University Of Petroleum and Energy Studies

College of Legal Studies

BBA., Ll.B.(Hons.)
SEMESTER 3

ACADEMIC YEAR- 2016-2017 SESSION- AUGUST- DECEMBER

Under the Supervision of: Mr. ANUBHAV KUMAR

TOPIC- Right to Environment as Fundamental Right

NAME: RACHIT MUNJAL

SAP ID: 500047862
ROLL NO: R760215045
 ABSTRACT

Environmental degradation is the one of the most important and severe problems human beings
are suffering from. Many people dont have access to clean air or drinking water and then

experience health problems due to the increasing pollution. Yet, the existence of international

environmental law is under represented in the international legal system.

This project aims to examine that whether a human right to a clean environment exists in

international law or not. It approaches this question from two different angles. At first, some

international environmental law documents will be introduced in order to display their

status and find out whether they can justify environmental protection for humans. This part

aims to give a basic idea about international environmental law under the auspices of the

United Nations, as environmental law seems to be under represented in the international

legal literature or jurisprudence.

About 200 treaties are registered under the United Nations environmental program register,
and in total there are about 900 bi- and multilateral treaties. Many of these treaties are soft
law and are not sufficient to claim a human right to a clean environment. Thus, international
human rights law will be discussed, with the aspiration to locate norms, which could serve as
a legal basis for a right to environment. The project will argue that several international human
right norms can be applied for environmental protection. Especially the recent development
shows that environmental law and human rights reached a kind of maturity and omnipresence

In a last, it is intended to show the example of Indian constitutional law and the

jurisdiction of Indian courts that human rights norms can indeed be a reasonable basis for

claiming a right to environment. It will be alluded how insubstantial international

environmental soft law can affect the judges decisions.

Keywords: environment, environmental, international, human, treaties.

 SYNOPSIS
INTRODUCTION AND PROBLEMS
The purpose of this project is to analyze 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 project 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.

SURVEY OF EXISTING LITERATURE

M.P Jain in the book Indian Constitutional Law have discussed on the Right to Environment
about the Supreme Courts view as Supreme Court has pointed out two salutary principles
governing environment (i) principle of sustainable development and (ii) precautionary
principle.

SCOPE AND OBJECTIVE

Project aims at discussing what is the concept of Right to Life, to know the whole background
of Environment. How Environment and Life are related, and is Right to Development is more
important than Right to Environment.

The objective is to learn how the Constitution has developed and included Right to
Environment in article 21 and how this can be used by normal people. To look for some
principles like Polluter Pays Principle in the present scenario, and suggest any reforms (if
possible).

RESEARCH METHODOLOGY
The type of research methodology followed in the project is descriptive and analytical and the
method for citation being used is the Blue Book 19th Edition.

PROBABLE OUTCOME
With an approach of an analytical and descriptive research the project will be able to highlight
the pros of the Right to Environment along with the Solutions in the present scenario along
with suggestions to the existing provisions regarding Right to Environment in Article 21.

CHAPTERISATION
INRODUCTION
CONCEPT OF RIGHT TO LIFE
BACKGROUND OF ENVIRONMENT
ENVIRONMENT AND LIFE
RIGHT TO LIFE VS RIGHT TO DEVELOPMENT
CONCLUSION
INRODUCTION:
Environmental degradation is one of the most severe problems human beings are suffering
from. Many people do not have access to clean air and drinking water and experience health
problems due to the increasing pollution. Yet, the existence of international environmental law
is underrepresented in the international legal system.

This project aims to examine whether a human right to a clean environment exists in
international law. It mainly approaches this question from two different angles. At first, some
main international environmental law documents will be introduced in order to display their
status and find out whether they can justify environmental protection for humans. This part
also aims to give a basic idea about international environmental law under the auspices of the
United Nations, because environmental law seems to be underrepresented in the international
legal literature. Hence, the part will be a little longer than the corresponding parts.
But international environmental law turns out to be very vague. About 200 treaties are
registered under the United Nations environmental program register, and in total there are about
900 bi- and multilateral treaties.1 Many of these treaties are soft law and do not seem
sufficient to claim a human right to a clean environment. Thus, international human rights law
will be discussed in the following step, with the aspiration to locate norms, which could serve
as a legal basis for a right to environment. The project will argue that several international
human right norms can be applied for environmental protection. Especially the recent
development shows that environmental law and human rights reached a kind of maturity and
omnipresence2.

