CLIMATE CHANGE AND GLOBAL WARMING:

INDIAN CONSTITUTIONAL PERSPECTIVE

SUBMITTED TO
Dr. Avinash Samal
Faculty for POLITICAL SCIENCE

SUBMITTED BY
SHARAD MISHRA
Semester-3, Economics Major
B.A. LL.B (Hons.)

DATE OF SUBMISSION

16 Sept, 2011

HIDAYATULLAH NATIONAL LAW UNIVERSUTY

RAIPUR (C.G.)

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT

RESEARCH METHODOLGY

Introduction…………………………………………………………………….5
Problems of Formal Legal System…………………………………………….7

What is Alternative Dispute Resolution System ……………………………..8

Need and Purpose of ADR……………….…………………………………….9

What are the Mechanisms of ADR ……………………………………………11

Hindu Economics a Solution for

Holistic Development of Individual and Society……………………………..5

Hindu and World Economics…………………………………………………12

Conclusion………………………………………………………………………14

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 ACKNOWLEDGEMENT

The successful completion of any task would be, but incomplete, without the mention of people
who made it possible and whose constant guidance and encouragement crowned my effort with
success.

I would like to thank my course teacher Prof. Dr. Avinash Samal Sir for providing me the topic
of my interest.

Secondly, I would like to thank our Vice Chancellor for providing the best possible facilities of
I.T and library in the university.

I would also like to extend my warm and sincere thanks to all my colleagues, who contributed in
numerable ways in the accomplishment of this project.

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 RESEARCH METHODOLOGY

The research was based on secondary sources of information comprising of books, newspapers as
well as Internet. The topic has been extensively researched upon so as to accomplish the goal of
completion of the current project report.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Cases
2. Books
3. Websites

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:

The researchers have followed a uniform mode of citation throughout the course of this research
paper.

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 INTRODUCTION
CLIMATE CHANGE – Brief Background:-

Climate change refers to a statistically significant variation in either the mean state of the
climate or in its variability, persisting for an extended period (typically decades or longer).
Climate change may be due to natural internal processes or external forces, or to persistent
anthropogenic changes in the composition of the atmosphere or in land use. 1
We have often been knocked over by shocking reports of glaciers vanishing and sea
coasts submerging in floods and the news of hurricanes unleashing casualties world-wide is
really alarming. This is due to change in the climate. Some other indicators of climate change are
also there, that range from earlier spring arrival, coral reef bleaching, spreading diseases, heavy
downpours, disproportionate snow falling, etc to extinction of various species and plant and
animal range shifts. Now question arises whether it was man who started the climate change?
Absolutely not. Earth’s climate has been changing constantly over its 500 crore years history, as
it metamorphosed from a hot ball of fire to the present day world. But there is difference between
natural climate change taking its own time and climate change greatly caused by man. Actually it
was the industrial revolution that changed the human activity altogether. As man started moving
fast, he started consuming more all these pumped more green house gases to atmosphere. Apart
from that, population growth, deforestation, chemical revolution, environmental pollution,
increased fossil fuel consumption, etc are other factors which are responsible for the climate
change.2
A According to the Intergovernmental Panel on climate change (IPCC) usage, the term
‘climate change’ refers to “any change in climate over time, whether due to natural variability or
as a result of human activity. This usage differs from that in the Framework Convention on
Climate Change, whether climate refers to a change of climate that is attributed directly or
indirectly to human activity that alters the composition of global atmosphere and that is in

