By Bhumika Sharma & Vibhanshu Thakur
In modern India, Environmental Jurisprudence has gone a long way in acquiring a very seminal importance leaving behind the engraved British Juristic notions as out dated and insufficient. There are Vedic invocations which declare that the earth is our mother and we are its children. Truly speaking, it is not merely an extra version but invokes and highlights the central issue of human existence and survival for present and future generations. The concepts like “One World”, “Global family” are common features of “Common mankind.”
NATURE OF RIGHT TO HEALTHY ENVIRONMENT
The right of the individual to healthy environment is an emerging human right. This right evolves around three major aspects of human right. It is merger between traditional human norm and it is rapidly expanding in the arena of International Law. This merger seeks to achieve the goal of improvement in the quality of life on the Planet Earth. There are world-wide expectations concerning the quality of life and the dignity of humankind and to effectively safeguard environmental rights. Every man has a right to be guaranteed a pure healthy and decent environment.
CONSTITUTIONAL PROVISIONS
The Gandhian philosophy emphasizes “Nature has provided everything for our need but not for greed”. It is a constant source of reminder for maintaining a fine balance between humanistic development and environment.
In 1976, the Constitution (Forty Second Amendment) Act was passed and the provisions relating to the protection of environment for the first time were incorporated by adding a new provision Article 48-A in the Chapter, Directive Principles of State Policy. Further, a new provision Article 51-A in the form of “Fundamental Duties” was also incorporated by the 42nd Amendment. These provisions have been borrowed from the Soviet Constitution.
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Here, the duty to protect and improve the environment is imposed on the state. It shall be the duty of every citizens of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
RIGHT TO KNOW
The right to knowledge, the rights to an alternative science or counter science is also related to the right to a safe environment. To demand a safe environment, people must know that their life and health is threatened, and that again needs a human rights movement, that is a people’s science movement. Since all have the right to a safe environment, it is not enough to restrict this movement to urban areas. Bhopal was genocide – but a worse genocide occurs through poisoning.
It is therefore not enough to ask for safer plants for pesticides manufacture. It is imperative to ask for safer pest control technologies. Environments that threaten human well-being and survival include polluted rivers – they include unstable land and water systems. The Chipko movement grew as a response to the threat to the survival of the hills people posed by increasing land-slides and disappearing water resources. A safe environment is equivalent to stable ecosystems. And the environment turns unsafe for the struggling fisherman whose survival base is destroyed by MNC trawlers. We have to decide as a community of concerned people whether we will challenge the slow and dispersed processes of death alongwith the rapid and concentrated genocide that took place in Bhopal. Adequate access to environmental information strengthens participatory mechanisms. Provisions related to access to environmental information in these three countries could be found in constitutional provisions, framework environmental legislation, and through the industry reporting mechanism.
JUDICIAL RESPONSE AND RECOGNITION OF RIGHT TO SAFE ENVIRONMENT AS FUNDAMENTAL RIGHT
There is a shift from environmental law to the human right to a healthy and decent environment. In Maneka Gandhi vs. Union of India it was held that Article 21 guarantees a fundamental right to life — a life of dignity to be lived in a proper environment, free of danger of disease and infection.
In Chetriya Pardushan Mukti Sangarsh Samiti v. State of UP, the Court held that every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything, which endangers or impairs that quality of life, is entitled to take recourse to Article 32 of the Constitution of India.
In Subhash Kumar v. State of Bihar the right to life was observed to be enshrined in Article 21 includes the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32.
In Rural Litigation and Entitlement Kendra & Others v. State of Uttar Pradesh Ranganath Misra, J. held preservation of the environment and keeping the ecological balance unaffected is task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his Fundamental Duty as enshrined in Article 51A (g) of the Constitution.
In Sachidanand Pandey v. State of West Bengal, the Court observed that society’s interaction with nature is so extensive today that environmental issues have assumed proportions affecting all humanity. Industrialisation, urbanization, the population explosion, over exploitation of resources, depletion of traditional sources of energy and raw materials, the disruption of natural ecological balances and the destruction of a multitude of animal and plant species are all factors which have contributed to environmental degradation.
In V. Lakshmipathy v. State of Karnataka, the Court laid down as: Entitlement to clean environment is one of the recognized basic human rights…. The right to life inherent in Art.21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.” “Where on account of human agencies, the quality of air and quality of environment are threatened or affected, the Court would not hesitate to use its innovative power… to enforce and safeguard the right to life to promote public interest”.
In LK Koolwal v. State of Rajasthan it was held “Maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action.”
CONCLUSION
People cautious of their rights to a healthy and pollution-free environment have taken steps to claim it. The task of environmental protection is difficult and complex in a country like India, which is still to travel long to usher in the industrial regime and is yet to tackle population problem, problems of food, health and water. Activists like M. C. Mehta are required to guide common men to realize the importance of environment for us and our future generations as well as their duty towards protection and preservation of environment.