ENVIRONMENTAL LAWS AND GOVERNANCE: ISSUES & CHALLENGES
Author: Ashmeet Kaur, Advocates at Punjab and Haryana High Court, Chandigarh
Co-author: Panreet Singh, Advocates at Punjab and Haryana High Court, Chandigarh.
The humanitarian rights as concerned with the alarming need for a reform in the society so that this increasing degradation of the environment to a single digit can possibly be achieved. The various countries of the world from the times of the first Stockholm declaration and ever since are trying hard to achieve the goal of a clean & safe environment and making it as a part of the right to life whereas, in some countries it is rigidly followed as a part of the fundamental right of every citizen. The various declaration and the conferences are the evidence of the concern of the global leaders about the polluted environment, which the future generation are going to bear as a by-product of our deeds today. The coming together is the stepping stone towards the day when possibly the environment would be just like the way it was before the large-scale industrialisation and the never stopping littering of the human being everywhere. The Indian aspect on the human rights leading to the protection of the environment, explained very well with the help of the various fundamental duties and the directive principles of the state policy for the society. The state should enforce such duties for its citizens as the sole enjoyment of the environment is by them so, it becomes their respective job to protect and preserve the same. Few well established civil bodies in the purview of the human rights take the protection of the environment to the edge of the unmatched debates that are required in this heat of the moment when the world is falling apart. Moreover, together achieve the goal of a carbon-free world where there would be a surplus supply of fresh air for the future generation as well as present world.
Human rights vis-à-vis environment
At the time of the humble beginning of our very own planet earth, the scenario was completely different from what we see around in today’s world. When there was no human intervention nor even the existence of the human race, the planet held its real definition and it served its purpose with ease. While some creatures were still there but we have not found a single piece of evidence that they ever contributed to the degradation of the environment or the planet earth that we as the human beings are doing right now. Moreover, during this time the purity of the oxygen released by the plants was more clean & pure than it can ever be on the planet. Then the human race stepped down on the planet earth making it a bizarre place to live for any species and what torture the planet has gone through after that till now is a no secret. In addition, it is well known and said by many thinkers’ years ago that planet will have to suffer some serious consequences if the degradation kept on and not controlled within the safer time period. Moreover, who can overlook the worldwide devastation of the environment & surroundings of the planet in the name of progress by widely implementing industrialization, urbanization and the never-ending race for the weapons of mass destructions. The 21st century provides every single type of latest gadget to make you lethargic by saving your time in every aspect of the life but what it does not provide is the elementary requirements, which arerequired for the existence of human race that is clean air, clean water and clean soil.
Meaning & Definition of Environment
For the very first time, the term environment has been coined by Thomas Carlyle in the Lowlands of Scotland in 1828. It has been derived from a Latin word “environer” meaning surroundings.
In simple words environment refers to that surroundings that surround living beings from all sides and have affect upon their lives. Environment comprises of atmosphere, hydrosphere, lithosphere and biosphere. The components of environment include soil, water, air, organisms and sunlight. In order to lead a comfortable lifespan, resources have been provided by the environment.
In the words of P Gisbert“Environment is anything immediately surrounding an object and exerting a direct influence on it.’’
In the words ofE. J. Ross “Environment is an external force which influences us.
Further, environment consists of both biotic as well as non-biotic surroundings of all creatures. It includes all the factors that have an impact on the existence, enlargement and advancement of the living beings. Environment includes human beings, land, water, air and all such other things that impact our living.
For the survival of each one of us clean environment is very much essential. The environment is the creator of the life form it is because of the environment sun, moon, sea, earth, forests, deserts, etc., make together environment that is fit for our survival. It is our highest duty to protect the environment if we desire to live a life that is completely free from any kind of external harmful agents. For the better environment, all its components should be protected and the surrounding should be cleaned and be kept in a proper manner. We need to take good care of our land, water sources, forests and atmosphere, it is also necessary to ensure that the water bodies as well as the soil be kept out of the harmful chemical abuse such as high amount of nitrogen and sulphur. If living creature went on to understand that what it means to be in environment so that the required amount of care be taken in a prescribed manner.
Meaning & Definition of Human Rights
Human rights refer to the basic rights guaranteed to all human beings irrespective of their race, sex, nationality, language, religion, ethnicity or any other status. Right to life and liberty is also covered under Human Rights. It also includes freedom from torture and slavery. These rights are available to all the individuals without any discrimination.
