It is the constitutional duty of the State to protect and improve the environment and safeguard the forests and wild life of the country. Likewise there is a fundamental duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
But Supreme Court has held that provisions as to fundamental duties cannot be enforced by issuing writs. They can be promoted only by constitutional methods. But they can be used for interpreting ambiguous statutes. When a constitutional validity of an Act is challenged the court may look at Art.51A of the Constitution.
Indian Courts have on numerous occasions interpreted Art.21 of the Constitution to protect the environment and the rights of the people. The applications for compensation are for enforcement of the fundamental right and while dealing with such applications, a hyper technical approach which would defeat the ends of justice could not be adopted. The court must look at the substance and not the form.
The precautionary principle and the polluter pays principle have been accepted as part of the law of land. Sustainable development be accepted as part of Customary International Law as balancing concept between development and ecology. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.
A State Government employee had heart ailment which required replacement of two valves. As the facility was available only outside the State, permission was given for treatment outside the State. He submitted his medical bill for re-imbursement which included actual expenses including room rent. When the State refused to pay the room rent he approached the court. SC held that right to health is an integral to right to life. Government has constitutional obligation to provide health facilities, which includes the expenses incurred in that behalf.
Right to health, medical aid to protect the health and vigor to a worker while in service or post retirement is a fundamental right, SC held . . The right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigor without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry to bread winning to himself and his dependents should not be at the cost of the health and vigor of workmen. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workmen. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is fundamental right.
Right to health includes the right to right to get pollution free water and air . It is the statutory obligation of the Municipality to scavenge and clean city. Non availability of funds , in adequacy or inefficiency of staff, insufficiency of machinery cannot be a ground.
For the elimination of employment of the children below the age of 14 years in all employments governed by the respective enactments mentioned the Government has been issued directions to provide (1) compulsory education to all children either by the industries itself or in co-ordination with it by the State Government to the children employed in the factories, mine or any other industry, organised or unorganised labour with such timings as is convenient to impart compulsory education, facilities for secondary, vocational profession and higher education; (2) apart from education, periodical health check-up; (3) nutrient food etc.; (4) entrust the responsibilities for implementation of the principles, the court issued directions
Residents of hilly areas approached the SC complaining that they have no proper roads and non-availablity of roads made their life miserable. Every person has a right to move freely under Art. 19 (1) (d) and he has also the right under Art.21 to his life and that right embraces not only physical existence of life but quality of life . Thus the SC has held that residents of hilly areas access to road is access to life itself. Accordingly, there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide for roads for communication.
A letter was sent to the Chief Justice of India complaining that homeless persons, when meet death, they are not buried properly. While converting the letter as PIL, SC has held that right to decent burial/cremation as per their religious belief is the fundamental right. When homeless persons are dying in road it is the duty of the Municipal Corporation to take all possible steps for decent burial of the same.
When the sexual harassment of working women was noticed by the Supreme Court the court has held that in the absence of domestic law occupying the field, any international convention must be read into the provisions in Arts. 14, 15, 19(1)(g) and 21 of the Constitution. This is implicit from Art. 51(c) and the enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Art. 253 read with Entry 14 of the Union List in the Seventh Schedule of the Constitution. The court has defined the duty of employer in work place and other places and directions issued.
SC also upheld the right of privacy as a fundamental right. The police under the guise of surveillance was going to the house of an individual on day and night as they think. SC intervened the matter and held that merely because a person has been convicted he can be considered as a person requiring surveillance. Domiciliary visits and picking by police should be should be reduced to the clearest cases of danger to the community security and not follow up at the end of conviction or release from prison or at the "whim of police officer ".
When the duty to cover the drainage by the Municipality was considered, the Madhya Pradesh HC has held that right to life includes the right to life with human dignity with the bare necessities of life and the Corporation is directed to take steps to ensure public safety and eradicate the menace.
To prevent the torturing at prison while taking a person on custody SC has laid down certain conditions. Such directions are issued for the protection of fundamental rights enshrined under Art. 21 of the Constitution.
The question of preventive detention was challenged before the SC. Even though the court upheld the preventive detention, it has been held that detenu is entitled to have an interview with his legal advisor at any reasonable hour.
Kerala High Court has held that compelling citizens to inhale obnoxious dust (fine powder of asbestoes) which can led to serious form of lung disease "asbestosis" amounts to deprivation of his life Forcing a person to live in sub-human conditions also amounts to the taking away of their life, not by execution of death sentence, but by slow and gradual process by which robbing him of his human qualities and graces, a process which is more cruel than sending a man to the gallows. The expression "life" no longer means mere animal existence or continued drudgery, but includes the finer graces of human civilization, interpreting Art.21 of the Constitution.
Calling of a bundh and the enforcement of that call is illegal and unconstitutional. Kerala High Court has held that it has jurisdiction to declare the calling of bundh and enforce them are unconstitutional . Political parties and the organizers which call for "bundhs" and enforce them are liable to compensate the Government, the public and private citizen for the loss suffered by them.
Extending the principle embodied in the Constitution, Kerala High Court banned Smoking of tobacco in public place is illegal, unconstitutional or violative of Art. 21. Maintenance of health and environment falls within the purview of Art.21 of the Constitution.
Andhra Pradesh HC has held that if beauty contests tend to offend the dignity of a woman to deal with her indecently in the circumstances amounting to indecent representation in any form, they are bound to offend Art. 21 of the Constitution as right to live includes right to live with dignity and decency and right to live happily.
Citizens who have been made responsible to protect the environment have a right to know. There is also a strong link between Article 21 and the right to know particularly where â€˜secret Government decisions may affect health, life and livelihood"., SC observed
Delhi Hight Court has held that no citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or imported A law designed to abate extinction of an animal specie is prima facie one enacted for the protection of public interest as it was enacted to preserve and protect the elephant from extinction. It is not contravention of Art.14 of the Constitution