Environmental law and human rights
Issues and Challenges
SUBMITTED BY
Shivankar Sukul
BBA-LLB
National Law University, Jodhpur
Table of contents
Table of Contents
Table of contents ............................................................................................................. 2
Acknowledgment ............................................................................................................ 3
Research Methodology.................................................................................................... 4
Acknowledgements ......................................................................................................... 7
Executive Summary ........................................................................................................ 8
Relationship between environment and human right...................................................... 9
Evolution of Environmental rights in International law ............................................... 11
Measures taken in past to secure environmental rights ............................................ 11
Current scenario and recent steps taken to mitigate the problem ............................. 16
Validation of environmental laws in Indian Constitution ............................................. 18
Environmental concerns as Fundamental Right ...................................................... 19
Other Constitutional mandates on Right to Environment in India ........................... 20
Development of environmental jurisprudence in India ................................................ 23
Few legislations passed to conserve environment .................................................... 23
Wild Life (Protection Act), 1972 .......................................................................... 23
The Indian Forest Act, 1927 ................................................................................. 23
Air (Prevention and Control of Pollution) Act, 1981 ........................................... 24
Environment (Protection) Act, 1986 ..................................................................... 24
NGT (National Green Tribunal) Act, 2010 ........................................................... 24
The role of Public Interest Litigation (PIL) in ensuring environmental rights ......... 25
Important cases related to environmental rights ....................................................... 26
MC Mehta v. Kamal Nath ..................................................................................... 26
Indian Council for Enviro Legal Action v. UOI ................................................... 27
MC Mehta v. Union of India ................................................................................. 27
Page | 2
Acknowledgment
I would like to thank Shri Pankaj Kaein , SRO (Training) for his guidance and
cooperation without which the I would have been unable to bring this project to
successful conclusion .
I would also like to thank Shri Dilip Kumar, IAS Joint Secretary Training Division
and all other people at NHRC for providing me the honoured opportunity of internship
in this prestigious organization.
I would also like to thank all the staff members at National Human Rights Commission
and especially the staff of Law Divisions I,II,III,IV and V.
A special vote of thanks to the staff at the library for providing me with all required
resources for completion of the project.
Page | 3
Research Methodology
Page | 4
Page | 5
Page | 6
Acknowledgements
Page | 7
Executive Summary
Page | 8
Relationship between environment and human right
Human Rights are commonly understood as inalienable, fundamental rights "to which
a person is inherently entitled simply because she or he is a human being" and which
are "inherent in all human beings", regardless of their nation, location, language,
religion, ethnic origin or any other status. They are applicable everywhere and at every
time in the sense of being universal, and they are egalitarian in the sense of being the
same for everyone. One of the most authoritative documents dealing with human rights
is the Universal Declaration of Human Rights.
The Universal Declaration of Human Rights (Universal Declaration) is an international
document that states basic rights and fundamental freedoms to which all human beings
are entitled. It was adopted by the General Assembly of the United Nations on 10
December 1948. Motivated by the experiences of the preceding world wars, the
Universal Declaration was the first time that countries agreed on a comprehensive
statement of inalienable human rights. The UDHR is not a treaty, so it does not directly
create legal obligations for States. The Declaration has however, had a profound
influence on the development of international human rights law. It is argued that because
States have constantly invoked the Declaration over more than 50 years, it has become
binding as a part of customary international law.
The Declaration consists of 30 articles affirming an individual's rights which provide
the Economic, Social and Cultural Rights which include the Right to Health, including
healthy living conditions and available, accessible and acceptable quality health
services. Similarly the protection of the Environment has been integral to the cultural
Page | 9
and religious ethos of most of the human communities.1 Human rights and environment
are inter-related, inter-connected, mutually responsive and crucial issues. Both are
concerned with development and promotion of human welfare. While human rights are
necessary to promote the personality development of human beings, material comfort
and healthy environment are necessary to safeguard conditions conducive to such a
personality development. Without hygienic good nobody can strive towards his goal.
That is why there is a natural link between Environment, Development and Human
Rights.
