CONSTITUTIONAL SAFEGUARDS FOR ENVIRONMENT AND HERITAGE : AN APPRAISAL

The Indian Constitution is a federal constitution. One of the essential characteristics of a federal constitution is the division of powers, amongst the Federal and the State Government and both are independent in their own spheres, Under Schedule VII of the Indian Constitution there arc three lists viz List I (Union List). List II(State List) and List III (Concurrent List). For the matter-, enumerated in List I the Parliament has exclusive power 10 make laws. for List I the State legislatures are competent to make laws  and for List ill, both the Parliament  and the Slate legislatures can make laws.

As per division of powers, the matter of “Public health and sanitation” –falls in List II  the mailer of "Public health and Sanitation" --fail in List II under entry 6, as such the State legislatures are competent to make laws for protection of environmental pollution. But under Art. 253 Parliament is competent to make laws for implementing the international treaties, conventions, or decisions taken at the international conference. It shall also be lawful for the Parliament under Art. 252 10 legislate in the matter which otherwise forms part of the State List. if two or more State legislatures consent to Central legislation. Under these two Articles i.e. Art. 252 and 253, to give effect to the decisions of Stockholm Conference on Human Environment which held from 5th of June to 16th of June, 1972, the Parliament enacted the Water (Prevention and Control of Pollution) Act 1974, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act 1996.

In the Indian Constitution, the following provisions are given under the Directive Principles of State Policy (Art. 48-A) and the Fundamental Duties (Art. 51A (g)) :

Art. 48-A : Protection and improvement of environment and safeguarding of forests and wild life :

The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Art. 51A (g) - It shall be the duty of 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.

The High Courts and Supreme Court of India have read the right to wholesome environment as part of the right to life guaranteed in Art. 21 of the Constitution of India. Art. 21 enunciates that-

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

The slow poisoning by the polluted atmosphere caused by environmental pollution amounts to violation of Article 21 of the Constitution, In fact, the right to life guaranteed by Art. 21 of the Constitution embraces the protection and preservation of  without which life cannot be enjoyed,

In Bandhua Mukti Morcha v. Union of India[1], the Supreme Court clarified that Art. 21 assures the right to live with human dignity free from exploitation and the State is under constitutional obligation to see that there is no violation of the Fundamental Rights of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.

In this case the petition was filed by an organisation dedicated to the cause of bonded labourers all Jeging that a large number of labourers from Maharashtra, M.P. and U.P. were working under inhuman and intolerable condition in stone quaries situated in Faridabad District of Slate of Haryana and some of them were bonded labourers. The violation of Art. 21 was therefore alleged to have been committed. The case involved the issue of applicability of Art. 21 and the public interest litigation.

The court held that where a member of the public acting bonafide moves the court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the court even by just writing a letter, it would not be right or fair to expect a person acting for the benefit of the general public to incur expenses out of his own pocket for going to a lawyer and preparing regular writ petition for being filed in court for enforcement of the fundamental right of the poor and deprived sections of the community. All such communications must be addressed to the entire court, that is to say, the Chief Justice and his companion judges. No such communication can properly be addressed to a particular judge.

In Chhetriya Pardushan Mukti Sangharsh Samity v. State of U.P.[2], it was alleged that the smoke emitted from the chimneys of the mills and the effluents discharged from the Plants is causing environmental pollution and were proving great environmental hazard. It was stated that the people were finding k difficult to eat and sleep due to smoke and foul smell and highly polluted water. The court found that owners of these mills and plants were complying with the statutory provisions and NAL allegations were the result of long history of enmity and animosity.

The Court held that every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Art. 21 of the Constitution and protection can be sought under Art. 32. But this can be done by any person interested genuinely in the protection of the society or community. Where it appears that this is only to feed an ancient grudge and enmity. this should not only be refused but strongly condemned and discouraged. While it is the duty of the court to ensure that this weapon under Art. 32 should not be misused creating a bottleneck in the superior court preventing other genuine violations of Fundamental Rights. The Supreme Court must protect the society from the so called protectors.

In. Subhash Kumar v. State of Bihar[3], the public interest litigation was filed for preventing the pollution of the Bokaro river water from the sludge/slury discharged from the washeries of the Tata Iron & Steel Co. Ltd. It was alleged that the effluent in the shape of slurry is flown into the river Bokaro which is carried out by the river to the distant places polluting the river water as a result of which the river water is not fit for drinking purposes nor it is fit for irrigation purposes and it violates the Fundamental right to life generated under Art. 21.

