The purpose of this paper is to analyse the relationship between the right to clean environment and the right to life as guaranteed under the Article 21 of the Constitution. The person will be able to lead a good and happy life if he/she is healthy and is not suffering from any health hazards and he is not denied any of his other Fundamental rights. Further, the person will only remain healthy if he is living in the healthy environment and his surroundings are clean. We need fresh air to breathe, fresh water to drink, shelter to live, etc. These all we derive from the nature. So, in order to lead a dignified life one needs to protect his or her environment.
So, in order to reflect all the ideas, my paper firstly talk about the concept of Right to Life under Article 21 of the constitution and how this concept has been broadened by the time. Then, I will be discussing the basic background of the environment. Further, I will talk about the Right to Clean Environment in relation to the Article 21 of the Constitution with the help of cases. In order to maintain the clean environment, it is possible that the right to development may be sacrificed. So, such types of issues are important to address in order to get the clear understanding.
Concept Of Right To Life:
Article 21 of the Constitution of India deals with the protection of life and personal liberty enshrined under the fundamental rights. This article states that-
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
This article is considered to be the most important article of all. Although all articles are equally important but since it deals with our life which is the foremost thing for individual and also all other rights of the individual revolve around this article, that is why, it is very important. “Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived.” The right to life is difficult to define as it is not just taking away one’s life rather it has a much wider application.
Earlier the scope of Article 21 was a bit narrow as it was held in the A.K. Gopalan vs. State of Madras that “the personal liberty was confined to freedom of detention and therefore, deprivation does not restrict upon the right to move freely which came under article 19 (1) (d).” But then the case of Maneka Gandhi vs. Union of India came which resolved the issue of reasonableness of law with respect to article 14 and 19 and held that “the procedure must be right, fair and not arbitrary, fanciful or oppressive.”
Then further it was argued that the ‘life’ in Article 21 does not mean merely ‘animal existence’ but living with ‘human dignity’. In the case of Francis Coralie vs. Union territory of Delhi, it was held that “the right to life includes the right to live with human dignity which further incorporates basic necessities like adequate nutrition, clothing and shelter and facilities for reading writing and expressing oneself, freely moving and mixing and commingle with fellow human beings.” Also, the minimum requirements like protection of the health and strength of the workers and of the children against abuse, educational facilities, just and humane conditions of work and maternity relief, etc must exist for a person to live with dignity. Then from there onwards, Courts went on discussing cases about the right to life and thus, widened the concept of Article 21. Now it includes right to food, water, shelter, clean environment, education, medical care, privacy, etc. So, the Article 21 is actually like a mini constitution and it was mentioned in the case of Unni Krishnan vs. State of Andhra Pradesh that “the Article 21 is the heart of the Fundamental Rights.”
So, the main object of this article is to prevent one’s personal liberty and deprivation of one’s life against the acts of the State and the procedure of law has to be strictly followed. But in my paper, since I am concerned with the right to clean environment within the ambit of Article 21of the Constitution, so my entire focus now will be on the relationship of environment with right to life. But again before actually dealing with relationship, I would like to throw light on the basic background of environment.
Background Of Environment:
The term ‘environment’ cannot be defined precisely as it is linked with many subjects like ecology, biology, geography physiology, psychology etc. But, in the layman terms, environment can be defined as the surroundings like natural resources, atmosphere, water bodies, etc in which an individual or an organism lives. According to Einstein, “the environment is everything that isn’t me.” The resources form an important part of an individual’s life. Not only individuals but also animals are dependent on the environment to fulfil their needs. Man is constantly interacting with the environment in order to fulfil his needs. These needs include the basic needs of oxygen, food and shelter in addition to the social needs like entertainment, medicines, etc.
In the earlier periods (Vedic period), the environment had been seen altogether differently. There were ethical rules behind environment. According to S.C. Shastri,
“The main motto of social life since Vedic period was ‘to live in harmony with Nature’. People used to worship plants, trees, Mother Earth, sky, water, air and animals so as to be kind to everything. The Hindu religion enshrined a respect for Nature, environmental harmony and conversation. The philosophy behind it was that these all are creations of God, so destruction of nature means destruction of mankind.”
In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh, it was mentioned that, “air and water are the most indispensable gifts of Nature for preservation of life. In ancient times, trees were worshipped as gods and forests were necessary for mankind as they provided shelter. The world is considered to be the beloved place as it has the blessings of nature’s bounties.”
