An Open Access Journal from The Law Brigade (Publishing) Group 338

RIGHT TO LIVE AND THE MINING ENVIRONMENT

Written by Dr. Sakuntala Gouda

Lecture, Capital Law College, Bhubaneswer, Odisha

INTRODUCTION

The environment which surrounds us and which consists of plants and animals, non-
living objects as water, air, light, soil, temperature etc is being damaged and disturbed, it
is in peril. Our genetic composition, our whole existence, as also the existence and survival
of many animals and plants is threatened. It is really depressing to note that the water we
drink, the air we breathe is all polluted. We are now facing the serious ecological crisis like
acid rain, global warming, water and air pollution, the extinction of numerous animal and
plant species, the loss of bio-diversity and ozone depletion. The depletion of the Ozone Layer
causes skin cancer, cataracts, damage to body's immunity system, mutation, loss of crop
productivity and upsetting the balance of ecosystems. The need of the day is therefore to
bring greater awareness for harmonizing population dynamics and socio-economic
development and harnessing of natural resources with due care to see that the quality of the
environment does not deteriorate.

Mining has been and continues to be a major contributor to the economic growth of most
of the developed and developing countries. India possesses vast and diverse natural resources,
of which the exploration, extraction and utilization of minerals are currently considered to
be one of the most significant factors in the economic growth and development of the
country, India ranks among top five global players in terms of production of several
important minerals.

However, unregulated mining activities also have adverse effects on the environment,
which may poses threat to human health and well being. A high environmental cost which
has been associated with years of unregulated mining and mineral-processing activity
made it realised to strike a balance between mineral developments on the one hand and the
greening of the environment on the other.

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Mining in Orissa and its impact on Environment

It is true Orissa is endowed with vast resources of minerals particularly Chromite and
Bauxite. But the area in which these minerals are located in inhabited by tribals who mainly
depend on the forest environment and its products, without disturbing the environment. No
doubt by exploitation of these mines the government plans to raise huge foreign exchange
besides meeting the domestic needs that provide some money and employment opportunities yet
displacing thousands of people depending of these forest and mining areas. This apart mining
activities create environmental pollution by way of deforestation dumping of semi-toxic matters and
creating large areas of void. The effect of mining over livestock, perennial water system, the
habitat and agriculture on which lakhs of people depend for subsistence, is too large to be accounted
for.

If the formal adverse affects of a mining activity are taken into consideration, the possible
benefits that result out of the mining activities and the income derived weigh less. Therefore there
is need to conserve the mineral wealth exploiting only the minimum needed.

Environmental degradation in mining areas is caused by methods of mining, ore benefaction, soil/
sub-soil/ slope destabilization, pollution of water resources, ambientairy transquality, harm to
vegetation covers of the bio-resources, solid waste, tailing etc.

International efforts on Environment

The earth's atmosphere is a common heritage. The environmental issues take in to

account the human being, and not the State as a unit. It is a global issue. The Stockholm
Declaration recognized that man is the part of nature and life depends on it. U.Thant, the
Secretary General, United Nations, in Stockholm Conference appealed "Like or not we are
travelling together on a common planet and we have no national alternative but to work
together, to make an environment in which we and our children can live a full and peaceful
life".

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The declaration in the United Nations Conference on human environment from 5th to
16th June, 1972 at Stockholm considered the need for a common outlook for common
principles to inspire and guide the people of the world in the preservation and enhancement
of human environment. The long and tortuous evolution of the human race was not possible
without rapid acceleration of science and technology. The man has achieved the ability to
transform his environment in countless ways and on an unprecedented scale. This power
if used wisely can bring benefits of development and opportunity to enhance the quality of
life. The wrong application on the other hand can do incalculable harm to human beings and
human environment. The members to the declaration felt that millions continue to live far
below the minimum level required for a decent human existence, deprived of adequate food
and clothing, shelter and education, health and sanitation. The industrialist countries pose
gigantic environmental problems. The natural growth of population on preservation of
environment. With the people as the most precious commodity in the world and their
progress, social wealth with development and science and technology continue to
transform human environment. The members felt that a point has reached when we must
shape our actions with a more prudent care for environmental consequences for achieving
for ourselves and our posterity, a better life in an environment, more in keeping with
human needs. What is needed is a enthusiastic but calm state of mind. The freedom should
not be misused for manipulating environment. The Stockholm Declaration proceeded to
declare the principle : State of common conviction that the man has fundamental right to
freedom, equity and adequate conditions on life permitting life of dignity and well being and
bears solemn responsibility to protect and improve the environment for present and future
generations. The natural resources are common to all and must be safeguarded for the
benefit of present and future generations. The capacity of the earth to produce vital
renewable resources must be maintained and wherever practicable restored and improved.
The discharge of toxic substances and the release of heat in the quantities and the
concentration should not exceed the capacity of the environment to tender them harmless. The
state should take positive steps to prevent pollution of the seas by substance hazardous
to human health, living resources and marine life. The economic and social development is
essential. It should however be such that would not adversely affect the present or future
development potential nor should hamper attainment of better living condition for all. The
resources must be made available to preserve and improve the environment. A rational