1
Ministry of Environment and Forest. Government of India, Source; envfor.nic.in

2
K.M. Mathew, Manorama Year Book 2008, Kottayam, Malaya Manorama Press, 2008, p-285.

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addition to national climate variability observed over comparable time periods.”
The Oxford Advanced Learner’s Dictionary defines the term green house gas as “any of the
gases that are thought to cause the green house effect.” We are living on a planet surrounded by a
blanket of gases that makes up our atmosphere. Carbon dioxide, nitrous oxide, methane, water
vapour and many more constitute this blanket. And these have a peculiar habit to trap energy
from Sun. When heat rays get reflected from earth these gases won’t allow them to escape back
to the space causing our planet to heat up. Hence these gases are generally referred to as green
house gases. ‘Green-house gases’ means those gaseous constituents of the atmosphere, both
natural and anthropogenic, that absorbs and re-emits infra-red radiation. This name is taken from
the concept of small glass houses which are used to grow plants, especially in the winter-work by
trapping heat from the Sun. The issue of climate change due to human activities can be analysed
under two broad categories: emissions of Greenhouse Gases (GHGs) and the nearly irreversible
damage to the environment. Reducing emissions of GHGs is intimately connected with
economic issues and hence a matter of global politics. It needs to be handled through global
negotiations and, ultimately, through the use of alternate sources of energy and clean technology.
The second category is more dangerous, since the recovery process will be extremely slow and
the corrective measures more complicated than those for the GHG abatement. Large-scale mass
movements, and not mere government policies or laws, are necessary to tackle this factor.

Introducing Climate change: Historical account

Climate change is a phenomenon that has been taking place for over billions of years on
the face of our earth. Many a times, this phenomenon has resulted from activities of living forms.
Ironically, at other times, it has forced life forms to evolve.
I. 34 000 000 Years Ago: First Climate Change
Interglacial period – where there was the shift from Eocene epoch to Oligocene epoch
(shift from a warm climate to a cooler climate). Geological evidence shows that our earth was so
hot during the Eocene that reptiles bathed in the sun in Antarctica. But, eventually glaciers
drifted towards the sea changing the façade of the landscape forever. Elsewhere on earth, the
cooler global climate has been punctuated by many warm “interglacial” periods.
II. 70000 Years Ago: Climate Change Almost Wiped Out Our Race

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 This period was triggered by cataclysmic eruption of Mt. Toba of Indonesia. Toba had
poured 670 cubic miles (2,800 cubic kilometres) of ash and dust into the atmosphere. Some
researchers say that this event had almost wiped out the human race from this earth.
III. 21 000 Years ago: Ice Age
This age is called the “Last Glacial Maximum” (LGM). Ice sheets covered almost whole
of America and Eurasia. Sea level dropped and allowed humans to cross the Bering Land Bridge
and occupy the Americas. Ever since this, the global trend has been a warming one.
IV. 10 000 Years ago: Warmer Climate & Population Boom
Air bubbles trapped in the glacial layer of Antarctica have provided much information
regarding this age. This age marked by hot climate was the golden age for Homo sapiens. They
invented agriculture and ultimately, this led to the formation of cities, towns, science and
technology. Their population also increased manifold in this period.
V. 1000 Years Ago: Little Ice Age
The ‘Little Ice Age’ was caused due to some major volcanic eruptions which threw dust
and ash in the atmosphere resulting in unusually low solar activity. The large Kuwae eruption of
the 1450s was a major cause of the cooling. Also, sulphur-rich compounds found in ice cores
from Greenland reveal multiple eruptions all of which might have accelerated the rate of cooling
of the earth.
VI. 150 Years Ago: Industrial Revolution
Industrial Revolution brought with it another major climate player: The Humans.
Anthropogenic activities started to rise like burning of fuels liberating greenhouse gases. These
activities started to have the opposite effect to what volcanic eruptions used to have. ‘Earth’s
temperature began to rise globally at a pace far more than nature could tolerate. This was the
genesis of global warming as we know it today.
VII. 10 Years Ago: Green House Gases
By the 1990s Earth’s climate had changed a lot in the sense that the climate has begun
changing in years and not millennia. Researchers and policy makers from around the world have
called for action that could reduce the rate of global warming and to stop our impending doom.
The Kyoto Protocol of 1997, which was formulated to check the greenhouse gas emissions
stands as an evidence to our concern.
VIII. Present Day: Reading the signs

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The present day is full of signs which show us that Global Warming is ‘Happening’-
 Multiple Greenland glaciers suddenly leaped into retreat, spilling larger and larger
amounts of ice into the sea. Similar is the scenario on the Antarctic Peninsula.
 Studies have revealed that storms have been steadily getting more intense and
destructive. Hurricane Katrina brought that point home to the U.S. by nearly wiping New
Orleans off the map.
 Scientists have also announced the record retreat in Arctic sea ice.
 Also, there has been a measurable slowing of the thermo haline circulation in the Atlantic
– the deep ocean current that drives the Gulf Stream, moderates temperatures worldwide.
So, we can say that Climate change and global warming are natural phenomena which have
accelerated due to human activities and which now pose a grave challenge in front of all of
us.

