CASE ANALYSIS OF SUBHASH KUMAR V. STATE OF BIHAR
The government of India recently released a draft Environmental Impact Assessment (“EIA”), 2020, which flagged major environmental concerns and attracted contempt from academicians and politicians alike. One of the major concerns was the allowance of post-facto clearances, which could potentially set dangerous precedents, especially in the backdrop of Vizag gas leak.
In order to counter the hazardous impact of environmental deteriorations, it becomes pertinent to rummage for constitutional safeguards which would provide the necessary check on such activities.
These safeguards are predominantly present in two forms. One is the right to healthy environment of citizens, which has been read into the silences of the provision for “right to life” under Art. 21 of the Constitution. The other one is a deliberate induction into the Constitution by way of the 42nd Amendment, and is stated under Art. 48 A to elucidate that the State shall endeavour to protect and improve the environment. In the current scenario, the former plays a major role in establishing a robust check on the degradation of environment by the State, as it can be enforced as a matter of fundamental right. Therefore, it becomes important to analyse the genesis of such a crucial right, which applies to the current position.
The article analyses the landmark case of Subhash Kumar v. State of Bihar (1991) [“Subhash Kumar”], by firstly providing the background, then critically examining the issues at hand and lastly observing the paradigm shift in the interpretation of Art. 21 post this case.
Interpretational analysis of Art. 21 until 1991:
Before delving into the analysis of an environmental safeguard within the ambit of Art.21, it is essential to understand how the interpretational scope of Art. 21 has been widened by the Supreme Court.
Maneka Gandhi v. Union of India is the frontrunner amongst the cases, wherein the court has gone beyond the text to provide a liberal interpretation of the language used in Art. 21. The case, decided in 1978, revolutionized the manner in which the phrase “personal liberty” under the article may be interpreted. The court asserted that law would be held violative of Art. 21 if it is not fair, just and reasonable. .
Subsequently, in Hussainara Khatoon v. State of Bihar case in 1979, the Supreme Court held that the right to speedy trials for under-trials can be envisaged under the scope of Art. 21. The need for speedy-trials arose when it was observed that the amount of time the under-trials have served in prisons has exceeded the sentence of imprisonment which they were likely to serve if convicted. Thus, the court upheld their right to fair trial and ordered the Bihar government to immediately release them.
Thereafter, the court interpreted that a humane procedure under the criminal justice system was a part of Art. 21. In the landmark case of Bachhan Singh v. State of Punjab in 1980, the court held that even those who are guilty of the most heinous offences have a right against public hanging, protected and guaranteed by their right to life.
In 1986, in the case of Olga Tellis & Ors. v. Bombay Municipal Corporation, the court read “right to livelihood” under the right to life. The court had opined that the means of livelihood is essential to the survival of a person. Thus, robbing one of his livelihood would translate into taking away his right to live. Additionally, the court underscored that the right to have shelter, nutrition etc. also fall within the ambit of Art. 21.
Thus, it can be rightly summed up that the Supreme Court has been amenable towards expanding the scope of Art. 21 to its widest possible interpretations, so as to incorporate the inherent fundamental rights of the individuals which may not be expressly mentioned in the text of Art. 21.
Background to Subhash Kumar:
In Subhash Kumar, the court determined whether the endangerment of quality of life of a citizen can be constitutionally challenged under Art. 32. In this regard, the court considered the wider interpretation of Art. 21, which would provide a healthy environment to citizens. The court further attempted to identify the grounds for the maintainability of PIL with regards to violation of fundamental rights challenged under Art. 32.
The petitioner, Subhash Kumar, filed a PIL before the Supreme Court for the prevention of pollution of the water of Bokaro river, caused by the discharge of slurry from the plants of Tata Iron & Steel Co. The petitioner alleged that the respondents failed to abide by Section 24 of the Water (Prevention and Control of Pollution) Act, 1978, which prohibits the discharge of poisonous or polluting matter into the river.
The petitioner further submitted that the discharged slurry in the water washed down on the fertile lands of several land owners, including the petitioner’s, and caused a degradation of the fertility of the land. It was alleged that the State Pollution Control Board [“Board”] had also failed to take actions against the company.
However, counter-affidavits were filed by the respondents which alleged that the petitioner has filed the concerned PIL to fulfil his personal interests and not to champion the rights of the public being affected at large. They claimed that the petitioner had been purchasing slurry from the respondent company since several years and when the company refused to further provide him with it, he went on to file several suits at district and State level. As his concerns weren’t heeded in the lower courts, the petitioner moved to the SC by filing the aforesaid allegations in the form of a PIL.
The court was faced with the following issues- firstly, whether PIL filed by the petitioner is maintainable and on what grounds, and secondly, whether there exists a right to healthy environment to the citizens. With regards to the first issue, the court found that the Board had indeed taken effective steps to prevent the discharge of waste from the factories into the river, and thus dismissed the petition. Furthermore, it held that a person invoking the jurisdiction of this Court under Art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. The court assumed its duty to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation which has been reinforced in Bandhua Mukti Morcha v. Union of India, Pandey v. State of West Bengal, etc. Applying the same principle to this case, the court held that the petition did not qualify as a public interest litigation, because it was filed by the petitioner’s own interest in obtaining larger quantities of waste in the form of slurry from one of the respondent companies from which he started to purchase slurry several years prior to the petition.
With respect to the second issue, the court noted that Article 21 includes the “enjoyment of pollution free water and air for full enjoyment of life.” It further noted that should such environmental pollution occur, individuals are entitled to a remedy, including “removing the pollution of water or air which may be detrimental to the quality of life. However, while stating such inherent rights of the citizens, the court did not attempt to enforce them by merely discarding the PIL filed by the petitioner. Thus, it can be implied that the court in this case cursorily engaged with the right to healthy environment, however, the recognition of such right further expanded the scope of Art. 21.
The drafters of the Constitution intended that the constitution should neither make any obligatory arrangements with respect to different rights for the natives nor make any resident free from certain central obligations that must be trailed by each native of the nation. However, the interpretations by the Supreme Court over the years has become the basis of the environmental jurisprudence, which have served the masses; as right to life is a fundamental right provided under Art. 21 of the Constitution and guarantees a pollution free environment. One of the benefits of our Constitution is that it neither confines an individual from upholding his essential rights, nor it gives full opportunity to an individual in such a way, that he endeavours or damages such rights himself or against the general public. In the present case the Court did not consider delving into greater detail as the present petition was not filed in the public interest instead it has been made in self-interest. This element of our Constitution makes it unique as compared to the other Constitutions of the world.
This article has been written by Anant Budhraja and Hritik Pathak. Anant is a second year law student at WBNUJS, Kolkata and Hritik is a second year law student at RGNUL, Patiala.