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Published: Fri, 02 Feb 2018
Life approach to environmental protection
The Constitutional Right To Life Approach To Environmental Protection
Environment and life are interrelated. Our lives depend on natural resources such as air, water, and land. Environmental destruction threatens survival; conversely, human rights violations can cause environmental degradation, for instance, war can lead to loss of access to clean water. Thus, the quality of environment is undeniably related to our enjoyment of the right to life. Because of this interrelationship, environmental and human rights advocates have pushed for the extension of the right to address environmental harm. This essay examines how national courts use the right to life to protect environment.
Constitutions of almost all nations guarantee the right to life. In recent years, national courts of some countries have used the right-to-life provision as a legal tool to protect environment by redefining the scope and meaning of the provision.
Indian courts have made the greatest contribution on this issue. Article 21 of the Indian Constitution provides that “no person shall be deprived of his life or personnel liberty except according to procedures established by law.” Despite being framed as a negative right, the Supreme Court expands it in two ways. First, any laws affecting personal liberty should be reasonable, fair and just. Second, the court recognized several liberties implied by Art.21. It is by the latter the court interprets the right to the life to encompass the right to healthy environment. In Subash Kunar, one of the earliest cases on this issue, the court opined that the right to life included the right to enjoyment of pollution free water.
Later, the court in Vellore Citizen found that tanneries, by discharging untreated effluents into agricultural areas and water supplies, violated citizen’s right to life. The court ordered 900 tanneries in Tamil Nadu to compensate the victims and charged them for restoration cost. In reaching its conclusion, the court relied on two international environmental principles–the precautionary principle and the polluter pays principle.The court defined the precautionary principle to mean that State must anticipate and prevent the cause of environmental degradation; lack of scientific certainty cannot be used to postpone preventive measures; and the onus of proof is on the polluters to show their actions are environmentally benign. The court defined the pollute pays principle to mean that polluting industries are liable to pay both damages to the victims and environment restoration cost. The court considered these principles integral to an interpretation of the constitutional right to life and incorporated them in India’s constitutional jurisprudence.
In India Council for Enviro-Legal Action, the court ruled that the failure on part of the government to control industrials’ emission of toxic chemicals constitutes a violation of the right to life. In this case, several chemical plants were established in Bichhri without properly obtaining permission and clearances, and had failed to obey previous court orders. In the judgment, the court noted that if the agencies concerned failed to perform their statutory duties and their inaction was jeopardizing the citizen’s right to life, it was the duty of the court to intervene and direct them to perform their duties. Therefore, the court ordered agencies concerned to exercise controls over industries, carried out remedial measures, and ordered the closure of the plants and charged them with cleanup cost. The case shows the court’s attempt to enhance accountability of state officers by compelling them to fulfill their statutory mandates.
In T. Damodhar Rao, the court held that the respondents’ attempt to build houses in the area, according to development plan, designated for recreational use was contrary to the right to life provision. The court noted that
“[I]t is the legitimate duty of the courts as the enforcing organs of constitutional objectives to forbid all action of the state and citizen from upsetting the environmental balance”
Thus, the court prohibited the respondents to use the land for residential purposes as it would disrupt environmental balance. This case suggests that actions which did not directly affect physical health, but merely “disturb environmental balance” may constitute a violation of the right to life.
Following India, the Supreme Court of Pakistan in West Pakistan Salt Miners case found a violation of right to life where community water supplies were at risked of being polluted by nearby mining. In the judgment, the court highlighted the importance of water, especially in hilly area where access to water is limited. The court then concluded that the right to unpolluted water is the right to life itself. Therefore, the court ordered the respondent to take necessary measure to prevent drinking water from being polluted, including relocation of the mines. The court also appointed a commission to monitor the implementation of the court order, and prohibited agencies from granting new mining licenses or renewing the old one. What is remarkable about this case is that the court enforced the right to life to “prevent” environmental damage-the petitioner merely claimed that if respondent miners were allowed to continue their activities, water supplies in that area would be contaminated. Another noteworthy aspect was the court’s willingness to include the right to unpolluted water within the purview of the right to life.
In Africa, Tanzania takes the lead on this issue. The High Court ordered the city council to cease dumpling as it created air pollution and caused respiratory problem to nearby residents. The council sought several extensions to comply with the order; however, the court rejected the council’s petitions on the ground that garbage dumping threatened public health and thus violating constitutional right to life.
At another far corner of the world, the Columbian courts found a violation of citizen’s right to life where industry released toxic fumes from an open pit; thus ordering the industry to remove the wastes and compensate affected persons. Similar expansive interpretation has also been followed by Nepal, Bangladesh, Ecuador and Costa Rica.
Considering universal recognition of the right to life as a fundamental right, the right to life could constitute an alternative tool to protect environment, especially when a country lacks specific provision regarding the right to a healthy environment or a comprehensive environmental regulatory regime. Nonetheless, the effectiveness of the vindication of right to life to protect environment depends largely on a strong, independent, and sympathetic judiciary. This should be coupled with liberal standing rules or citizen suit provision to enable people to actively contribute to environmental protection. This is the case in India where the largest jurisprudence concerning environment aspect of the right to life has been generated.
As seen in these cases, the courts have found violations of right to life when the release of pollutants have a direct effect on human health and when agencies involved fails to performed their duties to protect public health and environment. In addition, the right to life can be invoked to prevent environmental damage that could harm pubic heath as in T. Damodhar Rao and West Pakistan Salt Miners. Also, a broad range of remedies has been provided: courts ordered polluters to pay for the damages done, to cease polluting activities, to shut down their business, or to relocate their operations. Courts also order government to properly enforce the regulations, to impose penalties on polluters, to deny license, etc.
These cases show a bold stance taken by national courts and the emphasis they lay on the protection of public health and environment over economics cost implications of a judgment in favour of victims. Courts from other jurisdictions could surly follow the reasoning and rational of the above cases in order to draw similar interpretation on the right to life.
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