ORIGINALLY PUBLISHED IN MANUPATRA
By- Shruti Khanna*
INTRODUCTION
The two major things on which the life of billions of people sustain is Economy and Environment. Without economic transactions and trading or business activities, life would go back to what the early men experienced and habited in, and without livable environment no living creature whatsoever shall sustain to experience anything. On the other hand, trade can have both positive and negative impacts. Of course trade expansion can cause extensive degradation but on the brighter side, trade leads to economic growth and that could help in bringing up technology that could deal with betterment of the environment. What becomes extremely crucial to understand is that both the things should work hand in hand but the harsh reality is how far this stands true? According to “Article 19(1)(g) of the Indian Constitution, all citizens of the country shall have the right to practice any profession, or any occupation, trade or business.”[1] On the other hand, right to Wholesome Environment forms an essential part under Article 21 of the Indian Constitution which is Right to Life. The basic approach of including environment protection under “Right to Life and Personal Liberty”[2] is that there would be no peaceful enjoyment of life without the nature. However, the problem lies when the balance between the two rights is not maintained making a huge problem for the population. Though the constitution provides for both the Right to Profession, Trade and Business and the Right to Wholesome Environment, the balance is often not maintained and hence being disproportionate. The Environment is extensively depleting leading to climate change and further various natural calamities harming thousands of species. The need is to focus more on environment protection than anything because if no environment is left, no species of living beings will survive and therefore the Right to Trade focusing on economy would not even be a question.
Not just the local laws of a country matter with respect to trade and its constant link with environment, the WTO itself has sustainable development and conservation of nature and protecting the of the environmental condition as its basic achievable goals. These goals are mentioned in the Marrakesh Agreement which complement the objective of reducing trade barricades. Further, the Doha Development Agenda includes negotiations with respect to trade and environment. Moreover, an environment concern is a global concern, it affects the entire world, and policies should be made that have a long term approach.
Mostly there are different regulations and protocols that are to be followed by a developed country than that of a developing country. The same is required as developing countries would engage in more activities that could harm the environment as their target would be to focus more towards development. On the other hand, the developed countries have already caused harm to the environment while they were on their path to development. So their focus should be towards the betterment of environment or at least not causing any harm to it. Therefore, when the concern is about right to profession, trade, and commerce and the right to wholesome environment there stand different regulations and laws made in developed and developing countries. Science and research when connected to political and economic development even though has provided the world with several profits have seriously disrupted the environment.[3]
RIGHT TO ARTICLE 19(1)(g)- RIGHT TO PROFESSION, TRADE/BUSINESS AND OCCUPATION
Article 19(1)(g) guarantees all the citizens the right to practice any profession, or to carry on any occupation, trade or business.[4] However, this right is not an out-and-out right and it subject to reasonable restrictions as per Article 19(6). Reasonable restrictions mean that the state or an authority in power can put a limit on exercising that right for a larger public good or public welfare which is more essential than trading or business. One of such restrictions is put on the above activities when they cause harm to the environment. There should always be a balance between trade and environment and therefore the judiciary has to look into the same while deciding cases. The problem is that while practicing the right as per Article 19(1)(g) various industries, factories, tanneries do not care to look at the negative impact of the same on the environment. On the name of fundamental rights such harmful activities cannot be allowed. It can be rightly said that it is a judicial trend in India to balance trade and environment in India.
In the landmark case of M.C. Mehta v. Kamal Nath[5], the Supreme Court applied the public trust doctrine in order to protect and preserve the Land near the Span Motels/Resorts on the banks of river Beas. The court held that interference with the land which was done by the motel caused diversion in the flow of water and therefore a suo moto cognizance was initiated to stop the degradation of the environment. It was further contemplated that the state is the trustee of the natural resources and the state has the duty to protect the same. The lease of Span Motels was quashed and a full expenditure of refurbishment of the land to its original natural condition shall be paid by Span Motels was ordered. It was further ordered by the court to remove the entire construction made on that piece of land. This case proves how reasonable restrictions can be implied by the court on various trade and business activities if it impacts the environment.
The Court of Gujarat, Abhilash Textiles v. Rajkot Municipal Corporation[6], the petitioners had the business of dyeing and printing machineries. Due to their activity a mass amount of dirty water was discharged from the workshop on the open roads and communal drainage systems. They further held that not allowing them to conduct their business was violating their fundamental right to trade, profession and business under Article 19(1)(g). The court raised a question that can people be allowed to exercise their right to carry on business as per Article 19(1)(g) when they are initiating nuisance and health hazard to public at large? It was held that if the petitioners wish to carry on their business they will have to incur the expenditure and provide for decontamination plan before discharging the waste water on public road and in the drainage system. No one can be permitted to reap profits at the expenditure of public health and this is the command of law. Fundamental duties under Article 51-A (g) and Article 48 are to be kept in mind by everybody as they are focused towards improving the environment.
