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Law, land use and the environment: Afro-Indian dialogues

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Christoph Eberhard

Perspectives indiennes / Indian Perspectives

Environment and Human Rights’ Law: An Indian Perspective

V. Balaji

Résumé

Environnement et droits de l'homme. Une perspective indienne.

Faire le lien entre droits de l'homme et environnement est un enjeu crucial dans le monde contemporain. De nombreuses organisations internationales ont travaillé pour promouvoir ce but. Leur objectif principal n'est pas simplement la protection des droits de l'homme de manière classique, c'est-à-dire en se focalisant sur un droit de l'homme spécifique ou un aspect spécifique de l'existence humaine, mais de réinscrire et de justifier le lien entre droits de l'homme et environnement. Cette contribution explore la riche palette de droits qui doivent être réexaminés à travers le nouveau prisme d'une protection de l'environnement qui influe sur les droits de l'homme.

La jouissance effective de tous les droits de l'homme, incluant le droit à l'éducation et à la liberté ainsi que tous les droits économiques, sociaux et culturels a quant à elle une incidence certaine sur une meilleure protection de l'environnement. Elle permet de créer les conditions favorables à une modification des comportements qui seraient plus respectueux de l'environnement, contribueraient à une cohabitation plus harmonieuse avec lui et permettraient par là de mieux aborder aussi la question de la pauvreté. La garantie effective des droits est par ailleurs intimement liée aux enjeux d'un développement durable qui soulève les questions d'une participation politique plus active des groupes concernés, ce qui n'est pas sans poser la question de la diffusion de l'information relative à cette problématique.

Le droit de l'environnement qui régule la gestion des forêts, de la pêche et de l'eau a un impact considérable sur la vie et les moyens de subsistance de nombreuses communautés. Si ce dernier peut être extrêmement positif, il peut aussi se révéler désastreux pour les communautés pauvres. Si les lois ne sont pas élaborées et mises en œuvre en prenant en compte leurs intérêts, elles peuvent aboutir à les priver de leurs moyens de subsistance ce qui entraîne la négation de leurs droits de l'homme fondamentaux. Par ailleurs, il faut noter que l'échec des agences gouvernementales dans la mise en œuvre effective des lois environnementales, ainsi que le non-respect des règles en vigueur par les pollueurs, jouent un rôle considérable dans la dégradation accélérée de l'environnement qui, à son tour, affecte directement les droits fondamentaux des populations.

Dans tous ces cas, l'ordre judiciaire joue un rôle rédempteur en Inde. Il tente d'influencer le droit de l'environnement indien de manière à contenir ces développements négatifs. L'analyse des tendances actuelles démontre que l'ordre judiciaire indien est parvenu à harmoniser le droit national avec les textes internationaux du droit de l'environnement.

Cette démarche s'inscrit pleinement dans la lettre et dans l'esprit de la Constitution indienne. Le quarante deuxième amendement de la Constitution y a d'ailleurs introduit de manière explicite les principes de la protection de l'environnement à travers les articles 48A et 51A(g) en 1976. Des dispositions de la déclaration de Stockholm de 1972 sont repris dans le Air Act et le Environment Act - c'est le résultat direct de l'application de l'article 253 de la Constitution qui donne le pouvoir au parlement indien de faire des lois pour mettre en œuvre les obligations internationales de l'Inde ainsi que de rendre effective dans l'ordre interne des décisions prises lors de sommets internationaux ou qui résultent d'associations internationales.

La Cour suprême de l'Inde joue un rôle considérable dans la protection de l'environnement et dans l'avancement du respect des droits de l'homme qui y est lié. Dans ce but, elle a non seulement introduit tous les principes internationaux en Inde, mais elle a aussi étendu le concept de locus standi de façon à ouvrir les portes du « litige d'intérêt public » (Public Interest Litigation) aux cas de protection des droits de l'homme et de l'environnement pour le meilleur intérêt de la Nation et du monde.

Texte intégral

INTRODUCTION

1The development of Indian environmental law has taken place, for the most part, over the last three decades, with a significant level of polarization around the latter half of this period. This paper will involve a discussion of some of the most relevant environmental issues and their consequences from the perspective of human rights. The development of law in this area owes a great deal to the initiative taken by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India and the High Courts of the States. Further, this article tries to analyse the implications for human rights of decisions in cases relating to the environment, and vice versa, and the participation of non-state actors in the judicial process through public interest litigation.