The link between the two emphasises that a decent physical environment is a
precondition for living a life of dignity and worth. More concretely, a decent physical
environment has to do with protection against, for instance, noise nuisance, air pollution,
pollution of surface waters and the dumping of toxic substances. Environmental
degradation and human rights was first placed on the international agenda in 1972, at
the UN Conference on the Human Environment. Principles of the ‘Stockholm
Declaration on the Human Environment’ establishes a foundation for linking human
rights and environmental protection by proclaiming that
“ Man is both creature and moulder of his environment, which gives him physical
sustenance and affords him the opportunity for intellectual, moral, social and spiritual
growth. In the long and tortuous evolution of the human race on this planet a stage has
been reached when, through the rapid acceleration of science and technology, man has
acquired the power to transform his environment in countless ways and on an
unprecedented scale. Both aspects of man's environment, the natural and the man-made,
1
Evolution of Human Rights, 2012 Edition 1st
Page | 10
are essential to his well-being and to the enjoyment of basic human rights the right to
life itself. 2
Evolution of Environmental rights in International law
Measures taken in past to secure environmental rights
The Declaration of the United Nations Conference on the Human Environment, or
Stockholm Declaration, was adopted June 16, 1972 by the United Nations Conference
on the Human Environment at the 21st plenary meeting as the first document in
international environmental law to recognize the right to a healthy environment. In the
declaration, the nations agreed to accept responsibility for any environmental effects
caused by their actions.
The 1972 United Nations Conference on the Human Environment focused on the
'human' environment. The conference issued the Declaration on the Human
Environment, a statement containing 26 principles and 109 recommendations (now
referred to as the Stockholm Declaration) from which a body of international
environmental law has now developed. The creation of an environmental agency was
also approved, now known as UNEP. In addition, there was the adoption of a Stockholm
Action Program.. The roots of the Stockholm Conference lie in a 1968 proposal from
Sweden that the UN hold an international conference to examine environmental
2
Article 1, Stockholm Declaration, 1972
Page | 11
problems and identify those that required international cooperation to solve. The 1972
conference was attended by delegations from 114 governments.
This declaration is often rightly dubbed as the “ magna carta” of the international
environmental jurisprudence, thus most of the principles which are applied in the most
of the countries regarding environmental disputes traces back its roots from this
declaration. Thus it will not be overstatement to say that Stockholm declaration was one
of the most important step in environmental jurisprudence.
It placed immense importance on the principles of sustainable development which is
widely used as one of the most crucial principles of environmental jurisprudence in the
principle 2 of the declaration by stating that
“The natural resources of the earth, including the air, water, land, flora and fauna and
especially representative samples of natural ecosystems, must be safeguarded for the
benefit of present and future generations through careful planning or management, as
appropriate ”3
It also placed importance on the ill effects of pollution and identified that in the
prevailing conditions it is extremely important for the countries around the world to
mitigate the climate change and tackle pollution by taking every possible step
3
Article 2 ,Stockholm Declaration, 1972
Page | 12
“The discharge of toxic substances or of other substances and the release of heat, in
such quantities or concentrations as to exceed the capacity of the environment to render
them harmless, must be halted in order to ensure that serious or irreversible damage is
not inflicted upon ecosystems. The just struggle of the peoples of ill countries against
pollution should be supported.”4
Thus the Stockholm declaration laid down the founding principles for the development
of environmental law.
In 1992, twenty years after the first global environment conference, the United Nations
Conference on Environment and Development (UNCED), also known as the Earth
Summit, took place from 3-14 June in Rio de Janeiro. The Conference aimed to help
governments ‘rethink economic development and find ways to halt the destruction of
irreplaceable natural resources and pollution of the planet’ as, despite international
efforts, environmental degradation had accelerated at an alarming rate. Delegations
from 178 countries, heads of state of 108 countries and representatives of more than
1,000 NGOs attended the meetings. In Rio, three major agreements were concluded of
which the Rio Declaration on Environment and Development is the most pertinent in
the context of human rights and the environment.
