INDIAN CONSTITUTION AND ENVIRONMENT

Framers of our Constitution had realized a developing India, as the time moves on, will present before its citizens many issues that were immaterial or unheard of in those days. And that is why they gave us a comprehensive document that touches every part of our society, the individual, the community, the administration and the government. What is remarkable is the fact that every new challenge, every new issue can be interpreted in terms of the guidelines mentioned in the Constitution as mentioned in its preface, “Constitution is a living document, an instrument which makes the government system work.”

One such issue is environment. Pollution has reached to threatening levels in our country with 13 of the world’s 20 most polluted cities being Indian. Pollution is not something that has come into public psyche just now. It has had history of its own, especially in the aftermath of the industrial revolution in Europe in 18-19th Century coupled with the advent of fossil fuels. The world can never forget the Great Smog of London in 1952 that killed over 4000.

The framers of our Constitution deliberated on these issues and gave us safeguards that would continue to defence us, through the custodians of the Constitution, the Judiciary, even if the governments continue to fail us on environment and pollution. What can be a more apt testimony to this ‘Constitution is a living document’ spirit than the fact that our courts, including the Supreme Court, have, from time to time, have reminded the government and the industry that, though not directly mentioned, ‘Right to Environment’ is a Fundamental Right under Article 14, 19 and 21.

The Constitution empowers the citizens and the courts by ensuring ‘remedies for enforcement of rights it confers’ as defined by the Article 32 – “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part (Fundamental Rights) is guaranteed” – or by the Article 226 in case of the High Courts.

Apart from the Fundamental Rights, our Constitution also comprehensive lays down guidelines to protect the environment at each level – be it an individual or society (Fundamental Duties) or the administration and government level (Directive Principals of State Policy).

INDIVIDUAL/SOCIETY -PART IVA OF THE CONSTITUTION – THE FUNDAMENTAL DUTIES

Article 51A (G): It shall be the duty of every citizen of India—

• To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

THE STATE – PART IV – DIRECTIVE PRINCIPALS OF STATE POLICY

Article 43: The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.

Article 47: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Article 48A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

THE ADMINISTRATION – PART IXA OF THE CONSTITUTION – THE MUNICIPALITIES

District Planning Committee
Article 243ZD (3A): Every District Planning Committee shall, in preparing the draft development plan — have regard to —
(i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation.

Metropolitan Planning Committee
Article 243ZE (3): Every Metropolitan Planning Committee shall, in preparing the draft development plan — have regard to—
(ii) matters of common interest between the Municipalities and the Panchayats, including co-ordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation.

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SUPREME COURT: SHUTTING DOWN INDUSTRIES A PRICE TO PAY FOR RIGHT TO LIVE IN HEATHY ENVIRONMENT

The killer smog of Delhi has again forced us think where are we heading with rapid industrialisation of our country and its reflection in the society, especially when the governments have failed to take effective corrective measures to check the worsening situation and we are looking again to our courts, the custodians of our Constitution and thus the guarantor of our lives, for relief.

While the National Green Tribunal (NGT) today rapped the Delhi Government again as it failed to come up with a concrete plan to deal with Delhi pollution in spite of the smog continuing for over a week, the Supreme Court of India agreed to hear later today a plea on alarming level of pollution in Delhi and the National Capital Region (NCR). While accepting the pea filed by Supreme Court lawyer RK Kapoor, Chief Justice Dipak Misra observed that the problem had reached to such levels that it could no longer be ignored.

The higher courts, led by the Supreme Court of India, have, from time to time, worked as environmental watchdogs reminding the government and the industry where to draw the line whenever pollution reaches to alarming levels threatening the ecological balance. The Supreme Court, in fact, way back in 1988 had clearly laid out that if pollution by industries reached to an alarming level, they must be shut down irrespective of the investment made in them and their importance for making products useful for society.

RURAL LITIGATION & ENTITLEMENT KENDRA VS STATE OF UTTAR PRADESH – AUGUST 30, 1988
(DEHRADUN QUARRYING CASE)

This case was a first where the Supreme Court, concerned by environmental degradation and ecological imbalance it could have caused, passed a landmark order to stop illegal mining. Through this judgement, the apex court tried to define the limit up to which natural resources (here forest) could be exploited to meet the demands of industry and development.

The case goes back to 1980s. Decades of mining in limestone quarries of the Dehradun Valley stripped the Himalayan Mountains of green vegetation in the state of Uttar Pradesh (now Uttarakhand) against which the Rural Litigation and Entitlement Kendra, an NGO, wrote a letter to the Supreme Court in 1983.

The court treated the letter as a writ-petition starting thus a series of hearings which finally ended in a verdict that for the first time dealt comprehensively with environment review, assessment of national needs from mining activities and reforestation of the affected area.

