With rapid and extensive developments in science and technology, humans on this planet have assumed the power and potential to transform the environment in multifarious ways. If humans were to use their capacity and abilities to transform their surroundings and nature wisely, they could enhance their quality of life. On the contrary, the same power, if misused or used heedlessly, the harm that would be inflicted on humans and the environment will be incomprehensible. The stark evidence of harm and devastation caused by the man on earth are:
- Air, water and land pollution which have reached dangerous levels;
- Destruction of life forms and depletion of natural resources;
- Undesirable interferences in the climate through anthropogenic activities and depletion of the ozone layer which forms a protective cover around the planet;
- Anthropogenic activities causing harmful effects to the physical, social and mental health of humans in their living and working environments.
Air, water and land are the natural resources on which humans and all other forms of life are dependent and these basic natural resources help sustain life on this planet and form the basis of survival and livelihood. A large percentage of the population in India is directly dependent on occupations that are land-based, including the forests, marine habitats, and wetlands, to meet their basic needs like water, fuel, food, fodder, medicine, and livelihood. There is an intimate relationship of humans with their environment which in turn greatly influences the culture of societies.
The fundamental aspects of human existence include life, livelihood, culture, and society. Therefore, its preservation and augmentation is a right, which is fundamental to the very existence of humans. Destruction and ruination of the environment and its resources found naturally amounts to a violation of human rights, both directly and indirectly.
There is a direct violation of human rights by disregarding and ignoring those aspects of human life that are indispensable and indirectly through social disruption, conflicts, and war. Thus, the violation of human rights manifests itself resulting in lack of access to clean air, water, and land involving depletion of energy sources, loss of biomass, degradation of health and food security, physical displacement and social and economic marginalization.
Millions of people are compelled to live and thrive below the optimum levels necessary for a dignified human existence, deprived of adequate water, food, clothing, shelter, education, health, and sanitation. These elementary problems were supposed to be alleviated through development, which has instead magnified them manifold through indiscriminate exploitation and appropriation of natural resources. Self-reliant communities have been pushed to abysmal conditions of existence by robbing them of their forests, water, and land in the garb of economic progress.
It is not merely the humans who have been affected by these interventions, but all other forms of life are also facing the consequences. Moreover, the notion of the environment as a basic human right must also envisage and incorporate the necessity to respect the right of other species and life forms. The millions of plants, animals and microorganisms thriving and co-existing with humans play a crucial role in the complex web of mutual association.
This wide gamut of species, their habitats and the genetic miscellany is what is commonly known as biodiversity. Biodiversity plays a crucial role in agriculture, medicine and food which enhances the ecological balance and evolutionary processes. Loss of biodiversity is one of the many aspects of disintegration and weakening of environmental human rights.
Internationally, for the first time, ecological principles were recognized at the United Nations Conference on the Human Environment, Stockholm 1972. The conference emphasised the need for developing common principles and well-established perspectives which would motivate and guide the people the world over to preserve, safeguard and enhance the environment. The conference emphasized on the fundamental right to freedom, equality and adequate conditions of life in an environment that enables and enhances the well-being and a life of dignity coupled with the responsibility to protect, preserve and improve the environment for the present and future generations.
Constitutional and Legal Aspects
In India, there is a comprehensive and fairly wide body of legislative work covering environmental concerns. The framers of the Indian Constitution in 1950 did not include any specific provisions dealing with environmental protection and conservation because they had not envisaged any acute environmental problems that are being currently faced by the country. In this context, two major developments have taken place since.
Firstly, it was the Constitution 42nd Amendment Act, 1976, which incorporated provisions related to the environment, wildlife and forest protection in Part IV i.e., the Directive Principle of State Policy and Part IVA i.e., the Fundamental Duties, of the Constitution and List III i.e., the Concurrent List of the 7th Schedule of the Constitution. Therefore, under Article 48A it is incumbent on the State to protect and improve the environment and safeguard the country’s forests and wildlife.
In addition to the States’ role, under Article 48A, it is also the fundamental duty of every citizen of the country to protect and improve the natural environment which includes lakes, rivers, forests, and wildlife and also have compassion for living creatures. Under the Concurrent list, Entry 17 deals with the prevention of cruelty to animals, Entry 17A deals with forests and Entry 17B with the protection of wild animals and birds.
Secondly, major developments and contributions to environmental jurisprudence have been through judicial pronouncements over the past several years, with special emphasis and interpretation of Article 21 embodying the ‘the right to life’ to include within its scope the right to clean and wholesome environment.