It was in the year 1831, when William Lloyd Garrison stated in the newspaper named ‘The Liberator’ that he was testing to enlist his readers in the great cause of human rights. Hence, the term human rights most probably came into practice between Paine’s The Rights of Man and Garrison’s publication.
As per Section 2 (1)(d) of the Protection of Human Rights Act, 1993
‘Human Rights are the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India’.
The Protection of the environment
From the very beginning of the 19th century the planet has suffered a large amount of toxic abuse though the so-called agenda of developing countries under the shed of development and industrialization. Whereas coming towards the middle of the 20th century the planet has witnessed two devastating world war which has taken this race of degrading the environment to whole new level which includes degradation of the air, water and soil. Even before the world wars, the countries as a part of the weapons race participated in the development of the weapons of mass destruction, which includes both chemical and non-chemical weapons. Moreover,who can forget the falling of atomic bombs at Hiroshima and Nagasaki, which consumed millions of lives as well as the degradation of the environment to another level of toxicity.
However, it was the first conference regarding the protection of the environment held at Stockholm in the year of 1972 and it was the first stepping-stone towards the protection of the environment among the masses and global leaders. Two approaches that are being followed, the first one is voluntary environment agreement and the second is international environmental agreement. In industrial countries voluntary environment agreement often provide a platform for the companies to be recognized asto move beyond the minimum regulatory standard, the support and the development for the best environmental options.
The unfortunate fate of the human race is that with the increasing number of the population with time there is a subsequent increase in the problems related to the environment, which is degrading every minute and every second. The concern soon would be raised by the environment itself as most of the humanity is busy buying stuff for making their houses better while forgetting that the real ecosystem is outside these four walls.
The protection of the environment is as necessary as the making of world forums for making policies, which are said to be responsible for the protection while it does not at all. The plastic producedin the beginning is still present on the planet earth as they take around 500 years to decompose, the consequences whereas are very severe the plastic thrown by us somehow comes back to us. The plastic has almost polluted every single resource from which we get our daily needs, for example, the plastic in the sea somehow goes into the stomach of the fishes, which are later on consumed by the human beings. Moreover, the soil in which the food is being sown and made to final harvesting have the effect of this plastic which will further lead to the diseases such as cancer which has nothing to take but our life completely.
The carbon planet needs some serious steps in order to covert it from the carbon-induced planet to the usual blue planet of life. The plantation is the very first habit every individual needs to learn the more the number of trees will be there the more will be the level of oxygen on the planet earth for the human beings. The planet does not need protection from the outer world bodies or the aliens; rather it needs protection from its own habitants, as they are responsible for its degrading condition until today. In addition, the control over electricity, carbon emission, garbage management, saving water, saving soil and the quality of air, needs to be taken seriously if we are considering them as a right under the constitution.
Human rights as a part of protection of environment
“Let’sbreak down the non-natural barriers that have so long separated the human rights. Environmental and development communities. We face common threats, but there are common solutions.”
The above is the statement given by Kumi Naidoo who is the executive director, Greenpeace International an environment organization who elevated the fact of human rights to the clean environment at different times along with the other environment group. The human rights at first were not included in the list of a right under constitution but major nations have adopted the right to clean environment as a fundamental right. Human rights after the Stockholm and the Rio declaration as a necessity to be adopted as fundamental right in every country as it is the sole necessities of life of every individual were highlighted.
The Stockholm declaration’s first principle states, “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”
Another Rio declaration states, “Human beings are at the centre of concerns for sustainable development. They are entitled to healthy and productive life in harmony with nature.”
Both the declaration lacks the establishing of a clear connection between the human rights and the environment protection. But then again it is the result of these declarations that the most of countries have recognized the right to a clean environment as a fundamental right alike to the right to life and some other rights. In addition, the united nation has appointed a number of officers to regulate and promote the protection of environment with regard to the human rights. So that it can be made clear as to what the circumstances are at the ground level, regarding the policies concerned with the protection of the environment around the world based on deep research.
