Air Pollution Chapter 5

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<p>CHAPTER -5JUDICIARY </p> <p>RESPONSE</p> <p>TO THE</p> <p>PROBLEM </p> <p>IN INDIA</p> <p>5. Judicial Activism in India5.1Fundamental results</p> <p>The right to live in a clean and healthy environment is not a recent invention of the higher judiciary in India this right has been recognized by the legal system and by the judiciary in particular for over a century or so the only difference in the enjoyment of the right to live in a clean and healthy environment today is that it has attained the status of a fundamental right the violation of which, the constitution of the India will not permit it was only from the late eighties and thereafter various High courts and the supreme court of India have designated this right as a fundamental right prior to this period as pointed out earlier the people of this country has enjoyed this right not as a constitutionally guaranteed fundamental right but a right recognized and enforced by the courts of law under different laws like law of torts, India penal code civil procedure code criminal procedure code etc. </p> <p>In todays emerging jurisprudence, environmental rights, which encompass a group of collective rights, are described as third generation rights. The first generation rights are generally political rights such as those found in the International covenant on civil and political Rights while second generation rights are social and economic rights as found in the International covenant on Economic, social and cultural Rights. </p> <p>5.1.1</p> <p>RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS A BASIC HUMAN RIGHT </p> <p>Right to life being the mist important of all human rights implies the right to live without the deleterious invasion of pollution, environmental degradation and ecological imbalances. There is building up in various countries a concept that right to healthy environment and to sustainable development are fundamental human rights implicit in the right to life </p> <p>The Universal Declaration of Human Rights 1948 has declared that everyone has the right to life and that every one has a right to a standard of living adequate for the health and well being of himself and of his family the International Covenant on Economic, social and cultural Rights, 1966, declares that the states parties to the covenant recognized the right of everyone to an adequate standard of living for himself and his family and to the continuous improvement of living conditions. The convent further declears that the states parties recognize the right of everyone to the enjoyment of the highest attainable standerds of physical and mental health.</p> <p>The Convent provides that the steps to be taken by the States Parties to achieve the full realization of this right shall include that necessary for the important of all aspects of environmental and industrial hygiene. The International Covenant on Civil and Political Rights, 1996 proclaims that every human being has the inherent right to life. This right shall be protected by law . The European Convention for the Protection of Human Rights and Fundamental Freedom, 2005 also provides that every ones right to life shall be protected by law.</p> <p>UNO Conference on Human Environment:- Principle 1 of the declaration of the United Nations Conference on the Human Environment, held that Stockholm proclaims that 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 After the Stockholm Declaration in 1972, references to a right to a decent, healthy and viable environment was incorporated in several Global and Regional Human Rights Treaties and in the declaration and resolutions of International Organizations. At the UN Conference on Environment and Development (UNCED) the initial emphasis on the human rights perspective was not maintained. Avoiding rights terminology, merely asserted that human beings are at the centre of our concern for sustainable development. They are entitled to a healthy and productive life in harmony with nature.</p> <p>The right to sustainable development has been declared by the U.N. General Assembly to be an inalienable human right. The 1997 Earth Summit meeting Held India in 2003 in which 134 nations reflected the principle that in order to achieve sustainbel development, environmental protection shall constitute an integral part of development process and cannot be considered in isolation of it.</p> <p>The UN Commission on Prevention of Discrimination and Protection of human rights undertook a study on Human Rights and the Environment in 2007 and submitted its report . The most fundamental conclusion of the Report is that there has been a shift from environmental law to the right to a healthy and a decent environment and that it is capable of immediate implementation by Human Rights bodies. </p> <p>In Lopez Ostra v. Spain, the European Court of Human Rights at Strasburg has held that the result of environmental degradation might affect an individuals well being so as to deprive him of environment of private and family life. Under Article 8 of the European Convention, everyone is guaranteed the right to respect for his private and family life. The Inter-American Commission on Human Rights has also made a similar observation in Yanomi Indians v. Brazil. The Commission found that Brazil had violated the Yanomi Indians right to life by not taking measures to prevent the environmental damage.</p> <p>5.1.2RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS A </p> <p>CONSTITUTIONAL RIGHT</p> <p>Immediately after the Stockholm Declaration there was a growing trend in National Legal Systems to give constitutional status to environmental protection.</p> <p>In India the constitution was amended in the year 1976 by the Constitution of India Forty-second (Amendment) Act. This Amendment Act amendment the Constitution to add among other articles Article 48A and 51A. Article 48A provides that the State shall Endeavour to protect and improve the environment to safeguard the forest and wildlife of the country. Article 51 A(g) provides that it is the fundamental duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers, and wild life and to have compassion for living creatures.</p> <p>Our Supreme Court was one of the first courts to develop the concept of right to healthy environment as part of the right to life under Article 21 of our Constitution.1 This principle has now been adopted in various countries today. The Philippine Supreme Court dealt with the action against Government not to continue licensing agreements permitting deforestation so that the right to a balanced and healthful ecology in accordance with the rhythm and harmony of nature is not affected. The judgment was based on intergenerational responsibility.</p> <p>5.1.3EVOLUTION OF THE FUNDAMENTAL RIGHT TO LIVE IN A HEALTHY ENVIRONMENT IN INDIA</p> <p>In India the higher Judiciary has interpreted the existing constitutional provision viz., the right to life guaranteed in Article 21 to mean and include the right to live in a healthy environment.