The crux is that in the ancient times, environment was considered to be an inseparable part of one’s life as a healthy environment is absolutely necessary for the well-being of all organisms. All our needs, big and small are being met by the environment only. However, now the position is changed. With the time, man’s needs has also increased, he has become greedy. Man has felt the urge to transform his surroundings to meet his increasing material needs and desires. He started exploiting the resources of the earth and has been transformed from preserver to destroyer. The problem of pollution is one which concerns most as it has gained threatening position. So, the need has been felt to look into this matter seriously and for that purpose our judiciary has tried to do a lot.
Environment And The Life:
In order to proceed further it was necessary to present the picture of Article 21 and environment in general. “Environment and life are interrelated and the existence of life on earth depends on the harmonious relationship between ecosystem and environment.” Every individual, from the moment of his birth, acquires certain rights. One such right is the right to live in a clean environment.
While framing the Constitution of India, there was no mention of specific provision relating to the protection of environment or conservation of nature. The problems were prevalent in the earlier times also but they were very acute as the living of the people was simple and there were not much industries, transport facilities etc. but now with the advancement in technology and sciences, the problems have become grave. “In India, around 70% of the population directly depends on the land-based occupations, forests, wetlands and marine habitats, for basic subsistence requirements with regards to water, food, fuel, housing, fodder and medicines as also for ecological livelihoods and cultural sustenance.”
The first milestone reflecting an international consensus on the nature and scope of the environment challenge confronting world community was the Stockholm Conference. The declaration does not provide for the definition of environment. The main gist of the declaration is the “man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generation.” The conference takes into account the fact that the environment may challenge the very existence of mankind as it has an immense impact on the life of human kind and sustainable modification or harm.
The principle of ‘sustainable development’ came to be recognised in this declaration which says that there must be a balance between development and ecology. “Economic development without environmental considerations can cause serious environmental damage affecting the quality of life of the population, both present and future.” Therefore, there is an urgent need to maintain a balance between the demands of development and the levels of environmental protection in order to ensure sustainable development. Since pollution is the major cause of environmental degradation and of imbalance, so, pollution control will be of greater significance for sustainable development.
Some of the basic principles of sustainable development include:
- Inter-Generation Equity which talks about the right of every generation as the most important principle of ‘sustainable Development’.
- The Precautionary Principle: this principle has been considers as the most important principle of sustainable development. It means-
- Environmental measures by the state government and the local authority must anticipate, prevent and attack the causes of environmental degradation.
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
- The ‘onus of proof’ is on the actor or the developer to proof that his action is environmentally benign.
- Polluter pays principle: it is quite obvious that the object of the above principle was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his act irrelevant of the fact that whether he is involved in development process or not.
The two principles, that is, the polluter pays principle and the precautionary principle came to be recognised in the case of Vellore Citizen’s Welfare Forum vs. Union of India. In this case, water pollution has been caused by the tanneries. “The Supreme Court recognized the common law right of the people to a clean and healthy environment and awarded compensation to the victims of pollution on the basis of the ‘precautionary principle’ and the ‘polluter pays principle’ and also held that these both principles are a part of the environment.”
The Constitution of India is the main source of incorporating right to clean environment. Though the other important work of legislation is the Environment (Protection) Act, 1986 which provides a framework of coordination of activities between the Central government and the State government to prevent and control environmental pollution and degradation. Since the need for the protection of environment has been felt, so in this regard the two major developments have been take place in our Constitution.
“First development took place when the Constitution (42nd Amendment) act, 1976, was adopted. Part IV: Directive Principles of State Policy (Article 48 A) provides for protection and improvement and safeguarding of forests and wild life: The state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Part IV-A: Fundamental duties (article 51-A): It shall be the duty of every citizen of India – (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Seventh schedule (Article 24) List III – Concurrent List Item no. 17 Prevention of cruelty to animals, Item no. 17 A Forests, Item no. 17 B Protection of wild animals and birds.
The second major development related to the article 21 of the Constitution of India dealing with ‘the right to life’. The concept of the right to life has been broadened through the judicial pronouncements. While resolving cases relating to environment, the judiciary considered the right to clean or good environment as fundamental to life and upheld as fundamental right.”
