This article is written by Advocate Satarupa Aich, a legal practitioner.
In the long evolution of the human race on this planet, a stage has been reached when, through the rapid acceleration of science and technology, we have acquired the power to transform our environment in countless ways and on an unprecedented scale.
The enjoyment of all human rights is closely linked to the environmental issue. Not only rights to life and health in the first place, but also other social, economic, cultural, as well as political and civil rights, can be fully enjoyed only in a sound environment. And certainly, to go to an extreme, they cannot be enjoyed at all if the environment becomes impaired beyond a certain critical level.
The whole of mankind could in such a case perish together with all its civilization, including human rights. The worse the environment becomes, the more impaired are human rights, and vice versa. That is the reason why there is the need for sustainable development which means in the first place, ecologically sound development of economies, science and technology, and all other fields is a sine qua non for both protection of the environment and further promotion of human rights.
Human right and Right to environment are not contradictory
Yet the links between human rights, health and environmental protection were apparent at least from the first international conference on the human environment, held in Stockholm Declaration of the United Nations Conference on the Human Environment in 16 th June 1972. Indeed, health has seemed to be the subject that bridges the two fields of environmental protection and human rights. At the Stockholm concluding session, the participants proclaimed that
“ Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. . . . Both aspects of mans environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights even the right to life itself ”
Principle 1 of the Stockholm Declaration established a foundation for linking human rights, health,
and environmental protection, declaring that —– “ Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being ”
Environmental protection is thus an essential instrument in the effort to secure the effective universal enjoyment of human rights. Klaus Toepfer, Executive Director of the United Nations Environment Programme, reflected this approach in his statement to the 57th Session of the Commission on Human Rights in 2001:
“Human rights cannot be secured in a degraded or polluted environment. The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water. Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognize that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.”
In the above context, it is important to recognize our dependence on the earth’s natural resources. Natural resources such as air, water, and land are fundamental to all life forms: they are, much more than money and economic infrastructure, the base of our survival.
In India alone, around 70% of the population directly depends on land-based occupations, forests, wetlands and marine habitats, for basic subsistence requirements with regard to water, food, fuel, housing, fodder and medicine as also for ecological livelihoods & cultural sustenance
Climate change brought about by global warming, is already causing changes in weather patterns, threatening to submerge vast tracts of low-lying coastal areas and islands, and beginning to cause havoc to agricultural systems. Life, livelihoods, culture and society, are fundamental aspects of human existence – hence their maintenance and enhancement is a fundamental human right
Conversely, human rights violations of other kinds can lead to environmental destruction, for instance, displacement by social strife/war can cause environmental damage in areas of relocation; or breakdown in sustainable common property management. The manifestations of such violations present themselves through a loss of access to clean air and water; loss of access to productive land; loss of energy sources and biomass; loss of food and health security; social and economic marginalization; and physical displacement.
It is not only humans that are affected, but all other life forms too. The concept of environment as a basic human right, must also encompass a respect for the right of other species to survive on this planet. There are anywhere between 5 and 50 million species of plants, animals, and microorganisms sharing the earth with us, and each has a value of its own, a role to play in a vast, complex web of interdependent connections.
This range of species, the habitats they live in, and the internal genetic diversity they display, is called biological diversity or biodiversity. Such diversity is part of our daily lives and livelihoods, constituting resources upon which families, communities, nations and future generations depend. Biodiversity has numerous uses in agriculture, medicine, food and industry. It helps to maintain ecological balance and evolutionary processes, and has spiritual, cultural, aesthetic and recreational values.
Destruction of environment and thereby of the natural resources, is therefore, a violation or leads to the violation of human rights –
——- directly by undermining the above aspects of human existence, or
——– indirectly by leading to other violations of human rights, for example through social disruption, conflicts and even war.
The enjoyment of all human rights is closely linked to the environmental issue. Not only rights to life and health in the first place, but also other social, economic, cultural, as well as political and civil rights, can be fully enjoyed only in a sound environment. And certainly, to go to an extreme, they cannot be enjoyed at all if the environment becomes impaired beyond a certain critical level. The whole of mankind could in such a case perish together with all its civilization, including human rights.
