Right to life vis-a-vis environmental protection in India with special reference to the sustainable approach of the judiciary to the ecological crisis of dehing patkai rain forests in Assam.
Author: Dr. Matiur Rahman,
M.A., LL.M., Dip. Labour Laws, Ph.D. (Law)
Assistant Professor of Law, University Law College,
The judicial interpretation of Article 21 of the Constitution of India, in its historical judgement delivered by the Supreme Court in the famous Maneka Gandhi’s case, was the epicenter of evergrowing environmental jurisprudence of India. Facts remain that the pronouncement of the Apex Court on the “right to live” which accorded a new dimension to the “right to life” became a judicial breakthrough in the area of environmental protection in the post Maneka Gandhi cases involving issues of forests, wildlife and biodiversity. In India, therefore, the origin of the concept of human rights approaches to environmental protection can be traced back to Maneka Gandhi’s case in the late 1970s. The Indian judiciary is more advanced, as such, than any other country in the sphere of environmental protection. Public interest petitions have, thus, been founded on Article 21 of the Constitution to comprehend health hazard due to ecological imbalance caused by pollution, deforestation and destruction of wetlands, wildlife and biodiversity. Dehing Patkai Wildlife Sanctuary, also known as Jeypore Rainforest, is located in the Dibrugarh and Tinsukia districts of Assam. The rainforest has a significant ecological and cultural importance in the lives of the people of Assam. Altogether four Public Interest Litigations including one of the Gauhati High Court, itself, have been filed on the issues of mining in the Dehing Patkai region. The illegal mining carried out by Coal India Limited is amounting to violation of the right to life of the citizens of the State guaranteed under Article 21 of the Constitution of India. The Apex Court calls for finding middle path between ecology and economy. The Apex Court has taken recourse to a sustainable approach between two conflicting interests, namely, environment and development.
Keywords: Right to Life, Environmental Protection, Judicial Interpretation, Supreme Court, Maneka Gandhi’s Case, Dehing Patkai and Public Interest Litigation.
Article 21 of the Constitution of India mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Prior to Maneka Gandhi’s decision, Article 21 was narrowly interpreted and, therefore, it guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive and not from legislative action. The State could interfere with the liberty of citizens if it could support its action by a valid law. But after the Maneka Gandhi’s decision, Article 21 now protects the right to life and personal liberty of citizens not only from the executive action but from the legislative action, as well. In view of the Apex Court’s decision, a person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable i.e., the procedure must satisfy the requirements of natural justice.
In post Maneka Gandhi’s period, most of the cases which came up before the Apex Court through Public Interest Litigations (PIL) involving issues of forests, wildlife, biodiversity or pollution of the environment, the Supreme Court widened the scope of Article 21 in order to take cognizance of such cases.
Judicial breakthrough in the area of environmental protection :
A major breakthrough emerged in the field of environmental protection as a result of the Apex Court’s historic pronouncement in Maneka Gandhi’s case. While taking recourse to a dynamic interpretation of the citizen’s right to life, the Supreme Court of India accorded a novel dimension to Article 21. It was held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity.
Keeping in view the Maneka’s philosophy pertaining to right to life and personal liberty, the Supreme Court of India, in a number of subsequent cases involving issues of forests, wildlife, biodiversity and pollution of environment, widened the scope of Article 21 of the Constitution by stipulating that a clean and healthy environment is essential to human survival. Public Interest Petitions have, thus, been founded on Article 21 to comprehend health hazard due to ecological imbalance caused by pollution deforestation and destruction of wetlands, wildlife and biodiversity. It needs to mention that loss of insects is the first sign of collapse of ecosystem.
The Supreme Court observed–
“The natural resources of the communities like forests, wildlife, hillocks, flora and fauna maintain delicate ecological balance. They need to be protected for a proper and healthy environment which is the essence of Article 21 of the Constitution.”
In the history of Public Interest Litigation jurisprudence of India pertaining to environment and forests and wildlife, there are series of such cases filed by M.C. Mehta – the renowned Advocate of the Supreme Court.
