Environmental Disputes Settlement And Article 21 Of Indian Constitution

ENVIRONMENTAL DISPUTE SETTLEMENT AND ARTICLE 21 OF INDIAN CONSTITUTION

Written by Arup Poddar,

Professor of Law, WBNUJS, Kolkata

 

ABSTRACT

Environmental protection can be done with the help of implementation of various provisions of environmental statutes available in India. However, because of lack of declaration of right to pollution free environment as a statutory right, the Indian courts struggled to find out that how this right, if not within any statute in India, at least can be brought within the purview of Article 21 of Indian Constitution. The struggle ended in the year 1991 with the decision of Subash Kumar case and was further nurtured in number of subsequent cases. The Supreme Court of India became proactive to protect this right to pollution free environment as fundamental right and settled many environmental disputes while analysing Article 21 of the Indian Constitution. The present article, aims to analyse the situation that how it was necessary to incorporate the right to get pollution free environment within the scheme of Article 21 of Indian Constitution successfully and by this declaration the environmental disputes settlement will became easy and effective.

KEYWORDS: Right to life, right to pollution free environment, state responsibility, forest, wildlife, water pollution,

INTRODUCTION

In India, there was no specific legislation on environmental protection till 1986, because immediately after the commencement of the Indian Constitution in the year 1950, I could see only Indian Forest Act, 1927, which again is a legislation to control the collection of revenues from forest resources. Prior to 1976 the items like wildlife and forest were placed in the state list, however, after the 42nd Amendment to Indian Constitution in the year 1976 those two items have been placed in the concurrent list. It is interesting to note here that, after perusal of few initial legislations on environmental protection I could find a very specific legislation in the name of the Wild life (Protection) Act, 1972[1]. Though, this legislation only deals with the measures to be initiated for the protection of wild animals and also declare certain animals as endangered, as they are rare species in India and at the same time few medicinal plants, which also required some sort of protection, all have been enlisted in the schedule of above-mentioned wildlife legislation. In the year 1974, almost 12 states[2] in India passed a resolution in the State assembly and requested the union Parliament to enact a law on control of water pollution. The union Parliament considered those resolutions and enacted the Water (Prevention and Control of Pollution) Act, 1974 under Article 252 clause 1 of Indian Constitution. The item ‘Water’ comes under entry number 17 of the state list for regulation of water bodies, drinking water, irrigation, et cetera. The entry number 56 of list one also mentions water for the purpose of River boards and River valleys.

It was a moral obligation for India to bring policy and legislation for the purpose of protection of environmental resources, after participating in the Stockholm Declaration, 1972. What I find that India enacted a law in the year 1981 under Article 253 of Indian Constitution to control the atmospheric pollution. The law was made in the name of the Air (Prevention and Control of Pollution) Act, 1981[3]. Again, I think all will agree that this legislation was also not our law to provide also protection to the environment, because it deals only with protection of the atmosphere.

In the year 1980 the union Parliament enacted a law in the name of the Forest (Conservation) Act, 1980[4]. This law was brought to control the functions of the states in India, because the forest coverage of India was shrinking considerably as there was no check and balance from the union government over the state government, when the state government decides to convert the forest land for non-forest purposes. I find this as a good to retain the forest coverage essential for the purpose of preservation and conservation of nature. What I have found after reading Section 2[5] of the above-mentioned Act, that for the purpose of converting the forest land for non-forest purposes, now the state government will have to apply to the Ministry of environment and Forest, government of India for permission.

Meanwhile, a tragedy which was written in the fate of many people was finally expressed through the Bhopal gas tragedy in the year 1984[6]. And immediately within a year in 1985 another not very serious but a tragedy occurred as Oleaum gas leak[7] incident in New Delhi. In both the cases, I feel that the kind of pollution which affected life and property of the nation is the example of atmospheric pollution. Therefore, in spite of having legislation on air pollution of 1981, the law was not sufficient to control the above-mentioned serious incidents of atmospheric pollution.

Finally, in the year 1986 union Parliament enacted a law in the name of the Environment (Protection) Act, 1986[8]. After going through the Act and provisions thereof, I find that this Act/Legislation can be considered as efficient legislation to protect and preserve the wholesome environment. I also find that this legislation has been enacted under the provisions of Article 253[9] of Indian Constitution and I could relate this legislation with the promises made by India during Stockholm conference of 1972[10], that India will bring the policy and legislation to control the environmental pollution. Now, I can find that a compact legislation to protect the wholesome environment has come up in the year 1986, but how far Indian Constitution through its provisions protect the rights of the citizens against the degradation of the environment, still remains a vital question.

 

INDIAN CONSTITUTION AS A SILENT SPECTATOR OF ENVIRONMENTAL DEGRADATION

Schedule seven of the Indian Constitution from the very inception included the items, such as, water, wildlife, forest, et cetera. In fact, I find that part III of the Indian Constitution had no direct fundamental rights which could declare that right to clean environment is a fundamental right. Though, rights like, right to equality, right to life, they are strong enough to suggest for right to pollution free environment, but there was no such direct expression of right made in the Constitution right from its inception. Even I have seen that part IV of the Indian Constitution was silent about directly giving any directive principles of state policy on conservation and preservation of environment till the year 1976. It was the 42nd amendment[11] to Indian Constitution which inserted two important Articles, for example, Article 48 A[12] and Article 51 A (g)[13] to the directive principles of state policy. However, surprisingly I see that Article 47[14] of Indian Constitution though speaks of public health and safety. Again, the Article 47 only indirectly recognises that the public health cannot be promoted in an environment which is full of pollution.

Why I say that the Indian Constitution became a silent spectator of environmental degradation, that is because of twofold reasons, first, when massive environmental disaster occurred in India, for example, Bhopal gas tragedy, the Indian courts could not find any specific provisions from the Indian Constitution about right to pollution free environment for its citizens and also legislations in India had ever conferred a statutory right to persons/citizens in India about right to pollution free environment and second, Article 48 A is a part of directive principles of state policy, is merely a set of guidelines, which the states will have to adopt at its discretion, which I consider at its whims and fancies, therefore, the guideline is not a mandatory one that any machinery can pressurise the state to consider the right as right to pollution free environment to its citizens. Moreover, till today Article 21 of Indian Constitution is a silent spectator and it is the honourable Supreme Court and high courts in India analysed the above-mentioned article and gave life that it has another responsibility to its citizens that they are having right to pollution free environment.

I have made my observations, that most of the environmental Justice that could be possible to deliver by the Indian judiciary is because of interpretation of various articles from the Indian Constitution. As Right to Education is not only a fundamental right but also statutory right as well, but this was not possible and was not so easy to be declared so without the continuous reasonable intervention made by the Indian judiciary. What I find that it was a tireless effort which was initiated by the Indian judiciary in number of relevant case laws and provided its valuable judgements, by which ultimately the same right gained a status of fundamental and statutory right. Then, why not also for right to clean environment.

 

ENVIRONMENTAL DISPUTE SETTLEMENT BY STATE HIGH COURTS THROUGH ARTICLE 21

Public interest litigation is one of the important mechanisms in India which has been used by citizens to come up with the environmental Justice. This mechanism is not only helpful to the citizens to appear before the courts for easy access of Justice, but also the judiciary, in particular Writ Courts played a vital role for environmental Justice delivery system. The State high courts in India can entertain any petition with relation to public interest litigation under Article 226 and issue Writs.

What I have seen that High Court came forward to analyse the scope of Article 21 of Indian Constitution in the light of right to get pollution free environment rather than the honourable Supreme Court, though Supreme Court already decided many cases connected with the environmental jurisprudence by the year 1987, but the expansion of the meaning of the “Right to Life” was not done so properly.

One of the important cases, which I would like to mention here is the contribution made by the Andhra Pradesh High Court. In the year 1987 a writ petition was filed by Mr T Damodhar[15] (hereinafter the petitioner) before the High Court of Andhra Pradesh seeking orders to make the open space/public park free from any sort of private constructions. The case is connected with the master plan of the municipality and earmarking the open space/public space for public purposes only. However, the government of Andhra Pradesh allotted a portion of the open space, so earmarked, and given to life insurance Corporation of India for construction of residential houses. After some time the life insurance Corporation of India allotted a portion of the land from their original allotment to the income tax department again, for the construction of residential houses. The question is, if open space/public space is made for public purposes only, then whether allotment of a portion of the open space by the government of Andhra Pradesh to life insurance Corporation of India, can that be considered for public purposes?

