A critical analysis of Right to Sustainable Development: With reference to Article 21 of the Constitution

Written by Yash Joshi*

Abstract

The paper critically analyses the Right to sutainable Development in light of Article 21 of Indian constitution. The author tries to explain that with the economic growth there comes the reponsisibility upon us to keep our environment healthy and cleaner, and how it forms our right as well.  The paper maps Development, Growth and Environmental rights in one line and seeks the solution of preparing our Environment for future generation. The paper goes on to examine various case laws set out in such tone which advocates Sustainable development. The paper concludes with telling the importance of securing for our future generation the gem called Environemnt.

Keywords: Growth, Development, Environment, Future, Right.

INTRODUCTION:

Franklin Roosevelt stated that:

“Basic essential to peace is a decent standard of living for all individual men and women and children in all nations. Freedom from fear is eternally linked with freedom from want…..

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men’. People who are hungry and out of a job are the stuff of which dictatorship are made.”[1]

From the above mentioned lines it can be concluded that economic development along with Human Rights is an indispensable part of the human life. The focus of mankind should be economic development which also takes care of the welfare of the people in all sense. For the purpose of solving this issue leaders of the world had come up with a concept of Sustainable Development, which promised to come up with a midway between ecology and economy.

This is the era of sustainable development. The world has traveled too far while pursuing the developmental process. In the name of reckless industrial and scientific development, the adverse effects of the end product have been overlooked. To minimize disparity in the society, the provision has been made under Article 21 of Constitution of India and right to life and personal liberty has been made as Fundamental Right. Now, it is to be examined that how far this constitutional provisions has been translated in practice. Sustainable development has been the main goal of UN, in the year 1972 the UN Conference on Human Environment had set a goal of “not merely to be better informed about the changing environmental conditions but also to “protect and enhance the quality of the human environment for present and future generations” [2]

Legislation such as the Schedule Tribes and Other Forest Dweller Act, 2006 have come up with provisions that would be beneficial for the tribal and rural communities, but when these provisions were put into practice, huge large scale violations of human rights was observed in the local population.[3] It is because of this violation of human rights in the impoverished regions that people take up arms against the government, further giving birth to the disease named Naxalism. For a government to impart good governance it becomes mandatory to build a strong relationship and consensus between human rights and economics.

Another aspect of sustainable development is the Right to natural resources, which means “every generation has the right to use resource only to the extent that it does not jeopardize the Human Rights of the next generation.”[4] In a recent judgment the government of India has held that the rights of Dongria Konds (the tribal community behind the preservation of the Niyamgiri Hills) supersedes the rights of the corporates

“Right to life is the most fundamental of all human rights. Denial of this basic right means denial of all other rights because none other rights would have any utility and existence without it.”[5] In Allgever v. Louisana[6], the Supreme court of United States observed that, “life includes all personal rights and their enjoyment embracing the use and enjoyment of faculties, acquiring useful knowledge, the right to marry, establish a home and freedom of worship, conscience, contract, occupation, speech, assembly and press.”

Article 21 of the constitution includes all those personal liberties which are not been mentioned earlier in the previous sections of the constitution. Right to life and personal liberties not only means the right to live life but also live life with dignity. In order to have a decent life style ahead in future, it is imperative to preserve the natural resources that we have. It should be noted that the resources which is consumed by humans have been borrowed from their children.

It appears that no relationship can be established between Right to life and personal liberties and the sustainable development. However, it is incorrect; there is indeed a relationship between Article 21 and sustainable development. “Right to life cannot be realized without basic rights of safe water, air and land.”[7] “A Human Rights approach allows the quality of life of all people to be the central part of the decision making.”[8] There is a perpetual conflict between economy and ecology, a state has to balance its decision keeping both the environment and economy in mind. If a decision in favour of economy is pronounced then it is the environment that suffers. However, it has been observed that companies that look after the environmental needs by producing environmental friendly products those companies reap huge profits.[9]

Sustainable development is understood as an amalgamation of environmental and developmental policies. “The concept of “sustainable development” covers environmental conservation and consists of economic development, economic inclusiveness, social development, empowering the rural population by creating jobs, by providing health care and quality education apart from environmental protection.” [10]“The true test of good governance is the degree to which it delivers on the promise of Human Rights: civil, cultural, economic, political and social rights.”[11]

Karl Marx has been the source of economic foundation of human rights, whereas Locke propounded basic human rights. These geniuses were the principal forces for theorizing the conception of Right to Development and the basic Human Rights.

