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The Right to Life & the Environment

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M
MirMustafaAliHasan

This document discusses the impact of climate change on fundamental human rights like the right to life. It argues that the right to life guaranteed by the Indian constitution includes the right to a clean environment. However, India lacks clear laws and policies recognizing climate change and a right to a clean environment. While India has environmental laws and climate policies like the National Action Plan on Climate Change, they are not sufficiently ambitious or effective. Recognizing environmental rights as basic human rights is crucial for protecting populations from the health and environmental impacts of climate change.

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National Conference on Climate Change- Environmental Law and Management Sub Theme- II​- Impact of Climate Change on Life, Health, Food, Standards of Living, Human Rights, and Fundamental Rights- National Policies and Laws. THE RIGHT TO LIFE AND THE ENVIRONMENT Mir Mustafa Ali Hasan Abstract It is real, it is proved and it is happening. The reality of Climate Change is undeniable and cannot be pushed away any further. We live in a time where the existential threat to humanity is not war but is the change in climate affecting seven billion people of the world and throwing them vulnerable to high temperatures and changing weather patterns. From man-made to natural ecosystems everyone faces a threat of unprecedented change and disruption. The Inter-Governmental Panel on Climate Change (IPCC) has predicted a rise of 1.5 degrees Celsius in global temperatures.1 There isn’t a deficit of laws or awareness; there is a deficit of action. Climate Change does affect you, even if you live in an urban society or are nestled in a rural place. Climate Change matters to the rich and to the poor tool. It is a global phenomenon. The 13​th Sustainable Development Goal of the United Nations says Climate Change is vital to be tackled to achieve a sustainable earth by the year 2030. Article 21 of the Constitution of The Republic of India enshrined the right to life guaranteed to every citizen of the Republic, this includes the right to clean air, water, and a clean and healthy environment. The deficit of action and accountability of climate change has resulted in the violation of one of the most basic principles of the Indian Constitution. This in general, is the phenomenon happening in every country that denies the change in climate and the rapidly developed world we live in now. The Constitution doesn't exactly address the issue of Climate Change or doesn't recognize the importance and need of a Climate Emergency. The absence of a provision of declaring a Climate Emergency or the Right to a Clean Environment are clear examples of how India lacks basic rules and codified laws for the promotion of the conservation of the environment. Countries and their citizens have started to act and if India doesn't act now, we will be in grave danger. 1 Inter-Governmental Panel on Climate Change (IPCC) Special Report Global Warming of 1.5 ºC
Introduction to the Right to Life The basic doctrine of the Constitution guarantees the Right to a free and safe life for all residents of India. Justice VR Krishna Iyer has visualised Article 21 as “​the procedural magna carta protective of life and liberty.” ​At another instance Justice Bhagwati, Article 212 of the Constitution of India​“embodies a constitutional value of supreme importance in a democratic society.” ​These two statements underline the significance that this particular3 Article holds in India. The Article states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”4 Inspired by the England’s (now The United Kingdom of Great Britain & Northern Ireland) Bill of Rights adopted in 1689, France’s Declaration of the Rights of Man and the Bill of Rights adopted by the United States of America. Fundamental Rights were considered vital for the development and enhancement of the personality of every person and to preserve and promote the human dignity of every individual and that’s how they found themselves a place in our Constitution. The drafters of our constitution regarded democracy of no use, if civil liberties, like freedom of speech, religion and life were not recognised and protected by the Government. They believed, democracy is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this reason, the constitution guarantees to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. The Right to Life was time and again subjected to various objections and clarifications, as it doesn’t divulge the definition and scope of life and personal liberty, at once instant, life can be measured as the life of a human being physically and that’s all. But the right to a healthy life is not guaranteed by the Constitution has excludes the importance of a healthy and clean environment and all the components of a clean environment which have to be guaranteed by the government in order to provide and live up to the basic right of life granted to every citizen of India. 2 ​1980 AIR 856, 1980 SCR (2) 873 3 1981 AIR 746, 1981 SCR (2) 516 4 The Constitution of India, 1949 2