When this case was filed, what I feel that at the time the concept of public trust doctrine was not at all available or applicable in India. Otherwise, that concept might have been taken into consideration to decide this case. However, after reading the case I found that the High Court of Andhra Pradesh meticulously examined the fact of the case and counter affidavits filed by the respondents. After examining the counter affidavits, the High Court found that not only the Hyderabad municipality, who has prepared the master plan, but also the government of Andhra Pradesh, life insurance Corporation of India and the Hyderabad Urban development authority all have accepted the fact that the land so allotted to life insurance Corporation of India for the purpose of construction of residential units are basically the land earmarked as open space/public space in the original master plan prepared by the municipality. Therefore, there is no contradictory opinion filed in the counter affidavit by the respondents that originally the land is earmarked for open space and that is also for public purposes. In this regard, in order to understand that the open space shall be utilised for public purposes only, the High Court went further to analyse the situation. After reading the judgement what I felt that the honourable High Court wanted to examine the sanctity of the open space, for example, if open space is for public purpose then allotting the land to those entities who will construct the residential houses cannot be called as for public purpose. Similarly, I also felt that the honourable High Court examined the purview of the open space as earmarked in the master plan that if the open space/public park is to be maintained efficiently then allotting the land for the construction of residential houses will no more serve the purpose of open space, because those constructions will slowly occupy the open space and continuously allotting the land finally will lead to no open space.

The High Court, before awarding the final judgement, analysed few international obligations for India and thereafter analysed the spirit of Article 21 of Indian Constitution. The High Court deliberated upon the very concept of Law and ecology and stated the variation in the concept of ownership. As I have already stated above that when this case was decided at the time public trust doctrine was alien to Indian judiciary, because the concept was adopted by the honourable Supreme Court only in the year of 1997[16]. The concept of ownership as developed by the common-law countries are very specific and gives huge freedom to the original owner and the owner can decide how such property shall be utilised and for that purpose the freedom of owner cannot be challenged before any authority, though, unless such pattern of use of the property reasonably affects other neighbours/persons. What I feel that the honourable High Court brought this idea to show to the government of Andhra Pradesh that open space is not the property of the government and the common-law concept of ownership is not applicable that the government of Andhra Pradesh not only can change the temporary ownership in the name of life insurance Corporation of India and also can decide the way in which opens spaces can be utilised.

In order to support the above stand, the honourable High Court had taken the reference of Stockholm declaration 1972 and stated that various resources of nature not only be safeguarded for the purpose of meeting the need of the present generation, but also, they should be preserved efficiently for the future generation as well. Moreover, the honourable High Court also clarified a very important point that economic development of the nation can be well achieved with the help of proper planning and management. Accordingly, the court wanted to give a message to the government and municipality that allotting a portion of the land, which is earmarked for open space, to life insurance Corporation of India is very much against the terms of proper planning and management for economic development. It is contrary to such provisions.

According to me, the wonderful part the honourable High Court has efficiently pronounced is the description of Article 48 A and Article 51 A (g). The court not only pronounced the mandates of these two articles by describing the importance, but also linked these mandates with the present case and clarified that government of Andhra Pradesh, Hyderabad municipality and Hyderabad Urban development authority all are the example of state and as per the mandates of Article 48A, the state shall make all endeavours and efforts to protect and preserve the natural environment and for that purpose whatever the steps are to be taken and initiated, they should be reasonably planned and managed. Accordingly, for petitioner, the High Court stated that as per the mandates of Article 51 A (g), it is now the fundamental duties of the citizen that they should come forward not only to take participation in proper planning and management initiated by the state but also to point out the difficulties and irregularities, which will affect the preservation and promotion of natural environment.

Moreover, under the Indian Constitution, the municipality is considered to be a state having a mandatory function to perform for the preservation and conservation of natural environment. The 74th Amendment[17] to Indian Constitution, 1992 has not only revived the status of state to municipality, but also declared various functions to municipality to perform as mandates of the Constitution of India. Therefore, it is quite surprising that in spite of having those mandates from the Constitution the municipality instead of raising objections against the state government of Andhra Pradesh about not to convert the open space for transferring the ownership of a part of that land in the hand of life insurance Corporation of India for the purpose of construction of residential units, the municipality agreed with such conferment of ownership and supported the stand of the government.

Now, I will come to the very specific area which is the subject matter of this heading, that is, Article 21 of Indian Constitution. The High Court stated that the above-mentioned two articles are sufficient enough to claim that common law concept of ownership, that is, the liberty and privileges given to individual ownership is no more functional in India and any space meant for public purposes there will be no question of individual ownership. Even if those ownerships are sanctioned by the state, those mistakes can be rectified by the court. The honourable High Court examined the scope of Article 21 of Indian Constitution and asserted that with the description of Article 48 A and Article 51 A (g) “it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gift, without which life cannot be enjoyed”.

Now, it is clear for me that till this case was decided by the Andhra Pradesh High Court in the year 1987, there was no such cases ever decided by the honourable Supreme Court while analysing the very scope of Article 21 of Indian Constitution. Therefore, I can assert that it is the state high court who for the first time recognised the importance of Article 21 and deliberated upon to bring the pollution free water and air under the right to life. I will bring here discussion that how the honourable Supreme Court first ever recognise the importance of Article 21 of Indian Constitution through its unique judgement. Before, I start analysing the judgement relating to environmental dispute settlement under article 21, it would be wise to state that the right to life and liberty as enshrined under article 21 of Indian Constitution has been analysed meticulously by the honourable Supreme Court and number of other rights which are related with right to life and personal liberty have been declared by the honourable Supreme Court. Therefore, now we can see that right to travel[18], right to privacy[19], right to speedy trial[20], right to prisoners to interview[21], right to fair trial[22], right against torture and custodial violence[23], right to free legal aid[24], right to primary education[25], right to health and medical care[26], right to pollution free environment[27], right to safe drinking water[28], right of working women against sexual harassment[29], right to a quality life[30] and right to family pension[31] have become integral part of right to life and personal liberty under article 21 of Indian Constitution. Now, I will analyse the judgement decided by the honourable Supreme Court to show how environmental dispute settlement has been handled under article 21 of Indian Constitution.

 

ENVIRONMENTAL DISPUTE SETTLEMENT BY SUPREME COURT THROUGH ARTICLE 21

I have observed that till 1991, the honourable Supreme Court was not very particular to come forward and protect the environmental concern in every aspect. The cases decided between 1985 to 1990 were entertained by the honourable Supreme Court under public interest litigation with the help of Article 32 of the Indian Constitution, which itself is a fundamental right. However, the claiming the right to pollution free environment within the ambit of Article 21 of Indian Constitution, still was not addressed by the apex court. It is not the case that the court was not aware of the different dimensions of Article 21, but various environmental statutes were being analysed by the Supreme Court for delivering environmental Justice. As I have already observed that there is no environmental legislation which confers to the people in India the right to environment as a statutory right, accordingly, the people in India would not approach before the court of law for requesting to issue directions to protect such rights, because of absence of the right in any environmental statute. Therefore, the struggle for bringing a right to pollution free environment under the purview of article 21 of Indian Constitution can easily be witnessed by the readers that how the apex court was making effort to explain and analyse further the very concept of right to life under article 21. There was another necessity for which the apex court was struggling hard to declare such a right as fundamental right because of the mass environmental disaster faced by the people in the city like Bhopal. It is also true that while declaring such a right as fundamental right will not completely eradicate pollution problem or larger environmental degradation issues, but the people will have recourse to the court of law easily not only for the protection of their fundamental right, once this right is declared as such, but also for the preservation and conservation of natural environment. An excellent effort was made by the honourable Supreme Court while analysing the ambit of Article 21 of Indian Constitution in Subhash Kumar case[32].

In this case a public interest litigation was filed before the honourable Supreme Court to issue directions against the directorate of collieries and against the Tata iron and steel company, that is, TISCO, to stop industrial discharge into the River water of Bokaro. According to this petition, the main issue was concerned with prevention of River water pollution from industrial waste water. It is not the case that in the state of Bihar, there was no existence of state pollution control board, rather the concerned board was very much in its existence and could be witnessed from the incident of frequent visitor to the devices of the industry and collection of samples and analyses of the samples thereof. Since, the petitioner filed the case before the honourable Supreme Court under article 32 of the Indian Constitution, hence, the apex court had to look into the serious issues of water pollution problem.

The petitioner claimed that, it is not only the industrial waste water which is polluting the River water of Bokaro, but also along with the waste water the coal particles are also being deposited on the agricultural land including the petitioner’s land and this incident making the agricultural land infertile, because of presence of Carboniferous layer on such land. Accordingly, there is loss of livelihood issues to the farmers and this loss is not temporary but for long period of time as the removal of presence of coal particles over the agricultural land will not be that easy.

