Analysis

Environmentalism in South Asian Constitutions: Have we succeeded in achieving goals?

Jivesh Jha and Anmol Gupta  

Jivesh

Even as the member states of South Asian Association for Regional Cooperation (SAARC) have given stellar performances at Stockholm, Rio and among other international conventions to the emerging international commitment for sustainable development, the Constitutions of Bangladesh, Pakistan and Sri Lanka are yet to endorse any fundamental rights relating to environment.

Anmol-Gupta

The critics argue that the Pakistani parliament failed to take cognisance of environmental rights as Constitution of Pakistan-1973 was drafted too soon after the Stockholm Convention. Surprisingly, the statute has witnessed scores of Constitutional amendments after its enactment and not even a single provision has been brought through amendment.  The Republic of Pakistan, Bangladesh and Sri Lanka have arrived at international stages on number of occasions to influence the global policies. Yet, the parliaments (of these states) have not incorporated the messages of conventions within their Constitutional frameworks and the task of enshrining any fair corpus of Constitutional provisions relating to environment remains incomplete.

Still, the Sri Lankan charter in its Directive Principles of State Policy (DPSP) envisages that the state is obliged to protect, preserve and improve the environment for the benefit of the community [Article 27(14)]– the same is not justifiable in any court of justice [Article 29].

It’s a well-settled principle that civil and political rights should encompass the pantheon of human rights while ensuring the inclusion of environmental rights. The authors believe that the governments of Sri Lanka, Pakistan and Bangladesh are little serious about the growth of environmentalism in their country. How can a democratic state ignore the rights of clean environment?

Judicial activism in Bangladesh, Pakistan, and Sri Lanka

The scholars hailing from ‘Realist School of Jurisprudence’ may argue that it’s the judicial department which can play a significant role in declaring and inking a law. Yet, the believers of ‘Theory of Social Contract’ may argue that it’s the parliament which is the very authority to give birth to a law for their people. The former school of thought shows adherence to judge-made law while the latter insists on parliamentary legislations.

In this context, in a landmark judgment of Bulankulama v. the Secretary, Ministry of Industrial Development, the topmost Court of Sri Lanka ruled – “Human beings should be at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” The Court further wrote that in order to achieve sustainable development, environmental protection should constitute an integral part of the development process and cannot be considered in isolation from it.

Much like Sri Lanka, the apex court of Pakistan in the case of Shehla Zia v. WAPDA held that right to an unpolluted environment falls within the ambit of Article 14, which provisions for right to live a dignified life.

Likewise, the apex court of Bangladesh in the case of Dr. Mohiuddin Farooque v. Government of Bangladesh held that right to clean environment is a fundamental right. The Court argued that the ecological balance free from pollution of air and water, and sanitation is a must in a civilised society.

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Constitutionalism in South Asia   

The Constitution of Afghanistan envisions that right to clean environment would be a fundamental right for every Afghani. In its Article 15, the charter imposes an obligation on state to adopt necessary measures to protect and improve forests as well as the living environment. Also, it has been provisioned that a person can knock the door of National Human Rights Commission (NHRC) to seek remedies on violation of fundamental rights and personal rights [Article 58].

While talking about Constitutional arrangements in India, three Articles—Article 48A, 51A (g) and Article 21—are of intrinsic value as they show deep commitment of state towards ecological values and environmentalism. The Constitution of India under Article 48 A directs the State “to endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.

Article 51A (g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment, including forests, lakes, rivers, wildlife and to have a compassion for living creatures. Moreover, Article 21 declares that every right to live a dignified life would be fundamental rights. By invoking this Article, the Supreme Court has made dynamic interpretations to accelerate the cause of environmentalism and made it clear that right to clean environment is a sacrosanct fundamental right within the ambit of Article 21.

In a welcome move, the Constitution of Bhutan provides a separate chapter (i.e. Article 5) for environment which contains a long list of rights. “Every Bhutanese is a trustee of the Kingdom’s natural resources and environment for the benefit of the present and future generations and it is the fundamental duty of every citizen to contribute to the protection of the natural environment, conservation of the rich biodiversity of Bhutan and prevention of all forms of ecological degradation including noise, visual and physical pollution through the adoption and support of environment friendly practices and policies,” reads Article 5(1). The succeeding clause obliges the state to adopt all necessary measures to prevent pollution for ensuring a safe and healthy environment for the people.

The charter commands that a minimum of 60 percent of Bhutan’s total land should be maintained under forest cover for all time [Article 5(3)]. The statute also empowers the parliament to enact as much number of environmental legislations. It has also been provisioned that the parliament may by law declare any part of the country to be a National Park, Wildlife Reserve, Nature Reserve, Protected Forest, Biosphere Reserve, Critical Water Shed and such other category meriting their protection. Like India, the Bhutanese statute also imposes a fundamental duty on every citizen to conserve the environment [Article 8(2)].

In contrast, the Maldivian Constitution envisages that the state has a duty to protect and preserve natural environment, biodiversity and beauty of the country. The cornerstone has been set by Article 22 which provides that the state has a fundamental duty to foster sustainable development and ecological balance. Further, the succeeding provision—Article 23—advocates for healthy environment.

Having gone through the various fundamental documents, now let’s analyse the arrangement of environmental rights embodied in Nepali Constitution, the world’s newest Constitution which was unveiled on September 20, 2015.

The Nepali charter explicitly and authoritatively provisions that the right to clean environment shall be fundamental right. Beginning with a marginal note of “Right regarding clean environment”, Article 30 envisages that every person would have an inherent right to live in a healthy and clean environment.

