Does The Environment Have Rights?
Updated: Apr 10, 2022
The Constitution of India, through several provisions, places a responsibility on both the state, as well as its citizens, to ensure the protection and preservation of forests and wildlife. This alludes to there being certain constitutional rights that are granted to the environment. However, the placement of these provisions within the Constitution indicates a distinctly anthropocentric disposition. In practice, human interest takes center stage, even in the context of environmental protection. The rights to protection of forests and wildlife, is inextricably linked to the rights of citizens. For action to be taken against environmentally degrading activity, the activity in question must also be proved to affect the rights of citizens. This begs the question of whether the Indian Constitution truly grants the environment any stand-alone rights, or if such rights exist purely to safeguard man’s interest in the environment.
Article 48A of the Constitution calls for the state to take measures to “protect and improve the environment and to safeguard the forests and wildlife of the country”. Article 51A(g) places a similar duty on citizens of the country to “protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.” On the face of it, these provisions seem to place an enforceable duty on both the state, and its citizens to act environmentally consciously. However, what is important to note is where in the Constitution these provisions are located. Article 48A is in Part IV, concerned with the Directive Principles of State Policy (DPSPs). DPSPs, unlike Fundamental Rights, are non-justiciable. They are simply ideals and broad aims to be kept in mind by the state during the formulation of policies and enacting laws. They are, however, not legally enforceable. Furthermore, the Supreme Court has time and again maintained a hierarchy between Fundamental Rights and DPSPs, stating that in case of a conflict between the former and the latter, the provisions embodied in the former would prevail. It has also held that “the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.” It is evident then, that the environment’s rights to preservation if located within DPSPs do not form a concrete basis of legal protection, as these rights are subject to being weighed against Fundamental Rights of citizens. Similarly, Article 51A(g) is situated in Part IV-A of the Constitution, i.e., Fundamental Duties. Here too, courts have held that Fundamental Duties are not legally enforceable, at least not in isolation. In State of Gujarat v Mirzapur, the Supreme Court analysed statutory provisions made in furtherance of Article 48A and opined that their Constitutional validity must be ascertained by testing the reasonableness of any restrictions these provisions may place on Fundamental Rights. It is evident that the Constitution exhibits a distinctly anthropocentric character. Actions alleged to be violations of Article 48A and 51A(g) are often examined in terms of their effect and potential infringement on the rights of individuals concerned. In short, the enforceability of the Constitutional protections of nature, is, in practice, solely dependent on whether the Constitutional rights of concerned individuals are also infringed upon.
This dependence on evidence of a violation of fundamental rights is evident in numerous judgements pertaining to claims of environmental degradation. Vellore Citizens Welfare Forum v Union of India dealt with the pollution by tanneries of surrounding water bodies in various districts of Tamil Nadu. Apart from claiming a violation of Article 48A and 51A(g), the claimants stressed heavily alleged violations of the rights to protection of life and personal liberty of concerned individuals, who were deprived of clean drinking water and pollution of agricultural land. Though the claimant succeeded in the suit, what is important to note here is that the claim of violations of Article 21 was essential for the actions of the tanneries, which were also in violation of Article 48A and 51A(g), to be punished. Though the court took cognizance of the pollution and environmental harm caused to surrounding water bodies, the violation of rights of the concerned citizens was an important element for judicial action to be taken. Similarly, in Narmada Bachao Andolan v Union of India, claimants therein challenged the environmental clearance extended by the Union, for the construction of a dam, stating that the environmental impact assessment for the project was incomplete. A claim was also made alleging the violation of the oustees’ right to life and personal liberty, stating that the design of the dam was without proper planning of “mitigative” measures and mechanisms for rehabilitation of the oustees. Here again, the alleged Article 21 violation was a key aspect of the claim. The court observed that there was no violation of Article 21 and the Fundamental Rights of the oustees were not violated as sufficient efforts were made towards rehabilitation. It was held that the environmental impact assessment was valid.
Though claims against environmentally degrading activity may be brought to courts citing specific environmental legislation such as the Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution) Act, 1974 and Forest (Conservation) Act, 1980, there exist no stand-alone Constitutional protection of nature, at least not without the supplementary violation of rights of the citizen. The Supreme Court, however, has on several occasions recognized the rights of nature in isolation, and in doing so, indicates how these rights may be effectively constitutionalized. In 2012, the Supreme Court took a non-anthropocentric view of the protection of nature under the Constitution. When dealing with the protection of the Asiatic wild buffalo, it stated that “environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric.” The court observed that under the present regime, humans take precedence and human responsibilities to non-humans are based only on the extent of their benefits to humans. It opined that the way forward was to adopt a more “ecocentric” “nature-centred” approach wherein humans and non-humans are granted equal protection of the law. The principle was taken further in Animal Welfare Board of India v A. Nagaraja. The Court herein analysed the legality of the practice of Jallikatu and the Tamil Nadu Regulation of Jallikatu Act, 2009 (TNRJ). It recognised that the TNRJ was extremely anthropocentric, and only addressed, in its provisions, the harm that would come to the people participating, and to the audience. The act failed to address concerns regarding the treatment and welfare of the bulls. The Court followed in the footsteps of TN Godavarman (2012), stressing the need for a more ecocentric approach. In its decision, the right to life and personal liberty under Article 21 was extended to non-human animals.
Courts have continued along this path of granting de jure personhood to provide some form of constitutional legal protection to nature. In 2017, The Uttarakhand High Court, in the case of Mohd. Salim v State of Uttarkhand tackled a PIL against illegal construction and encroachment along the river Ganga. The Court observed that the rivers Ganga and Yamuna aid in the “spiritual and physical sustenance” of the community. The Court also recognized the religious importance of the rivers to the Hindu community and relied on precedent to declare the two rivers to be persons/living entities, having the status of legal persons with the corresponding rights i.e., the right to life and personal liberty. This case undoubtedly raises concerns as to whether non-religiously significant rivers would be afforded the same legal treatment, and has an anthropocentric air to it, basing the worth of the rivers on their significance to humans. However, what is important to note is the court’s need to declare the rivers legal persons to ensure concrete Constitutional protection, unable to rely on only unenforceable Fundamental Duties and DPSPs.
It is evident that courts have resorted to blurring the line between human and non-human natural beings to provide constitutional protection to nature. This indicates the way in which to constitutionalise the rights of nature. Directive Principles and Fundamental Duties, by their very nature of being non-enforceable provisions, are ineffective in upholding these rights. For nature to be brought into the Constitution in a meaningful, and more importantly, enforceable way, nature needs to be granted fundamental rights on par with that of citizens of the country. As we have seen in Godavarman (2012) and Animal Welfare Board, granting personhood to nature is the court’s way of bringing about eco-centrism. Constitutionalising these rights in the same way as that of fundamental rights of citizens means that judicial intervention need not be relied on to move away from the anthropocentric stance of the Constitution as it is today. Actions that are environmentally degrading would not have to be measured in terms of their effect on the rights of individuals in order to be justiciable but would be liable for violating enforceable fundamental rights granted to nature. Without such an implementation, environmental protections continue to be dependent on, and enforceable only to the extent of man’s stake in its protection.
Author: Deviah P. Chinnappa
Editor: Mac Milin Kiran
*Deviah P. Chinappa is a 4th year BA. LL.B (Hons.) student at O.P. Jindal Global Law School.