Environmental Justice
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This article is written by Deepanwita Sengupta, Fourth-year Student of Amity Law School Delhi GGSIPU.

“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 as healthy if not healthier than we found it”- Dalai Lama

Abstract

The theme I have chosen for this essay is Perspectives on Environmental Law & Policy. The essay aims to highlight the rise of Environmental justice & its development in the light of Right to grow in a healthy environment as they both go hand in hand, they are not mutually exclusive, The Supreme Court has made it very clear that Right of enjoyment of pollution-free environment must be guaranteed for enjoyment of life under Article 21 of our constitution.

A Right to grow in a healthy environment must be accepted in reality and in our legislation sooner rather than later as its high time that we accept the deteriorating conditions of the environment we live in rather than pestering on about its existence and immediate action needs to be taken to ensure human rights and survival. As a matter of fact, we all know and it is extensively recognized that conflicts and disputes over the causes, reasons and consequences of the environmental degradation, complicates efforts to formulate and devise an effective system making it more of a discourse and hinders the addressing of issues such as right to clean environment of all human beings.

Hence steps need to be taken immediately so that this Right to a healthy environment can be properly addressed and our right to a wholesome environment becomes reality and enforceable not only under the apex court’s activism but rather as our right guaranteed by the constitution.

Environmental Justice: Introduction

Environmental Justice in the crux means the rational sharing of the burdens and costs incurred in the process of the protection of the environment, discharged through the procedural and substantive adjustments of rights and duties of the people and the states. This is not restricted to the distribution and division of resources among the present populations, but also pertains to intergenerational equity, i.e. the emerging notion that believes that we humans have a special obligation as custodians or trustees of the planet towards the future generations that are to come to preserve our planet and maintain the planet’s integrity and ensure the survival of the human race.

Nature is not anyone’s property, it is one area of human life where everyone is equal and has equal rights, land, air, water belongs to the whole community as it is not for an individual to own or sell and earn a profit, it for the whole society to share. Environmental justice will not be a success without appropriate law and governance behind it to provide it with the strong foundation and support it needs to stand its ground and help in creating a sustainable future. Development and environment are intertwined with one another and are not mutually exclusive as one can’t be achieved without the progress of others.

Environmental law and justice is not confined to a particular society but it takes into consideration and reflects on the broader arena i.e. our whole world it is a mixed concept consisting of the various forms of national, supranational, international and transnational laws. Environmental justice is goal-oriented and works towards achieving the goals such as sustainable development keeping in mind the main priorities, conflicts, clashes of various interests and most importantly working towards justice and fairness.

Addressing the Issues of Right to Healthy Environment: International Perspective

A right to grow in a healthy environment is a right available to every human being breathing on this earth irrespective of who they are and where they come from as we saw in the 1992 UN Declaration on Environment and Development held in Rio also known as Rio Declaration, which highlighted the linkage between environmental degradation and how this leads to poverty. The declaration also emphasised on the different economic and social conditions for different states and member nations of the UN which includes both developed and developing countries, the main aim is that everyone moves forward towards to a healthy environment and there shall be no discrimination or differentiation in adherence to which Rio Declaration even sets out the principle of ‘common but differentiated responsibilities’.

The 2000 UN Millennium Declaration too stated that “Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.” The declaration through its statement clearly indicates that under environmental justice considerations and benefit should not be limited to a certain part of the society, but rather involve the concerns for each and every individual in the world concerning with all international relations.

Environmental laws must be made to address the concerns of the public keeping in mind the needs and necessities of the citizens to live in a healthy environment, hence the dominating governmental principle of ‘efficiency in priority, fairness in balance’ practiced among may nations including India has been criticised for being one of the fundamental causes of social unfairness and environmental injustice. Environmental laws can only be successful and can achieve the goals of protection and preservation of the environment when they give equal weight to both the power of the public administration and opportunities for citizens and the general public.