In a last step, it is intended to show at the example of Indian constitutional law and the
jurisdiction of Indian courts that human rights norms can indeed be a reasonable basis for
claiming a right to environment. The example India was selected, because most human rights
cases occur in front of domestic jurisdictions, and at the same time India offers an interesting
example to illustrate how national jurisdictions can deduce a right to a clean environment from
existing human rights norms. It will be alluded how insubstantial international environmental
soft law can affect the judges decisions.

ENVIRNMENT AS A BASIC RIGHT:

The concept of human rights in general emerged after the Second World War, but the right to
a healthy environment, as one of those human rights, was never a priority. Today, this right is
an emerging concept that is being hotly debated in the human rights arena. A healthy
environment is an essential aspect of the right to life, not only for human beings but also for
other animals on the planet. Violation, therefore, of the right to healthy environment is
potentially a violation of the basic right to life.

Environmental deterioration could eventually endanger life of present and future generations.
Therefore, the right to life has been used in a diversified manner in India. It includes, inter alia,
the right to survive as a species, quality of life, the right to live with dignity and the right to
livelihood. In India, this has been expressly recognised as a constitutional right. Article 21 of
the Indian Constitution states: 'No person shall be deprived of his life or personal liberty except
according to procedures established by law.' The Supreme Court expanded this negative right

1
See Schreurs and Economy (1997), pp. 1-2.
2
Anderson (1996a), p. 1.
in two ways. Firstly, any law affecting personal liberty should be reasonable, fair and just.
Secondly, the Court recognised several unarticulated liberties that were implied by article 21.
It is by this second method that the Supreme Court interpreted the right to life and personal
liberty to include the right to a clean environment.

IS RIGHT TO CLEAN ENVIRNMENT A HUMAN RIGHT IN

INTERNATIONAL LAW?
There are two main ways one can approach the question whether a human right to a clean
environment exists. Either one looks at the existing international environmental law in order to
examine whether it provides human rights norms, or one can study international human rights
law and look for environmental rights within it. At first, it is useful to give a short survey on
some existing international environmental laws within the United Nations treaty register and
search for norms containing human rights.

INTERNATIONAL ENVIRNMENT LAW

The main purpose of international environmental law is the protection of the environment
per se.3Some of the major objectives are the protection of the flora and fauna, the
preservation of ecological balance and the conservation of the diversity of species.
International environmental law imposes obligations on human beings and sets standards.
International environmental law is probably the youngest branch of international law.

Although the first multilateral international environmental law convention the

Convention for the Protection of Birds Useful to Agriculture was already established in
1902, the consciousness to develop a more effective and comprehensive regime only arose
in the late 1960s.4 The pollution of the atmosphere and of the seas, the loss of species, the
danger of nuclear power, and the corresponding environmental, social and health problems
are only a few among the aspects, which influenced the international community in aiming
to create a legal and effective system,5 which at the end protects the human beings from an
environmental disaster.

3
See for instance Kiss and Shelton (1991), p. 1 or Shelton (2001), p. 190.
4
See Kiss and Shelton (1991), p. 33.
5
See Schreurs and Economy (1997), p. 1.
 However, many environmentalists suggest that the purpose of environmental law is
ecocentric.6 In other words, environmental issues and finally the preservation of the
ecosystem earth are in the foreground. Obligations and duties are imposed on
governments, companies, individual human beings or groups in order to reach these goals.
The Antarctica Treaty (1959), the World Heritage Convention (1972), the Convention on
International Trade in Endangered Species (1973) and the World Charter for Nature (1982)
are some examples.

These treaties do not exclusively exist for the benefit of human beings, but should protect
the environment from exploitation.7 Nevertheless, it is not intended to debate whether
environmental law is solely ecocentric or not, because this paper mainly aims to scrutinize
whether a human right to a clean environment can be claimed from positive international
law norms. Hence, here the anthropocentric approach, saying that environmental
protection is primarily justified as a means of protecting humans rather than as an end
itself8, is taken for granted. One has to keep in mind that environmental protection can
negatively affect the short term needs and objectives of human beings.9 States and
individuals could be in a situation of disadvantage, if they neglect their economic
development in favour of environmental protection10. Especially in developing countries,
the struggle of parts of the population against poverty is often considered as more important
than environmental protection. States have to permanently develop their economic
capability in order to remain competitive in the international market system. Moreover, the
approval of the Declaration on the Right to Development11 by the UNGA could limit any
right to environment for human beings.