Present provisions in regard to the Environment in India War, Famine or Terrorism has always been considered as the most disruting force endowned by humans, but there is something more challenging to tackle and more devestatating. Environmental Degradation is the biggest, most urgent problem that humans need to solve. Environmental Degradation is the excessive exhaustion of Earth’s resources . In India,5 Environmental Degradation has taken place due to urbanization, irresponsible usage and weak laws. The Constitution in various places has stated the importance to conserve nature and the need to preserve the natural heritage of our country. A Fundamental Duty of every citizen of India is to protect the environment and it’s incumbent on every Indian to abide by it. Article 51A (g) states: “To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;” 6 At the same time, the Environment remains a focal point of responsibility that rests on the government, and at various instances the government has taken upon itself to pass and adopt laws to improve the environmental situation in India.Intergovernmental Tified the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. In addition to the 1972 Stockholm Protocols. As a member state of the United Nations, it is expected to work effectively towards achieving the Sustainable Development Goals of the United Nations. The National Green Tribunal Act, 2010, The Air (Prevention and Control of Pollution) Act, 1981, The Water (Prevention and Control of Pollution) Act, 1974 , The Environment Protection Act, 1986 are a few of the important legislations enacted by the Central Government to tackle the rapidly evolving crisis. ​Nature has endowed us with the resources needed for survival and a prosperous life, this casts a duty upon everyone to preserve and use wisely, the limited resources left. Hence, the principle of intergenerational equity plays a vital role in environmental protection. In addition to these laws, India has actively participated in the ​Paris Agreement under the United Nations Framework Convention on Climate Change and is slowly moving towards reducing the 6.8% of global emissions that it emits every year.7 The Indian Constitution states that improving public health is a part of the Directive Principles of State Policy. The Parliament passed the Environment (Protection) Act, 1986 as an omnibus legislation empowering the Central Government to take measures and protect and improve the quality of environment and to control and abate environmental pollution. 5 Oxford Dictionary 6 The Constitution of India, 1949 7 ​Inter Governmental panel on Climate Change (IPCC) Special Report for the UNFCCC 3
It also created the National Green Tribunal, under the National Green Tribunal Act 2010, for the more effective enforcement of legal rights connected to the environment. ​Since adopting the Kyoto Protocols, the Central Government has implemented various initiatives to tackle Climate Change. The Crux of the Government’s initiatives is the National Action Plan on Climate Change (NAPCC). Action under NAPCC are premised on the principle of sustainable development, which for the reason of climate change means fostering growth, while simultaneously minimizing greenhouse gas emissions among achieving other such goals.The NAPCC addresses the urgent and critical concerns of the country through a directional shift in the development pathway. The NAPCC identifies measures that promote India’s objectives set for development, while yielding benefits for addressing Climate Change. The core of the NAPCC approach is the creation of eight national missions representing “​multi-pronged, long-term and integrated strategies” for achieving key goals in the context of climate change The NAPCC and domestic climate policy received detailed attention in the8 Twelfth Five Year Plan (2012–17) document of the erstwhile Planning Commission, which emphasised that ​“Climate Change concern should permeate all processes of planning in the long term for any mission to succeed, it must have separable objectives, dedicated implementation machinery and adequate funding”9 As a document with certain normative goals, including, a co-benefits approach that stresses on the synergies between climate response and development needs, the NAPCC forms a useful starting point in India’s climate change policy narrative. However, as pointed out in a detailed evaluation, the NAPCC approach is ​“too broad and lacks specificities” , some10 missions have quantified mitigation targets while others are purely adaptive, and while the solar and energy efficiency missions are considered successful, the mission-mode approach for dealing with cross-cutting subjects has not worked. Unfortunately, the Twelfth Five Year Plan’s recommendation for comprehensive climate policy integration across sectoral planning in India has not materialised. There is a need to revisit the NAPCC in order to decisively re-assess and reformulate the climate policy in India. The characterisation of India in the international climate landscape, as a minor contributor to past emissions, but a significant contributor to future emissions, albeit not on a per capita basis is the misunderstood concept and maybe the reason behind the lethargic attitude of the Indian Government. 8 Government of India Brefining 2013 9 Planning Commission of India 2013 10 Panel of Climate Activist 4