Right to Grow in Healthy Environment

Environmental Justice has gained growing importance in our society because of the disastrous impact of ‘warfare’ and militarism, on the human environment which includes high-tech warfare which is directed at destroying infrastructure and affecting the civilian population, hence creating a massive hindrance on the ‘Right to Grow in a Healthy Environment’. Right to grow in a healthy and wholesome environment is our basic human right and has also been given recognition by the Rio Declaration of 1992 where it draws notions of human rights. The law and stipulates that:

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

To claim the Right to a Decent Environment there has to be public participation, where they can claim that their rights have been infringed the established way of community participation in India is to bring a case to court with a claim of a violation of a constitutional right or Fundamental right, e.g. the Right to life, along with various other provisions or environmental regulations. The growing influence of the Indian courts in the Environmental justice field is due to the introduction of the Public trust doctrine, which makes it possible for members of the public or citizens of the country to question the ineffective management of natural resources. In India, the state has a duty to protect and preserve the environment. This is part of the Directive Principle of State Policy but does not imply a Fundamental right, because the right to life is a fundamental constitutional right but the right to a healthy environment, on the other hand, is not an express constitutional right. The Supreme Court of India under its interpretation declared the Right to life guaranteed by Article 21 of the Constitution to include the Right to a wholesome environment

This essay analyses how the government addresses this concern of Right to a healthy environment to achieve the common good, by reflecting on the ‘efficiency in priority, fairness in balance’ and giving more power to a “balancing” or “cost-benefit” approach to development over the human right to a healthy environment. One of the fundamental human right is right to life and due to the increasing ecological danger due to environmental degradation it has come under threat and the need to incorporate human survival which no other government institution or individual can violate is now urgent and more important than ever because environmental dangers are a reality and environmental justice demands it. There is a plethora of laws that deal with environmental degradation and taking human interests into consideration like as we have seen in Agenda 21 in Rio that deals with laws to check air, noise, water, biosphere pollution etc., but these laws do not meet the demands of environmental justice and their impacts have not been great because right to environment has not yet become a part of our human right. The laws passed till now in our country are only in reaction to the deteriorating and disastrous living conditions that have become a huge problem and threat to healthy environment, compensation paid in violation of the environmental degradation is not the proper action but only a temporary relief which is not actually addressing the main, growing concerns of violation of our inviolable nature laws but is only calculating human rights in value of money, which should certainly not be the case as Right to live in a clean and healthy environment cannot be monetised as it is invaluable.

One of the biggest concern and discourse we face in our country is that our constitution does not provide a right to promote, encourage and include public participation in the protection and preservation of the environment and neither does it provide a proper mechanism for maintenance and balanced exploitation of natural resources nor does it set out that the state owns the natural resources. It doesn’t even ensure that the natural resources of the nation are developed, preserved and utilised for the benefit of all citizens of the country irrespective of their backgrounds. The need to address environmental concerns and resource protection in our constitution is important and vital because constitutional level attention means that their protection does not depend on the interpretation and opinion of the judiciary. The constitutional enactment in a country offers an opportunity to promote methods, introduce techniques and chalk out plans to protect the environment and address resource concerns at the highest and most visible level of the legal order.

The trend during the 1980s and 1990s in the environmental justice field saw that there was an influx of litigation and cases in our courts dealing with water, mining and forest conservation. These suits were filed by both individuals as well as community groups. In many of these cases, court had no other option available other than directing the government bodies to take action as they breached a fundamental constitutional right, or set up a committee to monitor and look into the situation and report back to the court for further action, which further delayed the required results and necessary actions, hence enforceable and stricter actions were required. Many of these cases are still pending in the courts for hearing, and it shows that litigation is a lengthy, tiresome and expensive process in this part of the world. Moreover, these litigations bring our attention to the critical and intense relationship between poverty, development and environmental issues. There must be proper ecological balance and environmental cleanliness as it is or basic human right, human or any other forms of life on this earth depends on environmental quality and can survive only as long as there is a healthy and clean environment, hence any action that destroys ecology and environment is against our human rights. Each individual being and community as a whole has a right over the natural environment, any injury to nature or environment around us is an injury to the human interests, hence we know as a matter of fact that right to grow in a healthy environment is a reality and not a mere discourse.

