This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article deliberates upon the constitutional provisions on environmental human rights and its applicability in the cases that have come before the Courts in the recent past.
Environment is defined under Section 2(a) of The Environment (Protection) Act, 1986. It states: “environment” includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property”.
The Universal Declaration of Human Rights which adopted on 10th December, 1948, defines human rights as “rights derived from the inherent dignity of human person”.
The framers of the Indian Constitution were greatly inspired by the concept of human rights contained in the Universal Declaration of Human Rights and guaranteed many of those rights in our constitution part III and part IV, though separate, carry the common theme of human rights. When Human rights are warranted by a written constitution, they are called as fundamental rights. Fundamental rights are the contemporary term for what has been traditionally known as natural rights. Fundamental rights are dealt in Part III of the Constitution.
At the time of Constituent Assembly debates, there was no specific provision relating to environment protection. At that time, environmental issues were left out. But on the other side, judiciary was active. Judicial consciousness in the sphere of environment protection and balanced progress makes government and people more conscious about the concept of sustainable development
Environment and Fundamental Rights in India
Principle 1 of the Stockholm Declaration states:
“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality 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 generation .”
Above given principle finds reflection in series of fundamental rights, which are explained as below:
Article 14: Right to Equality
To protect persons against arbitrary and unfair State actions is one of the agenda of equality clause. This Article being a general Article under Part III plays a very important role because it prohibits arbitrariness. It will not be wrong to say that coexistence of equality and arbitrariness is impossible. The new dimension of the right to equality which excludes arbitrariness is often used by judiciary for quashing the permission of construction granted arbitrarily by State without giving due importance to environmental concern.
Arbitrary Sanction of Authorities in Environmental Matters
The judiciary has on several occasions declared that the arbitrary sanction of the authorities in environmental matters as unconstitutional. Article 14 has often been invoked by Indian judiciary for environment protection. Its contents contain witnessed effectuation especially in cases involving mining and stone crushing activities. Arbitrary grant of lease and unwarranted operation of mines may lead to destruction of wild life and nature. When the mining activities resulted in pollution of Mussoorie Hill range forming part of Himalayas, then the issue of development and environment was brought into sharp focus for the first time. In 2010, the Communist Party of India (CPI) encouraged to the then Prime Minister Dr. Manmohan Singh to review the mega steel project awarded to South Korean Steel Giant Posco in Orissa and urged him to immediately withdraw the arbitrary environmental clearance accorded to the project in light (Article 14) continued violence and atrocities against the local population. CPI has stated that the project did not provide any kind of direct benefit to the people of the locality or the economy of the country or the state and was rather aimed at stripping the area of its rich mineral resources.
Article 19(1) (a)
Article 19(1) (a) assures to people of India “the freedom of speech and expression subject to reasonable restrictions.” Due to societies progress, new means for communication have been developed, which can be used for the purpose of speech and expression. Law prohibits us, to use these means violently because public health demands control of the use of such appliance as produces loud noise by day or by night. Kerala High Court in P.A. Jacob v. Superintendent of Police, Kottayam, (AIR 1993 Ker 1), has also recognized the above view and held that: the freedom of speech does not include freedom to use loudspeakers or sound amplifiers triggering noise pollution and risk to human health. The Court has also made it very clear that operation of mechanical sound-amplifying devices conflict with quiet enjoyment of men in park and freedom of speech does not involve freedom to use sound amplifiers to the drawn-out natural speech of others.
Freedom to Know Unsustainable Projects
The freedom to know which can be seen as a part of dignified life; has a close link by Article 19 (1) (a). Right to know has proved very effective in environmental matters, where plans of the government may create danger for the health and life of people. In light of this right every government plan regarding the construction of any dam, nuclear plant, hazardous industrial units and thermal plants, which is unsustainable and have the capability to distress the lives and well-being of masses, must be given wide publication. The instance of the Narmada Valley Project in Madhya Pradesh, Maharashtra and Gujarat, and the National Missile Testing Range at Baliapal in Orissa are pertinent here. All these projects have resulted in popular agitations against the government, which if sustained, may ultimately change the very approach of economic development that India has followed so far.