Right to a Clean Environment 19 youth activists called the Earth Guardians had filed a case against the United States11 Government for violating their right to a safe environment. The Court of Appeals ruled the case valid and moved it to a higher court. The complaint was historic and was a wake up call to the government of the United States and every other government. The lawsuit was not about proving that Climate Change is happening or that human activity is driving it. For the purposes of this case, these facts were undisputed. The questions before the Court was whether defendants, the US Government were responsible for some of the harm caused by climate change, whether plaintiffs, the youth activists may challenge the defendants' Climate Change policy in court, and whether this Court can direct defendants to change their policy to promote the Right to a Safe Environment. The Right to a Clean Environment wasn't a procured right envisioned when our constitution was framed as the situation of our climate was different. People were aware of their surroundings and they knew the importance of their natural habitats. With time, situations evolve and scenarios rapidly change. Globally, the discussion on the inter-linkages and synergies between Human Rights and the Environment has centred around three major questions: firstly, whether environmental protection is required to meet basic human rights; secondly, whether human rights can contribute towards environmental protection; and thirdly, whether environmental rights are basic human rights. This complementarity between the two was first recognised in a Resolution of the UN General Assembly in 1968 . The Resolution expressed a concern about the effect of the12 deterioration of the environment on the ‘condition of man, his physical, mental, and social well-being, his dignity, and his enjoyment of basic human rights, in developing as well as developed countries.’ In other words, there is both an anthropocentric urgency as well as an eco-centric urgency.In the Stockholm Declaration on the Human Environment adopted at the UN Conference on the Human Environment in 1972 both the above mentioned approaches were evident. India’s then Prime Minister Mrs. Indira Gandhi spoke on India’s behalf and linked a clean environment to human dignity stating that,​ "poverty is the worst pollution".13 In 2003, the United Nations Human Rights Council highlighted these inter-linkages more clearly when it stated that respect for Human Rights is essential to achieving Sustainable Development, that environmental damage can have a negative impact on the enjoyment of some Human Rights, and pointed out that states should be cognizant of the negative effects of environmental degradation. 11 ​Case No. 6:15-cv-01517-TC, US District Court, Eugene Division, State of Oregon 12 ​United Nations General Assembly Resolution 2398 (XXIII), 1968- ​‘Problems of Human Environment’ 13 ​Collection of Speeches, Smt. Indira Gandhi, Prime Minister 5
The Right to Life and its dependence on the Clean Environment The Government of India is entrusted with the responsibility of uploading all the fundamental rights entitled to all citizens of India. The Judicial system on various occasions have ruled in favour of a Clean Environment being a focal necessity of being a pillar of uploading the Right to Life. The first article of the Stockholm Declaration established a link between a clean environment and upholding Human Rights. It declared; “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.” The United Nations General Assembly recalled the principle of the Stockholm Declaration and decreed that all individuals of the United Nations are entitled to live in an environment that is sufficient for their good health and well-being. The General Assembly called upon nations for enhanced efforts towards a better and healthier environment for all strands of society. The impacts of an unhealthy environment are always felt by the unfortunate lower strands of society like Subhash Kumar, who filed a case against the State of Bihar, who were14 constitutionally mandated to protect his right to enjoy clean water. A stream following beside his house was polluted because of the pollutants dumped by a factory upstream. The court ruled in favour of Subhash Kumar. This proves, that there isn’t a deficit of laws or judgments. There is a lack of awareness and seriousness in the matter. Such was also in the case of the Nallamala Forest and it’s Tribal Natives. In a conflict between the Central Government’s decision to mine uranium from the resourceful forest and the state government, where the latter's firm stand to not allow mining prevailed. The direct impact of the decision was upon the tribals who resided in the forest for generations and weren't accustomed to life outside the forest. The right to life is directly affected by the environment. An underlying principle of the right to life is the assurity by the government to provide a safe environment with access to clean air, water and other resources needed by humans to feel comfortable. When the environment is harmed, our basic human right to a healthy life is compromised. Cancer, heart disease, asthma, birth defects, behavioral disorders, and infertility are all either caused or exacerbated by environmental hazards. Despite the many successful environmental lawsuits over the years, several obstacles remain in terms of access to an effective remedy. The most obvious flaws in the environmental regulatory system of India include the failure to remedy past and future actions, the failure to protect against the impact of pollutants, and the requirement for emissions limits and technological control on only a fraction of pollutants. 14 ​1991 AIR 420, 1991 SCR (1) 5 6
