Right to Clean Environment: A basic Human Right
I. Environment as a basic right
The concept of human rights in general emerged after the Second World War, but the right to a healthy environment, as one of those human rights, was never a priority. Today, this right is an emerging concept that is being hotly debated in the human rights arena. A healthy environment is an essential aspect of the right to life, not only for human beings but also for other animals on the planet. Violation, therefore, of the right to healthy environment is potentially a violation of the basic right to life.
Environmental deterioration could eventually endanger life of present and future generations. Therefore, the right to life has been used in a diversified manner in India. It includes, inter alia, the right to survive as a species, quality of life, the right to live with dignity and the right to livelihood. In India, this has been expressly recognised as a constitutional right. Article 21 of the Indian Constitution states: 'No person shall be deprived of his life or personal liberty except according to procedures established by law.' The Supreme Court expanded this negative right in two ways. Firstly, any law affecting personal liberty should be reasonable, fair and just. Secondly, the Court recognised several unarticulated liberties that were implied by article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to a clean environment.
II. International scenario
The human conference on human environment held at Stockholm in 1972. Popularly called as the Magna Carta of human environment warned that the “natural resources of the Earth including air, water, land, flaura and fauna and especially the representative sample of natural ecosystem must be safeguarded for the benefit of the present and future generations through careful planning or management as appropriate.” The report on the World Commission on Environment and Development suggested 22 legal principles for environmental protection and sustainable development. ‘Caring for the Earth 1991’ and the ‘Earth Summit’ of 1992 also declared that human beings are entitled to a healthy and productive life in harmony with nature.
III. Indian scenario
Although the real panic in India came to be felt only after the Bhopal gas tragedy in 1984, yet it began concentrating on the problem of pollution soon after the Stockholm conference. India parliament passed many statutes to protect and improve the environment viz. Wildlife (protection) Act, 1972; Water (prevention and control of pollution) Act, 1974; the forest (conservation) Act, 1989; the air (prevention and control of pollution) Act,1981 and above all the Environment (protection) Act, 1986. Further the constitutional (forty-second Amendment) Act, 1976 incorporated two significant articles viz. Article 48-A and 51A (g) thereby making the Indian Constitution the first in the world conferring constitutional status to the environment protection.
An international conference on Environmental education was conducted at New Delhi which called for a massive programme on environmental education, research and monitoring emphasizing on the need for both formal and informal education, which should start right from the childhood stressing for the need of governmental and nongovernmental organizations and specialized institutions to come forward for teaching and training towards protection of the environment.
The Penal Code too at that time contained provisions making pollution a crime.
Section 277 relates to water pollution.
Section 278 relates to water pollution
Section 426, 430, 431 and 432 relates to pollution in general.
Section 368 talks about public nuisance where under noise pollution can inter alia be controlled.
The concern for an integrated environment in the context for planning for economic development was specifically raised in the fourth five year plan, which mainly talked about the obligation of each generation to have a sustainable development and also about the inter- dependence of living things and their relationship with land, air and water.
The National Committee on Environmental Planning and Coordination (NCEPC) was established in February, 1972 and within its purview were covered several environmental projects like human settlements, planning, survey of natural eco- systems, like wetlands and spreading of environmental awareness. In every State and in Union Territories environmental boards have eventually been set up and the major object of the committee was to advise on environmental problems and to make recommendations for their improvement. This office was finally made the Environment Division of the Department of Science and Technology.
Another Committee, designated as the Tiwari Committee came to be set up in 1980 (also referred to as the committee for environmental protection). It not only considered the laws which protect the environment but also the 200 odd laws which in their functioning didn’t virtually protect the environment. In its review it noted the following major short comings:-
Most of such laws had become outdated.
The laws lacked the statements of explicit policy objectives.
The laws lacked adequate provisions for helping the machinery for their implementation.
The laws were mutually inconsistent.
There was no procedure for reviewing the efficiency of those laws.
The environmental jurisprudence in India today is developed mostly by the various interpretations given by the apex court involving different facets, some of them are as follows:-
1. M.C Mehta v. UOI
Directions to remove environmental illiteracy were given-
• Cinema halls/video parlors to exhibit not less than two slides on environment prepared by the ministry of environment.
• Doordarshan and AIR to allot 5-7 minutes daily for interesting programmes on environment.
• Environment be made a compulsory subject in a graded way in schools and colleges and universities shall prescribe a course for the same.
2. M. C Mehta v. Kamal Nath
Supreme Court made it crystal clear that any disturbance of basic environmental elements namely air, water and soil which are necessary for life would be hazardous to life and can’t be polluted. (Hotel was discharging effluent into river and hence causing disturbance to aquatic life and water sanitation).
3. Rural litigation and entitlement Kendra v. State of U.P
Limestone mining which denuded mussoorie hills of trees and forests cover and accentuated soil erosion resulting in blockage of underground water channels were banned.
4. Tarun Bharat Sangh (NGO) v. UOI
Closure of all 400 marble mines around Sariska tiger reserve which threatened the wildlife of that area.
5. Preventing pollution of Ganga and Yamuna, 1995
Under the Environmental protection Act, 1986 the Supreme Court asked for the removal of all polluting industries settled on the bank of Ganga in Kanpur, Hoogly in Calcutta and of Yamuna in Delhi.
6. Protection of silent valley biodiversity in western ghats, 1970
Construction of dam for hydropower in Kerela stopped because of which the richest biodiversity in the world after Amazonia could have been completely destroyed.
