Critically examine the provisions made in the Constitution for the protection of Environment. (2016, 15 Marks)
The Constitution of 1950 said nothing explicit about the environment. After the Stockholm Conference (1972), the 42nd Amendment (1976) wrote ecological duties into the text, and the Supreme Court later read a right to a healthy environment into Article 21. The result is generous on paper and inventive in court, but weak in executive delivery.
Textual Provisions
- Article 48A charges the State with protecting and improving the environment and with safeguarding forests and wildlife; Article 51A(g) lays the same charge on every citizen. Articles 47 (public health) and 39(b) (resources for the common good) support them.
- Federal distribution. The 42nd Amendment moved forests and protection of wild animals and birds to the Concurrent List (Entries 17A, 17B).
- Treaty power. Article 253 (implementing treaties) underpins the Air Act 1981 and the Environment (Protection) Act 1986. The Water Act 1974 rested on Article 252 state resolutions.
- Local government. Articles 243G and 243W devolve social forestry and watershed development (Eleventh Schedule) and urban forestry and environmental protection (Twelfth Schedule).
The Judicial Turn
- Since 48A and 51A(g) are non-justiciable, the enforceable right came from Article 21, pressed through public interest litigation under Article 32. Rural Litigation and Entitlement Kendra (1985) halted Doon valley quarrying; Subhash Kumar (1991) recognised a right to pollution-free water and air.
- The M. C. Mehta cases laid down absolute liability (1987) and drove the Ganga, Taj Trapezium and Delhi CNG orders. Vellore Citizens (1996) absorbed the precautionary and polluter-pays principles; M. C. Mehta v. Kamal Nath (1997) the public trust doctrine; T. N. Godavarman (from 1995) gave “forest” its dictionary meaning.
- M. K. Ranjitsinh (2024) recognised a right against the adverse effects of climate change under Articles 14 and 21.
Critical Assessment
- Implementation gap. India ranked 176th of 180 in the Environmental Performance Index 2024. The State of Forest Report 2023 puts forest and tree cover at 25.17 per cent, but about nine-tenths of the gain since 2021 was tree cover outside forests.
- Government by judiciary. Through continuing mandamus in Godavarman the Court became India’s forest administrator, bypassing accountable institutions, as Armin Rosencranz and Sharachchandra Lele argued in 2008. Doctrine also oscillates: the Vanashakti litigation saw ex post facto clearances struck down (May 2025), that ruling recalled (November 2025), and prior clearance restored as the rule in July 2026.
- Executive dilution. The Forest (Conservation) Amendment Act 2023 confined the law to recorded forest and widened exemptions, until the Court’s February 2024 interim order revived the Godavarman definition; the draft EIA Notification 2020 diluted public consultation.
- Whose environment? Amita Baviskar‘s “bourgeois environmentalism” and Madhav Gadgil and Ramachandra Guha‘s defence of “ecosystem people” expose a class bias, visible in the 2019 order evicting rejected forest-rights claimants, stayed within weeks.
Conclusion
The provisions are not decorative: India still holds four global biodiversity hotspots, and Ranjitsinh has extended the right to climate harm. But protection rests on directives, duties and judicial improvisation rather than an explicit, justiciable right. Such a right, backed by independent regulators, would anchor protection better than episodic litigation.