Right to have a Clean and Healthy Environment: Analysing the Judicial Trends
The Article ‘Right to have a Clean and Healthy Environment: Analysing the Judicial Trends‘ by Naveen Talawar is a comprehensive study of environmental rights from a human rights perspective. The Article point to the Stockholm Conference‘s first principle which gave significance to living in a good and clean environment. A wide discussion of Article 21 and its interpretation… Read More »
The Article ‘Right to have a Clean and Healthy Environment: Analysing the Judicial Trends‘ by Naveen Talawar is a comprehensive study of environmental rights from a human rights perspective. The Article point to the Stockholm Conference‘s first principle which gave significance to living in a good and clean environment. A wide discussion of Article 21 and its interpretation by the Indian Judiciary gave paramount value to the right to live in a clean and healthy environment as being an essential feature of the right to life.
Even United Nations Human Rights Council declared this principle of a clean and healthy environment. Various treaties, charters, and conferences have been discussed in light of the right of every individual to live in a clean and healthy environment. The efforts by the Indian Judiciary are applaudable. Truly said by Lailah Gifty Akita,
“Environmental cleanliness begins with each individual desire to be clean”.
Introduction: Right to have a Clean and Healthy Environment
The planet earth was made to fulfil the fundamental needs of all living organisms who inhabit it. Animals, birds, worms, hydras, various plants, creepers, grass, and the huge forest are all examples of living organisms that rely on clean air, clean water, and sacred soil to thrive.
These are the necessary components for life to survive on this planet. Clean air, clean drinking water, rich soil, and healthy ecosystems are among the most fundamental building blocks of human health and must be guaranteed by the welfare state. The quality of life is determined by the surroundings. When the ecosystem is affected, the future of all creatures is jeopardized. As a result, a person’s right to live in a clean and healthy environment is a fundamental human right.
The first principle of the Stockholm Conference, held in 1972, is that
“man had the basic right to an adequate standard of living in a quality environment that enabled a life of dignity and well-being.”
Similarly, the Indian judiciary has broadened the scope of Article 21 of the constitution’s fundamental right to life and personal liberty, holding that the right to life encompasses the right to a clean and healthy environment.
The right to a clean environment is an all-encompassing right that is essential for the fulfilment of other rights because the environment includes all life. The future of all organisms is jeopardized when the ecology is destroyed. As a result, recognizing and defending the right to a clean environment is essential.
Right to a Clean and Healthy Environment as a Human Right
The right to a healthy environment signifies the recognition of a distinct, independent human right that is not dependent on existing protected rights recognized in international treaties. Previously, the notion of a human right to a healthy environment was seen to be novel, if not subversive. Today, it is generally recognized in international law and supported by a large number of countries.
The 1972 United Nations Conference on the Human Environment ushered in discussions on the human right to a clean environment. It was the first time that the concept of a human right to the environment was brought into international law. Furthermore, the World Commission on Environment and Development’s report proposed that environmental rights be designated as human rights.
In his separate judgment in the Case concerning the Gabcikovo-Nagymaros Project, Justice Weeramantry of the International Court of Justice not only recognized the relationship between environmental protection and human rights but also included environmental protection within the human rights framework. He observed,
“Environmental preservation is… an important aspect of modern human rights philosophy because it is a precondition for many human rights, including the right to health and the right to life itself.” It is hardly necessary to go into detail here, because environmental degradation may jeopardize and weaken all of the human rights enshrined in the Universal Declaration and other human rights treaties.”
Professor Alan Boyle has also pointed out that examining the right to a clean environment from human rights perspective has three benefits:
- it addresses the impacts of environmental issues on individuals rather than states;
- it holds states accountable for environmental governance and implementation, and
- a broader interpretation of economic and social rights to include environmental protection elements acknowledges the existence of a right to a clean environment.
Though environmental rights have been discussed from human rights perspective under the terms “right to a clean environment,” “environmental rights,” and “right to a safe and adequate environment,” these rights have emphasized the anthropogenic dimension, with a healthy environment serving as a prerequisite for a healthy life.