</p> <p>The Supreme Court of India while that certain limestone quarries in the Doon Valley should be closed down due to soil erosion, deforestation and river silting, declared for the first time that the right of people to live in a healthy environment with minimal disturbance to ecological balance shall be safeguarded. In this case through the Supreme Court evolved a new right to environment-right of people to live in a healthy environment it did not mention or discuss the source of the right.</p> <p>The Supreme Court in neither of these cases declared explicitly that the right to a clean and healthy environment is contained in the compendium of unremunerated rights under Article 21. However, since the Court issued directions in all the above cases under Article 32 of the Constitution it is evident that the Court has used Article 32, which is a provision to enforce fundamental rights for the purpose of protecting the lives of the people, their health and ecology.</p> <p>5.1.4THE DECLARATION OF RIGHT T A CLEAN AND HEALTHY ENVIRONMENT BY HIGH COURTS</p> <p>Through the Supreme Court was reluctant for a short period to declare explicitly that the right to life under Article 21 included the right to a clan and healthy environment, the High Courts in the country enthusiastically declared that the right to a clean and healthy environment is an integral part of the right to life.</p> <p>The Andhra Pradesh High Court held environmental law has succeeded in unshackling mans right to life and personal liberty from the clutches of common law theory of individual ownership. Examining the matter from the constitutional point of view, it would be reasonable to hold that the enjoyment of life and its attainments and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of natures gifts without (which) life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life aloe would be regarded as violative of Article 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Article 21 of the Constitution. This case was filed against the building of residential quarters for LIC in an area earmarked in the development plan as open space for recreational purposes.</p> <p>The Rajasthan High Court held that though termed as duty [51 A(g)], the provision given citizens a right to approach the Court for a direction to the Municipal authorities to clean the city. It further held that maintenance of health, sanitation and environment falls within Article 21 thus rendering the citizens the fundamental right to ask for affirmative action. This case was filed seeking a direction to clean the city of Jaipur and save it from its unhygienic conditions.</p> <p>The Kerala High Court held that the administrative agencies cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21. The right to life is much more than the right to animal existence and its attributes are manifold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweep water, and the right to free air, is attributes of the right to life, these are the basic elements, which sustain life itself. This case was filed to question the environmental impact of a scheme for pumping ground water for supplying potable water to Locatives because of the apprehension that extensive drawal of groundwater will result in salt water intrusion into the aquifers.</p> <p>The Karnataka High Court held that entitlement to clean environment is one of the recognized basic human rights and human rights jurisprudence cannot be permitted to be thwarted by status quoism on the basis fo undounded apprehensions. The Court further observed that the right to life inherent in Article 21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality, where, on account of human agencies, the quality of air and quality of environment are threatened or affected, the Court would not hesitste to use its innovative powerto enforce and safeguard the right to life to promote public interest. This case was filed challenging the establishment of industries in residential areas contrary to the zoning of land use in a development plan prepared in accordance with planning laws.</p> <p>The Rajasthan High Court held that any person who disturb the ecological balance or degrades, pollutes and tinkers with the gifts of nature such as air, water, river, sea and other elements of Nature, be not only violates the fundamental right guaranteed under Article 21 of the Constitution, but also breaches fundamental right guaranteed under Article 21 of the Constitution, but also breaches the fundamental duty to protect the environment under Article 51 A(g).</p> <p>5.1.5THE SUPREME COURT AND THE RIGHT TO CLEAN AIR AND HEALTHY ENVIRONMENT</p> <p>The Supreme Court of Indian Chhetriya Pardushan Mukti sangarsh Samiti v. State of UP (1990) for the first time declared that the right to environment is contemplated in Article 21 of the Constitution of India. In his Judgment the then Chief Justice SABYASACHI MUKERJI observed that every citizen has a fundamental right to have the enjoyment of quality of life and living Anything, which endangers or impairs that quality of life, is entitled to take resource to Article 32 of the Constitution of India. This case was initiated by a letter written to the Court, it was alleged that certain oil mills and refineries located in the Sarnath area causes environmental pollution and thereby a serious health hazard.</p> <p>The Supreme Court observed that the right to life enshrined in Article 21, included the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or the protection of society would have resource to Article</p> <p>protection of the environment, open space for recreation and fresh air, play grounds for children . are matters of great public concern and of vital interest in the reservation and preservation of open space for parks and play grounds cannot be sacrificed by leasing or selling such sites to provide persons for conversion to other uses. Any such act..would be in direct conflict with the Constitutional mandate to ensure that any state action is inspired by the basic value of individual freedom and dignity and addressed to the attainment of quality of life which make the guaranteed right a reality for all citizens. </p> <p>Supreme Court after reciting reaffirming and applying principle 1 of the Stockholm declaration held that Article 21 protects right to life as a fundamental right. Enjoyment and its attainment including their right to life with human dignity human dignity encompasses within its ambit, the protection andpreservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, air pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygiene environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a human and healthy environment. </p> <p>The Supreme Court drew a nexus between the protection of the environment and Article 21 of the Constitution. It held that any disturbance of the basic environmental elements, namely, air water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21 of the Constitution. The Supreme Court held that Environmental, ecological, air and water pollution amount to violation of the right to life assured by Article 21 of the Constitution of India. Hygienic environment is an integral...</p>