Right to Healthy Environment in the Era of Globalization

8/13/2019 Right to Healthy Environment in the Era of Globalization

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Right to Healthy Environment: in the Era of Globalization

Author: Priya S. Dhanokar

B. Sc. .!." P.G.D. H R" SE# " $E#.

A%%t. Prof. in a&"

DES'% $( a& )ollege" Pune.

!ail *+: +hanokar,riya-gmail.com.

)ontact $o.: /01021310.

)o4 Author: !r. !ahe%h R. Hal+e

.!." P.G.D. H R" $E#.

Re%earch Scholar"

!ail *+: hal+e.mahe%h-gmail.com.

)ontact $o.: /02526/3/.

A. *ntro+uction:

Human Rights are the basic, inherent and inalienable rights, which

are very much essential in preserving dignity of human beings. These

rights are most essential and basic for sustaining the stability and

development of all the individuals across the world. Hence, a great

emphasis has been attracted towards the protection and preservation of

Human Rights at all the levels in the world. It is done through the

medium of various international treaties, conventions and other

instruments. These rights manifests themselves through different

categories of rights like, civil and political rights, economic, social and

cultural rights etc. Right to live in healthy environment is one of such

rights. Health of human being is most important factor of human life.

Right from birth, every human being desires to live in healthy

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environment. But due to urbanization, modernization and globalization

human beings are now unable to enoy this right of living in a pollution

free environment to the fullest e!tent. "s a matter of fact, for an

industrialized society the use of sophisticated technologies in production

of material re#uired for the development of social amenities on one hand

and improving the health standards as well as the #uality of life on the

other are very difficult tasks. "s a result, pollution becomes an

unavoidable hazard. Hence Right to Healthy $nvironment is now

recognized globally as a concomitant right of Right to %evelopment.

"ccordingly, most of the International &onventions like 'nited (ations

%eclaration of Human Rights, )*+ and &onvent of $conomic, -ocial

and &ultural Rights, )* have recognized the right to healthy

environment as a basic Human Right.) Thus, the ultimate aim of every

human society or association or /overnment is to develop human being

in healthy environment.

0n the contrary, with the advent of globalization and the

introduction of new technology, the need of protecting human beings

from violation of their Human Rights is increasing. "ccordingly many

mechanisms are evolved at global, regional as well as national levels to

protect and preserve these rights. However the efficacy of such

mechanisms has been #uestioned in the light of blatant human rights

1"rticle )1 of the 'nited (ations %eclaration of Human Right in )*+.

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violations and disregard for basic human dignity in nearly all countries in

one or the other form. 0n this backdrop, present research paper tries to

through light on various issues relating to environment vis2a2vis

development along with legal provisions and udicial response for the

same.

B. !eaning an+ Definition of Environment:

Basically the word, 3environment3 is derived from the 4rench word,

'environner' which means 3to encircle3 or 3to surround3.1 "ccording to

ancient Indian literature, the term, 3$nvironment3 is known as,

3Paryavaran'which is combination of two words, 3Pari3 near and 3Avaran3

means covering. Thus, it means the covering which is near or surrounding

the human beings.

The word environment has been defined differently in different

instruments and statutes . "ccording to the $nvironment 5rotection "ct,

)* the word, 3$nvironment3 includes water, air, land and the inter2

relationship, which e!ists among and between water, air, land and

human beings other living creatures, plants, microorganism and property.6

Thus the general meaning of the term environment is the condition or

circumstances that surrounds an organism. There are various components

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%r. "mod -.Tilak, 7$nvironmental 8aw7, -now 9hite 5ublications 5vt. 8td., 4irst $dition,1::*,5. ).

3-ection 6 of the $nvironment 5rotection "ct, )*.

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of the $nvironment. i.e. biosphere, lithosphere, hydrosphere and

atmosphere. "ll these components are getting badly damaged due to

different developmental activities that are carried out due to increased

industrialization and other developmental proects. The concept of

/lobalization though is necessary for development of human beings has

many ill effects on the environment which are discussed as under.

). Effect of Globalization on Environment:

/lobalization is the system of interaction among the countries of the

world in order to develop the global economy. /lobalization refers to the

integration of economics and societies all over the world. Thus,

/lobalization involves technological, economic, political, and cultural

e!changes made possible largely by advances in communication,

transportation, and infrastructure.