All Global and Regional Human Rights Bodies including the World Health Organisation15 have linked environmental degradation and internationally-guaranteed human rights directly, including the right to health and in nearly every incident brought forward to the judiciary of various countries, the cases have not been in regard of the specific right to a safe and environmentally-sound environment, but rather upon rights to life, property, health, information, family and home life. Underlying these complaints, are instances of pollution, deforestation, water pollution, and other types of harm inflicted to both humans and the environment. These cases demonstrate several benefits of using one or more of the rights-based approaches to environmental and health problems. First, the emphasis on the rights of information, participation, and access to justice encourages an integration of democratic values and promotion of the rule of law in broad-based structures of governance. It ought to be noted that there are different regulatory approaches to achieving environmental protection and public health that aren't rights-based. Economic incentives and disincentives, criminal law, and private liability regimes have all formed part of the framework of international and national environmental law and health law. This stress on responsibilities instead of rights echoes language from the Stockholm Declaration and later instruments that emphasize the duty of every person to shield and improve the environment for ​present and future generations. ​It is additionally in step with human rights instruments that affirm the duties of every individual to others to push and observe internationally-guaranteed human rights. Experience shows better environmental decision-making and implementation when those affected are informed and participate in the process: the legitimacy of the decisions exercises a pull towards compliance with the measures adopted. Another good thing about a rights-based approach is that the existence of international petition procedures that permit those injured to bring international pressure in grips once governments lack the desire to prevent or halt severe pollution that threaten human health and well-being.​In many instances, petitioners have been afforded redress and governments have taken measures to remedy the violation. In other instances, however, the problem appears to be the result of a combination of governmental lack of capacity and lack of political will. The pollution could also be caused by powerful enterprises whose business and investment are necessary to the state or the state might have inadequate observance systems to make sure air or water quality. Even in these instances, however, petition procedures will facilitate to spot issues and encourage a dialogue to resolve them, as well as by the supply of technical help. 15 Human Rights, Environment and Health, A Background Guide for WHO 7
Moving Ahead Even when this paper was being drafted, another incident was making splashes across the country. The incident of the felling of trees in one of Mumbai’s biodiversity hotspot- The Aarey Forest to make place for a Metro Rail Shed. The citizens of Mumbai rose in unison and opposed the move. It is to be noted that Aarey was one of Mumbai’s only green lungs left, that helped Mumbai control the insane amounts of carbon emissions that it emits daily. The Right to Life was directly threatened in this case, where the absence of clean air would lead to the infringement of the abovementioned right. In addition to the violation and non- compliance of the Fundamental Duty of every citizen; To protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures;16 The need of the hour are direct rules and regulations; not those that can be shelved or surpassed but such laws that realize the importance of the environment. What’s also needed is a seperate Right to a Clean Environment, to be added in the constitution as a Fundamental Right. The Provisions of a Climate Emergency, more relevance to International Treaties and Conventions ratified by India. It is time we realise that Climate Change is real, fast and omni-present. It isn’t going to solve itself. Laws are prevalent, people are aware and governments are trying. But we aren’t doing enough. It is time, we own the responsibility and take the onus upon ourselves to preserve the environment for us, and the future generations. The time to think has passed. Now is the time to act! About the Author Mir Mustafa Ali Hasan​ is an undergraduate law student studying at Sultan-Ul-Uloom College of Law, affiliated to Osmania University, Hyderabad. His interests range from cooking to International Relations & Politics. An extensive reader and a passionate orator, he is vocal about various social issues that concern him. Through conversations with his friends, Mustafa has developed a deep concern for the environment and has been doing his bit to preserve the environment and prevent environmental degradation. He believes that the world doesn't need one perfect solution but it needs seven billion imperfect ones. He urges everyone to go ahead and try their best to save the earth. Doesn't matter if it isn't perfect. 16 Fundamental Duties, The Constitution of India, 1950 8

