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Among the myriad issues tackled at length and analysed in manners par excellent through legislative means and judicial pronouncements, of more pertinent import today are Secularism and Environment. Both issues, though dissimilar and disjoint in pith, create ripples in news, political circles within and beyond borders. Particularly so, owing to the potency of their reach and propensity to make or break official images of the state in question, by the way the issues are tackled via media and by stakeholder entities. For the opposition, it’s an opportunity while for the citizen, a law that affects his freedom in particular and life in general.
State Permits Intervention, Legislates On Secularism
Despite the inclusion of the term ‘Secularism’ in the Preamble of the Constitution, the State has, even within the Indian Constitution itself, permitted intervention and legislated on issues that could, if applied in the strictest of senses, be in violation of the ‘Secular’ term. If followed strictly, the State would be not be permitted to intervene in any religious situation that would include the reservation system, protection of the Muslim personal law and the directive principle to protect cows, all of which the Constitution ultimately went ahead with.
For the State to follow the spirit of secularism while avoiding its inclusion in the Preamble, the Chairman of the Drafting Committee of the Constitution B R Ambedkar had, during the Constituent Assembly discussions, said, “What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself because that is destroying democracy altogether.”
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| THE MAKING: President of the Constituent Assembly Dr Rajendra Prasad signing the Constitution of India as passed by the Constituent Assembly |
When the Preamble to the Constitution was discussed in the Constituent Assembly, there were huge debates over the incorporation of secularism on which all the members agreed yet through extensive debates in the Constituent Assembly revealed the ambiguity inherent in the terminology predominantly Western, when applied in the Indian context. Questions were raised regarding the nature of its application and to what extent it was even possible.
In the debate on 6 December 1948, Lokanath Misra had said, “Do we really believe that religion can be divorced from life, or is it our belief that in the midst of many religions we cannot decide which one to accept? If religion is beyond the ken of our State, let us clearly say so and delete all reference to rights relating to religion.” Even Vice President of the Drafting Committee H C Mookherjee had stated “Are we really honest when we say that we are seeking to establish a secular state? If your idea is to have a secular state it follows inevitably that we cannot afford to recognise minorities based upon religion.”
Concept Of Secularism Cannot Be Applied Blindly
Secularism, in the truest meaning of the term, as was meant to be understood at its place of origin, could not be applied blindly to the Indian context. The term ‘secularism’ is known to have originated in late medieval Europe coined first by English secularist, co-operator, and newspaper editor George Jacob Holyoake was modelled on the theory that governments ought to have no religious connection, nor indeed anything to do with matters of religious belief or ritual.
It was manifestly a Western intervention, specifically a product of the Protestant Reformation and the Enlightenment. It went on to be treated as the ideal theoretical basis of nation-states utilised in lands outside the European continent, such as the United States even Turkey. It was only inevitable for the creators of free, modern India, shaped by European thoughts and practices, to be ardent supporters of secularism.
Consequently, the Constituent Assembly adopted Articles 25, 26 and 27 of the Indian Constitution in order to further secularism that, despite not being formally inserted in the document, was definitely embedded in the constitutional philosophy.
Secularism, as a concept, was introduced through the 42nd amendment which gave unprecedented powers to the Parliament. Almost all parts of the Constitution, including the preamble, was changed with this amendment. Thereafter the description of India in the preamble was changed from “sovereign, democratic republic’ to a ‘sovereign, socialist, secular, democratic republic.”
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| IN CRUX: The Preamble to the Constitution of India |
The State’s intervention on the Instant Triple Talaq issue and its swift concurrence with the Supreme Court view followed by an ordinance, despite loud opposition in Parliament, wasn’t perceived as being violative of Secularism or ‘interference with religious affairs,’ but instead positioned and lauded as a win for Women Rights.
Interestingly, it may be noted here that Congress MP Shashi Tharoor had, then, in a written question in Parliament, asked the government to clarify its position on Female Genital Mutilation – a practice among the Bohra Muslims in India. The government had replied that it wasn’t introducing any legislation to ban it and that, in case of any objections raised, the IPC and POCSO had provisions to tackle issues arising. An attempt in the future to legislate on the issue could be seen as an affront to Secular fabric of India and ‘interference’ in religious affairs.
Distinct from what ‘is’ right, sadly, it’s what is ‘seen as right’ that matters in a democracy driven by populism and the vote of the majority.
A Directive To Protect The Environment
An integral part of the Directive Principles of State Policy, under Chapter IV of the Constitution of India, Article 48A requires the State to protect and improve the environment as well as safeguard the forests and wildlife of the country. Also, Article 51A (g) casts a duty on every citizen of the country to protect and improve the environment. Now, these being Directive Principles are not enforceable in a court of law in India or by the judiciary in any form yet are persuasive and indicative of the road ahead for the State of India towards the cause of environment.
More practical and enforceable for environmental rights is The Right to Life guaranteed to all citizens under Article 21 of the Constitution of India. The Article that deals with the Protection of Life and Personal Liberty except according to procedure laid down by law is commonly known as The Right to Life.
On The Right to Life, The Supreme Court of India, in the case of Kharak Singh v. State of Uttar Pradesh, first held that:
‘The term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.'
Article 21 has been, over the years, interpreted widely and generously by the Supreme Court to bring within its sweep the right to a pollution-free environment.
In Subhas Kumar v. State of Bihar, the Supreme Court held a Public Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and air which is included in The Right to Life under Article 21 of the Indian Constitution.