It laid emphasis on the irreplaceable importance of environmental rights in its first
principle which stated that
4
Article 2 , Stockholm Declaration, 1972
Page | 13
“Human beings are at the centre of concerns for sustainable development. They are
entitled to a healthy and productive life in harmony with nature”5
Rio declaration led to the constitution of United Nations Framework Convention on
Climate Change (UNFCCC) which aims to stabilize greenhouse gas concentrations in
the atmosphere at a level that would prevent dangerous anthropogenic interference with
the climate system. It also advanced several important principles which are
indispensable to environmental law such as the polluter pay principle in principle 16
which states that
“ Authorities should endeavour to promote the internalisation of environmental costs
and the use of economic instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution.”6
The nations, who’ve signed UNFCCC convention, meet every year to discuss climate
change strategy. These meetings are called Conference of the Parties (COP). The first
COP (COP 1) was held in Berlin and the third COP (COP 3) held in Kyoto, Japan. It
was here the famous Kyoto Protocol came in to existence.
The Kyoto Protocol is an international treaty which extends the 1992 United Nations
Framework Convention on Climate Change (UNFCCC) that commits state parties to
reduce greenhouse gas emissions, based on the scientific consensus that global warming
5
6
Page | 14
is occurring. The Kyoto Protocol was adopted in Kyoto, Japan on 11 December 1997
and entered into force on 16 February 2005. There are currently 192 parties to the
Protocol.
The targets for the first commitment period of the Kyoto Protocol cover emissions of
the six main greenhouse gases, namely: Carbon dioxide (CO2), Methane (CH4),
Nitrous oxide (N2O), Hydrofluorocarbons (HFCs) ,Perfluorocarbons (PFCs) and
Sulphur hexafluoride (SF6)7 which are mentioned in the annexure A of the protocol.
Under kyoto protocols the developed countries are expected to carry a heavier burden
as compared to developing countries on identifying the greater needs of developing
countries for progress. This practice is based on the principle of common but
differentiated
responsibility. The developed countries such as US,UK have already
polluted the atmosphere with greenhouse gases (GHGs) through industrialization.
While Developing countries (India and Brazil) have started polluting the world only
recently. Therefore, the developing countries such as India, Brazil should share less of
the burden of lowering overall emissions and Developed countries should bear more
responsibility in fixing this global warming because they’re the one more responsible
for it. Thus, while it is the “Common” responsibility of every nation of this world, to
reduce Greenhouse gas emission, but there should be some difference between the
responsibility given to developed countries and developing countries. Kyoto Protocol
follows that principle and assigns separate responsibilities to the countries.
7
Page | 15
The first commitment period of Kyoto protocols started in 2008 and ended in 2012. The
Kyoto Protocol is seen as an important first step towards a truly global emission
reduction regime that will stabilize GHG emissions, and can provide the architecture for
the future international agreement on climate change.
But one of the main obstacle faced by the Kyoto protocols is that there is no binding
emission limits on top three polluters of the world namely US, China and India because
US is not a signatory to the Kyoto protocol while the remaining two countries that are
India and China are not featured in Annexure I of the protocols. Thus it is imperative
for the Kyoto protocols to bring about a change in the prevailing conditions, it should
impose binding emission limits on countries like China and India which are responsible
for
more
than
50
percent
of
the
total
greenhouse
emission.
Thus it can be ascertained that international community is laying the much needed
emphasis on the environmental problems like greenhouse emissions and climate change
and is taking requisite steps by developing the environmental law since the Stockholm
declaration. It is paying such an important attention to this issue since, environmental
wellbeing of the earth is indispensable to enjoyment of human rights.
Current scenario and recent steps taken to mitigate the problem
Rio Declaration mandates the signatory parties to meet yearly in what is known as
conference of parties (COP), recently in 2015 when COP 21 was held in Paris the state
parties framed an agreement which came to be known as (Paris Agreement). It deals
with greenhouse-gas-emissions mitigation, adaptation, and finance, starting in the year
2020. Its long-term goal is to keep the increase in global average temperature to well
Page | 16
below 2°C above pre-industrial levels; and to limit the increase to 1.5°C, thus
substantially reducing the risks and effects of climate change.
