The notion that a safe and healthy environment can be a right may still sound new to us. The right to a healthy environment was first formally brought up in the Stockholm Declaration in 1972. Afterwards, many countries have incorporated environment- centric provisions into their respective constitutions, as a right, or a duty. The research of David Boyd, UN Special Rapporteur on Human Rights and Environment, manifests that more than 150 jurisdictions have enshrined this right in their Constitution or legislation. In 2021, the Human Rights Council passed a remarkable resolution recognising access to a healthy and sustainable environment as a universal right.

The only reference about the environment was incorporated into the Constitution of Bangladesh in 2011. Article 18A provides that the state will endeavour to protect and preserve the environment. Needless to say, this article is inscribed in part II of the Constitution and does not constitute a substantive right to a healthy environment. As Bangladesh has yet to declare the right to a healthy environment as a directly enforceable right, our judiciary has tried enforcing this right through other substantive human rights, for example, the right to life (established in the Dr. M. Farooque v Bangladesh case.) In line with the current jurisprudence, a claimant has an onerous burden to prove that the contested environmental action has "directly and seriously affected" the quality of life.

Aside from the judicial perspective, the recognition of the right to a healthy environment is crucial in adopting and implementing environment-sensitive policies. In the name of development, Bangladesh has frequently undertaken various environmentally hazardous projects and policies. The incorporation of the right in the Constitution would create an obligation on the State to scrutinise policies and developments from a healthy-environment lens. This way, the environment itself would become an important stakeholder in such decisions.

In the name of development, Bangladesh has frequently undertaken various environmentally hazardous projects and policies. The incorporation of the right in the Constitution would create an obligation on the State to scrutinise policies and developments from a healthy-environment lens.

Recognising the right to a healthy environment also has procedural implications. In the procedural sphere, stakeholders can uphold the right to participate in environmental decision-making, access to receive information, and seek justice in case of infringement of the right. Alongside the procedural and substantive protections, the recognition also has certain  practical benefits. Professor Boyd substantiated in research that out of 92 countries that enshrined the concerned right in their constitutions, in 78 countries, environmental laws got strengthened. Bangladesh has over 200 eco-centric laws. However, the application and implementation of those laws always fall short. With a strong constitutional status, those laws will gain momentum and find a strong basis.

Although countless arguments can be presented in favour of recognition of the right to healthy environment, many antitheses and counterarguments can also be advanced and debated as well. Those who are against the incorporation of constitutional environmental right argue that the right to a healthy environment is downright useless. In response to this criticism, the UN Human Rights Council (2020) presented a report in which David Boyd demonstrated that states incorporating this right have initiated good practices in addressing the substantive and procedural elements of the right.

Bangladesh requires robust environmental policies and laws to tackle and mitigate environmental degradation. Coincidently, we are at a moment where constitutional reform is being widely discussed. Certainly, the path of recognising the right to a healthy environment is strenuous but not impossible or too early.

The Writer is an LLM Candidate, University of Dhaka.