LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

“Human Rights and Environment”

Introduction

Abstract: One of the biggest challenges the government is facing, as the new century unfolds is

how to balances environment protection with the economic demands of growth. Now the

debate has been descended to environment vs. Development. On the one hand, the humanity is

concerned with that entire environmental problem that we face today like global warming,

green house effect, air pollution, and water and land pollution. Ecology and economics are

closely related issues to inclusive development which is not possible without adequate

emphasis on environmental protection.

Key words: environment, economic development, principle environment legislation, human

rights and right to pollution free environment.

Development and Environment needed to be seen as complementary. However, thing are

contrary if we see the recent development around the world, the initiatives adopted by the

developed countries were faux as it is deliberately blaming the developing countries (BRIC)

for the recent spate of global warming .Today when the world is facing the harmful

consequences of global warming and depletion of resources, environment conservation has

become issue of local important.

From the numerous conventions held on global warming, it is quite evident that world is

indeed serious about the phenomenon. However the matter is of paramount reverence in a

developing country. Given the aspiration it has in terms of development.

Body:

Environment degradation drastically offsets improvements achieved by economic prosperity,

apart from having serious implications for distributive justice. Improper implementation of

policies, coupled with indifferent attitudes of authorizes has accentuated the ineffectiveness of

environment strategy in India. This had led to a host of problems like mounting pressure on

depleting resources and poor waste management resulting in deplorable condition and health

hazards. Thus, it is imperative to frame environment policy with holistic consideration of

health, sanitation and overall development of the population.

More sensitivity towards the environment is the key to environmental conversation. Providing

infrastructure for waste management, water harvesting and paper recycling .Consequently, it is

also crucial for the government and policy makers to walk the talk by adopting and

implementation efficient policies catering development as well as environmental protection

and upgrading.

Pollution of the waters(mainly costal water) from various sources such as the discharge of

sewage and other industrial waste at sea, the discharge of sewage and rubbish from ships, the

mishandling of the accidental pollution by oil and other substances of pollutants from land, air

and other routes.

Many factors such as dilution, temperature, adsorption, sedimentation. excess of sand and

coal mining, deforestation of industrial purposes, industrial chemical and affluent raising in the

air (constituting methane and carbon monoxide) influence the atmosphere and leads the global

warming. Rapid industrial growth (urbanization and population growth) that somehow

indirectly constituting the enactors of global warming.

Recently India has pursued GHG friendly policies in her one interest. India’s obligation to

minimize energy consumption particularly oil consumption and to deal with its environmental

problems prompts it to follow many such policies. However some innovative techniques in the

legislation would help to curb the menace of environmental pollution such as: emphasis on

energy sources, afforest ration and watershed development.

Some of these efforts constructed and are institutionalized in a number of ways through

policies, programs and the creation of specific institutions. Apart from energy conservation and

efficiency improvements, the need to find, develop and exploit non conventional energy

sources, many of them clean and renewable, has long been recognized by the government of

indabas an aggregate installed capacity of 2032MW through various renewable energy sources

,wind firms, micro hydro electric plants, biomass and co generation power plans.

It is certain that our current approach for solving the problem of global warming will not work.

It is flawed economically, because carbon taxes will cost a fortune and do little and it is flawed

politically also because negotiations to reduce carbon dioxide emissions will become even

more fraught and divisive. And even if one disagrees on both count, one more point where the

current approach can be certainly be said as flawed because technologically also India lags

behind tremendously.

However, many countries setting ambitions carbon setting goals ahead of global negotiations.

One of the significant problems lies with the technology which is currently inefficient to met

the goal, on carbon based source of energy would have to be astounding 2.5 times greater in

the year 2020 than it was in 2000.Research shows that confronting global warming globally

requires nothing short of technological Revolution. More effective policies will certainly for

more (non carbon based energy) such as Nuclear, wind, solar and geo thermal. Politicians

should abandon fraught carbon reductions negotiations and instead make agreements to invest

in research and development to get the technology to the level where it is needed.

More than two billion pounds of chemical are spewed into air each year which are brewing a

disastrous strew. The greatest consequence of the atmosphere crisis may be global warming

and the ozone depletion. The earth appears to be warming due to greenhouse effect. Scientist

estimates that average temperature could climb 2dgree centigrade in the next 20 year as a result

go green house gases effect, such as carbon dioxide and methane in the atmosphere.

The constitution of India has constructed fundamental rights which had included human rights

as a major area, which has in the history of India’s legislation not pony provided extensive

solutions but also guided the honorable judiciary form time to time. The article 21 of the

constitution of India is one of the major contributors in the enactments of environmental rights.

Although there are an astringe of environmental protection Act in vogue, but it is the human

rights aspect of the legislation that has widened the scope of implementation of various

environmental protection acts.

