in the hands of State and the State can accordingly take the welfare measures in the interest of general public because State holds a Public trust. Not only this, Art-21- Protection of Life and Personal Liberty- was expounded by the Supreme Court in every form and aspect of Life and laid down many judgments on the same line observing “Wholesome Environment” is right to life and which cannot be denied under the garb of Freedom of trade, business or profession.
The Apex Court held “The Precautionary Principle and The Polluter Pays Principle” are the salient features of the “Sustainable Development. Art-21, Art-48-A and Art51-A (g) makes it obligatory on the State and the citizens to protect and preserve the environmentVI. In Taj Trapezium case the Court applied directly the precautionary Principle observing that it is our duty to preserve our prestigious monumentsVII. In A. P. Pollution control Board case the Court observed that inadequacies in the science compel the Court to interfere and it is better to err rather than allowing a harm which is irreversibleVIII. In Oleum Gas Leak caseIX the Court observed that the manufacturers of products discharging toxic effluents into the region would be liable for payment of the Compensation on the principle of “Absolute Liability” under Indian scenario. It was observed that “hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community.” It laid down further that “We have to evolve new principle and lay down norms which adequately deal with the problems which would adequately deal with the new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for that matter of that, in any other foreign country.”(Italics supplied) The Supreme Court therefore dissents on any exceptions to liability as bearing in the case of Rylands v. Fletcherx decided in England on the principle of strict Liability evolved in 19th Century.
Bhopal gas tragedy is the patent example where the people since 1984 fighting for the justice and the Court in 1987 therefore addressed the issue by laying down this principle of Absolute liability. Also referred as, No Fault liability or Liability without fault. The above case is a mile stone, in the development of Environmental Jurisprudence in India. In M. C. Mehata v Kamal Nath the Court directed the Motel to pay compensation by way of cost for the restitution of environment and ecology of the area. The respondent attempted to divert the natural flow of the river for private and commercial use. The Court further observed that the State by leasing ecologically fragile land to the Motel has committed a patent breach of public trustXI. On the same line the Court observed the Mahapalika has committed a breach of Public Trust when Lucknow Mahanagar Palika permitted a builder to develop an underground market below public park.xii
The Constitution further vide Art 23. Prohibits traffic in human beings and forced labour and Art 24 Prohibits employment of children below the age of fourteen years in factories, mine or engagement in any other hazardous employment. Further Art-25 and 26 speaks about public order, morality and health as the preconditions for enjoyment of freedom of religion. So vision of our Constitution makers very apparently indicates that no freedom shall be absolute and same is the case with the right to trade, business, profession or occupation. Even further Part- IV on “Directive Principles” expressed vide- Art-48-A- Protection and Improvement of environment and safeguarding of forests and wild life. In M.C. Mehta (II) v. U.O.IXIII Supreme Court had given the direction under this Article that various local bodies and Boards shall take appropriate steps to preserve the water from pollution and as per Part-IV- A,Art51A(g) under “Fundamental Duties” the Central Government should introduce compulsory subject of teaching on improvement of natural environment. In T. N. Godhavaram caseXIV the Court directed the Government to take appropriate steps in the protection of wild buffalo.
If one turns towards the laws on the issue of environment and its protection which are put to amendment from time to time one can notice they are manyXV. Not only this even we have the other laws dealing on the subject viz. Indian Penal Code, Code of Criminal and Civil procedure, Bombay Police Act etc. Also the prohibitory Local Laws and norms are there. For the State of Maharashtra we have The Maharashtra Felling of Trees (Regulation) Act, 1964 for better provision for regulating the felling of certain trees in the State of Maharashtra and operated under the chairmanship of Collector for revenue areas. Other Act, The Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 was made operative under the chairmanship of Municipal Commissioner. The Act is enacted to make better provisions for trees in urban areas in the State by regulating felling of trees and providing for planting of adequate number of new trees in those areasXVI. The Maharashtra Ownership Flats (Regulations of The promotion of Construction, Sale, Management and Transfer) Act, 1963, controls the multi-storeyed dwellings in the cities. Even the Corporation (town planning Department) rules expects the builders to plant the number of trees and against that also deposit amount was taken which may be returned only if rules followed. Even the corporation may not provide the “Commencement Certificate” for non-completion of the desired requirements for plantation of trees and their safety. But, we failed largely on this aspect because of unawareness of the occupant customer and lackadaisical approach of Administration and nexus with Builders.