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management of resources should be ensured to make development compatible with a need to

protect and improve the human environment for the benefit of the population. The planning
should be rational to avoid adverse affect on environment and obtaining maximum
social economic and environmental benefits. Science, technology and education should be
applied for identification, avoidance and control of environmental risks.

Environmental concern in India

Compassion towards nature was preached in all regions and by all religions.
Don't make mischief in the earth's resources says Holy Quaran. Gautam Buddha's
religion was based on experience and logic. He believed on evolution of man. In the
contemporary period Sikhism teaches that the life is made of five basic elements i.e. earth,
air, water, fire and sky.

Kautilya, the Prime Minister of Magadh, during the regime of Chandra Gupta
Maurya, 300 B.C. in his Arthshastra exhaustibly dealt with the question of environmental
protection. He laid down the rules for protection and up gradation of environment
minutely, meticulously and with great details. Mauryan King Ashok depicted
exemplary compassion for wild life and prohibited kill ing of certain species of
creatures.

The Colonial rule, however, disregarded ancient prudence, cultivated ruthless

intelligence to exploit environment for their material gain. The legacy of imperialism and
colonialism, concealing a sense of ownership over environment, propagated its consumption
for wealth. Growth of industrialization and lack of awareness to handle the fast pace of
development, has brought into focus many environmental issues and in its response
environmental legislations.

After independence, in the Constitution of India which was adopted, it is clearly

stated that it is the duty of the state to 'protect and improve the environment and to
safeguard the forests and wildlife of the country'. It imposes a duty on every citizen 'to protect
and improve the natural environment including forests, lakes, rivers, and wildlife'. Reference
to the environment has also been made in the Directive Principles of State Policy as well

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as the Fundamental Rights. The Department of Environment was established in India in

1980 to ensure a healthy environment for the country. This later became the Ministry of
Environment and Forests in 1985.

The constitutional provisions are backed by a number of laws - acts, rules, and
notifications. The EPA (Environment Protection Act), 1986 came into force soon after the
Bhopal Gas Tragedy and is considered an umbrella legislation as it fills many gaps in the
existing laws. Thereafter a large number of laws came into existence as the problems
began arising, for example, Handling and Management of Hazardous Waste Rules in 1989.

Article 21 and Environment

Environmental law has found special mention in the Indian Constitution. Prior to the
42nd amendment, environment protection was availed through Article 21 of the Constitution.
Article 21 runs thus 'No person shall be deprived of his life or personal liberty except
according to procedure established by law. It ensures to every person the fundamental right
of life and personal liberty3 Justice P.M. Bhagwati in Francis Coralie v Union Territory of
Delhi4 stated:

We think that the right of life includes the right to live with human dignity and all
that goes alongwith it, namely the bare necessaries of life such as adequate nutrition, clothing,
shelter over the head and facilities for reading, writing and expressing oneself in diverse
forms, freely moving about the mixing and commingling with fellow human being.

In Subhash Kumar v State of Bihar 5, the Court observed:

Right to live is a fundamental right under Article 21 of the Constitution and it includes
the right of enjoyment of pollution free water and air for full enjoyment of life. If anything
endangers or impairs that quality of life in derogation of laws, a citizen has the right to have
recourse to Article 32 of the Constitution for removing the pollution of water or air which
may be detrimental to the quality of life.

In M.C.Mehta v.Union of India (1987,popularly known as Oleum Gas Leakage Case),the

Supreme Court once again impliedly treated the right to live

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in pollution free environment as a part of fundamental right to life under Article 21 of

the constitution.

In M.C. Mehta v. Union of India, (1987, Kanpur tanneries case), the matter of pollution
of Ganga river by the tanneries in Kanpur was brought to the notice of the Court by the
petitioner, a social worker, through public interest litigation. The Supreme Court ordered the
closure of tanneries at Jajman near Kanpur, polluting the river Ganga. The Court said that
notwithstanding the comprehensive provisions contained in the Water (Prevention and
Control of Pollution) Act and the Environmental (protection) Act, no effective steps were
taken by the Government to stop the grave public nuisance caused by the tanneries at
Jajman, Kanpur. In the circumstances, it was held that the Court was entitled to order the
closure of tanneries unless they took steps to set up treatment plants.