- In Francis Coralie Mullin v Union Territory1 it was held that it is the right of every human being to live with dignity and have access to bare minimum necessities of life like clothing, nutrition and shelter.
- In MC Mehta v Union of India2 priority was given to life, public health and ecology over unemployment and depletion of revenue.
- In Subhash Kumar v State of Bihar3, the Supreme Court vehemently held that the fundamental right embodied under Article 21 includes the right of every human to enjoy water and air, free of pollution in order for full enjoyment of life. Moreover, a citizen would have recourse to Article 32 if anything threatens or jeopardizes the quality and value of life, which goes against the law.
- In MC Mehta v Union of India & Ors.4 (Oleum Gas Leak Case) the Supreme Court propounded a new concept of liability known as absolute liability, in cases of disasters that occurred from inherently hazardous and toxic materials stored, manufactured or used in factories. Irrespective of whether the enterprise is negligent or not it must ensure that no harm is caused to anyone.
- In Vellore Citizens Welfare Forum v Union of India5, the Supreme Court laid emphasis on the principle of ‘sustainable development’ and held that industries play a vital role in the development and growth of a country, but due to the pollution contributed by them, there is a need to adopt a balancing concept to sustain development along with protecting the environment. Furthermore, the Precautionary Principle6 and Polluter Pays Principle7 were adopted and integrated into the domestic law of the country.
- In Indian Council for Enviro Legal Action v Union of India8 (Bichhri Village case) the decision in the Oleum Gas Leak case and the polluter pays principle was referred to and the polluting industries were directed to compensate the villagers in the affected areas, as a result of the harm caused to the soil and underground water.
- In MC Mehta v Kamal Nath9 the Supreme Court enunciated the Doctrine of Public Trust and held that air, water, sea, and forests are of immense importance to humans and these assets are under the trust of the State and no individual can have private ownership of these resources. Instead, they are meant for the use and enjoyment of everyone and must be used judiciously to pass it onto the future generations.
The Supreme Court, by giving such a wide and expansive interpretation to Article 21 of the Constitution, has laid down the foundation of environmental jurisprudence and contributed immensely to protecting the country’s environment. Despite such exemplary evolution and developments in environmental law of the country, the Constitution remains deficient in certain aspects. These include:
- The Constitution does not explicitly include or specify the right to clean water for drinking and an environment free of pollution.
- The term forest has a restrictive meaning and the Courts and other authorities interpret the term forest as a land, which has trees. Therefore, a land without trees is not included within the meaning of a forest.
- There is complacency, lack of interest and neglect in preserving other ecosystems like grasslands, marshes, deserts, mangroves, etc., which form an indispensable part of the ecosystem.
- The fundamental duties impose a duty on every citizen to preserve and protect the environment. In addition to this, responsibilities should be imposed on panchayats and municipalities to give importance and significance to environmental and ecological aspects and contribute towards economic development and social justice.
- As specified under Article 12, compensation can be granted only against the State and not against private parties. Therefore, the right to life of a person against a private party cannot be given protection by the court. And there is no remedy under the Writ jurisdiction of the courts under Article 32 or Article 226 of the Constitution. The legal recourse available to the aggrieved party is to file a suit for damages in a civil court which is time-consuming and not very productive.
Root Cause of Environmental Crisis
Some major causes of environmental problems in India are:
- Economic growth has resulted in the augmentation of energy required for industrial, agriculture and domestic purposes. The environmental impacts of such expansion remain unregulated.
- There is a lack of environmental awareness and literacy among decision and policymakers. The economic and material value of the environment is undermined.
- The environmental principles have not been incorporated in various programmes and policies formulated by the government. The development projects are short-sighted in their outlook and focus on immediate and short-term gains without assessing the long-term impact on ecology and also ignore the social impacts.
- The natural resources are being exploited and depleted through indiscriminate anthropogenic activities.
- The industrial sector has a general lack of concern and indifference towards safety and protection of the environment, which has resulted in irreversible pollution, and air, water, and soil contamination.
- The livelihood needs of Adivasis and people inhabiting the hinterlands remain neglected resulting in resource scarcity and persistent poverty.
- There is immense pressure on the natural resources as a result of uncontrolled, unchecked and unbridled consumerism by the rich and their ignorance with respect to controlled and limited use of such resources.
These are some of the immediate causes, which are easily identifiable, but the problem of environmental degradation and destruction runs deeper into the social, political and economic fabric of our country. The environmental crisis is interfering with the lives and livelihood of people and also weakening the foundation on which the life-support system subsists. It is none other than the humans, more specifically the underprivileged classes and other forms of life that are facing the brunt of it all.
