By Sumit Kumar Suman, CNLU
Editor’s Note: The author mainly focuses on the point that whether any contravention between the religious freedom and environmental protection or in other words we can say that if there is any contravention then we have to know that same occurred, in which manner?
ENVIRONMENTAL PROTECTION IN INDIA
Unbridled use of science and unprecedented use of technology have given birth to many problems including the problem of eco-imbalances and environmental degradation. With the advancement of science and technology, this problem has assumed threatening dimensions. This problem has not only caused damage to nature but threatened the very existence of mankind.[i]
As we know that the forests, wild life, and more particularly trees were held in high esteem and held a place of special reverence in Hindu theology. The vedas, Puranas, Upnishads, and other scriptures of the Hindu religion gave a detailed description of trees, plants and wild life and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing for intimate kinship with nature. Atharva Veda considered trees as abode of various Gods and Goddess. Yajur Veda emphasized that the relationship with nature animals should not be that of dominion and subjugation but of mutual respect and kindness.[ii] During this Vedic period, cutting of trees was prohibited and punishable. So, as per this contention or we can say in other words that the even in the ancient time our environment has been protected and if anyone not complied with the same then they will be punished for the same.
Now if we look in the Medieval era then we also find a similar thing. Meaning thereby, in this era Moghul emperor also from the point of view of environment conservation, a significant contribution of Moghul emperors has been the establishment of magnificent gardens, fruit orchards and green parks, round about their palaces, central and provincial head-quarters, public places, on the banks of the rivers and in the valley and dales which they used as holiday resorts or places of retreat or temporary headquarters during the summer season.[iii] But now a days, or we can say that the present day increasing tirade against environmental pollution and eco-imbalances proved a growing consciousness about the ecology (the term ecology is derived from greek word oikos meaning “a place to live”. Popularly it is known as the study of relationship of an organism or group of organisms to their environment.), economics, energy, employment, and equity.
Air, water, land are the representative samples of natural environment, and geophysical, atmospheric and hydrological systems determine the character of biosphere including biota and mankind of a region. If we try to disturb nature or natural environment in excess, it disturbs and damages us irreparably. Therefore, it is necessary to know how to behave with various components of the natural environment.[iv] So, we have seen that the What were the conditions of Environmental protection in India so, far as Ancient time that is to say Vedic period and medieval era also.
ENVIRONMENT AND HUMAN RIGHTS
Human rights and environmental law have traditionally been envisaged as two distinct, independent spheres of rights. Towards the last quarter of the 20th century, however, the perception arose that the cause of protection of the environment could be promoted by setting it in the framework of human rights, which had by then been firmly established as a matter of international law and practice. Because of the many complex issues that arise when these two seemingly distinct spheres interact, it is to be expected that there are different views on how to approach ‘human rights and the environment’.
- The first approach is one where environmental protection is described as a possible means of fulfilling human rights standards. Here, environmental law is conceptualized as ‘giving protection that would help ensure the well-being of future generations as well as the survival of those who depend immediately upon natural resources for their livelihood.’ Here, the end is fulfilling human rights, and the route is through environmental law.
- The second approach places the two spheres in inverted positions – it states that ‘the legal protection of human rights is an effective means of achieving the ends of conservation and environmental protection.’ The second approach, therefore, highlights the presently existing human rights as a route to environmental protection. The focus is on the existing human right. In this context, there exists a raging debate on whether one should recognize an actual and independent right to a satisfactory environment as a legally enforceable right. This would obviously shift the emphasis onto the environment and away from human rights. These are the subtle distinctions between the two ways in which this approach can be taken.
- A third approach to the question of ‘human rights and the environment’ is to deny the existence of any formal connection between the two at all. According to this approach, there is no requirement for an ‘environmental human right.’ The argument goes that, since the Stockholm Conference in 1972, international environmental law has developed to such extents that even the domestic environments of states have been internationalized. In light of the breadth of environmental law and policy, and the manner in which it intrudes into every aspect of environmental protection in an international sense and notwithstanding the concept of state sovereignty, it is argued that it is unnecessary to have a separate human right to a decent environment.
This view militates against the confusion of the two distinct spheres of human rights law and environmental law. However, there are many who oppose this view. They argue that there is, in fact, a benefit to bringing environmental law under the ambit of human rights. Environmental law has in many parts of the world, be it at the international or domestic level, suffered from the problem of standing. Because of this barrier, it is often difficult for individuals or groups to challenge infringements of environmental law, treaties or directives, as the case may be.
