Right to Environment and Human Rights

CONCLUSION, RECOMMENDATIONS AND THE
9
WAY FORWARD
The negative effects of pollution and environmental degradation are being

experienced by human beings all over the world. The growing awareness has made
the world community realise that global cooperation and timely action is an
imperative. Human beings all over the world have a right to life, a life of quality
based on dignity, equality, well being and human development. In reality however,
not everyone has access to even the most basic of all rights, the right to clean air and
safe drinking water. The concept of a right to a healthy environment is being
increasingly recognised as a fundamental human right, a right on which depends the
realisation of all other human rights. Commenting on the Bill of Rights which did
not contain any guarantees for a safe and healthy environment, Rachel Carson in
Silent Spring published in 1962 stated that it was only because our ancestors despite
all their wisdom could not have conceived that citizens will need security from being
subjected to lethal poisons distributed by private individuals or public officials.
As a background to the main study relating to the role and performance of the NHRC
in environment protection from a human rights perspective, the linkage between
environment and human rights was explored at the international, regional and
national level. While the linkage and the right to a healthy environment has been
established at the international level more significantly as ‘soft law’ there is no
international treaty or convention with a built in monitoring mechanism having a
legally binding force. The first imperative that emerges from the linkage between
environment and human rights is the articulation of a right to a safe and healthy
environment as a substantive human right in the form of an international convention.
The second issue relates to the enforcement of the right, not only for the benefit of
the present generation but also for the future generations. In the context of
sustainable development and justice related to climate change the enforcement poses
a greater challenge.
9.1 ENVIRONMENT AND HUMAN RIGHTS

The link between environment and human rights emphasizes that a safe and healthy
environment is a pre condition for living a life of dignity. Ever since the Stockholm
Centre for Regulatory and Policy Studies/ 0518RRP 205

Conference of 1972, the progress in understanding and elucidating the linkage
between human rights and environment increased steadily at the international level
but several efforts made to articulate the right to a safe and healthy environment in
the form of an international convention, did not yield the desired result. On the
contrary, the relationship between environment and human rights has become an
issue of a wide debate.
The issue of Environment and human rights initially figured on the international
agenda at the Stockholm Conference, 1972. Principle 1 of the Stockholm Declaration,
included the concept ‘that both aspects of man’s environment, the natural and the
man-made, are essential to his well-being and to the enjoyment of basic human
rights, the right to life itself’. The subsequent Rio declaration (1992) however, while
reaffirming the Stockholm declaration, did not carry forward an explicit human
rights based argument. Instead, it linked human well-being to the state of the
environment emphasizing in Principle 1 that ‘Human beings are at the centre of
concerns for sustainable development. They are entitled to a healthy and productive
life in harmony with nature. In Stockholm the focus was on the essentiality and pre-
condition of the environment as an enabler for the enjoyment of basic human rights
including the right to life. In Rio, the emphasis shifted from a safe and healthy
environment as a precondition for enjoyment of human rights to sustainable
development for the well being of the people.
Twenty years later, Rio+ 20 (2012) affirmed the political commitment of the world
community to sustainable development and to the promotion of an economically,
socially and environmentally sustainable future for the planet and for the present
and future generations. Without the explicit recognition of the right to a healthy
environment, the Rio+20 document fell short in integrating human rights and
environmental protection. It failed to address the global ecological and poverty crisis
confronting humanity and the planet.
As discussed in Chapter 1, environment and human rights are inextricably linked

and form an essential component of sustainable development. The linkage between
environment and human rights is central to efforts being made towards a green
economy and sustainability of natural resources. There is a global recognition of the
need to both protect and preserve the environment as also to protect and promote
human rights.

