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Constitutional Perspective On Environment

Protection and improvement of environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a Welfare State. The Indian Constitution contains specific provisions for environment protection under the chapters of Directive Principles of State Policy and Fundamental Duties. The absence of a specific provision in the Constitution recognizing the fundamental right to clean and wholesome environment has been set off by judicial activism in the recent times.

The Constitution of India in Part III guaranteed certain fundamental rights, which include right to life. The meaning and extent of right to life has now been crystallized through various decisions of the Apex Court. The right to life includes right to live under a congenial and peaceful atmosphere. It means a dignified living, a healthy living. A man is born free. The nature is in abundance. The nature is a gift of the God as the life itself. The God has created nature to sustain life. Life cannot be lived without the nature. The nature provides the air to breath, land to live, water to drink and flora fauna to sustain upon. A man has a right to breathe pure air; drink and use pure water and live in a clean land. Man is a civilized person. For sustenance and better living, man has created cities.

Municipal bodies manage the cities. Man has created law for better living and for protecting life. It is man who also creates hindrance to life and living by adopting various means polluting the air, water and the nature. Certain activities of some people offend the right of a man to live the life as the God had destined. They generate various kinds of environmental pollutions. In order to protect man from such pollution, there is a worldwide effort. Environmental laws are being enacted. Even provisions for environmental protection have been incorporated in various other municipal laws. [State of West Bengal vs Sanjeevani Projects (P) Ltd., 2006 (1) CHN 241]

Healthy Environment: A Human Right

The term “human right” was not that popular until the last century, and no global accord existed before the Universal Declaration of Human Rights stressing that “all human beings are born free and equal in dignity and rights.” The Declaration affirms that “everyone has the right to life, liberty, and security of person, and guarantees to all people the right to a standard of living adequate for health and well-being.”

Human rights and the environment are intertwined; human rights cannot be enjoyed without a safe, clean and healthy environment; and sustainable environmental governance cannot exist without the establishment of and respect for human rights. This relationship is increasingly recognised, as the right to a healthy environment is enshrined in over 100 Constitutions1).

The human right to a healthy environment brings together the environmental dimensions of civil, cultural, economic, political, and social rights, and protects the core elements of the natural environment that enable a life of dignity. Diverse ecosystems and clean water, air, and soils are indispensable for human health and security. The right also protects the civic space for individuals to engage in dialogue on environmental policy. Without it, government policies often cater to the commercial interests of the powerful, not the public, and certainly not the politically disenfranchised.

The right to a healthy environment brings together all that humanity has learned about how human rights and the environment interact. It encompasses the environmental dimensions of the rights to life, health, food, water, sanitation, property, private life, culture, and non-discrimination, among others. It will give those exposed to mercury in artisanal gold mines in the Philippines, those poisoned by soot in PiquiA de Baixo in North-eastern Brazil; those contaminated by lead in Kosovo, and activists attacked for protecting their environment and lands, the tools and political leverage they need to defend their rights.2)

International concerns with human rights, health and environmental protection have expanded considerably in the past several decades. In response, the international community has created a vast array of international legal instruments, specialized organs, and agencies at the global and regional levels to respond to identified problems in each of the three areas. Often these have seemed to develop in isolation from one another. 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 in 1972. Indeed, health has seemed to be the subject that bridges the two fields of environmental protection and human rights3).

Clean environment essential for human rights

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 well4).

The UN Human Rights Committee has indicated that State obligations to protect the right to life can include positive measures designed to reduce infant mortality and protect against malnutrition and epidemics. The Committee has interpreted Article 27 of the Covenant on Civil and Political Rights broadly, observing that— “Culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.”

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.

UN Environment Programme
Marcos A Orellana: Director of the Environment and Human Rights Program at Human Rights Watch
Dinah Shelton: Notre Dame University]
Klaus Toepfer: Executive Director, UN Environment Programme

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