Open Access Research Article
EMERGING CHALLENGES AND THE CONSTITUTION’S ADAPTATIONS Climate Change And Environmental Justice: Integrating Environment Values Into The Constitution
Published Paper
Article Details
EMERGING CHALLENGES AND THE
CONSTITUTION’S ADAPTATIONS
Climate Change And Environmental
Justice:
Integrating Environment Values Into
The Constitution
AUTHORED
BY - T. VINNARASU, IIIRD YEAR B.A., LL.B.,
CO-AUTHOR
- R. RAJAHARIHARAN, IIIRD YEAR B.A., LL.B.,
GOVERNMENT LAW COLLEGE, TRICHY
ABSTRACT
This Article
herein discusses about the Theme of Emerging challenges and the constitutional adaptations with the sub theme of the Climate Change and
Environmental Justice: Integrating Environment Values into the Constitution.
The drastic change in the environment leads to the climatic change were caused
by the huge development of the industrializations and rapid urbanization,
automobile development in our Nation.
It is not
fair by submitting only by way of increasing the amount of vehicles would cause
the Air Pollution. The above said Industrial development in the Nation would
also leads to various environmental issues in which it may causes the huge Air
and Water Pollutions and Environmental degradation. Through these unstandardized
developments in the nation’s causes the global warming, which made an
International issues between the nations.
By
developing the green patent which would made an identification of climate
change and provides the prevention measures. This IPR System is weren’t bogus
and would sustainable in legal process. There were many International
Agreements and Declarations with the Indian Constitution and mainly the U.N
Framework Convention on Climate Change, 1992. There were the Vienna Convention on
the Protection of Ozone Layer, 1985 and the Montreal Protocol, 1987 it was
based on the protection of the Environmental changes. The Author and Co-author
discussed about the “Doctrine of Absolute Liability” with the landmark
judgments and the Constitutional Provisions which were specified for the
environmental protections, the specified
Articles of 19(1)(g), 21, 48-A, 51-A(g), 253 of the Indian Constitution. By
this Article the
Author and
Co-author submits that by emerging only the constitutional provisions and by
integrating the environmental values into the Constitution the World peace may
attain.
KEYWORDS:
Climate
change, International Convention, Indian Constitution, Indian Regulations.
1.
INTRODUCTION:
The article
herein discusses about the theme of emerging of challenges and the
constitutional adaptations with the sub theme of environmental values and into
the constitution. The drastic changes in the environment lead to climatic
change which caused by the huge development of industrializations and rabid
urbanization, automobile development in nation.
In this
article we have briefly expressed the views of the climatic change and then
environmental justice through the constitutional provisions of India and some
of international agreement declarations.
2.
DOCTRINE OF ABSOLUTE LIABILITY:
The
Principle of Absolute liability makes the individual absolutely liable for
damage caused by the escape of a hazardous substance without any exceptions
irrespective of the individual's intent in causing
such damage or harm.
In
the case of MC Mehta Vs. Union of India,[1]
(The Oleum Gas Leak Case) which took
place between, one year after the Bhopal Gas tragedy. Mehta argued that Shriram
Industries, which was situated in a densely populated area in Delhi, should be
closed after it leaked petroleum gas on 4th and 6th December.
Facts
of the Case-
o
M.C. Mehta filed a writ petition for the closure of
Shriram Food and Fertiliser Industry, arguing that its location posed a
significant risk to public safety.
o
The Assistant Commissioner of Factories and the
Inspector of Factories issued two orders to shut down the plant under the
Factories Act (1948) on 7th and 24th December.
Judgment:
The
court acknowledged the role of these hazardous industries in economic
development and job creation. For instance, these industries produce chlorine,
which is used for water disinfection. The court's final decision was to
relocate such factories to less populated areas to minimize the risk to human
life. The court also recommended that the government develop a national policy
for the location of such hazardous plants and ensure that they do not pose a
risk to the community.
3.