This essay analyses how the government addresses this concern of Right to a healthy environment to achieve the common good, by reflecting on the ‘efficiency in priority, fairness in balance’ and giving more power to a “balancing” or “cost-benefit” approach to development over the human right to a healthy environment. One of the fundamental human right is right to life and due to the increasing ecological danger due to environmental degradation it has come under threat and the need to incorporate human survival which no other government institution or individual can violate is now urgent and more important than ever because environmental dangers are a reality and environmental justice demands it. There is a plethora of laws that deal with environmental degradation and taking human interests into consideration like as we have seen in Agenda 21 in Rio that deals with laws to check air, noise, water, biosphere pollution etc., but these laws do not meet the demands of environmental justice and their impacts have not been great because right to environment has not yet become a part of our human right. The laws passed till now in our country are only in reaction to the deteriorating and disastrous living conditions that have become a huge problem and threat to healthy environment, compensation paid in violation of the environmental degradation is not the proper action but only a temporary relief which is not actually addressing the main, growing concerns of violation of our inviolable nature laws but is only calculating human rights in value of money, which should certainly not be the case as Right to live in a clean and healthy environment cannot be monetised as it is invaluable.

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The laws related to environment that are passed and enforced is not based on the recognition that clean environment is a human right but mainly based on the fact that pollution and degradation of quality causes diseases, ill health and major impact on human life, our legislation and law policymakers need to understand that plants and animals are necessary elements of the total environment for better future of humanity and society at large. As ecological balance is a necessity for human survival it is basically our human right, no one should be allowed to take the ecological rights of others as no one can own nature, hence our constitution has granted us some rights to act as the custodians of the Earth although there is a need to broaden the scope.

Right to Healthy and Clean Environment: Indian Context

Indian efforts regarding environmental protection and right to clean environment started only after Stockholm Conference of 1972, before that the COI adopted in 1950 did not expressly deal with the ‘Protection of Environment’ or ‘Environmental Justice’, nor did it contain any specific provision that addressed the issue. But after the Forty- Second amendment in our constitution in 1976, there was an express constitutional commitment towards the protection and safeguarding of the environment. DPSP that addresses directives to the State was amended to impose an obligation on the State to protect and improve the environment and to safeguard forests and wildlife in the country, whereas for the citizens it introduced a duty to protect and improve the natural environment. These steps highlighted how important it is to take care of the environment with the growing environmental concerns and also brought the attention of the judiciary towards this situation and brought a more ‘judge-induced’ and ‘judicially-administered’ environmental jurisprudence. These laws are fundamental to bring environmental justice and strengthen environmental laws. The state is obliged to form the socio-economic policies by keeping the bigger environmental perspectives in mind.

Under the case of A.P Pollution Control Board V Prof. M.V Nayudu, Justice Jagannath Rao stated that the government must ensure that there is neither danger to the environment nor to ecology, so as to ensure proper human survival and their right to a clean environment and simultaneously ensuring sustainable development.

In Rural Litigation and Entitlement Kendra V State of UP, the apex court observed that hindering development activities that harm the environment and human rights will undoubtedly cause hardship on the economy but it is a price that needs to be paid for protecting and safeguarding the right of people to a healthy environment with minimal disturbance of ecological balance. One of the bigger concerns of our developing society is that our constitution does not confer an express constitutional right to healthy and pollution-free environment on individual, which needs to be addressed sooner or later and needs to be made into a reality rather than just a discourse, but we can see instances of some cases where judiciary took a stand on this matter.