In this background, Brundtland Report, 1987 has noted that:
“Some inquiries and hearings on the development and environment impacts can aid significantly in drawing attention to diverse point of views. Free access to information and the availability of alternative sources of technical expertise can provide an informal basis for public discussion when the environmental impact of a proposed project is particularly high, public scrutiny of the case should be subject to prior public approval, perhaps by referendum?”
Above discussion very much clears that Article 19(1) (a) and right to know both are inter-related to each other and backed by the environment protection laws and Sustainable Development principles.
Article 19(1) (g)
Satish Bhatia correctly implies that trade isn’t an end in itself but a means to an end – the aim of sustainable development. Sustainable development aims at maximizing net welfare of economic activities, along with maintaining or increasing the stock of economic, ecological and socio-cultural assets overtime. It implies the role of many non-economic and non-material environmental factors and equity aspects also” .
Article 19(I) (g) provides the right to the citizens:
“to practice any profession or to carry any occupation, trade or business and this particular right carries certain reasonable limitations as given under Article 19(6), which may be compulsory for the welfare of common masses”.
By virtue of a range of judgments of Supreme Court as well as the High Courts, now it is well settled that the right to freedom of profession, occupation, trade or business is subject to the condition that it should not be a cause for environmental pollution. In Abhilash Textile v. Rajkot Municipal Corporation, AIR 1988 Gujarat 57, Court held that:
“Though a person has a right to carry on any business of his choice, but there is no right to carry on any business inherently dangerous to society, because the interests of society are to be balanced with the interests of citizens to carry on business.”
It is of common knowledge that now a day’s tanneries, dye factories, acid factories and hotels are source of environmental pollution. Several times, the Indian judiciary directed that closure of certain industries which were not showing any progress towards setting up of air pollution control system in compliance with its earlier order. But it does not mean that State is against the concept of industrialization. It is true industrial development is essential for handling the problems like unemployment, poverty etc. but the preservation of ecological balance has a paramount place, because it is concerned with the life and health of the masses. Hence, any industry that pollutes, can’t be allowed to run under the garb of development if it results in public nuisance and imbalance of the ecosystem.
Generally environmental and trade issues can broadly be classified into two categories i.e.
- Local or National pollution problems including problems like pollution of national soil, water and air resources. Mostly, the business activities are responsible for environmental degradation of such nature, which endanger the quality of life of its citizens.
- Transboundary Pollution Problems have a global impact. This would include pollution of transnational water resources, air pollution, ozone layer depletion etc.
No doubt industrial pollution contaminates environment. Trade or industrialization affects transnational water resources. When the harmful chemicals are released from the factories and mixed with the stream, rivers or ocean waters, there definitely affect the ground water. Moreover, today’s world is suffering from trans frontier air pollution. Trail Smelter Arbitration is one of the best instances of transboundary air pollution. Ozone layer depletion is one more effect of transboundary pollution. Therefore, it is quite evident that any trade or business which is dangerous to natural vegetation and wildlife can’t be carried on in the guise of fundamental right.
From the constitutional provisions concerning environment, Article 21 is notable which involves all the finer graces of human civilization and thus embraces environment. Hence, the credit goes to Indian judiciary to incorporate the internationally recognized ‘right to environment’ under domestic domain by its various pronouncements. Article 21 emphasizes that every citizen can claim dignified life. Even so it doesn’t expressly mention the word environment but courts have given a wider interpretation to the term life by including in it the right to congenial environment for human existence. This Article creates a new way for all the persons to approach the courts for appropriate relief when they are deprived of hygienic environment. In this context Gurdip Singh rightly explained that:
“The right to clean environment is a fundamental right as well as a human right simply because it is the basic need for the survival of the human race. The contaminated environment will kill human beings. Thus, right to pure and decent environment lies central to the right to life supporting ecosystem which sustains life”.
In various countries the rights to healthy environment and to sustainable development are fundamental human rights implicit in the right to life. Indian judiciary also recognized the idea of balanced progress as a part and parcel of Indian law in a series of cases and also elevated it to the status of a fundamental right implicit in Article 21 of the Indian Constitution. Moreover, numerous judgments have significantly broadened the compass of Article 21 . In Madhu Kishore v. State of Bihar court stated that:
“There are two conflicting, yet complementary, aspects involved. These are the right to development and the right to clean and healthy environment. Both had been declared an integral part of the right to life under Article 21 .”
