RIGHT TO CLEAN AND HEALTHY ENVIRONMENT : A NEXUS BETWEEN HUMAN RIGHTS AND ENVIRONMENT PROTECTION- BY DEEPIKA DHIMAN AND NIRAJ NEGI

RIGHT TO CLEAN AND HEALTHY ENVIRONMENT: A NEXUS BETWEEN HUMAN RIGHTS AND ENVIRONMENT PROTECTION

AUTHORED BY DEEPIKA DHIMAN

 AND NIRAJ NEGI

Both Ph.D. Research Scholars, Department of Laws,

 Himachal Pradesh University, Summerhill, Shimla-5

Abstract

Human rights and the environment are closely related. Human rights cannot be enjoyed without a safe, clean and healthy environment. The whole world is at the crossroads of global environmental threats and there is a gross violation of environmental rights. In the last few years scientific and industrial development has taken place in the whole world. The presence of those elements in the atmosphere that are thought to be necessary for the survival of human existence has changed as a result of this recent scientific and industrial growth. One of the basic human rights is the right to clean and healthy environment. The paper proceeds with the initiatives taken at both international and national levels for environmental protection and human right. The concern for the problem of environmental pollution at a global level was for the first time addressed in the year 1972 when the United Nations organized World Conference on Human Environment in Stockholm. After the Stockholm Convention, in India, the umbrella legislation for environmental protection was enacted in year1986. The Constitution of India imposes the duty on the States and their citizens for the protection and improvement of the environment. Under Article 21 of the Indian Constitution, the right to a wholesome environment is also recognized. The sanctum sanctorum of human rights, according to judicial interpretation, is the right to live in a healthy environment. The constitutional duty is imposed on the State and its citizens to protect and improve the environment. The jurisprudential development for a clean and healthy environment and the relation between the environment and human rights are also analyzed in this paper. It identifies the problem for the protection of the environment, enforcement of environmental rights and the suggestions like States to make a healthy environment a precondition with sustainable development, speedy justice to get a safe, healthy, ecologically balanced environment is given to improve the present scenario.

Key Words: environment, pollution, protection, development, human rights

1. INTRODUCTION

Earth originated millions of years ago. To sustain life on earth, natural ecosystems got developed in such a way that every form of life became dependent and complementary to each other. However, exploitation of the environment in terms of fast development and changing lifestyles in the recent past has resulted in various life-threatening problems related to the environment. The environment has deteriorated to such a great extent that it is affecting human health adversely. Environmental problems have become the biggest issue that we face today. The whole world is at the crossroads of global environmental threats. Emerging environmental problems, whether they are man-made or natural, such as climate change, global warming, ozone depletion, acid rain, deforestation, desertification, toxic wastes, loss of biological diversity, and frequent disasters, have led to an increase in global awareness of the issues affecting the planet Earth. Various efforts have been made globally to conserve the environment and to make a healthy environment a precondition for human growth. Environmental protection has become a global priority, not just a local, regional, or national issue.

Human beings have certain fundamental and inherent rights, referred to as human rights. These are the fundamental rights that every person has the right to enjoy because they are fellow humans. Human beings have certain rights because of their sheer being, not because they are citizens of a particular country.1 Although the term "human rights" is relatively new, the idea of human rights is as old as human civilization itself. The expressions previously known as 'Natural Rights' or 'Rights of Men' were replaced by this new phrase in the twentieth century.2 The United Nations was founded on the principle of respect for human rights. The Preamble to its charter “reaffirmed faith in fundamental human rights and dignity and worth of all the human person”. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in December 1948. It is the first international agreement to address the fundamental rights that every person has by nature. India was one of the 48 nations that supported it. It comprises thirty articles that outline the basic civil, political, social, cultural, and economic rights of people. The United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in the year 1966. These agreements bind the nations that are members of the UN. The issue of environmental protection is not expressly mentioned in these instruments.3 The issue of environmental protection came to light internationally only after the year 1972, Stockholm Conference. As a third-generation human right, the right to a healthy environment has been acknowledged.4