Environment and Human Rights-A Retrospect

2Laws on the environment and human rights have essential points in common, which enable the creation of a field of cooperation between the two (see Cancado 1991: 142). First, both disciplines have deep social roots. Although human rights law is more rooted in the collective consciousness, the accelerated process of environmental degradation is generating a new ‘environmental consciousness’. Second, both are purposeful legal systems in which universal consent is an objective; they are of variable content and are open to reality and to social changes. The contents of both disciplines need to be adapted to dynamic social processes; their normative corpus must meet the needs of each social era, with the objective of fulfiling its protective ends. Third, as regards internationalization, the international community has made the commitment to adhere to the realization of human rights and respect for the environment. If from the Second World War onwards (Kane 1998: 389-390), the relationship State-individual has been of pertinence to the international community, the consequences of environmental degradation transcend political boundaries and are of critical importance in the preservation of world peace and security. The protection of the environment is internationalized, while the relationship between the State and the planet becomes a concern of the international community. Fifth and finally, as concerns universalization, both areas of law tend to universalize their object of protection. Human rights are presented as universal and the protection of the environment appears as everyone’s responsibility.

3The advancement of the relation between human rights and the environment would enable the incorporation of human rights’ principles in an environmental purview, such as anti-discrimination standards, the need for social participation, protection of vulnerable groups, etc. At the same time, the human rights’ system would be strengthened by the incorporation of environmental concerns, enabling the expansion of the scope of human rights’ protection and the generation of concrete solutions for cases of abuse (Anderson 1996: 1-4, 21-23). One of the most important consequences is to provide victims of environmental degradation the possibility of access to justice, which is considered to be one of the basic human rights. Given the present situation of absolute helplessness suffered by victims of environmental degradation, linking human rights and the environment brings such victims closer to the mechanisms of protection that are provided for by human rights’ law.

4From the time of the drafting of the 1948 Universal Declaration on Human Rights (UDHR), global society has recognized the importance of a broad array of human rights, which were then categorized as civil, political, social, economic and cultural rights. However, since that time, several important global socio-political dynamics have dominated the human rights’ agenda and are shaping the way we understand and prioritize these rights. Recent changes in the global order have begun to question this understanding, and we are in the midst of a clear paradigm shift in terms of how we understand human rights and their implications for sustainable development (www.cedha.org.ar).

5One began to speak of sustainable development as the world began to show signs of environmental collapse and, by the early 1970s, one had started to associate the environment and its health with the human condition. This awareness was encapsulated in the world conference on the human environment in the early 1970s. By the close of the twentieth century, the discussion had moved away from torture and physical integrity, freedom of speech and political liberties, and had started to focus on human dignity as the basis upon which to construct a better world. Human rights were about human dignity for all. Today we understand that in order to move towards sustainable development, which can be understood as a life in the fullness of our human dignity, the guarantee of effective human rights to all is paramount. This is a large leap in social understanding which has important consequences on our ways to envisage the realization of human rights. This new understanding appears on the development agenda in the form of an approach to development based on rights.

6The above aspects were very well covered in the 1972 Stockholm Declaration, which proclaimed that man’s natural and man-made environments are essential to his well-being and to the enjoyment of basic human rights-even the right to life itself. In 1986, the United Nations General Assembly recognized the relation between the quality of the human environment and the enjoyment of basic human rights (UNGA Resolution 2398 (XXII) 1986). The 1992 Rio Declaration emphasized sustainable development and environmental protection. Moreover, Agenda 21 called for the fulfilment of basic needs, improved living standards for all, better protection and management of eco-systems and a safer, more prosperous future.

The Development of International Environmental Law

7At this juncture it is necessary to succinctly outline the development of international environmental law. International law is fundamentally different from the domestic legal system of a nation state. In international law there is no supreme source of authority. The law is therefore effectively formed by a consensus of behaviour and ideas among nation states, which creates a system of rules of general application. Moreover, compliance with these rules by the States is largely voluntary, because the availability of sanctions in international law is limited.

8International environmental law covers any human activity within the territory or control of a State that gives rise to loss or injury to persons or things within the territory or control of another State. It comprises those substantive, procedural and institutional rules of international law that have as their primary objective the protection of the environment. While national efforts to conserve the environment are most crucial, it is necessary to bear in mind that co-operative international action is also indispensable for the following reasons. First, pollution generated within a particular State often has a serious impact on other countries. An illustration would be that of acid rain or global warming. Second, it is becoming increasingly obvious that States acting individually cannot resolve environmental problems. Therefore cooperation between the polluting and the polluted States becomes necessary.

9In international law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Noticeably, the Stockholm Declaration (1972) and the Rio Declaration, which are of great significance in international environmental law, are not binding on States but do have significant persuasive force.

The Stockholm Conference, 1972

10By 1972, a significant body of environmental obligations had been established at both regional and global levels. International concern was no longer focused only on the conservation of flora and fauna, but addressed issues such as oil pollution and the effects on the atmosphere of nuclear tests. In 1972, the first international conference on the environment-the UN Conference on the Human Environment-, which was held in Stockholm, marked a turning point in the development of international environmental law. The conference produced a declaration of principles, which may be regarded as the foundation of modern international environmental law. The declaration requires States to cooperate in developing international environmental law and provides that States are responsible for ensuring that activities within their jurisdiction or control do not cause damage in other States or in geographical areas beyond national jurisdiction.

