ROLE OF HIGHER JUDICIARY IN PROTECTION OF RIGHT TO CLEAN AIR
Environment is the wellspring of life on Earth, like water, air, soil, which has helped in sustainability, improvement and development of all. The concept of protection on environment came much later after the post- Independence era because, after independence people were more concerned in setting up industries, markets, factories, job creation for human development. The turning point for the judiciary in respect for environment protection came after The Bhopal Gas Tragedy, where the protection of environment became mandatory.
Air is an essential element and prerequisite for life, and key to human health for flourishing and growth. There is nothing more important than Right to Clean Air. But the reality is that Air pollution has become “public health emergency”. Behind the choking haze lies the fossil fuel industry, which continues to profit from polluting our air. The of introduction of The Environment (Protection) Act, 1986 is to protect the environment from the budding industries and the urbanisation so as to make air pollutant free from harmful chemicals like nitrogen dioxide, sulphur dioxide, carbon monoxide etc. released by these industries. Before the enactment of this act, in 1976 an amendment was passed in The Constitution of India, 1950, under which it became mandatory to protect our environment, and under Directive Principle of State Policy two articles were added Articles 48A and Article 51(g) in which both the state and citizens should preserve and protect the environment. These provisions have been extensively used by courts to justify and develop a legally binding fundamental right to the environment as a part of Right to life and personal liberty under Article 21. Right to clean air has been held to be implicit by the Indian Supreme Court in the guarantee of right to life under Article 21 of the Indian Constitution. Although the right was not expressly recognized in the Constitution the judiciary through creative interpretation has asserted this right. Except the amendments in The Constitution of India and The Environment (Protection) Act, 1986, other act enacted by The Parliament is The Air (Prevention and Control of Pollution) Act, 1981. The Kerala High Court reiterated the position by holding that the Right to Sweet Water and the Right to Free Air are attributes of the Right to Life. The role of judiciary in interpreting the laws has helped not only in protecting the environment but also helped in promoting sustainable development.
Environmental law is the new domain in jurisprudence all around the world. India had made The IV Five Year Plan (1969 – 74) on integrating environmental factors into the planning. The IV year plan was to document for harmonious development of various essential elements of environment like air, soil, water, tress. Such planning is possible only on the basis of a comprehensive appraisal of environmental issue. There are certain instances, where proper and timely advice regarding environment could have helped in designing projects and in changing adverse effect on the air. It is necessary, therefore to introduce the environmental aspect into the planning and development. The right to breath clean and healthy air is not a recent invention of the higher judiciary in India. The right has been recognized by the legal system and the judiciary in particular for over a century or so. The right to live in a clean and healthy environment and also the right to clean air becomes the fundamental right, it is the only difference in today’s industrialization era, the violation of which, the Constitution of India will not permit. Our government is failing to implement strict, time bound measures across sectors and hold polluters accountable. After years of public pressure and campaigning by civil societies, the Ministry of Environment, Forest and Climate Change launched the National Clean Air Programme on January 2019. But still, there are 139 cities in India which are not covered under National Clean Air Programme. There are no places left in the country that can be considered “healthy and breathable”
The Supreme Court on 4th November, 2019 passed an stringent order stating that all the government officials in all levels will be held responsible for hesitating to stop for halting polluting activities such as stubble burning, open burning of waste, in states of New Delhi, Uttar Pradesh, Maharashtra and Haryana. There are various doctrines have been laid by the Judiciary in promoting right to clean air, like The Doctrine of Public Trust in the case of M.C. Mehta v. Kamal Nath , in this case the The Supreme Court applied this doctrine for the first time in India to an environmental problem of clean air. According to the Supreme Court, the public trust doctrine primarily rests on the principle that certain resources like air, sea waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The Doctrine of Sustainable Development it was established in the case of, In Vellore Citizens Welfare Forum v. Union of India , the Supreme Court opined, the traditional concept that development and ecology are opposed to each other, is no longer acceptable, sustainable development is the answer. Sustainable Development means to fulfil the need of the present generation without compromising the needs of future generation. Sustainable development is a balancing concept between ecology and development.
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