Article 21 of the constitution is seen as the favorite subject of numerous jurist across the world and not just India. Justice V.R. Krishna Iyer has contributed extensively to the study of the abovementioned Article of the constitution. He has also explained the intricate relationship between the Fundamental Rights and the Directive Principles. Article 21 is hailed as a milestone in human rights3. Justice Altamas Kabir, Justice P.N. Bhagawati, Justice Markandey Katju have been the pioneers of Right to life. They have pronounced judgments that have carved new definitions of the right. Both the jurists have laid down in their landmark judgment that preventive detention is an infringement to right to life. A person arrested in preventive detention undergoes a permanent loss to reputation. Justice P.N. Bhagawati on various accounts have advocated and justified judicial activism, which also falls under the purview of Article 21. Justice Krishna Iyer was of the opinion that prisoners too have a right to live with dignity and hence he provided various judgments that could safeguard their rights. He held that the sentence provided to the prisoners should not be coerced into doing hard jobs, they too have a right to life with dignity, if not then it would be violitative of article 19.

The term sustainable development has been defined by the Brundt land Commission in the year 1981, which means “development that meets the need of the present without compromising the ability of future generation to meet their own need.”[12] Right to life and personal liberty. The Fundamental Right under Article 21 of the Constitution of India has taken various aspects of human life in its ambit. Now, the right to sustainable development has become an integral part of Right to Life and Personal liberty. Article 21, states that no person shall be deprived of his life and personal liberty except in accordance to the procedure established by law.[13] This law is available to citizens and non-citizens. In Maneka Gandhi vs. Union of India of 1978, Supreme Court observed that Right to life is not merely confined to the physical existence but also the right to live with dignity.[14] Likewise, every person on earth is entitled to equal allocation of global atmospheric space in pursuit of sustainable development[15] emphasized Right to Sustainable Development has been derived from Right to Environment, which again draws its root from Right to Life and Personal liberty.

KNOWING SUSTAINABLE DEVELOPMENT

Development in simple words can be termed as progress. Progress is the inherent desire and need of mankind. Human beings exhibit the urge for moving forward in life, it is this urge that eventually leads to development and it is this development that advances to environmental degradation. It is worth noting that all developmental activities subsequently result into degeneration of environment. Developmental activity and a healthy environment are innately entwined together. If there is absence of one the other one cannot exist on its own. A healthy environment conducive to the health and well-being of human being is an essential ingredient of right of life.[16]All the developmental activities take place only because of the pre-existence of a healthy environment. Ecological system provides material foundation for human existence and development.[17] For example, a person who is interested in building a house, needs timber for setting up doors, window panes and furniture. This need of timber is fulfilled by the forests, which is expeditiously vanishing from the planet earth! There’s a requirement to strike balance between environment and development. Motto of development should be to be of such nature that it can be contained by the ecology. To overcome this problem, scientists and thinkers have come up with the concept of sustainable development.

As per the Brundtland report, sustainable development is development that meets the need of the present without compromising the ability of the future generation to meet their own needs. It contain within it two key concepts:

The concept of needs, in particular the essential needs of  the world’s poor, to which overriding priority should be given; and

The idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet the present and the future needs.[18]

According to another definition, sustainable development is to ensure the health and productive life of the human beings and harmony with nature.[19] The issue of sustainable development in not merely confined to a nation but it goes beyond the jurisdiction of a  single nation. Hence, sustainable development should not be viewed as a matter concerning only one nation but of the whole world community.

Primarily there are three guiding principles for sustainable living, they are as following:-

  1. People must share with each other and must care for earth.
  2. Humanity must take no more from nature than man can replenish; and;
  3. People must adopt life styles and developmental paths that respect and work within nature’s limits.[20]

The 1992 Rio declaration on ‘environment and development’ recognizes the element of integration of environmental and developmental aspects, particularly in principles 3&4, which are set as under:

Principle 3:

The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present as well as future generations.

Principle 4

In order to achieve sustainable development, environmental protection shall constitute an integral part of the developmental processes and cannot be considered in isolation from it.[21]

‘Sustainability’ is defined in ‘caring for the earth’ as “a characteristic or state that can be maintained indefinitely”, whilst “development” is defined as “increasing the capacity to meet human needs and improve the quality of human life.” What this seems to mean is, “to increase the efficiency of resource use in order to improve  human living and standard.[22]

Why did the question of sustainable development arise?