ENVIRONMENT
AND CONSTITUTION OF INDIA:
To protect
and improve the environment is a constitutional mandate. It is the commitment
for country wedded into ideas of welfare state. The Indian constitution contains
is specific provisions for environment protection under the chapter of Directive
Principles of State Policy and Fundamental Duties in Part IV and IVA
respectively.
Constitutional
provisions:
¨
Article
19(1)(g)
¨
Article
21
¨
Article
48-A
¨
Article
51-A(g)
¨
Article
253
Article
19(1)(g):
This article
provides that "to practice any profession, or to carry on any occupation,
trade or business." Although it has some restrictions provided under
article 19(6) of the Indian Constitution, which states that
“(6) Nothing
in sub-clause (g) of the said clause shall affect the operation of any existing
law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of the general public, reasonable restrictions.”
As noted
above while carrying a business, trade or occupation if it is affects the
environment, the State can impose restriction either by passing legislation or
by judicial decision. As in the recent judgment of Vedanta Limited vs The
State of Tamil Nadu & Ors,[2] The Supreme Court
dismissed an appeal by Vedanta Sterlite to reopen its Thoothukudi copper plant
closed six years ago on grounds of pollution, endorsing the public's right to
health over sheer industry gains. Article 21 of the Constitution empowered
the High Court to direct the plant to be closed if it was found to be polluting
the environment. Here, the right granted under Article 19(1)(g) was restricted
under the grounds provided in Article 19(6) because it pollutes the environment
and hazardous to the public health.
Article
21:
Article 21
of constitution of India provides for the right to life and personal liberty.
It states that "no person shall be deprived of his life or personal
liberty except for the procedure of law".
CASE LAW: Rural
Litigation & Entitlement Kendra Vs State of Uttar Pradesh,[3]
FACT:
Rural
litigation and entitlement Kendra filed a petition in the Supreme Court of
India regarding the operation of limestone quarries in the Mussoorie Hill range,
India. It is stated that quarries caused hazard to healthy environment and
affected the perennial water springs. The Honorable Supreme court appointed an
extent the Bhargav committee for the purpose of inspecting the limestone
quarries. The committee divided all the limestone queries into three
categories.
According to
the grade of adverse impact of mining operations such as:
Category A: the least as the adverse impact.
Category B: Had little more of adverse impact.
Category
C: Director to close down.
Judgement:
Supreme Court
decided that Category C quarries should not be allowed to operate and their
number of quarries listed in Category B should not operate as well. Category A was
divided into two groups according to the location situated inside the outside
the city of Mussoorie the situated outside the city where allowed to operate
and those within the city the Honorable supreme court appointed another expert
committee too examine the possibility whether to operate or not.
The workman
employed in those closed quarries will be left with no work there for it emphasize
that afforestation and soil conservation programs would have to be taken up in
the closed quarries and Government of India should provide employment to these
workmen.
Further, in
the case of Subhash Kumar v State of Bihar,[4] again the apex court held
that the right to get pollution free water and air is a fundamental right under
Article 21.
CASE LAW: MC Mehta Vs Union of India, [5]
The Taj
Mahal, one of India’s most iconic Mughal structures, is situated within the Taj
Trapezium zone, a 10,400 sq. km area designed to protect it from pollution.
After noticing the discolouration of the Taj Mahal's white marble during a
visit in 1984, Mehta filed a petition in the Supreme Court.
Facts
of the case-
o The
petitioner identified pollution as the primary cause of the yellowing of the
marble. Acid rain, caused by the emission of pollutant gases like sulphur
dioxide and oxygen, was damaging the monument.
o Consequently,
the petitioner called for measures to protect the monument.
o In
response, the Central Board for Prevention and Control of Water published
“Inventory and Assessment of Pollution Emission in and Around Agra-Mathura
Region”.
o The report
confirmed high levels of pollution and recommended measures to mitigate them.
o Among the
proposed measures were the closure of thermal power stations and a reduction in
Sulfur Dioxide emissions by 50%.