Clean wind is an Essential Part of Right to Life
The term ‘life’ has broad meaning. To breathe in clean air is the primary need of a dignified life. Following the above view, the Supreme Court, ordered for the closure of a factory which was producing air pollution. Allahabad High Court held that right to life as a fundamental right under Article 21, which includes the right of enjoyment of pollution free water and air”.
Again, Apex Court found that the discharges resulted in infringement of the right of life of the people living in the Taz Trapezium (TTZ) and it has also affected the esteemed monument like the Taj”.
Further, the Karnataka High Court observed that water and air pollution caused by stone crushing had adverse effects on human health, animals and vegetation, therefore, it violates the dignified life. The court also ordered crusher units to pay compensation to the victims of pollution. Additionally, in CNG case the Supreme Court treated air pollution in Delhi caused by vehicular emissions as violation of Article 21 and thus, by considering the idea of sustainable development ordered all commercial vehicles operating in national capital to replace to CNG gas type for conserving the healthiness of the masses Thus, from the above discussion, it is very much obvious that Article 21 does not mean mere animal existence, it includes pollution free environment also.
Article 26: Freedom to Manage Religious Affairs
India is a secular country. All religions have equal protection. Everyone is free to manage its religious matters. But no religion allows us to spoil the decent environment on the name of God. Judiciary interpreted the above Article in its own way by keeping in view the sustainable development concept. With the development, the mode of prayer to God has been changed and it has become very problematic for the environment. According to Supreme Court of India, “no religion stipulates that the prayers are required to be performed through amplifiers or beating of drums”. Freedoms to administer religious affairs are subject to public order, goodness and wellbeing of masses. Where level of is beyond permissible limit then it would not be just and proper to permit the religious institutions to propagate through amplifiers. This view was expressed in Haddon v. Lynch Court held that “the ringing of a church bell in the early morning hours of Sundays and public holidays was held to be a legal nuisance if it disturbs persons residing in the neighbourhood”. In a different case, court held that “during the religious ceremonies regular sound may not be nuisance but if an effort is made to play a band either with or without applaud of singing it may cause nuisance”.
Article 32:- Writs as remedies for Environment Protection and Sustainable Development
The importance of Article 32 can’t be underestimated. Therefore, Dr. B. R. Ambedkar stated that:
“If I was asked to name certain article in this constitution as the most important an article without which this constitution would be a nullity, I would not refer to any other article except this one. It is the very soul of the constitution and the very heart of it”.
The scope of these rights has been enlarged through judicial interpretations from time to time. Through various judicial announcements, it has been cleared that the right to life does not simply means an animal existence. The offended person alleging complaints relating to environment pollution can move a petition for redressal of his grievances in the higher court of the land through Art. 32. In this framework, the High Courts entertains much wider power for protection & improvement of environment under Art. 226.
For elimination of water and atmospheric pollution, the Supreme Court has directed the erring parties not to discharge effluents into river water without adequate treatment. In the Taj Trapezium case to protect and preserve the beauty of the Taj Mahal, certain industries affecting the nearby environment, were ordered to be closed down. In another writ petition, directions were sought to prevent the pollutions released by industries in Tamil Nadu. The Apex Court held that “though such industries are of essential importance in the development process of our country, they could not be allowed to continue their operations unless they set up pollution control devices”. The Court further held that “such industries could not be allowed to destroy environment, degrade the ecology and pose health hazards”. In this case, ‘sustainable development principles’ were evolved. Justice Kuldip Singh (popularly known as Green Judge) maintained that “Precautionary principle and the polluter pays principle are essential features of ‘sustainable development’.”
Apart from above cases, series of public interest litigations have drawn the attention of Supreme Court in the direction of environmental pollution and Apex Court has issued necessary directions in such public interest litigations so that the people living in the area can lead the pollution free life.
The above discussed constitutional provisions very much clear that the concept of environmental protection and sustainable development is a hidden aspect of our Constitution and connected with our religious and social beliefs. Under these, a good number of legislations have been enacted and they are capable of producing good results but the most important thing is the strong will power of government and community participation to produce the desired results.
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