The worse the environment becomes, the more impaired are human rights, and vice versa. In this scenario, the importance of strengthening the constitutional safeguards for environment protection and nature conservation cannot be underscored. There can be no doubt that it is only by ensuring ecological security that the goal of sustainable development and national well-being will become feasible.
The General Assembly similarly has called the preservation of nature a prerequisite for the normal life of man.
“ The Rio Declaration on Environment and Development, adopted at the conclusion of the 1992 Conference of Rio de Janeiro on Environment and Development , formulates a link between human rights and environmental protection largely in procedural terms, declaring in Principle 10 that — access to information, public participation and access to effective judicial and administrative proceedings, including redress and remedy, should be guaranteed because environmental issues are best handled with the participation of all concerned citizens, at the relevant level.“
- the Charter of the United Nations, the Universal Declaration of Human Rights,
- the International Covenant on Economic, Social and Cultural Rights,
- the International Covenant on Civil and Political Rights,
- the Vienna Declaration and Programme of Action of the World Conference of Human Rights, and other relevant international human rights instruments
- the Stockholm Declaration of the United Nations Conference on the Human Environment,
- the World Charter for Nature,
- the Rio Declaration on Environment and Development,
- the Right to Development, which recognizes that the right to development is an essential human right and that the human person is the central subject of development,
- the fundamental principles of international humanitarian law,
— and reaffirming the universality, indivisibility and interdependence of all human rights, and
—–recognizing that sustainable development links the right to development and the right to a secure, healthy and ecologically sound environment, and
—– further recalling the right of peoples to self-determination by virtue of which they have the right freely to determine their political status and to pursue their economic, social and cultural development, declare the following principles: —-
- Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.
- All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.
- All persons shall be free from any form of discrimination in regard to actions and decisions that affect the environment.
- All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.
- All persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries.
- All persons have the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems.
- All persons have the right to the highest attainable standard of health free from environmental harm.
- All persons have the right to safe and healthy food and water adequate to their well-being.
- All persons have the right to a safe and healthy working environment.
- All persons have the right to adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment.
All persons have the right to information concerning the environment. This includes information, howsoever compiled, on actions that may affect the environment and information necessary to enable effective public participation in environmental decision-making.
- All persons have the right to hold and express opinions and to disseminate ideas and information regarding the environment.
- All persons have the right to environmental and human rights education.
- All persons have the right to active, free and meaningful participation in planning and decision making activities and processes that may have an impact on the environment and development.
- All persons have the right to associate freely and peacefully with others for purposes of protecting the environment or the rights of persons affected by environmental harm.
- All States shall respect and ensure the right to a secure, healthy and ecologically sound environment. Accordingly, they shall adopt administrative, legislative and other measures necessary to effectively implement the rights in this Declaration. These measures shall aim at the prevention of environmental harm, at the provision of adequate remedies, and at the sustainable use of natural resources.
The environmental conditions have deteriorated and worsened all over the country due to a variety of aggravating factors. The overall situation is certainly a matter of grave concern, more specially because it is affecting adversely the quality of life of the people and eroding the very foundations of the national economy and national security.
Therefore the links between human rights and environmental protection is indivisible and inseparable and thus the right to a safe and healthy environment is an independent substantive human right.
Besides the undeniable interdependence between the environmental issue and all human rights, a new human right – the right to an adequate environment – is emerging. This right, still not precisely formulated, appears in documents and in literature, in some cases as a collective and in other cases as an individual human right.
The Constitutional and Legal Context
Environmental issues have drawn the attention of common people as environmental degradation and pollution have assumed global dimension and are even threating the very existence and survival of mankind. It may be both natural and man-made India has a large body of legislative measures relating to environmental issues. The backbones of these are relevant provisions in India’s Constitution. Many provisions relating to human rights are contained in Part III of Indian Constitution.
Part III of the Constitution of India.
These provisions consists of Article. 12 to Article 35 of our Indian Constitution. Some of the important Articles on human rights are :-
- Art 14 provides for equality before law,
- Art. 15 prohibits discrimination based on religion, race, caste, sex or place of birth,
- Art. 16 provides for equality in public employment,
- Art 19 protects the right of freedom of speech
- Art. 21 provides protection of life and personal liberty.
- Art 25 to 28 ensure the right of freedom of religion.
- Art. 29 & 30 provide for cultural and educational rights.
Thus, the Indian constitution ensures the protection of life and liberty of individuals and groups.
