31 Right to Enviornnment Part 2

Dr. Aneesh V. Pillai

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Introduction

The linkages between human rights and environmental protection have long been recognized and have been subject to extensive debate. It is generally accepted that the from a human rights perspective, environmental protection often proves a necessary condition for the full realization and enjoyment of other human rights. At the same time environmental degradation can have serious negative impact on the enjoyment of various social, economic and cultural rights as well as civil and political rights. In a world of increasingly severe and wide-spread environmental degradation, new tools are needed to respond to environmental harm. Traditional international environmental law, that addresses the rights and obligations between nation-states, has little to offer individuals harmed by environmental damage. As a result the judiciary all over the world has developed various dimensions of right to environment for its better protection. This chapter discusses various facets of right to environment which have been established by Indian judiciary primarily and also discusses some of the dynamic interpretations given to right to environment by different courts all over the world.

Learning Outcomes

  • To understand the Dimensions of Right to Environment: Role of Indian Judiciary.
  • To understand the Right to Healthy/ Wholesome Environment.
  • To understand the Right to Pollution Free Air.
  • To understand the Right to Water.
  • To understand the Preservation of Open Spaces and Parks.
  • To understand the Right against Noise Pollution.

Dimensions of Right to Environment: Role of Indian Judiciary

Environmental rights are commonly understood to mean “the reformulation and expansion of existing human rights and duties in the context of environmental protection”. This view falls between simple application of existing rights to the goal of environmental protection and recognition of a new full-fledged right to environment. The Economic Social and Cultural Rights Committee has addressed the right to a healthy environment. In General Comment 14 on the highest attainable standard of health, the Committee established that: THE RIGHT TO HEALTH EMBRACES A WIDE RANGE OF SOCIO-ECONOMIC FACTORS THAT PROMOTE CONDITIONS IN WHICH PEOPLE CAN LEAD A HEALTHY LIFE, AND EXTENDS TO THE UNDERLYING DETERMINANTS OF HEALTH, SUCH AS FOOD AND NUTRITION, HOUSING, ACCESS TO SAFE AND POTABLE WATER AND ADEQUATE SANITATION, SAFE AND HEALTHY WORKING CONDITIONS, AND A HEALTHY ENVIRONMENT. It further elaborated that the right should be interpreted as an ‘inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions’. Hence it can be see n that right to environment or environment al rights includes various claims either linked with an existing human right or emerged as an independent right. Some of the most important dimensions of right to environment identified by Indian judiciary are as follows:

1. Right to Healthy/ Wholesome Environment

Every human has a right to live in a clean and healthy environment. This is a general right which is inalienable. Many constitutions all over the world has guaranteed a healthy environment and they also take appropriate measures to prevent any kind of environmental harm so as to maintain a healthy environment. They not only prevent any kind of environmental destruction but also aim to preserve the nature and its natural resources5. In Columbia, in the case of Antonio Mauricio Monroy Cespedes, in 1993, the Court observed that “side by side with fundamental rights such as liberty, equality and necessary conditions for people’s life, there is the right to the environment. The right to a healthy environment cannot be separated from the right to life and health of human beings. In fact, factors that are deleterious to the environment cause irreparable harm to human beings. If this is so we can state that the right to the environment is a right fundamental to the existence of humanity.”

 

Right to healthy environment is important attribute of right to live with human dignity. The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State, (Popularly known as Dehradun Quarrying Case). The Apex Court while dealing deciding that certain limestone quarries in the Doon Valley should be closed down due to soil erosion, deforestation and river silting, declared for the first time, the right of people to live in a healthy environment with a minimal disturbance to ecological balance shall be safeguarded. It is to be noted here that though Supreme Court evolved s new right to environment right of people to live in a healthy environment it did not mention or discuss the source of the right.

 

In M.C. Mehta v. Union of India9, the Supreme Court impliedly treated the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the Constitution. The Supreme Court of India in ChatriyaPardushanMuktiSangarshSamiti v. State of UP11, for the first time declared that the right to environment is contemplated in Article 21 of the Constitution of India.

 

It was in the case of Subhash Kumar v. State of Bihar, the apex court explicitly recognized right to wholesome environment included in Article 21 of the Constitution when it held, 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 right to have recourse to Article 32 for removing the pollution of water or air which may be detrimental to the quality of life. Thus the Indian judiciary through its dynamic interpretation established a right to healthy/wholesome environment as a fundamental right.