The petitioner also claimed that the pollution is happening not only because of the inefficient and unprofessional approach from the Tata iron and steel company including the casual approach of directorate of collieries, but also it is gross failure of statutory duty on behalf of the state of Bihar state pollution control board. In this regard, to prevent the agricultural land pollution with the help of coal particles, the petitioner requested the apex court to allow him to collect these particles from the outlet of the industrial waste water, so that before these particles approach over the agricultural land, they are being collected by the petitioner.

In order to support problem of River water pollution, the petitioner mentioned the importance of the preamble of the Water (Prevention and Control of Pollution) Act, 1974 and stated in the petition that the above legislation is enacted only for the purpose of prevention and control of water pollution. For the purpose of prevention and control of water pollution, the statute also establishes an authority in the name of central and state pollution control board respectively. Under 17 of the above legislation, the state pollution control board has been imposed with various important functions to make the concerned board efficient in the administration of prevention and control of water pollution. Similarly, Section 24 of the above legislation defines the prohibited functions and it is the board, in order to exercise its statutory duties, to look into whether any polluter/industry discharging those pollutants, which are prohibited activities. According to the petitioner the Tata iron and steel company has violated the provisions of Section 24 of the above-mentioned legislation.

While describing the extent of pollution, the petitioner the process that the coal washeries within the Tata Iron and Steel Company industrial premise, after extracting the coals, they are broken into graded pieces to make them further ash free, so that these coal particles can be utilised by the Steel Plant for metallurgical processes. To make the coal particles ash free a method is applied which is called ‘Froth Floatation Process’ and in this process diesel oil and pine oil including certain harmful chemicals are used. Once the coal particles are treated with this above process, to make these particles free from those oil and harmful chemicals, gallons of fresh water are applied to these coal particles. In this process, not only the graded pieces of coal particles are produced, but also many graded pieces of coal particles are further broken into tiny particles, which are also ash free coal particles. These tiny particles which are ash free has exorbitant market value, because these are used by fuel industry. The fresh water applied to coal particles are not only carrying with themselves harmful chemicals and other processed materials, which are though sent to settling tanks, but also most of the untreated trade effluents coming out from the industrial outlets mixes with the River water of Bokaro and flows over the nearby agricultural land as well. The petitioner claimed that it was the statutory duty of the state pollution control board to inspect the premises of the Steel industry and should have ensured that untreated trade effluents should be sent 1st to settling tanks and after depositing of the coal particles in the said tanks the treated trade effluents should have been released outside the industry premises. If there are not sufficient settling tanks, the pollution control board should have instructed the steel plant to dig a few more settling tanks within the premises to treat the trade effluents before discharging such influence outside the premises. Based on these developments, the petitioner was seeking relief while filing this public interest litigation before the apex court.

The counter affidavits filed by the state of Bihar and state pollution control board are interesting to observe. The state pollution control board has clearly mentioned in its counter affidavit that frequent inspection to industrial premises have been made. While claiming so the concerned board also expressed its views while reading out the provisions from Sections 25 and 26 of the Water Act 1974. The board has stated that Section 25 and Section 26 of the Water Act, 1974 clearly instructed that the industries if they are renovating their discharge outlet or making any modification in the existing industrial outlet or bringing any new construction within the existing industrial premises in all these cases the concerned industry must apply for no objection certificate to the pollution control board. In this regard, since, neither there was any such application made by the industry for modification or innovation of any existing outlet nor even there was any application regarding construction within the existing premises, hence, it is the state pollution control board who requested the industries to construct two more settling tanks because of enhancement of volume of coal particles and use of froth floatation process and equally application of use of enhanced fresh water resources. Similarly, the industry accepted the directions of the state pollution control board and they were about to construct two more settling tanks within the premises, but before that the petition was filed before the apex court. Moreover, in the counter affidavit the pollution control board clarified and emphasised upon that the River Bokaro remains dry for nine months and there is no question that the industrial waste water including sludge was carried away by the water of River Bokaro and polluted the downstream villages.

From the counter affidavit of the Tata iron and steel company, it was revealed before the honourable Supreme Court that Subhash Kumar was earlier associated with this company and used to collect coal particles for his own business. Since, Mr Subhash Kumar could not get the contract for the subsequent years, therefore, he filed this case. Because, when he came to know that his contract has been terminated, then he went to meet with the management of the Tata steel and Iron Company, however, there was failure from sis part to convince the management of the Tata steel and iron company to take his contract back. Out of personal interest and vengeance Mr Subhash Kumar has filed this case and it is nothing but abuse of article 32 of Indian Constitution. Moreover, it was revealed before the Supreme Court that a criminal case is pending to be decided against Mr Subhash Kumar regarding transfer of title deed of the agricultural land.

The Supreme Court has taken the note of pollution aspects and found that there is no such considerable amount of pollution, for this, the present writ petition should be dismissed, moreover, the petitioner has filed this case not as public but private interest litigation to settle the personal score with the company. Finally, the apex court dismissed the petition. However, before concluding the judgement the honourable Supreme Court made an Obiter that article 21 of Indian Constitution proclaims right to life which also includes right to get pollution free water and air.

Many cases approached before the Supreme Court for environmental dispute settlement and the apex court with the help of article 21 of Indian Constitution delivered environmental Justice.

 

OTHER IMPORTANT CASES ON ARTICLE 21 AND RIGHT TO POLLUTION FREE ENVIRONMENT

Environmental dispute settlement has been done comprehensively by the honourable Supreme Court in number of cases while raising the legal implications under Article 21 of Indian Constitution. Settling the environmental dispute by the Supreme Court started basically from the Shriram fertiliser[33] case, however, in Subhas Kumar[34] case the Apex Court explained that the right to get pollution free water and air is fundamental right under the right to life as enshrined under article 21 of Indian Constitution. Thereafter, the honourable Supreme Court did not look back and proceeded to enlarge the scope of right to environment in multi facet way. Few important cases dealing with environmental dispute settlement and proclamation of right to environment, under article 21 of the Indian Constitution, are given below.

 

In M.C. Mehta v. Union of India[35] case, there was claim of money in the form of compensation to be paid to those persons who suffered harm because of oleum gas leak from one of the plants of Shriram fertilizer. The opposite Council stated that for fixing compensation the petitioner may go to apply before the civil court. However, the apex court clarified that since the present case involves substantial question of law to be decided in the light of article 21 of Indian Constitution, therefore, this court can issue directions to authorities for the protection of fundamental right.

 

In Unni Krishnan V. State of Andhra Pradesh[36] case, the apex court, while analyzing one of the MC Mehta cases of 1988, stated that article 21 of Indian Constitution is the genesis of many human rights jurisprudence, in particular, right to pollution free environment.

 

In Consumer Education and Research Center V. Union of India[37] case, the honorable Supreme Court while taking reference from Kanpur Tanneries case (AIR 1988 SC 1037) stated that right to life under Article 21 includes right to clean and healthy environment.

 

In Vellore Citizens Welfare Forum v. Union of India[38] case, the apex court clarified the constitutional and statutory mandates for pollution free environment and stated that individual’s right to clean water, fresh atmosphere should be protected by the provisions of Constitution and environmental legislation. Common law provides an inalienable right to clean environment. Right to life and personal liberty as guaranteed under article 21 of Indian Constitution, also includes right to fresh air.

 

In K.M. Chinnappa and T.N. Godavarman Thirumalpad V. Union of India[39] case, the honourable Supreme Court while defining the ambit of full enjoyment of life clarified that, though article 21 protects right to life as fundamental right, but the meaning is more than that, it also speaks of right to life with human dignity, therefore, it includes ecological balance, pollution free water and air, sanitation, protection and preservation of natural environment, without which life cannot be enjoyed in its full extent.

 

In N.D. Jayal V. Union of India[40] case it was stated by the apex court that article 21 of Indian Constitution makes a balance between right to development and right to pollution free environment.

 

In In Re: Noise Pollution[41] case it was stated by Supreme Court stated that if a person is exposed to high level of noise with the help of amplifiers, which creates noise in the nature of unbearable, unpleasant and obnoxious type, will violent the right to comfortable, peaceful and pollution free life as enshrined under article 21 of Indian Constitution.

 

In Tirupur Dyeing Factory Owners Association V. Noyyal River Ayacutdars Protection Association[42] case, the honourable Supreme Court asserted that it is compulsion for the state to make the River water pollution free as per the mandate of article 21 of Indian Constitution, accordingly, Noyyal River to be free from pollution is available under Article 21.