11The conference laid down twenty-six principles to be followed by the States for the preservation and improvement of the human environment. The human rights’ perspective with which the conference and declarations opened was considered innovative at the time and has had influence on the development of national environmental law. The first principle says that man has the fundamental right to freedom, equality and adequate living conditions in an environment of a quality that permits a life of dignity and well-being; and he bears a solemn responsibility to protect and improve the environment for present and future generations.

12Subsequent to the Stockholm Conference, the UN conducted a series of conferences on various issues: habitat, population, food, desertification, water, new and renewable sources of energy. The most significant among them was the UN Conference on the Law of the Sea in 1973, which resulted in many coastal areas gaining greater control over ocean resources. The United Nations Environmental Programme has been responsible for the development of a number of international instruments such as the 1985 Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol of 1987 and the 1992 Convention on Biodiversity.

The Brundtland Report

13In 1987, a report on environment and development, known as the Brundtland Report (WCED 1987), concluded that if natural resources continued to be used at the current rate, if the plight of the poor was ignored and if pollution and waste of resources continued, a decline was to be expected in the quality of life of the world’s population. It called upon wealthy nations to make changes in their lifestyle by recycling waste, conserving energy and land and by rehabilitating the damaged landscapes. The publication of this report led to growing pressure for further international action on the environment and eventually to the holding of the 1992 conference in Rio.

14The Brundtland Report covered almost all crucial areas of environmental importance. These encompassed aspects of fundamental human rights and the concepts of intergenerational equity, conservation and the sustainable use of resources, as well as the need for States to adhere to and monitor environmental standards. In addition, it covered the areas of prior environmental assessment, sustainable development and assistance, as well as their importance, and it emphasized the greater need for a general obligation to cooperate.

15From the above principles in the Brundtland report, it is evident that, to achieve sustainable development, economy and ecology will have to merge. Environmental concerns must become an integral part of the decision-making process at all levels and sustainable development must become the overriding goal of all governments.

The Rio Conference, 1992

16Popularly known as the Earth Summit, the Rio Conference was the largest UN conference ever held and it put the world on the path of sustainable development, which aims at meeting the needs of the present without compromising the ability of future generations to meet their own needs. This conference was guided by the remarkable document, the Brundtland Report of 1987. The major achievements of the Earth Summit lie in the form of the documents that it produced. First, the Rio Declaration on Environment and Development encapsulates a series of principles defining the rights and responsibilities of States. Second, Agenda 21 is a comprehensive blueprint for global actions to effectuate the transition to sustainable development. Third, the Forest Principles were a set of principles to support the sustainable management of forests worldwide. And finally, two legally binding conventions, the Convention on Climate Change and the Convention on Biodiversity, were aimed respectively at the prevention of global climate change and the eradication of biologically diverse species.

The Rio Declaration

17This declaration consisted of twenty-seven principles and covered almost all the core concepts of environmental ethics. It declared that human beings are entitled to healthy and productive lives in harmony with nature. It referred to the concept of intergenerational rights. It focused on the issue of the development by States of national laws pertaining to liability and compensation for the victims of pollution and other environmental damage. It saw the introduction of the vibrant concepts of the precautionary principle and the polluter pays principle. It strengthened the notion that peace, development and environmental protection are interdependent and indivisible. It actively called upon all States to cooperate in the fulfilment of the principles embodied in the declaration.

The Kyoto Protocol

18The Kyoto Protocol of 1997 is an international treaty on climate change. It is actually an amendment to the United Nations Framework Convention on Climate Change (UNFCCC), which was adopted at the Earth Summit in Rio de Janeiro in 1992. It is an agreement under which industrialized countries are to reduce their collective emissions of six greenhouse gases by 5.2% compared to the year 1990. It calls for the effective transfer of technologies that are publicly owned or in the public domain. Developed countries are required to assist the developing countries, which are vulnerable to the adverse effects of climatic change, in meeting the cost of adopting this protocol. It lays emphasis on activities sponsoring clean development mechanisms (CDMs).

19The guiding principles of the protocol are focused mainly on such issues as the benefits of present and future generations, equity and the common but differentiated responsibilities and respective capabilities of nations. However, three main weaknesses of this protocol should be mentioned here. First, it aims at controlling the combined equivalent of six greenhouse gases. A few of these industrial gases were already to be eliminated under the Montreal Protocol, which pertained to the phasing out of ozone-depleting substances. Thus, it provides scope for increasing emissions based of fossil fuels. Second, the banking provision, which allows the industrialized countries to bank emissions for future use, creates inequity. Third, if the Kyoto strategy is followed, the developing countries will be required to reduce emissions to a much lower baseline than that of the industrialized countries, that which they had in 1990. This will have a very serious impact on climatic change.