In my paper, I am discussing the right to clean environment with respect to the provisions of Article 21 of the Constitution. “The evolution of the right to health under Article 21 is invariably linked with the right to a clean environment, no less because without the latter the former was impossible.” Earlier there was a time when people thought of the environment, they thought of its beauty, they used to maintain greenery, and most of the time they used to spend in the fresh air, in a sense, there was an interaction between the environment and the men. “But with the growth of civilised society, man has become more and more materialistic and in his endeavour to conquer the earth and establish his supremacy, unfortunately, he lost sight of the need to protect and conserve the natural resources.” In the whole process, some of the people do not understand the adverse effects of their harmful activities and as a result of those few, innocent people have to suffer. They are being deprived of their right to life. Central to all the issues is ‘pollution’, which involves the introduction of harmful substances into the air, land, and water. Although this problem of pollution is not a new one but the only difference is that it was not that acute problem as it is now and therefore, it is much recognised now. Pollution has a direct impact on one’s health, thereby, degrading one’s life. The Scholar Shubhankar Dam in his article talks about the risks posed by the households, the workplace, outdoors and transportation to the health:
“The air which people breathe is of poor quality because of pollution all around in the environment, thereby, causing hazards like acute respiratory diseases. The air pollution contains different harmful chemical variants like carbon dioxide, hydrocarbons, sulphur and nitrogen dioxide etc. when people are exposed to such air, then it can cause lung cancer, respiratory infections, etc. because of these harmful chemicals. Noise pollution is associated with miscarriages, physical deformities, deafness, hypertension, etc.”
So, it is quite clear that the environment in which we live greatly affects our health. The diseases from which people suffer are sometimes impossible to treat, thereby, leading to death of an individual. So, unhealthy environment actually interferes with person’s living life in dignity and deprives him from his life. Therefore, the boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were expanded to include environmental protection.
“Then the Supreme Court strengthened this Article in two ways: first which I have already mentioned that is to pass the test of reasonability with respect to articles 14 and 19. Secondly, the Supreme Court interpreted the right to life and personal liberty to include the right to a wholesome environment.” The first attempt of the right to a wholesome environment i.e. the issues relating to environment and ecological balance was recognised in the case of Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh. In this case, the representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the Supreme Court alleging that illegal lime stone mining in the Mussorie-Dehradun region was causing damage to the fragile eco-systems in the area. The Court treated this letter as a public interest petition under Article 32 of the Constitution. And also several committees have been appointed for the full inspection of illegal mining sites. All the committees came at the conclusion that the lime stone quarries whose adverse effects are very less, only those should be allowed to operate but that too after further inspection and all. Therefore, the Court ordered the closure of a number of limestone quarries. Although the Court did not mention any violation of fundamental right explicitly but ad impliedly admitted the adverse effects to the life of people and involved a violation of Article 21 of the Constitution.
The concept of right to wholesome environment was also recognised in the case of Subhash Kumar vs. State of Bihar. In this case, the company in Jamshedpur carries on mining operation against which the suit filed. The allegations were that the slurry gets settled in the land affecting fertility of land, polluting the drinking water, thereby risking the health of people living in surrounding areas. The Court held that “the right to life includes the right to enjoy unpolluted air and water. If anything endangers or impairs the quality of life in derogation of laws, a citizen has a right to recourse to Article 32 of the Constitution and also it said that recourse should be by the person genuinely interested in the protection of society on behalf of the community.”
Similarly, in the case of Virender Gaur vs. State of Haryana, there has been a great discussion about the environment within its ambit of “hygienic atmosphere and ecological balance”. The observation by the Court was that:
“Article 21 protects the right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment.”
So, in this regard no doubt the State has the foremost responsibility to take care of individuals by protecting and improving the environment. But at the same time, every citizen also has to contribute his help to the government in maintaining the hygienic environment.