1. HUMAN RIGHTS

In the second half of the twentieth century, efforts were made to address the issue of environmental pollution on a global level. The fundamental accord for environmental

protection is the United Nations Conference on Human Environment (UNCHE), which took place in the year 1972. To raise environmental awareness among the world's nations, it was held in Stockholm, Sweden from June 5 to June 16, 1972. The Declaration contains 26 principles for environmental improvement and conservation. The first principle of the Declaration says, “Right to the environment is one of the fundamental rights of every individual which assures him right to live with dignity and includes right to equality and adequate conditions of life…..”5

The international environmental movement greatly benefited from the Stockholm Declaration. Another significant international document concerning the "right to the environment" as a human right was the African Charter. Under Article 24 of the 1981 Charter on Human and Peoples Rights, which declares that: “All people shall have right to a general satisfactory environment favourable to their development.”6

It is a universally recognized tenet of international human rights law that a healthy environment is necessary for the promotion of various recognised rights. In the Gabcikovo- Nagymaros case before the International Court of Justice, Justice Weeramantry noted that:

“the protection of the environment is a vital part of contemporary human rights doctrine, for it is the sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration on Human Rights and in other human rights instruments.”

The Commission on Environment and Development was established by the UN General Assembly in 1983, and it was presided over by Mrs. Gro Harlem Brundtland, who was the then prime minister of Norway. Later, it was renamed the Brundtland Commission. This commission established the Working Group of Experts to develop broad guidelines for environmental preservation and sustainable development. One of the basic principles out of the twenty-two guiding principles of the commission is “All human beings have a fundamental right to an adequate for their health and wellbeing.”7

In June 1992, Rio de Janeiro hosted the Earth Summit. It took place 20 years following the Stockholm Conference. This meeting resulted in Agenda 21, an all-inclusive action plan. It acknowledged the need for national, local, and global environmental protection measures. Several environmental protection tenets are included in the Rio Declaration on Environment and Development. According to Principle 1 of the Declaration “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”

The right to a safe, healthy, and clean environment is an intrinsic human right. Principle 1 of the United Nations' 1994 Draft Declaration of Principles on Human Rights and the Environment declares that human rights, the environment, sustainable development, and peace are all independent and indivisible. At the International level different organisations especially the United Nations Organisation have made many efforts toward protecting a clean and healthy environment.8 The United Nations Organisation has regarded a clean environment as a precondition for the enjoyment of human rights. This implies that the state has to provide a clean environment. The United Nations Commission on Human Rights and the United Nations Human Rights Council have both highlighted the relation between a safe and healthy environment and human rights enjoyment.

1. RIGHT TO CLEAN AND HEALTHY ENVIRONMENT IN INDIA

The rich legacy of Indian historical tradition and culture has always given human rights jurisprudence a significant place. The preservation of the environment and keeping things clean were valued during the ancient era. It was regarded as embodying Vedic culture at its core. The preservation of the natural environment and its upkeep were seen as essential, and this idea was reflected in people's daily activities as well as myth, folklore, art, culture, and religion.

1 O.P. CHAUHAN AND LALIT DADWAL, HUMAN RIGHTS PROMOTION AND PROTECTION, 1

(Anmol Publications Pvt. Ltd2004)

2 PRAKASH MISHRA, HUMAN RIGHTS IN INDIA 1 (Cyber Tech Publication 2012)

3 ibid

4 B.P. SEHGAL (ED.), HUMAN RIGHTS IN INDIA: PROBLEMS AND PERSPECTIVES, 425 (Deep & Deep Publications Pvt. Ltd. 2008)

The Mauryan Period was the prime time for environmental preservation. Kautilya’s Arthashastra mentions various measures taken by the then authorities for environmental protection. During this period duty was imposed to protect nature and its resources as these were considered inevitable for human life.9 During the medieval and British periods, the majority of society was deprived of basic human rights. During industrialization, the Britishers were the world leader in deforestation, devastating the forests in India and many other countries.