While delivering the verdict, the court came down heavily on the mining industry of the area, closed their operations and said it was a price that had to be paid to ensure the right to healthy environment, “The consequence of this Order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort. This would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment. “

The apex court also put the government’s responsibility in clear terms while passing the order under the recently enacted Environment (Protection) Act of 1986, “Maintenance of the environment and ecological balance was the obligation of the State and the Central Governments.”

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RIGHT TO HEALTHY ENVIRONMENT: CASE OF DEHRADUN LIMESTONE QUARRIES

RURAL LITIGATION & ENTITLEMENT KENDRA VS STATE OF UTTAR PRADESH – AUGUST 30, 1988
(DEHRADUN QUARRYING CASE)

This case was a first where the Supreme Court, concerned by environmental degradation and ecological imbalance it could have caused, passed a landmark order to stop illegal mining. Through this judgement, the apex court tried to define the limit up to which natural resources (here forest) could be exploited to meet the demands of industry and development.

The case goes back to 1980s. Decades of mining in limestone quarries of the Dehradun Valley stripped the Himalayan Mountains of green vegetation in the state of Uttar Pradesh (now Uttarakhand) against which the Rural Litigation and Entitlement Kendra, an NZGO, wrote a letter to the Supreme Court in 1983.

The court treated the letter as a writ-petition starting thus a series of hearings which finally ended in a verdict that for the first time dealt comprehensively with environment review, assessment of national needs from mining activities in the Dehradun Region and reforestation of the area. Pressing on the need to assess ecological balance and pollution due to the limestone quarries, the court had also appointed an Expert Committee.

The court came down heavily on the mining industry of the area, closed their operations and said it was a price that had to be paid to ensure the right to healthy environment, “The consequence of this Order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report, would be thrown out of business in which they have invested large sums of money and expanded onsiderable time and effort. This would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment. “

The apex court also put the government’s responsibility in clear terms while passing the order under the recently enacted Environment (Protection) Act of 1986, “Maintenance of the environment and ecological balance was the obligation of the State and the Central Governments.”

©SantoshChaubey

RIGHT TO HEALTHY ENVIRONMENT: SHRIRAM GAS LEAK CASE

M.C. MEHTA VS UNION OF INDIA & OTHERS – DECEMBER 20, 1986
(THE SHRIRAM GAS LEAK CASE)

Shri Ram Food and Fertilizers (SFF) was a DCM subsidiary, in fact one of its most profitable ventures. It had various units housed in single complex producing Chlorine and other chemicals. The facility was surrounded by thickly populated localities like West Patel Nagar, Punjabi Bagh, Tri Nagar, Shastri Nagar, Ashok Vihar and Karampura.

In December 1985, oleum gas, that was used in making DDT, leaked from a tank of the SFF factory and soon spread to the populated areas around the factory. The aftermath saw around 700 people being hospitalised for eye irritation and respiratory symptoms and death of a lawyer seven Kms away from the factory, at the Tis Hazari court complex.

The Supreme Court, taking a tough stand in the case, for the first time laid down the principal of absolute liability holding the SFF responsible for putting people’s life at risk by compromising environment. The court observed,

“….gas is admittedly dangerous to life and health. If the gas escapes either from the storage tank or from the filled cylinders or from any other point in the course of production, the health and wellbeing of the people living in the vicinity can be seriously affected. Thus Shriram is engaged in an activity which has the potential to invade the right to life of large sections of people.”

Refuting all the contentions made by the DCM that since it was a private corporation, it could not come under the ambit of activities affecting the Article 21, the apex court went on to enlarge its scope including the right to healthy environment as it directly affected the quality of human life. While accepting the compensation claims made in the case, it said the “applications for compensation were for enforcement of the fundamental right to life enshrined in Article 21 of the Constitution and while dealing with such applications, the court could not adopt a hypertechnical approach which would defeat the ends of justice.”

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CONSTITUTION AND CORRUPTION

No doubt, the Constitution of India won today, when the Supreme Court of India announced the results of the floor test it ordered to be conducted in the Uttarakhand assembly yesterday.

A democratically elected government that was forced out of the state assembly, thanks to the machinations of the BJP led NDA government, was forced in today with the Constitutional remedy effected by the top court of the country.

We all, who care for democratic norms and India’s federal structure, must be thankful for this moment in our contemporary political history.

But, what about the worrying symptoms that don’t leave even these moments of trust?

Judicial intervention to uphold the Constitutional sovereignty comes with its natural by-product in the prevailing political circumstances of the country – willingly or unwillingly acting as a shield to the corrupt practices going in the backdrop – like we all saw in these months – all that happened in Uttarakhand.