But even a human right to development would not make a human right to environment
impossible, since it is normal in international law to balance contradictory but equitable
norms. Thus, the international community has to balance between the right to development
and right to environment.12 Nevertheless, this is problematical for a human right to

6
See Boyle (1996), p. 6.
7
See Boyle (1996), p. 6.
8
Sands (1995), p. 221. Mainly environmentalists and animal protectionists criticize the anthropocentric
approach. For a detailed critique of the anthropocentric approach, see Redgwell (1996).
9
See also Shelton (2001), p. 191, who says that short-term costs make decisions in favor of environmental
protection rather unpopular.
10
See Kiss and Shelton (1991), p. 3.
11
UNGA Res. 41/128 (1986).
12
See for instance Anderson (1996a), p. 19 or Shelton (2001), p. 192 .
 environment, because a right to development could negatively affect the priorities of the
states and private actors, which both indeed are often biased towards the right to
development. But if the states are able to equalize developmental and environmental
aspects, then environment and development will not any more be contradictory but
complementary. This idea is often summarized under the expression sustainable
development.

The foundation for modern international environmental law was lead at the United Nations
Conference on the Human Environment in Stockholm 1972. On this conference, the
13
Stockholm Declaration on the Human Environment (Stockholm Declaration) was
unanimously adopted, albeit legally not binding. Although the conference failed to
proclaim an explicit human right to environment, this document shows the concern of the
international community for environmental matters14 and, more importantly, set the agenda
and framework for future discussions and initiatives.

It is worth to turn to the Stockholm Declaration a little more in detail, in order to examine
whether it contains a human right to a clean environment. Especially two principles talk
very explicit of such a right. Principle 1 of the Stockholm Declaration contains the
fundamental right [for man] to freedom, equality and adequate conditions of life, in an
environment of quality that permits a life of dignity and well-being. Literally interpreted,
this sentence has the quality of a human right. According to Principle 7 of the Stockholm
Declaration, the states are required to take steps to prevent pollution of the environment by
substances, which affect human health.

But as said before, the Stockholm Declaration was only the beginning of a new wave of
environmental international law. Therefore, it is more expedient to turn to developments in
the last decade to see whether there have been similar or even more crucial developments
recently. In 1992, the UNCED was held in Rio de Janeiro. Although environment was, as
the title of the conference suggests, also an issue, UNCED focused rather on development
related subjects (mostly North-South related topics).15 Indeed, the term human rights is

13
Stockholm Declaration on the Human Environment (16 June 1972), UN Doc. A/Conf.48/14/Rev.1 (UN
Pub.73.II.A.14.) (1973). [Also in 11 ILM 1416 (1972)].
14
See Shelton (2001), p. 195.
15
See Shelton (2001), p. 198
 only used three times in the Rio Declaration on Environment and Development (Rio
Declaration).16

According to Diane Shelton, there is no explicit link between human and environmental
rights.17 At best, Principle 10 of the Rio Declaration can be considered as participatory
right.18 It suggests that environmental issues are at best handled with participation of all
concerned citizens, and further requires the states to provide effective access to judicial
and administrative proceedings.

Otherwise, the Rio Declaration rather focuses on the right to sustainable development, but
with bias for development. A substantial and explicit right to a clean environment cannot
be found. There is one more recent development, which could indeed lead to a right to
environment in future. In 1989, a Sub-Commission of the United Nations Commission on
Human Rights under the leadership of Mrs. Fatma Zohra Ksentini was assigned to study
the possibility for a human right to environment.19 In 1994, the Ksentini Report concluded
that environmental rights are a part of the existing human rights.20 The Draft Principles on
Human

Rights and the Environment, which are included in the annexure of the report, emphasize
this.21 In particular Principle 1 says that human rights and the environment are indivisible.
Boyle summarizes that from now on there is a shift from environmental law to the [human]
right to a healthy and decent environment22. In his words, the Ksentini Report greened
existing Human Rights,23 meaning that existing human rights may already contain
environmental rights. Thus, it is necessary to take a closer look at human rights treaties in
order to examine whether humans can claim a right to a clean environment from its norms.

