Determining the extent of right to safe environment

In Bangladesh Constitution, neither of the abovementioned two kinds of rights make their appearance. There has only been an insertion of a provision (Article 18A) concerning environment in 2011 which enunciates that the State shall endeavour to protect and improve the environment. In absence of a substantive provision on a fundamental right to safe environment, the approach preferred by States like Bangladesh has been the ‘greening’ of other human rights. This approach suggests reading the right to safe environment into one or more recognised human rights. In other words, it implies broadening the horizon of rights (such as right to life) to accommodate right to environment within that broadened horizon. The countries that can be considered as such ‘painters’ who in fact played the most instrumental role in ‘greening’ human rights are Bangladesh, Pakistan and India.

For Bangladesh, the landmark decision of Dr. M. Farooque v Bangladesh read the right to a healthy environment into right to life enshrined in Articles 31 and 32 of the Constitution. This case challenged the validity of some flood action programmes taken up by the government in 1995. It was Farooque’s case that let the content of right to life travel beyond its hitherto established sphere. In the post-Farooque era, applicants have gone on to obtain favourable rulings in petitions concerning vehicular and industrial pollution, unlawful construction of brick fields, commercial shrimp cultivation, gas explosion, river encroachments and many others. 

For India, the constitutional design in terms of environment is a bit expansive, if compared to that of Bangladesh. Alongside enjoining the State to endeavour to protect improve environment like ours, the Constitution casts a duty on every citizen to help in the preservation of natural environment (Articles 48A and 51A respectively). However, absence of a substantive right to safe environment is a reality for Indian Constitution as well. Hence, the ‘greening’ of human rights was the preferred approach for India too.

In the early 1990s, the Supreme Court of India found ‘the right to enjoyment of pollution-free water and air for full enjoyment of life’ as coming within the purview of the constitutionally guaranteed right to life (Kumar v State of Bihar). Starting from Kumar, the Supreme Court of India later discovered certain other beads in the thread. In 1995, alongside freedom from pollution of air and water, ‘the protection and preservation of the environment, ecological balance, and sanitation, without which life cannot be enjoyed’ were also read into right to life. The discussion would remain incomplete, if reference is not made to M.C. Mehta v Union of India (2002) which came out to be one of the most famous decisions due to the mandamus orders issued by the Court to oversee the State’s compliance with the court’s directions.

This approach is also preferred by the European Court of Human Rights (hereinafter, ECtHR). This too can be explained with the fact that the European Convention on Human Rights does not have a specific provision on a substantive right to environment. An additional protocol to the Convention on Human Rights concerning the right to a healthy environment was recommended; however the need for a substantive stand-alone right to environment was persistently downplayed by the Committee of Ministers. And therefore, greening of human rights is what ECtHR has nurtured.

In the Budayeva and Others v Russia (2008) case, the Court gave a glimpse of handling incidences of climate change impacts, such as floods and mudslides. The case involved several deaths and injuries caused by a mudslide, attributable to Russia’s failure to repair a dam. Upon recognising the severity of the incident and the applicability of the provision of right to life appearing in Article 2 to ‘any activity, whether public or not’, the Court’s focus was on an expansive reading of the right to life. However, the greening of right to life as undertaken by ECtHR in Budayeva is too cautious of an approach if compared to that adopted in the subcontinent. The unanimous opinion by the Court to the effect that there was ‘violation of Article 2 because there were injuries and deaths resulting from the alleged environmental manmade hazard’ is problematic in a sense that unlike sub-continent, the Budayeva approach did not read right to environment as an integral part of right to live with dignity as such.

It is not only the greening of right to life that we can find in ECtHR’s approach rather it has also been the greening of right to privacy. In Di Sarno v Italy (2012), the Court went on to recognise a right of the persons concerned to respect for their private life and their home and, more generally, to enjoy a healthy and protected environment to come within the purview of Article 8 of the European Convention of Human Rights.

There is very little in the European Court’s jurisprudence on broader issues as biodiversity, the environmental notion of inter-generational equity or precautionary principle. The African and Inter-American jurisprudence appear to be far richer in terms of environment than that produced by the European Court. Article 24 of the African Charter, on the right of all peoples speaks categorically of right to ‘a general satisfactory environment favourable to their development.’ This Article alone suffices to explain the approach of the Commission in helping peoples realise their right to environment as a substantive one.

In 1994, Ms. Ksentini, Special Rapporteur on Human Rights and the Environment for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, urged the adoption of a human right to a satisfactory environment, meaning a substantive right to environment. Human Rights Council seems to have moved after almost two decades by that urge. In March 2012 the Human Rights Council decided to establish a mandate on human rights and the environment, to study (amongst others) ‘the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and promote best practices relating to the use of human rights in environmental policymaking’. A textual interpretation of the mandate as well as the latest resolutions adopted by Human Rights Council on Human Rights and Environment gives the impression that the Council still does not recognise a substantive human right to environment.

Judicial enforcement of environmental rights is tainted with numerous challenges and more often than not faces scholarly criticisms. The notion of ‘environment’ with its associated lack of certainty and an inherent indeterminacy in terms of the contents, adds more layer to those criticisms. And as a cherry on top, comes the absence of a substantive right in the Constitution or the respective human rights instruments. The road to having a substantive right to environment seems coarse and rough; anything but easy. However, optimistic scholars like Karen Hulme expects that a substantive right to environment may sneak up through the surface as a bi-product of the greening approach. Hulme sees greening approach as ‘a transitional stage of environmental rights jurisprudence.

The writer works with Law Desk, The Daily Star.