Obviously, whenever such a condition of political uncertainty prevails, horse-trading or selling or buying of legislators becomes the norms of the day. It’s an open secret that all know – be it Uttarkhand or Arunachal or even in case of a minority Union Government.

It went a step ahead in Uttarakhand.

The open secret became bare here.

Congress legislators were caught on camera involved in horse-trading attempt. The whole nation saw it – twice. Even then, Harish Rawat, whose Uttarakhand government has been facing allegations of corruption, looked taking high moral ground today after the apex court made the result of floor test public.

To continue..

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/

WHY CAN’T OUR POLITICAL ESTABLISHMENTS ACCOMMODATE VOICES LIKE KOVAN?

While striking down the Section 66A of the Information-Technology Act, the Supreme Court bench had observed, “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”

The Supreme Court decision on March 24 this year officially declared a ‘draconian’ law finally draconian.

The observation focuses on ‘balance between right and the reasonable restrictions that may be imposed on right’, here in the context of the freedom of expression, and rightly so because the law enforcing agencies have had a pretty bad track record in that.

The SC bench of J. Chelameswar and Rohinton F. Nariman said, “If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor-General that it will be administered in a reasonable manner. Governments may come and governments may go, but Section 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor govt.”

Going by the bad precedent set by the law enforcing agencies, the apex court rightly refused to trust the words of the country’s political establishment.

Because the political administration has time and again acted so – with incidents like cartoons and Facebook posts being the reasons for charges like ‘sedition’ and follow-up arrests. Flurry of such cases and the widespread outrage over them were the central reason behind the SC’s decision on 66A.

But what about the concerned Sections of the Indian Penal Code (IPC)?

66A was obstructing the freedom of expression with incessant cases of its misuse, and the right logic was put forward that anything of serious nature causing some serious offence could well be handled by the concerned Sections of the IPC.

What about the misuse of the concerned Sections of the IPC?

There is a long list and yesterday’s arrest of a Tamil folk singer, S. Sivadas or Kovan, for writing and propagating songs with ‘allegedly derogatory’ lyrics on Tamil Nadu chief minister J. Jayalalithaa, has not come as a surprise.

Yes, but as it is to be, and as it is, the anger and the outrage is pouring all across – including from the political establishments anti to Jayalalithaa.

Activists or people like Kovan or many like him, like, for that matter, Jadavpur University professor Ambikesh Mahapatra who was arrested for circulating emails with cartoons of Mamata Banarjee, the West Bengal chief minister, are not known beyond their immediate field of activity or their immediate geographical spread – before their unjust arrest.

They have every right to criticise anyone within the democratic norms. The Constitution gives them this freedom.

But who takes guarantee of ensuring that when the administration acts on the contrary, compromising the rights given by the Constitution?

Courts have to intervene then like the top court did with Section 66A. But it doesn’t happen in a day and the struggle with the controversial IPC Sections takes years for saner voices to prevail, like we saw in Dr. Binayak Sen’s case.

Why can’t our political establishments accommodate voices like Kovan or Ambikesh Mahapatra or Binayak Sen or many others who have a different conscience than our ruling establishments?

What about culture of tolerance in our political establishments?

This May, the Kerala High Court observed in a case, “Being a Maoist is of no crime, though the political ideology of the Maoist will not synchronise with our constitutional polity. The police cannot detain a person merely because he is a Maoist, unless the police form a reasonable opinion that his activities are unlawful.”

This and other similar court observations follow from a landmark observation in 2011 given by the Supreme Court while granting bail to Dr. Binayan Sen. The court had said, “We are a democratic country. He may be a sympathiser. That does not make him guilty of sedition. If Mahatma Gandhi’s autobiography is found in somebody’s place, is he a Gandhian? No case of sedition is made out on the basis of materials in possession unless you show that he was actively helping or harbouring them.” (Here ‘materials’ means Naxalite/Maoist literature.)

If Kovan has done anything that goes against the state then his arrest can be justified but not on the pretexts like his songs are maligning the image of the state’s chief ministers or he is openly criticising the state sops selling liquor/alcohol – especially when ‘prohibition’ has become a sensitive issue across the country.

Kovan’s case reminds me the Marathi movie ‘Court’, India’s official entry to the Academy Awards (Oscars) this year. In the movie, the main protagonist is jailed time and again as police links his anti-establishment songs to the ‘alleged’ suicide of a person, even if there is evidence on the contrary.

Here are links to Kovan songs. I don’t understand Tamil but I am free, and rightly, to express my solidarity.

Shut down TASMAC and Amma TASMAC (Tamil songs – TASMAC is the Tamil Nadu government outfit that runs the liquor shops in question.)

And here is a photograph, sourced from Twitter, showing S. Sivadas or Kovan performing his art.

Kovan-Twitter

©/IPR: Santosh Chaubey – https://santoshchaubey.wordpress.com/