Sustainable development will only be possible when human rights and environment
protection are integrated into the development process. It has been widely accepted
that environmental degradation adversely affects the enjoyment of human rights.
While exploring environmental injustices across nations in the context of trans-
national toxic trade and natural resource exploitation, it is seen that the victims of
human rights abuse are often the environmental activists, powerless indigenous
populations and other minorities who face the danger of environmental injustice and
human rights abuse.
9.2 EVOLUTION OF THE JURISPRUDENCE TOWARDS A RIGHT TO ENVIRONMENT

As brought out in Chapter 3, the international, regional, national courts and human
rights bodies have evolved an extensive jurisprudence in favour of a right to a clean
environment and have recognized that environmental damage causes human rights
violations. Explicit provisions relating to environment are limited in international
human rights instruments. The UDHR has provisions concerning the right to life and
a standard of living adequate for health and well being from which the right to a
healthy environment can be inferred. In the ICCPR the right to environment can be
inferred from the provision regarding right to life and right to human dignity; and in
ICESCR, from the provisions regarding safe and healthy working conditions,
continuous improvement in living conditions and environmental hygiene which
relates to the right to health. The Committee on ESCR addressed the right to a
healthy environment in General Comment 14 on the highest attainable standard of
health.160 In General Comment 15 on the right to water, the Committee addressed
protection of natural water resources from contamination by harmful substances as
an aspect of the right to health. The ILO 169 contains provisions on protection and
preservation of the environment inhabited by indigenous communities. The CRC in
Article 24(2)(c) has provisions relating to protection of children’s health from the
risk and dangers of environmental pollution. The concern for environment
protection is also included in the international humanitarian law. Article 35(3) of the
Additional Protocol 1 to the 1949 Geneva Conventions prohibits the use of methods
or means of warfare which are intended, or may be expected to cause, widespread
160
‘The right to health embraces a wide range of socio-economic factors that promote conditions in
which people can lead a healthy life, and extends to the underlying determinants of health, such as food
and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy
working conditions, and a healthy environment’.

long term and severe damage to natural environment. Prohibition is also contained
in Article 55(1) of the same Protocol.
Amongst the regional conventions, Article 24 of the African Charter on Human and
Peoples’ Rights and Article 11 of the Protocol of the San Salvador of the American
Convention on Human Rights specifically address the right to a healthy environment.
The Convention on Access to Information, Public Participation in decision making
and Access to justice in Environmental matters (Aarhus Convention, 1998) ensures
environmental procedural rights. The European Convention on Human Rights does
not have any provision concerning environment. Although the provisions regarding
the environment in human rights instruments are few, human rights cases related to
environment are being brought before the international and regional supervisory
bodies. In Europe, the right to privacy and family life has been used to counter the
nuisances of both noise and industrial pollution. The right to freedom of expression
has been used to support the right to information on environmental matters.
At the national level, a number of countries have incorporated in their constitutions

or enacted legislations setting forth the obligation of the state to protect the
environment or inclusion of a right to an environment of a particular quality such as
clean, safe, healthy, wholesome, secure and ecologically sound. According to a
research, ‘as of 2012, 177 of the world's 193 UN member nations recognize this right
through their constitution, environmental legislation, court decisions, or ratification
of an international agreement. The only remaining holdouts are the United States,
Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei
Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. Even
among these laggards, some sub-national governments recognize the right to a
healthy environment, including six American states, five Canadian provinces or
territories, and a growing number of cities,’ (Boyd, 2012).
At the international level, several efforts were made by the UN and other
international bodies to clarify the concepts linking environment and human rights.
In 1994, a draft declaration161 on Principles on Human Rights and the Environment
was prepared by a group of experts, and it was presented before the UN Commission
on Human Rights in 1995. This declaration proposed a substantive right to ‘a secure,
healthy, and ecologically sound environment’ and included the concept of
161 E/CN.4/Sub.2/1994/9