The Principle Environment Legislation:

In the N.D.Tewari committee’ s report 1980,some two hundred central and state have been

passed and reported to be in existence. But most of them are piecemeal legislation. The

Principle Acts are:

1. The India Forest act, 1972:

2. The atomic energy act, 1962:

3.3. The factories act, 1948:

4. The insecticides Act, 1968:

5. The Wildlife (Protection) Act, 1972:

6. The Water (Prevention and Control of Pollution) Act, 1974;

7. The Water (Prevention and Control of Pollution) cuss Act, 1974;

8. The air (prevention and control of pollution) act 1981;

9. The Forest (Conversation) Act, 1980;

10. The Motor Vehicles Act, 1988;

11. The National Environmental tribunal Act, 1995;

Major area identified by the committee was: Environmental pollution, Mismanagement of land,

Depletion of natural resources consciously and in ignorance, poor condition of human

settlements.

Apart from the aforesaid legislation the constitution of India has also increased the scope of

protection of environment by article 256 an article 32 of the constitution of India.

Scope does Article 32 of the Constitution of India in environment areas:

Under the Article the Supreme Court can issue writs only when some fundamental rights is

violated or infringed and grant appropriate remedy. In matters of environmental pollution the

remedy mandamus, certiorari, and prohibition are generally issued by the supreme court where

it is established that the fundamental right of the petitioner is violated whether the rights relates

to ecology and pollution if a fundamental right, the remedy by way of writ will be available in

the supreme court. In Menka Gandhi v. Union of India AIR 1981,SC 746.,the supreme court

laid down guide lines that the right to live within the scope of A.21 of the constitution of

india.The right it live with dignity ha been explained.

Thereafter, in the Rural Litigation And Entitlement Kendra v. State Of Uttar Pradesh AIR,

1985.SC., 652, the supreme court implicitly observed that article 21 guarantees the

fundamental Right (with respect it human right) to life and personal liberty to include the right

to wholesome environment .This Article reads as “No person shall be deprived of his life or

personal liberty except according to procedure established by law’. In the case does Rural

Litigation the Supreme Court ordered for closure of certain lime stone quarries being worked

out in defraud on the grounds that there were serious deficiencies regarding safety about hazard

in them and the work was likely to affect the ecology of the area.

A large scale of pollution was found to have been caused by the quarries adversely affecting

the safety and health of the people in the region.

The most historical case in the history of the constitution of India with regard to the human

right aspect of India on the protection of environment was that of M.C.Mehta v.Union of

india.The Supreme Court ordered under the Article 32 of the constitution of India for the

closure of the tanneries of Ajman near Kanpur which polluted the Gang River. It was further

observed that notwithstanding the comprehensive provisions contained in the wearer

(Prevention and Control of Position) act,1974 and The Environment protection Act,1986, no

effective steps have been taken by the government to stop by the tanneries at Jajman.

In another case of M.C.Mehta against the Union of India ,a PIL was filed, where it was argued

that inspire of several legislation imposed by the central and state board under the Water

(Prevention and Control of Pollution)Act and the Municipalities under the Uttar Pradesh Nagar

Mahapalika Adhiniyam,the authorities have failed to discharge their duties.

The Supreme Court directed the Kanpur Nagar Mahapalika to submit its proposal for effective

prevention and control of water pollution within six months to the board constituted under the

Water Act. It also directed the Mahapalika to get the dories shifted outside the city and arrange

for the removal of Waste accumulated at the dairies so that it may not reach the river ganga, to

lay down sewer where it is not constructed, to construct public latrines and urinals for the use

of the poor propel for free of charge, to ensure that dead bodies or half burnt bodies are not

thrown into ganga, and to take action against industries.

Scope of Article 226 on Environmental Matters-----High Court:

The high Court has been empowered to grant relief by way of writ partition under the A.226 of

the constitution of India. The remedy, however, can be granted only if there is no other

alternative remedy available to the writ petitioner.

The High Court issue writ of mandamus where a public authority vested with powers

wrongfully refuses to exercise that power. Such a writ can also be issued when such authority

does something which is in contravention of the provision of law. Writ of prohibition and

certiorari are issued by the High Court on similar grounds with a little distinction that:

1. Prohibition is issued before proceedings are complete before the tribunal or a quasi judicial

authoritative, whereas certiorari is issued after its competition...

2. The object of prohibition is preventative, whereas the objective of certiorari Isa curative.

A writ of certiorari or prohibition is issued only when the juridical or quash juridical

authority acts either under an invalid law or without jurisdiction or in excess of the

jurisdiction ion to exercise the jurisdiction as alas been laid down in S.T.O v. Shoe

Ratan,AIR,1996.

In RamLal v. State of Rajasthan, AIR 1981, the Rajasthan high court, in a case where the

residents of Mundara Mohalla in the town of Mandal in district Bhilwara drew the attention of

the medical and health officer of govt. hospitals regarding the accumulated water in the

mohalla which is likely to spread epidemics, the medical and health officer wrote a letter to the

executive officer of the medical board Mandal, but the officer failed to take any action. Hence

a writ petition was filed in the High Court where it examined the various provisions of the

Rajasthan Municipality Act, 1959, regarding the various duties of the municipality the High

Court came to a conclusion that the demands of the residents fall within the duties of the

municipality, hence the High Court issues a mandamus to the municipal board, Mandal for the

removal of warder and filth accumulated and for the construction of sewers and drains within

the period of three months.