 

In Court on its Own Motion v. Union of India[43] case it was stated by the Supreme Court that the right to life as guaranteed under article 21 of Indian Constitution includes right to live with dignity, safety and in a clean environment.

 

In T.N. Godavarman Thirumulpad V. Union of India[44] case it was accepted by the SC that right to live in a clean and pollution free environment can be vitiated if the forest lands are degraded and deforestation is promoted. Therefore, as per the mandates of article 21 of Indian Constitution protection and preservation of forest is an essential element under ‘right to life’ for maintaining clean and pollution free environment.

 

In Gulf Goans Hotels Company Ltd V. Union of India[45] case the honorable Supreme Court stated that “Violation of Article 21 of Constitution on account of alleged environmental violation could not be subjectively and individually determined when parameters of permissible/impermissible conduct were required to be legislatively or statutorily determined”.

 

In Hindustan Zinc Ltd. V. Rajasthan Electricity Regulatory Commission[46] case it was stated by Supreme Court that right to live with healthy life guaranteed under article 21 of Indian Constitution is nothing but right to live in a pollution free environment. Energy generated from renewable sources is the best example of environment which is pollution free.

 

CONCLUSION

It is clear now that Indian Constitution is pro towards declaring and protecting the right to development and right to pollution free environment. Right to pollution free environment is not a statutory right, yet, in India. However, right to pollution free environment, right to clean water and fresh air, right to clean environment, et cetera are the integral rights declared under right to life and personal liberty in article 21 of Indian Constitution. Article 48 A and article 51A (g) of the Indian Constitution play vital role in preservation, conservation and protection of environment in India. From the above-mentioned cases, it can be concluded that on the one hand when the courts in India are settling the environmental disputes with the help of constitutional mandates and environmental legislation for successfully delivering environmental Justice, on the other hand, making a balance that violation of fundamental right or right to pollution free environment cannot be claimed whimsically, that is, unless it is proved that the parameters fixed under environmental Law or constitutional mandates have been violated one cannot ask constitutional relief. Therefore, it can be concluded that because of various mandates including article 21 of Indian Constitution environmental dispute settlement has seen the light of the day.

 

 

References

[1] The Wildlife Protection Act, 1972 which we read today is a product of process which started long ago in 1887 for the protection of a few wild birds and after addition of wild animals in 1912 and specified plants in 1991 it covered almost all the wildlife resources which need protection and management. Available at http://www. publishyourarticles.net/knowledge-hub/environmental-studies/brief-notes-on-the-wildlife-protection-act-of-1972 /3163/ (Last visited on 03.03.2017)

[2] “…in pursuance of clause (1) of article 252 of the Constitution resolutions have been passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujrat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law; BE it enacted by Parliament in the Twenty-fifth Year of the Republic of India…”. Available at http://www.envfor.nic.in/legis/water/wat1c1.html (Last visited on 01.03.2017)

[3] The Government passed this Act in 1981 to clean up our air by controlling pollution. It states that sources of air pollution such as industry, vehicles, power plants, etc., are not permitted to release particulate matter, lead, carbon monoxide, sulfur dioxide, nitrogen oxide, volatile organic compounds (VOCs) or other toxic substances beyond a prescribed level. Available at http://www.yourarticlelibrary.com/law/acts/summary-on-air-prevention-and-control-of-pollution-act-1981-of-india/30191/ (Last visited on 03.03.2017)

[4] Forest Act would also come within the purview of the Forest Conservation Act 1980. The Supreme Court has also held that “forest” as understood in the dictionary sense would also be included under “forest land”. The term “forest” shall not be applicable to the plantation raised on private land except notified private forest. Tree falling in such plantation would however be governed by state acts and rules. The term “tree” will have the same meaning as defined in section 2 of the Indian Forest Act 1927 (Rural Litigation & Entitlement Kendra Vs. State of U.P [1988] INSC 254). Available at http://www.wealthywaste.com/forest-conservation-act-1980-a-summary (Last visited on 03.03.2017)

[5] 2. Restriction on the dereservation of forests or use of forest land for non-forest purpose-Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

[6] The Bhopal Gas Tragedy, 1984 was a catastrophe that had no parallel in the world’s industrial history. In the early morning hours of December 3, 1984, a rolling wind carried a poisonous gray cloud from the Union Carbide Plant in Bhopal, Madhya Pradesh (India). Forty tons of toxic gas (Methy-Iso-Cyanate, MIC) was accidentally released from Union Carbide’s Bhopal plant, which leaked and spread throughout the city. The result was a nightmare that still has no end, residents awoke to clouds of suffocating gas and began running desperately through the dark streets, victims arrived at hospitals; breathless and blind. The lungs, brain, eyes, muscles as well as gastro-intestinal, neurological, reproductive and immune systems of those who survived were severely affected. When the sun rose the next morning, the magnitude of devastation was clear. Dead bodies of humans and animals blocked the street, leaves turned black and a smell of burning chili peppers lingered in the air. An estimated 10,000 or more people died.  About 500,000 more people suffered agonizing injuries with disastrous effects of the massive poisoning. None can say if future generations will not be affected. Available at http://www.bmhrc.org/Bhopal%20Gas%20Tragedy.htm (Last visited on 04.03.2017)

[7] M.C. Mehta And Anr vs Union Of India, 1987 AIR 1086

[8] As per this Act, the Central Government shall have the power to take all such measures for the purpose of protecting and improving the quality of the environment and to prevent environmental pollution. Further, the Central Government shall have the power to give directions in writing to any person or officer or any authority for any of the purposes of the Act, including the power to direct the closure, prohibition or regulation of any industry, operation or process. Available at http://www.advocatekhoj.com/blogs/index.php?bid=5844e03567140583459245221&bcmd=VIEW (Last visited on 03.03.2017)

[9]Legislation for giving effect to international agreements.— Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Available at http://www.ebc-india.com/lawyer/articles/71v2a5.htmLast (visited on 05.05.2017)

[10] Stockholm represented a first taking stock of the global human impact on the environment, an attempt at forging a basic common outlook on how to address the challenge of preserving and enhancing the human environment. As a result, the Stockholm Declaration espouses mostly broad environmental policy goals and objectives rather than detailed normative positions. However, following Stockholm, global awareness of environmental issues increased dramatically, as did international environmental law-making proper. Available at http://legal.un.org/avl/ha/dunche/dunche.html (Last visited on 03.03.2017)

[11] A Constitution to be living must be growing.   If the impediments to the growth of the Constitution are not removed, the Constitution will suffer a virtual atrophy.  The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity. Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017)

[12] “48A.   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.” Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017)

[13] (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion   for living creatures; Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017)

[14] “Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health” Available at http://www.constitution.org/cons/india/p04047.html (Last visited on 06.06.2017)

[15] T. Damodhar Rao V. The Special Officer, Municipal Corporation of Hyderabad, AIR1987AP171

[16] M.C. Mehta Vs. Kamalnath ‎(1997)1 SCC 388

[17] Article 243W …… Urban  forestry, protection of the environment and  promotion  of
ecological aspects Available at http://indiacode.nic.in/coiweb/amend/amend74.htm (Last visited on 03.03.2017)

[18] Maneka Gandhi v. Union of India [1978] 2 SCR 621, Satwant Singh v. A.P.O., New Delhi [1967]3 SCR 525

[19] Kharak Singh v. State of U.P. 1963CriLJ329, Sharda v. Dharampal [2003] 3 SCR 106

[20] Common Cause, a Registered Society v. Union of India 1997CriLJ195

[21] Prabha Dutt v. Union of India 1982CriLJ148

[22] Police Commissioner, Delhi v. Registrar, Delhi High Court 1997CriLJ90

[23] D.K. Basu v. State of West Bengal 1997CriLJ743

[24] State of Maharashtra v. M.P. Vashi AIR1996SC1

[25] Unnikrishnan v. State of A.P. [1993]1SCR594, T.M.A. Pai Foundation v. State of Karnataka (2002)8SCC481

[26] CERC v. Union of India (1995) IILLJ768SC, State of Punjab v. M.S. Chawla [AIR 1997 SCC 125]

[27] M.C. Mehta v. Union of India [1986]1SCR312

[28] APPCB v. M.V. Naidu AIR 1999 SC 822

[29] Visakha v. State of Rajasthan AIR1997SC3011, AEPC v. A.K. Chopra (1999) ILLJ962SC