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The Right to Life & the Environment

  • 1. National Conference on Climate Change- Environmental Law and Management Sub Theme- II​- Impact of Climate Change on Life, Health, Food, Standards of Living, Human Rights, and Fundamental Rights- National Policies and Laws. THE RIGHT TO LIFE AND THE ENVIRONMENT Mir Mustafa Ali Hasan Abstract It is real, it is proved and it is happening. The reality of Climate Change is undeniable and cannot be pushed away any further. We live in a time where the existential threat to humanity is not war but is the change in climate affecting seven billion people of the world and throwing them vulnerable to high temperatures and changing weather patterns. From man-made to natural ecosystems everyone faces a threat of unprecedented change and disruption. The Inter-Governmental Panel on Climate Change (IPCC) has predicted a rise of 1.5 degrees Celsius in global temperatures.1 There isn’t a deficit of laws or awareness; there is a deficit of action. Climate Change does affect you, even if you live in an urban society or are nestled in a rural place. Climate Change matters to the rich and to the poor tool. It is a global phenomenon. The 13​th Sustainable Development Goal of the United Nations says Climate Change is vital to be tackled to achieve a sustainable earth by the year 2030. Article 21 of the Constitution of The Republic of India enshrined the right to life guaranteed to every citizen of the Republic, this includes the right to clean air, water, and a clean and healthy environment. The deficit of action and accountability of climate change has resulted in the violation of one of the most basic principles of the Indian Constitution. This in general, is the phenomenon happening in every country that denies the change in climate and the rapidly developed world we live in now. The Constitution doesn't exactly address the issue of Climate Change or doesn't recognize the importance and need of a Climate Emergency. The absence of a provision of declaring a Climate Emergency or the Right to a Clean Environment are clear examples of how India lacks basic rules and codified laws for the promotion of the conservation of the environment. Countries and their citizens have started to act and if India doesn't act now, we will be in grave danger. 1 Inter-Governmental Panel on Climate Change (IPCC) Special Report Global Warming of 1.5 ºC
  • 2. Introduction to the Right to Life The basic doctrine of the Constitution guarantees the Right to a free and safe life for all residents of India. Justice VR Krishna Iyer has visualised Article 21 as “​the procedural magna carta protective of life and liberty.” ​At another instance Justice Bhagwati, Article 212 of the Constitution of India​“embodies a constitutional value of supreme importance in a democratic society.” ​These two statements underline the significance that this particular3 Article holds in India. The Article states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”4 Inspired by the England’s (now The United Kingdom of Great Britain & Northern Ireland) Bill of Rights adopted in 1689, France’s Declaration of the Rights of Man and the Bill of Rights adopted by the United States of America. Fundamental Rights were considered vital for the development and enhancement of the personality of every person and to preserve and promote the human dignity of every individual and that’s how they found themselves a place in our Constitution. The drafters of our constitution regarded democracy of no use, if civil liberties, like freedom of speech, religion and life were not recognised and protected by the Government. They believed, democracy is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this reason, the constitution guarantees to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. The Right to Life was time and again subjected to various objections and clarifications, as it doesn’t divulge the definition and scope of life and personal liberty, at once instant, life can be measured as the life of a human being physically and that’s all. But the right to a healthy life is not guaranteed by the Constitution has excludes the importance of a healthy and clean environment and all the components of a clean environment which have to be guaranteed by the government in order to provide and live up to the basic right of life granted to every citizen of India. 2 ​1980 AIR 856, 1980 SCR (2) 873 3 1981 AIR 746, 1981 SCR (2) 516 4 The Constitution of India, 1949 2