India entered a new era of progress and prosperity after independence. Natural resources were indiscriminately used for agricultural and industrial innovations, and many species became extinct as a result. Mrs. Indira Gandhi, India's former Prime Minister, attended the Stockholm Conference on the Environment. The proclamation from the conference motivated the Prime Minister, and the Indian government was compelled to change its stance on environmental issues. An expert group was established to suggest environmental protection strategies as a result. Based on the committee's recommendations, numerous provisions were added to the Indian Constitution.10

The Directive Principles of State Policy include Article 48-A in the Constitution of India and this Article provides for the “Protection and Improvement of environment and safeguarding of forests and wildlife- The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country.” The State has a responsibility under the Constitution to safeguard and enhance the environment.

The amendment in the year 1976 of the Indian Constitution added Article 51-A (g) to the Fundamental Duties, which states that "Every citizen of India shall be responsible for protecting and enhancing the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures." While Article 51-A (g) places a duty on citizens to contribute to protecting and improving the environment and Article 48-A places a duty on the State. Both the State and the people are required to protect our environment and all of its components.

Article 48A of the Indian Constitution was interpreted by the Andhra Pradesh High Court as imposing "a duty on the government, including courts, to conserve the environment" in

T. Damodar Rao

v. The Special Officer, Municipal Corporation of Hyderabad.11 According to Article 21 “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” Everyone's right to life and personal freedom is guaranteed by Article 21 of the Indian Constitution. Article 21 contains a provision for the right to a healthy environment. The Supreme Court revised the definition of "right to life" in Menaka Gandhi's Case12 (as it appears in Article 21 of the Constitution). Clarifying the significance of the "right to life" as stated in Article 21, the Supreme Court held that: “the right to life is not confined to mere animal existence, but extends to the right to live with the basic human dignity.”

5 N.V. PARANJAPE, ENVIRONMENTAL LAWS AND MANAGEMENT IN INDIA, 59 (Thomson Reuters Pvt. Ltd. 2015)

6 B.P. SINGH SEHGAL (ED.), HUMAN RIGHTS IN INDIA: PROBLEMS AND PERSPECTIVES427(Deep & Deep Publications Pvt. Ltd. 2008)

7 N.V. PARANJAPE, Supra note 10 at 75

It guarantees everyone's right to life. The right to life implies the right to live honourably in a setting free from illness and infection. Due to judicial interpretation,

the right to live in a healthy environment has been elevated to the status of the "sanctum sanctorum" of human rights. In M.C. Mehta v. Union of India,13 the right to life was impliedly treated as a component of the fundamental right to life under Article 21.14

The Constitution of India under Article 253 grants Parliament the power to enact laws to carry out India's obligations abroad and to implement any decisions made by an international convention, organisation, or other body. Using the power granted to it by Article 253, the Air (Prevention and Control of Pollution) Act of 1981, the Environment Protection Act (EPA) of 1986, and other laws were passed. The first piece of legislation to deal with environmental issues as a whole was the Environment Protection Act of 1986. List-I Entry 13 and 14 were used in conjunction with Article 253 of the Constitution to pass the EPA of 1986. It is a comprehensive piece of environmental legislation that covers all environmental facets.

1. JURISPRUDENTIAL DEVELOPMENT OF THE RIGHT TO CLEAN AND HEALTHY ENVIRONMENT

Judiciary is playing a key role in the development of a right to clean and healthy environment in India. The Constitution of India, 1950 provides for judicial remedies under Articles 32 and 226. Earlier under these articles only aggrieved persons could seek redressal from the courts. During the period of early 1980s, there was a significant transformation in the judicial system. This new change or transformation was in the form of Public Interest Litigation (PIL). The Hon’ble Supreme Court of India ruled that if the State commits a public wrong or

causes a public injury, any member of the public acting in good faith may pursue legal action for compensation. Now, any member may submit a petition to the court on behalf of the aggrieved person(s) who have experienced a legal wrong but are incapable to represent themselves due to poverty, a handicap, or being in a disadvantageous social or economic situation.15 The development of the right to a clean and healthy environment was significantly influenced by public interest litigation.