INTERNATIONAL HUMAN RIGHT LAW

16
UN Doc. A/CONF.151/26/Rev.1 (93.I.8) (1993).
17
See Shelton (2001), p. 196.
18
See Boyle (1996), p. 12
19
UN Doc. E/CN.4/Sub.2/1989/C23 (1989).
20
See Boyle (1996), p. 2, or Shelton (2001), p. 232.
21
UN Doc. E/CN.4/Sub.2/1994/9 (6 July 1994) + Corr.1 (13 Sept. 1994).
22
Boyle (1996), p. 2.
23
See Boyle (1996), p. 9.
 Do existing global and regional human rights treaties already contain environmental rights?
Literally, they do not. But Anderson suggests that environmental rights should be deduced
from other existing human rights, because human rights already have a strong institutional
structure and could lead to an effective right to a clean environment.24Keeping in mind, that
the Ksentini Report focused on the interdependent, complement and indivisible25relation
between human rights and environmental rights, some specific human rights will now be
discussed.26 Only two regional human right treaties contain an identifiable right to
environment, namely the Art. 24 ACHPR and Art. 11 of the San Salvador Protocol to the
ACHR. Art. 24 ACHPR will be taken as example.

The ACHPR is the first international human rights instrument to adopt a right to
environment. Art. 24 ACHPR is a so-called third generation human right.27 Third
generation human rights, also called solidarity rights, refer to groups rather than to
individuals, and require the Government and international agencies to co-operate with and
assist those whose own resources are insufficient to achieve the necessary ends28. Art. 24
ACHPR entitles a right to environment, which should be general, satisfactory and
favourable to development. Although the right to environment for the African People is
explicitly expressed in this article, it cannot be seen as an effective right to environment.
The status of third generation rights is not definite yet. Merrills argues that Art. 24 ACHPR
does not have the status of a human right due to its indeterminate character and context.29
Anderson adds, that the interpretation of this article is rather narrow and refers at best to
pollution.30 And it has to be doubted, whether an effective system, ensuring that the parties
of the treaties comply with the obligations, exists. As one can see, Art. 24 ACHPR is very
indefinite. The ACHPR is generally criticized of being very vague.31 Hence, assuming that
Art. 24 ACHPR has human right status is farfetched.

Although first and second generation human rights do not express explicitly a right to
environment, they have a stronger institutional basis. Thus, it is useful to have a look at

24
See Anderson (1996a), p. 4.
25
Anderson (1996a), p. 3.
26
See the Appendix for a table with human rights from various treaties, which could quality as environmental
rights, too. The table is subdivided in three parts, namely explicit human rights to environment, human rights
to environment from civil and political rights and human rights from economic, social and cultural rights.
27
See Sieghart (1990), p. 376
28
Boyle (1996), p. 3.
29
See Merrills (1996), p. 9.
30
See Anderson (1996a), p. 13.
31
See Churchill (1996), p. 13.
 some of these rights, because, they could serve as legal basis for a right to environment,
when teleologically interpreted in the environmental context. Civil and political rights, also
called first generation human rights, are individual rights entailing freedom from arbitrary
government interference or as guaranteeing participatory rights in civil society.32 They
protect individuals from unlawful action of the government. Exemplary, the right to life
and the right to a fair trial, both with fundamental rights character, will be briefly
discussed.33

The main question in this context is whether the right to life imposes positive obligations
on the state. Does the state have to provide adequate living conditions like better drinking
water and air pollution controls, so that this fundamental human right is not negatively
affected? The United Nations Human Rights Committee answers this question
affirmatively. Churchill concludes that the right to life is theoretically applicable in terms
of the environment, even though no successful case in the international courts has yet
occurred.34

Furthermore people have the right to a fair trial, in case the state acted harmful to the
environment35. But they have to prove that their own rights were affected. This is insofar
important, because virtually every action of a state, which is detrimental for the
environment and affects any of the peoples rights as side-effect, can be addressed in front
of national courts (and in some cases in front of international human rights courts, like the
European Court of Human Rights in Strasbourg). It widens the possibility for legal
proceedings in environmental related questions.

Now, some examples for environmental rights derived from economic, social and cultural
human rights, also called second generation human rights, will be given. Second generation
rights are concerned with encouraging governments to pursue politics which create
conditions of life enabling individuals, or in some cases groups, to develop equally to their
full potential36. They impose standards on governments how to act. The most interesting
rights in this context are probably the right to a healthy environment and the right to decent
living conditions. Its dimensions have specifically been emphasized by the UNGA,

32
Boyle (1996), p. 2.
33
In global human rights treaties, Art.6(1) ICCPR and Art. 14(1) ICCPR are the legal bases, respectively
34
See Churchill (1996), p. 2.
35
See Churchill (1996), p. 5.
36
Boyle (1996), p. 2. The most important second generation human rights in the environmental context are
listed in the appendix.
 recognizing that all individuals are entitled to live in an environment adequate for their
health and well-being37.