In a major breakthrough, the Nepali charter ensures that the victim of environment pollution ‘shall have right to’ seek compensation from polluters [Article 30(3)]. In this way, the Constitution succeeds to acknowledge the celebrated concept of “polluter pays principle.” Meanwhile, Article 35 provides that every citizen would have (right to) access of clean water and hygiene.

Apart from fundamental rights, the Directive Principles also offer a long list of environmental rights that enable the state to adopt necessary measures for conservation and protection of environment. The provisions encompassed under Article 51 are of natural significance as they command the state authority to adopt all possible measures for ensuring the growth of forests, flora and fauna, Ayurveda and pollution-free river systems.

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International conventions

The United Nations on November 10, 1980 emphasised on the purity of drinking water in “International Drinking Water Supply and Sanitation Decade” and made an obligation on the signatories to provide clean drinking water to their citizens as access to drinking water has been globally termed as fundamental rights.

The UN Conference held at Stockholm felt the need for a common outlook and principles to inspire and guide the world in preservation and enhancement of the human environment which will indirectly lead to the economic development of the world. Reaffirming the objectives of this declaration, the Rio Declaration on Environment and Development, 1992 was held with a view to establish a new and equitable global partnership to combat with environmental pollution.

The Convention on Biological Diversity, 1992 is chiefly concerned with the intrinsic value of biological diversity. The preamble of this convention talks about the preservation of biological diversity which has been significantly reduced by certain human activities. Convention reaffirmed that the states have sovereign rights over their own biological diversity and it casts an obligation on the signatory states to use their biological resources in a sustainable manner.

The journey of environmental protection started from Stockholm Declaration (1972) to Rio Declaration (1992) and then to Johannesburg Declaration on Sustainable development, 2002. To achieve such development, various global programmes and Agenda 21 principles were laid down. The Rio Summit was a significant milestone that succeeded to set a new agenda for sustainable development. At Johannesburg summit, the significant progress has been made towards achieving the global consensus and partnership amongst all the people of our pretty planet in order to give effect to the visions of sustainable development.

Lessons for Nepal

It’s advisable for the Federal Democratic Republic of Nepal to lay down a minimum standard to protect the health of citizens due to environmental factors. In this regard, the judicial department could play an instrumental role in helping to ensure that a person’s fundamental rights (to clean and healthy environment) are upheld.

The Central government under Schedule-V, entry 27, State governments under Schedule-VI entry 19, and both governments under Schedule-VII entries 12, 18 and 23 have mandates to act on national ecology and of course, on sanitation, clean and healthy water, wildlife conservation or afforestation. Nevertheless, there are ways that they could partner with private citizens as well as non-government organizations (NGOs) for realising the goals of environmentalism.

The new Republic should take a leaf from Universal Declaration of Human Rights (UDHR), Stockholm Declaration, or Rio’s approach to ensure that citizen’s health is secured. The provincial governments should be directed by the Centre to prepare and publicly disclose a plan for air and solid waste management and prepare a report annually to demonstrate the progress on that plan. The Central government could formulate a policy that requires that the government would block grants allocated for the Provincial governments if they fail to comply with the plans of Central government aimed at ensuring hygienic environment. Also, the government could take lessons from a groundbreaking verdict of the apex court of India wherein the Court in the case of Murli S Deora v. Union of India (2002) observed that smoking at public place is an offence. The Court empowered the police staffs to slap penalty.

Similarly, in the case of MC Mehta v. Union of India (1987), issuing directions, the topmost Court pronounced that the environment education must be made a compulsory subject in schools and colleges. Fortunately, environmental science has been introduced as a compulsory subject in India from school education to university level (in compliance of this verdict).

The South Asian nations are yet to adjust a harmonious relationship between mushrooming industries and environment. We don’t pay disregard to the development of industry. However, the enforcement authorities should come in motion to slam the industries’ causing pollution. The ‘environment impact assessment’ should be categorically done for every industrial establishment.

Further, the highest court of India ruled that causing noise pollution in the name of religious activities is bad. The Court in the case of Church of God in India v. KK RMC Welfare Association (2007) held that prayers performed through voice-amplifiers or beating drums disturbs the old and infirm persons, and students having their sleep in early hours. In this light, the much admired commentator of Environmental Law Dr PS Jaswal in his book Environmental Law observes that, “Noise pollution is a shadowy public enemy whose growing menace has increased in the modern age due to rapid growth of urbanisation, industrialisation and advancement of science and technology.”

While celebrating the 44th World Environment Day this year with the theme of “Beat Plastic Pollution”, it’s high time for the South Asian states to evaluate whether they have succeeded in observing the international commitments made at different stages.

Above all this, our Hindu philosophies were a step ahead in spearheading environment-friendly messages. For example, Atharva Veda says that pure water is an effective medicine to cure and prevent all diseases. It also advocates for the protection of wildlife and domestic cattle. Likewise, ‘Yajnas’, the sacrificial fire, used to be performed to purify the environment and also to bring purity and prosperity in every walk of life. Moreover, the Christianity and Islam also preached the importance of water and its magnificent necessity.

While celebrating the 44th World Environment Day this year with the theme of “Beat Plastic Pollution”, it’s high time for the South Asian states to evaluate whether they have succeeded in observing the international commitments made at different stages. An added responsibility lies on India to plan a better future environment since India has been declared as global host by the United Nations for this year’s Environment Day celebration.

World community needs to reaffirm its fresh commitment towards a cleaner and sustainable planet, without which the themes of World Environment Day would not materialise.

The writers are students of LLM at Uttaranchal University, Dehradun, India.    

Published on 5 June 2018

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