In Ratlam Municipal Council v. Vardhichand,16 J., Krishna Iyar observed that “…social justice is due to people and therefore the people must be able to trigger off the jurisdiction vested for the benefit to any public functioning.”17

The right to a pollution-free environment is covered under the right to life and personal liberty i.e. Article 21 of the Constitution of India. The Supreme Court of India construed the right to life and personal liberty to include the right to a healthy environment in Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.18

8 SHYAM DIVAN, ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA, 205 (Oxford University Press 2016).

9 SHYAM DIVAN AND ARMIN ROSENCRANZ, Supra note 13 at 24-25

10 N.V. PARANJAPE, Supra note 10 at 75

11 AIR 1987 AP 17.

13 AIR 1987 SC 1086

14 Ibid

The Court has declared that the right to life includes the right to a clean environment, safe drinking water, and a pollution- free environment.19

In Subba Rao v. State of Himachal Pradesh20, A bone factory was polluting the atmosphere with its unpleasant odour and making people's lives miserable. The plant was ordered to close by the court and stated that no business can be carried out at the expense of public health. In this judgement, the Supreme Court emphasised the significance of protecting public health.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand& Others21, held that the “grievous failure of local authorities to provide the basic facility of public amenities drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because, under nature's pressure, bashfulness becomes a luxury and dignity a difficult art.” A competent municipal council formed to protect public health cannot avoid its responsibilities by claiming financial inability.

For the adoption of Bharat Stage IV emission norms, various recommendations were made by committees in M.C. Mehta v.Union of India22. A significant ruling prohibiting the registration of vehicles that do not comply with BS-IV emission standards was issued by the Supreme Court bench comprising of Justice Madan B Lokur and Justice Deepak Gupta. The court gave more importance to the health of the people than to the commercial interest of the manufacturers. The Court asked that manufacturers ‘wake up to their responsibility for the benefit of all of us’.

The problem of burning of firecrackers especially during Diwali in the National Capital Region of Delhi23 causes air pollution. This problem was raised by the petitioner in Arjun Gopal and Others v. Union of India24. The question before the judiciary was that “is it justifiable to continue the celebration in this manner when the quality of the air in the region is poor and injurious and is destroying the essential elements of the freedom to live a healthy life?” The Court balanced the interest of the vast majority of the citizens against the commercial interest of a few. The Court made a judgement in favour of the citizens in general by issuing the interim directions against the manufacturers and suppliers of the firecrackers and suspending the trade of the same.25 The court observed that the duty to ensure a healthy environment falls on all States as well as citizens.26 The National Green Tribunal to tackle the adverse impact of pollution by the use of firecrackers during the pandemic COVID-19 ordered a total ban on all kinds of firecrackers in the Delhi-NCR in November 2020.27

15        ibid

16        A.I.R. 1980, S.C. 1633.

17        KAILASH THAKUR, Supra note 16 at 85.

18       AIR 1988 SC 1037

19       Subhash Kumar v. State of Bihar, AIR 1991 SC 420; M.C. Mehta v. Union of India, AIR 2000 SC 1997

20       AIR 1989 SC 171

21       AIR 1980 SC 1622

22  Writ Petition (Civil) No.13029/1985 of 2016.

23 For further reference National Capital Region will be referred as NCR

24 (2017) 1 Supreme Court Cases 412

25 (2017) 1 SCC 416, 417, 418

The National Green Tribunal (NGT) has also made a significant contribution toward the right to clean and healthy environment. In Rita Sharma v. State of H.P.28 NGT made sure to protect this right. In this case, the complaint was in a village in Himachal Pradesh where there was a violation of the Air and Water Act and the ground for a polluted environment was a lack of funds with the local body. The local government had not managed waste properly and was burning waste, which was causing air pollution, infections, and livestock losses. It also contributed to forest fires and the extinction of wild animals. As a clean environment is a fundamental right for which money must be arranged by the authorities, the National Green Tribunal ruled that the lack of funds was not a legitimate defence in this case.29

