Fundamental Right To a Clean and Healthy Environment
The right to a clean and healthy environment has been the focal point of deliberations since time immemorial. A clean and healthy environment is a prerequisite for the existence of human civilization. It is indispensable for the holistic growth of the society. The discourse of human rights builds upon the values of dignity which are inseparable and which… Read More »
The right to a clean and healthy environment has been the focal point of deliberations since time immemorial. A clean and healthy environment is a prerequisite for the existence of human civilization. It is indispensable for the holistic growth of the society. The discourse of human rights builds upon the values of dignity which are inseparable and which cannot be traded-off. Generations after generations have debated upon the place of the right to environment in the discourse of...
The right to a clean and healthy environment has been the focal point of deliberations since time immemorial. A clean and healthy environment is a prerequisite for the existence of human civilization. It is indispensable for the holistic growth of the society. The discourse of human rights builds upon the values of dignity which are inseparable and which cannot be traded-off. Generations after generations have debated upon the place of the right to environment in the discourse of human rights[1].
M Preetha traces the development of the right to a clean and healthy environment as a fundamental right in the Constitution of India.
I. Background
The term environment can’t be defined precisely because it is linked with many subjects like ecology, biology, geography, physiology, psychology etc. but within layman terms, the environment is often defined in terms of the surroundings like natural resources, atmosphere, water bodies, etc., wherein an organism lives. This definition is consistent with Einstein’s statement, “the environment is everything that isn’t me.”
The natural resources form a crucial part of an individual’s life. Not only individuals but also animals are hooked into the environment to fulfil their needs. Man is consistently interacting with the environment to fulfil his needs. These needs include the essential needs of oxygen, food and shelter apart from social needs like entertainment, medicines, etc. [2]
II. Fundamental Rights and the Right to a Clean Environment
In the realm of elemental rights, the foremost essential right is the right to life guaranteed by Article 21 of the Indian Constitution. The article says that the right can’t be removed except consistent with the procedure established by law. To safeguard this right and other fundamental rights, there is a really special feature within the Constitution of India referred to as the right to constitutional remedies.
Article 32 of the Constitution empowers the Supreme Court in an appropriate proceeding to issue not only the writ of mandamus, certiorari, prohibition or quo warranto but also the other direction, order or writ for the enforcement of fundamental rights.
An equivalent power is vested within the High Courts under Article 226 of the Constitution. It is upon the exercise of this power of review that the Courts are called upon to make a decision whether any instrumentality, agency or organ of the state has transgressed or exceeded the bounds of the power conferred upon it and to make sure that the state and the public officials fulfil the requirements of the Constitution and the law under which they exist and perform their duties.
In addition to the chapter on Fundamental Rights, the Constitution of India contains a chapter on Directive Principles of State Policy, which emphasize in amplification of the preamble, that the goal of Indian polity is not individualism, but state, where the state has positive duty to make sure to its citizens social and economic justice and dignity of the individual.[3]
III. Need for Environmental Laws
Today we live in a nuclear arena. Nobody can overlook the harm caused to the environment by the nuclear bombs dropped by aeroplanes belonging to the United States on the Japanese urban communities of Hiroshima and Nagasaki amid the last phases of World War II in 1945.
Day to day innovation and advancement of technology, apart from development, additionally expands the danger to human life. Accordingly, there arises an intense and an acute need of the law to maintain pace with the necessity of society alongside individuals. So now the question of environmental protection may be a matter of worldwide concern and it is not confined to any country or territory[4].
IV. Environment as a Basic Right
The concept of human rights generally emerged after the Second World War, but the right to a healthy environment, together with these human rights, was never a priority. Today, this right is an emerging concept that is being hotly debated within the human rights arena.
A healthy environment is an important aspect of life, not just for citizenry but also for other animals on the planet. Violation, therefore, of the right to a healthy environment is potentially a violation of the essential right to life.
Environmental deterioration could eventually endanger the life of the present and future generations. Therefore, the proper way of life has been utilized in a diversified manner in India. It includes, inter alia, the right to survive as a species, quality of life, the right to measure with dignity and therefore the right to livelihood.
In India, this has been expressly recognised as a constitutional right. Article 21 of the Constitution of India states:
“No person shall be deprived of his life or personal liberty except consistent with procedures established by law.”
The Supreme Court expanded this negative right in two ways. Firstly, any law affecting the personal liberty of any person should be reasonable, fair and just. Secondly, the Court recognised several unarticulated liberties that were implied in Article 21. It is by this alternative method that the Supreme Court interpreted the right to life and private liberty to incorporate the right to a clean environment[5].
V. General Observations
The Indian jurisprudence and constitutional framework on right to a clean and healthy environment as a part of fundamental rights are well developed. Articles 21, 48A and 51A(g) of the Indian Constitution take measures to guard the right to a healthy environment. The fundamental rights in our Indian constitution implicitly protect the health of the citizens and the right to have a clean environment.
Article 49-A
The Article states:
“The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
The said amendment imposed a responsibility on every citizen in the form of Fundamental Duty.
Article 51-A, Clause (g):
Article 51-A (g) which deals with Fundamental Duties of the Citizens states:
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”
Thus, the protection and improvement of the natural environment is the duty of the State (Article 48-A) and every citizen (Article 51- A (g)).
Article 253
Article 253 states:
” The Parliament has the power to make any law for the whole or any part of the country for implementing any treaty, agreement or convention with any other country.”