Judgment-
The
Supreme Court noted that the degradation of the Taj Mahal was influenced by
socio-economic factors as well as chemical pollutants. The court ordered 292
industries to switch to safer fuels like propane instead of coke/coal or face
relocation. The Gas Authority of India Limited was tasked with overseeing the
transition to gas. The court also recognized the fundamental rights of the
workers in these industries and ordered compensation for lost wages during
relocation.
Article 48-A:
The Protection and improvement and safeguarding of forest
and wildlife. This game shell Indigo to protect and to improve the
environmental and safeguard forest and wildlife of the country.
Article 51-A (g):
It states that "to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have compassion
for living creatures;"
CASE LAW: State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat and Ors.,[6]
Court held that by enacting Article 51A(g) and giving it
the status of a fundamental duty, one of the objects sought to be achieved by
Parliament is to ensure that the spirit and message of Articles 48 and 48A
are honored as a fundamental duty of every citizen. Article 51-A(g), therefore,
enjoins that it was a fundamental duty of every citizen "to have
compassion for living creatures", which means concern for suffering,
sympathy, kindliness etc.,
Article 253:
It provides that legislation for giving effect
to international agreements-
“Parliament has power to make any law for the whole or
any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any
international conference, association or other body.”
Some important conventions are
A)
United Nations Framework Conventions on Climate Change ,1992
B)
The Vienna convention for the protection of
ozone layer,1985
C)
Montreal protocol,1987
A) UNITED NATIONS FRAMEWORK CONVENTION
ON CLIMATE CHANGE (UNFCCC)
This convention done at New York on ninth day of May one
thousand nine hundred and ninety-two and it has 26 Articles and II Annexes.
India ratified the United Nations Framework Convention on Climate Change
(UNFCCC) in 1993 and the Kyoto Protocol in 2002.
AIM:
To preventing the dangerous human interference with the Climate
system.
MATTERS DISCUSSED:
Article 2 of UNFCCC deals its objective as “stabilization
of greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system. Such a
level should be achieved within a time-frame sufficient to allow ecosystems to
adapt naturally to climate change, to ensure that food production is not
threatened and to enable economic development to proceed in a sustainable
manner.”
Article 3 of UNFCCC deals 5 principles of
1) The parties should protect the climate system for the benefit of present
and future generations of humankind; developed countries should take the lead
combating in climate change and adverse effects.
2) Developing countries like India would have to bear a disproportionate or
abnormal burden under the convention, should be given full consideration.
3) The parties should take precautionary measures to anticipate, prevent or
minimize the causes of climate change and mitigate its adverse effects. Taking
into accounts that the policies and measures to ensure the global benefits at
lowest possible costs.
4) Policy and measures should be integrated with national development
programs, taking into account that the economic development for adopting
measures to address climate change.
5) The party should to cooperative promote a supportive and open
international economic system would not lead to arbitrary and justifiable
discrimination or disguised restriction
on international trade.
Article 4 of UNFCCC deals commitments like
a) Formulate,
implement, publish and update regional programs to mitigate climate change by
addressing and through anthropogenic emissions.
b) Promote
sustainable management and cooperative the conservation and enhancement,
including biomass, forest, oceans as well as coastal and marine ecosystem.
c) Develop and
elaborate integrated plans for coastal zone management, water resources and
agriculture.
d) Promote and
corporate socio- economic and legal information related to climate system and
climate change.
e) Promote and
corporate education, training and public awareness related to climate change
including that of non-governmental organizations and article 6 of UNFCCC deals
it clearly.
Article 11 deals that financial mechanisms said that the
financial mechanism shall have an equitable and balance the representation of
all parties within the transparent system of governance.
As we seen in above, our team prefer to insert the
financial provisions in part-XII chapter I to the Indian Constitution for Allocation
of funds to the environment protections schemes for
every financial year.
