Introduction:
The Preamble of our Indian Constitution establishes the socialistic pattern of society in our nation. The basic idea behind this concept was to promote a safe and decent stand of living to all which is possible only if the environment around us is protected from destructions. Some of the directive principles which reflect this principle vividly are 39(b), 47, 48, and 49. Thus, these provisions of the constitution impose a duty on the state to take steps in improving and safeguarding the environment of the country. The substantial move taken by the State towards the protection of the environment was only after the Stockholm Conference, 1972. After this conference, it hit the minds of the framers that there is a need to safeguard the environment.
The 42nd amendment of the Indian Constitution, popularly known as the mini-constitution, added 48A, and 51A clause (g). These amendments moved the forest, wildlife protection control to the Concurrent list enabling the Central and the State to frame laws for environment protection. In a landmark judgment, the Supreme Court held that right to live in a safe and healthy environment is a basic right guaranteed under Article 21 which ensures the right to life.[1] Therefore, Article 48, 21, 51A (g) were considered as the stones of environmental jurisprudence in the Indian Constitution.
Article 48 of the Directive Principles of State Policy
Article 48 of the Indian Constitution talks about the organization of agriculture and animal husbandry:
“The State shall attempt to take steps towards organizing agriculture and animal husbandry on modern and scientific lines and for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
This article directs the state to take steps in preventing the slaughter of animals of several categories of animals. It explicitly bans the slaughter of animals like cows, claves, and other cattle that match the description of milch or draught. Rearing animals like cows contributes to both morality and economy at the same time and helps to perish the villages’ economy.
The state of Gujarat v. Mirzapur[2] was one of the landmark cases relating to cow slaughter. The Bombay Animal Preservation Act, 1948 enacted by state Bombay prohibited the slaughter of animals useful for agricultural purposes. This Act was extended to the state of Gujarat and was amended in 1994. This statute was challenged and the High Court held it was an unreasonable restriction on the fundamental right, therefore it struck down the impugned legislation.
The 3 grounds on which the legislation was struck down were:
The sacrifice of a cow on a particular day was a custom followed by the religion of Muslims, so the total ban on slaughtering of the cow had offended them.
Article 19(1) (g) of the Indian Constitution ensures to right to practice any profession, trade, or business. The total ban on slaughtering of animals is affecting the fundamental right of butchers and it was not considered as a reasonable restriction under this right.
The ban was not as per the public interest.
A two-judge bench of the Supreme Court held that slaughter of old and useless buffaloes are permitted. The Andhra Pradesh Preservation of Cow Slaughter and Animal Preservation Act, 1977 allows slaughtering useless cattle in the view that those cattle involve a wasteful drain in the nation’s meager cattle feed resources. The Central government and the government of Andhra Pradesh gave full permission to Al Kabir Exports for slaughtering cattle and exporting meat.[3] Even in Mohd. Hanif Qureshi’s case,[4] it was held that maintenance of old and useless cattle becomes a wasteful drain on the cattle feed provided by the nation.
But in Haji Usmanbhai Hasanbhai Qureshi v. the State of Gujarat,[5] the Supreme Court upheld the ban of the slaughter of bulls and bullocks below the age of 16. It was held to be a reasonable restriction because cattle-breeding was done using scientific methods even after the age of 16, so they remain useful.
42nd Amendment – Article 48A and Article 51A clause (g) of the Indian Constitution.
The Stockholm Conference and the increasing awareness of environmental protection led to the enactment of the 42nd Amendment to the constitution by the Indian Government. The Amendment inserted the following in the Concurrent list:
Entry 17-A for the forests
Entry 17-B for the wild animals and birds
Entry 20-A for the pollution control
The amendment added 48A in Part IV – directive principles of the state policy of the Indian Constitution. According to Article 48A, the state shall take steps to protect the environment and safeguard the forest and wildlife of the country. The Supreme Court gave directions to the Central and State government and other authorities to take appropriate steps according to Article 48A for the prevention of pollution of water.[6]
The 42nd amendment also added Article 51-A (g), therefore protection of the natural environment turned into a fundamental duty of a citizen. The constitution has made double provision, a directive principle, and a fundamental duty, both concerning environmental protection. The legislative intent under Articles 48A and 51A (g) of the Constitution comes under the definition of ‘environment’ under the Environment (Protection) Act, 1986. The legislature enacted various laws like:
Air (Prevention and Control of Pollution) Act, 1981
Wildlife (Protection) Act, 1972
Forest (Conservation) Act, 1980
Indian Forest Act, 1927
Biological Diversity Act, 2002
Water (Prevention and Control of Pollution) Act, 1974
The Supreme Court while observing the rights of the workmen, reference was made to Article 21, 39(E), 42, and 48-A. it was held that humane conditions of work and leisure are part of the right to life.[7] The citizens and the state must protect the environment including the rivers, lakes, forests, and wildlife. They should have the compassion to every single living creature in the nation.[8] Before interpreting the statutory provisions regarding environment protection, Article 48A and 51A (g) should be kept in mind.[9] Thus it is clear that to determine the constitutional validity of any provision and to test the reasonableness of any restriction, both the directive principle of state policy and fundamental duties have played a significant role.