Right to Hygenic Environment: Constitutional Perspective

As there is no constitutional provision till date that addresses right to environment, the only thing that is even close to its nature and can help the citizens safeguard their rights is the Right to Life under A-21 of the COI 1950, which guarantees life and personal liberty, the apex court encouraged PILs so that people deprived of their constitutional rights can get justice. Right to Healthy Environment, right to quality life, right to the pollution-free environment are all integral parts of A-21 and is a derivative of Right to life, which has been held by the Supreme Court and High Courts in numerous cases.

In this case, Supreme Court held that the limestone-mining activities happening in Mussorie-Dehradun region caused ecological disturbance and violated right to life of the people of that region and implicitly declared that right to clean environment is a part of the right to life.

In Charan Lal Sahu V Union Of India, Justice K.N Singh in this case held that within the dimensions of human rights one must also include right to life, liberty, pollution-free air and water which is guaranteed by our constitution under Article-21, 48A and 51A(g) and State has a duty to safeguard these rights and its execution.

In the landmark case of Subhash Kumar V State of Bihar, it was held that Right to live is a fundamental right and hence it includes the right to the enjoyment of pollution-free environment for complete and full enjoyment of life. And also emphasised that if anything endangers or impairs that quality of life that a human being deserves, a citizen has the right to have recourse to A-32 of the Constitution.

In Virender Gaur V State of Haryana, again reclaimed their earlier stand that enjoyment of life and its attainment includes right to live with human dignity which encompasses protection and preservation of the environment, ecological balance free from pollution. Therefore, hygienic environment is an integral part of healthy life and healthy environment, hence the State must strive forward to not only ensure to protect and safeguard the proper environment but also to make it a reality and not a mere discourse with appropriate and adequate measures to promote, protect and improve human life and environment.

In the case of Goa Foundation, Goa V Diksha Holding (Pvt.) Ltd. It was that society shall prosper, but not at the cost of environment and human right to a clean environment, hence a balance must be achieved so that there shall be both development and proper, clean environment.

Under the case of Dr. B.L Wadhera V UOI also known as the Delhi Garbage Case the apex court in very clear words declared that right to live in a clean and healthy environment is a fundamental right and hence needs to be adhered to and followed in every practice.

In this case, Justice Jagannath Rao whilst giving the judgment stated that environmental aspects concern the right to life and human rights concerns the aspect of liberty, both enshrined under A-21 of the COI 1950 and with the growing environmental problems courts must render justice in all considerations under environmental jurisprudence. The apex court decided that ‘healthy environment’ and ‘sustainable development’ were fundamental rights implicit in the right to life.

There is a growing trend of calling the ‘environmental rights’ as ‘third generation rights’ by various jurists. A right to grow in a healthy environment comes under the ambit of A-21 i.e. right to life as it contains everything that human needs to live his/her life with dignity. So that life feels meaningful, complete and worth living. Creating havoc and nuisance to others through noise pollution which creates discomfort and disturbs the peace and quiet of others is known as a noise pollutant and hence violates the right to life of the citizens guaranteed by the constitution and hence held to be hampering the human right to grow in a healthy and pollution-free environment as was held in the case of Re Noise Pollution.

Let’s take a look into the several cases that have challenged the legality of large dams, such as the dispute on the construction of the Sardar Sarovar dam. The emphasis of the PIL was on the relief and rehabilitation of a landless community living around the area of the Sardar Sarovar dam and their right to grow in a healthy environment which was effected due to the huge environmental damage. The Supreme Court in its decision decided that the people displaced by the reservoir construction should be properly resettled before submergence of their homes or lands, as they have a right to wholesome environment.  It was a very important judgement concerning human rights advocacy and represents a major milestone in international human rights norms concerning environmental justice. 