[30] (SIC) Lal Tiwari v. Kamala Devi and Ors. AIR2001SC3215

[31] S.K. Mastan Bee v. General Manager South Central Railway (2003) ILLJ561SC

[32] Subhash Kumar Vs. State of Bihar AIR 1991 SC 420

[33] 1987 SCR (1) 819

[34] See, Supra Note No. 32

[35] AIR 1987 SC 1086

[36] AIR1993SC2178

[37] AIR1995SC922

[38] AIR1996 SC 2715 at 2720

[39] AIR2003SC724

[40] (2004)9SCC362

[41] AIR2005SC3136

[42] AIR2010SC3645

[43] 2012 (12) SCALE 307

[44] AIR2014SC3614

[45] AIR2015SC2032

[46] 2015(6) SCALE706

Case Comment On S.P. Mittal v. Union Of India

CASE COMMENT – S.P. MITTAL v. UNION OF INDIA:

UNFOLDING THE CONFLICT OF RELIGIOUS RIGHT

Written by Ankitashri Tripathi*, Shashank Shri Tripathi** & Harsh Yadav***

* 2nd Year B.Com LL.B Student, Institute Of Law, Nirma University

** 3rd Year B.A LL.B Student, Balaji Law College, Pune University

*** 2nd Year B.Com LL.B Student, Institute Of Law, Nirma University

 

INTRODUCTION

India being a secular country has tolerance for all the religions and this has been reflected from the decisions of our judiciary from time to time. Freedom of religion in India is a fundamental right guaranteed by Article 15 and Article 25 of the Constitution of India. Modern India came into existence in 1947 and the Indian constitution’s preamble was amended in 1976 to state that India is a secular state. But having right is not sufficient. There have been numerous conflict between various interest groups and law making bodies which will be dealt in the respective case analysis.

S.P. Mittal Etc. v. Union of India And Others (1982) 1983 AIR, 1 1983 SCR (1) 729

FACT

Sri Aurobindo was one of the India’s great sage and philosopher. After his career in politics and administration, he decided to convert his life into yoga and meditation at Pondicherry, Tamil Nadu. A French lady named Madam M. Alfassa, became his disciple and also later she known as Mother. Soon  after some time many people all over India and also from the abroad joined Sri Aurobindo and formed a society named Sri Aurobindo Society in 1960 under West Bengal Registration of Societies Act 1961.After some years a new township was formed known as AUROVILLE where people were taught he teachings of Sri Aurobindo .Seeing a unique work state and central government decided to provide funds to the township  .As a result of it the UNESCO  also decided to help this township in its development because it was helpful in international relation.

In year 1970,after the death of Mother Alfassa there were lots of cases registered against the misappropriation of funds in the township .Seeing such a conflict Central government decided to take over the power of administration in its hands, for which legislation passwd a Presidential Ordinance . After some time by filing a writ, that ordinance was converted into Auroville Emergency Provision Act 1980. The same was challenged before Supreme Court of India.

ISSUES RAISED

The constitutional validity of the Act has been challenged on four grounds:

  1. Parliament has no legislative competence to enact the impugned statute;
  2. The impugned Act infringes Articles 25, 26, 29 and 30 of the Constitution;
  3. The impugned Act is in violation of Article 14 of the Constitution; and
  4. The act was mala fide.

 

JUDGEMENT

In the judgement given by the court, Supreme Court firstly defined the powers of the parliament[1] where judgement is-

1.      The Parliament had the legislative competence to enact the Auroville (Emergency Provisions) Act, 1980.2.      The subject matter of the impugned Act is not covered by Entry 32 of List II of the Seventh Schedule. Even if the subject matter of the impugned Act is not covered by any specific entry of List I or III of the Seventh Schedule of the Constitution it would in any case be covered by the residuary entry 97 of List I.3.      The function of the Lists in the Seventh Schedule to the Constitution is not to confer powers .They merely demarcate the   legislative fields. Power   to   legislate is given to appropriate legislature by Articles 245 to 248 of the Constitution. 4.      The  Auroville  Act  even  incidentally  does not trench upon  the field covered by the West Bengal Societies Registration Act,  1961 as  it is  in no  way related to Constitution, regulation and winding up of the Society.

INTERPRETATION/COMMENT

Religion, undefined by the constitution, is incapable of precise judicial definition either. In the background of the provisions of the constitution and the light shed by judicial precedent, it can at best be said that religion is a matter of faith. It is a matter of belief and doctrine.
The words “religious denomination” in Article 26 of the Constitution must take their colour from the word ‘religion’ and if this be so, the expression “religious denomination” must also satisfy three conditions:

  1. It must be a collection of individuals who has a system of beliefs or doctrine which they regard as conducive to their spiritual well-being, that is, a common faith;
  2. Common organisation: and
  • Designation by a distinctive name.

Religion means a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being”. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well; Religion need not be theistic. The above contention was held in Sastri Yagnapurushadji and Ors. v. Muldas Bhudardos Vaishya and Anr.[2].

Religious denomination means a religious sect or body having a common faith and organisation and designated by a distinctive name. A law which takes away the rights of administration from the hands of a religious denomination altogether and vests in another authority would amount to violation of the right guaranteed under clause (d) of Article 26. Madrasv. Sri Lakshmindra Thirtha Swamiar.[3]

Further the arguments raised cannot be accepted for two reasons-

Firstly, because it has not been pointed out which were the other institutions where similar situations were prevailing.

Besides, there is uniqueness with this institution inasmuch as the Government is also involved. Even a single institution may be taken as a class. The C: situation prevailing in the Auroville had converted the dream of the Mother into a nightmare. There had arisen acute law and order situation in the Auroville, numerous cases were pending against various foreigners, the funds meant for the Aurovillehad been diverted towards other purposes and the atmosphere was getting out of hand. In the circumstances the Government intervened and promulgated the ordinance and later on substituted it by the impugned enactment. It cannot be said that it is violative of Article 14 on that account.”

We get support for our view from the following decisions.

In Budhan Chowdhury v. The State of Bihar[4] a Constitution Bench of seven Judges of this Court explained the true meaning and scope of Article 14 as follows:

It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.

These observations were quoted with approval by this Court in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors.[5]

Judicial trend as so far as right to freedom of religion is concerned have evolved through the passage of time in terms of its definition and significance as it have always a subject to judicial interpretation. In Ananda Margi[6] case, the court differentiated between religion and religious denomination by upholding S.P Mittal v. UOI.

In Bijoe Emmanuel[7] case, Hon’ble Supreme Court held that religious faith must be followed by religious denomination in order to being protected by article 25 of Constitution of India.

In Church of God[8] case, the court held that there should be no violation of Article 25 and 26 have been caused. If a person has a fundamental right i.e. here, right to religion and he enforces it, it should be ensured that others right is not violated i.e. here, right to peaceful environment.

In Aruna Roy[9] case, the judiciary decided in the following case that there is a clear cut difference between religious instruction and religious education and teaching the philosophy of religion. You cannot bring each and every thing related to religion into religious instruction.

CONCLUSION

In the present case i.e., S. P Mittal v. Union of India, and various other cases discussed further the Supreme Court have led down the guidelines regarding the definition of “Religion” and “religious denominations”, where the approach of the court was very clear as to what should be considered religious denomination and what should not be. There were specific guidelines were led down for the Religious denomination.

However, the author concludes that the judicial trend regarding religious right have never been a predictable concern. A citizen can exercise his right to religious practice till when it is not harming other, but before that it is very necessary to understand that what is religion and what is not in order to claim ones right under fundamental right

 

 

 

[1]Rustom Cavasjee Cooper v. Union Of India (1970) 1970 AIR 564, 1970 SCR (3) 530.

[2] [1966]3SCR242.

[3] [1954]1SCR1005.

[4] AIR 191, 1955 SCR (1)1045.

[5] AIR 538, 1959 SCR 279.

[6]Acharya Jagdishwaranand v. Commissioner Of Police (1984) AIR 512, 1984 SCR (1) 447.

[7]Bijoe Emmanuel &Ors v. State Of Kerala & Ors (1987) AIR 748, 1986 SCR (3) 518.

[8]Church of God v.  K.K.R.M.C Welfare Association (2000) AIR 2773.

[9]Ms. Aruna Roy &Ors v. Union Of India &Ors, 2002 RD-SC 388 (2002).