International recognition of the Right to a Clean and Healthy Environment
Several attempts have been made by the international community and non-governmental organizations to promote the right to a clean and healthy environment. Many international and national treaties specifically state that everyone has the right to live in a safe and healthy environment.
The first international organization to develop a right to a clean environment was the United Nations Conference on Human Environment in 1972. The conference recognized the importance of growing government action in environmental preservation and conservation to prevent environmental deterioration, and it was arguably the first important effort to conserve and defend the human environment on a worldwide scale. It states that
“Man has the fundamental right to freedom, equality, and adequate living conditions in a quality environment that allows a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”.
Similarly, the Rio Declaration of the United Nations Conference on Environment and Development (UNCED) emphasizes that humans have the right to a healthy and productive life in balance with nature. The 1966 International Covenant of Economic, Social, and Cultural Rights acknowledges
“everyone’s right to the highest achievable quality of bodily and mental health.”
It puts correlative responsibilities on states, including the need to take the required efforts to enhance all elements of environmental hygiene.
The African Charter on Human and People’s Rights was the first regional treaty to include the right to a healthy environment as a component of the right to health. The majority of governments from the Organization of African Unity, as well as certain non-governmental groups, ratified it in 1986, calling for the right to a clean environment. According to Article 24 of the Charter, “all individuals should have the right to a substantially satisfactory environment suitable to their growth.”
The Protocol on Economic, Social, and Cultural Rights to the American Convention on Human Rights of 1988 included the right to live in a safe and healthy environment. It states,
“Everyone shall have the right to live in a healthy environment.”
It imposes State parties to encourage environmental protection, preservation, and enhancement.
The right to live in dignity in a sustainable global environment is guaranteed by the Hague Declaration on the Environment of 1989. It also advocates for the preservation of the global economy and suggests a stronger authority inside the UN system to safeguard the earth’s atmosphere. The 1989 Convention on the Rights of the Child addresses the availability of safe drinking water as well as the dangers and risks of pollution. Article 24 of the aforementioned convention states that a child has the right to enjoy the highest attainable standard of health.
Almost two decades after the Stockholm Conference, the UN General Assembly reaffirmed the wording of the Stockholm Declaration in Resolution 45/94, noting that it, recognizes all persons have the right to live in an environment sufficient for their health and well-being.
The United Nations General Assembly passed a landmark resolution in July 2010 recognizing the right to safe and clean drinking water and sanitation as a human right vital for the full enjoyment of life and all human rights. The human right to water and sanitation ensures that everyone has access to enough quantities of safe, physically accessible, and affordable drinking water and sanitation.
On October 8, 2021, the United Nations Human Rights Council adopted a resolution recognizing the right to a clean, healthy, and sustainable environment as a human right. All of these international declarations and agreements demonstrate the rising societal importance of maintaining a healthy environment for everyone.
The Judicial Response towards the Right to a Clean and Healthy Environment
Indian courts have played a crucial role in interpreting laws in ways that have aided not just environmental protection but also sustainable development. The Indian higher judiciary has emerged as the custodian and guardian of the people’s fundamental rights, and via its active attitude, it has secured a number of additional essential rights that are implied but not explicitly specified in the constitution.
The right to a pollution-free environment is enshrined in the country’s basic jurisprudence. Article 21 of India’s constitution guarantees the right to life as a fundamental right. The supreme court has broadened the scope of Article 21’s fundamental right to life and personal liberty to include environmental preservation. It took the Supreme Court a long time to declare expressly that Article 21 of the Indian constitution includes the right to live in a healthy environment.
In a progressive elaboration of environmental jurisprudence, the Supreme court raised the right to a clean and healthy environment to the status of a basic human right under Article 21 of the constitution. The expansion of such a constitutional umbrella to environmental concerns through dynamic judicial activism has been advantageous to India’s environmental governance. The supreme court has enlarged the notion of life from simple existing to meaningful living through various judicial decisions.
A number of cases have expanded the scope and application of the right to life. In Francis Coralie Mullin v. Union territory of Delhi (1981 AIR 746, 1981 SCR (2) 516), the Supreme Court held that Article 21’s right to life cannot be limited to animal existence. It implies a lot more than simply physical survival.