‘intergenerational equity’. Though no consensus emerged at the international level,
further efforts made by the Commission on Human Rights led to the adoption of a
resolution (2005/60) directed towards the relevant UN Agencies to ‘continue to
coordinate their efforts in activities relating to human rights and the environment’
across various aspects of the development agenda. The Human Rights Council
replaced the Commission on Human Rights in 2006 but it was not until 2009 that
the issue was once again brought to the fore on the international agenda due to the
growing recognition of the human impact on environment and climate change162 .
The climate change has both direct and indirect effects on the enjoyment of human
rights and is the subject of an on going international debate on how to move forward
on the link between environment and human rights.
9.3 PERSPECTIVES ON THE RIGHT TO ENVIRONMENT
Three different perspectives have centered around the linkage between environment
and human rights 163 . In the first approach, it is argued that environment is a
prerequisite for the enjoyment of existing human rights. This implies that the state
obligations include a duty to ensure the level of environmental protection necessary
to allow the full enjoyment of the protected rights. This approach was largely
followed by some national courts and the regional human rights bodies who relied on
the established human rights such as the right to life, right to health and right to
privacy. The European Court of Human Rights adopted this approach. Boyle calls it
the ‘greening’ of the existing human rights (Boyle, 2010).
The second approach involves focusing on the procedural rights of people in relation
to control over their environment, such as right to information, participation in
environmental decision-making and access to justice. The UNECE Aarhus
Convention provides an example of a regional treaty that takes this approach. The
relevance of procedural rights assumes greater significance in the context of violation
of human rights due to large scale development projects especially in developing
countries, toxic and hazardous wastes and the rights of indigenous peoples.
The third and the most debatable approach however, involves a substantive
justiciable right to a safe, healthy and ecologically balanced environment as a human
162Resolution 10/4
163UNEP Compendium on Human Rights and the Environment, UNEP-CIEL
available at
http://www.unep.org/environmentalgovernance/Portals/8/publications/UNEP_Compendium_HRE.p
df

right in itself. Provisions to this effect are found in some national constitutions, such
as those of Ecuador, Hungary, Peru, Portugal, Philippines, Spain, South Korea and
South Africa.
Experts who favour the first two approaches involving the application of existing
obligations (the environment as a precondition for human rights and procedural
rights over the environment), are of the view that they may provide a quicker and
easier path than developing a new human right, particularly given the disputes over
the justiciability and definition of a substantive right. They are of the view that the
established rights are adequate to provide protection and to ensure a right to a safe
and clean environment and that there is no need to proliferate new rights. Some
believe that an intergovernmental declaration might be the most authoritative way to
address the linkages. As international law has already been developed in this area,
any process forward should concentrate on obligations that governments have
already agreed to and address gaps in a consistent manner, rather than attempt to
develop entirely new obligations. Human rights are codified in treaties ratified by
governments, and governments can be held accountable for the implementation of
international law. Moreover, human rights courts and monitoring bodies are well
equipped to enforce the right to environment within the rubric of existing human
rights to meet the ends of environmental justice as has been largely followed by the
European Court of Human Rights wherein the Court has weighed the rights of the
individual as against the rights of the public at large while addressing environmental
issues under the European Convention.
The arguments against having an independent right to environment articulated at

the international level are that it is inherently anthropocentric and too uncertain a
concept to be of normative value (Boyle, 1996). In his later work however, while
reassessing the issue, Boyle suggested that the right to a healthy environment should
form part of the ESC rights and should be added as a declaration or a protocol to the
Covenant on ESCR (Boyle, 2010). Shelton suggests a declaration in the form of a
single instrument bringing together existing human rights and environmental law
which can provide guidance to governments, tribunals and non-state actors (Shelton,
2009).
According to Boyle, the response of human rights law needs to be in global terms
treating the global environment and climate as a common concern of humanity. In

the context of climate change which is a global problem, using the existing human
rights law is more challenging. This is why he suggests that right to a decent
environment within the ESCR makes more sense. In that context, the policies of
individual states on energy use, reduction of green house gases, land use and
deforestation could be scrutinised and balanced against their global impact on
human rights and environment (Boyle, 2012).
In terms of the established rights and in the context of ICCPR and ICESCR, in a
number of jurisdictions, the right to pollution-free water, freedom from air pollution,
and disposal of toxic and hazardous wastes have been interpreted as positive
obligations on the part of the State to act for remedying threats under the right to life.
However, there are limitations with regard to the use of the right to life provision in
environmental cases because of the difficulty in proving cause and effect. Moreover,
it cannot be used to pre-empt a potential risk to the environment as the cause of
action arises only when the harm has actually occurred. Under the ICESCR, there
would be difficulty in bringing the right to environment under the rubric of the
economic, social and cultural rights, as these rights are subject to progressive
realisation in the light of resources. The usefulness of applying these rights in the
field of the environment is limited, as it is not likely that States would accord over-
riding priority to the environment if natural resources are limited.
9.4 TOWARDS CODIFICATION OF THE RIGHT TO ENVIRONMENT IN THE FORM OF