The Position of India

20Environmental law in India has steadily grown over the past several decades. Indian environmental law can be generally described as the product of both national and international influences, for India, like a number of other developing countries, has been significantly influenced by the development of international environmental law. However, the contribution of the Indian judiciary accelerated the growth of Indian environmental awareness in the international arena.

21To understand the impact of international environmental legislation on Indian environmental laws we need to analyse their relationship. India, in becoming a signatory to an international environmental instrument, commits itself to adherence and compliance at the national level. As early as 1939, India ratified the 1933 London Convention related to the preservation of fauna and flora in their natural state. To fulfil the resulting international obligations, Article 253 of the Constitution enables the Indian parliament to enact laws in this regard. Article 253 states that the Indian Parliament has the power to make any law for the whole or any part of the territory of India and to implement any treaty, agreement or convention with another country or any decisions made at international conferences or by international associations. Second, India, by becoming a member of various international institutions and by making reference to the principles and practices of international environmental laws, expresses its support of certain environmental instruments. For example, Indian courts regularly cite a number of these instruments and refer to their provisions when passing a verdict on environmental issues. This seems to be the starting point for the bold and active steps taken by the judiciary to introduce international environmental principles into the law of the country.

22Earlier, environmental law originated as a collection of rules that sporadically emerged as a haphazard and piecemeal response to environmental problems. The Supreme Court mooted a comprehensive model of law for environmental regulation on various occasions when rendering decisions on environmental cases. It was also suggested that this comprehensive model should be a shift in focus away from ‘everyday rules’ towards underlying principles and philosophies that have been recognized and adopted internationally.

23India signed and ratified the Kyoto Protocol in August 2002. Since India is exempted from the framework of the treaty, it is expected to gain from the protocol in terms of technology transfer and related foreign investments. At the G-8 meeting in June 2005, the Indian Prime Minister pointed out that the per capita emission rates of the developing countries are a small fraction of those in the developed world. Following the principle of common but differentiated responsibility, India maintains that the major responsibility for curbing emission rests with the developed countries, which have accumulated emissions over a long period of time.

The Role of the Indian Judiciary

24International environmental law includes different types of principles. There are general principles of law, such as the principle of good faith, etc., principles of general international law, such as State sovereignty, the duty to cooperate, etc., and principles that concern only international environmental issues, such as the precautionary principle, the polluter pays principle, etc. The principle that the State retains sovereignty over the resources within its territory remains a cardinal principle in international law. This principle of State sovereignty is recognized in Principle 21 of the Stockholm Declaration, which asserts that States have the sovereign right to exploit their own resources pursuant to their own environmental policies. A State’s freedom to exploit its resources, however, carries with it the responsibility to ensure that activities within its jurisdiction or control do not cause damage to the environment of other States beyond the limits of national jurisdiction. Both of these ideas are combined in a single principle of the Rio Declaration, Principle 2. However, Principle 2 enlarges its scope by adding to ‘environmental’ policies ‘environmental and developmental policies’. This is in accordance with the purpose of the Rio Conference, which focused not only on the environment but also on development.

The Principle of Absolute Liability

25The principle of absolute liability was evolved in M.C. Mehta v. UOI (AIR 1997 SC 751), a case which is popularly known as the ‘Oleum Gas Leak Case’. The Supreme Court re-examined and reiterated the principle of absolute liability in the case of Indian Council for Enviro-Legal Action v. UOI. (1996) 3 SCC 212), popularly known as the ‘Sludges Case’. The court laid emphasis on the absolute liability of the industries in meeting the cost of remedial action, as well as compensation for loss and suffering. The Court explained the principle of absolute liability as follows: according to this rule, if the activity carried out is hazardous or inherently dangerous, the person carrying out such an activity is liable to make good the loss caused to any other person by his activity, irrespective of whether he took reasonable care while carrying out this activity. This can be equated to and interpreted by the words of the preamble of the Universal Declaration of Human Rights, 1948, which underline ‘the recognition of the inherent human dignity and the inalienable rights of the human family’. The principle of absolute liability as laid down by Supreme Court has now attained the status of a statutory liability. The Public Liabilities Insurance Act of 1991 is one such law that provides that there is no burden on the claimant to plead and establish that the death, injury or damage in respect of a claim was due to a wrongful act, neglect, or default by any person.

The Precautionary Principle and the Polluter Pays Principle

26The precautionary principle and the polluter pays principle are the essential features of sustainable development. The polluter pays principle may be said to embody the idea that the polluter should bear the expenses under two heads, namely for reversing the ecology to an acceptable state, if not to its original state, and for compensation to affected individuals. Principle 16 of the Rio Declaration stresses the same. In Vellore Citizen's Welfare Forum v. UOI (AIR 1996 SC 2715), the Supreme Court declared that the polluter pays principle is an essential feature of sustainable development. The Court observed that this principle means that the liability for harm to the environment extends not only to the compensation of the victims of pollution, but also to the cost of restoring the environmental degradation.