Further, in Maneka Gandhi v. Union of India (1978 AIR 597), the court stated that any regulation affecting a person’s life and liberty must pass the constitutional scrutiny of articles 14 and 19 and that the procedure established by law for restricting a person’s liberty must be reasonable, fair, and just.
The Supreme Court stated for the first time that people’s right to live in a healthy environment with minimal disturbance to ecological balance should be protected in Rural litigation and entitlement Kendra v. State of Uttar Pradesh (1985 AIR 652).
The Supreme Court’s decision in the MC Mehta cases indirectly affirms the right to a healthy environment. The supreme court held in Subhas Kumar v. the State of Bihar (1991 AIR 420, 1991 SCR (1) 5), that the right to life includes the right to enjoy pollution-free water and air for the full enjoyment of life.
In Chhetriya Pradushan Mukti sangars Samiti v. State of Uttar Pradesh (1990 AIR 2060), Justice Sabyasachi Mukherjee had previously said that
“every citizen has a basic right to enjoy the pleasure of quality of life and livelihood as envisioned in article 21 of the Indian constitution.”
The supreme court, while affirming the constitutionality of the Bhopal gas leak disaster Act, 1985, stated that Article 21 protects citizens’ right to a pollution-free environment.
It was observed in Virender Gaur v. State of Haryana (Civil Appeal No: 9151 of 1994) that
“enjoyment of life, including the right to live with human dignity, includes the protection and preservation of the environment, ecological balance free of pollution of air, water, and sanitation, without which life cannot be enjoyed.”
As a result, a clean environment is an important aspect of the right to a healthy life audit would be a humane and healthy environment.
“Enjoyment of life and its attainments and fulfillment guaranteed by article 21 of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be enjoyed,” the Andhra Pradesh high court stated in T. Damodar Rao v. Special Officer, Municipal Corporation of Hyderabad (AIR 1987 AP 171).
In L.K. Koolwal v. State of Rajasthan (AIR 1988 Raj 2), the Rajasthan high court found that residents had the basic right to seek affirmative action under Article 21 in concerns pertaining to health, sanitation, and the environment.
The Karnataka high court recognized the right to a clean environment as a core human right in V. Lakshmipathy v. State of Karnataka (ILR 1991 KAR 1334). The right to life is inherent in Article 21, and it necessitates the component of quality of life which can only be achieved in a good environment.
In order to reduce smoking in public places, which has a negative impact on others the Kerala high court ruled in K. Ramakrishnan v. State of Kerala (AIR 1999 Ker 385) that the maintenance of health and the environment falls under the purview of Article 21 and that a healthy body is the foundation of all human activities.
In RS Verma v. State of Rajasthan (AIR 2004 Raj 175), the court stated that
Article 21 protects an individual’s life and liberty while also ensuring a life worth living. It scarcely needs to be stated that life is not worth living without excellent health. Environmental and ecological conservation, preservation, and maintenance are required to sustain citizens’ physical and mental wellbeing.”
The court held in Sayeed Masood Ali v. State of Madhya Pradesh (AIR 2001 MP 220) that the right to life encompasses the right to health, and that health gives life a peaceful and pleasant meaning. The term “life” is used in Article 21 of the constitution to describe a noble and humanitarian manner of existence.
“People have a constitutional and statutory right to live in a clean city, and the authorities concerned have a required responsibility to collect and dispose of garbage material created from diverse sources in the city,” the Supreme Court said explicitly in B.L. Wadhera v. Union of India (1996 SCC (2) 594).
In MP. Rambabu v. Divisional forest officer (2002 (1) ALD 728), the Andhra Pradesh high court declared that under Article 21 of the constitution, the right to a decent living, a pleasant environment, and ecological preservation must take precedence over the statutory right to own and enjoy the property of.
In the case of Hinch Lal Tiwari v. Kamala Devi (AIR 2001 SC 3215), the court determined that preserving ecological balance necessitates the protection of community material resources such as woodlands, tanks, ponds, and hillocks so that people can have a high quality of life which is the essence of the Article 21.