AN INTERNATIONAL CONVENTION
Although existing human rights instruments facilitate the derivation of a right to

environment or a re-interpretation so as to include a right to environment, yet they
do not provide for an explicit human right to environment. Literature supports the
view that while a right to environment exists as a legal force at the national level in
many countries, and to some extent at the regional level, there is no legally binding
treaty or convention at the international level that recognises the right to
environment as a substantive right capable of enforcement. A series of adjectives are
currently in use for alluding to the right to environment, including ‘clean’, ‘healthy’,
‘decent’, ‘viable,’ ‘satisfactory’, ‘ecologically balanced’ and ‘sustainable environment.’
If the right to environment is considered a foundational right, unless articulated as
an independent right, the over-riding priority that environment deserves may be lost
in the competing interest of other human rights. While articulating the right an
explanation can be incorporated that the right to a ‘particular’ aspect of the

environment such as safe, healthy, or ecologically balanced includes the intrinsic
quality of the environment of the planet as a good in itself and not specifically for
human beings only.
The human right to a healthy environment includes individual as well as collective

aspects. There is no uniformity in the use of any particular term to describe the
quality of the environment. There is also no consensus amongst the States on how
the right should be articulated. There is no precise internationally accepted definition
of a right to environment. Thus, while there is international concern regarding the
protection of the environment, which has also been expressed in the form of a
number of Treaties, Conventions, Declarations and Principles there is no universally
agreed right to environment. As articulation of an independent right will depend on a
long drawn process for the world community to arrive at a consensus, emerging
issues on the linkage between human rights and the environment that can be
strengthened meanwhile are the existing procedural rights, right to information and
participation in decision making, intergenerational equity, climate change and
human rights, toxic wastes and human rights, and indigenous peoples’ rights. The
relationship between indigenous peoples’ rights and environmental protection need
particular attention as environmental problems in developing countries almost
always involve this dimension.
An expert group meeting organised by UNEP jointly with OHCHR noted the urgent
need for greater integration of Human Rights into the UN environmental agenda
(UNEP-OHCHR, 2011). The discussions resulted in an ambitious yet realistic
roadmap for the future of human rights. Building on several other resolutions related
to human rights and the environment and human rights and climate change, the
Human Rights Council164 appointed an Independent Expert165 (IE) in 2012 with a
mandate on Human Rights and the Environment. It is hoped that by the end of his
three year tenure, the IE will be able to put forth a draft convention which will have
acceptability by the global community.
Internationally, the divergent concerns and priorities of the developed and the
developing countries especially in the context of climate change are largely
responsible for a lack of consensus regarding the formulation of a right to
environment. However, in the context of climate justice and intergenerational equity,
164 Human Rights Council: Resolution 19/10

165 Mr John Knox

it should be realised that in an interdependent world environmental problems are no
longer confined to the borders of a country, which makes it imperative for the world
community to address these issues and find solutions in a collective manner at the
global level. There is also a need to have the right to environment, independent of
other rights, articulated in a legally binding international convention with in-built
provisions for monitoring and supervision of State obligations which the states agree
to undertake as per the Convention. This right, while creating obligations for the
State, should impose requirements on individuals, businesses and communities to
respect the rights. For the purpose of surveillance of State obligations, the pattern of
existing international mechanisms in the realm of human rights could be followed to
create a similar mechanism for monitoring compliance and the violation of
international legal rules relating to environmental protection.
Since the right to environment can be regarded as a basic fundamental right, on