Part IV: Directive Principles of State Policy.
The Art 47 provides that this is the duty of the state, to raise the level of nutrition and the standard of living and to improve public health, the state shall endeavor to bring about prohibition of the consumption except for medicinal purposes intoxicating drinks and of drugs which are injurious to health.
Art. 48A provides that the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country
Part IV-A: Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India –
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
SEVENTH SCHEDULE (Article 246)
List III – Concurrent List
Item no. 17 Prevention of cruelty to animals
Item no. 17A Forests
Item no. 17B Protection of wild animals and birds.
(Write the provisions of these above stated Articles from the Constitution)
Environmental law in the context of human rights presents a new vision and a new scenario for mankind. A new hope is born of creativity, harmony and human brotherhood
Role of Judiciary in protecting environment
The second major development has been the jurisprudence arising from certain remarkable judicial pronouncements in recent years, more specially relating to Article 21 of the Constitution dealing with ‘the right to life’. Some examples:
In Francis Coralie Mullin vs. Union Territory – 1981 2 SCR 516, the Supreme Court held that “The right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter….”
In M. C. Mehta vs. UOI 1987 Supp. SCC 131, the Supreme Court has held that life, public health and ecology have priority over unemployment and loss of revenue.
In Shanti Star Builders vs. Narayan Totame.- 1990(1)SCC 520, the Supreme Court held that right to life is guaranteed in a civilised society would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.
In Subhash Kumar vs. State. of Bihar- (1991) 1 SCC 598, the Supreme Court held that right to life is a fundamental right under Art. 21 of the Constitution and it includes the right to 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 recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to life.
In M. C. Mehta vs. Union of India & Ors. 1987 SCR (I) 819 (the Oleum Gas Leak case), the Supreme Court established a new concept of managerial liability – ‘absolute and non-delegable’ – for disasters arising from the storage of or use of hazardous materials from their factories. The enterprise must ensure that no harm results to anyone irrespective of the fact that it was negligent or not.
In Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715, the Supreme Court held that industries are vital for the country’s development, but having regard to pollution caused by them, principle of ‘Sustainable Development’ has to be adopted as the balancing concept. ‘Precautionary Principle’ and ‘Polluter Pays Principle’ has been accepted as a part of the law of the country.4
4 ‘Precautionary Principle‘ as interpreted by the Supreme Court means – that the required environmental measures should be taken by the State and statutory authorities and the lack of scientific certainty cannot be a ground for postponing such measures where there are serious threats to ecology. That the State and statutory authorities must anticipate, prevent and address the causes of environmental degradation and the ‘onus of proof’ is on the industry to show that its actions are environmentally benign.
‘Polluter Pays Principle’ as interpreted by the Supreme Court means – the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of environment is part of the process of ‘Sustainable Development’ and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damage to the environment.
- In Indian Council of Enviro-Legal Action vs. Union of India, 1996 3 SCC 212 (the Bichhri pollution case), following the decision in the Oleum Gas leak case and based on the polluter pays principle, the polluting industries were directed to compensate for the harm caused by them to the villagers in the affected areas, specially to the soil and to the underground water.
- Enunciating the doctrine of ‘Public Trust’ in M. C. Mehta vs. Kamal Nath (1997) 1 SCC 388, the SC held that resources such as air, sea, waters and the forests have such a great importance to the people as a whole that by leasing ecologically fragile land to the Motel management, the State Government had committed a serious breach of public trust.
- Such wide interpretations of Article 21 by the Supreme Court have over the years become the bedrock of environmental jurisprudence, and have served the cause of protection of India’s environment (and to a lesser extent, of livelihoods based on the natural environment). Adding to this is a large number of laws relating to environment, enacted over the last few decades.
The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings.
Shantistar Builders vs. Narayan Khimalal Totame (AIR 1990 SC 630),
In this case the Supreme Court said: “Basic needs of man have traditionally been accepted to be three – food, clothing, and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in.”
Olga Tellis case (AIR 1986 SC 180)
In this case, the Supreme Court observed “An important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation…. That which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.
An environmental perspective of human rights reveals that global progress is assured for the twenty first century based on eco-management of national and global society. Our Constitution provides for a balance between human rights and duties based on harmony with nature and harmony among people.
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