Impact of Climate Change on Indigenous People

It is worthwhile to quote here the speech of Mr. Rajendra K. Pachauri, Chairman of IPCC which
was delivered at the Opening Ceremony of the UNFCCC COP 14, Poznan, Poland on December
1, 2008. He said, “I am here to submit that there is a wealth of information in the Fourth
Assessment Report of the IPCC, a large part of which has still not received adequate attention
and precise understanding. Hence, impacts of climate change are still seen as distant and
undefined.” That is to say, there are still relevant gaps in current available knowledge regarding
impacts of climate change and some aspects of mitigation of climate change. But in spite of this,
the Fourth Assessment Report of IPCC itself tells about the serious impacts of climate change
and their worldwide implications.

Indigenous people have suffered the worst impacts of climate change, despite contributing the
least to world greenhouse gas emissions. They are facing a growing crisis as climate change,
unchecked economic growth and discretionary national laws forced them from their lands into
urban areas that offered them insufficient social services. The loss of biodiversity due to climate
change has affected them particularly women and children very seriously, who depended on the
environment. They are forced to move from rural to urban areas. There, migrants are compelled
to lead very different lifestyles and Government and social policies are often unable to help them
in adjusting to new circumstances. The study done by the IPCC shows that about 20-30% of

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species assessed are likely to be at increasingly high risk of extinction as global mean
temperatures exceed 20-30 C above pre-industrial levels. We are getting close to that range. It will
again destroy the eco-system and affect the livelihood of indigenous people. Justice Arijit
Pasayat, in an important judgment, has rightly cautioned:

“By destroying nature and environment, man is committing matricide, having

in a way killed Mother Earth. Technology excellence, growth of industries,
economical gains, etc. have led to depletion of natural resources irreversibly.”3

Some other impacts of climate change on indigenous people worldwide are described as follows:

i. Climate change currently contributes to the global burden of disease and premature
deaths. Adverse health impacts will be greatest in low income countries. In tropical and
sub-tropical areas, there is an increase in diseases which are associated with higher
temperatures, vector-borne diseases; Cholera, Malaria and Dengue fever are some such
examples.

ii. Worsening drought conditions and desertification lead to more forest fires that disrupt
subsistence agriculture, hunting and gathering livelihood.

iii. Abrupt and irreversible changes are possible, such as collapse of the Greenland or West
Antarctic ice sheets, which can lead to Sea Level Rise of several meters. For Greenland,
the temperature threshold for breakdown is estimated to be about 1.1 0 to 3.80C above
today’s global average temperature. Again we are close to that range too. In coastal
regions and small-island state’s there are always apprehensions of erosion, stronger
hurricanes and typhoons which can lead to the loss of fresh water supply, land, mangrove
forests, etc.

iv. Smallholders, subsistence farmers, pastoralists and artisan fisher folk who are generally
dependent on rain fed agriculture are likely to suffer complex and localized impacts of
climate change.

v. The IPCC’s study shows that if current warming rates are maintained, Himalayan glaciers
could decay at very rapid rates. Decline in river flows as a result could affect 500 million
people in South Asia and 250 million in China.

3
T.N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606, at p. 613.

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 vi. Rapid and unplanned urbanization had also contributed to environmental pollution and
degradation of human environment. Slums are a major problem of big cities and
significant contributors to environmental degradation.4

The problem of climate change has played a vital role in escalating the environmental
degradation. Urbanization is also result of rapid population growth and unending migration of
the poor from small towns and villages to urban centres. Now more than one-fifth population of
the nation lives in urban areas that are burden on cities. The centre for Science and Environment
in its fifth report (1999) has observed:

“India is facing a total collapse of urban environment. While industrial

cities like Ludhiana and Tiruppur are drawing in toxic wastes and industrial
pollution, non-industrial towns like Aligarh and Bhagalpur are swamped
with domestic waste…”