According to the report presented by UNEP, the global environment has been promptly depleting ever since 1972. The instances cited below show the fast degradation of environment:-

  • The problem of air getting serious.
  • The problem of water becoming grave.
  • The ozone layer is being depleted to a dangerous level.
  • The rate of desertification is growing at a faster speed.
  • The rate of extinction of species is increasing.
  • The overall conditions of human health are worsening.[23]

The issue of sustainable development has often been raised by the developed country since they have developed to the fullest and now their primary concern is to safeguard environment. To pursue developmental activities the developed countries or the first world countries have employed the use of natural resources to the extremes. After facing the aftermaths of the exploitation, the developed nations have woken up from their slumber and thought of formulating measures that would be prove pivotal in improving the menace. The residents of a few developed countries maintain a lavish lifestyle of astonishing overspending –maintaining and expanding production processes that lead to ever more acute environmental pollution. On the other hand, millions live in misery in many regions of the globe, specially in the third world, because of poverty, population explosion, shortage of resources and environmental pollution.[24]

ARTICLE 21 OF THE CONSTITUTION

“The concept of “right to life” and “personal liberty” is as old as mankind”[25] .“The Greeks distinguished between the liberty of the group and liberty of the individual.”[26] In Athenian states “concept of liberty was the outcome of two notions; first, protection of groups from attack, secondly, the ambition of the group to realize itself as fully as possible through self-realization.”[27]

Article 21 of the constitution deals with “the protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedures established by law.”[28] The section seems benign, but considering it limited would be undermining the scope and the ambit of this section. Within the confines of the abovementioned articles there are various rights that have been enshrined in it. For instance, right to sleep, right to privacy, right to education, right to information and so on. Supreme Court in a series of decisions has laid down the definition of life. To live life means to live life with dignity.

“The right to life and personal liberty does not mean mere physical existence or being medically alive, but it includes the right to essential means and facilities which make life worth living with comfort and dignity.”[29]  “In common language life means animation from birth to death of every living being, but in broad sense life means activeness, liveliness, physical or intellectual force, energy and the vitality etc.”[30]

In Sant Ram case- the court held that the right is, “the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as part of the constitutional right to life, the easiest way of depriving a person of his right to life would be deprive him of his means of livelihood to the point of abrogation.”[31]

A.K. Gopalan v. State of Madras- The Supreme Court has deliberated on the issue of “the procedure established by law”[32]. As per the constitution the procedure established by law means procedure prescribed by law as enacted by state. The effect of these two decisions (A.K. Gopalan v. State of Madras and A.D.M Jabalpur v. Shivkant Shukla) was that it provided protection against the arbitrary actions of the executive.

Maneka Gandhi v. Union of India- In the given case the honorable Supreme Court observed that procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive.” “The expression ‘personal liberty’ in article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of men and some of them have been raised to the status of distinct fundamental rights and given additional protection under art. 19”[33]

SUSTAINABLE DEVELOPMENT AS A FUNDAMENTAL RIGHT

A question that needs to asked is whether development can be taken as a right? In this age there is a huge gap between the rich and the poor, it is the world where children are denied health and education, despite increasing affluence and wealth. Through the mechanism of rights, the basic requirements of human beings can be satiated. As per the International Covenant on Economic, Social and Cultural Rights (ICESCR) for receiving the entitlement of Human Rights one needs to fulfill a number of conditions: “it must be fundamental and universal; it must in principle be definable in justiciable form; it should be clear who has the corresponding duty to uphold or implement the right and the responsible agency should possess the capacity to fulfill obligation.”[34]

In India, since time immemorial, environment has been recognized as a human right. The people of India have been worshiping animals, such as mouse, cows, tigers, owls, etc. The famous Bishnoi community of Rajasthan, are well known for their community service and dedication towards nature. The females of this tribe have been seen breast-feeding the young ones of the animals foremost and then their own babies. The members of this tribe have given their lives in order to protect the local flora and fauna.

“Integration of environment concerns with the goals of social and economic development has come to be guiding principle and is at the center of development planning and implementation. This is in accord with the directive principle under article 48A of the constitution of India which obliges the state to protect the environment and to safeguard forest and wildlife of the country.”[35] “The field of judicial intervention is constantly expanding and it has been held that the right to life conferred by article 21 of the constitution includes the right to enjoyment of pollution free environment.”[36]

“Right to development (classified as a third generation right) debate include the legal foundation of the classical human rights and the basis for recognition of new rights, the priority to be accorded to different sets of rights, the links between human rights and democratic governance, the extent to which the international community bears some responsibility for assisting states whose resources are inadequate to ensure the human rights of their own citizens, and the relationship between the individual and collective rights (including people’s rights)”[37]. “The concept of human right is necessarily in evolving in nature apace with the evolution of human civilization in the context of a changing social, political, economic and cultural milieu”[38]. Human rights should be framed by keeping the societal knitting in mind. Humans rights is an amalgamation of the dynamic social, cultural, political and economic perspective.