If the rights to health and decent living conditions were fully implemented, the problems
of pollution and environmental degradation would have been solved. But the right for
health is very weak, because the state is only required to do the feasible with its available
resources.38 Same is relevant for the right to decent living conditions. Although the state
could be responsible for improving environmental hygiene in preventing industrial
pollution,39 other human rights, like the right to development, will weaken this right, as
shown above.

APPRAISAL

Thus far, it has been shown that environmental law itself is quite weak and does not provide
a human right to development. The Stockholm Declaration and the Rio Declaration are
solely soft law documents and thus legally not binding.40 The Draft Principles of the K
sentini Report have not entered into force yet, regardless of the fact that their status would
not be sufficient to grant a reliable human right to environment.

More appropriate is the approach to find environmental rights in existing human rights
treaties. Human rights law provides some legal bases, which could be reinterpreted in favor
of the environment. The best way to examine whether this has taken place is to study legal
opinions, especially court verdicts. However, court verdicts in the international institutions
dealing with environmental issues are rather rare.41 But arguments for the protection of
the environment as a substantive human right are almost certainly better addressed not in
global terms, but in the context of particular societies and of their own legal systems42,
because most of the human rights cases take place in domestic jurisdictions. Hence, it
should be examined at the example of the Indian legal system whether it is possible to
reinterpret human rights in favour of the environment at the domestic level.

INDIAN SCENARIO:

37
Operative clause 1 of UN GA Res. 45/94 (1990).
38
See Churchill (1996), p. 8.
39
See Churchill (1996), p. 10.
40
See Cassese (2003), p. 383.
41
See Churchill (1996), p. 2.
42
Boyle (1996), p. 15.
Although the real panic in India came to be felt only after the Bhopal gas tragedy in 1984, yet
it began concentrating on the problem of pollution soon after the Stockholm conference. India
parliament passed many statutes to protect and improve the environment viz. Wildlife
(protection) Act, 1972; Water (prevention and control of pollution) Act, 1974; the forest
(conservation) Act, 1989; the air (prevention and control of pollution) Act,1981 and above all
the Environment (protection) Act, 1986. Further the constitutional (forty-second Amendment)
Act, 1976 incorporated two significant articles viz. Article 48-A and 51A (g) thereby making
the Indian Constitution the first in the world conferring constitutional status to the environment
protection.

An international conference on Environmental education was conducted at New Delhi which

called for a massive programme on environmental education, research and monitoring
emphasizing on the need for both formal and informal education, which should start right from
the childhood stressing for the need of governmental and nongovernmental organizations and
specialized institutions to come forward for teaching and training towards protection of the
environment.

The Penal Code too at that time contained provisions making pollution a crime.

Section 277 relates to water pollution.

Section 278 relates to water pollution
Section 426, 430, 431 and 432 relates to pollution in general.
Section 368 talks about public nuisance where under noise pollution can inter alia be
controlled.

The concern for an integrated environment in the context for planning for economic
development was specifically raised in the fourth five year plan, which mainly talked about the
obligation of each generation to have a sustainable development and also about the inter-
dependence of living things and their relationship with land, air and water.

The National Committee on Environmental Planning and Coordination (NCEPC) was

established in February, 1972 and within its purview were covered several environmental
projects like human settlements, planning, survey of natural eco- systems, like wetlands and
spreading of environmental awareness. In every State and in Union Territories environmental
boards have eventually been set up and the major object of the committee was to advise on
environmental problems and to make recommendations for their improvement. This office was
finally made the Environment Division of the Department of Science and Technology.

Another Committee, designated as the Tiwari Committee came to be set up in 1980 (also
referred to as the committee for environmental protection). It not only considered the laws
which protect the environment but also the 200 odd laws which in their functioning didnt
virtually protect the environment. In its review it noted the following major short comings:-

Most of such laws had become outdated.

The laws lacked the statements of explicit policy objectives.
The laws lacked adequate provisions for helping the machinery for their
implementation.
The laws were mutually inconsistent.
There was no procedure for reviewing the efficiency of those laws.

BACKGROUND OF ENVIRNMENT:
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.

