HUMAN RIGHTS

RIGHT TO ENVIRONMENT AS A BASIC HUMAN RIGHT : A

CRITICAL ANALYSIS

Submitted to:

DR. KAUMUDHI CHALLA

Assistant Professor

Hidayatullah National Law University, Raipur

Submitted by:

SRIKANT SIRKA

Roll No. 168, Semester IX, Section A

Batch ID: 017/2017/1732

Hidayatullah National Law University

Sector 40, Uparwara, Nava Raipur Atal Nagar, Raipur Chhattisgarh 492002, India
Research Objectives:

• To understand the meaning of human right

• To understand the meaning of a environment and role of human right
activism
• To analyse the provisions of constitution
Research Questions:

1. What do we mean by a human rights

2. What do we mean by a environment
3. Is there any constitutional provision provided for environmet?

Methodology:

The research work has been done using the descriptive methodology and the
same is doctrinal and analytical in nature.
As to the source of the study, second hand data has been taken into account. The
necessary information has been gathered from published sources such as books,
Journals, Articles, Newspapers, Magazines, etc.
 INTRODUCTION

“Human life and the human environment are inseparable. To survive, humans must have air to
breathe, water to drink, food to eat, and a place in which to live and sleep. If these elements
become polluted, contaminated, or are eliminated or destroyed, life will cease to exist. To
protect human life, our environmental life support system must be maintained and protected.
One way to accomplish this protection is through the enactment or recognition of a legal human
right to environment. For over two decades, scholars have debated the existence of a human
right to environment. These debates have varied from generalized notions of what to include
within the term "environment" to actual proposals for amendments to multinational human
rights conventions. Unfortunately, the attention given to this subject over the years has not
resulted in any substantial headway toward a legal recognition of the right.”

To understand the concept of environment as a human right, a brief background on international

human rights is necessary. A human right by definition is a universal moral right, something
which all people everywhere at all times ought to have, something of which no one may be
deprived without a grave affront to justice, something which is owing to every human being
simply because he is human. 1 “Human rights are also legal rights which possess one or more
of the following characteristics: appurtenance to the human person or group; essential for
international order; essential to human life, security, survival, dignity, liberty, and equality;
essential as a place within the conscience of mankind; essential for the protection of vulnerable
groups; and universality. 2 The human right to environment possesses all of the above
characteristics. In addition, all the features of a right of the new generation are there:
elaboration of a specialized body of international environmental law; an easily identifiable
international legislative process; incorporation of the right as a human right within municipal
legal systems; and the need for concerted efforts of all social actors.”

“The problems of the environment are no longer being viewed exclusively from the angle of
the pollution affecting the industrialized countries but seen rather as a worldwide hazard-
threatening the planet and the whole of mankind, as well as future generations. The realization
of the global character of environmental problems is attested by the progress made in
understanding the phenomena that create hazards for the planet, threaten the living condition

1
M. CRANSTON, WHAT ARE HUMAN RIGHTS? 36 (1973),
2
Alston, supra note 2, at 615 n.30. See also Ramcharan, The Concept of Human Rights in Contemporary
International Law, 1983
of human beings and impair their fundamental rights. These phenomena concern not only the
natural environment (the pollution of water, air, and atmosphere, seas, oceans and rivers;
depletion of ozone layer; climatic changes) and natural resources (desertification,
deforestation, soil erosion, disappearance of certain species; deterioration of flora and fauna,
exhaustion of non-renewable resources, etc.) but also population and human settlements
(housing, town planning, demography, etc.) and the rights of human beings (the human
environment, living, working and health conditions; conditions for their exercise and the
enjoyment of fundamental rights). By means of global approach to these phenomena that takes
in their multidimensional aspects, including their human aspects, it has become possible to
move from environmental law to environmental rights, proclaimed by the 1972 Stockholm
Declaration.” At the time of formation of UDHR in 1948, the adverse impact of environmental
harm was not much felt by the people. The prime concern of the nations was on
industrialization and development of economy.
United Nations Environment Programme:

“UNEP is an important agency, dealing with the environmental issues. It has contributed to the
development of international guidelines, recommendations and norms approved by the UN
general assembly. Their proposals have an influential effect though they are not legally binding.
UNEP was explicitly created to cover a variety of environmental issues, ranging from control
of air pollution and protection of the ozone layer to biological diversity. Apart from providing
information about environmental quality, it also finances the protection of tropical forests,
wildlife preservation and other projects.” In collaboration with the World Wildlife Fund and
the International Union for the Conservation of Nature and Natural resources (lUCN), UNEP
launched the world conservation strategy in 1980, which aimed at preserving genetic diversity
and ensuring the sustainable utilization of species and ecosystem. UNEP was given a broad
coordination role to oversee the work carried out by other agencies in the areas of ozone
depletion.