In the case of Arjun Gopal and Ors. v. Union of India and Ors.[7], the writ petition was filed on behalf of three infants by their next friend, their fathers who were concerned about the health of their children as infants are more vulnerable to air pollutants and can lead to various problems such as asthma, coughing, bronchitis, etc. Seasonal crop burning, indiscriminate dumping of pollutants and firing crackers during the festival of Diwali worsen the air quality and hence contributed to air pollution significantly. Selling and manufacturing of fire crackers was to be banned. It was contended from the several fire crackers sellers and distributers that it was against their fundamental right to practice any trade, profession and business. Further, it would cause them substantial loss in revenue and unemployment. However, this cannot be done on the cost of environment. The Union of India suggested few measures which were accepted by the court to bring a balance of interests and rights. Only crackers with reduced emissions and green crackers were permitted to be manufactured and sold. The sale shall only be done through authorized traders and with permitted orders. No e-commerce websites such as flipkart, amazon, etc. shall accept any online orders with respect to crackers. Only permitted and checked crackers with specific chemical will be sold. Other than that, there will be specific timings allotted during which the crackers can be fired. There will be general awareness done with respect to firing crackers. If the above conditions are not followed and fulfilled the selling and manufacturing along with using these crackers shall not be allowed. This decision taken by the Supreme Court shows us a balance made by the courts with respect to trade and environment.
ARTICLE 21- RIGHT TO WHOLESOME ENVIRONMENT
When the question is about protection of life and personal liberty[8], it incorporates various things such right to privacy, right to information and amongst all of these, there is right to wholesome environment. Right to wholesome environment is considered under Article 21 of the Indian Constitution because it is not wrong to say that every individual has the right to pure and clean air, water and land. There would be no enjoyment of life and no fulfillment in life without untainted natural resources. Right to healthy important means right to live with dignity. Life, culture and society are main aspects of a society and their maintenance is essential and therefore is regarded as a fundamental right. This was initially discussed in the case of Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P.[9] It was observed that every citizen has an unalienable right to enjoy a decent class of life in view of Article 21.
In the case of Rural Litigation and Entitlement Kendra v. State of U.P.[10] In this particular case in the Mussourie hill range of the Himalayas, the activity of quarrying was carried out of limestone. This resulted in caves and slumps being made as the mines were being dug deeply which is illegal. Many landslides, blockage of water happened which led to destruction of life, cattle and property. It was clear that there is harmful effect on the environment because of the mines and it was ordered to reforest the area which was damaged by the mining activity. It was held that the state can take measures to curb hazardous activities in order to protect the environment. In the case of T. Damodar Rao[11], the High Court of A. P. held that the enjoyment of life comprises the security and safeguarding of nature’s gifts, without which life cannot be experienced. When there is constant environment pollution, it should be considered as a violation to Article 21.
Similarly, there are various other landmark cases that mark the importance of right to wholesome environment to be considered under Article 21. Years back in the case of Oleum Gas Leak[12] the Apex Court held that the right to live in pollution free environment forms part of fundamental right to life under Article 21. Not just limiting to fundamental rights, the right to wholesome environment should be treated as Human Rights Concern was quoted by Justice M.J. Rao in the case of A.P. State Pollution Control Board v. Prof. M.V. Naidu.[13] In the case of Subhash Kumar v. State of Bihar[14], the Supreme Court held that every citizen has the right to live which comprises the right to satisfaction of contamination-free water and air. If there is anything that endangers such a right, a citizen has the right to recourse to Article 32 of the Indian Constitution for removal of effluence which is endangering the life.
Just as fundamental rights, directive principles are also important when the matter is with respect to environment. Article 47 of the Indian Constitution which states that it is the duty of the government to take due care about the hazardous activities carried on and to lower them so that least amount of damage is caused. It is to understood that health and environment go hand in hand. If there is no clean environment, high level of pollution, extensive climate change due to human activities, all of these will ultimately harm the health of species. So it is extremely crucial to have laws and policies. Articles 48-A and 51-A(g) are also special provisions that are concerned with environment. According to Article 48-A, it is required that the state shall take measures to shield and recover the environment and to maintain the forests and wildlife of the nation. While according to Article 51-A(g), mentions “it is the responsibility of the citizens to protect and improve the natural environment which is inclusive of forests, lakes, rivers and wildlife.”[15] Even though directive principles of state policy aren’t enforced to the extent of fundamental rights, it is to be kept in mind always while framing policies or making decisions.