Jurisprudence Of Uniform Civil Code Threat To Multiculturalism And Secularism

JURISPRUDENCE OF UNIFORM CIVIL CODE: THREAT TO MULTICULTURALISM AND SECULARISM

Written by Ankitashri Tripathi*, Shashank Shri Tripathi** & Harsh Yadav***

* 2nd Year B.Com LL.B Student, Institute Of Law, Nirma University

** 3rd Year B.A LL.B Student, Balaji Law College, Pune University

*** 2nd Year B.Com LL.B Student, Institute Of Law, Nirma University

 

ABSTRACT

India is a land where multiple cultures have thrived since ages. Social groups delineated by various criterions had co-existed since a long time while maintaining their culture. Among several of these that determine this variation in culture is religion. It does not only penetrate and influence the ideology and spirituality but also ultimately manifest ate in material world intercourse between people in and among religious circle. In seemingly trivial to the major activities, religion determines the attitude and behavior of men and women. This crystallizes in culture. Coalescence of religion, personal intercourse in civil life as well as cultural manifestation is invisible. India, where thrive multiple religions with their own characteristic of personal intercourse ranging from marriage to inheritance of multicultural ,Is it then that sweeping uniformly in personal laws imposed by a secular state ,which govern those personal practices of those belonging to same religion, will leave the culture of these religious circle unaffected? The ball set rolling by the Uniform Civil Code shall lead to interference in the cultural life of those groups. A secular state, as fervent professor of equal treatment to all religion it be, shall prejudice the identity of India as a multicultural state, which an Indian patriot be proud of.

Author in this paper would try to analyze the jurisprudence of Uniform civil code, its making, ambit, enactment etc which emerged as the most promising issue of the time. This paper would also reflect the Constitutional provision of India, which talks about uniformity of law in order to secure the interest of the citizen. Author will also try to analytically criticize the approach of bringing uniform civil code in a nation that prides its multicultural society and secular state. In addition to above observation, author will also try to analyze future perspective of Article 44 as well as threats attached with bringing such law in a democratic country like India.

 

INTRODUCTION

We all remember Swami Vivekanand as a motivational guru to youth of the nation. He gave Indians proper understanding of their country’s great spiritual heritage and thus gave them pride in their past. Who can forget his tremendous speech given in Chicago[1]? While introducing himself, he said:

“I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth. I am proud to tell you that we have gathered in our bosom the purest remnant of the Israelites, who came to the southern India and took refuge with us in the very year in which their holy temple was shattered to pieces by Roman tyranny. I am proud to belong to the religion, which has sheltered and is still fostering the remnant of the grand Zoroastrian nation. I will quote to you, brethren, a few lines from a hymn which I remember to have repeated from my earliest boyhood, which is every day repeated by millions of human beings:

As the different streams having their sources in different places all mingle their water in the sea, so, O Lord, the different paths which men take through different tendencies, various though they appear, crooked or straight, all lead to thee.

The present convention, which is one of the most august assemblies ever held, is a vindication, a declaration to the world, of the wonderful doctrine preached in the Gita:

Whosoever comes to Me, through whatsoever form, I reach him; all men are struggling through paths which in the end lead to me. Today India is amongst the fastest growing country. The progress India is making is shutting the mouths of all those who call Indians poor, beggars and helpless etc.

Swami Vivekananda said: “I shall go to the mosque of the Mohammedan; I shall enter the Christian church and kneel before the crucifix; I shall enter the Buddhist temple where I shall take refuge in Buddha and in his law; I shall go into the forest and sit down in meditation with the Hindu who is trying to see the light which enlightens the heart of everyone.” It is to be noted that neither he nor Swami Aurobindo spoke the “them and us” language.[2]

Vivekanand portrayed a marvellous picture of India which settled in hearts of every nation as an identity of India. The ball set rolling by him was carefully forwarded and finally inserted in the Indian Constitution. India is a country where citizens of every country feel safe whether it is in regards to religion or language or something else.

India’s identity has never been exclusive or homogeneous. The idea of India or Bharat lies in its diversity, pluralism, inclusivity and many-ness. It is time people reaffirmed their belief in these ideals and spoke out to stop reactionary elements from seeking to cast the great Indian civilisation in one mould.

The Uniform Civil Code is a noble but not necessary concept. The current situation is not fit to introduce such a concept of UCC as the code of conduct, rituals, beliefs and even dress and food is governed by religion and people are in no mood to set this thing aside. It will only bring chaos. If a need arises as a must to implement UCC then it could only be allowed if people of the nation are well educated who have the decision-making power.

 

CONCEPTUALISING UCC AND ITS MISCONCEPTION

It should be analysed that it is convenient or practicable to accommodate diversified laws and detail a uniform or regular code worthy to every community. Article 44 of the Constitution, which discusses a uniform common code for all Indians, was the subject of a current civil argument in Chennai. The fundamental contention of the individuals who talked for such a code was, to the point that it can possibly join India since Hindus and Muslims had taken after the “common customary Hindu civil code” easily until 1937 when “the Muslim League-British combine” divided them by imposing sharia on Muslims through the Muslim Personal Law (Sharia) Application Act.

When we profoundly examine the matter from time of Lord Cornwallis to the Act of 1937, we come to realize that exclusive an infinitesimal minority of Muslims took after Hindu custom before 1937. Indeed, even this segment had the right under laws, for example, the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) to decide on “Mahomed a Law”. With respect to a majority part of Muslims, there is sufficient confirmation and evidence to show they took after Muslim law, not the Hindu common code. In this way, the contention as that we were joined together, according to the individual law is concerned, and is false. Before Cornwallis, Warren Hastings had proclaimed in 1772 that:

“…that in matters of inheritance, marriage and other such religious affairs “the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Gentoos [Hindus] shall be invariably adhered to…[3]

Notwithstanding when the Indian Penal Code was enacted in 1860, Muslim personal laws were left untouched. The above episodes demonstrate that the Personal Laws were never looked to be brought together and the reason was not that the Britishers dreaded for the massive explosion. They were sufficiently skilful to handle such circumstances. The main reason for avoiding implementation from such common civil code as that of common criminal code was that they never understood the need of doing such act. They never needed to squander their vitality and power in handling those circumstances, which were not productive to them. Macaulay in his account has emphasised such circumstance of India by saying that the administration must not interfere with the personal matters of people and say that they know their business better then they know it themselves.

When Hindu marriage law was made, polygamy among the Hindus were prohibited over all sects and groups. Has it truly reduced bigamy among Hindus? Statistics says different story. What it really did is to deny second spouses in such marriages of their entitlement to maintenance, living arrangement, and so on, and denies them of their pride as they are allude to in court procedures as courtesans, mistress, and keeps, who are without rights. They are denied of their entitlement to an existence of poise and their entitlement to survival under Article 21 of the Constitution just as Constitution secures certain class of women and the individuals who do not fit into the system can be thrown away. In addition, the child marriage restriction Act and recommending least age of 18 for young girls among Hindus has reduced child marriage. Once again, statistic reflect different story as youngster marriages among Hindus outnumber child marriage among Muslims. Child marriage diminishes when the financial status of the community enhances and not because of there is a law. Hence it will not be wrong to say that concept of UCC is communal and neglects the ground reality of the place of law reforms.

In case if UCC is going to be made communally vitiated and hostile to minority way, it will carry lots of contradictions and will lead to mess. The media has disregarded the essential landmarks in advancements of law achieved by judiciary. I think this is a constructive method for of reforming the laws within scope of personal law itself.

What we need is not a Uniform Civil Code but rather consistency of rights crosswise over various religions community keeping the essence of “religious belief”. For this we have to take after the introduce, “Reform from Within” similarly Hindu law was reformed, the Christian Law was improved and the Muslim law has been reformed without conjuring any major political debate. The present discussion unjustifiable.

 

JURISPRUDENCE OF ANCIENT EPICS

The major conflict between supporters and opponents of UCC lies in the “status quo or change”. Our Hon’ble Judiciary follows the concept of status quo for itself as it follows the rule of precedent. Nevertheless, the status quo of judiciary changes with demand of the hour and when judiciary finds itself capable and when it gets a much stronger option for its laws. It shall be the case everywhere. This concept is noble as it includes flexibility. When we argue for UCC, we must apply the same rule. We must implement laws relating to personal laws if we find that the people who are going to be affected are capable or they “understand” that they have the other better option. This concept fails in India in both the ways. The one is the one who are eager to implement this law have nothing to do with the condition and capabilities of the common masses who know nothing but religion, and the second is the people , the common men had closed their eyes whether it be for their rights or duties.

We find a glimpse of such a concept in the Manusmriti, which says:

वेदोऽखिलो धर्ममूलं स्मृतिशीले च तद्विदाम् । आचारश्चैव साधूनामात्मनस्तुष्टिरेव च ॥

Translation 1: The whole Veda is the (first) source of the sacred law, next the tradition and the virtuous conduct of those who know the (Veda further), also the customs of holy men, and (finally) self-satisfaction (Atmanastushti)[4].