27The Supreme Court applied the polluter pays principle in another landmark decision in the case of S. Jaganath v. UOI (AIR 1997 SC 811). The Supreme Court ordered the closure of shrimp culture industries that were polluting the drinking water. It directed the industries to compensate the individuals affected by these industries and also to contribute to reversing the damage caused to the environment. It further directed that the compensation amount thus recovered be deposited in the ‘Environment Relief Fund’. The Court also applied this principle in M.C. Mehta v. Kamalnath (AIR 2000 Sc 1997), where a motel was directed to pay compensation by way of cost for the restitution of the environment of the area.

The Principle of Preventive Action

28The principle of preventive action requires that States take action to protect the environment at an early stage, and ideally before any damage has occurred. While the concept of the State’s responsibility not to cause environmental damage requires that States must not exploit their resources in a manner that causes environmental harm to other States, the principle of preventive action has been interpreted in terms of placing States under an obligation to prevent damage to the environment within their own territories. That both the Stockholm Declaration and the Rio Declaration make reference to this principle, as do a number of treaties, is good evidence of its status as a binding principle in international environmental law. The difference between the preventive principle and the precautionary principle is that the former requires States to take action when there is a foreseeable risk of damage to the environment, while the latter requires action when the risks associated with an activity are suspected but are not fully known.

29According to the theory of the precautionary principle, the polluter must demonstrate that the activities proposed will not cause harm to the environment, rather than the State having to demonstrate that they will cause such harm. The Supreme Court declared in the Vellore Citizens Welfare Forum v. UOI (AIR 2000 Sc 1997) that the precautionary principle is an essential feature of sustainable development. In M.C. Mehta v. UOI (AIR 1997 SC 734), popularly known as the ‘Taj Mahal Case’, the judgment of the Court was based on the principle of sustainable development and the Court applied the precautionary principle.

The Public Trust Doctrine

30The public trust doctrine primarily rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. These resources being a gift of nature, they should be made freely available to everyone, irrespective of status. The doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than permit their use for private or commercial ownership.

31Three types of restrictions are often thought to be imposed by the public trust doctrine on government authority. First, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public. Second, the property may not be sold, even for a fair cash equivalent. Third, the property must be maintained for particular types of use.

32The Supreme Court decision in M.C. Mehta v. Kamal Nath ((1997) 1 SCC 388) is an excellent exposition of the public trust doctrine. In this case, the Supreme Court observed that our legal system is based on English Common Law, which includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Thus, the public at large is the beneficiary of seashores, running waters, air, forests and ecologically fragile lands. The State, as trustee, is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership.

33The Supreme Court, in M I Builders Ltd v. Radhey Shyam Sahu (AIR 1999 SC 2468), referred to the public trust doctrine. It held that this doctrine would be applicable even in the absence of any statute to nullify the acts of the municipal corporation. The Supreme Court of California (USA), in National Audubon Society v. Superior Court of Alpine Country (cited in M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, at page 412), popularly known as the “Mono Lake Case”, applied the public trust doctrine.

The Doctrine of Intergenerational Equity

34The central theme of this theory includes the right of each generation of human beings to benefit from the cultural and natural inheritance of past generations, as well as the ‘obligation’ to preserve such heritage for future generations [both right and liability]. Intergenerational equity requires that the diversity and quality of biological resources and renewable sources such as forests, water and soils be preserved. The idea behind this principle is: “Do not cut down trees faster than they are re-grown. Do not farm lands at levels or in a manner that would reduce the land’s regenerative capacity. Do not pollute water at levels exceeding its natural purification capacity.”

35The principle of intergenerational equity has its roots in the 1972 Stockholm Declaration, the Brundtland Report, the Rio Declaration on Environment and Development and the Johannesburg Declaration. The utility of this principle was illustrated in a recent case by the Supreme Court of the Philippines in Minors Oposa v. Secretary of the Dept of Environment and Natural Resources (33 ILM 173 (1994)). The Court, while upholding the petitions, went on to state: “We find no difficulty in ruling that they can for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue on behalf of the succeeding generations can only be based on the concept of intergenerational responsibility in so far as the right to a balanced and healthy ecology is concerned.” In Consumer Education and Research Society v. UOI (2000 (1) SCALE 606), the Supreme Court recognized, in addition to sustainable development, the principle of intergenerational equity.

