The right to a wholesome environment or the right to a clean and healthy environment is a basic human right. In the year 2012, the then Union Minister of State for Environment and Forests Jayanthi Natarajan suggested that the right to a wholesome environment is a fundamental right and needs to be safeguarded. This article takes a look at… Read More »
The right to a wholesome environment or the right to a clean and healthy environment is a basic human right. In the year 2012, the then Union Minister of State for Environment and Forests Jayanthi Natarajan suggested that the right to a wholesome environment is a fundamental right and needs to be safeguarded. This article takes a look at the various provisions in the constitution of India as well as the legal aspects which establish the right to a wholesome environment as a...
The right to a wholesome environment or the right to a clean and healthy environment is a basic human right. In the year 2012, the then Union Minister of State for Environment and Forests Jayanthi Natarajan suggested that the right to a wholesome environment is a fundamental right and needs to be safeguarded.
This article takes a look at the various provisions in the constitution of India as well as the legal aspects which establish the right to a wholesome environment as a fundamental right.
I. Introduction
Securing and improving the environment is a constitutional mandate. It is a commitment for a country wedded to the thoughts of a welfare State. The Indian Constitution contains explicit provisions for environment protection under the chapters of Directive Principles of State Policy and Fundamental Duties.
The nonattendance of a particular provision in the Constitution perceiving the fundamental right to a clean and wholesome environment has been set off by judicial activism in recent times.
II. Right to a Clean And Pollution Free Environment
In the Rural Litigation and Entitlement Kendra & Ors. v. State of UP[1] case, otherwise called the Dehradun quarrying case, the Supreme Court of India held that the contamination brought about by quarries unfavourably influences the wellbeing and safety of individuals and subsequently, the equivalent ought to be stopped since it is violative of Article 21.
In the above case, the Supreme Court unexpectedly held that the privilege of a wholesome environment is a piece of right to life and personal liberty ensured under Article 21 of the Constitution.
Further, on account of Subhash Kumar v State of Bihar[2], the supreme court again held that the right to get pollution-free water and air is a key right under Article 21. Following this right, the right to a contamination-free environment was consolidated under the head of right to life and all the law courts inside the Indian domain had to undoubtedly follow the same.
This set out the establishment of an environmental case in India. Likewise, general wellbeing and ecology were held to be essential needs under Article 21. The constitution of a green bench was additionally ordered by the Supreme Court.
In the case of Ratlam Municipality v. Vardicharan[3], where the problem of pollution was due to private polluters and haphazard town planning, it was held by the Supreme Court that pollution-free environment is an integral part of the right to life under Article 21.
Sher Singh v. State of Himachal Pradesh[4] established that the citizens of the nation have a principal right to a wholesome, clean and fair environment. The Constitution of India, regarding Article 48A, commands that the State is under a Constitutional commitment to secure and improve the environment and to safeguard the forests and wildlife in the nation.
Through the 42nd Amendment to the Constitution, the Parliament, with an object of sharpening the citizens of their obligation, consolidated Article 51A in the Constitution, inter alia, requiring a citizen to ensure and improve the natural environment including the forest, lakes, rivers and wildlife and to have compassion for living creatures.
The legislative intent and spirit under Articles 48A and 51A(g) of the Constitution find their place in the definition of ‘environment’ under the Environment (Protection) Act, 1986 (also called the “Act of 1986”)
The legislature enacted various laws like the Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974 and the Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1980, the Indian Forest Act, 1927 and the Biological Diversity Act, 2002 and other enactments with the essential object of giving wide measurements to the laws identifying with protection and improvement of the environment.
The facts confirm that Part III of the Constitution identifying with Fundamental Rights doesn’t explicitly commit any Article to the Environment or protection thereof essentially. Be that as it may, with the improvement of laws and proclamation of decisions by the Supreme Court of India, Article 21 of the Constitution has been extended to take inside its ambit the privilege to a clean and good environment.
In the entire cycle, some individuals don’t understand the adverse impact of their harmful activities and because of those few, innocents are forced to suffer. They are being deprived of their right to life.
