Table of Contents
Role of Constitution in protecting the natural environment- Economic Analysis
Author:Aniket Dutta,
3rd Year B.A. LL.B (Honours),
School of Law, CHRIST (Deemed to be University).
Introduction
The Constitution of India is not a rigid set of legal provisions rather it is as dynamic as the issues emerging with time. Evidently, the environment has been the most significant subject to date. Global warming like situation has been influencing the nature to change. The reason to this is easy to comprehend, being, ruthless human activities, for example, felling of trees for timber, hunting down animals for their skin and different purposes, contaminating the water and air by releasing harmful substances as factory wastes and discharging dangerous gases directly into the atmosphere. The majority of this, when had begun, did not appear to posture such incredible risk as it has been presenting in the 21st century for it being crossing the saturation point until which the earth could have sustained itself. The causes and effects of it can be addressed using both-a jurisprudential and economic analysis. The natural environment as it exists is adequate to support the number of human lives on earth yet the issue emerges because of unequal distribution of such resources the nations over. However, before we proceed to address the issues concerned and challenged forced, we must first address a very controversial question, being, “whether we even owe an obligation of care towards the protection of the natural resources before any Constitutional mandate is forced upon?”
Justifying the absolute duty to protect the natural environment
One of the approaches to deal with the intergenerational equity, that is, the opulence model recommends that the present age consumes all that it needs today and creates a lot of wealth as it can, either in light of the fact that the presence of a future generation is in itself unsure or that wealth maximization at present may only have the capacity to help the requirements of generations to come later. This model portrays the current situation. While consuming resources to its fullest, the model has ignored its long-term degradation of the natural environment that has been generated with time including irreversible losses of species’ diversity and inexhaustible resources. The Parfitt’s Paradox further supports this model by expressing that there cannot be any future casualties of the present choices since it is because of the present decisions and choices taken that a future generation will exist, whatsoever they may be[1].
“Man has a perpetual and restless desire for power”
-Thomas Hobbes
While Thomas Hobbes has been censured for having an extremely critical perspective on human instinct yet after all, that there is a level of truth present in it cannot be denied. “How at that point do we justify the need to protect the environment to those looking for just power?”
John Locke in his natural and property rights theory had a similar view as that of the greater part of the Philosophers in the seventeenth century, who believed that God gave the earth and its natural products in a common manner to men for their utilization[2]. In his view, each man can have his very own property in person and that is made conceivable when a man blends his work in with that property. That being expressed, it brings us to the contemporary realities in which neither does population remain the same nor the natural resources have increased.
Equity: a long-term goal
The principle of equity and equality are interlinked and economic development can continue only when it depends on these principles. The Indian Constitution endeavours to embody in itself the goals of a welfare state. Along these lines, common ownership of natural resources and their equitable distribution is an essential norm to the standards of the welfare state. Equity implies that there ought to be a minimum level of income and environment quality underneath which no one falls and that, in a community, everybody ought to have equal access to the resources. The terms ‘fairness’, ‘equality’ and ‘equity’ have frequently been interchangeably utilized in spite of the fact that they have subtle differences. Regardless, the term ought to be comprehended in a way to imply that the resources are equally accessible to everybody, no single individual holds the burden himself of managing the environment and that the administrative activities ought not to propel anybody to carry about more prominent environmental burden than the others.
Be that as it may, in the contemporary world, equity is a far-reaching objective. This can be comprehended with the help of a simple cost-benefit analysis. Industries manufacturing products regularly will, in general, contaminate the environment around which they work. To put a deterrent impact to it the Judiciary has been relying on the “polluter pays principle” which states that the polluting party must make up for the damage done to the environment and human being. From the industrial activities, the waste produced – poisonous fumes and trade effluents are discharged in the open air and the water bodies thereby dirtying both means for sustenance-air and water. This causes a certain external social cost. To mitigate this cost, the courts’ have been ordering such ventures to either make recycling plants inside the industrial premises or at times, to strike down any such activity. The point here is that these industries operate only to satisfy the consumer wants and needs because “a natural resource’s value rests in the amount of the material available and the demand for it”[3]. If there will not be any demand for the said product then such industry will not operate to manufacture such a product. How then do we hold only the industry liable for the loss to the environment?
Article 39 to the Constitution of India gives the provision of sustainable development to be embraced by the state. It has paved way for the incorporation of “public trust doctrine” into the Constitutional apparatus whereby the state is viewed as the trustee of all the resources and the state must make accessible such resources equally and equitably. In this way, to guarantee this, the state must invest into research and development programs so that many alternative choices of a specific action can be found which would be less polluting on the grounds that sustainable development is guaranteed when it happens for all, for this situation, for both-consumers and producers.