Environment Is Extension Of Right To Life
The court observed:
'Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.'
Accordingly, in case of pollution of water of air by the 'State' either through its own or by its appendages and agents, anyone could move the Supreme Court through Article 32 to remove the pollution of water or air which may be detrimental to the quality of life.
Article 32 and Article 226 of the Constitution of India provide for the issuance of prerogative and other writs that may be invoked to grant reliefs. While Article 32 enables an individual to approach the Supreme Court directly for infringement of a fundamental right, Article 226 empowers a High Court to issue a writ for violation of a fundamental right or any other legal right.
A lot of landmark cases have been decided by the Supreme Court on Environment and the law on the same has evolved over the years through legislation and in its absence, precedent. In M C Mehta v. Union of India (1988), the Supreme Court ordered the closure of tanneries that were polluting water. In M C Mehta v. Union of India (1997), the Supreme Court issued several guidelines and directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation. In Milk Men Colony Vikas Samiti v. State Of Rajasthan, the Supreme Court held that the Right to Life means clean surrounding which leads to healthy body and mind. It includes the right to freedom from stray cattle and animals in urban areas.
In Vellore Citizens Welfare Forum v. Union of India, the Court took cognisance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. The Court issued several directions to deal with the problem. In M C Mehta v. Union of India (2006), the Supreme Court held that the blatant and large-scale misuse of residential premises for commercial use in Delhi violated the right to salubrious sand decent environment. Taking note of the problem the Court issued directives to the Government on the same.
Legislation To Protect ‘Life’ Of Non-Smokers
In Murli S Deora v. Union of India, the Supreme Court held that those not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of smokers. Under Article 21, The Right to Life of a non-smoker is affected as a non-smoker may become a victim of someone smoking in a public place. Concurrently, smoking in public was banned to uphold The Right to Life of non-smokers.
A slew of regulations and controls of discharge of pollutants through a system of licensing and permits is provided for by the Air Act and the Water Act and administered by Central and State Boards established for the purpose. Violations of the standards prescribed are known to attract penalties that also include the closure of an industry or plant. The Water Cess Act imposes a levy on the consumption of water used to enforce the provisions of the Water Act. The Act provides a 70 per cent rebate on the cess payable upon installation of effluent treatment equipment.
Also, there are the Indian Forest Act 1927 and the Forest (Conservation) Act 1980, which envisages permission of the Central Government for de-reserving a reserved forest, use of forestland for non-forest purposes or assignment of forestland and other issues concerning reforestation. There are also, on the same lines, the Wildlife Protection Act 1972, The Atomic Energy Act 1962 and The Factories Act 1948 that keep a close eye on Environment and regulate all concurrent and incidental activities that may cause any damage or disruption.
To add to the legislative reach to control environmental damage are Rules made under the Environment Protection Act that include The Hazardous Wastes (Management and Handling) Rules 1989 and The Hazardous Micro-organisms Rules 1989 which deal with manufacture, use, import, export and storage of hazardous micro-organisms and genetically engineered cells. References may also be made to the Public Liability Insurance Act 1991 and to the National Environment Tribunal Act 1995.
The Public Liability Insurance Act of 1991 provides for mandatory public liability insurance for installations handling hazardous substances to provide minimum relief to the victim and the Environment Tribunal Act, 1995 imposes a strict liability for damages, by reason of accidents caused by handling hazardous substances.
Judicious Interpretation And PILs Further Law
While the laws on environment have been enacted by legislature both at the Centre and State to meet pertinent goals, it’s the judicious interpretation of the statute by the Supreme Court, High Courts and lower courts in myriad cases of public nuisance and PILs filed by public-spirited entities that have furthered their reach.
To ensure that the laws with regard to air, water and land are enforced properly, India has a vibrant Opposition and Civil Society that keeps a hawk’s eye on ground realities and assists the executive in enforcing legislature by way of policy even before they are reduced to the letter of the law.
To plug any existing loopholes, the Fourth Estate brings before the public, issues of private enterprise and endeavours that risk thwarting the environment by way of polluting units and ventures that damage to the environment and wreak havoc in their bids to maximise profit.
The Press is vibrant in a democratic India and has been known to pick up issues and stories that would otherwise be left untouched. They bring forth issues that need to be addressed by the executive across states and resolve them through law and practice in order to ensure the reach of law on Environment in letter and spirit.
It is, indeed, a balancing act that the State has been achieving over the last decade where it comes to tackling enterprise and development while keeping a strict control on the damage it may inadvertently cause to the environment.
It is in this regard that India through positive governance has registered a surge in the production of Solar Power, Conservation of Energy and Water as well as launched the Swachch Bharat Abhiyan within its borders. All of these contribute towards the preservation of Environment that risks ruin in the face of lop-sided development.
Environment Must Strike Balance With Development
Apart from ensuring that the law on environment is enforced equitably across India, the state has to provide the perfect platform to balance development and environment. A motivated section of the Civil Society even among the Media, use the anti-environment line to shoot down development in any form across India while turning a blind eye to identical projects beyond borders or in foreign lands.
It is in an ‘all-inclusive development’ that India stands to win and not just a skewed, narrow perception of politically driven ‘environment-friendly measures’ actually aimed to curb any form of development. Sabka Vikas holds the key, truly!
To read more commentaries from Gajanan Khergamker, click here.