which all other rights depend, a substantive right to environment is an imperative for
the world community to accept and articulate at the international level. Care should
thus be taken to protect the entire eco-system and bio-diversity for its inherent worth
and not just because it is an enabler for ensuring a life of quality for human beings.
Since creating new international mechanisms for environmental protection and
effecting a right to environment would require the political will of States and their
participation in global efforts to put into place an international convention, regional
bodies, International Co-0rdination Committee (ICC) of a global network of NHRIs
and non governmental organisations such as IUCN, which are active in elaborating
international legislation and in drafting and disseminating programmes of action,
can assist in the advocacy and drafting of such a right. The Advisory Council of
Jurists to the Asia and Pacific forum, recommended that the NHRIs could become
strategic partners in the process of change and make recommendations to their
respective governments to support the articulation of a substantive right to
environment in the form of an international Convention,’ (ACJ, 2007). Regrettably,
not much progress has been made in this regard individually or collectively by the
NHRIs within the Asia-Pacific region.
As environmental rights have been proliferating at the national level, and as there is
ample jurisprudential evidence to suggest the broad acceptability for these rights at
the regional and national levels, the time has come when the States need to be more
open and respond to a call from the UN for articulating a substantive right to

environment in the form of an international convention. A convention can be a
powerful tool for advocacy groups to monitor and promote human rights. The
advantage of articulating an international convention is that it will make
governments more accountable; pressurise governments into formulation of stronger
environmental policy and laws; strengthen implementation and enforcement of
environmental laws and bring about a reduction in environmental injustices.
The biggest challenge therefore, in articulation of an independent right to an

environment of quality and its codification in the form of an international convention
is the setting of environmental and human rights standards which will be acceptable
to both, the developed and the developing countries. The right however would make
explicit the relationship between the environment, human rights and sustainable
development for present as well as future generations.
9.5 THE RIGHT TO ENVIRONMENT IN THE NATIONAL CONTEXT: JUDICIAL

INTERPRETATION
In the national context, while the right to environment has been recognised by the
Indian courts and can be enforced under the powers of the Constitution, it is
impossible for a vast majority of the population who suffer from the ill-effects of
environmental degradation and struggle to live a life of dignity, to approach the
higher judiciary for enforcement of their right. The State is duty bound to protect the
environment by enacting appropriate laws and enforcing them strictly to prevent
environmental degradation and ensuring a life of dignity to all its people. In its race
for economic growth, the right to a clean and healthy environment is assigned a
lesser priority as compared to the right to development.
As discussed in Chapter 4, in the Indian context, the judiciary is the main institution
responsible for the enforcement of fundamental rights and human rights. There is
no independent right to environment in the Constitution of India. The duty to protect
and preserve the environment is incorporated in the Directive Principles under the
Constitution, which are non-enforceable. The Supreme Court has held that the
fundamental rights should be interpreted in the light of the directive principles and
the latter should where possible be read into the former.
The major contribution of the judiciary to human rights jurisprudence has been two
fold. Firstly, it is the substantive expansion of the concept of human rights under

Article 21 of the Constitution and secondly, the procedural innovation of PIL. It goes
to the credit of the Supreme Court of India who by their landmark judgment in Rural
Litigation and Entitlement Kendra vs State of UP 166 , M C Mehta vs. Union of
India167 and several other pronouncements interpreted Article 21, guaranteeing the
right to life, an expanded meaning to include the right to safe and pollution free
environment within it’s ambit. Though the right to environment, right to safe
drinking water and right to clean air were not specifically included in the Indian
Constitution and also were not finding a mention in the international understandings,
these rights have earned the status of a fundamental right in India.
In its decisions relating to environment cases, the Supreme Court has upheld that the
‘right to life’ implies the ‘right to live in a pollution free environment’ and everyone
has the right to life and a right to a standard of living adequate for the health & well
being of self and the family. Class actions have been entertained by the Supreme
Court under Article 32 of the Constitution as being part of public interest litigation.
According to the judicial interpretation, the State is required to recognise every
person’s right to an adequate standard of living and to a continuous improvement in
the living conditions.
In public interest litigation cases relating to pollution and environment related

matters, the Supreme Court directed the government to act and fulfil its obligations,
to enforce laws and to arrest the violations even in matters such as the removal of
garbage. While monitoring its own directions, the court observed that those in the
executive, who were, in fact, responsible for enforcing the law, were themselves
flouting the orders in collusion with the violators. The implementation of the
directions and the pace at which the principles were incorporated into the policy and
legislative framework has, however, been extremely slow.
While the three principal organs of the State are obliged to act in accordance with the
Constitution and co-ordinate with each other in placing the basic human and
fundamental rights of the people as the central focus, in view of the rapid
development and industrialisation taking place all over the country, there is a greater
need for the judiciary as a protector of fundamental rights to ensure that the vast
majority of the voiceless people of India have access to a clean and healthy
166 AIR 1986 2 SCC 431