There has been a great deal of debate on the theoretical soundness of the idea of a human right or rights to a satisfactory environment.[v] For one thing, there can occasionally be a conflict, or tension, between the established human rights and the protection of the environment per se. There are circumstances where the full enjoyment of the rights to life, to healthy living and to one’s culture can lead to the depletion of natural resources and environmental degradation. Nevertheless, clearly, there is a prima facie rhetorical and moral advantage in making the environment a human rights issue.[vi] There has been a simultaneous increase in ‘legal claims for both human rights and environmental goods,’ which is a clear reflection of the link between ‘human’ and the ‘environment’ and the dependence of human life on the environment.
ENVIRONMENTAL PROTECTION AND CONSTITUTIONAL OBLIGATION
The problem of the environmental pollution is as old as the evolution of homo sapiens on the earth planet. However, different dimensions of the problem of environmental protection and its management have taken a serious turn in the present era. So, Environmental law has come into existence as a result of confrontation with the serious problems concerning the environment. In response to environmental problems, the law seeks to protect and promote the environment. It is designed to prevent and control environmental pollution.
The constitution of India, which is the supreme law of land, has imposed an obligation to protect the natural environment both on the state as well as the citizens of India, or we can say that the Constitution of India is known as the ‘basic law of the land’ from which all other laws derive their sanctity or validity. Therefore, it must be a living and growing law means must be able to cope with the newer situations and development. India is the first country to provide constitutional protection to the environment. Originally, the constitution did not contain a specific provision for protection and promotion of the environment. In 1972, Prime minister, Smt. Indira Gandhi attained the United Nations conference the followings two resolutions which are considered to be the Magna Karta of environmental protection and sustainable development were adopted:
Principle-1. Man has the fundamental right to freedom, equality and adequate conditions of life of dignity and well being;
Principle-4. Heritage of wildlife and its habitat should be safeguard;
Principle-5. Economic system should be protected and struggle against pollution should be supported;
Principle-8. Pollution of the sea should be prevented; in this conference, it was also said under a principle that the economic and social development is essential for ensuring a favorable living and working environment of men for the improvement of the quality of life.
It is thus, clear that the Stockholm declaration is a significant document so far as international and national environmental movement, the general assembly of U.N. passed resolution on 15th August 1972 emphasizing cooperation between status in the field of conservation of the human environment.
Part IV of the constitution of India called directive Principles of state policy has imposed certain fundamental duties on the state to protect the environment. Part IV A of the constitution has imposed a fundamental duty on every citizen of India “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures”.
So, The Indian constitution is amongst the few in the world that contains specific provisions on environmental protection. In a case Supreme Court intervened to protect the forest wealth and wild life from the ravages of mining in and around sariska sanctuary in the Alwar district of Rajasthan, the court viewed its own constitutional role thus:
This litigation concerns the environment. A great American Judge emphasizing the imperative issue of environment said that he placed government above big business, individual liberty above government and environment above all. The issues and concerns in this case far transcend the trivialities and inhibitions of an adversarial litigation. All the parties must be forthcoming in a concerted effort to find a satisfying solution to problem which, in more ways than one, is typical of the Indian predicament. We are, therefore, entitled to expect that the State Government and the mining-entrepreneurs in their own their enlightened self-interest will discard the adversarial litigation stance.[vii] The Constitutional scheme to protect and preserve the environment has been provided under Articles 21, 48-A and 51-A(g) which includes fundamental right to have healthy and pollution free environment, constitutional obligation of the state and fundamental duty of all the citizens of India to protect and improve the natural environment.
The Supreme Court has clarified it in many cases. It has also been observed by the court that this scheme is based on the “constitutional policy of sustainable development which must be implemented”. If we focus on the Article 21 we also find that this article though guarantees right to life and personal liberty,[viii] does not directly confer right to clean, unpolluted and healthy environment. But various judicial pronouncements on various occasions have expanded the right to life and personal liberty to include this right by recognizing various “unarticulated liberties” as recognized implicitly by Article 21.
In recently decided case, Hinch lal Tiwari v. kamla Devi[ix], the Supreme Court declared that material resources of a community like forests, tanks, ponds, hillocks, mountains, etc. are nature’s bounty. They maintain a delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of guaranteed right under Article 21 of the constitution. The court decided that the pond’s land could not be allotted for a residential purpose.[x] So, there are several case law which has been decided by the Supreme Court and the high court as well with regard to environmental protection and constitutional obligation, or we can say in the other words that the how or in which way the constitutional obligation played important role in keep the clean the environment.