Measures to Mitigate Climate Change

So for as adopting measures to mitigate climate change are concerned, the International
Conference on Human Environment in the year 1972 at Stockholm was the turning point.
It was for the first time that World Nations gathered at a place under the U.N. leadership to
evolve a common strategy to combat environmental degradation, pollution and ecological
imbalances. 26 principles were declared in this International Conference which are known
as Magna Carta on human environment. It also declares that there is a need for the
international law relating to liability and compensation for the victims of pollution and
other environmental damage. The United Nations Environment Programme (UNEP) was
also created by the UN General Assembly on December 15, 1972 to promote
environmental law and address major environmental issues. The Stockholm Declaration
also became a basis for subsequent development of environmental law in the form of
numerous bilateral and multilateral conventions and other legally binding instruments.
Some of those conventions and instruments are discussed as follows:

4
S.C. Shastri, Environmental law in India, 2nd edn, Eastern Book Company, 2005, p.15

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OVERVIEW OF INTERNATIONAL ENVIRONMENTAL INITIATIVES

Stockholm Conference (5-16 June, 1972)

In 1972 UN sponsored the first major Conference on Human Environment under the
aegis of the UNEP, which was designed to be the ‘environmental conscience of the UN’. It
adopted a Declaration consisting of a Preamble and 26 Principles, which are known as the
Magna Carta on Human Environment. By the Preamble, the Conference, declared that in the
developing countries, environmental problems generally arose from poverty, whereas in the
affluent societies of the industrialized countries, it arose from excessive energy dissipation, waste
and wanton consumptions. It exhorted the creation of the appropriate national institutions for
care of environmental resources and encouraged international cooperation towards protection
and improvement of the environment.

Montreal Protocol (1985/1987)

This Protocol on substances that deplete ozone was signed under the Vienna Convention (1985)
and came into force in January 1987. The ozone layer in the stratosphere absorbs carcinogenic
ultraviolet radiation protecting human on earth. CFCs, used to be the input in the refrigeration
and as solvent for air sprays are the worst offender in destroying ozone. These substances were
to be totally banned from 2010.

World Commission on Environment and Development (1983) and Brundtland Report “Oue
Common Future” (1987)
In 1983, being UN set up the World Commission on Environment and Development (WECD).
The Commission, headed by Gro Harlem Brundtland of Norway, who submitted a report “Our
Common Future” in 1987, popularly known as Brundtland Report, which boldly presented the
concept of sustainable development as an alternative to the policy of only economic growth.

“Sustainable development is the development that meets the needs of the present without
compromising the ability of the future generation to meet their needs. It contain within it two key
concepts:

 The concept of needs in particular the essential; needs of the world’s poor, to which the
overriding priority should be given;

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  The idea of limitations, imposed by the state of technology and social organization on the
environment’s ability to meet the present and future needs (WECD 1987:43).”
 Brundtland Report affirms the equity and the growth with the due preservation of the
environment and it emphasizes that achieving equity and sustainable growth would
involve technological and social change.

Earth Summit Rio De Janerio under UNCED, 1992

This UN conference was held at Rio DE Janerio in 1992. It was the second UN conference and is
also known as the ‘Earth Summit’, which was unprecedented in its size of participation by 108
Heads of State or representatives. It aroused global response and awareness that nothing less than
the total transformation of various national growth, development and governance strategies and
people’s attitude as responsible earth citizens will save the earth ad the environment towards the
long-term sustainability and well being of the mankind at large. The summit arrived, inter alia, at
the following major international agreements:

 Rio Declaration of a series of 27 Principles defining the rights and responsibilities of the
individual state countries towards sustainability of environment and developments.
 Famous Agenda – 21 a very comprehensive set of action programmes towards
sustainable developments;

The Declaration of Principles included, inter alia, the following salient features:

 The human beings are at the centre of concern for sustainable development. They are
entitled to a healthy and productive life in harmony with the nature;
 The right to development must be fulfilled so as to meet the development and
environmental needs of the present and the future generation;
 That eradicating poverty and reducing economic disparities of living standards among
people of the world are indispensable requirements for sustainable developments;
 The women having the vital role in the environmental management, their full
participation.