The Supreme Court unanimously decided in Andhra Pradesh Pollution Control Board v. MV Nayudu (1994 (3) SCC 1)that
Article 21 establishes a right to a safe and clean environment, putting environmental concerns on par with human rights.
The Allahabad high court stated in SK. Garg v. State of UP [(1998) 2 UPLBEC 1211] that the right to water is part of the right to life guaranteed by Article 21, and the Supreme Court of India stated in Narmada Bachao Andolan v. Union of India [(civil) No. 319 of 1994 (2000) ] that water is a basic need for human survival and is a part of the right to life and human rights enshrined in article 21.
The Supreme Court declared in Milkman colony Vikas Samiti v. State of Rajasthan [Appeal (civil) 246 of 2007] that the right to life includes having clean surroundings, which contributes to a healthy body and mind.
“No one may be permitted to infringe on the right to health of others, given under article 21, under the guise of celebration,” the Supreme Court said in Arjun Gopal and others v. Union of India and others [Writ Petition (C) NO. 728/2015].
“We cannot risk the lives of many for the sake of a few,” Justice Shah said. “Our first concern is the right to life of innocent individuals.”
By dealing with and addressing numerous environmental challenges, India’s courts have played a unique role in continuously widening the idea of a decent living. The right to a clean and healthy environment is not only a human right but also a requirement for human and non-human creatures in nature to survive. The Indian court has preserved the right to a clean and healthy environment, which is established in Article 21 of the Constitution, by its activist role.
References
[1] International covenant on economic, social, and cultural rights,1966.
[2] Declaration of the United Nations conference on the human environment, 1972.
[3] The African Charter on human and people’s rights, 1986.
[4] Declaration of the Hague on the environment, 1989.
[5] Convention on the rights of the child, 1989.
[6] The united nations conference on environment and development,1992.
[7] General assembly resolution, 45/94 “need to ensure a healthy environment for the wellbeing of individuals”, 1990.
[8] General assembly resolution, 65/292, “ the human right to water and sanitation”, 2010.
[9] General assembly resolution, 48/3, “human right to clean, healthy and sustainable environment”, 2021.
[10] ShyamDivan and Armin Rosencranz ‘Environmental law and policy in India (Oxford university press, new Delhi, 2nd ed, 2008)
[11] Leelakrishnan’s Environmental law in India (Lexis Nexis, Haryana, 3rd ed, 2013).
[12] Sahasranaman ‘Environmental law’ (Oxford university press, new Delhi,1st ed, 2009 )
[13] Sivakumar s and G. Kameshwar, ‘Article 21: the code of life, liberty and dignity in the Indian constitution (Thompson Reuters, legal, Uttar Pradesh,1st ed, 2020)
[14] VK Agarwal’s environmental laws in India: challenges for enforcement 15 bulletin of the national institute of ecology, (2005)
[15] Sumudu Atapattu ‘The right to a healthy environment or the right to die polluted: the emergence of the human right to a healthy environment under international law’ 16 Tulane environmental law journal (August 27, 2019).
[16] Awuku Emmanuel Opoku, ‘The right to Clean environment: lessons from India and Tanzania’ 27 law and politics in Africa, Asia, and Latin America,1994.
[17] David Boyd, ‘The right to a healthy environment: a prescription in Canada’ 106 Canadian journals of public health. ( October 2015).
[18] David Boyd, ‘The constitutional right to a healthy environment’ 37 lawn journal (2013).
[19] Alan Boyle, ‘Human rights and the environment where next? 23, the European journal of international law (2012).
[20] Lynda Collins, ‘Are we there yet? The right to environment in international and European law’ 3 Mcgill international journal of sustainable development law and policy (2007).
[21] Melissa Fung, the right to a healthy environment core obligation under the international covenant of economic, social and cultural rights’ 14 Willamette journal of international law and dispute resolution (2006).
[22] Gibson morale, ‘The right to clean environment’ 54 Saskatchewan law review (1990).
[23] Gayatri Naik, ‘The right to a clean environment in India: gender perspective’ 21 Vermont journal of environmental law (2020).
[24] Dinah Shelton ‘Human rights to the environment what specific environmental rights have been recognized’ 35 Denver journal of international law and policy, (2006).