Paris agreement attempts to weed out most of the problems in Kyoto agreement because
unlike the Kyoto protocol it is mandated not only for industrial countries but also for
developing countries and it is also legally binding for all its parties. But in order to
increase its compliance the targets which are sought to be achieved are to be fixed by
the countries themselves. These targets are called NDC’s (nationally determined
conditions) these NDC are also required to be periodically revised. Apart from reducing
carbon emissions by setting of regular targets ratified states are also required to take
appropriate steps to develop alternate and renewable sources of energy by developing
required infrastructure for the same.
The Paris agreement also require the countries to increase the forest cover also called
the carbon sinks. Apart from all these measures it also aims to make earth carbon neutral
by second half of the 21st century say 2050.It mandates all the rich countries for raising
a fund of $100 billion for developing countries for implementation of the steps and
making infrastructural headways towards fulfilment of the aims
Being a signatory to the Paris agreement even India has made nationally determined
conditions which include
1. India aims to reduce its emission intensity of its GDP by 35% arriving at the level
of 35%
2. It aims to achieve about 40 per cent cumulative electric power installed capacity
from non-conventional sources of energy by 2030, it will take required help from
green climate fund for the same.
Page | 17
3. It aims to create an additional carbon sink of 2.5 to 3 billion tonnes of CO2 by
process of afforestation.
4. It aims to better adapt to climate change by enhancing investments in
development programmes in sectors vulnerable to climate change, particularly
agriculture, water resources, Himalayan region, coastal regions, health and
disaster management.
Thus it will not be wrong to exclaim that Paris Agreement is the most ambitious climate
agreement till the date.
Validation of environmental laws in Indian Constitution
Over the course of many years India’s Constitutional law has went through immense
amount of transformation and indian courts have very carefully incorporated several
rights which are guaranteed by it. Environmental rights are one such right which has
transformed immensely in the over such course. So it is imperative for us to discuss the
instances where environmental rights are secured by the Constitution identifying its
crucial nature in enjoyment of human rights.
Page | 18
Environmental concerns as Fundamental Right
The right to live in a clean and healthy environment is not a recent revelation in Indian
law, time again Indian judiciary has emphasized on the fact that right to clean and
healthy environment is a fundamental right. Even though the constitution makers did
not make any specialized binding provision in the constitution to safeguard
environmental rights of all but still as per the SC’s interpretation over the years over
innumerable cases it is a settled notion that the right to clean and healthy environment
is a fundamental right implied in the Art. 21 of Indian Constitution which per se
safeguards the right to life. Article 21 of Indian Constitution states that –
“No person shall be deprived of his life or personal liberty except according to
procedure established by law.”8
As held in the matters of Maneka Gandhi v. UOI9 the Supreme Court is of the view
that the Right to life guaranteed under Art. 21 is a culmination of all such rights which
cannot be isolated from a human being. This judgement favoured the view of broadly
construing the “Right to Life” as opposed to narrow construction prescribed in the
matters of AK Gopalan v. State of Madras10. Thus as per the current position of law
it is settled that Art. 21 is a culmination of all such rights which are essential for a human
being.
8
9
10
Page | 19
Once this broad interpretation of the law was settled the supreme court in the matters of
Subhash Kumar v. State of Bihar11 observed that ‘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 recognised the right to a wholesome environment as
part of the fundamental right to life. This case identified the immense importance of
environment for enjoyment of all the human rights of the person which are inalienable
and inherent to existence of every human being. After this case the courts have time
again secured the environmental rights of the masses in many cases such as Rural
Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh12, where
the court took serious actions against the illegal limestone mining in MussorieDehradun region thus endangering the fragile ecosystem present there.
Thus, over the years not only the importance of environmental rights have been
identified by courts but several doctrines and principles have been enunciated and
applied alike to safeguard the right of clean and healthy environment which will be
discussed later in the project.