Agenda 21 of the Rio Earth Summit encompasses comprehensive action plans for the socio-
economic development such as poverty alleviation, eco-sufficient production system, energy
conservation, and preservation of natural resources, demographic planning, protecting the

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atmosphere, oceans and biodiversity; preventing deforestation; promoting sustainable
agriculture.

Framework Convention on Climate Change, 1992 [Global Warming]

It has been known for some time that Greenhouse gases (GHG) consisting mainly of carbon
dioxide, CFC, Nitrogen oxide and methane cause global warming creating a thermal shield over
the atmosphere, which in turn affect the global climate. It changes the pattern of rain, drought,
storm and floods, glacial melt and river flow, cycle of weather, agriculture etc. The FCCC was
signed and adopted to achieve reduction and stabilization of greenhouse gases emission and
consequent concentration in the atmosphere at a level that will prevent very serious
anthropogenic interference with the world global climatic system. Taking into the cognizance of
the higher carbon emission of the developed countries and at the same time their income and
capabilities, the countries were divided into two categories:

 Annexure I Countries (OECD countries, Eastern Europe, & former Soviet Union).
 Non – Annexure I Countries (all other countries deemed developing).

Kyoto Protocol, 1997 on Global Warming

The signatories to the FCCC met at a conference from December 1 – 11, 1997 at Kyoto to draw
up a Protocol of implementation of the recommendations of FCCC 1992 within an international
Climate Change regime. The key elements of the Kyoto Protocol are:

 Agreements of reduction commitments by Annex I Countries of FCCC, which will

reduce the aggregate GHG emission by an average of 5.2 % below 1990 carbon dioxide
level by the period 2008 – 12 with the leading Industrialized countries reducing by the
following figures:
 European Union – 8%
 USA – 7%
 Japan – 6%, by 2012.
 Introduction of several instruments of the Carbon Trading, which allows Annex I
countries to fulfil their quota of GHG reduction by financing carbon reduction in other
countries, e.g.,:
 Clean Development Mechanism (CDM);

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  Joint Implementation (JI);
 International Emission Trading (IET);

Bali Summit, 2007

Over 100 countries met at Bali, Java Island in Indonesia in December 2007 to carry out the task
of halting and eliminating carbon emission in the atmosphere beyond the Kyoto Protocol. The
Summit agreed to carry out mutual consultation over 2 year time period to work out global
consensus to break a new path. The Bali Action Plan provides opportunities for China and India
to reduce their carbon foot print and to strive for mitigation without compromising on economic
growth. Hon’ble Science and Technology Minister Mr. Kapil Sibbal has criticised the United
States for voicing concerns over the provisions of the deal fixing a 2009 deadline for signing a
new Treaty to tackle global warming.

Copenhagen Accord, 2009

192 countries assembled in the UN Climate Change Conference at Copenhagen, held between 7
and 18 December, 2009. The Copenhagen Accord highlighted the following principles:

 The principle of common but differentiated responsibilities and respective capabilities

among developing countries;
 Climate change is to be addressed, that the temperature rise is held below 2˚ Celsius by
2050.

GLOBAL WARMING
Man has been exploiting natural resources in every possible way from times immemorial.
Initially, the exploitation was for meeting his basic needs. As time passed by, man’s needs turned
into desires, instilling greed in him. Industrialisation and technological revolution added fuel to
fire as demand for natural resources increased. The changing times and the pace of change
motivated companies to exploit natural resources and co-human beings as well. However, as this
attitude of companies began to take a toll on the environment, employees and society at large,
they came under public scrutiny. Government, media, social and environmental activists,
shareholders and many other parties raised their voices against the companies that encouraged
hazardous and unethical practices. In this context, in 1987, the term sustainable development
was coined, embracing the three dimensions of sustainability – environmental protection,

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economic growth and social equity. The basic idea behind sustainable development is that the
current development must not compromise the ability of future generations to develop.

