RIGHT TO ENVIRONMENT AS A HUMAN RIGHT
– Garima Singh476
Our constitution is not an inert but has grown and evolved over the years. In the Indian scenario, environment protection, has not only been raised to the status of fundamental law of the land, but it has also been webbed with human rights approach and is now considered as a well-established fact that it is the basic human right of every individual, to live in a pollution free environment with complete human dignity. The preamble to our constitution provides for a socialist society which promotes environmental protection. The fundamental duties again clearly impose duty on all citizens to protect environment. The Directive principles further are directed towards the ideals of building a welfare state. Healthy environment is one of the essential elements of a welfare state. Article 47 states that 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 which includes the protection and improvement of environment as a part of its primary duties. Article 48-A of the constitution states that the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Part III guarantees fundamental rights which are essential for the development of an individual. A citizen cannot carry on business activity, if it is health hazards to the society or general public. The paper meticulously deals in the remedies under Article 36 and 226 and also forms a notion for the reader that knowledge of these provisions is necessary to bring greater public participation, environmental awareness amongst the masses. The research paper emphasizes on the inter relationship of human rights and environment.
“A clean environment is a human right like any other. It is therefore part of our responsibility toward others to ensure that the world we pass on is a healthy, if not healthier, than we found it.”
– Dalai Lama
A healthy environment is not just for some, but for everyone. Human rights are the rights that all people have by virtue of being human beings. Human rights are defined as the supreme, inherent, and inalienable rights to life, to dignity, and to self-development. Human rights are universal, internationally guaranteed, legally protected, protects individuals and groups, equal and indivisible and cannot be taken away. A human right to a healthy environment has been introduced for more than twenty years and in the present scenario is can be seen a right as a statu nascendi. The human rights and environmental rights are interdependent.
The great scholars have proposed the three concepts of environmental rights which comprises environmental rights as a separate human rights, environmental rights as encompassed within previously established human rights and environmental rights as rights of the environment in and of itself, regardless of its effects on people. The right to environment is not only the human right but also the fundamental right. There are the Constitutional provisions and legislations for the protection of the environment. All the humans existing have the fundamental right to an environment adequate for their health and well-being.
This depicts that human rights and environmental rights are supplementary. Now, the environment and human right had become a new approach to sustainable development.
The right to environment is a human right and is used for the protection and preservation of environment; all human beings have the fundamental right to environment which is adequate for the health and well-being.
RELATIONSHIP BETWEEN HUMAN RIGHTS AND ENVIRONMENT
The relationship between human rights and environment has long been recognized and in the present scenario it is evolved in many ways. The first United Nation (UN) conference on the Human Environment was held in Stockholm in 1972 and declared that “man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human right includes the right to life itself.”477 The Rio Declaration on Environment and Development in 1922 to a lesser extent, showed the relationship between the environment and human rights are very prominent in early stages.
The nature of relationship between Human Rights and Environment can be explained with the three major approaches. The first approach estimates that the environment is a prerequisite to the enjoyment of the human rights. This approach concludes that the life and human dignity are only possible where the people have access to an environment with basic human rights.
The second approach submits that human beings are the tools to address the environmental issues, both practically and substantively. This approach throws light on the possibility of using human rights to achieve adequate levels of environmental issues. From a procedural perspective, rights such as access to information, participation in public affairs and access to justice are central to securing governance structures that enable society to adopt fair decision-making processes with respect to environmental issues. From a substantive perspective, this approach underscores the environmental dimensions of certain protected rights.478
The third approach proposes the incorporation of the human rights and environment under the concept of the sustainable development. The integration must be treated in an integrated manner, the integration of economic, environmental and social justice issues must be done with the view to the concept of sustainable development. Thus, these three above mention approaches provide the link between the human rights and environment.
At the basic level and in a collective sense environmental rights refer to the basic rights comprised in the environmental clauses of instruments such as the International Bill of Rights,479 regional human rights instruments 480 ,some international and regional environmental law instruments481. Thus, we can conclude that human rights and environment are interrelated to each other.