/lobalization has a positive impact on the $nvironment to some

e!tent but there are still some crucial negative impacts of /lobalization

on the $nvironment. The main negative impact of /lobalization on the

$nvironment is increase in the #uantity of industrial pollution. Besides

this, there is overuse of natural resources due to increased industrial

demands, damage to ecosystems due to population growth, decrease in

soil fertility due to e!cessive use of chemicals for more productivity and

so on. In the same way, with the advent of industrialization e!tensive

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deforestation has occurred world2wide which has also contributed in

degrading the $nvironmental balance. /lobalization also has another

negative impact on the $nvironment in the form of 3global warming3,

which is due to emission of greenhouse gases. This is the result of

increased industrialization and over increasing use of fossil fuels in the

developing world. %ue to emission of such gasses, the temperature level

has increased causing in melting of ice at polar regions. This has resulted

in increase of sea levels which has an e!tensive impact on biodiversity

and weather systems. This shows that, /lobalization has many ill effects

on the $nvironment as well as human beings.

D. Environment vi%4a4vi% Develo,ment4 Su%tainable Develo,ment:

"s a matter of fact, every individual has a Right to %evelopment and

while carrying out various developmental activities, environmental

degradation is caused as a necessary evil. -o there is a need to maintain a

balance between these two contradictory phenomenon. "s a result of this,

the concept of -ustainable %evelopment was evolved and is now has

become well recognized and appreciated across the world.

-ustainable %evelopment is a balancing concept between

development and environment. -ustainable %evelopment can be defined

as, the development that meets the needs of the present without

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

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Industries are of vital importance for the nation;s progress as they

generate foreign e!change and provide employment but having regard to

the pollution caused by it< the concept of -ustainable %evelopment is of

vital importance.

There are two principles included in the concept of -ustainable

%evelopment. These are, 5olluter 5ays 5rinciple and 5recautionary

5rinciple.

i. Polluter Pay% Princi,le:

This is one of the important principles covered under the concept

of -ustainable %evelopment. It involves remediation of damage caused

to the environment by the polluter himself. Thus, the polluter is liable to

pay the cost of individual sufferers as well as the cost of reversing the

damage to the environment.

"ccording to this principle, it should be no answer on the part of

such hazardous enterprise to say that, it had taken all reasonable care and

that the harm occurred without any negligence on their part.

ii. Precautionary Princi,le:

This principle insists to observe precaution before the actual

damage is caused to the environment. That is to take care before any act

is done, which has possibility to damage the environment. "ccordingly,

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the precautionary principle or precautionary approach states that if an

action or policy has a suspected risk of causing harm to thepublicor to

the environment, then the duty is imposed on that person to take

necessary steps for protecting and preserving the environment. This

principle implies that there is a social responsibility to protect the public

from e!posure to harm either to their health or to their environment

Thus the concept of -ustainable %evelopment protects the right to

pollution free environment of future generations even in the era of

globalization. Taking the basis of these concepts, various legislations

have been enacted, different policies are framed in order to regulate and

control all such developmental activities and in turn to protect and

preserve the environment. -ome of them are discussed below.

E. Right to Healthy Environment an+ egi%lative (rame&ork:

"ll human beings depend on the environment in which we live. "

safe, clean, healthy and sustainable environment is integral to the full

enoyment of a wide range of human rights, including the rights to life,

health, food, water and sanitation. Hence enumerable laws has been

framed at national as well as at international level for protecting,

preserving and maintaining #uality of the $nvironment including air,

water, wild life etc. 5resent point tries to through light on few of such

legal provisions as under.

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http://en.wikipedia.org/wiki/General_publichttp://en.wikipedia.org/wiki/Natural_environmenthttp://en.wikipedia.org/wiki/Natural_environmenthttp://en.wikipedia.org/wiki/General_public


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i. *nternational evel:

=any International &onventions, &onferences are carried out in

order to consider the measures for protection and preservation of human

$nvironment. The ever attempt in this area is the -tockholm &onference,

)*>1. It was the first International &onference on human $nvironment,

organized at -tockholm from ?une @ to )+, )*>1 at the initiation of

'nited (ations $nvironmental "gency. The &onference called upon the

/overnments and people to e!ert common efforts for the preservation and

improvement of Human $nvironment. The concept of -ustainable

%evelopment was propounded for the first time in this &onference itself,

which seeks to maintain balance between $nvironment and development.

It has also declared @th

?une as 39orld $nvironment %ay3. (e!t step in

this regards is the 9&$%, )*>.+ The 9orld &ommission on

$nvironment and %evelopment, )*> A9&$% headed by /iro Harlen

Bruntland proposed a set of legal principles for -ustainable %evelopment

and suggested for enactment of a global convention for the protection of

$nvironment. 4urther, for the same purpose and for arresting further

degradation of the $nvironment and to repair damage already done to it,

in the year )**1, the Rio $arth -ummit was convened at a global level.