Sustainable Development

36The principle of sustainable development is perhaps the most important principle to have emerged from international activity on the environment. The most widely accepted definition of sustainable development is that given in the Brundtland Report (WCED 1987: 43): “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” The Brundtland Report noted that nations had traditionally compartmentalized human activities and their environmental effects in such sectors as energy, agriculture and trade, as well as in broad areas of concern such as ‘environmental’, ‘economic’ or ‘social’. These compartments had however begun to dissolve. The Rio Declaration consolidated these concepts and placed them firmly on the international agenda. The Johannesburg Declaration (2002) reaffirmed the international commitment to sustainable development.

37During the 1980s, most of the Indian cases were concerned with the cancellation of mining leases and with the closure of national development projects. In the definition of sustainable development in the 1990s, emphasis was placed on the relation between development and environment, and on a balance between the two. More sophisticated challenges were made when Indian courts were asked to deal with polluting industries, for example, leather factories as in the Vellore Citizen Welfare Forum case (AIR 1996 SC: 2715) to prevent encroachment on wetlands (see People United For Better Living in Calcutta-Public and Another v. State of West Bengal and Others (AIR 1993 Cal: 215) and to preserve forests and vegetation (Bombay Environmental Action Group & Another v. State of Maharashtra (AIR 1991 Bom: 301)).

38Recently, in N.D. Jayal v. Union of India ((2004) 9 SCC 362, at page 384), the Supreme Court observed that adherence to the principle of sustainable development is a sine qua non for the maintenance of the symbiotic balance between the right to environment and the right to development. The right to environment is a fundamental right, as is the right to development. The right to sustainable development can therefore not be singled out and the concept of sustainable development is to be treated as an integral part of ‘life’ under Article 21. The Court went even further and observed that maintaining the ecological balance and protecting human rights are integral elements of sustainable development.

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39In Indian Banks' Assn. v. Devkala Consultancy Service ((2004) 11 SCC 1, at page 18), the Court in ‘pro bono publico’ proceedings intervened in cases of callous neglect as a policy of State, lack of probity in public life and abuse of power resulting in destruction of the environment. The Court expanded the meaning of life and liberty as envisaged in Article 21 of the Constitution of India which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. It jealously enforced Article 231 of the Constitution. Statutes were interpreted from a human rights’ point of view and in the light of international treaties, protocols and conventions. Through the use of the concept of human rights, justice was made available, even in cases where the State could not be held liable otherwise (see Kapila Hingorani v. State of Bihar).

40In M.C. Mehta v. Union of India ((2004) 12 SCC: 118), the Supreme Court maintained that development and environmental protection are not enemies. If it is possible, without degrading the environment, or by minimizing adverse effects on it by applying stringent safeguards, to carry on development activity applying the principles of sustainable development, development must continue. One cannot lose sight of the need to develop industries, irrigation resources and power projects, etc., nor can the need to improve employment opportunities and the generation of revenue be disregarded. A balance has to be struck.

The Right to Life and the Right to Personal Liberty-Judicial Activism

41The judiciary, in its quest for innovative solutions to environmental matters in the framework of public interest litigation, looked to constitutional provisions to provide the courts with the necessary jurisdiction to address specific issues. Furthermore, the importance of Article 142 was found by the Supreme Court to be the best base to form its decisions in order that complete justice may be done. As the Supreme Court is the final authority as far as matters of constitutional interpretation are concerned, it assumes a sort of primal position in the Indian environmental legal system. For example, the fundamental right contained in Article 21 of the Indian Constitution is often cited as the violated right, albeit in a variety of ways.

42In Subhash Kumar v. State of Bihar (AIR 1991 SC: 420), the Court observed that:

“The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution...”, which allows him to seize the Supreme Court by appropriate proceedings.

43The Supreme Court, in its interpretation of Article 21, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights’ jurisprudence. There are numerous decisions wherein the rights to a clean environment, drinking water, a pollution-free atmosphere, etc., have been given the status of inalienable human rights and, therefore, of fundamental rights of Indian citizens.

44In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (AIR 1985 SC 652), the Supreme Court based its five comprehensive interim orders on the judicial understanding that environmental rights were implied in the scope of Article 21 (see T. Damodar Rao v. Municipal Corporation, Hyderabad (AIR 1987 AP 171) and L.K. Koolwal v. State of Rajasthan (AIR 1988 Raj 2)).

Holistic Adjudication

45The Supreme Court, in recent years, has been adopting a holistic approach towards environmental matters. This is usually done through the periodic issuance of detailed orders, while committees appointed by the Court monitor the ground situation. The origin of this tendency may be seen in cases such as the Municipal Council, Ratlam v. Vardhichand (AIR 1980 SC 1622) and Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180).