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.43

In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh 44, 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

43
S.C. Shastri, Environmental Law, 3rd Edition, Eastern Book Company.
44
1985 AIR 652, 1985 SCR (3) 169
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 wellbeing 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 recognized 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-

o Environmental measures by the state government and the local authority must
anticipate, prevent and attack the causes of environmental degradation.

o 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.

o 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 India45. 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 endeavor 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.

45
WP 914/1991
In my project, 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 civilized society, man has become more and more materialistic and in his
endeavor 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 recognized now. Pollution
has a direct impact on one's health, thereby, degrading one's life.

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.46

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

46
Shubhhankar Dam, Green Laws For Better Health: The Past That Was And The Future That May Be -
Reflections From The Indian Experience, 2004, 16 Geo. Int'l Envtl. L. Rev. 593.
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 Pradesh47. 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 recognized in the case of Subhash
Kumar vs. State of Bihar48. 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 Haryana49, 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

47
1989 AIR 594
48
1991 AIR 420
49
1994 SUPPL. (6) SCR 78
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'50. 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

50
M.C. Mehta And Anr vs Union Of India & Ors 1987 AIR 1086
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 are 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.

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."51

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 52, it
was pointed out by the Court that:

51
Mohit Singhvi, Water Management - Law and Policy in India.
52
2001 Supp(4) SCR 650
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 nonsmoking 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 Centers 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 favor 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.

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.

ENVIRNMENTAL JUSTICE IN INDIA:

Environmental rights in India do not really exist in written form. They were rather created from
lawyers and activists from other available resources.53 At first, the general provisions of the
COI should be introduced before examining how the Indian Courts have decided on

53
See Anderson (1996a), pp. 21 and 25
environmental related grievances. The following analysis will be limited on constitutional
rights.

CONSTITUTIONAL RIGHT TO ENVIRNMENT?

Human Rights in India are guaranteed as fundamental rights under Part III (Art. 12 35) of
the COI. Since India has become a member of the ICCPR and ICESCR on 27 March 1979,
human rights should be in accordance with international human rights law.54

Interesting to note is that whereas the rights guaranteed through the ICCPR are in Part III
of the COI, the rights of the ICESCR are not in Part III. They are rather included in Part IV
of the COI (Art. 36-51: Directive Principles of State Policy), and hence legally not directly
enforceable for individuals and groups,55 which takes them the immediate status of
fundamental rights. Du Bois concludes environmental protection to be rather in Part IV
than Part III of the COI,56 which makes the direct application through individuals actually
problematic.

The distinction between Part III and Part IV of the COI is particularly interesting. The
drafting committee of the COI initially wanted Part IV to belong to the fundamental rights
section.57 Fundamental rights are the rights for all individuals, while Directive Principles
of State Policy define the frame, in which the legislation and decisions from the authorities
can act. But one persons right can be another persons duty. The Indian Supreme Court
decided in 1980 that Part III and Part IV of the COI were complementing. Whereas Part IV
imposes obligations on the state, Part III is the control mechanism.58 Therefore, citizens
can theoretically demand the state to fulfill its duties, as if it were their fundamental rights.
59
In Koolwal v. Rajasthan, the Rajasthan High Court even decided in favor of
environmental rights, although no injuries to the population were alleged in the particular
case.60 This shows how serious Indian courts take environmental issues.

54
See Agarwal (1992), p. 479
55
See Agarwal (1992), pp. 479-81.
56
See Du Bois (1996), p. 2.
57
See Abraham (1999), p. 18
58
See Abraham (1999), pp. 19-20. He cites Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1506. Art. 51A
and Art. 48A were introduced in the COI 1976, pursuant to the Stockholm Declaration. See Vashishth (1999),
pp. 13-4.
59
See also Du Bois (1996), p. 2. He takes reference to Subhash Kumar v. State of Bihar AIR 1991 SC 420.
60
See also Koolwal v. State of Rajasthan, AIR 1988 Raj 2, 3, para 2. The High Court of Rajasthan decided that
Art. 51A gives a right to the citizen to move the Court for the enforcement of the duty cast on State
instrumentalities, agencies, departments, local bodies and statutory authorities []. See also Anderson
(1996b), p. 217, who takes special reference to this case
 The dimension of this interpretation of the COI for environmental rights can be understood
with the following interpretation. Art. 48A COI says:

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. Additionally, Art. 51A (g) COI61 says:

It shall be the duty of every citizens of India []

g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures; Normally, human rights should protect
against arbitrary action of the state. But the protection of the environment is a fundamental
duty not only of the state, but also of every (legal) person, says Art. 51A (g) COI. Many
environmental crimes are committed not only by the state, but by private actors. The
constitutional right to environmental in India could therefore also be indirectly claimed
against private. In other words, the state has to prevent that private persons damage the
environment, because the rights of other citizens could be affected.