In Vellore citizens' Welfare Forum v. Union of India (popularly known as T.N.

Tanneries case), the Supreme Court held that in view of the constitutional provisons
contained in Articles 21,47,48-A, 51-A(g) and other statutory provisions contained in the
Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981, and the Environment (Protection) Act, 1986, the "precautionary"
principles and the "polluter pays" principle are part of the environmental law of the country.
In other words, two basic principles of sustainable development can be derived from
various provisions including the right to life under Art 21 of the Constitution.

In M.C. Mehta v. Union of India, (1992), the Supreme Court took note of
environmental pollution due to stone crushing activity in and around Delhi,
Faridabad and Ballabgharh complexes. The court was conscious that
environmental changes are the inevitable consequences of industrial development in
our country, but at the same time the quality of environment cannot be permitted to be
damaged by polluting the air, water and land to such an extent that it becomes a health
hazard for the residents of the area. Thus the court further observed that 'every citizen
has a right to fresh air and to live in pollution free environment.' Thus the Supreme
Court once again treated it as violation of Article 21 of the constitution and passed the
order in absolute terms under Article 32 directing the stone crushing units to stop
their activities in Delhi, Faridabad and Ballabgharh complexes .

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The role of judiciary in creative constitutional interpretation and evolving suitable

principles and remedies, especially by building consensus, and motivating the state and
society towards better protection of environment, has further ordered the government
to rehabilitate these stone crushers in "crushing zone" within the period of six months.
In a significant judgement in Indian Council for Enviro-Legal Action v. Union of India"
(1996), the Supreme Court has held that if by the action of private corporate bodies a
person's fundamental right, is violated the court would not accept the argument that is not
"state" within the meaning of Art 12 and, therefore, action cannot be taken against state.
If the court finds that the Governmental or authorities concerned have not taken the action
required of them by law and this has resulted in violation of right to life of the citizen. It will
be the duty of the court to intervene. In this case an environmentalist organization filed a writ
petition under Art 32 before the court complaining the plight of people living in the vicinity of
chemical industrial plants in India and requesting for appropriate remedial measures. The fact
was that in a village Bichari in Udaipur district of Rajasthan an industrial complex had
developed and respondents have established their chemical industries therein. Some of the
industries were producing chemicals like oleum and single phosphate. Requisite
licences were not obtained by the respondent nor they had installed any equipment for treatment
of toxic effluents discharged by them. As a result of this the water in the wells got polluted.
It spread diseases, death and disaster in the village and surrounding areas. The villagers
revolted and ultimately these industries were closed. But the consequences of their action
remained in existence causing damage to the village. The court requested the National
Environmental Engineering Research Institute to study the situation and to submit their
report. In the technical report it was found that 720 tonnes out of 2440 tonnes of sludge was
still there. With a view to conceal it from the inspection team respondents had dispersed
it all over and covered it with earth. Inspite of the court's order they did not remove the sludge.

The Supreme Court held that the writ was maintainable and directed the government
and the authorities concerned to perform the statutory further ordered the government
to rehabilitate these stone crushers in "crushing zone" within the period of six months. In
a significant judgement in Indian Council for Enviro-Legal Action v. Union of India" (1996),
the Supreme Court has held that if by the action of private corporate bodies a person's
fundamental right, is violated the court would not accept the argument that is not "state"
within the meaning of Art 12 and, therefore, action cannot be taken against state. If the

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court finds that the Governmental or authorities concerned have not taken the action
required of them by law and this has resulted in violation of right to life of the citizen. It will
be the duty of the court to intervene. In this case an environmentalist organization filed a writ
petition under Art 32 before the court complaining the plight of people living in the vicinity of
chemical industrial plants in India and requesting for appropriate remedial measures. The fact
was that in a village Bichari in Udaipur district of Rajasthan an industrial complex had
developed and respondents have established their chemical industries therein. Some of the
industries were producing chemicals like oleum and single phosphate. Requisite licences
were not obtained by the respondent nor they had installed any equipment for treatment of toxic
effluents discharged by them. As a result of this the water in the wells got polluted. It
spread diseases, death and disaster in the village and surrounding areas. The villagers revolted
and ultimately these industries were closed. But the consequences of their action remained in
existence causing damage to the village. The court requested the National Environmental
Engineering Research Institute to study the situation and to submit their report. In the technical
report it was found that 720 tonnes out of 2440 tonnes of sludge was still there. With a view
to conceal it from the inspection team respondents had dispersed it all over and covered it
with earth. Inspite of the court's order they did not remove the sludge.