It is not the only obligation upon state to clean the environment but the constitution of India also declares that, in the provision mentions under Article 51-A(g), it shall be the fundamental duty of a citizen of India “to protect the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures”.[xi
RELIGIOUS FREEDOM AND ENVIRONMENT PROTECTION
As we know that the “religious freedom” and “environmental protection” are two different ‘or’ we can say that both has own separate concept, even though there is overlapping between them sometimes has been seen. For instance, we take the Article 19(1)(a) of the Constitution of India, and which provides that, all citizen shall have right to freedom of speech and expression but with the some reasonable restrictions of decency, morality, security of State, defamation, incitement of offence etc., and if this article is interpret with respect to religious freedom even no religion prescribed that prayer should be performed by disturbing the piece of other nor it preach that they should be through voice amplifiers or beating of drums,[xii] so, in this case it was declared that the right to religion under Articles 25 & 26 are subject to “public order, morality and health” and no religion prescribes or preaches that prayers are required to be performed through voice amplifier or beating drums.
In the most of the countries, including advanced countries, there is move for college celebration of festivals and believe in show of fireworks to express their feelings. In India there are various festivals (like Deepawali, Durga Puja, marriage celebrations, and etc.) when the persons express their feeling of happiness by bursting fireworks in private and public. It has been observed by the courts on various occasions that right to religion under Articles 25 and 26 is not an absolute right and it is subject to reasonable restrictions.[xiii] Even the ramleela and Akhanda Path cannot be allowed to disseminate excessive noise which coerces a man to listen to unwanted/undesired/unagreeable noise. Since the right to profess and caused by loudspeakers can be checked in the interest of health. It can be restrained by injunction.
The Delhi High Court in Free legal Aid cell Shri Sugan Chand Aggarwal v. Gov. of NCT of Delhi[xiv] declared:
….noise can be regarded as pollutant because it contaminates the environment, causes nuisance and effects the health of a person and would, therefore, offend right to life, Article 21, if it exceeds reasonable limits. It was also observed by the court that the effect of noise on health has not yet full attention of our judiciary…
In 1952 the Bombay High Court in State of Bombay v Narasu Appa Mali[xv] asked authorities to regulate the use of loudspeakers during night when the Ganesh and Navratri festivals were being celebrated. The Court ordered the strict implementation of Environmental Acts. Nobody can object on celebration of festivals, but their means of celebration must not disturb the peace and tranquility of the neighborhood was the strict view of the Judiciary.
So, as per these judicial decisions we can say that the if we talk about the environmental protection then we also focus on the religious freedom which is used in wrong way by the people we have to use in the manner in which there is no destruction of public peace and in the view of public welfare some law has been enacted to religious freedom but subject to some restrictions.
Now, if we take example of water pollution then, also found that for the purpose of fulfilling the some religious purposes mainly in Hindu religion people polluted the water by throwing dead human body in the river, pond, and some time also in well but not for a religious purpose but some personal purposes. So, there are several causes of polluted water in urban area due to industrialization not only water pollution occurred, but the full environment becomes pollute. In case of Birangana Religious society v. State of Orissa[xvi], where the Court declared that the right to profess, practice and propagate religion is subject to the provisions of Article 19(1)(b) of the Constitution. It cannot be said that “a citizen should be coerced to hear anything which he does not like or which he does not require”.
In Guruvayur Devaswom Managing Committee v. Supdt. of Police[xvii], a writ was filed under Article 226 of the constitution against the order of the Police Officer (S.P.) to remove loudspeakers which were installed for a festival season. They were installed within a radius of one kilometer. The loudspeakers were of horn type. The respondents alleged that such type of loudspeakers caused irreparable damage to the ears and they were installed without obtaining sanction from any competent authority. After filing a writ petition on which stay was issued by a single Judge, the Guruvayur Temple authorities approached the Kerala State pollution control board to get an expert opinion regarding the use of horn type loudspeakers. the board submitted its report to the court mentioning that the audibility of the devotional songs was limited within the temple area and they also served the purpose of a wake-up call for devotees who had to attend the morning pooja, or for essential announcements as for missing persons, lost wallets and other goods. The announcements in various languages used to guide the devotees from outside the state. further, there was no complaint suitable and directional for such purposes and better suited for outside use. Thus, the report of SPCB found that no noise pollution if the loudspeakers were put at height of three meters on the temple premises. Therefore, the Court accepted the expert opinion f the PCB and permitted the use of horn type loudspeakers and the Police authorities were directed to give sanction to the Management Committee of the temple to install such loudspeakers. Committee of the temple to install such loudspeakers.