So the rules, regulations, byelaws and legislations are many on the issues on environmental preservation (air, water, Noise, wild life, Forest etc.). The legislations are made in alignment with the Constitution and International treaties certainly are effective. But on the other side of the coin it is also true that “Development” is the need of the global world. Certain amount of pollution is permissible and without which development is impossible. But the real question is, it should not be at the cost and unwarranted destruction of our own environment. The resources of benefit must reach to all without discrimination otherwise we are playing fraud with our Constitutional dutyXVII. We must rest development upon the pivotal of inter-generational equityXVIII. Recently even our own Supreme Court ordered Goa Government to take necessary steps in preservation of environmentXIX. The problem of threat to mangroves in Mumbai was also at threat and the forest department is proposing a conservation project that promises to double the amount of mangroves across six districts in the state over a decade. Three of these districts-Mumbai, suburban Mumbai and Thane-fall in the Mumbai Metropolitan Region (MMR), while parts of Raigad are also part of the MMRXX. The lions share in the management of the issues of Environment certainly lay in the hands of local self-Government. Urban and Town Planning authorities have to implement the policies as per the spirit of lawxxi and the people have to respond to the cause affirmatively.
Conclusion
In the end it can be said that the main concern is not about the development but about the undefined ambit of development which may explode the globe and ruin the life on the earth of which reason is men and his greed and the preys are all even the innocent creatures. Laws are one of the mode of controlling human activities contributing pollution occurred by trade, business, occupations etc. Right to profession and livelihood is the guaranteed right under Art- 19 &21 but right never travels lonely but is subjected to duty. Performing own duties reciprocally results into protection of right of the others. So the right to business never been denied but certainly subjected to reasonable restrictions imposed by law and the reasonability will always be tested by the independent judicial mind. Even the right to Freedom of Religion under our Constitution is subjective and governed by Public order, morality and health.
So the solution to this entire dilemma can be traced from the well settled law by one of the venerated Justice Lord Atkin in Donoghue v Stevenson [1932] AC 562 House of Lords- observing:
“The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer's question “Who is my neighbor?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."(Italics supplied)
This principle of neighborhood given by the learned judge has no bound and can be applied even beyond the boundaries of nation when in Trail Smelter Arbitration caseXXII. The sulphur dioxide fumes emitted from the plant in Canada and spread over to USA causing damage were challenged and the Arbitration Tribunal awarded compensation to the Government of USA. So the different countries exists on the one earth by fragmentation however the nature at every corner of the globe is same and never discriminate. Pollution at one end of the globe certainly maligns the other corner. Hence major responsibility rest on the trading and business Industries who relentlessly contributes pollution to air by fumes and noise, pollution to water by effluents and sludge, health hazards by wastes and deforestation, ecological imbalance by mining, quarry and other excavations. So development should be rational and not errant. If man sows (development) errantly he has to reap it accordingly.
So finally while giving rest to the thoughts on this issue, it seems that the ethical business is the only panacea which rest in the lap of the principle of neighborhood i.e. duty to take care and respect others rights and define the boundaries of development by gauging the Environment Impact Assessment. Under Indian way of life and indigenous thinking the community living is the strength and web of the society. Community living includes not only human relations but his relationship with flora and fauna and the nature around him. To be humane with environment only can provide him the blissful and dignified life as we have cherished in the Preamble of our Constitution and business is not an exception to this. Business without fidelity towards neighborhood environment leads to a dismal and bleak.
References
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