How can citizens claim environmental rights? Other than many states, the right to fair and
legal procedures belongs to the fundamental rights section in India. The right to a remedy,
granted by Art. 32 COI, gives individuals the right to move to the Supreme Court by
appropriate proceedings for the enforcement of fundamental rights.62 A similar right on
63
the state level to approach the High Courts exists under Art. 226 COI. Art. 226 COI is
even wider than Art. 32 COI, because Art. 226 COI may be invoked not only for the
enforcement of a fundamental right but for any other purpose as well64. Hence,
individuals can enforce in the High Courts that the State adheres to Part IV of the COI.
Addressing the High Courts is unbureaucratic and involves hardly any costs,65 because
public (or social) interest litigation has become a common feature in India. Under public
interest litigation, the Courts facilitated the enforcement of environmental rights. Not only
can letters and telegrams from individuals or interest groups be transferred into writ
petitions, the court also acted on own initiative.66 To say it more clearly, the court

61
Art. 51(A) is the only article belonging to Part IV(A) of the COI (Fundamental Duties [of every citizen]).
62
Anderson (1996b), p. 209.
63
See Anderson (1996b), p. 209-10.
64
Divan and Rosencranz (2001), p. 129.
65
See Anderson (1996b), p. 224
66
See Anderson (1996b), pp. 210-1.
 inaugurated cases in the name of its citizens, particularly because on the one hand the
awareness of environmental rights is not necessarily given, and on the other hand it is
impossible for many people in India to address courts and enforce rights. Baxi summarizes,
that this nouvelle mechanism has made extra-ordinary remedies possible for the people,
and the Courts have now become institutions for all Indians, since they begin to act when
political institutions fail to comply with statutory or constitutional law and thus impinged
against fundamental fights.67

This short excurse in Indian Constitutional Law was particularly important, because it provided
evidence that environmental rights can be enforced under its provisions. The unique procedural
remedies58 enable to address environmental issues as human rights abuses under the High
Courts and the Supreme Court.

The question now is how Indian courts have decided on cases relating to substantial
environmental rights. Some cases, dealing with the right to life (Art. 21 COI) in terms of a
clean environment, will be discussed.

THE PRACTICE OF INDIAN COURTS

In the chapter dealing with the legal bases for a human right to environment in the
international perspective, the right to life of Art. 6(1) ICCPR was brought up. In India, the
jurisdiction of the Supreme Court widened the scope of the right to life in Art. 21 COI and
included the right to a wholesome environment.68 One of the most explicit and most cited
cases in this regard is Subhash Kumar v. State of Bihar. The Supreme Court ruled that
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex
Court, and the Right to live is a Fundamental Right under Art. 21 of the Constitution and
it includes the right of enjoyment of pollution free water and air for full enjoyment of life.
The court even went that far in saying that a petition for Art. 21 COI in connection with
Art. 32 COI can be invoked by social workers or journalists.69 In other words, any third
person, doubtful that the environmental conditions at some place are sufficient to live a life
in dignity, can call upon the courts. This decision of the Supreme Court is revolutionary,
because it set a precedent. In case here is an allegation that natural resources are polluted,

67
See Baxi (1985), pp. 289-90. It should be mentioned that this procedure does not comply with
Montesquieus doctrine of the division of power, because the Supreme Court begins to create law, what is
actually the task of the legislative power
68
See Divan and Rosencranz (2001), p. 49.
69
Subhash Kumar v. State of Bihar AIR 1991 SC 420, 424, para 7.
 the High Court or Supreme Court can be induced to investigate and eventually issue a writ
petition. The authorities and privatepersons will have to act in compliance with minimum
environmental standards.70Interesting to note is that the Supreme Court uses international
soft law, earlier discussed in order to emphasize its decision.71 Hence, international
environmental law, albeit vague, has an influence on the interpretation of rights through
Indian Courts. The Supreme Court has decided similarly in other cases related to the right
to life.72

Art. 21 COI has proven to be a substantial legal basis to claim environmental rights, and its
application was widened by the Indian jurisprudence during the years. For instance, the
Kerala High Court decided to include the right to potable water under Art. 21 COI.73Thus,
some Indian judges are aware that something like a right to environment exists, albeit not
explicitly, and have uniquely acknowledged this through court verdicts. Anderson
summarizes that probably more than any other jurisdiction on Earth, the Republic of India
has fostered an extensive and innovative jurisprudence on environmental rights74.