The Supreme Court held that the writ was maintainable and directed the government
and the authorities concerned to perform the statutory provided new vista to the right to
environment. From a perusal of the trend as reflected in the cases discussed, it is evident
that there has been a new development in India and right to live in a healthy and pollution
free environment is considered as the fundamental right under Art 21.

The Apex court has stressed on the need to strike a just balance between the tapping
of the natural resources for the purposes of the socio-economic development and the
preservation and protection of the ecology, the environment and the natural wealth and
resources. It added that his can be possible by the adoption of a long-term perspective
planning and effective steps in the direction of implementing the same, otherwise there will
not only be a total neglect and failure on the part of the administration to attend to an urgent
task in the national interest but also a violation of the fundamental rights conferred by Article
14 and 21 of the Constitution.

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Supreme Court dealing a body blow to the mining company that unlawfully housed huge
quantity of non-one and manganese one, the apex court order for the necessary of 100%
compensation in lieu of the excess or lifted.

Deposing of a writ petition filed by common cause in a case of rampant illegal mining
in Odisha, the apex court held that they can be no compromised on quantum of compensation
that should be recovered from any defaulting lessee it should be 100%.

A clutch of minors both captive and non-captive have to cough up the penalty as a result
of this order. Mining companies includes, Tata Steel, SL Mining and industry limited, Indrani
Patnaik, Rungta Mines, Serajuddin and Mines and company SAIL, Aditya Birla and even state
run entities Odisha Mining Corporation are the duck for the violation of the mining Law.

The Shah Commission of inquiry set up in 2010 by the Central Govt. to look into the
mining irregularities in Odisha had computed the loss at more than Rs. 61,000 crore. But for
the purpose of judgement on Odisha mining Scam the Supreme Court has not relied on the
figure but the court has gone along with the recommendation of the Central Empower
Committee i.e. why out of 187 mines, 102 are closed and some of lease holder may not in
position to pay the penalty.

Expending the Environment jurisprudence the court for first time has held that violation
of environment and Forest Law amounted to illegal Mining and the value of the Ore so produced
on sold can be recovered from the mine owner.

Short Comment:

When we are talking about right to live and personal liberty and safety related to
environmental pollution we have to take effective steps while taking decision on matter of
concerning ecology.

Now the time has reacted when we must shape our action with more prudent care for
environmental consequences for achieving for ourselves and for our posterity. The natural are

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common to all and must be safeguarded for the benefit of present and future generation. The
capacity of the earth to produce vital renewable resources must be maintained.

The mining industry in India is infamous for human right violation and environment pollution
almost all of India’s minerals are located in region as that hold most of its forest tribal
population and major river system. Due to mining industry conversion of green landscapes into
barren lands, transformation of agricultural lands into wastelands, and pollution of air, water
and soil are some of the common consequences of mining. The terrestrial and aquatic
ecosystems adjoining the mines become adversely contaminated leading to loss of biodiversity
and depletion of other natural resources. All such environmental perturbations exert
tremendous pressure on human health and socio-economic of the society. These in turn, have
multifaceted repercussion at local, regional and global levels.

These is no dearth of legislations on environmental protection from mining activities in India

but their enforcement has been far from satisfactory. Hence, there is need for the effective and
efficient enforcement of the constitutional mandate and other environmental legislations.

In order to ensure efficient and effective enforcement of law, it is necessary to set up an

Adjudicatory Body which should consist of legal as well as technical expert. Caring for
regulating and protecting the environment is essentially a desire to see that national
development should proceed along the rational sustainable laws.

At the same time all necessary steps and care should be taken by the person those who are
engaged

In such those may be skilled person or unskilled person.

The concept of sustainable development is one of the happy union between environmental
value and development needs. Sustainable use of existing resources is one of such example.
On the other

Hand the law maker lack sufficient awareness of environmental problems which restrict
formulation of comprehensive legislation on environment .The National Environment Tribunal
Act, 1955 is yet to be enforced. Moreover collective effort of the people and constructive

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function of government will meet the challenges of mining pollution and environment
degradation.

Conclusion

Environment protection is a practice of saving the environment, on individual,

organizational or governmental level. With the unplanned industrial and agricultural
development, the pressure on natural resources has considerably increased and due to
man's increased interference with the nature, the problem of environment pollution has
increased manifold. Environmental destruction and pollution has seriously threatened the
human life, health and livelihood. Thus, there has been a thrust on the protection of
environment the world over. If the quality of life is to be assured to the present generation
and if the nature generation is to be saved from the environmental catastrophe, the nature's
gift to us in the form of flora and fauna has to be preserved in the natural form. The object of
environmental law is to preserve and protect the nature's gifts such as water, air, earth and
atmosphere from pollution.

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