Translation 2: The root of the religion is the entire Veda, and (then) the tradition and customs of those who know (the Veda), and the conduct of virtuous people, and what is satisfactory to oneself.

The Manusmriti give a much greater value to the traditions and customs and the satisfaction of oneself. This do not mean that it says that be greedy. The concept is that we should read Veda (have knowledge) and in absence the tradition and custom comes to govern the religion and all comes afterwards. Implementation of UCC is governing religion with just a resemblance of Knowledge and denying all other necessary factors just because we stand good in our logic.

Thomas Babington Macaulay said in his biography in connection to India that:

“A government cannot be wrong in punishing fraud or force, but it is almost certain to be wrong if, abandoning its legitimate function, it tells private individuals that it knows their business better than they know themselves[5]”.

वेदः स्मृतिः सदाचारः स्वस्य च प्रियमात्मनः । एतच्चतुर्विधं प्राहुः साक्षाद् धर्मस्य लक्षणम् ॥

Translation 1: The Veda, the sacred tradition, the customs of virtuous men, and one’s own pleasure, they declare to be the fourfold means of defining the sacred law.

Translation 2: The Veda, tradition, the conduct of good people, and what is pleasing to oneself   is to say that is four-fold mark of religion. - Manusmriti 2.12

Levinson states that the role of Shruti and Smriti in Hindu law is as a source of guidance, and its tradition cultivates the principle that “the facts and circumstances of any particular case determine what is good or bad”. The later Hindu texts include fourfold sources of Dharma, states Levinson, which include Atmanastushti (satisfaction of one’s conscience), Sadachara (local norms of virtuous individuals), Smriti and Sruti.[6]

The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries[7]. The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century.[8] The colonial policy regarding personal laws in India, for example, was expressed by Governor-General Hastings in 1772 as follows:

“In matters of inheritance, marriage and other such religious affairs the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Gentoos [Hindus] shall be invariably adhered to”[9].

— Warren Hastings, August 15, 1772

The personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India[10]. In 1872, the British crown enacted the Indian Christian Marriage Act, which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics[11].The development of legal pluralism, that is separate law based on individual’s religion was controversial in India, from the very start[12] and it was never concluded.

 

CRITICAL ANALYSIS OF ACT OF 1937

The Shariat Act of 1937 was the aftereffect of interest for personal law by Muslims. It revoked every single such arrangement in prior enactment that allowed custom to abrogate ‘Mahomedan law’ in situations where the parties were Muslims. In any case, the British did not force this Act on all Muslims. It was made material mandate (per Section 3 just to those Muslims who expressed their wish to go under it. This detonates the myth that it tried to partition Indians on mutual lines.

Nevertheless, a relative study of the personal laws of Hindus, Muslims, and different other minorities will uncover that the sheer assorted qualities of these laws, combined with the closed-minded enthusiasm with which they are adhere to, cannot allow uniformity of any kind. In fact, the heterogeneity of Hindu law itself is with the end goal that even the likelihood of a uniform Hindu code is precluded. Discussing marriage alone, marriage to be solemnized as per the customs and practice of an assortment of individuals who comes under the meaning of a Hindu[13]. For example, as per the Saptapadhi type of marriage that is form of marriage practiced in northern India, the marriage shall esteemed to be completed and binding when the couple make seven steps around the sacred fire.

Then again, in the south Suyamariyathai and Seerthiruththa types of marriages taken after. Under these, the marriage is legitimate if the parties to the marriage pronounce within the sight of relatives that they are wedding each bother, or on the off chance that they wreath each other, or put a ring on each other’s fingers or if the husband ties a thali around the neck on the bride. These rituals are mandatory to practice a valid marriage under law[14]. .Also, for a marriage to be substantial/valid under law, it should solemnized as per the standard customs and rituals of no less than one of the party. In this way, if a Jain weds a Buddhist by following the rituals of a Sikh, the marriage is invalid[15]. In Muslim law there are no detailed rituals or functions, yet Sunni and Shia rehearses vary.

It, consequently, should be inquired as to whether it is conceivable or practicable to accommodate these different laws and define a uniform or basic code that is worthy to all communities. India as of now has a discretionary common code with respect to Special Marriages[16]. This read with comparable Acts, for example, the Indian Succession Act, 1925, gives a decent legitimate system to all matters of marriage, separation, upkeep and progression for the individuals who may wish to dodge the religion-based laws.

 

CURRENT SITUATION: A LIMITED, UNENFORCEABLE MANDATE

Uniform Civil Code and the Constitution: A story of three myths-

First, the Uniform Civil Code has introduced as an unassailable order of established constitutional morality, its presence in the Directive Principles an undeniable proof of the constitutional accord describing it.[17]

Second, legal pronouncement have distorted to make a prevalent misconception that the Supreme Court has reliably supported the implementation of one code for one country. To be reasonable.

Thirdly, a misconception been permitted to make strides that personal laws are not subject to the superintendence of the Constitution.

In absence of draft, the UCC is whatever we need it to mean – which is to understate the obvious, the aggregate of dissenting, even pugnacious, tensions and any expectations of this country. The established and legal position should be protected from these impressions and misconceptions. It falls inside Part IV of the Constitution titled as Directive Principles of State Policy (DPSP) and comprehended as admonishments to the State to remember while administering the nation. There has never been any fragment of uncertainty about the non-enforceable nature of these general interests. In fact, the main substantive arrangement of the DPSP, Article 37,[18]  completely bans any of these cases from being dragged to the courts for execution. Various judgments of the Supreme Court have set up certain that DPSP, their attractive quality or bid in any case, cannot be sought after at the cost of basic, enforceable and judicially secured individual and group rights revered in Part III of the Constitution.[19]

Numerous judgements tried to blend central fundamental right with DPSP to the degree conceivable however in any contention between the two; the rights dependably beat these unenforceable mandates.[20] This implies Fundamental Rights were given prevalence over the Directive standards[21]. Indeed, even inside the DPSP, there is a hypothetical chain of importance and arrangements identifying with social welfare, free lawful guide, mandatory instruction that identify with and supplement central rights have been agreed an uncommon place in protected law.

 

JUDICIAL INTERPRETATION

The Supreme Court in a couple cases has for sure mentioned some stray observations throughout the years about the codes appeal however; they don’t frame restricting precedent for reference. These comments constitute, what in legitimate speech, is called obiter dicta – an observation made in passing that is of no importance or incentive to the position of law. Many believe that it is outside the judicial privilege or ability to paddle into the strategy space of choosing which traditions and practices advance into a uniform code. Actually, the courts have gotten a handle on the trouble and impracticability of UCC as a rule and forewarned against its rushed reception. As late as 2015, the Supreme Court declined to pass bearings on UCC and laid that activity at the door of Parliament.

A few judges may in any case consider the possibility of UCC compelling to swim through the entanglement of legal pluralism however; they overlook that uniformity while implementing the laws over personal law is not a sociological fact. We can deliver uniformity of laws however where are we going to discover a ground united by convictions and practices where the State could execute these laws without intimidation or struggle?

In the much-talked-about Shah Bano case [22] the Supreme Court held that Section 125 of the Code of Criminal Procedure (Cr.P.C.), being a secular provision was applicable to all.

The Supreme Court connected the teaching of harmonious construction and understood the authorization particularly in accordance with its Shah Bano judgment. The position, consequently, is that a Muslim woman is qualified for reasonable and sensible maintenance under Section 125 of the Cr.P.C. insofar as she stays unmarried after the separation. Many Petitions were filed in Supreme Court on various events in regards to Uniform Civil Code, however it has declined by saying that parliament is appropriate body to enact such law. In spite of the appeal of a uniform code, the Supreme Court advised in, that the sanctioning of uniform law for all people “in one go might be counterproductive to the solidarity of the country”. Subsequently, it is a rough way that should be carefully trodden[23] .

 

SPIRIT OF RELIGIOUS RIGHT

Announcing ones religion, with each one of its conventions and practices is the critical right of the nationals of India. All the above concentrations indicated are an “Important” some part of these belief and practices. All religions have low down age-old customs for all the above subjects. These all conventions have been founded on measures of significant worth and recollecting participations with exchange customs. A huge segment of them are weaved with each other and can’t be modified without changing the whole code sans readiness and in this way pulverizing the very surface of that religion. This will be like making an interesting religion, which will be anything, which we started with. In like manner, overseeing/managing any of the above will clearly interfere in these beliefs and fundamentally pulverize the religion.