CONSTITUTIONAL PROVISIONS FOR THE PROTECTION OF ENVIRONMENT
As the introductory statement of the constitution states that the people of India have solemnly resolved into socialistic pattern of society, in which state pays attention more on the social problems than individuals. The basic idea behind the concept of socialism is to provide a decent standard of living for all which is only possible in the pollution free environment. The state is compelled by the constitution to pay attention to this social problem to just establish a social order. The constitution emphasizes on the concept of socialism in various ways. The constitution comprises of Fundamental rights, Fundamental Duties and Directive Principles of State which promote the protection of environment.
The 42nd Amendment in 1976 added a new part IV- A dealing with Fundamental Duties in the Constitution of India.482Article 51-A of this part enlists 11 fundamental duties. This part was added on the recommendations of the Swarn Singh Committee bringing the Constitution of India in line with Article 29(1) of the Universal Declaration of Human Rights.483
Article 51-A (g) states that “it shall be the duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers and wildlife, and also to have compassion for living creatures.”
Article 51-A (j) further provides that “it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher level of endeavor and achievements”. The basic motive behind the fundamental duties is to inculcate a sense of responsibility among the people and to promote their participation in reforming and building a welfare society. The protection of the environment is a constitutional priority and it is the concern of every citizen.
Article 51-A (g) is the fundamental duty of every citizen to protect and improve natural environment. But, in the present scenario pollution is not only caused by exploiting the natural environment but otherwise also. In modern industrialized civilization such a concept may seem to be a misnomer. Nature gave us the environment pollution free but the people are exploiting by misusing the resources. The fundamental duty of every citizen is not only to protect the environment from any kind of pollution but also to improve the environmental quality if it has been polluted. The interrelationship between Articles 48, 48-A and 51-A (g) of the constitution has been explained by the Supreme Court in the State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat.484
Article 21 guarantees a fundamental right to life- a life of dignity, to be lived in a proper environment, free of danger of disease and infection. We all are aware of the fact that there exists a close link between life and environment. The right to life would be meaningless if there was no healthy environment. The judicial interpretation has made right to live in a healthy environment as the sanctum sanctorum of Human Rights.
In M.C. Mehta v. Union of India485, the Supreme Court impliedly treated the right to live in pollution free environment as a part of the fundamental Right to Life under Article 21 of the Constitution of India. In the case Union Carbide Corporation v. Union of India486 there was the leak of methylisocyanate which makes the surrounding hazardous and dangerous. There was great damage to the environment leading to infringement of Article 21 of the Constitution of India.
DIRECTIVE PRINCIPLES OF STATE
Part IV of the Constitution deals with directive principles of State policy. These directive principles represent the socio-economic goals which the nation is expected to achieve. The directive principles form the fundamental features and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles487. These directive principles are designed to guide the destiny of the nation by obligating three wings of the State i.e. legislature, judicature and executive to implement these principles.
Article 47 of the Constitution is one of the directive principles of State policy and it provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of health as its primary duties. The improvement of public health also includes protection and improvement of the environment without which public health cannot be assured.
The 42nd Amendment of the Constitution in 1976 added a new directive principle in Article 48-A, dealing specifically with the conservation and improvement of the environment. It goes as the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
Article 37 of the constitution provides the provisions contained in part IV shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. The court cannot directly enforce the directive principles by compelling the state to apply them in making the law but only when the state commits a breach of its duty by acting in a way which is contrary to these principles, the directive principle serves the courts as a code of interpretation.
From various judgments, it is evident that the Indian judiciary has used the potent provisions of the constitutional law to develop a new “environmental jurisprudence.” The courts have not only created public awareness regarding environmental issues but also it has brought about urgency in executive lethargy, if any, in any particular case involving environmental issues. There are many provisions made for the protection of the environment. The right to environment is the fundamental right which comes under the ambit of article 21 and as well as it the basic human right.