When we discuss Article 21 with respect to right to wholesome environment, another article should be considered which is Article 19, Right to know also forms part. Now Right to know/ Right to knowledge is also connected to environment as each civilian has the Right to know what decisions the government is taking with respect to environmental issues. In the case of Research Foundation for Science Technology and Natural Resources v. Union of India[16], it was held by the Supreme Court that Right to information is essential for protection of the environment and human health and both of these form part under Article 21.
CAN SUSTAINABLE DEVELOPMENT BRING BALANCE?
The World Health Organization and the World Economic Forum and various other bodies have recognized the global problems of air pollution, climate change, environmental degradation and of course water scarcity as one of the major threats in the world and how in the coming years life would get difficult because of these increasing issues. There is a constant rise in the population and which will further increase problems like hunger and famine. The one side of the truth is no matter how much the effect is on the environment, there is a need to have economic activities in process. The other side of the truth is that economic activities and human interventions cause humongous amount of destruction to the planet. Environment and Economy are both essential for the survival. When such a situation is in place, it becomes significant to find equilibrium where both can go hand in hand with minimal damage to the environment and the people. Sustainable development should be followed everywhere globally and not just one particular country. There are three elements of Sustainable development- Economy, Environment and Social. Sustainable development is necessary to protect natural resources and environment in order to maintain an ecological balance. The problems that are often identified are depletion of finite resources, over-use of non-renewable resources, pollution, inequality in respect of economy and politics, extinction of species and land spaces. When there are restrictions put on trade there can few losses, however these losses are outweighed by the gains that achieved from improved environmental conditions. While traders and businessmen are always of the view that there should be minimal intrusion of the government and the state, the environmentalists will always have an opposing view, it is the state that makes regulations which are then to be followed by all. The United Nations Development Programme had set 17 development goals so that all the economic and developmental activities have a sustainable approach and aim to protect the nature. There is an urgent need not just to India but to other countries as well to have a sustainable approach and have sustainably led trade and economic practices in order to safeguard the future.
CONSTITUTIONAL LAWS IN OTHER COUNTRIES
The United States of America, does not have a very strong governmental authority in matters of environmental issues and therefore doesn’t overtly delivers a primary right to a clean environment.[17] A lot of people in that nation have suffered from environmental threats and hurdles. There have therefore been various environmental justice movements by the citizens of the country demanding for protection from effluence. Just like India, Poland has also incorporated constitutional provision which guarantees the citizens the right to a clean environment.[18] Article 71- Chapter VIII gives the people right to institute and have a clean nature but also a duty to conserve it. The constitution however inputs the duty on the people for a clean environment. In Brazil, in they year 1988, the nation had adopted statutory environmental laws which are legally enforceable. It asserts that “there is a right to an ecologically balanced environment which is essential to the wholesome quality of life.”[19] Like Brazil and India, Chile also provides its people with a constitutional right to clean unharmed environment. It pledges “the right to live in an environment free from contamination.”[20] The Chilean Constitution has established “Protective Action” process.[21]
CONCLUSION
While looking at the various cases with respect to environment, it can very well be seen that the courts have used various principles and legal enactments in order to guard the ecosystem. The courts have tried to bring up environmental awareness to public at large. When we talk about right to life, of course right to healthy environment is necessary but so is being able to conduct economic activities in order to sustain. As much as preservation of environment is important, practicing of trade, business and profession is also crucial. Therefore, the term Sustainable Development was brought out as a way to bring out the balance. Trade cannot be stopped however the same should be done with sustainable development. If the environment and resources are not taken off, it would be impossible for life to sustain and then there would be no point of fighting for right to trade, profession, occupation and business.
* III Year, B.A.LLB. (HONS), Institute of Law, Nirma University.
[1] India Const. art. 19. cl. 1(g).
[2] India Const. art. 21
[3] Mas Achmad Santosa, The Right to a Healthy Environment: International Law Perspective, 2 Indonesian J. Int’I L. 229 (2005).
[4] India Const. art. 19. cl. 1(g).
[5] (1997) 1 SCC 388.
[6] AIR 1988 Guj 57.
[7] AIR 2018 SC 5731.
[8] India Const. art. 21.
[9] AIR 1990 SC 2060.
[10] AIR 1988 SC 2187.
[11] AIR 1981 AP 171.
[12] AIR 1987 SC 1086.
[13] AIR 1988 Raj 2.
[14] (1991) 1 SCC 598.
[15] India Const. art. 51. cl. A(g).
[16] 10 SCC 510
[17] Kevin S. Parikh, Eco-Rights: Creating a Right to a Clean Environment, 1 Eco-Notes 9 (1995).
[18] 13 Mich. J. Int'l L. 921, 930 (1992).
[19] Brazil Const. ch VI, art. 255.
[20] Chil. Const. ch. III, art. 19 (1980).
[21] Chil. Const. ch. III, art. 20 (1980).
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