  • 3. Present provisions in regard to the Environment in India War, Famine or Terrorism has always been considered as the most disruting force endowned by humans, but there is something more challenging to tackle and more devestatating. Environmental Degradation is the biggest, most urgent problem that humans need to solve. Environmental Degradation is the excessive exhaustion of Earth’s resources . In India,5 Environmental Degradation has taken place due to urbanization, irresponsible usage and weak laws. The Constitution in various places has stated the importance to conserve nature and the need to preserve the natural heritage of our country. A Fundamental Duty of every citizen of India is to protect the environment and it’s incumbent on every Indian to abide by it. Article 51A (g) states: “To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;” 6 At the same time, the Environment remains a focal point of responsibility that rests on the government, and at various instances the government has taken upon itself to pass and adopt laws to improve the environmental situation in India.Intergovernmental Tified the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. In addition to the 1972 Stockholm Protocols. As a member state of the United Nations, it is expected to work effectively towards achieving the Sustainable Development Goals of the United Nations. The National Green Tribunal Act, 2010, The Air (Prevention and Control of Pollution) Act, 1981, The Water (Prevention and Control of Pollution) Act, 1974 , The Environment Protection Act, 1986 are a few of the important legislations enacted by the Central Government to tackle the rapidly evolving crisis. ​Nature has endowed us with the resources needed for survival and a prosperous life, this casts a duty upon everyone to preserve and use wisely, the limited resources left. Hence, the principle of intergenerational equity plays a vital role in environmental protection. In addition to these laws, India has actively participated in the ​Paris Agreement under the United Nations Framework Convention on Climate Change and is slowly moving towards reducing the 6.8% of global emissions that it emits every year.7 The Indian Constitution states that improving public health is a part of the Directive Principles of State Policy. The Parliament passed the Environment (Protection) Act, 1986 as an omnibus legislation empowering the Central Government to take measures and protect and improve the quality of environment and to control and abate environmental pollution. 5 Oxford Dictionary 6 The Constitution of India, 1949 7 ​Inter Governmental panel on Climate Change (IPCC) Special Report for the UNFCCC 3
  • 4. It also created the National Green Tribunal, under the National Green Tribunal Act 2010, for the more effective enforcement of legal rights connected to the environment. ​Since adopting the Kyoto Protocols, the Central Government has implemented various initiatives to tackle Climate Change. The Crux of the Government’s initiatives is the National Action Plan on Climate Change (NAPCC). Action under NAPCC are premised on the principle of sustainable development, which for the reason of climate change means fostering growth, while simultaneously minimizing greenhouse gas emissions among achieving other such goals.The NAPCC addresses the urgent and critical concerns of the country through a directional shift in the development pathway. The NAPCC identifies measures that promote India’s objectives set for development, while yielding benefits for addressing Climate Change. The core of the NAPCC approach is the creation of eight national missions representing “​multi-pronged, long-term and integrated strategies” for achieving key goals in the context of climate change The NAPCC and domestic climate policy received detailed attention in the8 Twelfth Five Year Plan (2012–17) document of the erstwhile Planning Commission, which emphasised that ​“Climate Change concern should permeate all processes of planning in the long term for any mission to succeed, it must have separable objectives, dedicated implementation machinery and adequate funding”9 As a document with certain normative goals, including, a co-benefits approach that stresses on the synergies between climate response and development needs, the NAPCC forms a useful starting point in India’s climate change policy narrative. However, as pointed out in a detailed evaluation, the NAPCC approach is ​“too broad and lacks specificities” , some10 missions have quantified mitigation targets while others are purely adaptive, and while the solar and energy efficiency missions are considered successful, the mission-mode approach for dealing with cross-cutting subjects has not worked. Unfortunately, the Twelfth Five Year Plan’s recommendation for comprehensive climate policy integration across sectoral planning in India has not materialised. There is a need to revisit the NAPCC in order to decisively re-assess and reformulate the climate policy in India. The characterisation of India in the international climate landscape, as a minor contributor to past emissions, but a significant contributor to future emissions, albeit not on a per capita basis is the misunderstood concept and maybe the reason behind the lethargic attitude of the Indian Government. 8 Government of India Brefining 2013 9 Planning Commission of India 2013 10 Panel of Climate Activist 4