B)
VIENNA CONVENTION FOR THE PROTECTION ON OZONE
LAYER,1985
The Vienna convention for the protection of ozone layer
is an international environmental agreement signed in 1985 in Vienna, Austria.
The treaty was signed to reduce the production of Chlorofluorocarbons. The
treaty was signed on 22 march 1985 in Vienna, Austria.
OFFICIAL LANGUAGES:
The official languages of Vienna convention are Arabic,
Chinese, English, French, Russian and Spanish.
RATIFIERS:
The treaty has been ratified by 197 States, including the
Holy See, Niue and the Cook Islands.
OBJECTIVES:
The main objectives of Vienna convention for the
protection of ozone layers are to observe, research and exchange information on
the effects of human activities on ozone layer and to adopt measures to combat
those activities responsible for ozone depletion.
C)
MONTREAL PROTOCOL,1987
The Montreal Protocol is an international treaty designed
to protect the ozone layer by phasing out the production of numerous substances
that are responsible for ozone depletion. It was agreed on 16th September 1987,
and entered into force on First January 1989.
The Montreal protocol is signed by 197 countries - The
first treaty in the history of United Nations to achieve universal ratification
and is considered by many as most successful environmental global action.
In 1995, the United Nations named September 16, the International
day for “The protection of ozone layer”, also known as world ozone day.
India became a Signatory to the Montreal Protocol in
1992. India mainly manufactured and utilized 7 of the 20 Substances controlled
under the protocol. These are CFC-11, CFC113, CFC-12, Halon-1301, Halon-1211,
carbon tetrachloride, Methyl Bromide and methyl chloroform.
4.
MITIGATION OF CLIMATE CHANGE:
Climate change mitigation means reducing the net release
of greenhouse gas emissions that are warming our planet. The Sixth Assessment
Report of the Intergovernmental Panel on Climate Change (IPCC) highlights the
urgency of needed climate actions: global emissions will have to decline by 43%
from 2019 by 2030, and rapidly decrease to net-zero by 2050 if we are to stay
within the safety limits established by the Paris Agreement.
However, the 2023 NDC Synthesis Report prepared by the United
Nations Framework Convention on Climate Change (UNFCCC) Secretariat shows
that while countries have increased individual levels of ambition to reduce
emissions, the combined impact still falls short of the emission reduction cuts
necessary to meet the Paris Agreement goals.
Achieving net-zero objectives will require a
whole-of-economy and whole-of-government strategy, across all sectors and
actors. Rapid emissions decline from power generation, transportation, and from
the industrial sector will have to be coupled with significant transformations
in the way we manage land, forests, coastlines, and wetlands, which currently account
for about a quarter of global carbon emissions.
The 2023 UN Climate Change Conference took place Nov. 30
to Dec. 12, 2023 in Dubai, UAE. The GEF-8 climate change mitigation strategy
aims to support developing countries to make transformational shifts towards
net-zero greenhouse gas emissions and climate-resilient development pathways, by supporting the objectives of the UNFCCC and
the Paris Agreement. Within the evolving landscape of climate finance, the
strategy is designed to be as complementary as possible to other sources of
climate finance. This is evident for instance through the collaboration with
the Green Climate Fund, with which we have established a Long-Term Vision for
Complementarity, Coherence and Collaboration.
4.1.
CLIMATE CHANGE MITIGATION PROGRAMS:
Owing to the integrated nature of GEF support, climate
change mitigation benefits are also generated through programmatic approaches
at a regional and global level. These include programs such as:
a.
GEF Global Program to Support Electric
Mobility
b.
GEF Africa Minigrids Program
c.
GEF Global Cleantech Innovation Programme
d.