Role of Article 21 in safeguarding the environment.
The means of adequate livelihood is a prerequisite for a safe and healthy environment, therefore adequate livelihood is ensured implicitly under the right to life of Article 21. It also helps in promoting the steps taken for the protection and conservation of the environment. The important role played by Judiciary is the recognition given to a healthy environment as a fundamental right under Article 21 of the Indian Constitution. The development in our legal system has guaranteed environmental justice to the people. The pollution-free environment is a right ensured in an integral part of the right life under Article 21.[10]
In the Dehradun quarrying case[11], the Supreme Court observed that pollution caused by the quarrying has affected the health and safety of many people and it held the pollution-free environment is a part of the right to life guaranteed under article 21 of the constitution. Again in another case, the Supreme Court held that right to access pollution-free water and the air is the right guaranteed under Article 21 of the constitution. This case laid down the foundation for the environmental legislation in India.[12]
The national dimension of human rights, the right to life and liberty, pollution-free water or air is guaranteed under Article 21, 48A and 51A (g).[13] One of the interesting cases which came across Rajasthan High Court was the discharge of untreated animal blood of the slaughterhouse to the drain of a residential colony. The Court held that the owners have to protect and conserve the environment according to Article 21 and 48A, therefore the slaughterhouse was ordered to be shut down.[14] Any trade which is detrimental to the environment, it can be stopped or shut down without attracting the right ensured under Article 19(1) (g). If the business or trade involves the slaughtering of animals like elephant then it cannot be considered as a trade under Article 19(1) (g) of the constitution.[15] Therefore the provision of Article 48A is to be construed under the rights and principles ensured under Article 21 of the constitution.
Conclusion
By examining various cases in India, it can be concluded that the underlying principle of all cases was of protecting and preserving the environment. But there is no legally enforceable provision regarding the environmental protection in the constitution. The evolution of the principle about the protection of the environment has been very slow but has happened over time. Since the incorporation of Article 48A by the 42nd amendment, the Indian Judiciary has started giving importance to the idea of protecting and improving the environment. The Supreme Court also in several cases has interpreted the mandates regarding environmental protection and has given convincing orders. Article 48A has spread more public awareness all over the world about the need for preservation and conservation of the environment from pollution. Preservation of forests and wildlife are looked up many people to achieve the ecological balance.
Case laws:
[1] M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 965.
[2] State of Gujarat v. Mirzapur Moti Kureshz Kassab Jamat, (2005) 8 S.C.C. 534.
[3] Akhil Bharat Goseva Sangh v. State of Andhra Pradesh, (2006) 4 S.C.C. 162.
[4] Mohd. Hanif Qureshi v. State of Bihar, 1959 S.C.R. 629.
[5] Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat, (1986) 3 S.C.C. 12.
[6] M. C. Mehta v. Union of India, (1987) 4 S.C.C. 463.
[7] C.E.S.C. Ltd. v. Subhash Chandra Bose, A.I.R. 1992 S.C. 573.
[8] T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 S.C.C. 606.
[9] State of West Bengal v. Sujit Kumar Rana, (2004) 4 S.C.C. 129.
[10] Ratlam Municipality v. Vardicharan, A.I.R. 1980 S.C. 1622.
[11] Kendra v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652.
[12] Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420.
[13] Charan Lal Sahu v. Union of India, A.I.R. 1990 S.C. 1480.
[14] Sanjay Nagar v. State of Rajasthan, A.I.R. 2004 Raj 116.
[15] Ivory Traders and Manufacturers Association v. Union of India, AI.R. 1997 Delhi 267.
Pooja
4th Year
BBA LLB (Hons)
Sastra Deemed University