2. Right to Pollution Free Air

 

Air pollution has become a major problem in the world. It negatively affects human health, the environment and the economy. It is basic knowledge that air pollution harms human health and the environment. Air pollution is a major risk factor for a number of health conditions including heart disease, respiratory infections, stroke, chronic obstructive pulmonary disease and lung cancer. It also damages the environment. Toxic air pollutants cause harm to things such as crops, trees, wildlife, and all types of bodies of water. The same pollutants can also harm fish and other aquatic life. Thus it can be seen that nothing is more basic to life as well as for quality environment than having pollution free air. The right to pollution free air can be traced to the Stockholm Declaration in 1972. The Declaration in principal provides: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits of a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” It can be seen that every man is entitled to have a right to quality environment and which is a basic human right. It is to be noted here pollution free air is a primary component of quality environment.

The Supreme Court of India, MC Mehta v. Union of India and Others stated that “every citizen has a right to fresh air and to live in a pollution-free environment. Again in CharanLalSahu v. Union of India16, the Apex Court reiterated that the right to life includes the right to pollution free air. Subsequently, in Subhash Kumar v. State of Bihar, the Bihar High Court declared, the right to life guaranteed by Article 21 includes the right of enjoyment of pollution free air and water 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. Through this decision, the Court recognized the right to pollution free air as part of the fundamental right to life.

3. Right to Water

Water is the essence of life. In fact without water, no life is possible. Human beings cannot live without water for more than a few days as water plays a vital role in the physiological functions of human body. Water is also very essential for the day to day activities of human beings such for agriculture, industrial purpose, domestic purpose, maintaining hygiene, to cook food and for a variety of social and cultural reasons. The right to water has a strong social and ethical dimension to it as water is the most basic necessity of life. In fact, life originated in water and without water there can be no life. The ethical basis of this right is rooted in the religious and cultural significance attached to water in almost all civilizations and societies of the world. Such a basic amenity is naturally allowed or owed to the people and it is only logical that the State has a duty to protect this right and take steps to ensure it. The first express recognition of right to water at the international level was in the UN Water Conference, 1977 in which the General Assembly recognized the Mar Del Plata Action Plan. The Action Plan declared that, “All peoples, whatever their stage of development and social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs”.

An analysis of the numerous judicial decisions reveals that, the Indian judiciary has taken an active role in incorporating various facets of right to water in India. This approach of judiciary started by way of interpreting the word ‘right to life’ under Article 21 and establishing right to water as an integral part of right to life. Subsequently, the Courts have read Articles 48 A and 51 A (g) with Article 21 and emphasized that, the state having an obligation to ensure wholesome environment. Thus the right to water in India is also from fundamental right to environment.

Hon’ble Justice C. Sankaran Nair of Kerala High Court in the landmark case of Attakoya Thangal, for the first time in India, declared that, “The right to life is much more than the right to animal existence and its attributes are many folds, as life itself. The rights to sweet water, and the right to free air, are attributes of the right to life, for, these are the basic elements which sustain life itself”. Subsequently, the interpretation of Kerala High Court was followed by Indian Supreme Court in Subhash Kumarv.State of Bihar and Others. The Court observed that, “the right to life under Art. 21 include the right of enjoyment of pollution free water and air for full enjoyment of life”.

Further, in D. D. Vyas v. Ghaziabad Development Authority, the Allahabad High Court added that, “if anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life”. Thus individuals not only have the right to environment but also have a remedy in case of any violation. It is to be noted that, this right to environment includes pollution free water also. It is further affirmed by the Supreme Court in Virendra Gaur and Others v. State of Haryana that, “environmental, ecological, air, water pollution etc. should be regarded as amounting to violation of right to environment and Article 21”. This approach has been affirmed by the Indian judiciary in numerous cases.

4. Preservation of Open Spaces and Parks

Green parks and open spaces are said to be the lungs of the cities and urban areas. They are essential for maintaining the quality of air as well as for preserving natural beauty of the land. In fact fresh and clean air and green trees are the gifts of nature and are vital for living a healthy life. However the unplanned development of cities and towns is destroying the bounties of nature. Due to illplanned development most of the cities are facing the problems of heavy traffic, congestion, lack of open spaces and green parks. There are concrete jungles in the form of huge buildings and shopping malls and there is absence of green trees and open spaces. The concrete jungle alongwith vehicular pollution contributes significantly to global warming and climate change.

