“The Supreme Court of India interpreted right to life and personal liberty under Art 21 of the India Constitution to include right to wholesome environment”. Justify the statement in relation to Bangladesh Constitution”
1. Introduction
Environmental degradation in India has been caused by a variety of social, economic, institutional and technological factors. Rapidly growing population, urbanization and industrial activities have all resulted in considerable deterioration in the quality and sustainability of the environment. Environmental ethics have also formed an inherent part of Indian religious precepts and philosophy. Worship of nature – Sun, Moon, Earth, Air and Water – was not merely a primitive man’s response to the fear of the unknown, but it arose from the deep reverence shown to the forces of nature which sustained and preserved human life on earth. The basic tenet that underlies this deep reverence for nature is the belief that life is a singular, continuous and uniform phenomenon and even a small change in one part of theca-system is likely to reverberate throughout. Guru Nanak, said ‘Pawan Guru, Pani Pita Mata Dhart Mahat, Divis Ratio Daia, Khele Sagal Jagat’. In Bangladesh, justice, judiciary and the rule of law are bound together as an integrated whole. Similar to other common law countries with written Constitution, neither the legislature nor the judiciary is supreme and the court acts as the final interpreter of law. Like USA (1), there is always checking and balance between the two organs of the state. The functions of the judiciary are to enhance the rule of law, to promote the fundamental rights and to administer the law impartially between citizen and state as well as between citizen and citizen. The judiciary canoed principles of law to give them a sense of coherence and direction. The degree of radicalism of the judiciary is limited both by the system of appointment by the ruling government, and by the desire of judges to reflect the values of their particular jurisdiction.
2. Right to live in Healthy Environment – In framework of Indian Constitution
The relationship between man and his environment is undergoing profound changes in the wake of modern scientific and technological developments. In India, from time to time various laws have been enacted for the protection of environment, flora and fauna, and Indian Constitution is the first constitution in the world which contains specific provisions for the protection and improvement of environment. In India, in view of the various constitutional provisions and other statutory provisions contained in various laws relating to environment protection, the Supreme Court has held that the essential feature of “sustainable development” such as the “Precautionary Principle” and the “Polluter Pays Principle” are part of Environmental law of the Country.
The Forty- Second Amendment Act: Environmental protection and improvement were explicitly incorporated into the Constitution by the Constitution Act of 1976.Article 48A was added to the Directive Principles of State Policy. It declares: ‘The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country.’ Article 51A (g) in a new chapter entitled ‘Fundamental Duties’, imposes a similar responsibility on every citizen ‘to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creature. Together, the provisions highlight the national consensus on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection.
3. Fundamental Right
Principle 1 of the Stockholm Declaration finds reflection in Article 14[4], 19[5] and 21[6] of the Constitution of India dealing with the right to equality, freedom of expression and right to life and personal liberty respectively.[7] All these rights are secured to the people of India under the Constitution of India particularly in Part III dealing with Fundamental Rights.[8] The Supreme Court of India has contributed significantly especially during the 80’s in broadening the contents and contours of some of these basic rights. Right in context of environmental protection is:
3.1) The Right to a Wholesome Environment: [1]The Interpretation given by the Supreme Court in Maneka Gandhi’s case has added new dimensions to the concept of personal liberty of an individual. It laid down that a law affecting life and liberty of a person has to stand the scrutiny of Articles 14 and 19 of the Constitution. In other words, if a law is enacted by a legislature which touches upon the life and liberty of a person and curtails it, then it is a mandatory requirement that the procedure established by it for curtailing the liberty of a person must be reasonable, fair and just. It is this interpretation of Article 21 which the court has extended further so as to include the right to a wholesome environment. In other words, environmental pollution which spoils the atmosphere and thereby affects the life and health of the person has been regarded as amounting to violation of Article 21 of the constitution.