The scholar Shubhankar Dam in his article talks about the risks posed by households, the workplace, outdoors and transportation to the health:
“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.”[5]
Along these lines, it is very evident that the environment wherein we live significantly influences our wellbeing. The illnesses which individuals endure are at times difficult to treat and often result in the death of a person.
In this way, an unclean environment really meddles with an individual’s right to life and dignity and deprives him of his right. In view of this, the limits of the key right to life and individual freedom ensured in Article 21 were extended to incorporate environmental protection.
At that point, the Supreme Court reinforced this Article in two different ways: first which I have just referenced that is to finish the assessment of reasonability regarding articles 14 and 19. Secondly, the Supreme Court interpreted the right to life and personal liberty to incorporate the right to a wholesome environment.
In spite of the fact that the Court didn’t specify any infringement of crucial right expressly yet had implicitly admitted the adverse impacts to the life of individuals and included a violation of Article 21 of the Constitution.[6]
The idea of the right to a wholesome environment was additionally perceived in the case of Subhash Kumar v. the State of Bihar[7] For this situation, the company of Jamshedpur continues mining activity against which the suit filed.
The Court held that:
“The right to life includes the right to enjoy unpolluted air and water. In the event that anything endangers or impedes the personal satisfaction and is in derogation of laws, a citizen has the right to recourse to Article 32 of the Constitution and furthermore, the plan of action ought to be by an individual really interested in the protection of society and someone who is in the interest of the community.”
Similarly, in the case of Virender Gaur v. State of Haryana[8], 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 the environment, ecological balance which is free from pollution of air and water, sanitation without which life cannot be enjoyed. Therefore, a hygienic environment is an integral part of the right to a healthy life and it would be impossible to live with human dignity without a humane and healthy environment.”
III. Right to Sweet Water Assurance
Under fundamental rights in the Constitution of India, Article 21 named “protection of life and personal liberty”, states that “no individual will be denied of his life or individual freedom aside from as procedure established by law”. This has prominently come to be known as the Article on the “right to life”.
Considering the extent of this right, environmental, biological, air and water pollution are violations of Article 21 of the constitution of India. Further, the entitlement of citizens to get protected drinking water (potable water) is important for the right to live under Article 21.
As early as in 1984, in the Bandhua Mukti Morcha v. Association of India[9] case, the Supreme Court inferred the idea of the right to a “healthy environment” as a feature of the ‘right to life’ under Article 21. The Court, in an ongoing judgment (1 December 2000), had stated that in the present emerging law, environmental rights, which incorporate a gathering of collective rights, are described as “third Generation” rights.
An important decision of the Indian Supreme Court was in the situation of A.P. Contamination Control Board II v. Prof. M.V. Nayudu[10]. For this situation, the AP government had granted an exclusion to a polluting industry and permitted it to set up almost two main reservoirs in Andhra Pradesh – the Himayat Sagar Lake and the Osman Sagar lake, disregarding the Environment Protection Act 1986.
The Supreme Court struck down such exclusion and held that the “Environment Protection Act and The Water (Prevention and Control of Pollution) Act 1974 didn’t empower the State to allow an exception to a specific industry inside the region prohibited for areas of polluting industries[11].”
In the case of Subhash Kumar v. the State of Bihar (1991), the Supreme Court held that the right to live “incorporates the right to pollution-free water and air for full pleasure throughout everyday life. In the event that anything jeopardizes or weakens that personal satisfaction in derogation of laws, a citizen has the option to have a response to Article 32 of the Constitution for removing the pollution of water or air which might be impeding the personal satisfaction for the quality of life.[12]
In M.C. Mehta v. Kamalnath[13], the Supreme Court categorically ruled that the State is not only bound to regulate water supply but should also help realize the right to healthy water and prevent health hazards. The principle of the Roman Law “salus populi est suprema lex” (welfare of the people is paramount law) is the abiding faith in Indian Constitution and the “State is assigned a positive role to help people realize their rights and needs”.
In the case of State of Karnataka v. State of Andhra Pradesh[14], the Court held that the right to water is a right to life, and thus a fundamental right.