Conclusion

Although the bigger concern is that as long as right to clean environment is a weak right, its efficiency and adequacy depends upon judicial cooperation and activism of the apex court which makes this right more of a debate than a law, but taking in the recent series of changes from a constitutional point of view both the destruction, degradation of nature’s gifts without which enjoying life is not possible and slow poisoning by the polluted atmosphere caused by pollution of environment and further spoiling it for future generations should be regarded as violation of A-21 of COI 1950. The inflow of high amount of writs for enforcement of the newly recognised fundamental right to protection of environment has made right to grow in a healthy environment more of a reality than a discourse with implementation of positive duty of the state to protect and preserve the environment with the help of environmental jurisprudence and judicial infusion.

References

  1. Shelton, D. (2009). Describing the elephant: International justice and environmental law. In J. Ebbesson & P. Okowa (Eds.), ENVIRONMENTAL JUSTICE AND JUSTICE IN CONTEXT (pp. 55-75). Cambridge: Cambridge University Press. 
  2. J. Ebbesson & P. Okowa (Eds.), ENVIRONMENTAL JUSTICE AND JUSTICE IN CONTEXT (pp. 55-75). (Cambridge University Press, 2009)
  3. See, United Nations Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1 (1992), 31 ILM (1992) 876.
  4.  Rio Declaration, 1992, Principle 7.
  5. See, United Nations General Assembly, Resolution 55/2, United Nations Millennium Declaration (A/55/L.2, 18 September 2000), para. 6.
  6. Rio Declaration, 1992, Principle 10.
  7. Richard P. Hiskes, THE HUMAN RIGHT TO A GREEN FUTURE, ENVIRONMENTAL RIGHTS AND INTERGENERATIONAL JUSTICE (Cambridge University Press, 2009).
  8. Constitution of India, 1950, Art. 21. 
  9. The Rio Declaration on Environment and Development 1992.
  10. R.P Singh. Ecological balance as a human right. In R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
  11.  Rosencranz and Divan, ENVIRONMENTAL LAW AND POLICY IN INDIA (pp. 583-601), 2nd Edition, 2001.
  12. R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
  13.  The Rio Declaration on Environment and Development 1992.
  14. R.P Singh. Ecological balance as a human right. In R.B Singh & Suresh Misra (Eds.) ENVIRONMENTAL LAW IN INDIA: ISSUES AND RESPONSES (pp. 20-26). Concept Publishing Company, 1996.
  15.  United Nations Conference on the Human Environment, Stockholm 1972.
  16.  Constitution of India 1950.
  17.  Aruna Venkat, ENVIRONMENT LAW AND POLICY (pp. 51-68). Eastern Economy Edition.
  18.  42nd amendment to the Constitution of India, The Constitution Act, 1976.
  19.  Directive Principles of State Policy.
  20. Constitution of India, 1950, Art. 48(A). 
  21. Constitution of India, 1950, Art. 51-A (g).
  22.  M.C Mehta V Kamalnath and Others, AIR 2000 SC 1997.
  23. AIR 1999 SC 812.
  24. PIL- Public Interest Litigation.
  25. AIR 1990 SC 1480.
  26. Constitution of India, 1950, Art. 32. 
  27. AIR 1990 SC 420.
  28. (1995) 2 SCC 577 SC.
  29.  AIR 2001 SC 184.
  30.  AIR 1996 SC 2969
  31.  re Noise Pollution– Implementation of Laws for Restricting Use of Loudspeakers and Hugh Volume Producing Sound Systems with Forum, Prevention of Environment and Sound Pollution V Union of India, (2005)5 SCC 733.
  32.  Deena R. Hurwitz, Margaret L. Satterthwaite, Douglas B. Ford, eds., West, The Story of Narmada Bachao Andolan: Human Rights in the Global Economy and the Struggle Against the World Bank, 2009 NYU School of Law, Public Law Research Paper No. 08-62, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1315459
  33.  Narmada Bachao Andolan v. Union of India (2005) 4 SCC 32.

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