Whenever there is damage to the environment our judiciary has made sure that those responsible for the environmental damage must pay.30 In the Indian Council for Enviro-Legal Action (ICELA) v. Union of India,31 an agrochemical industry in the Udaipur district was polluting groundwater. The Supreme Court reiterated that the ‘polluter pay principle’ was the law of the land and the industry must pay for the damage caused to the environment. Recently in Bonani Kakkar v. OIL and anr.32 the National Green Tribunal expressing the concern over the environmental damage caused after a natural gas blowout in the Oil India Limited (OIL) controlled oil well issued a notice in pleas against the company for its failure to control the leak and ensuing fires and also directed to deposit an initial amount of 25 crores.

The Indian judicial system has contributed significantly to environmental protection. It has transformed itself with the change in time. The change in the attitude of the judiciary towards environmental pollution and protection can be seen in the judgements and orders given by it.

1. CONCLUSION AND SUGGESTIONS

In number of international, regional, and national documents and agreements, the connection between the environment and human rights has been discussed. A healthy environment is essential to achieving human rights, and it is important for the enjoyment of those rights as well. A clean and healthy environment is guaranteed by Indian law. As one of the few constitutions in the world with specific environmental protection clauses, the Indian Constitution is unique in this regard. According to the Indian Constitution's provisions, everyone has the right to a dignified existence in a setting that is free from the threat of disease and infection. The State and its residents are required by the Constitution to protect and enhance the environment. To create a clean and healthy environment, numerous other Acts have also been passed. But the issue still exists with how these laws are put into practice.

26 id at p 419; this duty not only falls on the State in terms of Article 48 A but also on all citizens under Article 51A(g) of the Constitution of India, 1950.

27 Indian Social Responsibility Network v. MoEF&CC & Ors 2020 SCC Online NGT 858

28 Rita Sharma v. State of H.P., Original Application No. 05 of 2020, decided on 13-11-2020.

29 =Rita Sharma v. State of H.P., Original Application No. 05 of 2020, decided on 13-11-2020. Also see: available at: http://www.scconline.com/blog/post/2020/11/20/ngt-(last visited on February 19, 2021)

30 Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715, 2721; and S. Jagannath v. Union of India (Shrimp Culture Case) AIR 1997 SC 811, 846, 850.

31 1996 (3) 1480.

32 Bonani Kakkar v. OIL and anr. I.A. No. 30 of 2020, decided on 02-07-2020

The sanctum sanctorum of human rights, according to judicial interpretation, is the right to live in a healthy environment. The development of the right to a safe and clean environment

has benefited both higher and lower judiciary. By the number of decisions, it has made, the National Green Tribunal is also giving this right a new dimension. In Subhash Kumar v. State of Bihar, the Supreme Court ruled that Article 21 of the Constitution's "Right to Life" clause includes the right to enjoy clean water and air to fully enjoy life. By extending the scope of Fundamental Rights and advancing environmental jurisprudence, the Supreme Court of India has made a significant contribution.

The suggestions are as follows:

• There must be a comprehensive, long-term and integrated action plan which should coordinate different countries, organisations, ministries and departments together to make a healthy environment a precondition for sustainable development;
• Trees are the natural carbon sinks. Tree cover must be increased. Green belts must be established between industrial areas and residential areas.
• Speedy justice to get a safe, healthy, ecologically balanced environment should be ensured; etc.