=aintenance of ecological balance, prevention and control of

environmental pollution, preservation of our natural resources, disaster

49orld &ommission on $nvironment and %evelopment, 0ur &ommon 4uture, )*>

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mitigation and sustainable development are the basic factors of the 7$arth

&harter7, which is also called the 7Rio %eclaration7.@Besides, there are

many International &onventions, which seek to provide $nvironmental

protection measures.

Thus, International treaties, &onventions, &onferences and

5rotocols resulted in regulatory legislations to protect the environment in

several countries for framing policies as well as to protect and improve

$nvironment, preventing pollution, punishing environmental crimes, and

for compensating the persons affected by breach of protective provisions.

ii. $ational level:

a. )on%titutional ,rovi%ion%:

The &onstitution of India, which is the supreme law of land seeks to

protect the right to health of people and pollution free environment

through its various provisions as followsC

3. (un+amental right%:

5Rio %eclaration on $nvironment and %evelopment, 6) I8= >+, )**1.

4or $!ample, The &onvention on International Trade in $ndangered 4auna and 4lora, )*>6, The

'nited (ations &onvention on the 8aw of -ea, )*+ etc.

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4undamental rights are the basic rights of people. Right to healthy

$nvironment is one of them. In fact this right is not e!pressly conferred

by the &onstitution of India but is Implied interpreted as one of the

dimensions of Right to 8ife as provided under "rticle 1). Healthy

environment is the basic need of individuals for living life with human

dignity. "s per the broad view taken by the -upreme &ourt of India in its

various decisions,> Right to Healthy environment is directly related with

right to life and liberty under "rticle 1) of the &onstitution of India.

Hence, the ustifiability of right to healthy environment is based on right

to life and personal liberty.

This view of the -upreme &ourt of India is also reflected in the

decision of &hameli -ingh vs. -tate of '.5

In this case, it has been held

that right to life is not ensured by meeting only the animal e!istence, it is

secured only when the essential needs of man including food, water,

shelter, decent environment, education etc. are fulfilled. Beside this,

"rticle 1) also provides right to pollution free environment as given in

decision -ubhash Dumar vs. state of Bihar* in this case, it was held that

5I8 is maintainable for ensuring enoyment of pollution free water and

air, which is included in Eright to life;.

7-eeRe Noise Pollution Case "IR 1::@ -& 6)6.

"IR )** -& @+*.* "IR 1::1 -& 6@.

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6. Directive Princi,le% of the State Policy:

%irective 5rinciple of -tate 5olicy under 5art IF of the

&onstitution of India impose obligation on the -tate to protect the health

of people and also has imposed the fundamental duties on the -tate to

protect $nvironment.): . These provisions act as guidance that -tate

should fellow in achieving certain standards of living for its citizens.

"ccordingly, "rticle +2" added by the +1 nd "mendment "ct, )*>

re#uires the -tate to take steps to protect and improve the $nvironment

and to safeguard the forests and wild life of the country. Besides this,

"rticle 6*Ae provides for duty of the -tate in protection of the health of

people and to prevention of their e!ploitation by entering into avocations

unsuited to their age and strength due to economic necessity. 9hile,

"rticle +1 directs the -tate to make provisions for securing ust human

conditions for life and for maternity relief at work places and "rticle +>

of the &onstitution of India impose the duty on the -tate to raise the

standard of living and health of public.

In the decision of the =.& =ehta vs. 'nion of India,)) -upreme &ourt

held that these %irective 5rinciples of -tate 5olicy individually and

collectively impose a duty on the -tate to create condition to improve the

):

-ee Intellectual 4orum Tirupati v. -tate of " 5. "IR 1:: -& )6@:.

)) "IR )**) -& +1:.

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general health level of people in the country and to protect natural

$nvironment.

1. (un+amental Dutie%:

"rticle @)2" Ag of the &onstitution of India provides a

4undamental %uty for citizens of India for the protection of $nvironment.

In the decision of Intellectual 4orum, Tirupathi v. -tate of "ndhra

5radesh,)1

-upreme &ourt held that, under "rticles 1) and @)2" it is the

&onstitutional obligation of the /overnment to protect and preserve the

$nvironment.

In this way the &onstitution of India has made number of

provisions for protecting Right to Healthy $nvironment.

b. egi%lative ,rovi%ion%:

Besides &onstitutional provisions, there is a bulk of $nvironmental

8egislations in India. -ome of the important legislations are pointed out

hereunder.

The most important enactment in the field of protection of

$nvironment is, the 5rotection of $nvironment "ct, )*. =any

provisions like definitions of $nvironment, pollution, pollutants etc.,

functions of /overnment to protect the $nvironment, offences and

)1 "IR 1:: -& )6@:.

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penalties in case of violation of Right to Healthy $nvironment are

discussed under this "ct. It also provides for higher penalty in case of

continuous violation.