The notion of the protection of the environment can be achieved if every individual adopts the right to a clean environment as a duty and not as an obligation. The three R’s needs to be taken into consideration by every individual of the world such as Reduce, Reuse and Recycle. The first one is Reduce, which advocates that reduction of the plastic waste, amount of paper, amount of electricity, the water and the petrol consumption in order to aid the carbon planet achieve its onetime state. The reduction solely depends upon the question that do we really need the thing in that much amount, or we are just worsening it for no necessary reason second in this world. The second R that is Reuse which talks about the things that can be used over & over than just once. The structure of reuse covers all the minor things that are everywhere around us in the day-to-day life for the betterment of the planet, which will sooner or later lead to the reduction in the degradation of environment by us. The third R that is Recycle outlines itself as the most valuable tool for the protection of the environment, it has never been this much easy than ever. The process of recycle is truly devoted to the recycling of the things that we do not need any more around us and can be used to make any other useful article. Every product is nowadays made with the purpose of recycling and making the use of its every part. So, that nothing should be left behind that would eventually lead to the degradation of the environment and making it place of complete waste.
Role of Non-governmentsOrganization in Protecting Human Environment
Eachand every single individual is allowed to enjoy certain fundamental rights which are available to them without bias and that sort of human rights is sheltered by the United Nations and its focused organizations. To defend human rights NGOs and human rights activists from harassment and litigation by the government and others, the UN espoused in 1998 a Declaration on Human Rights Defenders. The instrument includes importance of strategies,even though it is not lawfully,obligatory yet will assist to increase the possibility of activities and aid to develop the defense of human rights activists. Thus, the governments in accordance with Article 8 of the Declaration have to safeguardrights to have effective access, on a non-discriminatory basis, to participate in the government and in the conduct of public affairs and the right to submit criticism and suggestions for improving their functioning. Article 9 stated that everyone has the right to benefit from an effective remedy and to beprotected in the event of violation of those human rights, to this end everyone whose rights is supposedlydishonored has the right to complain before an independent, impartial and competent judicial authority established by law (including the right to a public hearing, due redress and recompence and enforcement). Likewise, the regime will carry out a speedy and independent review whenever there is lucid ground to judge that a transgression of human rights has occurred. Therefore, the future of human rights safeguard would depend upon on how the United Nations and its members making facilitating provisions for NGOs to formulate global human rights in realism.
In the Judgment of the Supreme Court of India in A.P. Pollution Control Board vs. M.V. Nayudu, the Court of law referred to the requirement for establishing Environmental Courts, which would have the advantage of expert advice from environmental scientists/technically competent persons, as part of the judicial process, after an elaborate discussion of the views of jurists in various countries. In the subsequent follow-up ruling in A.P. Pollution Control Board vs. M.V. Nayudu, the Supreme Court, stated to the serious differences in the constitution of appellate authorities under plenary as well as delegated legislation and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were operated only by bureaucrats. These appellate authorities were not having either judicial or environment back-up on the Bench. The want for Environmental Courts were advocated in two earlier judgments also. One was M.C. Mehta v. Union of India where the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication. There should be an appeal observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner. It is significant to note here is that the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It has to be noted that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be informed despite the expiry of eight years.
Tensions in the relationship between Human Rights and International Environment Laws
HARM - Do HRs capture the HARM done to humans when the environment is degraded?
LIABILITY – are the right parties held liable when we think of IEL in terms of HR interests? Are they held liable in the right ways?
NON-RIGHTS VIOLATIONS - Can we talk about human+environmental impacts beyond rights discourse?What are the risks and advantages of doing so?
HR\ENVIRONMENT CONFLICTS - What about circumstances in which rights interests and environmental interests clash? Can unsustainable environmental degradation be necessary for the securing of human rights?
Environmental Laws and Constitutional Provisions in India
It is interesting to note that natural possessions had been depositednearlyunharmed in the Earth for millions of years. But since the beginning of the industrial revolution massivevolumes of these resources had been subjugated within a period of just a couple of hundreds of years at unbelievable rates, with all the waste from this exploitation going straight in the environment (air, water, land) and utterly damaging its natural processes. Even though pollution had been known to exist for a very long time (at least since people started using fire thousands of years ago), it had seen the growth of truly global magnitudes only since the onset of the industrial revolution during the 19th century.