In this case it was revealed that the petitioner himself was interested in collecting the salury and transporting the same for the purposes of his' business and respondents have shown that there was no breach of statutory obligations by Tata Iron & Steel Co. and State Pollution Control Board.

The Supreme Court observed that Art. 32 is designed for enforcement of Fundamental Rights by the Apex Court. Right to life is a fundamental right under Art. 21 of the Constitution.

It includes the right of enjoyment of pollution free water and air for the full enjoyment of life.

The Supreme Court clarified that a petition fur the prevention of pollution under Art. 32 is maintainable at the  instance of affected persons or even by a group of social workers of Journalists. But the recourse to proceedings under Art. 32 must be taken by a person genuinely interested in the protection of society on behalf of the society. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions are entertained under Art, 32, it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners.

In Abhiiash Textile v. Rajkot Municipal Corporation[4] the petitioners, who were carrying on the business of dyeing and printing work have filed writ petition under Art. 226 of the Constitution challenging the notice issued by the respondent Municipal Commissioner to prevent discharge of dirty water on public road and in drainage within certain time. The notice further stated that in case of failure to comply with notice, the factories would be closed.

The Court observed that by discharge of effluent water in public road and in the drainage system the entire environment of the locality gets polluted. In the light of the provisions regarding Fundamental Duties of the citizens to protect and improve the natural environment, the petitioners cannot assert their right, much less fundamental right to carry on business without any regard to fundamental duty.

The court held that even in the absence of the provisions with regard to fundamental duty, such restrictions placed on the fundamental right to carry on trade or business are in the interest of general public and constitutionally valid and no citizen can claim right to carry on business without complying with restrictions. The petitioners cannot be allowed to reap profit at the cost of public health.

In Ratlam Municipality v. Vardhi Chand and others,[5] the Supreme Court has recognized the importance of pollution free environment and gave it the status of human right. The Ratlam Municipal town, like many Indian urban centres, is populous with inhuman and subhuman species and keeps public sanitation as a low priority item. The rich have bunglows and toilets, the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities. The demand of residents for basic sanitation and public drains fall on deaf ears of the municipal authorities. Another contributory cause to the insufferable situation was the discharge from the Alcohol plant of malodorous fluids into the public street. The residents of a locality within limits of Ratlan municipality tormented by stench and stink caused by open drains and public excretion by nearby slum dwellers moved the magistrate under section 133 of Cr.P.C. to require the municipality to do its duty towards the members of the public. The magistrate gave directions to municipality to draft a plan within six month for removing nuisance. In appeal the Sessions Court reversed the order. The High Court approved the orders of the magistrate. In further appeal, the Supreme Court also affirmed the orders of the Magistrate.

Recognising the right to pollution free environment as human right, Justice Krishna lyer, observed that the Criminal Procedure Code operates against statutory bodies and other regardless of the cash in their coffers even as human rights under Part III of the Constitution have to be respected by the Su regardless of budgetary provisions.

In Bhopal Gas tragedy thousands persons lost their lives and suffered a lot of injuries and losses. With the horror Bhopal tragedy still fresh in, their minds, people in India witness the leakage of Oleum gas from an industrial enterprise in Delhi. In this gas tragedy several persons were affected and one advocate practicing in the court died.

From the above, we can conclude that appropriate provisions axe made in the Indian Constitution under Part III. IV and IV-A. The judiciary is also taking seriously the matters relating prevention and control of environmental pollution. But we, people of India should also  realize our fundamental duty to        protect and improve the natural environment as envisaged under Art. 51 A(g) of the Indian Constitution.

Heritage

Art. 49 of the .Indian Constitution under Part IV, which deals with the Directive Principles of State Policy provides as under :

"Protection of monuments and places and objects of national importance :

It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest declared by or under law made by Parliament to be of national importance  from   spoliation,   disfigurement, destruction, removal, disposal or export, as the case may be."