In Sayeed Maqsood Ali v. State of M.P.[xviii], the Madhya Pradesh High Court stated that reverence for life is a fundamental principle of morality and life and life without good health is denial of life. It also mentioned that even in the international sphere, emphasis is laid on proper health and a right is enshrined providing security against sickness and disablement under Article 25 of the Universal Declaration of Human Rights, 1948. In this case, petitioner was a cardiac patient who was residing near an eye hospital and beside a Dharamshala. The Dharamshala run by the state, accommodates various categories of persons and many religious functions were held in it throughout the year. It was also made available to hold marriages and other functions with loudspeakers which were used at a very high pitch disturbing the petitioner and other residents of the area.
The court observed that the noise is undoubtedly psychologically harmful as an invisible, insidious form. It also causes irreversible harm. Therefore, it violates the right to life which includes the right to health. Therefore, the Court directed that the Noise Pollution (Regulation and Control) Rules, 2000 must be implemented and court also said that it is not only harmful to human health and etc but also effect the environment.
As we know that Pure water or unpolluted water is an essential resource to the environmental balance of the world. Water has life-giving properties which are crucial to the world’s global ecosystem. Water has also been used as a source and a means of trade for hundreds of years. Existing human rights do not allow protection of the environment before the actual harm has occurred and are thus too anthropocentric and instrumental. Environmental considerations are not always afforded sufficient weight with other interests.
Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Art. 21.
In the absence of an adequate regulatory framework specific to noise pollution, the status quo has been determined partly by the interpretation of other laws. Important among these have been Article 19 of the Constitution, which guarantees the fundamental right to freedom of speech and expression, and Article 25, which protects the free profession of one’s religion. The use of a loudspeaker, or setting off fire-crackers, has assumed the status of a fundamental right by virtue of these two articles. Municipal bye-laws regulating their use have been enacted, but must take care not to limit the freedoms afforded by the articles. Also, unless the connections between noise and health are first judicially established, prohibitions against their use are difficult to pass. The judiciary has nonetheless weighed in on questions of noise pollution
The Judicial response has been tremendous and appreciable, but the reality of ground remains unchanged. Only people’s movement might bring about this and it is time that people take this challenge.
Formatted on 19th February 2019.
[i] Prof. Satish C. Shastri,’Environmental Law’,4th ed., Eastern Book Company: 2012, p. 99.
[ii] B.N. Tiwari, “Hindu caltutre and ecology” in Gautam sharma (ed.), Environment, man and nature (Reliance: New Delhi, 1989) pp. 23-27; as quoted in S Shanthakumar’s “Introduction to Environmental Law”, 2nd ed., Haryana, LexisNexis:2005, p.73.
[iv] Supra note 6, p.1.
[v] See, for example, A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection(Oxford,1996), at: http://www.supremecourtofindia.nic.in/sppeches/speeches_2005/humanrights.doc.
[vi] Margaret DeMerieux, “Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms” 21 (3) Oxford Journal of Legal Studies 521 (2001).
[vii] Shyam Divan, Armin Rosencranz, “Environmentallaw and policy in India”, 2nd ed., New York, Oxford university press: 2002, p.41.
[viii] Art. 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
[ix] Decided on 25-07-2001, (2001) 6 SCC 496: AIR 2001 SC 3215.
[x] Supra Note. 6, p. 53.
[xi] Supra Note. 7, p. 89.
[xii] Church of God (full Gospel) in India v. K.K.R. Magestic Colony Welfare Ass.(2000) 7 SCC (Cri) 1350, as mentioned in S.C. Shastri, “Environmental law”, p.232.
[xiii] Acharya Maharajshri Narendra Prasadji Anandprasadi Maharaj v. State of Gujrat, (1975) II; Bijaynanda Patra v. District Magistrate, Cuttack, AIR 2000.
[xiv] AIR 2001 Del 455.
[xv] State of Bombay v Narasu Appa Mali AIR 1952 Bom. 82
[xvi] (1996) 100 CWN 617.
[xvii] AIR 1998 Ker 122.
[xviii] AIR 2001 MP 220.