In simple words, this Article suggests that in the wake of the Stockholm Conference of 1972, the Parliament has the power to legislate on all matters linked to the preservation of the natural environment. Parliament’s use of Article 253 to enact the Air Act and Environment Act confirms this view. These Acts were enacted to implement the decisions reached at the Stockholm Conference[6].
Preamble
At the very outset, the preamble establishes that our country is predicated on the “socialistic” pattern of society, in which the state pays more attention to social problems than on individual problems. The essential idea behind the concept of socialism is to market a “decent standard of living for all” which is only possible in a pollution-free environment.
Pollution is taken into account together with social problems. The state is thus compelled by the Constitution to concentrate on the present social problems to determine a just social order.
This objective of the preamble is vividly reflected in Part IV of the Constitution, which deals with the directive principles of state policy. The preamble further declares India to be a “Democratic Republic”. In such a setup, people have the right to understand and to participate in the governmental policies and access information on environmental policies, something that is extremely important for the success of governmental policies.
Other objectives of the preamble include justice, liberty and equality which find their place within Part III of the Indian Constitution that deals with fundamental rights[7].
VI. International Concerns
International concerns about human rights, health and environmental protection have expanded considerably within the past several decades. In response, the international community has created a huge array of international legal instruments, specialized organs, and agencies at the worldwide and regional levels to enhance and to identify problems in each of the three areas.
Often these have appeared to develop in isolation from each other. Yet the links between human rights, health and environmental protection were apparent from the primary international conference on the human environment, held in Stockholm in 1972[8].
In the three decades since the Stockholm Conference, the links that were established by these first declaratory statements are reformulated and elaborated in various ways in international legal instruments and therefore the decisions of human rights bodies. In large part, these instruments and decisions involve taking a rights-based approach to the topics, albeit with different emphases.
The primary approach, perhaps closest thereto of the Stockholm Declaration, understands environmental protection as a pre-condition to the enjoyment of internationally-guaranteed human rights, especially the rights to life and health. Environmental protection is thus an important instrument within the effort to secure the effective universal enjoyment of human rights.
Environmental treaties generally don’t establish complaint or petition procedures. Within the absence of such procedures, cases concerning the impact of environmental harm on individuals and groups are delivered to international human rights bodies. Additionally, these bodies have sometimes addressed the intersection of human rights, health and environmental protection, general comments and have posed inquiries to states about the topics during their consideration of periodic state reports.
VII. Judicial Pronouncements regarding the Fundamental Right to a Clean and Healthy Environment
- In Rural Litigation and Entitlement Kendra v. State of U.P[9], the Supreme Court prohibited continuance of mining operations terming it to be adversely affecting the environment.
- In Indian Council for Enviro-Legal Action v. Union of India[10], the Supreme Court cautioned the industries discharging inherently dangerous Oleum and H acid. The court held that such type of pollution infringes the right to a wholesome environment and ultimately the right to life.
- In another case M.C. Mehta v. Union of India[11], the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates the right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding the health of the people.
- In the Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association[12], the Supreme Court observed that noise pollution amounts to a violation of Art. 21 of the Constitution.
- In the landmark case Vellore Citizens’ Welfare Forum v. Union of India[13], the Supreme Court allowed standing to a public-spirited social organization for protecting the health of residents of Vellore. In this case, the tanneries situated around the river Palar in Vellore (T.N.) were found discharging toxic chemicals in the river, thereby jeopardising the health of the citizens. The Court asked the tanneries to close their business.
Polluter Pays Principle– It supports a remedial system which is concerned about fixing natural damage. It is a standard in global environmental law where the polluting party pays for the mischief or harm done to the natural environment. It was made a piece of constitutional ruling in Vellore Citizens Welfare Forum v. Association of India.
Precautionary Principle– Environmental measures must anticipate, prevent and attack the reasons for environmental degradation. Lack of scientific certainty ought not to be used as a purpose behind delaying measures.
Public Trust Doctrine– The Public Trust Doctrine principally lays on the rule that specific resources like air, water, sea and the forests have such an extraordinary significance to individuals all in all that it would be completely unjustified to make them a subject of private possession. It was set up in the case of M.C. Mehta v. Kamalnath and Others.
The Doctrine of Sustainable Development– The apex court observed that sustainable development has come to be accepted as a reasonable idea to destroy poverty and improve the nature of human life while living within the conveying limit of the supporting eco-system in Vellore Citizens’ case and the RLEK, Dehradun case.
References
[1] Uday Shankar and Saurabh Bindal, Right to Environment and Right to Development: A Judicial Conundrum, ISSN 2278-4322, Available Here
[2] Right Clean Environment, Available Here
[3]Dr. Mohd. Yousuf Bhat and Dr Syed Damsaz Ali Andrabi, Right to Life in Context of Clean Environment: Its Significance under Various Laws, 2279-0845, Available Here
[4] Atisha Sisodiya, The Role of Indian Judiciary in Protection of Environment in India, Available Here
[5] Aditi Singh, Right to Clean Environment: A Basic Human Right, Available here
[6] Constitutional provisions for the protection of the environment with relevant case laws, Available Here
[7]Atrayee de & Vedant Madhok, Constitutional provisions and environment protection in India: a legal insight, Available Here
[8] Human rights, health and environmental protection: linkages in law and practice, Available Here
[9] 1985 AIR 652
[10] 1996 AIR 1446
[11] 1991 SCR (1) 866
[12] AIR 2000 SC 2773
[13] AIR 1996 SC 2715