Global Warming: A brief Idea

Technology is closely related to global warming which is, at present, a burning issue to save our
environment. It is the increase in the average temperature of Earth's near-surface air and oceans
and is caused chiefly by increasing concentrations of greenhouse gases namely Carbon Dioxide,
Methane, Nitrous Oxide, Hydro fluorocarbons (HFCs), Per fluorocarbons ( PFCs), Sulphur
Hexafluoride(SF6) resulting from human activities such as burning of fossil fuels, deforestation,
industrial processes and other sources. The Greenhouse Effect refers to the gradual warming of
the Earth’s atmosphere. The earth with its blanket of atmosphere constitutes a ‘Greenhouse'
according to some climatologists.
Effects of Global Warming which opened our eyes for its Legislative Control:
The average facade temperature of the globe has increased more than 1 degree Fahrenheit since
1900 and the speed of warming has been almost three folds the century long average since 1970.
Global Environmental Change caused by Global Warming is expected to have and has already
resulted in an adverse impact on the ecosystem. The percentage of Carbon Dioxide, the primary
contributor to the ‘’Greenhouse Effect’ ’has risen by over 25% since the Industrial Revolution.
At the current rate of increase, it is estimated that the Greenhouse Effect will hike up global
temperatures by about 4 degrees.

Global warming is responsible for:

 Rise in sea level which may cause wipe off of many small islands.

 Continuous melting of glaciers at North and South Pole.

 Flood, erosion of banks of coastal areas.

 Threat to human health (By extending zones for insects)

 Extreme changes in weather resulting in hurricanes, droughts, tropical storms and floods

 Lead to a change in ecosystems and shifts in plant and animal habitats.

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In order to save our planet from devastating effects of global warming, immediate and strict
steps should be taken. Law has to play a leading role with the help of rules and regulationns to be
framed by policy makers all over the world.

A wide variety of measures and strategies have been suggested to countries to mitigate Global
warming. United Nations and other specialized bodies expressed international concern about the
safety of the planet and declared that environmental degradation is a matter of global concern.
The International Panel on Climate Change (IPCC) defines mitigation as: “An anthropogenic
intervention to reduce the sources or enhance the sinks of greenhouse gases.

INDIAN CONSTITUTIONAL PERSPECTIVE

The constitution of India, which is the supreme law of the land, has imposed an obligation to
protect the natural environment both on the state as well as the citizens of India. 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 and wildlife and to have compassion for living
creatures”. There is strong presence of legislations for protection and improvement of
environment and problem free atmosphere in India but there is no proper implementation of law.
The courts are playing a role in directing the Governmental agencies for effective functioning.
In 1980’s the Indian legal system, underwent a sea change in terms of discarding its declining
approach and, instead, charting out new horizons of social justice.
It took a long time for the apex court to declare explicitly that the right to life under article 21 of
the constitution includes the right to life in healthy environment.

History behind the Environmental Law -: The Laws on environment keeps on amended by the
Parliament from time to time. The then Prime Minister of India, Mrs Indra Gandhi addressed the
first International conference on Human Environment at Stockholm in 1972 and voiced deep
concern about degradation of the environment and eco imbalances. India was one of the
signatories of Stockholm Declarations which is known as Magna carta on Human Environment.
To fulfil the promises made at the Stockholm conference, the Indian Parliament passed the forty-
second Amendment to the constitution in 1976 and incorporated specially two Articles relating
to protection and improvement of the environment. Thus India became the first country in the
world to have provisions on the environment in the constitution.
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Obligations on the State -: Article 39 (b) of the constitution of India provides that the state
shall direct its policy to see “ that the ownership and control of the material resources of the
community are so disturbed as best to sub server the common good.” The constitution of India
through article 42 has directed the state to venture to secure just and human conditions of work.
Under article 47 it imposes a duty upon the state to raise the level of nutrition and the standard of
living of its people and public health.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed, “the State will
realize that article 47 makes it a supreme principle of governance that steps are taken for the
improvement of public health as amongst its primary duties 5. Article 48A, which was added to
the constitution by the constitution of India 42 nd Amendment Act in the year 1976, expressly
directs the state to “to protect and improve the environment and to safeguard forest and wildlife”.
The Supreme Court in M.C Mehta v. Union of India 6 held that “theses directive principles
(Article 39 (b), 47 and 48A) individually and collectively impose a duty on the State to create
conditions to improve the general health level in the country, and to protect and improve the
natural environment.