167 1998(6) SCC 60 and 1998(9)SCC589.

environment as a basic fundamental human rights. In practical terms however, this
is not evident. As brought out in Chapter 5, the Supreme Court despite its pro-active
role in establishing a vast amount of environmental jurisprudence and application of
internationally recognised principles such as polluter must pay, precautionary
approach, sustainable development and intergenerational equity, adopted a contrary
approach in development projects such as large dams on the river Narmada (Sardar
Sarovar) totally ignoring the human suffering of the large number of tribals who were
forced to leave their homes. None of the issues relating to rehabilitation and
resettlement or human rights violations were satisfactorily dealt with either by the
government or by the Supreme Court. The Court decided that it would neither be
legitimate nor competent for the courts to enter into an arena of policy decisions of
the State concerning economic and social rights; a stand which it took in
contradiction to its earlier proactive role. The rehabilitation and resettlement issues
have still not been adequately addressed by either the court or the government.
Similarly, in the case of Bhopal gas catastrophe which was discussed in Chapter 5,
the Apex Court’s role fell far short of the humanistic approach it took in pollution
related cases of 1970s and 1980s when it creatively interpreted the Constitutional
provisions, entertained PILs and upheld the rights of the suffering population. By
upholding the original settlement in the matter and setting aside the criminal
prosecutions that were pending at the time of settlement, it failed to do justice to the
defenceless and suffering victims of mass disaster involving mass tort. The relief to
the victims was neither adequate nor immediate, as claimed by the Court. The
presumption on which the settlement was worked out was grossly underestimated.
The unfortunate settlement wholly overlooked the components of the parens patrae
doctrine which the government had justified for invoking towards the welfare of the
suffering people. As pointed out by Professor Baxi, the court was expected to arrive at
a jurisprudence of human solidarity (Baxi, 1990). It was also expected to contribute
to the liability of multinationals for mass disasters. The case dragged on for twenty-
five years and neither the government, nor the parliament nor the Supreme Court
acted in the interest of the victims (Krishna Iyer, 2011). ‘The government’s sudden
departure from the pursuit of its constitutional obligations should have alerted the
otherwise vigilant Supreme Court of the human rights violations. Bhopal was an
illustrative case of how the Supreme Court could go seriously wrong (Baxi, 1990).

As brought out in the preceding paragraph, the Apex court fell short of applying the
concept of human rights which are meant to protect the basic dignity of human life.
Human rights must be directed towards protecting and promoting human dignity,
well-being and freedom. In the context of the internally displaced persons, the court
could not guarantee and protect the inherent dignity of the displaced people. As
brought out in Chapter 5, both the government and the Supreme Court fell short of
their role in protecting, upholding and restoring the basic human dignity of the
persons displaced by the Sardar-Sarovar Dam project. When communities are
displaced by mega projects, many of the displaced already socially and economically
disadvantaged, loose not only their land and homes, but the ability to find
meaningful livelihoods consistent with their right to human dignity; loosing their
heritage and culture preserved and passed on from one generation to the next.
Inadequate rehabilitation and resettlement policies without involving the affected
communities and largely focusing on monetary compensation cannot restore the
basic human dignity of the displaced people. Similarly, the suffering of the Bhopal
Gas victims and the inability of the legal system to cope with the challenges posed by
mass disasters goes to show how the multinational corporations can insidiously
influence law and policy. Thus, at the national level though there is recognition of the
right to an environment of quality as a part of right to life, there is no independent
right under which claims can be raised against the government.
Though some changes were brought about in the government policy after the Bhopal
disaster to make hazardous industries accountable but major threats to the
environment and human health still exist from rapid industrial growth and
ineffective regulatory mechanism. It also brings to fore the challenges faced by the
legal system to cope with calamities of such magnitude and to make the
multinationals fully accountable. In the context of Bhopal, “substantial movement
towards global justice in conflicts jurisprudence lies in the direction that seeks to
convert it into an arena of global justice through human rights informed and
animating will. Any realistic prospect of innovation in this direction becomes
possible when conflicts theory takes human suffering seriously as a way of taking
human rights seriously;’ ‘For this to happen two conditions need to be fulfilled: the
suffering humanity needs to acquire the power to think and the thinking humanity
the capacity to suffer”(Baxi,2000) .