According to the Supreme court, Right to wholesome environment if a fundamental right:

In the M.C Mehta v. Union of India,AIR.1987.SC.1086 the Supreme court implicitly observed

that the article 21 of the constitution of India guarantee the fundamental right to life and

personal liberty to include the right to a wholesome environment. Article 21 of the constitution

provides that no person shall be deprived of life and liberty except according to the procedure

established by law.

Scope of Tort on Environmental Pollution:

An action under the law of tort to abate nuisance is the oldest remedy. Most of the case relating

to pollution is converged by the heads of nuisance, negligence, or strict liability. In the law of

tort, primary remedy is a claim for unliqiudated damages.However, where it is not appropriate

remedy the prevention of the portions act is essential for which remedy of injustice with or

without damages may be granted.

The BHOPAL Gas Leak Disaster Case: One of the Greatest Human Rights Violation Case:

Bhopal gas leak tragedy is a historically most tragic case of tort ever happened in the world,

though it had occurred in Bhopal in India due to salience of the Union Carbide Corporation of

USA in its chemical plant in Bhopal, which is a subsidiary of the said corporation incorporated

under the laws of the state of Network with its headquarters in the state of Connectient.After

mid night on December 3,1984, nearly forty tones of toxic methyl isocyanine (MIC) gas which

had been manufactured and stored in the Union Carbide’s chemical plant in Bhopal escaped

into the atmosphere and caused the death of 3500 people who lived in the dispersing chemical

pathway and injured nearly 200.000,some seriously damaged and some permanently. In April

1985, the government of India sued the Union Carbide in the US district court of New York.

The Union of India through its govt. had accursed exclusive rights to represent all affected

persons both within and outside India under the Bhopal Gas Leak Disinter(Processing of

climes)Act.1985,known as the Bhopal Act. But the American court declined to try the suit on

the ground that the local court was the more appropriate place to sue.

It is because of this in slept 1986 the Union Government sued the Ionone Carbide in the court

of district judge of Bhopal for 3900 cores(US $ 27 billion).Then it went in appeal in the Hitch

Court which reduced the amount of the interim award of 350 corrodes to 250 crores.Against

the order the HC both the Union Carbide and the Govt. of India preferred appeal in the

Supreme Court of india.The Carbides contention was that the High Court of India passed the

order without trial whereas the contention of the govt. of India was that the reduction 30% in

the interim amount /payment order of the District Judge was undesirable.

The five bench of the Supreme Court realized that nether the Government nor the Union

carbide is sincerer in its effort to bring solace to the victims at the earliest ultilamately, on

February 14, 1989 the Supreme Court included the govt. of India and the Union Carbide to

accept its suggestions for an overall settlement of the climes of the victims. Under the

settlement the Carbide agreed to pay US $ 470 million to the Indian govt. on behalf of all

victims in full and final setellement.The entre amount had to be ad was paid by march 31,

1989.The supreme Court by excursing its extra ordinary jurisdiction terminated all

proceedings, civil, criminal, or contempt of court which has arisen out of the disaster and were

pending in subordinate courts.

Neither the govt. of India nor the victims were satisfied by this settlement, however, it was a

marvelous case of Torts which could be decided even through awarding comparatively fearless

amount as damages than the victims were entitled in law.

In the M.C.Mehta v.Unoino of India, AIR 1987 SC, 965 popularly known as Shri Ram Gas

Leak case. The Delhi Legal Aid and Advice board and the Delhi Bar Association filed a

petition for compensation to the victims of Oleum gas which had leaked from the Sulphuric

Acid Plant of Shri Ram Caustic Chlorine and Sulphuric acid planes located in thickly

populated area of Delhi on December 5, 1985.

Along with the petition, another petition was filed against the same company by M.C Mehta as

a PIL requesting the court to direct the closure and relocation of the said establishment. The

leakage of the gas took place in two phases:

First the major leakage on Dec5,1985 and the second the manor leakage on 7th Dec 1985.The

first one resulted due to bursting of the tank containing Ileum Gas as a result of the collapse of

the structure on which it was mounted and the second one occurred due to escape from the

joints of the pipe. The Supreme Court initially directed the management of the company by

way of security of sum Rs.20 laces as and by way of security for payment of compensation to

the victims of gas leak. The court also directed the management of Sriram to furnish a bank

guarantee of Rs.15 laces which shall be encased by the registrar of the Supreme Court wholly

or in part in case there is any escape of chlorine gas within a period of 3 years from the date of

the order resulting in death or injury to any workman or to any person living in the vicinity of

the establishment.