Even during the British rule the law to protect the Ancient Monuments was enacted. This law was known as (The) Ancient Monuments Preservation Act 1904. The object of this Act was to preserve to India its ancient monuments in antiquities and to prevent the excavation by unauthorized persons of sites of historic interest and value. In 1898 the question of antiquarian exploration and research attracted the attention of the Government of India and impressed upon the necessity of taking steps for the protection of monuments and relics of antiquity. It was then apparent that legislation was required to enable the Government to discharge their responsibilities in the matter and a Bill was drafted on the lines of the existing Acts of Parliament modified so as to embody certain provisions which have found a place in recent legislation regarding the antiquities of Greece and Italy. Before the enactment of this Act a greater number of famous buildings were already in possession or under the control of the Government but there were others worthy of preservation which were in the hands of private owners. Some of them were falling fast into decay. The preservation of these was the chief object of this Act. The provisions of this Act were in general. accordance with the policy enunciated in S. 23 of the Religious Endowments Act 1863 which recognized and saved the right of the Govt. "to prevent injury to and preserve buildings remarkable in their antiquity and for their historical or architectural value or required for the convenience of the public." The Act provided that the owner, or the manager of the building which merits greater care than it has been receiving may be invited to enter into an agreement, for its protection and that in the event of refusing to come to terms the Collector may proceed to acquire it compulsorily. It also provided that there is to be no resort to compulsory acquisition in the case the monument is used in connection with religious observations.

Under S. 10 of the Act it has been laid down that in assessing the value of the monument for the purpose of compulsory acquisition under the Land Acquisition Act 1894, its archaeological, artistic or historic merits shall not be taken into account. The object of the Govt. as purchaser being to preserve at the public expense and for the public benefit an ancient monument with all its associations, it is considered that the value of those associations should not be paid for.

After the commencement of the Indian Constitution and to give effect to the directive of the Constitution makers under Art. 49, the Parliament enacted the Ancient and Histories Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act 1951. But this Act has been repealed by (The) Ancient Monuments and Archaeological Sites and Remains Act 1958. The Preamble to the Act of 1958 says "An Act to provide for the preservation of ancient and historic; monuments and archaeological sites and remains of nation' importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other 1ike objects.

Under the Govt. of India Act 1935, the subject "Ancient and historical monuments, archaeological monuments, archaeology sites and remains" fall within Entry 15 of the Federal List. B under the Constitution of India, this subject has been distributed under three different heads, namely-

Entry 67-Union List : Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.                                      

Entry 12-State List : Ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance, and

Entry 40-Concurrent List: Archaeological sites and remain?. other than those declared by or under law made by Parliament to be of national importance.

Before the enactment of the Act of 1958, there were two Acts in force relating to ancient monuments the Ancient Monuments Preservation Act 1904 and the Ancient and Historical Monument and Archaeological Sites and Remains (Declaration of National Importance) Act 1951. The Act of 1951 merely declared certain monuments etc. to be of national importance and the Act of 1904 applies also to such monuments.

'While the Constitution has distributed the subject-matter under three different heads, the Act of 1904 governs all ancient monuments whether falling in the Central field or the State field and vests all executive powers in the Central Govt. The position of the Acts of 1904 and 1951 was not satisfactory. Therefore, the existing law i.e. The Ancient Monuments And Archaeological Sites and Remains Act 1958 was enacted by the Parliament which applies exclusively to ancient monuments etc. of national importance falling under Entry 67 of List I and to archaeological sites and remains falling under Entry 40 in the Concurrent List Simultaneously, the State Governments had also been advised to enact a similar law in respect of ancient monuments etc. falling under Entry 12 in the State List. In this manner the Central and State fields have been clearly demarcated and the confusion and overlapping of jurisdiction arisen from the Act of 1904 has been .eliminated. This Act of 1958 is mainly on the basis of Act of 1904 but with certain new provisions to overcome the difficulties experienced by the Act of 1904.

Govt., by notification in the official gazette to be an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years According to S. 2(a) of the Act the ancient monument means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock, sculpture, inscription of monolith. which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years and includes-

(i)       the remains of an ancient monuments;

(ii)      the site of an ancient monument;

(iii)     such portion of land adjoining the side of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument;  and

(iv)     the means of access to and convenient inspection of an ancient
monument.