Unsustainable and inherently destructive development models have resulted in inequities among people. The natural resources are depleting as a result of intensive resource and energy consumption through industrial and urban activities. For the sake of economic progress the resource pool meant for the subsistence and survival of the poor and powerless are being gradually exhausted.
The urban growth in India has been phenomenal in the past few decades. There is a steady exodus of people from the rural hinterlands thronging the urban expanse. The urban towns and cities are unable to cope with this steady influx and turning it into an urban nightmare. Chaotic traffic, mushrooming slums, garbage piles and unprecedented levels of toxic air and water are making living in these cities impossible. This is resulting in a host of health-related complications. And yet the worst hit is the jobless, poor and marginalized who lack access to clean water, food and shelter.
The urban environment in India is on the verge of collapsing and is like a ticking time bomb. The air is toxic, the water is not fit for consumption and people are left with no option but to draw water from underground sources, which is further depleting and polluting the reserves. Water bodies within the urban spaces have been converted into an open sewer. The air is so heavily polluted that it’s like living in a toxic gas chamber. Industrial and vehicular emissions along with stubble burning in the northern states of Punjab and Haryana during the winter months are contributing to the toxic smog enveloping the cities.
In addition to the violation of the rights of the people residing in these cities, it is also the rights of the communities living in the rural neighbourhoods that are being violated, who are robbed of their share of resources. The urban dwellers are exhibiting an ugly side of consumerism and greed by exploiting the land, water, forests and minerals. And in the process dispossessing the rural poor of their livelihood resources on which they are largely dependent.
The need of the hour is to express sensitivity towards the ecology, human values, rights and responsibilities. The focus of such integration should be the welfare of humans, developing sound development strategies and sustainable economic and technological models. Some crucial elements of a sustainable future are:
- Decentralized decision making.
- Information access.
- Recognizing the rights of other species.
- Tackling local problems with local solutions.
- Education must be used as a tool to sensitize people about environmental issues and also develop ecological awareness.
Therefore, recognizing the right to a clean and wholesome environment as a fundamental right is a major step in realizing a future where people are conscious of their actions and its consequences on the environment. Human rights and fundamental freedoms enhance the development of qualities that are intrinsic to realizing one’s material and spiritual needs. In the absence of recognition of these rights, the development of a nation and the people in it would remain an unrealized dream.
Therefore, in the context of the environment, human rights have an indispensable role to play. Every human living on this planet, as a part of his basic human right, is entitled to a clean and pristine environment, coupled with an inherent duty to preserve and protect the environment.
The right to the ‘clean and wholesome environment’ as an integral part of ‘right to life’ has been substantiated through judicial pronouncements which also have the Constitutional mandate. Thus, in order to claim one’s right to a clean and wholesome environment, it is necessary to adopt a more holistic and long-sighted approach in addressing environmental concerns. However, enjoying a right without exercising a duty would be unjust and inequitable in the whole scheme of things.
1. 1981 2 SCR 516 available at https://indiankanoon.org/doc/78536/.
2. 1987 Supp. SCC 131 available at https://indiankanoon.org/doc/1486949/.
3. 1999 1 SCC 598 available at https://indiankanoon.org/doc/1646284/.
4. 1987 SCR (I) 819 available at https://indiankanoon.org/doc/1486949/.
5. AIR 1996 SC 2715 available at https://indiankanoon.org/doc/1934103/.
6. The precautionary principle was interpreted by the Supreme Court to mean that the state and statutory authorities should take appropriate environmental measures and when there is a serious threat to the ecology, such measures cannot be postponed due to lack of scientific certainty. Moreover, the State and the statutory authorities must anticipate, prevent and address the cause of environmental degradation and the industry must show that its actions are environmentally benign thereby, shifting the ‘onus of proof’ on the industry.
7. Polluter Pays Principle was interpreted by the Supreme Court to mean that it is not only the victims of pollution who must be compensated but the polluter must also bear the cost of restoring the degradation caused to the environment. Therefore, the polluter is liable to pay the individual sufferers and also bear the cost of restoring the damaged environment. Thus, environmental remediation is a part of sustainable development.
8. 1996 3 SCC 212 available at https://indiankanoon.org/doc/1818014/.
9. 1997 1 SCC 388 available at https://indiankanoon.org/doc/1514672/.
Anasuya hails from Delhi University and she spends most of her time in Reading, Practising Yoga and Working towards community animal welfare. Her Interest area lies in Intellectual Property Law. For any clarifications, feedback, and advice, you can reach her at firstname.lastname@example.org