The Indian judiciary has noted this attitude of government and peoples and have taken bold stept to preserve open spaces and public parks in various cases. In the case of Banglore Medical Trust v. B S Mudappa and Others by prohibiting the action of Banglore Development auhtority from converting an open space resreved for park into a private hospital site the Court observed: ‚The public interest in the reservation and the preservation of open space for parks and play grounds cannot be sacrificed by leasing or selling such sites for private persnons for conservation to some other user. Any such act  would be contrary to the legislative intent and inconsistent with the stautory requirements. Furthermore it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the baisc values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guarnteed rights a reality for all citizens.

 

In Virulent Gar vs. State of Haryana, the Supreme Court held that, the Government had no power to sanction lease of the land vested in the Municipality for being used as open space for public use after referring Principle 1 of the Stockholm Declaration, 1072 and the Art. 48-A, Art. 47 and Art 51A(g), and Art. 21 of Indian Constitution. The Court observed that, “the word environment is of broad spectrum which brings within its ambit, hygienic atmosphere and ecological balance. It is therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Art. 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Environmental, ecological, air, water, pollution etc should be regarded as amounting to violation of Art. 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment”.

5. Right against Noise Pollution

Noise is derived from the Latin word “nausea” implying ‘unwanted sound’ or ‘sound that is loud, unpleasant or unexpected’. Noise pollution can be defined as unwanted or offensive sounds that unreasonably intrude into our daily activities. It has many sources, most of which are associated with urban development: road, air and rail transport; industrial noise; neighborhood and recreational noise. Environment is an aggregate of all external conditions and influences affecting the life and development of an organism. Once it is disturbed, no better living conditions for human beings can be created. Hence to make the enjoyment of life more meaningful, the preservation and protection of natural environment must be given priority and the human activities causing ecological imbalance must be stopped forthwith. Considering the disastrous effect of noise pollution, the Indian Judiciary has explicitly declared that noise pollution contaminates environment and thereby affects the right to life.

In Rabin Mukherjee and Others v. State of West Bengal, the Supreme Court held that pollution arising from use of loud horns was injurious to health and was among different causes of environmental pollution. Subsequently in more specifically the judiciary addressed the issue of noise pollution in Free Legal Aid Cell v. Govt. of NCT of Delhi and Others. In this case, the Delhi High Court observed that: “Noise is a pollutant which causes material injury to the rights of an individual. It contaminates environment, causes nuisance and affects the health of a person and therefore, it exceeds a reasonable limit, offends Article 21 of the Indian Constitution. Earlier in P. A. Jacob v. S. P., Kottayam, the Court held that right to religion cannot be a ground for right to cause unreasonable noise pollution. Thus it can be seen that any individual can claim a right against noise pollution either as a part of right to environment or as a part of right to life.

Conclusion

 

A clean and healthy environment is a prerequisite to a healthy and dignified life. In fact most of the human rights are inter-related with the right to a clean and healthy environment. The Hon’ble Apex Court of India has also in numerous decisions emphasised that a healthy and wholesome environment is a fundamental right which gives meaning to right to life. Thus a healthy environment is vital for protection and preservation of right to life and it also includes the right to health. This is because without a proper and sound health a human being cannot enjoy the basic right to life. The Indian judiciary through their activist role have developed various principles for the protection and improvment of the envionrment. Some of the important principles are sustainable development; precautionary principle; polluter pays principle; and public trust doctrine. The development of all these principles along with the various dimensions of right to enviornment would have a positive impact on the protection of enviornment and its natural resources. Such an effective system of legal regulation for protection of enviornment is a prequisite for the realisation of right to enviornment.

you can view video on Right to Enviornnment Part 2

Reference

  1. Alan Boyle, “Human Rights and the Environment: Where Next?”,Eur J.Int Law (2012) 23 (3): 613-642.
  2. Laura Ziemer, “Environmental Harm as a Human Rights: Forging New Links”, available at www.tew.org/background/env.rights.html, visited on 23.3.2015.
  3. “Constitutional Environmental Rights: A Quantitative Analysis of Intra-Regional Influences”, available at http://wpsa.research.pdx.edu/meet/2012/gellers.pdf, visited on 23.3.2015.
  4. “Human Rights and the Environment”, available athttp://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-in-relation-to-other-topics/human-rights-and-the-environment, visited on 23.3.2015.
  5. Y.K. Sabharwal, “Human Rights and the Environment”, available at www.sci.nic.in/speeches/speeches_2005/humanrights.doc, visited on 23.3.2015.