Besides this, there is the 5revention and &ontrol of 9ater 5ollution

"ct, )*>+ and 5revention and control of "ir 5ollution "ct, )*. These

are the special legislations enacted to control air as well as water

pollution caused mainly due to developmental activities and

industrialization carried out in the era of /lobalization. These acts e!ert

emphasis on the setting up of precautionary and safety e#uipments

before establishment of any new industry or continuation of the working

of old ones. These provisions recognize the need of preventing the

$nvironmental pollution instead of taking remedial measures after

having the $nvironment polluted.

In addition to this, there are other enactments relating to protection

of $nvironment. 4or instance, the 5ublic 8iabilities Insurance "ct,

)**), which enables the %istrict &ollector to determine immediate relief

to the affected persons< the (ational $nvironmental Tribunal "ct, )**@,

which creates tribunals to enforce the absolute liability principle< 5ublic

8iability Insurance "ct, )**), which has made it mandatory for the

occupiers of hazardous activities to provide minimum relief to the

victims. Thus these legislations if implemented properly, will help in

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protection and promotion of Right to Healthy $nvironment more

effectively.

(. Environmental Protection an+ 7u+icial Activi%m:

9ith reference to conte!t of role of Indian ?udiciary in protecting

and preserving the environment it is revealed that, the -upreme &ourt of

India has tried to maintain the balance between the process of

development and the protection of environment , which can be witnessed

through many of its udgments. " substantial contribution of the higher

udiciary is provided by the e!panded interpretation of "rticle 1) of the

&onstitution of India which provides that, right to life includes right to

live in safe and healthy environment. )6 In a %oon Falley case, )+ the

-upreme &ourt of India has read the right to clean environment as a part

of right to life vide "rticle 1) of the &onstitution of India and held that

the permanent assets of mankind cannot be allowed to be e!hausted in

the name of globalization and industrialization.

4urther, in its another landmark udgment, -hriram 4oods and

4ertilizers Industries v. 'nion of India)@which is popularly known as

30leum /as 8eak &ase3, the -upreme &ourt of India has articulated a

new standard of absolute liability to prevent denial of right to healthy

13-ee =.& =ehta v. 'nion of India "IR )*> -& *@.

14

A)*@ 1 -&& +6).

15"IR )*> -& *@.

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environment in the hands of the industrialists engaged in hazardous

activities. "ccording to this principle, the industry would be absolutely

liable for the loss caused to the health of people as well as for the

environmental damage done by the hazardous and inherently dangerous

activities carried on by it.

Get, another instance of udicial attempt in maintaining the balance

between need of industrialization on one side and protection of

environmental degradation on the other is revealed in Fellore &itizen3s

9elfare 4orum v. 'nion of India. )In this case, the ape! court held that,

such industries though are of vital importance to the country3s

development, they cannot be allowed to destroy the ecology, degrade the

environment and pose a health hazard and thus cannot be permitted to

continue their operation unless they setup pollution control devices. The

court further added that, such industries are of vital importance for the

country3s progress as they generate foreign e!change and provides

employment avenues but having regard to pollution caused by them,

principal of 7-ustainable %evelopment 7 has to be adopted as a balancing

concept between ecology and development.

Thus, it is submitted that, the udiciary through its various verdicts

has rightly imposed an absolute and non2delegable duty on enterprises

16A)** @ -&& @:.

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engaged in Hazardous or Inherently %angerous "ctivities posing a

potential threat to the health and safety of the persons working in the

factory and residing in the surrounding areas so as to ensure that no harm

will result to anyone.

(. )onclu%ion:

/lobalization is important to every nation for its development. But

due to globalization, large number of industries are developed and they

use the petro2chemical products which increase the environment al

pollution . However right to healthy environment is the basic human right

of all people around the world. -o, the era of globalization imposes the

duty upon -tate, &itizen and Industrialists to protect and maintain the

healthy environment. "ccordingly, various &onventions, &onferences

and &harters etc. have been framed at (ational and International levels so

as to provide proper measure for protection and promotion of the

environment. ?udiciary has also played a vital role in recognizing and

enforcing this right by adopting the new concepts like, -ustainable

%evelopment, Rule of "bsolute 8iability etc. In short it can be said that

developmental activities and $nvironmental degradation are parallel to

each other. 0n the one hand, for individual3s development

industrialization and globalization are important but on the other hand

these activities cannot be carried out without compromising the right to

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healthy environment of individuals. It is not possible to root out

environmental degradation completely. Hence the only remedy lies in

adopting the concept of -ustainable %evelopment and thereby attempting

to minimize the environmental pollution. This is nothing but the $ee+ of

#ime8

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Right to Healthy Environment in the Era of Globalization