Friday, 4 February 2022

Right to a healthy environment


The right to a healthy environment got entrenched in art 21 of the Constitution. Courts in a large measure relied on this right in addressing a variety of aspects relating to protection and improvement of environment. The apex court accepted beyond doubt the proposition that art 21 generates the right to a healthy and hygienic environment In Andhra Pradesh Pollution Control Board v MV Nayudu AIR 1999 Sc 812, P 825, the Supreme Court placed environmental problems and human rights on the same pedestal and held that both are to be traced to art 21. In Hinch Lai Tiwari v Kamala Devi 2003 SC 724, P 731 the court held that preservation of material resources of the community such as forests, tanks, ponds, hillocks is needed to maintain ecological balance so that people would enjoy a quality of life, which is the essence of right guaranteed under art 21. Explaining the concept of the right to life in art 21 of the Constitution, the Supreme Court held in KM Chinnappa v Union of India. 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.

In M C Mehta v Kamal Nath, AIR 2000 SC 1997 it was made clear that any disturbance of the basic environmental elements, namely, air, water and soil, which are necessary for ‘life’, would be hazardous to ‘life’ within the meaning of art 21 of the Constitution. The courts mainly relied on right to life in art 21 although significantly, certain cases had wider perspective of the constitutional provisions bearing on environment, especially those among fundamental rights, directive principles and fundamental duties. These provisions-imposed a constitutional mandate for protecting and improving the environment. Once the existence of a fundamental right to environment is established in art 21, it is likely that the right may not be confined to human beings only. Besides environment being a compendium of many things, the expression ‘person’ in art 21 may be interpreted as Prevention is better than cure; protection of the environment can effectively be done by taking adequate precautions against the Environmental damage. Precautionary principle mandates about beware of what you do Principle 15 of Rio Declaration, mandates about the protection of the Environment. In order to protect the Environment polluter principle shall be widely applied Assimilative Capacity, Environment absorb the shock itself but beyond certain limit pollution may cause damage to the environment; rule of law is in to picture when there is a disturbance of the entity having legal personality.

The High Court while pronouncing the judgment explained the true scope of Article 51A in the following term “We can call Article 51A ordinarily as the duty of the citizens. But in fact it is the right of the citizens as it creates the right in   favour of citizens to move to the Court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of the land. 

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