The first M.C. Mehta case enlarged the scope of the right to life and said that the state had power to restrict hazardous industrial activities for the purpose of protecting the right of the people to live in a healthy environment. The third m.c. Mehta case took a step forward and held that readwith the remedies under Article 32 including issuance of directions for enforcement of fundamental rights, the right to live contains the right to claim compensation for the victims of pollution hazards. In the fourth M.C. Mehta case,the tanning industries located on the banks of Ganga were alleged to be polluting the river. The Court played a pro-environment role and noted that pollution of river Ganga was affecting the life, health and ecology of Indo-Gangetic plan. The Court further held that although the closure of tanneries might result in unemployment and loss of revenue but life, health and ecology had greater importance.
The first time when the Supreme Court came close to almost declaring the right to environment in Article 21 was in 1990 in Chhetriya Pradustan Mukti Sangarsh Samiti –Vs- The State of Uttar Pradesh. Subhash Kumar –Vs- The State of Bihar, is another notable case where the Apex Court took a step forward. In Chhatriya Pradushan, the then Chief Judicial Sabyasachi Mukerji observed, “every citizen has a fundamental right to have the enjoyment of the quality of life and living as contemplate in Article 21 of the Constitution of India.” In Subhash Kumar, Justice K.N. Singh observed in a more vivid manner that “right to live includes the right to enjoyment of pollution free water and air for enjoyment of life.”
A most remarkable feature of this expansion of Article 21 is that the non-justiciable directive principle contained in Article 48-A has been resurrected as enforceable fundamental right in a manner beyond the comprehension of the makers of the Constitution by promoting the directives for practical purposes to the status of fundamental right enforceable by a writ petition under Article 32 of the Constitution by the magic ward of judicial activism playing on Article 21. For example, the right to healthy environment.
A corollary of this development is that while so long the negative language of Article 21 and use of the word “deprived” was supposed to impose upon the State the negative duty not to interfere with the life or liberty of an individual without the sanction of law, activist judges have now imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity, namely, elimination of water and air pollution.
Dehing patkai ecological crisis :
however, at a time when rapidly dwindling elephant habitat has logged global attention, the Dehing Patkai Elephant Reserve, in Assam, is being pushed to the brink by illegal coal mining, logging and encroachment.
Significantly, the elephant reserve created in the year 2003 comprises the State’s last remaining rainforests that shelter wide ranging flora and fauna including State bird white winged wood duck, reptiles, insects and rare orchids.
Vast tracts of the Elephant Reserve that comprises several dozen Reserve Forests (RF) and the Proposed Reserve Forests (PRF), besides the Dehing Patkai Wildlife Sanctuary, have been lost due to rampant illegal logging, rate hole mining and organized encroachments. The open cast mining has also done irreversible damage to the forest belt across the Ledo-Margherita area.
The Supreme Court of India observed that–
“Elephants are big, powerful but fragile. The elephant is a gentleman and man must give way to the elephant. We are not going to allow anyone to come in the path of the elephant.”
But in spite of such clear directives by the Apex Court in recent times, elephant corridors continue to bear the burnt of commercial, industrial and anthropogenic pressures resulting in blockages of these time-tested paths used by the pachyderms and, thereby, triggering man-elephant conflicts.
A case in point happens to be the two major elephant corridors – “Golai” and “Bogapani” in Dehing Patkai Elephant Reserve in Dibrugarh and Tinsukia districts where expanding commercial and residential space have robbed the elephants of their right of passage for no fault of theirs.
The Golai elephant corridor connecting the east and west blocks of the reserve presents a pathetic site today with large structures including an Indian Oil Corporation (IOC) dispatch terminal, hotels and residential buildings effectively blocking what had been an unhindered elephant path since ages.
In spite of the hindrances, as stated above, the elephants still use the nearby areas to cross over the road but they have to move through villages and tea gardens often coming into conflict with humans.
Geography and ecology of Dehing Patkai Wildlife Sanctuary :
The Dehing Patkai Wildlife Sanctuary, also known as Jeypore Rainforest, is located in the Dibrugarh and Tinsukia districts of Assam and covers an area of 111.19 sq.m. The sanctuary and the sprawling 937 sq.km elephant reserve constitute the last vestiges of the State’s rainforests.