46Environmental deterioration could eventually endanger the lives of present and future generations. Therefore, the right to life has been used in a diversified manner in India. It includes, among other things, 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 recognized as a constitutional right. However, the nature and extent of this right is not similar to the self-executory and actionable right to a sound and healthy ecology prescribed in the Constitution of the Philippines see Minors Oposa v. Sec. of the Department of Environment, 33 ILM 173 (1994); see also Antonio G.M. La Vina 1994: 246-252). 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 in two ways. First, any law affecting personal liberty should be reasonable, fair and just. (see Maneka Gandhi v. Union of India (AIR 1978 SC 597, 623-624) and Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (AIR 1981 SC 746, 749-750)). Second, the Court recognized several unarticulated liberties that were implied in 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 (see. Leelakrishnan 1992: 144-152).

47In addition, the Constitution (Forty-Second Amendment) Act of 1976 explicitly incorporated environmental protection and improvement as a part of State policy. Article 48A, a Directive Principle of State Policy, provides that: “The State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country.” Moreover, Article 51A(g) imposes a similar responsibility on every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures (...)”.

48The Indian judiciary has dealt with human rights and the environment throughout the last decade. A constitutional bench of the Supreme Court in the Charan Lal Sahu Case first addressed the link between environmental quality and the right to life (see Charan Lal Sahu v. Union of India (AIR 1990 SC 1480)).

49In 1991, the Supreme Court interpreted the right to life guaranteed by Article 21 of the Constitution to include the right to a wholesome environment. In Subhash Kumar v. State of Bihar (AIR 1991 SC 420/1991 (1) SCC 598), the Court observed that the ‘right to life guaranteed by Article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ Through this case, the court recognized the right to a wholesome environment as part of the fundamental right to life. This case also indicated that the municipalities and a large number of other concerned government agencies could no longer rest content with unimplemented measures for the abatement and prevention of pollution. They may be compelled to take positive measures to improve the environment. This was reaffirmed in M.C. Mehta v. Union of India (see K. Ramakrishnan v. State of Kerala (AIR 1999 Kerala 385)).

50This case concerned the deterioration of the world environment and the duty of the State government, under Article 21, to ensure a better quality of environment. The Supreme Court ordered the Central government to disclose the steps it had taken to achieve this goal through national policy and to restore the quality of the environment.

51In another case (M.C. Mehta v. Union of India (1991) AIR SC 813 (Vehicular Pollution Case); (1992) Supp. (2) SCC 85; (1992) Supp. (2) SCC 86; (1992) 3 SCC 25), the Supreme Court dealt with the problem of air pollution caused by motor vehicle operation in Delhi. It was a public interest petition and the court gave several directions to the Ministry of Environment and Forests. Decisions such as this indicate a new trend in the Supreme Court to fashion novel remedies to reach a given result, although these new remedies seem to encroach on the domain of the executive (see Rosencranz et al. 1993:415-419).

52The third aspect of the right to life is the application of the public trust doctrine to protect and preserve public land (Razzaque 2001: 221-234). This doctrine serves two purposes: it mandates affirmative state action for the effective management of resources and it empowers citizens to question ineffective management of natural resources (Rose 1998: 351). Public trust is increasingly related to sustainable development, the precautionary principle and bio-diversity protection. Moreover, not only can it be used to protect the public from poor application of planning law or inadequate environmental impact assessment (Redgwell 1999: 68), it also has an intergenerational dimension (Redgwell 1999: 63).

53When the Indian courts applied the public trust doctrine, they considered it to be not only a concept from international law, but also one that is well-established in their national legal system. (see Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC at 247). Accepting public trust doctrine as part of Common Law, the Indian courts have applied it explicitly in three recent cases, one in 1997 (M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388) and two cases in 1999 (see Th. Majra Singh v. Indian Oil Corporation (AIR 1999 J&K 81) and M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu (AIR 1999 SC 2468)).

54The successful application of the doctrine in India shows that it can be used to surmount difficulties in the resolution of tribal land disputes and cases concerning development projects planned by the government. In M.C. Mehta v. Kamal Nath and Others ((1997) 1 SCC 388), the court added that it would be equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and the strip-mining of wetland filling on private lands in a State in which government permits are required. In both M. I. Builders Pvt. Ltd v. Radhey Shyam Sahu (AIR 1999 SC 2468) and Th. Majra Singh v. Indian Oil Corporation (AIR 1999 J&K 81), the court reconfirmed that the public trust doctrine “has grown from Article 21 of the constitution and has been part of the Indian legal thought process for quite a long time” (see http://www.unhchr.ch/​environment/​bp4.html).

55The Constitution of India provides that all are equal before the law and are to be accorded equal protection by the law. Infringement of Article 14 can have an impact on the environment and human rights (ibid.). For example, urban environmental groups frequently resort to Article 14 in order to quash ‘arbitrary’ municipal permission for construction that is contrary to development regulations. Article 14 can be used to challenge government sanctions for mining and other activities that have an impact on human rights and the environment, when permission has been arbitrarily granted without adequate consideration of environmental impacts (see K. Ramakrishnan v. State of Kerala (AIR 1999 Kerala 385)).

