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Climate Justice: Beyond the Ambit of Article 21

Author : Kumari Simran (Central University of South Bihar)

 Introduction

‘Right to life’ enshrined in the Article 21 of the Constitution is the widely interpreted article to lead a happy and dignified life. The judiciary has creatively elucidated the term right to life to include ‘all the basic necessity for human existence’. Even the constitution-makers must not have visualized the ambit of Article 21. Climate justice also known as ‘Environment Justice’ is one among such wide interpretations. Thus, it is right to say that albeit several other Environmental statues have been legislated but there is a close nexus between the environment and the Constitution of India.

Climate justice as defined by the Supreme Court in the case of Subhash Kumar v. State of Bihar in 1991, right to life under Article 21 is a fundamental right and includes the right to pollution free air and water for full enjoyment of life. Environment rights that helped emerging the theory of climate justice are per se a controversial term. On contrary to the Supreme Court’s take on Environmental justice, different Conventions and Reports have tried to make it more descriptive and broader. For instance, the Ksentini Report sets almost 15 rights to environmental rights. The United Nations Economic Commission for Europe (UNECE) recognizes citizen’s environmental rights to information, participation and justice to promote greater accountability and transparency in environmental matters. Rather conclude, it perhaps ideal to say, environmental justice is a right to clean and safe environment which includes the right to safe drinking water, clean air, safe food.

History of Article 21

Let us first understand the traditional approach to this Article to infer a better view of the journey of Climate Justice in India. The traditional legal provision of Article 21 was narrowed to a conclusion that a legal procedure can deprive a person of his right to life. Nevertheless, the case landmark case of Maneka Gandhi, overturned this approach of the court. It was held that legislative procedure to deprive an individual’s right to life must be just, fair and reasonable. Thus, a vogue of expanding the horizon of the right to life and personal freedom came into limelight.  

Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (1985), was the earliest case relating to the environment where the apex Court held that it is a right of the people to live in a healthy environment. The similar judgment was seen in the case of Subhash Kumar v. State of Bihar (1991) where the court explicitly upheld that right to life under Article 21 is a fundamental right and includes the right to pollution free air and water for full enjoyment of life. Then the leading judgment in the case of M. C Mehta v. Union of India (1996) where the court said it is the government who has the duty to to protect and improve the quality of the environment from any pollution and it was the fundamental duty of every citizen to protect and improve the natural environment. The theory of absolute liability under tort law was also interpreted in this case; giving prioritization to a healthy environment as they significantly hit the environment and infringed the court’s judgment in Subhash Kumar case.  

However, how the need for such fundamental right emerged? Let us analyze this through the window of social segregations-culture, income, ethics, race, as they are the major concern for its global emergence. People all over the world are sequestered on such divisions who experience wildly different quality of air, water and life because of lack of opportunities, money, and backwardness. Besides social divisions, the emergence of industrialization, globalization, which leads to over-extraction of natural resources, has deteriorated their condition. The quality of environment gets contaminated ultimately disturbing the ecosystem. Every country houses low-income communities who are more vulnerable to the polluted environment thus, who are least responsible suffer the most by consuming only contaminated air, water and food. This is the black face of our only Earth, which is conspicuous to show the income disparity and a failure of the theory of equality. Hence, the concept of environmental justice came forth as a fundamental proposition. It is the intersection of climate change (global warming) and the social justice. 

In the Indian context, the right to life also includes right to a healthy life which is only possible when people despite of their financial benchmark gets right to free air, water and pollution free environment or simply climate justice.  

Climate Justice and the Constitutional Provisions

As far as India is concerned, healthy environment rights theory, in the Constitution is vague but the judiciary has played an active role from rescuing its people to granting the right to a healthy environment under the constitutional provision of Article 21. Articles 21, 48A and 51A(g) of the Indian Constitution protects the right towards environmental justice.

Article 21 reads:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

According to Article 48A:

The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

And, Article 51A(g) mentions:

to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures

Article 21 is a fundamental right enshrined in the Part III of the constitution, which played a pivotal role in establishing the principle of the right to a healthy environment. Article 48A and Article 51A(g), DPSP and Fundamental Duties respectively, are not enforceable in the Court of law. Nonetheless, these articles have helped the court to conclude the responsibilities of the government and the people towards the environment. However, if the Articles 48A and 51A(g) could have been made enforceable, it would have been much easier to question the obligations of the government and its people towards the environment.

Government has reportedly been seen defending its stand on the environmental justice. Required measures are not being taken seriously towards a clean and safe environment and that the failure of several initiatives to make people responsible for their duty of keeping clean and healthy nature is rather evident. The tribal people living in the jungles, who work vice-versa with the environment to fulfill their demands from the environment, are the worst sufferers but could not seek their rights. The judiciary yet should strive to rescue them by enforcing their rights and responsibilities.

Environmental justice and the North-South Divisions

The world is now more concerned about climate change and the global warming effects. Different conventions, protocol, conferences have taken place to control the climate degradation. The Stockholm Conference in 1972, Earth summit in 1992, UNFCC in 1992, UN Convention on Desertification in 1994, Kyoto Protocol in 1997, UN World Summit in 2005, UN Conference on Sustainable Development in 2012, Paris Agreement in 2015, etc are some of the notable measures during the last 50 years to save human species and the planet. Latterly, a predominate debate between the developed and the developing countries, to minimise and control the threat of global climate change is contesting. It is also known as the North-South debate in global environmental politics. It is been argued that the poor and under-developing South countries contribute less to environmental degradation than the rich and developed North countries. Such differences exist due to industrialisation, less resources and huge demands. Other conditions can be geographical, social, political that affects global and climate change drastically.

Conclusion

To sum up the discussion, climate justice is a dynamic theory for environmental protection and environmental rights. No doubt, the wide amplification of the right to life under Article 21 by the judiciary in India is evident for the dynamic jurisprudence. Through several landmark judgments and interpretations of the unenforceable provisions of the Constitution have clearly explained the rights of the government and the society towards the environment. The scope of the right to life includes living with dignity in a healthy environment free from the danger of diseases and infection. Maintenance of health, preservation of the sanitation and environment has also been held to fall under the purview of Article 21.

Development, industrialisation drastically affects the environmental justice. Thus, scientific,  sustainable and feasiable measures must be used to prevent further depletion. For instance, a technology, which could help in uprooting the trees without damaging its roots is comparatively better than cutting it down to suffice the desires of human folks.

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