European Human Rights Bodies:

“The right to life in an essential human right with environmental aspects, although not based
on environmental facts, one Council of Europe case suggests that a Government may be liable
in certain circumstances for loss of life if it fails to protect its citizens from life-threatening
dangers. In Pine Valley Developments Limited and Others V. Ireland 3, the applicants
complained that the denial by local planning authorities of permission to construct commercial
buildings on their land constituted a violation of protocol I, article 1.” Permission to build was
denied because the area was zoned as a green belt. The court concluded that, although the
planning restrictions constituted an interference with the right to peaceful enjoyment, the
interference did not constitute a violation of Protocol I, article 1, “because it was lawful, in
pursuit of a legitimate aim and proportionate to that aim. The court stated that preventing
construction "for the further development of agriculture so as to preserve a green belt must be
regarded as a proper way if not the only way of achieving that aim. This case thus demonstrates
that environmental concerns are encompassed within the human rights instruments. Support
for the claim that government-must take positive steps to guarantee human rights is found.”
France, where the applicant alleged that Government had violated her right to peaceful

3
European Human Rights Reports (1991), p. 319
enjoyment of her property by building a nuclear power plant near her home. “In that case the
court implied that states may have to take affirmative action to protect human rights. The Court
stated that a State has not only the duty to respect, but also to protect rights. The claim was
ultimately declared inadmissible, but it should be noted that the claimant had already received
some compensation from the Government.”

World Conference on Human Rights:

“The World Conference on Human Rights, held at Vienna from 14 to 25 June 1993, solemnly
adopted the Vienna Declaration and Programme of Action containing 142 paragraphs on
various aspects of human rights. It is worth quoting those directly related to the right to the
right to development and environment. The right to development should be fulfilled so as to
meet equitably the developmental and environmental needs of present and future generations.
The World Conference on Human Rights recognizes that illicit dumping of toxic and dangerous
substances and waste potentially constituters a serious threat to the human rights to life and
health of everyone. Consequently the World Conference on Human Rights calls on all states to
adopt and vigorously implement existing conventions relating to the dumping of toxic and
dangerous products and waste and to cooperate in the prevention of illicit dumping”

The Constitution of India and Clean Environment:

“In the realm of the fundamental rights the most essential right is the right of life guaranteed
by Article 21 of the Indian Constitution, which the article says that cannot be taken away accept
according to procedure established by law. To safeguard this right and other fundamental rights
we do have a very special feature in the Constitution of India known as right to constitutional
remedies. Article 32 of the constitution empowers the supreme court in an appropriate
proceeding to issue not only writ of mandamus, certiorari, prohibition or quo wanranto but also
any other direction, order or writ for the enforcement of fundamental rights. The same power
is vested in the High Courts under Article 226 of the Constitution.” It is upon the exercise of
this power of judicial review the Courts are called upon to decide whether any instrumentality,
“agency or organs of the state has transgressed or exceeded the limits of power conferred upon
it and to ensure that the state and the public officials fulfill the obligation of the Constitution
and the law under which they exist and function. In addition to Chapter on Fundamental Rights,
the Constitution of India contains a Chapter on Directive Principles of State Policy, which
emphasize in amplification of the preamble, that the goal of Indian polity is not laissez faire,
but welfare state, where the state has positive duty to ensure to its citizens social and economic
justice and dignity of the individual.”

According to Article 48A of the Directive Principles the State should strive to protect and
improve the environment and to safeguard forests and wildlife. “And Article 51A(g) of part
IV-A of Fundamental Duties states that it shall be the duty of every citizen of Indian to protect
and improve the natural environment. Life means to live with human dignity but if one cannot
breath clean air, have safe drinking water or health food, the all human rights civil, political,
social or economic are meaningless. Due to appalling scenario of the environmental pollution
in our country the supreme court sharpened its tools and strategies during mid-80's and 90's by
keeping aside all technical rules of procedure and liberalised the rule of 'locus standi' in order
to alleviate the sufferings of the victims of environmental pollution under the banner of Public
Interest Litigation (PIL).” The courts have given expanded interpretation to Article 21
concerning the right to life to include all those rights which are essential and basic for the
enjoyment of the quality of life free from environmental pollution and other health and
consumer hazards. “The interpretation given by Supreme Court of India in A.K. Gopalan V.
State of Madras4 & Khark Singh V. State of U.P.5 held that under article 21, the right of life
does not mean mere animal existence. Further Maneka Gandhi's Case laid down that a law
affecting life and liberty of a person has to stand the scrutiny of article 14 and 19 of the
Constitution. In other words, if a law is enacted by legislature which touches upon the life and
liberty of a person and curtails it, then it is mandatory requirement that procedure established
by it for curtailing the liberty of a person must be reasonable, fair and just. It is this
interpretation of article 21 which court has extended further so as to include the right to
wholesome environment. In other words if pollution causes permanent disabilities leading to
malfunctioning or nonfunctioning of vital organs of the body of a person then such disability
may reduce him to mere animal existence and thereby deny him right to life.”