GEF-8 Integrated Programs
CASE LAW: Ridhima Pandey v. Union of India,[7]
Ridhima Pandey, a nine-year-old from the Uttarakhand
region, is the named plaintiff in a climate change case filed in March 2017
with the National Green Tribunal of India. Plaintiff’s petition argues that the
Public Trust Doctrine, India’s commitments under the Paris Agreement,
and India’s existing environmental laws and climate-related policies oblige
greater action to mitigate climate change. It also argues that the term
“environment,” as used in the Environment (Protection) Act 1986, necessarily
encompasses the climate. As climate was an inherent part of the environment,
she asserted that safeguarding the environment and protecting forests was critical
to addressing climate change.
The petition notes that India is the third-largest
national emitter of greenhouse gases (behind China and the U.S.) and among
those countries that are most susceptible to adverse climate change impacts.
On January 15, 2019, the National Green Tribunal
dismissed the case, reasoning that the climate change is already covered in the
process of impact assessments under the Environment Protection Act of 1986, and
therefore, "There is no reason to presume that Paris Agreement and other
international protocols are not reflected in the policies of the Government of
India or are not taken into consideration in granting environment
clearances."
5.
POLICIES AND COMMITTEES:
For the purpose of protecting the Natural environment and
controlling the climate change the courts has judicially interpreted to ensure
these things by constituting committees and make policies, Such as
A)
T.S.R. Subramanian Committee:
It is the high-level committee constituted in August 2014 under the
chairmanship of Subramanian by the Ministry of Environment, Forests And Climate
Change (MoEF & CC).
Aim: The
committee was established to review environmental laws in the country such as
Environment Protection Act, 1986, Forest Conservation Act, 1980 and to bring
them in line with the then required needs.
Major Recommendations:
1) Constitution of Environmental Management Authority:
Under ‘Environmental Laws (Management) Act’ (ELMA)—National
Environmental Management Authority (NEMA) and State Environmental Management
Authority (SEMA)—to be constituted to evaluate project clearance in a time
bound manner, providing for single-window clearance. The existing Central
Pollution Control Board and the State Pollution Control Boards, are proposed to
be integrated into NEMA and SEMA once the new bodies come into existence.
2) Merging of laws:
To accelerate the environmental decision-making process, a “fast track”
procedure for “linear” projects (roads, railways and transmission lines), power
and mining projects and for “projects of national importance.” The Air Act and
the Water Act is to be subsumed within the Environment Protection Act.
3) Appellate mechanism:
An appellate mechanism will be set up to hear against the decisions of
NEMA/SEMA or MoEF & CC, in respect of project clearance, prescribing a
three-month deadline to dispose appeals.
4) Accessing environmental reconstruction cost:
An “environmental reconstruction cost” should be assessed for each
project on the basis of the damage caused by it to the environment and this
should be added into the cost of the project. This cost has to be recovered as
a cess or duty from the project proponent during the life of the project.
5) National Environment Research institute:
It proposed a National Environment Research institute “on the lines of
the Indian Council of Forestry Research and Education” to bring in the
application of high-end technology in environment governance.
6) Indian Environment Service
It proposed an Indian Environment Service to recruit qualified and
skilled human resource in the environment sector.
B)
National
Committee on Environmental Planning and Coordination (NCEPC) – It is the Advisory
Body has also played an important role in the formulation of various
legislative measures, such as the Wildlife Protection Act of 1972, the Water
(Prevention and Control of Pollution) Act of 1974.
C)
Tiwari Committee (1980):
The Government of India set up a committee in January 1980 under the
Chairmanship of Shri. N.D. Tiwari, then Deputy Chairman of the Planning
Commission to review the existing environmental legislation and recommend
legislative measures and administrative machinery for environmental protection.
The committee stressed the need for the proper management of the country’s
natural resources of land, forest and water in order to conserve the nation’s
ecological bases.
D)
National Environment Policy, 2006:
The National Conservation Strategy and Policy Statement on Environment
and Development, 1992 was one of the first attempts of the Government of India
to develop a policy framework for environmental protection. The National Forest
Policy, 1988 and the Policy Statement for Abatement of Pollution, 1992 are some
other policy frameworks that advocate effective environmental management at the
national level.