Dehing is the name of the river that flows through this forest and Patkai is the hill at the foot of which the sanctuary lies. Dehing Patkai is also popularly known as “Amazon of the East”. The rainforest has a significant ecological and cultural importance in the lives of the people of Assam. Ecologically, the rainforest is the home of several rare and evergreen species of plants, animals, birds, insects and reptiles. A large number of Asiatic elephants also live in the rainforest which houses a number of corridors for the mammals in and around the Saleki proposed reserve forests, the area where illegal mining is going on for the last 16 years since 2003.
Dehing Patkai Wildlife Sanctuary the core area of Dehing Patkai Elephant Reserve presents an appalling picture of neglect making it extremely vulnerable to all sorts of illegal activities inside the protected forests.
Legitimacy to illegal mining by the national board for wildlife (NBWL) :
Facts remain that a proposal for coal mining by the North-Eastern Coalfields (NECF) inside the Dehing Patkai Elephant Reserve in Assam was granted approval by the National Board for Wildlife (NBWL) on April 24, 2020 despite a Rs.43.25 crore penalty imposed on Coal India Limited (CIL) by the Assam Forest Department.
It needs to mention that NECF the Assam based coal producing company is a unit of CIL.
The above proposal of NECF granted approval by the NBWL called for the diversion of 98.59 hectares of forest land in the Saleki proposed reserve forest area, a part of the large elephant reserve.
This 98.59 hectares of forest land, however, included land NECF mined illegally for several years according to a site inspection report by the Shillong Regional Office of the Union Ministry of Environment, Forests and Climate Change (MOEF & CC).
The report submitted to the MOEF & CC on November 25, 2019 said that NECF obtained a 30 year mining lease. The lease expired in 2003 and NECF applied for a renewal only in 2012, while it continued mining operations. According to the report, such unauthorized mining activities were in violation of the Assam Forest Regulation, 1891. The report called on the MOEF & CC to take necessary action on the gross violations committed by the user agency.
Public interest litigations against illegal coal mining in dehing patkai elephant reserve:
Altogether four Public Interest Litigations (PIL) including one of the Gauhati High Court, itself, have been filed on the issues of mining in the Dehing Patkai region.
The petitions have been filed in the Gauhati High Court opposing the opencast mining in the proposed Saleki Reserve Forest in Dehing Patkai Elephant Reserve.
The plea was filed online against the opencast project by North Eastern Coal Fields, a unit of Coal India Limited near the Dehing Patkai Wildlife Sanctuary. The sanctuary, as stated earlier, is referred to as the “Amazon of the East” and it is spread over a huge area in the upper Assam region.
According to the petitioners the illegal mining carried out by CIL in the Saleki proposed reserve forest is violative of the right to life of the citizens of the State guaranteed under Article 21 of the Constitution of India.
The instant petitions are being filed under Article 226 of the Constitution espousing the cause of the people of the State of Assam to safeguard the flora and fauna particularly the wildlife of the Dehing Patkai Forest Reserve and to protect the ecological balance of the entire state.
The PILs sought to declare the Dehing Patkai Wildlife Sanctuary as a heritage site under the Biological Diversity Act, 2002.
The Gauhati High Court has issued notices to the State government, Central government and CIL seeking the reason for permitting coal mining in the wildlife sanctuary.
The Supreme Court of India on June 11, 2020 directed the Centre to come out with a proposal to seek for an alternative site for coal mining in place of Saleki proposed reserve forest within three weeks. The Standing Committee of NBWL had, earlier on April 7, accorded approval to North Eastern Coal Fields of CIL for mining in the Saleki RPF. Saleki’s total lease area of 98.59 hectares is situated within the 10 km. eco-sensitive zone of the 111.19 sq.km. Dehing Patkai Wildlife Sanctuary and also near to an elephant corridor.
The Apex Court, thereby, calls for finding middle path between ecology and development. The Court observed that saving the environment should not come at the cost of economic development adding that a balance should be struck between the two.
The above observation by the top Court came on a plea filed by a lawyer seeking a ban on mining in the Saleki forest reserve, situated close to the Dehing Patkai Wildlife Sanctuary in Asam.
Faced with conflicting positions between environment and development, the Supreme Court Bench, consisting of Chief Justice of India (CJI) SA Bobde and Justices AS Bopanna and Hrishikesh Roy, said “we are conscious of the fact that our orders in favour of environment affect economic development adversely. There has to be some method by which economic development is not retarded as this has a direct impact on poverty in the country.”