CONCLUSION:

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

70
In M.C. Mehta v. Union of India (1987) 4 SCC 463, 478, para 14, (also known as the Shiram Gas Leak Case),
the Supreme Court pointed out that there has to be a minimum environmental standard for industries (in this
case a tannery). Yet, there is no definition of minimal environmental standard, which leads to the
assumption that environmental standards in India are rather low, as the reality suggests. This case is a good
example for suing the state for not having acted against private polluters
71
M.C. Mehta v. Union of India (1987) 4 SCC 463, 467, para 4. The Supreme Court refers to the Stockholm
Declaration and underlines the engagement of Prime Minister Indira Gandhi in the negotiation process.
72
See for example Virender Gaur v. State of Haryana, 1992 (2) SCC 577, 581, para. 7: Environmental,
ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21. [] it would be
impossible to live with human dignity without a humane and healthy environment. Another good example is
T. Damodar Rao v. The Special Officer, Municipal Cooperation of Hyderabad, AIR 1987 AP 171, 181, para 24:
The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also
be regarded as amounting violation of Art. 21 of the Constitution. For a wider list of references, see for
instance Divan and Rosencranz (2001), pp. 49-51, esp. 51
73
Attakoya Thangal v. Union of India 1990 (1) KLT 580, 583, para. 7. See Anderson (1996b), p. 215, for other
examples
74
Anderson (1996b), p. 199.
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?

BIBLIOGRAPHY:

Cases
Charan lal sahu v. UOI AIR 1990 SC1480
Consumer Education and research forum v. Union of India AIR 2001 SC 1948.
Indian council for Enviro-Legal action v. Union of India (1996) 5 SCC281.
 M. C Mehta v. Kamal Nath AIR 2002 SC 1997.
M.C Mehta v. Union of India AIR 1988 SC 1037.
M.C Mehta v. Union of India1994 Supp. 3SCC 717.
M.C Mehta v. UOI AIR 1992 SC 382.
M.C Mehta v. UOI AIR 1997 SC 734.
Maneka Gandhi v. Union of India AIR 1978 SC 597
Murli S. Deora v. Union of India AIR 2002 SC 40.
P.A. Jacob v. Suprintendent of police, Kottayam AIR 1993 ker. 1.
Rural litigation and entitlement Kendra v. State of U.P AIR 1985 SC 625.
Sacchidanand Oandey v. State of West Bengal AIR 1987 SC 1109.
Subhash Kumar v. State of Bihar AIR 1991 SC 420.
T.K. Koolwal v. State of Rajasthan AIR 1988 Raj. 2.
T.N Godavarman Thirummalpad v. UOI 2003 (6) Scale 354.
Tarun Bharat Sangh (NGO) v. UOI AIR 1992 SC 514.
Vellore citizens welfare forum v. UOI AIR 1986 SC 2715.
Attakoya Thangal v. Union of India, 1990 (1) KLT 580

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1506

Kinkri Devu v. Himachal Pradesh, AIR 1988 HP 4
Koolwal v. State of Rajasthan, AIR 1988 Raj 2
M.C. Mehta v. Union of India, (1987) 4 SCC 463
Subhash Kumar v. State of Bihar, AIR 1991 SC 420
T. Damodar Rao v. The Special Officer, Municipal Cooperation of Hyderabad, AIR
1987 AP 171
Virender Gaur v. State of Haryana, 1992 (2) SCC 577

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Websites
Dr Gyan Basnet, The Right to Healthy Environment available at
http://www.nepalnews.com/home/index.php/guest-column/19926-the-right-to-healthy-
environment-.html (visited September 9th 2016)
http://pib.nic.in/focus/fomore/env.html (visited September 9th 2016)
http://planningcommission.nic.in/plans/planrel/fiveyr/6th/6planch20.html (visited September
9th 2016)
Books

P. Leelakrishnan, Law and Environment (Chapter 10 at 144, Eastern Book Company, India
1992)