The Problem
A significant part of the environment-friendly provisions is referred to under Part IV of the Constitution of India that contains the Directive Principles of State Policy. These provisions involve the directive for the state while detailing laws. The issue emerges because of their unenforceability in the court of law. For example, significant provisions identifying with sustainable development, common ownership of natural resources, equal distribution of natural resources find a spot in this part alone. So as to determine this issue, the judicial intervention has had been looked for in a variety of cases. “By the term ‘life’ something more is meant than mere animal existence”[4]. Article 21 to the Indian Constitution of India, for example, the right to life and personal liberty have been interpreted to imply a right to clean and healthy environment and the right to livelihood in this manner making it an environment-friendly provision and completely enforceable since it is a fundamental right. Be that as it may, the gap between the fundamental rights and the directive principles was required to be bridged to uphold the welfare state provisions with efficiency. The Judiciary has pursued the principle of ‘harmonious construction’ with regard to this. In In Re Kerala Education Bill[5] the Supreme Court held that in spite of the fact that the directive principles does not tend to supersede the fundamental right
s, in any case, in deciding the scope and ambit of the fundamental rights the court could not totally disregard the directive principle yet ought to embrace the principle of harmonious construction and ought to endeavour to offer impact to both as much as could reasonably be expected.
s, in any case, in deciding the scope and ambit of the fundamental rights the court could not totally disregard the directive principle yet ought to embrace the principle of harmonious construction and ought to endeavour to offer impact to both as much as could reasonably be expected.
The Constitutional Framework
The Constitution as we have in contemporary society is an incredible asset in itself to ensure the protection of natural resources. An appropriate and lawful elucidation of the provisions provide for it. The fundamental rights have been made environment-friendly through judicial intervention. Be that as it may, the efficiency of such provisions is required to be assessed. Among different industries, the chemical, meat and construction industries provide for a great deal of waste and loss to environment productivity by exploiting the natural resources extravagantly.
Pollution from the chemical industries is brought about by the discharge of chemicals into the environment through steam and wastewater. Hydrogen sulphide, boron, arsenic is a portion of the polluting chemical components. The issues emerge when these components get mixed in with the freshwater sources. Essentially, the meat business is representing a grave risk to the natural environment nowadays. The ecological impacts related to the meat business incorporate contamination through non-renewable energy source utilization, animal methane, emanating waste, water and land utilization. The meat business is one of the conspicuous elements adding to the sixth mass extinction[6]. The production of meat causes tremendous ozone-depleting gas emanation, that is, greenhouse gases and along these lines polluting the air causing respiratory issues to people. There is an increased possibility of bacterial diseases because of untreated wastes from meat production. Additionally, the construction industry causes felling of forest trees at a huge scale for timber upsetting the ecological balance depending upon trees. These kinds of contaminations have been common in society for quite a while; in this manner, it becomes critically important to address “how the Constitutional provision will provide for the protection of the natural environment?”
Article 47 of the Constitution of India provide that the state shall regard raising the level of nutrition and the standard of living of people and also the improvement of public health. Article 48 of the Constitution of India provides for the organization of agriculture and animal husbandry. It directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines so as to cause minimal harm to the environment. In a specific manner, it is required to take steps for improving the breeds and their preservation and prohibiting the slaughter of calves and cows, other milch and draught cattle. Further, Article 48-A of the Constitution of India provides that the state endeavours protect and improve the environment in order to safeguard the forests and wildlife of the country. When these provisions are interpreted in light of Article 21 of the Constitution of India that is, the right to life and personal liberty, clearly the State is ought to take an active interest in protecting the environment from being harmed any further.