Similarly S. 2(b) defines "antiquity" as follows :

"antiquity" –includes-

i)        any coin, sculpture, manuscript, epigraph or other work of art or craftsmanship.

ii)       any article, object or thing detatched from a building or cave,

iii)       and article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages,

iv)      any article, object. or thing declared by the Central

S. 3 of the Act lays down that all ancient and historical monuments and all archaeological sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act 1951 or by S. 126 of the States

Reorganization Act 1956 to be of national importance shall be deemed to be ancient and historical monument or archaeological sites and remains which have been declared by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act 1951 or by S.126 of the States Reorganization Act 1956 to be of national importance shall be deemed to be ancient and historical monument or archeological sits and remains declared to be of national importance for the purposes of this Act.

S. 4 of the Act empowers the Central Govt. to give two month's notice by notification in the official gazette, of its intention to declare any ancient monument or archaeological site and remain, not declared to be of national importance under S. 3 of the Act. Any person interested in such monument or site may submit his objection regarding such declaration. On the expiry of the said period of two months, the Central Government after considering objections, if any, can declare by notification in the official gazette such monument or sit e or remains to be of national importance.

Under S. 5(1), the Director General may with the sanction of the Central Govt. purchase or take a lease of, or accept a gift or bequest of any protected monument. When a protected monument is without an owner, the Director General may by notification assume the guardianship of the monument. The owner can also by a written instrument constitute the Director General as guardian of the monument. This section shall not have any affect on the use of any protected monument for customary religious observances.

S. 6 provides that the Collector when so directed by the Central Govt. shall propose to the owner of a protected monument to enter into an agreement with the Central Govt. within a specified period for the maintenance of the monument, custody of the monument and duties of any person who may be employed to watch it. It may also impose restrictions to use for any purpose, to charge any entry fee, to destroy, remove, alter or deface the monument or to build on or near the site of the monument. This agreement may also provide for facilities of access to he permitted to the public. This agreement may also provide for the notice to be given to the Central Govt. in case the land on which the monument is situated or any adjoining land is offered for sale by the owner and the right to be reserved to the Central Govt. to purchase such land at its market rate; payment of any expenses incurred by the owner or by the Central Govt. in connection with the maintenance of the monument; the appointment of an authority to decide any dispute arising out of the agreement.

S. 9 of the Act says that if any owner or other person competent to enter into an agreement under S. 6 for the maintenance of a protected monument refuses or fails to enter into such an agreement, the Central Govt. may make an order providing for all or any of the matters specified in S. 6 and such order shall be binding on the owner Or such other person. But no such order shall be made unless the owner or other person has been given the opportunity of making a representation in writing against the proposed order. Where such order is made, the owner or other such person may be required to pay to the Central Govt. all reasonable expenses incurred for maintenance.

S. 13 of the Act lays down that if the Central Govt. upprehends that a protected monument is in danger of being destroyed, injured, misused or allowed to fall into decay, it may .acquire the protected monument under the Land Acquisition Act 1894 as if 'maintenance' of protected monument were a

‘public purpose' within the meaning of that Act.

S. 18 provides that subject to any rules made under this Act. the public shall have a right of access to any protected monument.

S. 19 imposes restrictions on enjoyment of property rights in protected areas without the permission of the Central Govt.

S. 20 empowers the Central Govt.. to acquira such area under the Land Acquisition Act 1984, if it is of the opinion that any protected area contains an ancient monument or antiquities of national importance.

An Archaeological Officer or an Officer authorized by him or any person holding a licence may after giving a notice in writing to the Collector and the owner enter upon and make excavations in any protected area or in any other historical or archaeological importance.[6]

If, as a result of any excavations made in any area, any antiquities are discovered, the Archaeological Officer or the licensee shall submit a report to the Central Govt. On receipt of the report the Central Govt. may make an order for the compulsory acquisition of any such antiquities.[7]

For the violation of the provisions of the Act certain penalties have been imposed under S. 30(1) which arc as under :

"Whoever-

i) destroys, removes, injures, alters, defaces, imperils or misuses a protected monument or

ii) being the owner or occupier of a protected monument, contravenes an order made under section 9 or 10 or

iii) removes from a protected monument any sculpture, carving, image bas-relief, inscription or other like object, or

iv) does any act in contravention of sub section (1) of S. 19 shall be punishable with imprisonment which may extend to three months or with fine which may extend to five thousand rupees or with both."