“The question whether right to a clean environment is part of the right of life was examined by
the supreme court in Subhash Kumar V. State of Bihar.6 In this case Supreme Court declared

4
AIR 1950, SC 27
5
AIR 1963, SC1295
6
AIR 1978, SC 597
that the right to a wholesome environment formed an integral part of the right to life guaranteed
by article 21 of the Indian Constitution. The Court stated: The right to life is a fundamental
right under article 21 of the constitution and it includes the right of 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 the right to have recourse to article 32 of the constitution for
removing the pollution of water or air which may be detrimental to the quality of life. In this
connection it will be worth to refer to Dehradun Quarry's case. In this case the Supreme Court
entertained complaints from Rural Litigation and Entitlement Kendra, Dehradun (a voluntary
organistion) alleging that the operation of limestone quarries in the Mussoorie Dehradun region
resulted in degradation of the environment affecting the fragile ecosystem in the area. In this
connection the Supreme Court moving under Article 32 ordered the closure of some of these
quarries on the ground that these were upsetting the ecological balance, though the judgment
did not make a reference to Article 21 but involving of jurisdiction by the Court under Article
32 presupposed the violation of right to life guaranteed under Article 21. This role of the Court
also finds support from the observations of Justice Singh in Ganga Pollution Tanneries case as
justifying its closure. The Court noted in conclusion: we are conscious that closure of tanneries
may bring unemployment, loss of revenue, but life, health and ecology have greater importance
to the people. Besides, some High Courts have also accorded recognition to this environmental
dimension of Article 21 such as judgment by the Andhra Pradesh High Court in T. Damodar
Rao V. Special Officer Municipal Corporation,7 Hyderabad explicitly recognised an
environmental dimension to Article 21 while considering a writ petition to enjoin the Life
Insurance Corporation and Income Tax Department from building residential houses in a
recreation zone, held: It would be reasonable to hold that the enjoyment of life and its
attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection
and preservation of nature's gifts without which life cannot be enjoyed.” There can be no reason
why practice of violent extinguishment of life alone should be regarded as violation of Article
21 of the Constitution. The slow poisoning by the polluted atmosphere caused by
environmental pollution and spoliation should also be regarded as violation of Article 21 of the
Constitution. The Court held that the attempt of the respondents to build houses in this area is
contrary to law and also contrary to Article 21 of the Constitution.

7
AIR, 1987 AP 171
“ the judgment of Lakshmipathy V. State of Karnataka the Karnataka High Court8 made the
following observations : The movement for restoration and maintenance of a livable
environment requires curbing of power of narrowly oriented administrative agencies in
appropriation of the dwindling acreage of land and water not already irrevocably appropriate,
"Environment Protection is not a pre-occupation of the educated and affluent. It has a socio-
political dimension. The disposal and the control of toxic waste and governmental regulation
of polluting industries is public interest oriented. The effective implementation of
environmental legislation is a social learning process which could fundamental change the
character of public administration.”

8
AIR, 1992 Karnataka 57.
 CONCLUSION

“Man cannot lead a life of isolation. Dependence is his very psychology and individuals depend
on one another and on the State as a whole. As Ernest Barker says that State has a collective
life like an organism. The attainment of the common purpose therefore depends upon the proper
performance by every individual of his function and duties. Every citizen has social obligations
to himself, to his family, to his neighbours, and to the society of which he is a unit. So from the
foregoing discussion we can say that human life would be no where if the sacredness of this
claim is not accepted. The right to life is, therefore, the most fundamental of all rights, as it is
the very core of humanity. It means a claim to so live that the existence does not jeopardise the
existence of others. It is not only responsibility of individual alone but State is bigger partner
in preserving environment and in realistaion of right to life with human dignity. It is essential
to create a shared international vision of long term goals and to build the international
frameworks that will help each country to play its part in meeting these common goals. There
should be compatibility between environment and economic development. Living standards
beyond basic minimum are sustainable only if consumption standards everywhere have regard
for long term sustainability. Industrialized countries have an obligation to lead developing
countries by shifting to sustainable development paths that would lead to significant reduction
in greenhouse gas emissions; promoting aggressive research on environmentally sustainable
technologies; transferring such technologies to developing countries; and making large
investments in climate friendly technologies in developing countries. There should be
monitoring and reporting mechanism to provide a repository for information on compliance
with universally accepted norms, and a continuous and transparent effort.”