The Right To Environment

Jivesh Jha

 

Environment is everything that isn’t me.” So, observed Einstein in an endeavour to explain the horizon of environment. Although much of the world’s constitutions have come around a similar view—that the protection of environment is a global issue and it is not an isolated problem of any area or nation—most of the South Asian nations are yet to expressly endorse environment-related fundamental rights, with Nepal and the Maldives being exception.
The Constitution of Nepal explicitly and authoritatively provisions that the right to clean environment shall be fundamental right. Article 30 envisages that every citizen would have an inherent right to live in a healthy and clean environment.
In a major breakthrough, the Nepal’s charter ensures that the victim of environment pollution ‘shall have right to’ seek compensation from polluters [Article 30(3)]. In this way, the constitution succeeds to acknowledge the celebrated concept of “polluter pays principle.” Article 35 casts a duty on the state to provide clean water and hygiene to its subjects.

Necessary measures
Apart from fundamental rights, the Directive Principles also offer a long list of environmental schemes that enable the state to adopt and enact necessary measures for conservation and protection of environment. The provisions encompassed under Article 51 are of natural significance as they command the state to adopt all possible measures for ensuring the growth of forests, flora and fauna, Ayurveda and pollution free river systems.
However, the constitution of Pakistan is yet to float any provision relating to environment. The critics argue that the Pakistani parliament failed to take cognizance of environmental rights as constitution of Pakistan, 1973 was drafted too soon after the 1972 Stockholm declaration. Surprisingly, the statute has witnessed scores of constitutional amendments after its enactment and not even a single provision has been brought through amendment. The Republics of Pakistan, Bangladesh and Sri Lanka have arrived at international stages on number of occasions to influence the global policies. Yet, the parliaments (of these states) have not incorporated the messages of conventions within their constitutional frameworks and the task of planting any fair corpus of constitutional provisions relating to environment remains incomplete.
Still, the Sri Lankan charter in its Directive Principles of State Policy envisages that the state is obliged to protect, preserve and improve the environment for the benefit of the community [Article 27(14)]-- the same is not justifiable in any law court [Article 29]. In contrast, the constitution of Afghanistan in its Article 15 imposes an obligation on state to adopt necessary measures to protect and improve forests as well as the living environment. Nevertheless, the highest law of the Islamic republic does not incorporate fundamental rights provisions on environment.
While talking about Constitutional arrangements in India, three Articles - Article 48A, 51A (g) and Article 21 - are of intrinsic value as they show deep commitment of state towards ecological values and environmentalism. The constitution of India under Article 48 A directs the State “to endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”. Article 51A (g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment, including forests, lakes, rivers, wildlife and to have a compassion for living creatures.
Moreover, Article 21 declares that every right to live a dignified life would be fundamental rights. By invoking this Article, the Supreme Court has made dynamic interpretations to accelerate the cause of environmentalism and made it clear that right to clean environment is a sacrosanct fundamental right within the ambit of Article 21. Yet, the constitution of India does not incorporate any express fundamental rights provision for environment.
In a welcome move, the constitution of Bhutan provides a separate chapter (i.e. Article 5) for environment which contains a long list of environmental schemes. “Every Bhutanese is a trustee of the Kingdom’s natural resources and environment for the benefit of the present and future generations and it is the fundamental duty of every citizen to contribute to the protection of the natural environment, conservation of the rich biodiversity of Bhutan and prevention of all forms of ecological degradation including noise, visual and physical pollution through the adoption and support of environment friendly practices and policies,” reads Article 5(1).
The charter commands that a minimum of 60 per cent of Bhutan’s total land should be maintained under forest cover for all time [Article 5(3)]. The statute also empowers the parliament to enact as much number of environmental legislations.

State’s duty
Yet, the Bhutanese constitution lacks environmental rights provisions in its fundamental rights chapter. In contrast, the Maldivian constitution envisages that the state has a duty to protect and preserve natural environment, biodiversity and beauty of the country. The cornerstone has been set by Article 22 which provides that the state has a fundamental duty to foster sustainable development and ecological balance. Further, the succeeding provision - Article 23 - advocates for healthy environment. Its high time the South Asian nations, save for the Maldives and Nepal, enacted express fundamental rights provisions on environment. The lack of fundamental rights often leads to non-implementation of major rights that are sacrosanct part of a healthy democracy.
(Former lecturer at Kathmandu University School of Law, Jha is a Judicial Officer Cadet with the Government of Nepal). 

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