However, a need was felt to bring together the guiding principles of all
these documents and develop a comprehensive national environmental policy.
Consequently, the National Environment Policy was put together after widespread
consultation and was approved by the Union Cabinet on 18th May 2006. The
National Environment Policy, 2006 (NEP, 2006) does not displace earlier
policies but builds upon them.
Objectives of the National Environment
Policy, 2006
Following are the objectives that were kept in mind while
framing the National Environment Policy, 2006 by Government of India.
1. Conservation of Critical Environmental Resources – To protect and
conserve critical ecological systems and resources, and invaluable natural and
man-made heritage, which are essential for life-support, livelihoods, economic
growth, and a broad conception of human well-being.
2. Intergenerational Equity – To ensure judicious use of environmental
resources to meet the needs and aspirations of the present and future
generations.
3. Integration of Environmental Concerns in Economic and Social Development
– To integrate environmental concerns into policies, plans, programs and
projects for economic and social development.
4. Efficiency in Environmental Resource Use – To ensure efficient use of
environmental resources in the sense of the reduction in their use per unit of
economic output, to minimize adverse environmental impacts.
5. Environmental Governance – To apply the principles of good governance
(transparency, rationality, accountability, reduction in time and costs,
participation, and regulatory independence) to the management and regulation of
the use of environmental resources.
6. Enhancement of Resources for Environmental Conservation – To ensure
higher resource flows, comprising finance, technology, management skills,
traditional knowledge and social capital for environmental conservation through
mutually beneficial multi stakeholder partnerships between local communities,
public agencies, the academic and research community, investors, and
multilateral and bilateral development partners.
7.
CONCLUSION:
India that
is Bharat has so many natural resources in it.
Constitution of India inserts provisions into DPSP and Fundamental
Duties to the Government and to the
citizens of India for the purpose of protecting the Natural environment and
controlling the climate change.
At present we have seeing mean temperature level during
summer is about 100 degree 110 degree is inevitable one. In these emerging
period, we need to control and reduce the temperature, not only for future
generation but also present generation. Not only to expecting the government to
took measures and execute the whole, the individual residents solely
responsible to took initiative from today. Most of them goes in wrong path to escape from
the heat using the Air Conditioners, Refrigerators which emitting chlorofluorocarbon
which affects the atmosphere on environment and is the reason to drastic
increase of the temperature and which results to climate change.
We should make resolution to constitute a healthy
environment. For that purpose we should plant more trees as so far and know
behind reasons of planting of trees. Not as a simple statement, we make
awareness about the effects of greenhouse gas and values of lively good
gases like oxygen.
-GO GREEN, BREATHE CLEAN-
REFERENCES
BIBLIOGRAPHY:
Environmental
law – Gurdip Singh ( Second Edition)
Constitution
of India – V.N. Shukla
WEBLIOGRAPHY:
climatecasechart.com
thegef.org
STATUTES
REFERED
Environbment protection
Act, 1986
Constitution of India,
1950
Law of Tort
Factories Act, 1948
Wildlife Protection Act, 1972
The Water (Prevention and Control of Pollution) Act, 1974.
CASE
LAWS REFERED
1.
MC Mehta Vs. Union of India, 1987
2.
Vedanta Limited vs The State of Tamil Nadu & Ors, 2024
3.
Rural Litigation & Entitlement Kendra Vs State
of Uttar Pradesh, 1989
4.
Subhash Kumar v State of Bihar, 1991
5.
MC Mehta Vs Union of India, 1987
6.
State of Gujarat v.
Mirzapur Moti Kureshi Kassab Jamat and Ors.2005
7.
Ridhima Pandey v.
Union of India, 2019
Article Information
EMERGING CHALLENGES AND THE CONSTITUTION’S ADAPTATIONS Climate Change And Environmental Justice: Integrating Environment Values Into The Constitution
Authors: T. VINNARASU, R. RAJAHARIHARAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.