3.2) Right to Livelihood: The judicial grammar of interpretation has further broadened the scope and ambit of Article 21 and now “right to life” includes the “right to livelihood”. The right to livelihoods a part of right to life under Article 21 was recognized by the Supreme Court in Olga Telis vs. Bombay Municipal Corporation. In this case, the petitioners, a journalist and two pavement dwellers challenged the governmental scheme by which the pavement dwellers were being removed from the Bombay pavements. The main arguments advanced on behalf o the petitioners was that evicting a pavement dweller or slum dweller from his habitat amounts to depriving him of his right to livelihood, which is comprehended in the right guaranteed
by Article 21 of the Constitution as deprivation of their livelihood would tantamount to deprivation of their life and hence unconstitutional. It was further argued that no person can be deprived of his life except according to the procedure established by law which has to be “just, fair and reasonable”. The petitioner also contended that the State is under an obligation to provide citizens the necessities of life and, in appropriate cases; the courts have the power to issue orders directing the state by affirmative action
4. In Bangladesh constitution and environment protection:
The fundamental rights, the preamble or the state policies in Bangladeshi Constitution do not expressly mention any right to healthy and clean environment. The approach adopted in Bangladesh is two folded. The lawyers want to amend and develop the existing fundamental rights in order to pressure the government to implement the environmental policies. On the other hand, the judiciary stressed the need of harmonious interpretation of the Constitution to ensure environmental protection. This attitude was reflected in the FAP case, where the judiciary adopted a holistic approach, and while interpreting the fundamental rights, took account of the policy statements, preamble and other provisions of the Constitution. Both the High Court and Appellate Division expanded the meaning of fundamental right to life to include protection and preservation of the ecology and right to have pollution free environment. However, the court declined to interfere with the FAP project as foreign assistance was involved and the whole project was meant to be for the benefit of the public. Moreover, it took account of the substantial amount of money that has been spent and that the project has been partially implemented. From the judgment, it is not clear how much environmental damage the court was prepared to tolerate in the name of development.
5. Remedies to Facilitate Environmental Justice:
While dealing with environmental matters, the most common remedies offered by the court are [2]injunction, declaration and, civil and criminal damages. The judiciary of Bangladesh, in at least four environmental cases, granted injunctive relief to reduce environmental harm or pollution. Though actions have been taken by the court in India, the Bangladesh judiciary allowed such action in one case related to human rights. Moreover, the Indian courts made several directions on unconditional closure of tanneries and relocation, on payment of Compensation for reversing the damage, to create experts and special committee in Environmental cases, to pay the costs [3]required for the remedial measures, on necessary measures to be adopted by the relevant Ministry to broadcast information relating to environment in the media, and to set up a committee to monitor the directions of the court. There is ample opportunity for Bangladesh judiciary to make the similar sort of innovative directions action in environmental cases.
6. National Application of International Environmental Law in Bangladesh
National courts’ decision can promote the application of internationally recognized environmental principles in several ways. By applying an international environmental principle, national courts implement it in the individual case. Moreover, if courts implement international norms with sufficient regularity, national courts’ decision could have a deterrent effect; they could help shaping future conduct. Finally, through their decisions, national courts can help incorporate international norms into national law, thereby supplementing or even correcting the work of legislatures. As the following discussion would show the Indian court has considered some commonly recognized principles as customary law whereas their status in international law is uncertain and, thereby, made the precautionary principle, polluter pays principle and sustainable development directly applicable. On the other hand, the courts in Bangladesh do not mention these principles directly. The indeterminacy of international environmental norms and restrictive standing rule pose serious obstacle to their successful application in our domestic courts.
7. Sustainable Development and Its Application in the National Court
Sustainable development reflects the principle of sustainable and equitable use of natural resources and its integration in the domestic legal system. As an umbrella concept, it tends to reconcile the conflicting goals of economic development and environmental protection. For South Asian countries, the conflict between trade, environment and development is a very crucial one and becomes apparent when people oriented development programmer clashes with environment. The uncertainty in relation to the elements of sustainable development and apparent contradiction between the objectives of development and of environmental protection make it difficult for this concept to achieve a definitive role in international environmental law.