Honorable Justice P.N. Bhagwati clarified the position of the damage when the harm resulted

from the dangerous nature of activity. In such cases the court held that the compensation must

commensurate to the magnitude and capacity of the enterprise because such compensation

must have a different effect.

These aspects of Human Rights violation in terms of breach of environmental rights are prime

examples do how the Judiciary has extended and widened its jurisdiction with respect to

human rights violation. Not only the aforesaid examples set historical judgments but also in the

view of the relevancy of the matters had alder down guide lined as follows:

1. for progress and development, setting up of chemical and hazardous industries is essential;

2. In order to minimize hazardous industries be located in such Ares where pollution is search

and steps be taken to prevent the growth of population in such areas;

3. A green belt of 1 km to 5 km, width around such industries is provided;

4. In order to assess environmental pollution an ecological sciences research group consisting

of independent professionally competent express in different branches of science and

technology is step up who would act as an information bank;

5. An environmental court should be set up in regional basis is with one professional Judge and

two experts drawn from ESG to sassiest the judge to decide the cases relating to

enviromasenatl pollution.

The Defraud Quarrying Case (Rural Litigation and Entitlement Kendra v. State of Uttar

Pradesh): Rural Litigation and Entitlement Kendra v. Statue of U.P (1985),the SC ordered the

closure of certain limestone quarries on the grounds that there were serious deficiencies

regarding safety and hazardous in them. The court had appointed a committee for the purpose

of inspecting certain lime stone quarries. The committee had suggested the closure of certain

colognes of stones quarries having regard to adverse impact of mining operation tethering of

large scale pollution was caused by these lime stone quarries adversely affecting the safety and

health of the people living in the area.

A brief over the Environmental policies and development:

1. The Air (Prevention and Control of Pollution) Act.1981:

With the increasing industrialization and the tendency of the majority of the industries to

congregate in areas which are already heavily industrialized, the problem of air pollution was

begun to be felt in the country. The problem was and is more acute in those heavily

industrialized areas which are also densely populated. Short term studies conducted by the

national Environmental engineering Research institute, Nagpur had confirmed that the cities go

Calcutta, Delhi, Mumbai and Banglore are facing the impact of air pollution on a steadily

increasing level. The presence of air pollutants beyond certain limits, of various pollutants

discharged through industrial emission and form certain human activities connected with

traffic, heating, use of domestic fuel, refuse incinerations etc. has a detrimental effect in the

health of the people as also on animal life, vegetation and property.

In the United Nations Conference on the Human Environment held in Stockholm in June

1972,in which India participated. Decesions were taken to the appropriate step for the

preservation of the natural resources of the earth which among other things including the

preservation of quality air and control of pollution. The government decided to implement

these decisions of the said conference in so far a they relate to the preservation of the quality of

air and control of pollution.

It was felt that there should be an integrated approach for tackling the environmental problems

relating to pollution. It was therefore proposed that the Central Board for the prevention of the

water pollution and control would be created and the prevention and control of water pollution

act should be constructed. It was also proposed that the state boards constituted under the said

act will also perform the functions of the state boards in respect of prevention, control and

abatement of air and water pollution. However, in those states in which the state boards for the

prevention and control of water pollution have not been constitute under the act, separate state

boards for the prevention and control of air palliation were proposed to be constituted.

Power of the central board under the act:

As per section 18 of the act, the government (central) may give directions to the central board

and the state government as well as the central board. May give directions to the state board.

The central board is bound by the directions in writing as the central government may give to it

and;

Every state board shall be bound by such directions in writing as the central government may

give to it.

The main functions of the Central Board under the Act:

1. Advise the central government on any matter concerning the improvement of the quality of

air and the prevention, control or abatement of air pollution.

2. Plan and cause to be executed a nationwide programmed for the prevention and control or

abatement of air pollution;

3. Co – ordinate the activities of the statute board and resolve among them;

4.Perform such of the functions of any state boarded as may be spiced in an order made under

sub section 2 do section 18 of the act;

5. lays down standards for the quality of air;

Powers of The State Government conferred under this Act;

Section 19(1) provide that the state government after consultation with the state board by

notification in the official gazette declare in such manner as may be prescribed in any area

within the state as air pollution control area or any area for the purpose of the Act.

The state government after consolation with setae board by notification in the official gazette:

a. Alter any air pollution control area in which may be extension or reduction;

b. Declare a new pollution control area in which may be merged one more existing air

pollution, control area or any part or parts thereof;

Functions of the state board:

1. plan a comprehensive programmed for the prevention control or abetment of air pollution

and, to secure the execution thereof;

2. advises the state government on any matter concerning the prevention, control of abetment

of air pollution;

3.collect and disseminate information relating to air pollution; inspect air pollution control

area at such interval a sit my think necessary to assess the quality of air therein and take

necessary steps for the prevention and control o the pollution of air.