7. Vellore citizens welfare forum v. UOI
Precautionary principle and polluter pays principle was evolved. It was a case of tanneries causing pollution to clean drinking water in Tamil Nadu.
8. T.N Godavarman Thirummalpad v. UOI
1 crore fine was levied on Himachal Pradesh government for allowing companies to paint ads on eco – fragile rock faces on both sides of Rohtang- Manali road.
9. M.C Mehta v. UOI
Also famous as the Taj trapezium case, in which industries were asked to shift from the use of coke/ coal to natural gas. For those who can’t will have to stop functioning.
10. P.A. Jacob v. Suprintendent of police, Kottayam
In this case the Kerela high Court held that the freedom of speech does not include freedom to use loudspeakers or sound amplifiers to cause noise pollution and risk to human health.
11. T.K. Koolwal v. State of Rajasthan
The High court extended the right to know to entitle a person to have complete information about the sanitation programme of the municipal corporation. Hence, the citizens’ access to official environmental information within reasonable limits is now a guaranteed right.
12. M.C Mehta v. Union of India
The apex court directed certain tanneries to stop functioning as they were discharging foul effluents without setting up a primary treatment plant and held that “we are conscious that closure of industries may bring unemployment, loss of revenue but life, health and ecology have a greater importance to people”
13. M.C Mehta v. Union of India
The apex court directed the closure of certain industries that were not showing any progress towards setting up of air- pollution control system in compliance with their earlier order.
14. Indian council for Enviro-Legal action v. Union of India
It is also popularly known as the coastal zone protection case, the apex court took a serious view of the executive’s lethargic attitude in implementing the laws meant for the protection of right to life and directed them to implement the relevant laws strictly to maintain ecological balance.
15. Subhash Kumar v. State of Bihar
It was held that the right to enjoyment of pollution free water and air for full enjoyment of life was held as a part of right to life under Article 21.
16. Consumer Education and research forum v. Union of India
The court in this case took a view that right to good health was an integral facet of meaningful right to life and extended the right to robust health and vigor of the workers without the workers would lead a life of misery.
17. Murli S. Deora v. Union of India
The Supreme Court banned smoking in public places by ruling that non-smokers cannot be compelled to be helpless victims of air pollution.
18. Sacchidanand Oandey v. State of West Bengal
The court said that when it is called upon to give effect to directive principles and fundamental duties, court is not to shrug its shoulders and say that priorities are a matter for the policy making authority. The court hence may always give necessary directions.
At present, all of us all over the globe face grave environmental problems. The continuing deterioration of earth’s ecological reserves poses a serious threat to the pollution free environment. One of the most complex challenges facing our generation is to maintain a workable synergy between sustainable economic development and pollution free environment. The factors which have contributed most directly to the excessive pressure on the environment and natural resources in India are:-
1. A doubling of the region’s population over the past four decades.
2. A tripling of economic output, and
3. The persistence of poverty.
The movements are massive and legal maneuvers stupendous, but much appears to be yet in store. The children and the layman have all become endowed with the consciousness for a halcyonic environment. However, positive results are not forthcoming. The prospects are murky and future is unsafe but pessimism is no cult to advocate and human dedication to combat pollution has to march ahead undaunted.
In this scenario, India needs a global war on environmental degradation that is as aggressive and well - funded as the war on terrorism. More than ever we need to take necessary steps to ensure that the environment remains at the top of our agenda.
• Charan lal sahu v. UOI AIR 1990 SC1480
• Consumer Education and research forum v. Union of India AIR 2001 SC 1948.
• Indian council for Enviro-Legal action v. Union of India (1996) 5 SCC281.
• M. C Mehta v. Kamal Nath AIR 2002 SC 1997.
• M.C Mehta v. Union of India AIR 1988 SC 1037.
• M.C Mehta v. Union of India1994 Supp. 3SCC 717.
• M.C Mehta v. UOI AIR 1992 SC 382.
• M.C Mehta v. UOI AIR 1997 SC 734.
• Maneka Gandhi v. Union of India AIR 1978 SC 597
• Murli S. Deora v. Union of India AIR 2002 SC 40.
• P.A. Jacob v. Suprintendent of police, Kottayam AIR 1993 ker. 1.
• Rural litigation and entitlement Kendra v. State of U.P AIR 1985 SC 625.
• Sacchidanand Oandey v. State of West Bengal AIR 1987 SC 1109.
• Subhash Kumar v. State of Bihar AIR 1991 SC 420.
• T.K. Koolwal v. State of Rajasthan AIR 1988 Raj. 2.
• T.N Godavarman Thirummalpad v. UOI 2003 (6) Scale 354.
• Tarun Bharat Sangh (NGO) v. UOI AIR 1992 SC 514.
• Vellore citizen’s welfare forum v. UOI AIR 1986 SC 2715.
• Dr Gyan Basnet, The Right to Healthy Environment available at http://www.nepalnews.com/home/index.php/guest-column/19926-the-right-to-healthy-environment-.html (visited november1st 2012)
• http://pib.nic.in/focus/fomore/env.html (visited november7th 2012)
• http://planningcommission.nic.in/plans/planrel/fiveyr/6th/6planch20.html (visited november7th 2012)
• P. Leelakrishnan, Law and Environment (Chapter 10 at 144, Eastern Book Company, India 1992)
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