8. Intergenerational Equity and its Application in National Court
Prof. Weiss’s definition of inter-generational and intra-generational equity has been examined [4]and developed by several other international and regional instruments.(34) This principle assures each generation the right to receive the planet in no worse a condition than received by the previous generation, and views the environmental and resource conservation obligations of the present generation from that perspective.(35) This implies that we have a duty to defend and improve the environment for present and future generations and to use natural resources in a manner that ensures the preservation of ecosystem for the benefit of present and future generations. At national level, it implies fairness between groups of people in a society, in terms of access to common natural resources, such as clean air and water in national watercourses and [5]the territorial sea (36). A few Constitutions (37) impose a constitutional duty on the citizens and on the state to protect and maintain the eco-systems and natural resources for the benefit of present and future generations. The Constitution of Bangladesh does not mention this principle directly. However, if the spirit of the Constitution is considered, this principle can be easily applied in the domestic legal system.
9. Conclusion:
The right of the individual to healthy environment is an emerging human right this right revolves 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. This right also provides remedial measures tithe injured individuals and sovereign states, Action v. Union of India, The concept is closely related to the legal norm of social justice. So environment legal rights constitute the norms. Any law must be developed in such a way to meet the needs of mankind
10. Bibliography:
1. M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388; Vellore Citizen Welfare Forum v. Union of India(1996) 5 SCC 647;
2. ) M.C. Mehta (Calcutta Tanneries Matter) v. Union of India (1997) 2 SCC 41
3. (1997) 49 DLR (AD), 1 and (1996) 48 DLR, 438: the legality of an experimental structural project of the Flood Action Plan was questioned. Co-ordinated by the World Bank, the project aimed to plan, design or undertake construction of dams, barrages and embankments in order to control flood. According to the petitioner, FAP was ananti-environment and anti-people project.
4. In order to provide complete justice (Article 226), the court in India took account of letter [1990 (Supp) SCC 77;1994 (2) SCALE 25] , memorandum [O.P. No. 6721 of 1992, Kerala), and newspaper article [AIR 1992 Pat 86; W.P.No. 22598 of 1993, Madras]
5. Edith Brown-Weiss, In Fairness to Future Generations: International Law, Common Patrimony andIntergenerational Equity [Dobbs Ferry, NY: Transnational Publishers. 1989]
6. Mohiuddin Farooque V. Bangladesh and others (48 DLR 1996) p.438 and Bangladesh Environmental Lawyers ‘Association V. Election Commission and Others (46 DLR 1994) P235.
7. Rural Litigation and Entitlement Kendra vs. State of U.P., AIR 1988 SC 2187.
8. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647 at 659-660 (This case is popularly known as T.N.Tanneries Case)
9. For a theoretical defence of bringing social-welfare oriented rights within the purview of ‘judicial review’, Refer: Mark Tushnet, ‘Social Welfare Rights and the forms of Judicial Review’, 82 Texas Law Review 1895 (2004)
10. (1997) 6 SCC 241; See D.K. Srivastava, ‘Sexual harassment and violence against women in India: Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512
[1] Article 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
[2] Article 32 (1) provides: “The Supreme Court by appropriate proceedings for the enforcement of right conferred by this Part (Part III) is guaranteed.”
[3] P.S. Jaswal, Nishta Jaswal, Environmental Law, Allahabad Law Agency, Faridabad (Haryana), Pg- 79
[4] H. Smets, ‘The Polluter Pays Principle in the Early 1990’s’ in Luigi Campiglio et al. (eds.) The Environment After Rio: International Law and Economics (1994)136-137; S.E. Gaines, ‘’The Polluter pays principle: From Economic Equity to Environmental Ethos’, 26 Tex. International Law Journal 463 (1991)467-475
[5] ) Mohiuddin Farooque V. Bangladesh and others (48 DLR 1996) p.438 and Bangladesh Environmental Lawyers’
Association V. Election Commission and Others (46 DLR 1994) P235.