9.6 IMPLEMENTATION OF ENVIRONMENTAL LAWS
The overall responsibility for ‘environmental protection and improvement’ lies with
the Central Government. The main institution for environment protection in the
country is the Ministry of Environment and Forests (MoEF), responsible for policy
formulation, planning, promoting and coordinating environmental programmes. A
number of regional offices and enforcement agencies assist the MoEF in the
execution of its assigned responsibilities. Its executive responsibilities for the
prevention and control of industrial pollution are primarily discharged by the Central
Pollution Control Board (CPCB), which is a statutory authority, functioning under
the administrative control of the MoEF. Similarly State Boards have been set in the
states. The State Departments of Environment at the State level are the chief
coordinating bodies for environmental matters. Though enforcement institutions
have been enlisted for overseeing implementation of the various regulations for
implementation of the Environment Protection Act, 1986 the monitoring mechanism
is still undefined. The implementation of the pollution control laws has not been
effective resulting in making the general public highly vulnerable to the effects of
pollution, inequitable access to resources and the cumulative and adverse effects of
unplanned development.
As the citizens have a right to a safe and healthy environment as a basic component
of the fundamental right to life, the State has the corresponding duty and an
obligation to ensure that environmental conditions are maintained and improved in
such a manner that it is able to ensure a life of quality for its people. Towards this
goal, the State has to legislate and regulate its agencies as well as the non-state
entities. It has to enforce laws, monitor compliance and ensure justice to victims of
environmental damage by establishing institutions which are effective, transparent,
accountable and democratic. In this context, the two institutions involved in
enforcement of the right to environment are the National Green Tribunal and the
National Human Rights Commission.
9.7 THE NATIONAL GREEN TRIBUNAL

At a time when the Apex Court was flooded with environment related PILs, the
Supreme Court expressed its difficulties in handling cases of a scientific and technical
nature for which it did not have the requisite expertise. As early as 1986, it

recommended in one of its judgments168 that environmental courts be established in
the country with a combination of one professional judge and two experts as part of
the judicial process. It has taken the government more than three decades to
establish a National Green Tribunal169 (NGT) as an alternate forum to the regular
court system to deliver speedy and inexpensive justice. NGT, a specialized body
equipped with the necessary expertise to handle environmental disputes involving
multi-disciplinary issues reviews government decisions or projects affecting the
environment including environmental clearances and grant of consent or license to
operate an industry. It hears individual cases claiming actual or threatened injury
from violation of environmental laws and provides relief and compensation to the
victims of pollution. It also orders restitution of the environment degraded due to
pollution. The jurisdiction170 of the Tribunal is limited to civil and administrative
matters in respect of the seven environmental legislations listed in Schedule I
involving a substantial question relating to environment. These statutes list the
criminal provisions and penalties for certain offences but these are outside the
purview of the NGT.
The significant feature of the NGT is the inclusion in the constituting statute, of the
internationally recognised environmental principles such as sustainable development,
precautionary principle and polluter pay principle which it is bound to apply while
issuing an order, decision or award. More importantly, it recognises in its preamble,
the commitment made by India at the international conferences (Stockholm, 1972
and Rio, 1992) and incorporates the judicial pronouncement of the ‘right to a healthy
environment’ as part of the ‘right to life’ given in Article 21 of the Constitution of
India. This is an important development as the ‘right to a healthy environment’ is
now a component of a statute. Though it forms part of the preamble, it is relevant for
the interpretation in case of an ambiguity or difficulty in ascertaining the intention of
the statute. The NGT, within a short span of three years of its existence has asserted
its role and given some landmark decisions. It has come down heavily on polluting
industries and pulled up the state authorities including the MoEF for non-
performance.
168 MC Mehta v Union of India ( 1986) 2 SCC 176 at 202 and Indian Council of Enviro-Legal Action v
UOI, SC (1996) 3 SCC 212 at 252
169 National Tribunal Act, 2010 ( No 19 of 2010)
170 Sections 14 to 24 in Chapter III of the NGT Act