56In India, the right to property was formally removed from the fundamental rights in 1979. This right is now protected by Article 300A of the Constitution and does not have the same procedural advantages as do other fundamental rights. This amendment was prompted by multiple lawsuits against different government agencies by the indigenous people. These tribal people were being evicted from their own property and their lands were being used for other development projects (see Banawasi Seva Ashram v. State of Uttar Pradesh (AIR 1987 SC 374)).

57This shows that the constitutional definition of property is very restricted in India. Parliament will not have unfettered power to impose any restriction it chooses. In spite of the conservative meaning, there is scope for using this provision effectively in the protection of the environment. This work could be done by the promulgation of land management laws and through the judiciary’s balancing act between individual property rights and community interest. This task was perfectly accomplished as the judiciary diluted the concept of locus standi, thereby throwing the doors open for the vulnerable, whose human right to access to justice must be protected. The Supreme Court has exercised its verdict in favour of community interest, thereby protecting the environment and human rights.

58National legislation in India and in some neighbouring countries is sectoral and human rights and the environment are dealt with by separate legislation. However, framework environmental legislation in recent years has taken into account human health and safety aspects, as well as requirements for sustainable development. The general environmental framework laws (see the Indian Environment Protection Act of 1986, the Pakistan Environment Protection Act of 1997 and the Bangladesh Environment Conservation Act of 1995) tend to be enabling in nature and mainly charge a competent national authority to provide in future more specific guidelines and regulations.

59Considering all these perspectives, and keeping in mind the frequency of judicial orders/directions periodically passed by the Supreme Court, it seems as if the latter has truly become an ‘environmental court’, monitoring environmental progress as its chief concern or preoccupation (44 JILI 40 (2002). The Supreme Court recently came down heavily on the Delhi administration because of the slow and lethargic attitude shown towards the orders of the Supreme Court fixing the deadline for the conversion of the busses in Delhi to CNG fuel in order to reduce vehicular pollution in the capital city. Further, the Supreme Court developed far-reaching strategies to check the alarming rise in vehicular pollution by giving suitable orders/directions, for example, the replacement of leaded by unleaded petrol (see M.C. Mehta v. Union of India 1997 (4) SCALE 5) and the option to use either catalytic converters or to switch over to CNG (see M.C. Metha v. Union of India (AIR 2001 SC 1948).

Conclusion

60The recent trend in case law suggests that it is difficult to make a clear-cut division between human rights cases and environmental cases. In most public interest litigation, both issues are argued and decided. As case studies of the 1980s in India show, the various categories of public interest litigation principally covered air, water, mining or forest conservation in a broad manner. In the 1990s, the categories became more sophisticated and dealt with more the complex areas of waste management, protection of bio-diversity, access to environmental information, ground water management and the relations between labour rights and environmental rights.

61During the 1990s, Indian courts (see Ahuja 1997: 158 and Rosencranz and Divan (eds.) 2001: 168) dealt with mining and quarrying, forest conservation, water pollution, gas leak disasters, development projects and the environment, hazardous wastes from industries, litigation concerning big dams, protection of livelihood, construction of bridges and environmental degradation. At the same time, the court dealt with the protection of wetlands, air pollution, air and water pollution, noise pollution, pollution from animal slaughter-houses, access to environmental information, trade and environment, relocation of labourers after closure of polluting factories, groundwater management and development, management of city sewerage systems. In 2000, there were a number of public interest environmental litigations in which the Supreme Court dealt with water and noise pollution and coastal zone development. All these decisions, in one way or another, established a human right to a healthy environment.

62In all the cases with which the Supreme Court dealt, it did a commendable job in protecting both human rights and the environment. The fountain of basic rights, that is, the right to access to justice, was also dealt with by the Supreme Court. The rigid concept of locus standi in the matter of public interest litigation was diluted, which is of far-fetching importance in environmental causes, taking care of both the environment and the human rights of the concerned. However, the Supreme Court could have cast its net wider and taken the Government to the task, making it share responsibility whenever environmental degradation occurs due to industry. The Government, after all, was responsible for granting licences or permission for the industrial activity to commence. There was a clear lapse on the part of the concerned Government to check and prevent environmental degradation. If the Government were to be held in part responsible, it would be very careful when considering the granting of a licence or permission to industries. Furthermore, it would take follow-up action. This could to a large extent prevent the irreparable loss caused to human rights by environmental degradation.

63The next step could be a Green Tax, which could be levied on citizens and to a greater degree on industrial sectors, similar to the education levy, and utilized for new technologies and treatment plants so as to prevent environmental pollution.

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Notes

1 Article 23 (1) "Traffic in human beings, beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be offence punishable in accordance with law". Article 23 (2) "The State can make any compulsory service for the public purposes and in imposing such services the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

Auteur

Faculty Member in the School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai.

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