The Water (Prevention and Control do Pollution) Act, 1974:

The water prevention and control of pollution act states that ‘Whereas it is expedient to provide

for the prevention and control of water pollution and the maintaining or restoring of the

wholesomeness of water, establishment, with a view to carry out the purposes of board for the

prevention and control puff water pollutions and conferring on and assigning to such powers

and functions relating thereto. The amen purpose of the act is to prevent and control of water

pollution. Control and assign to such board powers and functioning relating to prevention and

control of water pollution so as to maintain the wholesomeness of water.

Powers a function of the sestet pollution boards:

1. To plan a comprehensive programmed for the prevention, control or abatement of pollution

of streams and well in the agate and to secure the execution thereof;

2. To advise the state got. On any matter concerning the prevention, control and abatement

thereof;

3. To collect and disseminate information relating to water pollution and the prevention,

control and abetment thereof;

4. To encourage, participate and conduct in investigations and research and prevention, control

or abatement of water pollution;

5. To inspect sewerage or trade effluents works and plants for the treatment of sewage and

trade effluents and to review the plants and other data for the purification therereof;

6. To evolve methods of utilization of sewage a suitable tirade effluents in agriculture.

The various layers which are affected by pollution, the types of pollution:

Troposphere: This is the basal part of the atmosphere. It is up to about 20 kames above the

earth’s surface. On poles it extends only up to 8kms.It is that part of the atmosphere in which

life exists. Important natural eve vents such as cloud formation, lightning, thundering, and

storm etc. All these takes place in this part of the atmosphere. In this zone the air temperature

decreases gradually with height at the rate of about 6.5dgree centigrade.

2. Stratosphere: It is next to troposphere, the second zone of earth which is of about 30 kms.

The upper layer of stratosphere are known as stratosphere.

3. Mesosophere: This is the third layer and it’s next to stratosphere. In this zone temperature

again shows a decline up to 80 degree centigrade.

4. Inonspehere: The fourth zone is the Inonspehere. It is above the mesosphere and the height

sis 300 kames.

These cycles mainly are:

1. Nirtogrn cycle: Nitrogen is an essential element present in the air useful for living. The

atmospheric nitrogen is fixed in the soli by symbiosis or symbiosis by variety of micro

organisms in the form of nitrate. The micro organism or bacteria which perform the main role

of fixing atmospheric nitrogen into soil is known as Rhizobium, found in the root nodules of

legumes. The nitrogen compounds were found in the air. Though plant and animals consume

this complex nitrogenous compound. The dead organic matter formed due to death plants and

animals is decomposed by bacteria, fungi and other microbes or as ammonia gas.

2.Carbon cycle: Carbon moves from the atmosphere to green plants, then to animals as

consumers thereof and finally form these both to bacteria, fungi, and other micro organism that

return if to the atmosphere through decamped]stilton of dead organic mater. The atmospheric

matter is the main source of carbon. The process of dissolving carbon dioxide in water is rather

complex. When it dissolves in water, some of it combines with warm ware it form carbonic

acid. All these are reversible reactions. As such they help in maintaining the requisite quantity

of carbon dioxide into the air.

3. Oxygen cycle: Oxygen in air is the most important element for life preservation .It helps in

purifying blood. If no oxygen in the air or are requisite quantity of it is not available in the air

or if the air is badly polluted it will make life very difficult to be maintained or survived. The

green terse consume carbon dioxide and reassesses oxygen which is further consumed by

human beings.

4. Hydrogen Cycle: Hydrogen gas also is present in the air, it is released either by sea water or

by industrial activities. In the presence of sun’s heat energy it aging acquires gaseous form.

5. Water cycle: The cycle through which water moves from ocean to atmosphere then to land

sand ultimately back to ocean is known as water cycle. The source of most of the rain which

falls on the land and the ocean is because of the whole process of writer cycle.

Various types of pollution and there sources:

1. Land Pollution: Land pollution is generally localized Destruction do soil, erosion of solid,

creation of dust bowls, render the lands polluted. The major sauce of land pollution is the

massive waste disposed by the use of industries. Such pollution is created by house hold

wastes, commercial rubbish, industrial waste, garbage, trash, automobile, tyres, and waste

paper.

These materials are not decayed for along time. Chemicals also contribute to land pollution.

The remaining chemicals which disturb composition of soil are the pollutants washed out of

the atmosphere, pesticides, bio ciceds and artificial fertilizers.

Theses operate primary pollutants as well as secondary ones combined with other substances.

Similarly nitric acid is secondary plolluatant.Solid wastes dumped on land such as garbage,

bulding materials, enpmty bottles etc are known as third plooutants.

Agricultural operations such as mining operations at and felling of trees result in land

pollution. Urbanization are a major source of land pollution. Growth of slum in the middle of

city pollute she entire environment.

How land pollution may be prevented:

Where pollution is caused by chemicals, the use of chemicals must be prohibited. However,

where its use is necessary, it should to be used in an appropriate manner and quality as are

necessary. Where pollution is caused by the third pollutants, the garbage, trash, rubbish bad

sludge etc. such things be dumped, but they should be recycled to the extent of recycling is

possible. Where’re recycle ling is not possible they should be bribe dint land. Other derbies

such as the residual of buildings and other materials should be aides for filling dead and older

mined.