The importance of Judiciary
The importance of Judiciary in a democratic setup for protection of life and personal rights canhardly be overvalued. India has a highly developed judicial system with the Supreme Court having plenary powers to make any order for doing complete justice in any cause or matter and a mandate in the Constitution, to all authorities, Civil and Judicial, in the territory of India to act in aide of the Supreme Court. The scope of Writ Jurisdiction of the High Courts is wiser than traditionally understood and the judiciary is separate and independent of the executive to ensure impartiality in administration of justice.
In considering the role of the judiciary in environmental governance, two issues need to be considered. The first is the role the judiciary in the interpretation of environmental law and in law making and the second is the capability of jurists to effectively interpret the increasingly cross-linked issues brought to their attention.
Writs and PILs for Safeguarding the Environment
A writ petition can be filed to the Supreme Court under Article 32 and the High Court under Article 226, in the case of a violation of a fundamental right. Since the right to a wholesome environment has been recognizedas implied fundamental rights, the writ petitions are often resorted to in environment cases. Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental matters. For instance, a Mandamus (a writ to command action by a public authority when an authority id vested with power and wrongfully refuses to exercise it) would lie against a municipality that fails to construct sewers and drains, clean street and clear garbage (Rampal v State of Rajasthan) likewise, a state pollution control board may be compelled to take action against an industry discharging pollutants beyond the permissible level. The writs of certiorari and prohibition are issued when an authority acts in excess of jurisdiction, acts in violation of the rules of natural justice, acts under a law which is unconstitutional, commits an error apparent on the face of the record, etc. For instance, a writ of certiorari will lie against a municipal authority that consider a builder’s applications and permits construction contrary to development riles e.g. wrongfully sanctions an office building in an area reserve for a garden. Similarly, against water pollution control board that wrongly permits an industry to discharge effluents beyond prescribe levels.
When a fundamental right, which includes right to wholesome environment is violated Article 32 and 226 provide appropriate measures as in E.Sampath Kumar v. Government of Tamil Nadu, 1998, AIHC 449, the party an individual was troubled by the excessive noise pollution and vibrations caused by electrical motors, diesel engines, and generator used by a hotel. The high court held that an affected person could maintain a writ petition while rejecting the hotel owner’s plea that a civil suit would be proper remedy.
Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it.
In a public interest case, the subject matter of litigation is typically a grievances against the violation of basic human rights of the poor and helpless or about or about the content or conduct of government policy this litigation is not strictly adversarial (in a adversarial procedure, each party produces his own evidence tested by cross-examination by other side) and in it a judge play a large role in organising and shaping the litigation and in supervising the implementation of relief.
Since the 1980s public interest litigation (PIL) has altered both the litigation landscape and the role of the higher judiciary in India. Supreme Court and High Court judges were asked to deal with public grievances over flagrant human rights violations by the state or to vindicate the public policies embodied in statutes or constitutional provisions. This new type of judicial business is collectively called public interest litigation.
The carbon world or the carbon planet whatsoever we can refer it to, the notionoutlines that the world is moving towards a very shady direction, which holds nothings but some most harsh phases of this planet’s history. The planet once known as the blue planet of the Milky Way or the galaxy, but we have taken it so far that the colour is still blue from the outer space but now mixed with a high number of toxic chemicals and wastes. Furthermore, this toxic waste has spread all around the planet by the human beings and it will eventually lead to the extinction of the complete race one day for sure. The alarming rate at which the environmentalists are being killed has raised the concern that is it even so obsessing for some people to secure their personal gains while endangering the planet itself. Moreover, the recent year has witnessed the killings of reporters in various countries such as Malaysia, Nigeria, Russia and other parts of the world and authorities are taking no steps to stop all this mess. If it continues like this then there will be just silent protests against the raising of the awareness regarding the protection of the environment and nobody will ever try to raise voice for the protection of the degrading planet, which is unfortunately our home. And why we referred the planet as carbon planet is because the amount of carbon that is being released by the industries, vehicles, units, and other things will lead to a day when there will be nothing but smoke on the planet earth. In addition, that will witness the remains of the human race below the large structures and buildings around the world. The future of this carbon planet and the future generation is in our hand and it will exclusivelybe depending upon the approach, we will be following today. The generation would reap the fruit depending upon the kind of plant we are putting in today. To conclude, the question at that day would also remain the same as to if all this continued, what the future would look like dark or smoky?