Most of the environmental cases are related to pollution of hazardous gases, wastes disposal, etc. the world industrial disaster took place in the year 1984 which is referred to as ‘Bhopal Gas Disaster case’. The Bhopal plant of Union carbide India Ltd (UCIL), an Indian company which was a subsidiary of the Union carbide Corporation, USA (UCC) was set up. On the midnight of 2-3 December in 1984 there was a massive leak of methyl isocynate from this plant which killed more than 3000 persons and serious personal injuries. The whole surrounding was covered with the black smoke of hazardous chemical gas. But the court could not reach any conclusion that by the time another disaster happened in Delhi which was not as that severe as the Bhopal tragedy. This other incident was referred as the Oleum Gas Leakage case. In this case, there was a leak of oleum gas from a factory in Delhi of Shriram Foods and fertilizer Induatries which enveloped the parts of Delhi in yellow smoke. Although the chemical gas was not that toxic and harmful as that was in Bhopal gas case, but there were some adverse effects to the people living in that surrounding. Through this case only rule of ‘absolute liability’ established which says that the enterprise will be liable no matter even if there is an act of God like earthquake, floods etc or an act of terrorism or enemy action. The Court suggested that ‘an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegate duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken and therefore, such corporations would be subjected to the limitations of right to life under Article 21 of the constitution.” Then this case was referred to solve the Bhopal gas leak case. The effects of this tragedy were so adverse, people developed many diseases. This incident happened long time back but the after effects are still known. The mothers who were pregnant at that time gave birth to disables children and children suffering from severe diseases. If a person is not able to live his life properly, his health is not perfectly fine then, his/her life cannot be said to be dignified life. Such type of corporations for their profits does not take care of the after effects of their activities and the result is in front of all of us.
All the above cases which I have mentioned in some sense talk about the industrial pollution which is not just limited to that. Another landmark case which also supported the view that the right to a healthy environment is part to life under Article 21 of the Constitution is the ‘Ganga Pollution case’. In this case, a writ was filed mentioning that the industries mostly tanneries located on the banks of the river and populated areas of Kanpur and Calcutta were discharging highly toxic trade effluents into the river Ganga. As a result of which the water in the river Ganga could no longer be used by the people either for drinking or any other purposes. The Court held that “the polluting tanneries have to be closed down even though it would bring unemployment, loss of revenue because the preservation of life, health and ecology are the most important than anything else”. It’s not just about the life of the people who get affected, also the animals who drink this water. Although they cannot go to the Court that does not mean their life is nothing. So, the water-pollution problems (especially discharging noxious and poisonous matter into rivers) should be dealt with strictness.
Mohit Singhvi in his article mentioned the observation by the Supreme Court, “Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, oppression and the primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty.”
Now the other aspect is that of smoking. People smoke after knowing the ill effects of smoking and also corporations support them in the sense by providing them with cigarettes. Tobacco smoking definitely contributes to the air pollution as tobacco smoking contains harmful chemicals like nicotine, tar, carbon monoxide and other smoke particles. When people smoke, these harmful substances get mixes in the air which we breathe, therefore is responsible for various fatal diseases including cancer. In the case of Murli S. Deora vs. Union of India, it was pointed out by the Court that:
“Since article 21 of the Constitution guarantees that none should be deprived of their life, then why should a non-smoker become the victim of the whole process? It was contended that smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. So, till the statutory provision is made and implemented by the legislative enactment, it was held that it would be in the interest of the citizens to prohibit smoking in public places and the person not indulging in smoking cannot be compelled to passive smoking on account of the acts of the smokers.”
There are a lot of after effects of this dangerous activity. There are psychological effects of smoking. Pregnant women who smoke, they don’t realize that they are actually the accusers of their kids. Children of such mothers are likely to born with low birth weight, small brain, short term memory span, are likely to get addicted to smoking, etc. Studies have shown that the children of parents who smoke compared with children of non smoking parents have an increased frequency of respiratory infections, an increase in respiratory symptoms, and slightly smaller rates of increase in lung function as the lungs mature. People say that they get pleasure and they cannot quit smoking but the point is if they do not care about their lives then, why are they behind the lives of innocent people. Why do corporations just think about their profits while endangering the lives of other persons? The study done in 2004 by the Centres for Disease Control (CDC) indicates that minimal exposure to smoke can increase the risk of heart attacks even for non-smokers. Since every citizen has a right to dignified life according to the Article 21 of the Constitution, so the battle between public health and corporate wealth should be decided in favour of health.
Now, with the help of various articles and cases, it is very clear that environment is one of the most important which directly affect our health, thereby can lead to fatal diseases also. In turn all of these deprive a person from his right to dignified life. “While the highest human right accorded to a person is the right to life, that right could become meaningless if the environment in which the person is living is so degraded that, in effect, the right to life is threatened.” But there are some questions remain unanswered which are difficult to answer. This aspect I am discussing under the next heading.