Creation and adding to slums has become business of certain cunning toppy of below standard

communities and persons. It must be strict law and administration. Though tee parliament and

the states legislatures have passed various acts such as the slim areas (improvement an

clearance) Act,1956 is a central act already in force but a dead latter in the statutes book simply

because of the political vested ends to catch and fetch votes.

2. Food pollution: Food is a very essential commodity for the survival of human life as well

animals. If for food, free of pollutants in it spore and hygienic form is provided to them, it

makes them healthy and prolongs their lives. Animals generally smell third fodder or food

before eating or swallowing the cud. Pollution of food asserts when in order to protect seeds in

soil from termites and pests chemical are being used and fruits began to come and chemical are

being used again.. The chemical directly and indirectly affects the quality of thru food.

3. Radio active pollution: The emissions from the indivisible radioactive radiations are known

as radioactive pollution. The teems radio activity can be defined as “Property exhibited by

unstable isotopes of elements which decay, emitting radation, priniociapally, alpha, and beta

bad gamma particle is known as radio activity. These radiations are biologically harmful. They

are emitted from the nucleus of the radioactive elements, These radioactive rays causes dieses

like cancer, tumors, cataract and it can shorten the life span of living beings.

4. Noise pollution: Noise pollution is the unwanted and unpleasant sound echoed or crested

digit is of very high intensity. It produces be defect on health. The most common affect of the

loss of hearing capacity and hearing fatigue. It also affects the digestive system, produce

pepepticular, infertility and blood pressure. Noise exposure causes two types of hearing

changes:

A temporary threshold shift i.e., the lessened ability to hear weak audio signals from which

recovery is in a after of 3 to 4 hrs of weeks;

Binkies induced permanganate threshold i.e., loss form which there is no recovery. Although

there are many factors which cause noise pollution. Mostly noise pollution is caused by traffic,

then industries, railways, way by building operations. As such noise, particularly loud noise,

affects everyone way or the other. In overcrowded cities, traffic jams, etc, its effect is released

most. A vibrating source producing ha some to total power which is expressed in watts and

designated. The intensity expressed as I, is the power unit of sound. Noise has become a

growing menace in big towns and city in normal hours. At peak traffic hours it is alarming

proportions. However no steps has been taken so far in our country to prevent noise pollution

some half hatred efforts have been made in some step by passing enactments to prevent noise

pollution.

The contribution of the Supreme Court of India

The Constitution (Forty Second Amendment) Act 1976 explicitly incorporated

environmental protection and improvement as part of State policy through the insertion of

Article 48A. Article 51A (g) imposed a similar responsibility on every citizen “to protect and

improve the natural environment including forests, lakes, rivers, and wildlife and to have

compassion for all living creatures.” One of the main objections to an independent right or

rights to the environment lies in the difficulty of definition. It is in this regard that the Indian

Supreme Court has made a significant contribution. When a claim is brought under a particular

article of the Constitution, this allows an adjudicating body such as the Supreme Court to find a

breach of this article, without the need for a definition of an environmental right as such. All

that the Court needs to do is what it must in any event do; namely, define the Constitutional

right before it. Accordingly, a Court prepared to find a risk to life, or damage to health, on the

facts before it, would set a standard of environmental quality in defining the right litigated.

This is well illustrated by the cases that have come before the Supreme Court, in particular in

relation to the broad meaning given to the Right to Life under Article 21 of the Constitution.

The right to life has been used in a diversified manner in India. It includes, inter alia, the right

to survive as a species, quality of life, the right to live with dignity and the right to livelihood.

However, it is a negative right, and not a positive, self-executor right, such as is available, for

example, under the Constitution of the Philippines. Section 16, Article II of the 1987 Philippine

Constitution states: ‘The State shall protect and advance the right of the people to a balanced

and healthful ecology in accord with the rhythm and harmony of nature’. This right along with

Right to Health (section 15) ascertains a balanced and healthful ecology.1 In contrast, 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. Firstly, any law affecting personal liberty should be reasonable, fair and just.

Secondly, the Court recognized several unarticulated liberties that were implied by 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 the environment.

Rural Litigation and Entitlement Kendra v. State of U.P.2 was one of the earliest cases

where the Supreme Court dealt with issues relating to environment and ecological balance. The

expanded concept of the right to life under the Indian Constitution was further elaborated on in

Francis Cora lie mullin v. Union Territory of Delhi3 where the Supreme Court set out a list of

positive obligations on the State, as part of its duty correlative to the right to life. The

importance of this case lies in the willingness on the part of the Court to be assertive in

adopting an expanded understanding of human rights. It is only through such an understanding

that claims involving the environment can be accommodated within the broad rubric of human

rights. The link between environmental quality and the right to life was further addressed by a

constitution bench of the Supreme Court in the Charan Lal Sahu.4 Similarly, in Subash

Kumar,5 the Court 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 also indicated that the municipalities and a large number of other concerned

governmental 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.