Protection of natural environment includes an immediate cost-benefit consequence of any legal policy framed. As the Constitutional provisions provide, any action made towards the protection of nature must be pursued on logical lines. It is realized that our age is an immediate observer to the logical and technological improvements. It denotes a move from the customary strategies for the management of resources to the logically arranged set-up. For example, plantation of eucalyptus had been prohibited in numerous states of the nation because of the reason that it consumes a lot of water subsequently debilitating the water table massively. Scientific discoveries have found that these types of plants are appended to the ground down to 2 meters in particular and is found normally in the dry locales. The case of e
ucalyptus settles one of the dilemmas of the “food versus fuel” hypothesis. It is a vital plant for agroforestry and farm forestry service and can give unrefined or crude oil for compressed wood and fuelwood. The point to be accentuated here is that the plants meant for offering sustenance to human lives have alternative utility as well, that is, generation of bio-fuel. For instance, corn and sugarcane can be utilized to obtain ethanol, soy can be utilized to create biodiesel. Nonetheless, on the off chance that corn, sugarcane and soy are utilized towards this purpose then the accessibility of food will be abbreviated. This is the reason that outcomes in the “food versus fuel” situation.
ucalyptus settles one of the dilemmas of the “food versus fuel” hypothesis. It is a vital plant for agroforestry and farm forestry service and can give unrefined or crude oil for compressed wood and fuelwood. The point to be accentuated here is that the plants meant for offering sustenance to human lives have alternative utility as well, that is, generation of bio-fuel. For instance, corn and sugarcane can be utilized to obtain ethanol, soy can be utilized to create biodiesel. Nonetheless, on the off chance that corn, sugarcane and soy are utilized towards this purpose then the accessibility of food will be abbreviated. This is the reason that outcomes in the “food versus fuel” situation.
The diagram below explains the ‘food versus fuel’ theory through the Production Possibility Frontier (PPF). PP’ is the production possibility curve, X-axis shows the amount of food delivered and Y-axis shows the amount of fuel delivered. Points A and B portray two conceivable circumstances of the use of a typical resource, for example food grain-say sugarcane. Sugarcane can be utilized for both-creation of sugar (food) or ethanol (fuel). As should be obvious when the generation level is at Point A, when 40 units are created for food, 80 units of fuel is delivered. Then again, at Point B, when 80 units of food is delivered just 40 units of fuel is created. This infers, for the creation of some greater amount of sugarcane for one use, amount for other use is diminished.
Figure 1
The assumption is that because of rapidly increasing population, it becomes difficult to strike a balance between the two since it isn’t determined that what number of people would incline towards fuel over food and the other way around. Subsequently, bringing about a dilemma as above.
In this manner, to conclude the above discussion, a eucalyptus plant doesn’t identify as any food source and henceforth, the only use remains is that of fuel. The nature has cultivated plenteous such species in its environment, and it will be conceivable just through a scientific research to find species which distinguish as single-use item. This won’t simply serve a social reason for protecting consumers from inflated costs due to uneven production (shortage of either) yet in addition gives enhanced financial advantages to the producers.
Conclusion
We have contemplated the issues causing environmental degradation. No solution can be successfully actualized without a proficient legal framework. The provisions that have been consolidated into the Indian Constitution for the protection of natural resources are totally founded on recent scientific development. The fact that every right accompanies a relating obligation ought to be interpreted in a manner to make the state as well as the citizens dutybound as well, for the security of the natural environment. This is obvious from the incorporation of Part V into the Constitution of India, the fundamental duties. For instance, Article 51-A(g) of the Constitution of India forces an obligation on every citizen of India to protect and improve the natural environment including lakes, forests, wildlife and to have empathy for the fellow living beings. Indian society has constantly considered morality as a crucial fundamental in every action pursued. The fundamental duties are in the form of similar moral obligations. Consequently, while considering a group liable for environmental pollution it ought to be decided from both the perspectives, which means, who could have closely deflected the circumstance by taking proper precaution. Just as in the case of industrial pollution, the enterprises are held liable for any harm arisen and made to compensate the victims in question, in the case of contamination of public places, for example, parks, avenues, apartment ways, the residents of such places ought to be collectively held liable. Installation of cameras in public places should be placed to put a deterring impact on it. In conclusion, government bodies including the municipal corporation must take the cause for educating local residents with respect to the protection of the natural resources.
[1] Per Ariansen, Beyond Parfit’s Paradox, FUTURE GENERATION AND INTERNATIONAL LAW, (1998).
[2] Herbert, Gary B. “John Locke: Natural Rights and Natural Duties.” Jahrbuch Für Recht Und Ethik / Annual Review of Law and Ethics 4 (1996): 591-613. http://www.jstor.org/stable/43593573.
[3] Centre for Public Interest Litigation and Others v. Union of India and Others (2012) 3 SCC 1.
[4] Kharak Singh v. State of Uttar Pradesh 1963 AIR 1295.
[5] (1959) 1 SCR 995
[6] Wagler, Ron. “The Sixth Great Mass Extinction.” Science Scope 35, no. 7 (2012): 48-55. http://www.jstor.org/stable/43184436.