  • 5. Right to a Clean Environment 19 youth activists called the Earth Guardians had filed a case against the United States11 Government for violating their right to a safe environment. The Court of Appeals ruled the case valid and moved it to a higher court. The complaint was historic and was a wake up call to the government of the United States and every other government. The lawsuit was not about proving that Climate Change is happening or that human activity is driving it. For the purposes of this case, these facts were undisputed. The questions before the Court was whether defendants, the US Government were responsible for some of the harm caused by climate change, whether plaintiffs, the youth activists may challenge the defendants' Climate Change policy in court, and whether this Court can direct defendants to change their policy to promote the Right to a Safe Environment. The Right to a Clean Environment wasn't a procured right envisioned when our constitution was framed as the situation of our climate was different. People were aware of their surroundings and they knew the importance of their natural habitats. With time, situations evolve and scenarios rapidly change. Globally, the discussion on the inter-linkages and synergies between Human Rights and the Environment has centred around three major questions: firstly, whether environmental protection is required to meet basic human rights; secondly, whether human rights can contribute towards environmental protection; and thirdly, whether environmental rights are basic human rights. This complementarity between the two was first recognised in a Resolution of the UN General Assembly in 1968 . The Resolution expressed a concern about the effect of the12 deterioration of the environment on the ‘condition of man, his physical, mental, and social well-being, his dignity, and his enjoyment of basic human rights, in developing as well as developed countries.’ In other words, there is both an anthropocentric urgency as well as an eco-centric urgency.In the Stockholm Declaration on the Human Environment adopted at the UN Conference on the Human Environment in 1972 both the above mentioned approaches were evident. India’s then Prime Minister Mrs. Indira Gandhi spoke on India’s behalf and linked a clean environment to human dignity stating that,​ "poverty is the worst pollution".13 In 2003, the United Nations Human Rights Council highlighted these inter-linkages more clearly when it stated that respect for Human Rights is essential to achieving Sustainable Development, that environmental damage can have a negative impact on the enjoyment of some Human Rights, and pointed out that states should be cognizant of the negative effects of environmental degradation. 11 ​Case No. 6:15-cv-01517-TC, US District Court, Eugene Division, State of Oregon 12 ​United Nations General Assembly Resolution 2398 (XXIII), 1968- ​‘Problems of Human Environment’ 13 ​Collection of Speeches, Smt. Indira Gandhi, Prime Minister 5
  • 6. The Right to Life and its dependence on the Clean Environment The Government of India is entrusted with the responsibility of uploading all the fundamental rights entitled to all citizens of India. The Judicial system on various occasions have ruled in favour of a Clean Environment being a focal necessity of being a pillar of uploading the Right to Life. The first article of the Stockholm Declaration established a link between a clean environment and upholding Human Rights. It declared; “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.” The United Nations General Assembly recalled the principle of the Stockholm Declaration and decreed that all individuals of the United Nations are entitled to live in an environment that is sufficient for their good health and well-being. The General Assembly called upon nations for enhanced efforts towards a better and healthier environment for all strands of society. The impacts of an unhealthy environment are always felt by the unfortunate lower strands of society like Subhash Kumar, who filed a case against the State of Bihar, who were14 constitutionally mandated to protect his right to enjoy clean water. A stream following beside his house was polluted because of the pollutants dumped by a factory upstream. The court ruled in favour of Subhash Kumar. This proves, that there isn’t a deficit of laws or judgments. There is a lack of awareness and seriousness in the matter. Such was also in the case of the Nallamala Forest and it’s Tribal Natives. In a conflict between the Central Government’s decision to mine uranium from the resourceful forest and the state government, where the latter's firm stand to not allow mining prevailed. The direct impact of the decision was upon the tribals who resided in the forest for generations and weren't accustomed to life outside the forest. The right to life is directly affected by the environment. An underlying principle of the right to life is the assurity by the government to provide a safe environment with access to clean air, water and other resources needed by humans to feel comfortable. When the environment is harmed, our basic human right to a healthy life is compromised. Cancer, heart disease, asthma, birth defects, behavioral disorders, and infertility are all either caused or exacerbated by environmental hazards. Despite the many successful environmental lawsuits over the years, several obstacles remain in terms of access to an effective remedy. The most obvious flaws in the environmental regulatory system of India include the failure to remedy past and future actions, the failure to protect against the impact of pollutants, and the requirement for emissions limits and technological control on only a fraction of pollutants. 14 ​1991 AIR 420, 1991 SCR (1) 5 6
