ENVIRONMENTAL DEGRADATION DURING PROTESTS IN INDIA
The Founding Fathers of the Constitution of India1950 by incorporating the Right to Life, sought to merely ensure that the Government ensured the essentialities, which were required to survive in this wretched world. With time, however, the vigilant and progressive Indian Judiciary, expanded the horizons of this rather abstract concept of Life in India for making existence worth living, extending it further to include livelihood, social security and the right to a clean environment, thereby mandating the Government to fulfill the socialistic ambitions as envisaged in the Preamble.
Preventing the society from infringing upon the rights of the individuals, the Judiciary also included within the ambit of Article 21, the right to protest. It is unfortunate, however, that today individuals ignore their duty of maintaining a healthy environment and often exercise their rights against the interests of society, capable of affecting the health of the masses. To be precise, protests, if unregulated, are capable of degrading the environment and best illustrates the citizenry exceeding the scope of this constitutional privilege. Specifically, the right to protest is a combination of certain freedoms listed in Article 19 of the Constitution, particularly that of speech and expression and peaceful assembly - undoubtedly, subject to certain reasonable restrictions, most relevant and disregarded one being public health. Notably, the Government is obliged to protect the health of the citizens to the extent of prohibiting any activity which endangers the health of the citizenry and yet, it is saddening that till date, the State has failed to introduce any law for preventing the protestors from littering and degrading the environment and the well-being of the residents therein.
This issue, however, was dealt firmly by the Apex Court in Mazdoor Kisan Shakti Sanghatan v. Union Of India And Anr., whereby the Court, after reading through the activities of the protestors to either bath or defecate in the open, the continuous chanting of slogans and the utilization of loudspeakers to that effect, to have a negative impact on the citizenry. Thereafter, it refused the protestors to stage their dissent at Jantar Mantar. Since these acts cause a public nuisance, the Authors believe that the applicability of Section 133 of Cr.P.C., 1973 restricts to curbing only the environmental nuisance. Its conditional nature is incapable of taking those instances into account which can potentially damage the environment and health. This is dealt efficiently by Section 144 of Cr.P.C., 1973 and along these lines, it is asserted that the aspects of public health and environmental protection should be considered as ground therein for curtailing protests which are capable of hurting one and all.
APPREHENSION OF THREAT TO ENVIRONMENT AS A REASONABLE RESTCTION TO THE RIGHT TO PROTEST IN INDIA:
Ideally, the said provision applies only to the extent of curbing unlawful assembly, i.e., those affecting public tranquility from causing chaos in the society - the exclusion of the above-pleaded grounds engenders a scenario, whereby, the ingredients of an unlawful assembly are fulfilled during the protest, but hardly anything is done by the Executive for curbing the same, revealing its helplessness and lackadaisical attitude. Particularly, while the common object to protest is evident, the pollution of the surroundings is its by-product. The fact that the latter is illegal implies the manifestation of unlawful assemblies even in such scenarios. Although the common object of the protestors may initially be different, the fact that the same could manifest during the course of exhibiting such dissent is a sufficient ground for terming such assembly unlawful. The fact that the protests are capable of destroying the environment and also creating circumstances which are dangerous for survival for certain members of the society, suggests that aforesaid grounds should be incorporated at the earliest. Although Section 129 and Section 130 of Cr.P.C., 1973 operate as tools for curbing such assemblies, they provide for rectifications rather than precautions –curbing such gatherings based on a legitimate anxiety can only be assured by Section 144 of Cr.P.C., 1973.
Notably, several district authorities invoked Section 144 of Cr.P.C., 1973 for preventing the masses from gathering, thereby attempting to halt spread of COVID-19 and isolating the same – this suggests that public health could be a valid ground for preventing anti-environmental commotions. Although dissent is necessary for the democracy to flourish, the same cannot go against public order, health and safety and prohibiting meetings which likely go against the legal and fundamental rights of the masses is permitted – Section 144 of Cr.P.C., 1973 is the tool that is utilized for upholding the welfare of the general public against individuals who exercise their Constitutional rights irresponsibly, as observed in cases of several protests through the country.
Therefore, the Authors assert that by extending such application to mundane protests, not only would they be obliged to exercise this right cautiously, but, would empower the Executive to undertake adequate measures for sheltering the environment and hence, public health. Specifically, even the slightest apprehension that a gathering could have a serious impact on the rights of the citizens and that of the environment therein would then become a sufficient ground for curtailing their rights and the same would be justified, in the public interest.
The concept of a healthy environment is entwined with the general well-being of the public and it was due to such an inseparable equation that the Apex Court lashed upon the Governmental Authorities for refusing to halt the contamination of rivers and even air, which could have severe health complications on others. In doing so, the Court curtailed the right of the citizens to exercise their fundamental rights affirming the inclination of the Court for safeguarding great public interest in case the same clashes with the exercise of fundamental right by any individual. Curtailment of fundamental rights (the right to protest) for achieving one of the greater objectives as laid down in the Part IV of the Constitution (public health) is permissible and therefore, extending the application of Section 144 to situations of environmental damage are valid, unless not invoked under any illusion of such damage.– Illegitimate protests are not protected within the meaning of either Article 19 or Article 21 of the Constitution and in such scenarios, it is the duty of the Executive to take immediate action.
The question that naturally arises is up to what degree of damage caused during the protests to the environment shall be a ground for the invocation of the said provision? The answer is quite convincing – when it is ascertained the degradation of the environment has impacted or is potential of affecting the health of the people living therein, a reason for decreeing an Order barring such gathering shall be in the general welfare of the masses. Such a scenario shall indeed be helpful in upholding the duty to safeguard the environment and creating a breed of responsible and law-abiding citizens, which is the need of the hour.It is the law of the land that a person seeking to enforce his or her Constitutional right must also surrender and ensure adherence to the duties that accompany with it.
In the opinion of the Authors, it is high time that the legislature considers amending the pre-existing laws on unlawful assembly for protecting the right to a healthy environment of the citizens and the special statutes on environment protection for procuring compensation from the protestors for damaging the surroundings, thereby fulfilling their constitutional obligation in this regards, towards the people.
Shrirang Ashtaputre, 5th Year, B.A.LL.B., ILS Law College Pune.
Aniruddha Awalgaonkar, 5th Year, B.A.LL.B., ILS Law College Pune.