Obligations on the part of the Citizens -: The constitution under part IV A, Article 51 A (g)
has declared that it shall be the fundamental duty of a citizen of citizen of India. “to protect and
improve the natural Environment including forests, lakes, rivers, and wildlife and to have
compassion for living creatures.” Article 51A (j) has imposed on citizens another fundamental
duty “to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievements”.

The Rajasthan High Court in Vijay Singh v. State of Rajasthan observed that “any person who
disturbs the ecological balance or degrades, pollutes and tinkers with the gifts of the nature such
as air, water, river, sea and other elements of the nature, he not only violates the fundamental
right guaranteed under Article 21 of the constitution but also breaches the fundamental duty to
protect the environment under Article 51A (g).

The Forty Second Amendment Act -: Environmental Protection and improvement were
explicitly incorporated into the Constitution by the Constitution (Forty second Amendment) Act
5
Municipal Council, Ratlam Vardhichand, AIR 1980 SC 1622.
6
M.C Mehta v. Union of India, (2002) 4 SCC 356.

17
of 1976. Article 48A was added to the Directive Principles of state policy. It declares: The State
shall endeavour to protect and improve the environment and to safeguard the forests and wildlife
of the country. Article 51(g) in a new chapter entitled ‘Fundamental Duties’ imposes a similar
responsibility on every citizen ‘to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures. Although the language in
two articles differs, the differences appear to relate to form rather than to substance. Together the
provisions highlight the national consensus on the importance of Environmental protection and
improvement and lay the foundation for jurisprudence of environmental protection.

ENVIRONMENTAL PROTECTION AND FUNDAMENTAL RIGHTS

Right to Wholesome Environment -: In the process, the boundaries of the fundamental right to
life and personal liberty guaranteed in article 21 were expanded to include environmental
protection. The Supreme Court strengthened Article 21 in two ways. First, it required laws
affecting personal liberty to also pass the test of Article 14 and Article 19 of the constitution.
Second, the court recognized several unstated liberties that were implied by Article 21. It is by
this second method that the Supreme Court interpreted the right to life and personal liberty to
include right to a wholesome environment. Expanding upon the Case, Virendra Gaur v State of
Haryana, the court observed that Article 21 protects the right to life as a fundamental right.
Enjoyment of life including right to live with human dignity encompasses within its ambit, the
protection and preservation of environment, ecological balance free of pollution from air and
water, sanitation, without which life cannot be enjoyed. Any contra acts or actions would cause
environmental pollution. Environmental, ecological, air, water pollution etc should be regarded
as amounting to violation of Article 21.Therefore hygienic environment is an integral part of
right to healthy life and it would be impossible to live with human dignity without a human and
healthy environment.7

DIRECTIVE PRINCIPLES OF STATE POLICY AND THE ENVIRONMENT

7
Virendra Gaur v State of Haryana, 1995 (2) SCC 577.

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Chapter IV (Article 36 to Article 51) deals with the Directive Principles of the State Policy.
Some of them specifically deal with the various facts of human health and environment. These
Directive Principles sometimes become complimentary to the fundamental rights and are
enforced by courts of law. The following are some of the directive Principles related to the
Environment-

Article 47: The State regards the raising of the level of nutrition and standard of living of its
people and the improvement of public health as among its primary duties.

Article 48- A: The State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country. It has been declared time and again by supreme
courts that Article 48 A is a constitutional pointer, mandate and to the state and the state has to
carry out its obligations stated under it. 8 The Supreme Court has declared it that there is a
constitution imperative on the Central government, State government and bodies like
Municipalities, not only to ensure and safeguard proper environment but also an imperative duty
to take adequate measures to promote, protect and improve the environment manmade and
natural environment.9

PRINCIPLES OF SUSTAINABLE DEVELOPMENT

One of the principles underlying environmental law is that of sustainable development. This
principle requires such development to take place which ecologically sustainable. The two
essential features of sustainable development are – (a) the precautionary principle, and (b) the
polluter pays principle.