Other Constitutional mandates on Right to Environment in India
Apart from Art. 21 which impliedly guarantees right to clean and green environment
there are several other articles in the directive principle policies which briefly talk about
the responsibility and legal obligation on the state to take steps to conserve environment
11
12
Page | 20
Article 39(b) of Indian constitution lays the obligation on the govt. to focus and take
requisite steps to follow sustainable development and public trust policy. Art. 39(b) of
Indian Constitution states -
“ that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good; ”
Art. 47 of Indian Constitution puts the imposition on the state to safeguard the health
of all the people, which cannot be achieved without taking requisite measure towards
conservation of environment since there is an intricate relation between health and
environment. It is interesting to note that this article talks about increasing the standard
of living of people and it takes no rocket science to figure out that standard of living
cannot be increased without conservation of environment
“ Duty of the State to raise the level of nutrition and the standard of living and to
improve public health The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its
primary duties and, in particular, the State shall endeavour to bring about prohibition
of the consumption except for medicinal purposes of intoxicating drinks and of drugs
which are injurious to health”
With the course of time the general consensus became aware of the huge impending
problem by degradation of environment thus even India legislators took cognizance and
Page | 21
brought 42nd Amendment Act, 1972 in which art. 48-A was added in the constitution
which clearly states that
“ Protection and improvement of environment and safeguarding of forests and wild life
The State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life of the country”
Not only is it the duty of the govt. to mitigate the environmental change but constitution
also lays obligation on the citizens to take steps for the same as seen in the Article 51A
which mandates the citizens to-
“to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures”
Thus, it can be ascertained that constitution provides a great deal of importance to the
environment and prescribes duty not only on the state but also the citizens to conserve
it and mitigate the approaching problems.
Page | 22
Development of environmental jurisprudence in India
Few legislations passed to conserve environment
For any country the effective way of control pollution and degradation of resources is
to combine traditional laws, with modern legislation. In India is concerned, the Ministry
of Environment and Forests is the nodal agency at the Central level for planning,
promoting and coordinating the environmental programmes, apart from policy
formulation.
Wild Life (Protection Act), 1972
This act has been provided so that the wildlife which is an integral part of the ecosystem
can be protected and guarded against extinction. Under this Act every State has to
constitute a Wild Life Advisory Board. Certain areas are to be declared as sanctuaries
and National Parks
The Indian Forest Act, 1927
Largely borrowed from the British version this act defines the procedure to be followed
for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest. It
defines what is a forest offence, what are the acts prohibited inside a Reserved Forest,
and penalties leviable on violation of the provisions of the Act.
Page | 23
Air (Prevention and Control of Pollution) Act, 1981
The Air (Prevention and Control of Pollution) Act, 1981 an Act of the Parliament of
India to control and prevent air pollution in India It is also a comprehensive legislation
with more than fifty sections. It makes provisions, inter alia, for Central and State
Boards, power to declare pollution control areas, restrictions on certain industrial units,
authority of the Boards to limit emission of air pollutants, power of entry, inspection,
taking samples and analysis, penalties, offences by companies and Government and
cognizance of offences etc. This Act is created to take appropriate steps for the
preservation of the natural resources of the Earth which among other things includes the
preservation of high quality air and ensures controlling the level of air pollution.
Environment (Protection) Act, 1986
The purpose of the Act is to implement the decisions of the United Nations Conference
on the Human Environments. They relate to the protection and improvement of the
human environment and the prevention of hazards to human beings, other living
creatures, plants and property. The Act is an “umbrella” legislation designed to provide
a framework for central government coordination of the activities of various central and
state authorities established under previous laws, such as the Water Act and the Air Act
NGT (National Green Tribunal) Act, 2010
It is an Act of the Parliament of India which enables creation of a special tribunal to
handle the expeditious disposal of the cases pertaining to environmental issues.
Drawing inspiration from the India's constitutional provision of Article 21, which inter
Page | 24
alia assures the citizens of India the right to a healthy environment. This was enacted by
the indian parliament in 2010 to meet its vows to provide judicial remedy in cases
relating to pollution.
The role of Public Interest Litigation (PIL) in ensuring
environmental rights
In early 1980s , the judicial system witnessed important transformation. There was
emergence of a new jurisprudence “Jurisprudence of masses” which metamorphosed
the litigation landscape of indian judiciary, it was realised over time that there exists a
close inter link between citizen’s rights and social justice and none of it could be
achieved without actualization of another. Thus a need was greatly felt to shed light on
the issues of the common masses and enable to provide them judicial redressal. Thus
anew phenomenon called “Public Interest Litigation” was introduced.