At the point when Constitution talks about secularism as its objective, the accord and conviction to be one, socially, discovered its demeanour in Article 44 of the Constitution. Be that as it may, religious opportunity, the fundamental establishment of secularism, was ensured by Articles 25 to 28 of the Constitution. Article 25 is generally worded. It ensures all people, flexibility of still, small voice as well as the privilege to declare, hone and engender religion. What is religion? Any confidence or conviction. The Court has extended religious freedom in its different stages ensured by the Constitution and stretched out it to hones and even outer plain demonstrations of the person. Religion is more than negligible matter of confidence. The Constitution by ensuring flexibility of still, small voice guaranteed internal parts of religious conviction. Furthermore, outer articulation of it were secured by ensuring appropriate to unreservedly, rehearse and engender religion. Perusing and presenting sacred texts, for example, Ramayana or Quran or Bible or Guru Granth Sahib is as much a piece of religion as offering nourishment to god by a Hindu or showering the symbol or dressing him and setting off to a sanctuary, mosque, church or gurudwara.

Marriage, legacy, separate, transformation are as much religious in nature and substance as some other conviction or confidence. Going round the fire seven adjusts or giving assent before Qazi are as considerably matter of confidence and still, small voice as the love itself. At the point when a Hindu gets to be change over by recounting Kalma or a Mulsim gets to be distinctly Hindu by discussing certain Mantras it involves conviction and still, small voice. Some of these practices saw by individuals from one religion may seem, by all accounts, to be over the top and even violative of human rights to individuals from another. Nevertheless, these are matters of confidence. Reason and rationale have little part to play. The estimations and feelings must be cooled and tempered by genuine exertion. However, today there is no Raja Ram Mohan Rai who courageous realized that climate which prepared for Sati nullification. Nor is a statesman of the stature of Pt. Nehru who could pilot through, effectively, the Hindu Succession Act and Hindu Marriage Act changing the standard Hindu Law. The attractive quality of uniform Code can scarcely be questioned. Be that as it may, it can concretize just when social atmosphere is legitimately developed by first class of the general public, statesmen among pioneers who as opposed to increasing individual mileage transcend and stir the masses to acknowledge the change.

The tremendous differing qualities of the individual laws, alongside the dedication to which they are cling to, makes consistency of any kind exceptionally hard to accomplish. Advance issues emerge when one tries to disconnect governmental issues from this issue. Any remark, supposition or dialog dependably incorporates some political heavenly attendant to it as real Indian political gatherings have their stand clear on the point. Another issue is that many individuals still don’t comprehend what the uniform common code really implies. Significantly every one of the minorities are still in the midst of the misinterpretation with respect to Uniform Civil Code and in this way it turns out to be amazingly hard to get their interest in the level headed discussion or their perspectives in regards to it. Some vibe that the total execution of Uniform Civil Code may bring about lost social character of various religion.

 

CONCLUSION

Today, a word is very common and is in trend and that is “the need of the hour”. In today’s time, it goes along with one and all. We all had become morally ill. We had developed a tendency where we evaluate the thing keeping ourselves in front. We want to solve every issue by ourselves and in no time. We do not bother to know about the consequences, which others are going to face. Mahatma Gandhi once said that to term a law a good law we should see that “do it is going to uplift the most miserable person or not”. The supporters of UCC advocate that this law would uplift the women. We are having the examples of Hindu Law, which became  codified. Do it really uplifted women or went contrary to them? The statistics shows the later one is correct. But we shouldn’t forget the warning of Dr. B.R. Ambedkar,

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

Although Ambedkar said it for the constitution, but it stands true to every law and the Personal Laws are no exception to this. We should try to impart knowledge and build a wisdom within the communities so that they themselves thrive for the Uniform Civil Code and make a law, a good law whether the law be a good or bad one. A forceful implementation of law would ultimately fail if the common public do not understand it. In return, it will give a massive explosion of disregard to law and nothing more.

If we ban polygamy men will continue to be polygamous. How will you protect women in such relationships? That is the core issue when we are examining the issue from the point of gender justice. Sometimes women are aware of the first marriage, and sometime the men deliberately suppress the information. Among Muslims where polygamy is permitted, each woman has the same status and cannot be deprived of her rights. But when polygamy is banned, men can take full advantage, exploit women sexually and then discard them without any economic consequences visiting them for violating the law, merely by stating that the woman is his second wife and he has a first marriage subsisting. Due to this the Protection of Women from Domestic Violence Act, 2005 attempted to secure the rights of women in such relationship by coining a word “marriage like relationship”.

In this country, the ground should be prepared first; then if the seed is sown, the plant will come out best and if the things are done against the nature of the seed it will ultimately die. We should not force someone to think like the others are thinking. We should let the people be ready to understand these concepts and that could only be done by imparting knowledge and by not by tyranny of law or majority.

On one hand we should enhance the tolerance and on the other hand we should continuously try to make others understand the concept of UCC and on the counter if we become intolerant then aim and object of law would disappear and once one assumes an attitude of intolerance, there is no knowing where it will take one. Intolerance, someone has said, is violence to the intellect and hatred is violence to the heart. Intolerance and wisdom are two opposite poles.

And till the date we achieve our goal we should let people understand and tackle their business themselves even if it slightly go contrary to the standard moral because the freedom of doing mistake is the core of freedom for which Mahatma Gandhi said:

“जब तक गलती करने की स्वतंत्रता ना हो तब तक स्वतंत्रता का कोई अर्थ नहीं है।

(Until you have the freedom of making mistakes, you does not have any freedom.)

 

SUGGESTIONS

Firstly, it is very important to restructure the conception about Uniform Civil code by bringing reformation within personal laws instead of bringing diversified personal laws under single and uniform law.

Secondly, emphasis should be given on making new laws regarding rectification of conflict amongst personal laws.

Thirdly, there should be clear understanding regarding values of any personal law and it should be respected to its maximum spirit.

 

 

[1] Swami Vivekananda, Toward the Parliament of the World’s Religions Address at Chicago, America (11-17 September, 1893).

[3] Richard Shweder, Engaging Cultural Differences: The Multicultural Challenge In liberal democracy (Russel Sage Foundation).

[4]George Bühler, The Laws of Manu 830 (Oxford University Press, 25th vol., 2005).

[5] Thomas Macaulay, Minute Of Macaulay -Biography of Macaulay 322 (John Clive’s Magnificent, 1973).

[6] Devid Levinson, Encyclopaedia of Crime and Punishment 829 (Sage Publications, 1st Vol. 2002); See also: Donald R. Davis Jr., Ātmastuṣṭi as a Source of Dharma, Journal of the American Oriental Society 279-96 (2007); See also: Werner Menski, Hindu Law: Beyond Tradition and Modernity 126 (Delhi: Oxford U.P., 2003); See also: Domenico Francavilla, The Roots of Hindu Jurisprudence: Sources of Dharma and Interpretation in Mīmāṃsā and Dharmaśāstra. Corpus Iuris Sanscriticum 165-76 (Vol. 7).

[7] Scott Kugle , Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia 257-313, (Modern Asian Studies 2001).

[8] Tomothy Lubin et al,Hinduism and Law: An Introduction Chapter 1  ( Lubin and Davis, 2010); See also: Washbrook, D. A., Law, State and Agrarian Society in Colonial India  ( Modern Asian Studies 1981).

[9]   Id at 3.

[10] Kunal Parker, Religion and Personal Law in Secular India: A Call to Judgment 184-199 (Gerald James Larson, 2001).

[11] Chandra Mallampalli , Christians and Public Life in Colonial South India: 1863-1937 59-64 (Routledge,2004).

[12] Ludo Rocher, Indian Response to Anglo-Hindu Law Journal of the American Oriental Society 419–424 (1972).

[13] Hindu Marriage Act, 1955.

[14] Supra.

[15]  Sakuntala v Nilakantha & Other, (1973) Mh. L J 310.

[16] Special Marriage Act, 1954.

[17] Art.44, Constitution of India, 1949.

[18] Art. 37, Constitution of India, 1949.

[19] P.A. Inamdar v. State of Maharashtra, 2004 8 SCC 139.

[20] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.

[21] Mohd. Hanif Quareshi & Others v. The State Of Bihar, AIR 731(1959) SCR 629; See also: Sajjan Singh v. State of Rajasthan, AIR 845 (1965) SCR (1) 933.

[22] Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945.

[23] Pannalal Bansilal Patil v. State of Andhra Pradesh, (1996) 2 SCC 498.