The Bench further said that it was aware of the constitutional duty to protect the environment but at the same time, it cannot be oblivious to the economic impact.
The Apex Court, therefore, directed the centre to come out with a proposal for an alternative site in three weeks.
As reported, the NBWL on July 22, 2020 ordered the CIL to stop all mining activities inside the Dehing Patkai Forest in Assam.
Facts remain that earlier the NBWL had recommended the CIL’s proposal of legalizing the illegal mining, which the company was indulging from 2003 to 2019 inside the forest, for approval provided it fulfills certain conditions. Reportedly the North Eastern Coal Fields, a unit of CIL failed to fulfill the conditions leading to violation of the provisions of the Forest (Conservation) Act, 1980.
In India, executive inaction is well known. The forest department, in spite of having its sufficient forest officials and forest protection force along with adequate maintenance fund, is not able to save the country’s fast depleting bio-diversity. Precisely, it is in this background that the role of the judiciary becomes important.
India is fortunate in having an Apex Court that can respond effectively to cries for help. The fight against environmental degradation does not belong to the government alone. The common citizen must understand the gravity of the environmental problems and engage themselves wholeheartedly for their solution. The success of the environmental protection movement largely depends upon the public participation with full awareness of their rights as per the exhaustive interpretation of Article 21 by the Supreme Court of India in its landmark judgement in the Maneka Gandhi’s case.
In Dehing Patkai case, the Apex Court calls for finding middle path between ecology and economy. The Supreme Court has taken recourse to a sustainable approach while maintaining a balance between two conflicting interests, namely, environment and development. Development is necessary for the economy of the country but at the same time ecosystems have to be protected.
 Procedure established by law is synonymous with “due process of law” in the U.S. Constitution. The use of the word “deprived” in Article 21 of the Indian Constitution is supposed to impose upon the State a negative duty not to interfere with the life or liberty of an individual without the sanction of law.
 Maneka Gandhi –Vs- Union of India, AIR 1978 SC 597.
 A.K. Gopalan –Vs- State of Madras, AIR 1950 SC 27.
 It is by virtue of a very wide and positive interpretation of Article 21 by the Apex Court. The activist judges have now imposed a positive obligations upon the State in the post Maneka Gandhi cases involving issues of life and personal liberty. See also Dr. J.N. Pandey, Constitutional Law of India (22nd Edition), p. 155.
 Dr. J.J.R. Upadhyaya, Administrative Law(7th Edition), pp. 158-159.
 Chhatriya Pradushan Mukti Sangarsh Samiti –Vs- State of U.P., AIR 1990 SC 2060, Subhash Kumar –Vs- State of Bihar, AIR 1991 SC 420. See also Durga Das Basu, Shorter Constitution of India (1994), p. 182.
 The Supreme Court of India elaborated the same view in Francis Coralie –Vs- Union Territory of Delhi, AIR 1981 SC 746.
 M.C. Mehta –Vs- Union of India, 1991 (2) SC 353, M.C. Mehta –Vs- Union of India, AIR 1988 SC 1115, M.C. Mehta –Vs- Union of India, AIR 1997 SC 734.
 Supra n.7.
 H.L. Tiwari –Vs- Kamala Devi (2001) 6, SCC 496.
 M.C. Mehta –Vs- Union of India AIR 1987 SC 985.
 M.C. Mehta –Vs- Union of India, AIR 1987 SC 1086.
 M.C. Mehta –Vs- Union of India, AIR 1988 SC 1037.
 AIR 1990 SC 2060.
 AIR 1991 SC 420.
 P. Leelakrishnan, Environmental Law in India, (1999), pp. 133-135.
 Durga Das Basu, Human Rights in Constitutional Law, (1994), p. 182 also see supra n. 7.
 Vincent –Vs- Union of India, AIR 1987 SC 990.
 M.C. Mehta –Vs- Union of India (1987) 4 SCC 463.
 Observation of the Supreme Court of India on January 22, 2020 while hearing a case on illegal resorts and structures on the Nilgiri Elephant Corridor in Tamil Nadu.