  • 7. All Global and Regional Human Rights Bodies including the World Health Organisation15 have linked environmental degradation and internationally-guaranteed human rights directly, including the right to health and in nearly every incident brought forward to the judiciary of various countries, the cases have not been in regard of the specific right to a safe and environmentally-sound environment, but rather upon rights to life, property, health, information, family and home life. Underlying these complaints, are instances of pollution, deforestation, water pollution, and other types of harm inflicted to both humans and the environment. These cases demonstrate several benefits of using one or more of the rights-based approaches to environmental and health problems. First, the emphasis on the rights of information, participation, and access to justice encourages an integration of democratic values and promotion of the rule of law in broad-based structures of governance. It ought to be noted that there are different regulatory approaches to achieving environmental protection and public health that aren't rights-based. Economic incentives and disincentives, criminal law, and private liability regimes have all formed part of the framework of international and national environmental law and health law. This stress on responsibilities instead of rights echoes language from the Stockholm Declaration and later instruments that emphasize the duty of every person to shield and improve the environment for ​present and future generations. ​It is additionally in step with human rights instruments that affirm the duties of every individual to others to push and observe internationally-guaranteed human rights. Experience shows better environmental decision-making and implementation when those affected are informed and participate in the process: the legitimacy of the decisions exercises a pull towards compliance with the measures adopted. Another good thing about a rights-based approach is that the existence of international petition procedures that permit those injured to bring international pressure in grips once governments lack the desire to prevent or halt severe pollution that threaten human health and well-being.​In many instances, petitioners have been afforded redress and governments have taken measures to remedy the violation. In other instances, however, the problem appears to be the result of a combination of governmental lack of capacity and lack of political will. The pollution could also be caused by powerful enterprises whose business and investment are necessary to the state or the state might have inadequate observance systems to make sure air or water quality. Even in these instances, however, petition procedures will facilitate to spot issues and encourage a dialogue to resolve them, as well as by the supply of technical help. 15 Human Rights, Environment and Health, A Background Guide for WHO 7
  • 8. Moving Ahead Even when this paper was being drafted, another incident was making splashes across the country. The incident of the felling of trees in one of Mumbai’s biodiversity hotspot- The Aarey Forest to make place for a Metro Rail Shed. The citizens of Mumbai rose in unison and opposed the move. It is to be noted that Aarey was one of Mumbai’s only green lungs left, that helped Mumbai control the insane amounts of carbon emissions that it emits daily. The Right to Life was directly threatened in this case, where the absence of clean air would lead to the infringement of the abovementioned right. In addition to the violation and non- compliance of the Fundamental Duty of every citizen; To protect and improve the natural environment including forests, lakes, rivers, wildlife and to have compassion for living creatures;16 The need of the hour are direct rules and regulations; not those that can be shelved or surpassed but such laws that realize the importance of the environment. What’s also needed is a seperate Right to a Clean Environment, to be added in the constitution as a Fundamental Right. The Provisions of a Climate Emergency, more relevance to International Treaties and Conventions ratified by India. It is time we realise that Climate Change is real, fast and omni-present. It isn’t going to solve itself. Laws are prevalent, people are aware and governments are trying. But we aren’t doing enough. It is time, we own the responsibility and take the onus upon ourselves to preserve the environment for us, and the future generations. The time to think has passed. Now is the time to act! About the Author Mir Mustafa Ali Hasan​ is an undergraduate law student studying at Sultan-Ul-Uloom College of Law, affiliated to Osmania University, Hyderabad. His interests range from cooking to International Relations & Politics. An extensive reader and a passionate orator, he is vocal about various social issues that concern him. Through conversations with his friends, Mustafa has developed a deep concern for the environment and has been doing his bit to preserve the environment and prevent environmental degradation. He believes that the world doesn't need one perfect solution but it needs seven billion imperfect ones. He urges everyone to go ahead and try their best to save the earth. Doesn't matter if it isn't perfect. 16 Fundamental Duties, The Constitution of India, 1950 8