The Supreme Court has used the right to life as a basis for emphasizing the need to take

drastic steps to combat air and water pollution.6 It has directed the closure or relocation of

industries and ordered that evacuated land be used for the needs of the community.7 The courts

1 See the case of Minors Oposa v. Sec. of the Department of Environment, 33 ILM 173 (1994). 2 AIR 1985 SC 652. 3 AIR 1981 SC 746. 4 Charan Lal Sahu v. Union of India AIR 1990 SC 1480. 5 Subhash Kumar v. State of Bihar, AIR 1991 SC 420. 6 V. Mathur v. Union of India, (1996) 1 SCC 119. 7 M.C. Mehta v. Union of India, (1996) 4 SCC 351.

have taken a serious view of unscientific and uncontrolled quarrying and mining,8 issued

orders for the maintenance of ecology around coastal areas,9 shifting of hazardous and heavy

industries10 and in restraining tanneries from discharging effluents.11

Another expansion of the right to life is the right to livelihood (article 41), which is a

directive principle of state policy. This extension can check government actions in relation to

an environmental impact that has threatened to dislocate the poor and disrupt their lifestyles. A

strong connection between the right to livelihood and the right to life in the context of

environmental rights has thus been established over the years. Especially in the context of the

rights of indigenous people being evicted by development projects, the Court has been guided

by the positive obligations contained in article 48A and 51A(g), and has ordered adequate

compensation and rehabilitation of the evictees.

Matters involving the degradation of the environment have often come to the Court in the

form of petitions filed in the public interest. This mode of litigation has gained momentum due

to the lenient view adopted by the Court towards concepts such as locus standi and the ‘proof

of injury’ approach of common law. This has facilitated espousal of the claims of those who

would have otherwise gone unrepresented. It is interesting to note that, unlike Indian courts,

the Bangladeshi and Pakistani courts apply an ‘aggrieved person’ test, which means a right or

recognised interest that is direct and personal to the complainant.

Sustainable Development

Awareness of the major challenges emerging both as regards development and with

reference to the environment has made possible a consensus on the concept of "sustainable and

environmentally sound development" which the "Earth Summit", meeting in Rio in 1992,

endeavoured to focus by defining an ambitious programme of action, Agenda 21, clarified by a

Declaration of 27 principles solemnly adopted on that occasion. We can also refer to the

content of the Declaration on International Economic Cooperation adopted by the General

Assembly in May 1990, which clearly recognizes that "Economic development must be

environmentally sound and sustainable."

The concept of sustainable development contains three basic components or principles.

First among these is the precautionary principle, whereby the state must anticipate, prevent

8 Rural Litigation and Entitlement Kendra v. State of U.P, AIR 1991 SC 2216. 9 Indian Council for Enviro-Legal Action v. Union of India (Coastal Protection Case), (1996) 5 SCC 281. 10 M.C.Mehta v. Union of India, (1996) 4 SCC 750. 11 M.C.Mehta v. Union of India (Ganga Water Pollution Case), AIR 1988 SC 1037.

and attack the cause of environmental degradation.12 The Rio Declaration affirms the principle

by stating that where ever “there are threats of serious or irreversible damage, lack of full

scientific certainty shall not be used as a reason for postponing cost-effective measures to

prevent environmental degradation.”13 Most of the cases of the 1990’s deal with the definition

of the principle. In 1996, the Supreme Court14 stated that environmental measures, adopted by

the State Government and the statutory authorities, must anticipate, prevent and attack the

causes of environmental degradation. Following the definition provided in the Rio Declaration,

the Court stated that where there are threats of serious and irreversible damage, lack of

scientific certainty should not be used as a reason for postponing measures to prevent

environmental degradation. The Supreme Court has accepted the principle and applied it on

several occasions. In the Taj Trapezium Case, applying the precautionary approach the

Supreme Court ordered a number of industries in the area surrounding the Taj Mahal to

relocate or introduce pollution abatement measures in order to protect the Taj from

deterioration and damage.

An interesting comment on the precautionary principle by the Supreme Court of Pakistan

is worthy of mention here. The Court in Shehla Zia v. WAPDA15 commented: “The

precautionary policy is to first consider the welfare and the safety of the human beings and the

environment and then to pick up a policy and execute the plan which is more suited to obviate

the possible dangers or make such alternate precautionary measures which may ensure safety.

To stick to a particular plan on the basis of old studies or inconclusive research cannot be said

to be a policy of prudence or precaution.”

The second component of the doctrine of sustainable development is the principle of

‘polluter pays’. The principle states that the polluter not only has an obligation to make good

the loss but shall bear the cost of rehabilitating the environment to its original state.16 In

operation, this principle is usually visible alongside the precautionary principle.