Various international agencies have stressed upon considering development as a human right. Today, due to their contribution the right to development is seen as an inherent human right, which when separated would take away the very essence of existence.

 

ENVIRONMENTAL SUSTAINABILTY

“Impacts of energy-Most developed countries and a number of middle income developing countries have experienced reductions in some energy related emissions notably Sulphur Dioxide. This can be attributed to technological changes and to stringent regulation of quality standards and emissions.

Fresh Water-Global demand for water has been increasing in both developed and developing countries alike.

Forest Cover- Natural forest loss in developing countries has been 16.3 million hectares per year while the increase in plantations in the same countries has been 3.2 million hectares per year for the decade beginning with 1990.

Biological Diversity-The first comprehensive global assessment of biodiversity was released in 1995 at the second meeting of the conference of parties to the convention on biodiversity.”[39]

CONCLUSION

There is an integral relationship between environment and development, paving way for the need of sustainable development, this has been charted out since international development agenda. The agenda of all nation-state should be to implement sustainable livelihood and hence should crystallize policies pertaining to it. “Some developed countries have been trying, by taking advantage of their economic cooperation with the developing countries. to shrink their responsibility, for protecting the environment, in many cases exploring their non-sustainable activities or their wastes to the developing nations.”[40] Now we are in a world where each person is dreaming for a safer and a healthier environment and hence it is the foremost duty of the government to frame policies that would look after their needs.

 

*2nd year Student, Institute of Law Nirma University, Ahmedabad.

[1]Walter Laqueur & Barry Rubins, HUMAN RIGHTS READER.

[2] Dr. Khamesh Mani Tripathi & Dr. S.S. Jaswal, Right to environmental information and human rights: the existing environment law and the challenges (Human Rights Year Book 2010).

[3] Justice S.N. Varaiva, New directions in the human rights movement (Human Rights Year Book 2010).

[4] Id, at 15.

[5] Shailja Chander and Justice V.R. Krishna Iyer, Fundamental Rights and Directive Principles.

[6] Id.

[7] Supra note 3.

[8] Id.

[9] Id, at 98.

[10] Justice S.H. Kapadia, Interrelationship between sustainable development, good governance and the human rights in development (Human Rights Year Book 2010).

[11] Id, at5.

[12] UN 1987, Report of the world commission on Environment and Development: Our common future, conspect.nl/pdf/Our_Common_Future-Brundtland_Report_1987.pdf.

[13] Indian constitution, article 21.

[14] A.I.R. 1978 S.C. 597 (India).

[15] Srivastava, L., Pahuja, N., Srivastava, M. and Upadhya,P. RIGHTS TO SUSTAINABLE DEVELOPMENT availble at : www.teriin.org/events/pdf/issues_in_international_climate_negotiations/1_Right_to_Sustainable_Devel opme nt.pdf.

[16] Prof. Satish C. Shastri, Human Rights Development and environmental law.

[17] Priyasha Corrie,   Environmental justice – remediation of the wrongs against the unvoiced.

[18] Id.

[19] Id.

[20] Id.

[21] Abhishek Joshi,  The unfulfilled dream of sustainable development of environment in india and third world countries.

[22] Id.

[23] Id.

[24] Supra at 16.

[25] Id.

[26] NEPA and Transportation Decision making, The Importance of Purpose and Need in Environmental Documents, available at: environment.fhwa.dot.gov/projdev/tdmneed.asp.

[27] Id.

[28] What is Sustainable Development?, International Institute of Sustainable development, available at:  http://www .iisd.org/sd/.

[29] Id.

[30] Sunil Deshta , Kiran Deshta Introduction to Fundamental Human Rights., The Right to Life and Personal Liberty.

[31] Id.

[32] Id.

[33] Dr. paramjt S. Jaiswal and Dr. Nishtha Jaiswal, Human Rights and the Constitution of India, 87 (Human Rights and Law).

[34] Supra note 16.

[35] Id.

[36] Supra note 33.

[37] Id.

[38] Id.

[39] Supra note 30.

[40] Supra note 12.

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