A) Precautionary Principle- It is a rule of evidence and particularly it deals with the burden of
proof in environmental cases. This principle shifts the burden of polluter- individual/
industrialist/ entrepreneur – to prove that his activity/industry/process/operation is not a health
hazard, damaging the environment and his action is “environmentally benign.”

B) Polluter Pays Principle - The Supreme Court has also, in a recently decided case held that
this principle envisages ‘precautionary protection against environmental hazards by avoiding or

8
M.C Mehta v. Union of India, (1997) 2 SCC 353 :AIR 1997 SC 734, at p. 761.
9
T.N Godavarman Thirumalapad v. Union of India, (2002) 10 SCC

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reducing environmental risk before specific harm is expected.’ Thus it has become a part of
principle of sustainable development. This Principle means the absolute liability for harm to the
environment. Thus it became a principle of remediation of the damaged environment as part of
process of sustainable development.

Suggestions

Various Constitutional provisions and statutes relating to environment have tried to revive
and regenerate age-old Indian Tradition of reverence for Nature and not to interfere with
Nature excessively. It kindles a ray of hope in our hearts that revival of old environmental
ethics would guide mankind to a safer and more peaceful path and retrieve our losses
inflicted on Nature by our Scientific and technological advancements. This can bring the
harmony between Nature and mankind and consequently the impact of climate change will
be reduced automatically.

It happens generally that the mitigation measures adopted by Governments and policy
makers further affect the well-being of indigenous people who are already previously
suffered by the impact of climate change. Therefore, it must be stopped. Apart from above,
following suggestions may be useful to control the impact of climate change:

i. We must live in harmony with Nature. Peaceful coexistence and harmonious

relation with Nature must be the prime motto of our life.

ii. We must have compassion for all living creatures.

iii. Forests, lakes, rivers, animals and birds, all should be treated equally with man
because they are complementary to each other. Damage or destruction of one of
them would invite the downfall of the other.

iv. A forestation and reforestation should be done at war level. It will prove as land
mark in controlling the impact of climate change and improving the situation of
indigenous people.

v. Population growth should be controlled very seriously at every level.

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 vi. Natural resources should be used in sustainable manner. Development should not
be done at the cost of environmental degradation and in the same manner
environment protection cannot be done at the cost of development.

vii. Awareness campaigning should be organized to make the public conscious.

viii. Environmental education must be implemented in every course at secondary and

higher level.

Conclusion

Our collective record of mitigation of green-house gas emissions has not been very
inspiring. Global green-house gas emissions have grown, of course, since pre-industrial
times, but there has been an increase of 70% between 1970 and 2004. Hence, the record of
global action at mitigation has been very weak, even though the UN Framework
Convention on Climate Change (UNFCCC) was agreed on in 1992. This record goes
against the spirit and intent of the UNFCCC.

Impacts are expected to increase with increase in global average temperature. Although
many early impacts of climate change can be effectively addressed through adaptation. The
options for successful adaptation may diminish the impact of climate change. At present
we do not have a clear picture of the limits to adaptation, or the cost, partly because
effective adaptation measures are highly dependent on specific, geographical and climate
risk factors as well as institutional, political and financial constraints. A wide array of
adaptation options is available, but more extensive adaptation than is currently occurring is
required to reduce vulnerability to future climate change. There are barriers, limits and
costs, but these are not fully understood.

Mitigation of emissions of green-house gases has various merits and is in itself desirable and
feasible in several respects. An effective action is must at local level which should reflect the
voice of science and act with determination and a sense of urgency. As quoted by V.R. Krishna
Iyer J. “At long last, the law is gaining respect” as it is assisting in narrowing the gap between
promise and performance, expectation and reality, enactment and implementation which caused
disappointment to the general public who are suffering from the feeling of helplessness and
alienation. The Supreme Court’s pivotal role in turning up from the exhaustion of the Legislature

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and the inefficiency of the Executive is admirable. It has shown that moneyocracy can no longer
corner court resources. What is needed is an enthusiastic conscious, calm mind and willingness
to do an orderly work.

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