In Narmada Bachao Andolan v. Union of India[15], it was held that ‘water is a basic need for the survival of human beings and is part of the right to life and human rights’.
The A.P. High Court, while citing several of the abovementioned rulings of the Court, reiterated the responsibility of the State in providing clean drinking water to the citizens in P. R. Subhash Chandran v. Government of Andhra Pradesh & Others[16]. Thus, in the Indian Constitution, providing every citizen with adequate clean drinking water and protecting water from getting contaminated is a fundamental Directive Principle in the governance of the State as well as a fundamental right under Article 21.[17]
Water as a social asset: There are key judicial pronouncements that the right to life in the Constitution means the rights to clean water and sanitation as well. Courts have not only termed the right to water as a fundamental right but also have defined water as a “social asset”.
The following are the key pronouncement made by the Indian courts –
- In 2002, the apex court approved the Sardar Sarovar Dam Project on Narmada in the year 2000, interpreting the right to life article as also the right to water:
“Water is an essential requirement for the survival of people and is important for the right to life and common freedom as cherished in Article 21 of the Constitution of India and can be served simply by giving sources of water where there is none.”
- In 1990, the Kerala High Court ruling on a groundwater extraction case including water supply plan for the island of Lakshadweep decided that the government should not extract groundwater affecting the sources in future that thus disregarded Article 21. It administered:
“The administrative agency can’t be allowed to work in such a way as to make advances into the essential right under Article 21. The right to life is significantly more than a privilege to animal existence and its ascribes are manifold, as life itself. An organization of human needs and another worthy framework has been perceived in these areas. The option to sweet water and the option to free air are traits of the privilege to life, for these are simply the fundamental elements which sustain life itself.”[18]
- Apart from expanding the content of the right to life as including the right to water, the court has, in the context of water pollution, mandated the cleaning up of water sources including rivers in M.C. Mehta v. Union of India and even tanks and wells specified in Hinch Lal Tiwari v. Kamala Devi[19].
The court has likewise applied the “precautionary principle” to prevent the possible contamination of drinking water sources resulting upon the setting up of industries in their region. Different judicial pronouncements have perceived that water is a network source which is to be held by the state in broad public trust in recognition of its obligation to regard the principle of intergenerational equity.
IV. Conclusion
The lack or refusal of access to water and sanitation to the poor in India had been continuing for quite a while even before the advent of economic reforms. This has been occurring even now in spite of the Supreme Court’s decisions from time to time that access to clean drinking water is an essential right as a feature of the right to life in Article 21 of the Indian Constitution.
Right to Water in India isn’t explicitly ensured either through the Constitution or any enactment. It is a suggested right, declared through a bunch of laws which present an obligation upon the state through its different agencies to prevent and control water contamination. Subsequently, the Right to clean water is ensured under article 21 of the Constitution of India and nobody can be denied of it. The equivalent has been maintained by the courts around the nation.
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. Therefore, a very important question remains unanswered — “Is the right to a healthy environment guaranteed or is it illusory?”
References
[1] 1985 AIR 652
[2] 1991 AIR 420
[3] 1980 AIR 1622
[4] CWPIL No.15 of 2010, 6 February 2014
[5] “Right to wholesome environment should become fundamental right”, 2021, Available Here
[6]Right to Clean Environment, Available Here
[7] 1991 AIR 420, 1991 SCR (1) 5
[8] Appeal (civil) 9151 of 1994, 24 November 1994
[9] 1984 AIR 802
[10] Appeal (civil) 373 of 1999, 1 December 2000
[11]Anu Mittal, Right to clean water, 2015, Available Here
[12]Mohit Singhvi, Water management — law and policy in India, Available Here
[13] (1997)1 SCC 388
[14] O.S. No 2 of 1997, 25 April 2000
[15] W.P.(C) No. 328 Of 2002.
[16] 2001 (5) ALD 771
[17] Human Rights to Water and Sanitation, Available Here
[18]Krishnendra Joshi, Right to clean water is a fundamental right, Available Here
[19] Appeal (civil) 4787 of 2001, 25 July 2001