Right To Development Vs. Right To Environment And Other Aspects:
For a person to live a dignified life, a clean environment is the mandatory. But then, in order to maintain healthy environment, we have to lose out on other aspect, that is, Right to Development. India is a developing country and in order to compete with the world as a whole, development of our country is really essential. Development is necessary to ensure the fulfilment of all human rights and fundamental freedoms. “Industry is important for the development of a country and for meeting the growing demands of the people. At the same time, it has a negative impact on the environment as it extracts materials from natural resources and injects both products and pollution into the human environment.”As I have already discussed a lot of cases and industries are the main cause for an unhealthy environment, thereby, reason for violation of Article 21 of the Constitution. So, for that such industries which produce noxious substances and endanger the surroundings are needed to be closed which is the best way to stop the pollution at its roots. But again that means we are preventing our country from development. The population is growing at a faster paste and therefore, there is an urgent need to cut trees in order to provide people with shelter and trees are also required for industrial purposes to fulfil their demands. This means we have no other option left rather to destroy the environment. So, a man’s indiscriminate use of land, water and air ha considerable impaired their quality so that they are no longer fit even for his own needs and purposes.
Although population can be controlled if people are made aware, if they will get education but then also till what extent it is possible. Still population will continue to increase; they will continue to increase their demands in terms of shelter, luxuries, etc. According to the important Gandhian philosophy, “Nature has provided everything for our need but not for greed.” If they be denied to cut trees in order to get shelter, then again that means they are being denied their right to live, that is, their right to life and personal liberty are violated.
If an activity is allowed to go ahead, there may be an irreparable damage to the environment and if it is stopped, then, there may be irreparable damage to economic interest. Then the other remedy could be that the industries can be shifted. But does that solve the problem? To some extent it does solve the problem but what about the rights of those who are employed in such industries. They have to sacrifice their life for their families. It is not possible to ensure this right to all as there are some who are left, that is, the people who work for such industries. The poor people have to bear the main brunt of these environmental problems.
Earlier the article 21 of the Constitution had a bit narrow scope but with the time, the concept of Article 21 has been broadened. The Judiciary has played a vital role in interpreting the Article 21 of the Indian Constitution. The scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, which has interpreted the right of life to mean the right to live a civilized life and it also includes the right to clean environment. But the Constitution does not explicitly provide for the citizen’s right to a clean and safe environment.
Earlier in the ancient times, the hazards of the environment were not that recognized but now with the advanced technology and increasing population the adverse effects are clearly recognised. Industries contribute to the environmental pollution which proves to be very harmful for the health of the citizens, thereby, degrade g their right to life. Then smoking is also the main contributor to the pollution in the environment. Although many orders have been passed against smoking but nothing fruitful is coming out. If the orders were to hold any meaning then, no person in India should have now been smoking in public places. Environmental conservation is the principle concern of the present times. It is the, most urgent necessity, because a pollution free environment is a foremost requirement for the health and safety of mankind.
Further, environment and development are considered to be the two sides of the same coin. Any one of these cannot be sacrificed for the other. Rather, both are equally important for the betterment of our future. But nonetheless, without concerning for the loss of private profit, the preference has to be given to the public health and to the clean environment. The ultimate responsibility lies on the Courts to deal with these cases efficiently and with great caution.
Such type of environmental issues can be handled properly if people are educated and are aware of their activities. Also, the government has to take strict measures with proper care against the hazardous industries. Each individual shall have the opportunity to access to the information concerning the environment. States shall facilitate and encourage public awareness and participation by making information widely available.
A healthy environment is an absolute necessity for the well-being of all organisms. But then again is it possible to make the environment completely pollution free environment. So, the question which remains unanswered is the “is the right to healthy environment guaranteed or is it illusory?”
- Mahendra P. Singh, V.N. Shukla’s “Constitution of India”, 11th Edition, Eastern Book Company.
- S.C. Shastri, “Environmental Law”, 3rd Edition, Eastern Book Company.
- Indrajit Dube, “Environmental Jurisprudence: Polluter’s Liability”, Lexis Nexis Butterworths.
- Shyam Divan & Armin Rosencranz, “Envi
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