A Native American proverb states that “we do not inherit the planet from our ancestors

but borrow it from our children”, this is the next significant component of sustainable

development – the principle of intergenerational equity. The Brundtland Commission defined

sustainable development as development ‘which meets the needs of the present without

compromising the ability of the future generations to meet their own needs.’ The principle

12 Vellore Citizen’s Welfare Forum (1996) 5 SCC 647 at 658 13 Principle 15, Rio Declaration on Environment and Development (1992). 14 Vellore Citizen’s Welfare Forum (1996) 5 SCC 647. 15 PLD 1994 SC 693. 16 Indian Council for Enviro-Legal Action v. Union of India (H-Acid Case), (1996) 3 SCC 212.

envisages that each generation should be required to conserve the diversity of the natural and

cultural resource base, so that it does not unduly restrict the options available to future

generations in solving their problems and satisfying their own values, and should also be

entitled to diversity comparable to that enjoyed by previous generations. This principle is

called "conservation of options." Secondly, each generation should be required to maintain the

quality of the planet so that it is passed on in no worse condition than that in which it was

received, and should also be entitled to planetary quality comparable to that enjoyed by

previous generations. This is the principle of "conservation of quality." Thirdly, each

generation should provide its members with equitable rights of access to the legacy of past

generations and should conserve this access for future generations. This is the principle of

"conservation of access."17

Another important aspect of the right to life is the application of public trust doctrine to

protect and preserve public land. This doctrine serves two purposes: it mandates affirmative

state action for effective management of resources and empowers the citizens to question

ineffective management of natural resources. Public trust is being 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

environmental impact assessment, it also has an intergenerational dimension. When the

Supreme Court has applied the public trust doctrine, it has considered it not only as an

international law concept, but also as one which is well established in our domestic legal

system. Its successful application in India shows that this doctrine can be used to remove

difficulties in resolving tribal land disputes and cases concerning development projects planned

by the government. In M.C. Mehta v. Kamal Nath and Others,18 the court added that ‘[it]

would be equally appropriate in controversies involving air pollution, the dissemination of

pesticides, the location of rights of ways for utilities, and strip mining of wetland filling on

private lands in a state where governmental permits are required.’ In both M.I. Builders Pvt.

Ltd19 and Th. Majra Singh,20 the court reconfirmed that the public trust doctrine ‘has grown

from article 21 of the constitution and has become part of the Indian legal thought process for

quite a long time.’

17 Edith B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (United Nations University, 1989) 18 (1997) 1 SCC 388. 19 M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu AIR 1999 SC 2468. 20 Th. Majra Singh v. Indian Oil Corporation AIR 1999 J&K 81.

The importance of democratic and individual participation

A development strategy which does not take into account the human, social and cultural

dimension could have only adverse repercussions on the environment. A national development

strategy is viable from the economic, social and ecological standpoint only if it gains the active

adherence of the various social strata of the population. The United Nations Conference on

Environment and Development was of the view that that one of the fundamental prerequisites

for the achievement of sustainable development was broad public participation in decision-

making. Furthermore, the Conference recognized, in the specific context of environment, "the

need for new forms of participation" and "the need of individuals, groups and organizations to

participate in environmental impact assessment procedures and to know about and participate

in (pertinent) decisions."21 The Conference implicitly linked the notion of real participation in

the right of access to information by noting that "Individuals, groups and organizations should

have access to information relevant to environment and development held by national

authorities, including information on products and activities that have or are likely to have a

significant impact on the environment, and information on environmental protection

measures". The link between participation and information can also be found in Principle 10 of

the Declaration of Rio.

Conclusions

The advancement of the relationship between human rights and the environment would

enable the incorporation of human rights priciples within an environmental scope, such as anti-

discrimination standards, the need for social participation and the protection of vulnerable

groups. At the same time, the human rights system would be stregthened by the incorporation

of environmental concerns, enabling the expansion of the scope of human rights protection and

generation of concrete solutions for cases of abuses. Of course, one of the most important

consequences, is to provide victims of environmental degradation the possibility to access to

justice. Given the occasional 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.

It is apparent that environmental and human rights are inextricably linked. As we

increasingly recognize the serious impact of a degraded environment on human health and well

being, we are better placed to adjust our policies and cultural practices to reflect our enhanced

understanding. As a result, we should be able to protect human rights and human dignity within

its broader social, economic and cultural context by drawing from and contributing to those 21 A/CONF.151/4(Part III), chap. 23, paras. 23.1 and 23.2.

who are actively engaged in the environmental and public health arenas. This should also

facilitate those who are working in the elvironmental and conservation fields to develop a

better working relationship with those in the human rights arena. This will eventually lead to

the articulation of a more integrated approach to dealing with socio-economic and

environmental problems, encouraging the development of a sustainable model for the

preservation of biological resources and natural ecosystems, for the use and enjoyment of both

present and future generations.

By:- Ritesh Kumar Prasad, Pursuing LL.B, Bhadrak Law College Under Fakhir Mohan

University