This
phenomenon outlawed the old procedural technicalities and barriers to ensure justice to
even the most downtrodden section of the society. This revolutionized process of
seeking justice provided the basic groundwork for environmental jurisprudence in India.
As most of the cases which formed environmental jurisprudence fell within this class
The most characteristic feature of the Indian environmental law is the important role
played by the public interest litigation .The majority of the environment cases in India
since 1985 have been brought before the court as writ petitions, normally by individuals
acting on pro bono basis. USA, in mid 1960s initiated PIL system, In UK it was Lord
Denning, and in India it was J PN Bhagwati and J Iyer through their landmark
Page | 25
judgements made a clear path to proceed on the road of PIL and paved a way for
development of environmental jurisprudence.
Important cases related to environmental rights
Apart from the above mentioned acts , environmental litigation has immensely advanced
from the subsequent cases decided by the honourable supreme court. Some of the
important cases regarding the same are –
MC Mehta v. Kamal Nath
Facts of the case
In this case when Kamal Nath was the minister of environment , a chain of hotels named
(Span Hotel) owned by him encroached the designated forest area . Consequently the
river swelled and washed away the premises of span hotel thus the hotel management
attempted to change the course of the river as a preventive measure. Due to this a flood
was caused and it led to massive destruction amounting to Rs 105 crores.
Decision of the Court
The SC observed in this case that some resources like Air, Water and Forest cannot not
be owned by a single entity (res nullious) owned by common people (res communius)
thus founding it’s decision on the idea of the Roman Law Doctrine of Public Trust
according to which certain common properties such as rivers, sea-shore, forests and the
air were held by government in trusteeship for the free and unimpeded use of the general
public. In observance of the above given rule it cancelled the lease given span hotels.
Page | 26
Indian Council for Enviro Legal Action v. UOI
Facts of the case
The petitioner, the Indian Council for Enviro-Legal Action brought this action to
prohibit and remedy the pollution caused by several chemical industrial plants in Bichhri
village, Udaipur District, Rajasthan. The Respondents operated heavy industry plants
there, producing chemicals such as oleum (a concentrate form of sulphuric acid), single
super phosphate and the highly toxic “H” acid.
Decision of the case
It imposed a fine of Rs 38.385 crores on Hindustan Agro Chemicals Ltd (HACL) with
compound interest since 1997 for the remediation of over 350 hectares of land in
Bichhri. The Court also slapped a fine of Rs 10 Lakh on HACL for keeping the litigation
alive for almost 15 years even though the court had disposed the petition in 1997,
imposing Polluter Pays Principle according to which polluter must pay for the damage
done to the human beings and environment. Polluter pay principle was also discussed
in Rio declaration and Stockholm declaration .
MC Mehta v. Union of India
Facts of the case
A writ petition was filed by M.C Mehta, a social activist lawyer, he sought closure for
Shriram Industries as it was engaged in manufacturing of hazardous substances and
located in a densely populated area of Kirti Nagar. While the petition was pending, on
4 and 6 December 1985, there was leakage of oleum gas from one of its units which
caused huge damage to lives and property. M.C Mehta filed a PIL under Articles 21 and
Page | 27
32 of the Constitution and sought closure and relocation of the Shriram Caustic Chlorine
and Sulphuric Acid Plant which was located in a thickly populated area of Kirti Nagar
Decision of the court
The court in this case enunciated the principle of Absolute liability which applies in
the case when any inherently dangerous substances are dealt with. In cases of absolute
liability the exceptions marked by Rylands v Fletcher are not considered. Further in
this principle it is stated that in cases of absolute liability the enterprise is absolutely
liable such that they cannot take the defence that damage was caused without any
negligence on their part. Thus it can be concluded that in cases of absolute liability
enterprise cannot take any defence whatsoever and remains absolutely liable for damage
caused by the inherently dangerous substance possessed by it.
Page | 28