S. 30(2) of the Act provides that any person who moves any antiquity in contravention of a notification issued under S. 25(1) shall be punishable with fine which may extend to five thousand rupees and the Court may order to restore the antiquity.

In view of the advice of the Central Govt. to the State Governments to enact the similar Acts for the states, the Punjab State Legislative Assembly enacted The Punjab Ancient & Historical Monuments & Archaeological Remains and Sites Act 1964. This Act contains the provisions similar to that of the Central Act of 1958 for the Historical Monuments & Archaeological Remains and Sites etc. in the State of Punjab which are not declared by the Central Govt. as of national importance.

A large number of other State Governments have also enacted their own Acts on the basis of the Central Act of 1958,

The judiciary has also issued a number of directions for the protection of the historical monuments and archaeological Remains and Sites. In Rajeev Mankotia v. Secretary to President of India & others[8], the Supreme Court observed that Viceragal Lodge at Shimla is a harbinger of colonial past with architecturally grandeur and beauty of Elizabethian Era and stands a mute witness to the transition of independence to the people of India. After independence it was renamed as Rashtrapati Niwas, and the second President handed over this building to Indian Institute of Advanced Studies in the year 1964. The Union Cabinet decided to convert the building, a priceless treasury of our historical heritage into a tourist hotel while purporting to maintain the main part of the building as historical resort. Feeling the inner voice of its ultimate destruction, the petitioner has knocked the door of the Supreme Court to protect it as the historical heritage and to preserve for our prosterity.

The Court directed the Central Govt. to notify the entire area of Viceragal Lodge as a protected ancient monument. The Court directed that as soon as the Indian Institute of Advanced Studies vacates the building and hands it over to the Archaeological Deptt., the Govt. should provide the necessary budget for effecting repairs and said that it is also necessary that its proper maintenance and preservation is undertaken as an on going process to protect the historical heritage and needed repairs are effected from time to time.

The Court further directed the Government of India lo maintain a3! national monuments under the respective Acts and 10 ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments, sculptures secured through breathless and passionate labour, workmanship, craftsmanship and skills of the Indian Architects, artists and masons is continued to be preserved.

In M.C. Mehta (Taj Trapezium Matter) v. Union of India and others[9], through the PIL the degradation of Taj Mahal a  monument of international repute was alleged due to environ-mental pollution. The Court obtained the opinion of expert committee including NEERI (National Environment Engineering Research Institute). According to the expert opinion it was found that use of coke/coal by industries situated within the Taj Trapezium zone emitting pollution and causing damage to Taj Mahal as also people living in the area. The onus to prove otherwise is on industries. The Court held, apart from being a cultural heritage, the Taj Mahal is also an industry by itself and therefore, pollution must be stoped while development of the industry must be encouraged. The court said that 'Sustainable Development' and 'Precautionary Principle' are applicable. Out of 511 industries, 292 were directed to use natural gas as a substitute for coke/coal. If natural gas as a substitute was not acceptable/available to such industries, they must stop functioning with the aid of coke/coal and may relocate themselves as per directions of the Court.

The Delhi High Court acting on a PIL stopped construction at Zafar Mahal, a protected monument in the Capital. [10]Zafar Mahal, which is also known as Jangi Mahal, is situated adjacent to the dargah of Qutab Saheb at Mchrauli and was built by Akbar Shah II. Its main gateway was constructed by Bahadur Shah II. The mahal has been built in red sandstone and marble and has the graves of last few Mughal kings including Shah Alam.

The Delhi High Court directed the Archaeological survey of India and the Human Resource Development Ministry to ensure that no construction was carried out of Zafar Mahal. The PIL was filed by the Society for Protection of Heritage and Culture. In the place of "Rang Mahal" of Mughals, a factory has been set up and the waste of the factory is being thrown into the compound of the monument through a waste pipe which has caused immense damage to the foundation and decayed the building. Another building was coming up just behind the  protected monument in violation of the provisions of the Act, as a certain distance was to be maintained .between the protected monument and the structure to be constructed.

In the light of the above mentioned decisions of the Courts, we can say that in view of the constitutional and statutory provisions, the courts are actively taking action for the protection of environment and heritage. We, the citizens of India, should also realize our. duties for the protection of environment and heritage ' to enjoy the nature and secure our rich heritage.

[1] AIR 1984 SC 802