The NGT has successfully adjudicated a number of cases171, the majority of which
were decided within a period of six months thus upholding its mandate as a ‘fast-
track court’. The cases have been steadily increasing ever since its inception. With its
balanced mix of judges and experts, it has contributed to an effective enforcement
mechanism for the protection of the environment and upholding the right to a clean
and safe environment. The rules of standing are as wide as that of the Supreme
Court itself, for not only persons directly concerned but also a representative body or
an organisation can approach the court. The Tribunal has taken a balanced view in
effecting justice. The Tribunal while adjudicating cases has applied the three
internationally recognised principles which are specifically incorporated in the NGT
legislation, namely, Sustainable Development, the Precautionary Principle and the
Polluter Pays Principle.
The NGT, in resolving environmental grievances, awarding compensation to the

victims of pollution and directing restitution of the degraded environment is
enforcing the right to a clean and healthy environment by application of the norms of
non-discrimination. With the setting up of the Tribunal, the country's environment
system has got a pro-active watchdog. Keeping in view the environmental principles,
the NGT has not been lenient to State authorities, Pollution Control Boards and even
the Central and State Government departments in issuing directions and imposing
costs wherever warranted. In the Western Ghats case172 it pulled up the MoEF for
not filing its report on time. In ordering the suspension of South Korea’s Pohang Iron
and Steel Company’s mega steel project (POSCO) in Odhisha173 it directed a fresh
review of the project by specialist experts, placing the interest of the local
communities and sustainable development above economic interests.
The NGT, though not part of the formal court system has a contributory role in
protecting the environment, in giving relief to victims of pollution and environmental
degradation and ensuring that the right to a clean and healthy environment can
become a reality.
9.8 THE NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

As discussed in Chapter 6, besides the judiciary, legislature and the parliament, the
national human rights institutions, set up in accordance with international principles
171 May 2011-Dec 2011:35 cases; January-Dcember2012:91 cases; January-December 2012: 151; January
2014 -September 2014: 309. Total cases: 586 Source:CEL-WWF, India
172 Goa Foundation v Union of India
173 Prafulla Samantray v Union of India Application No.8/2011

of autonomy and independence have a statutory mandate for the protection and
promotion of human rights at the national level. The NHRC, established under the
Protection of Human Rights Act, 1993 has a wide mandate. Though entrusted with
the responsibility of addressing not only the violations relating to civil and political
rights but also those pertaining to social, economic and cultural rights, NHRC’s pre-
occupation was more with the civil and political rights in the initial years of its
existence rather than with the social, cultural and economic rights. Being a quasi-
judicial body, the NHRC is not bound by rigorous court procedures and is placed in a
position whereby it can play an important role in both promotion and protection of
human rights. Its role is complementary to that of the judiciary and the NGT. Thus,
in environment related violations it is comparatively easier for a victim to access the
NHRC. There is no financial burden on the complainant. Though NHRC is a
recommendatory body it has potential strengths which it can employ for providing
relief to the victims.
The study reveals that though there are structural deficiencies and shortcomings in
the composition of the Commission, NHRC enjoys full financial and operational
autonomy within the allocated resources. Inferences drawn from the empirical study
undertaken as part of the research based on analysis of five years data regarding
environmental complaints, responses to semi-structured questionnaires sent to the
complainants and field visits undertaken to the place of actual occurrence to see what
was happening on the ground brought forth the shortcomings in the complaint
redressal mechanism of NHRC. Three types of cases were identified for field study
based on a pre-determined criteria (suo-motu investigation, complaint regarding
water pollution affecting the human rights of a marginalised family in Mahanser, a
village in the state of Rajasthan and a complaint from Goa regarding violation of the
human rights of children due to a garbage dumping site adjacent to a school. The data
collected from different sources was validated by triangulation (Miles and Huberman,
1994).
9.8.1 PERCEPTION OF THE PEOPLE AND SHORTCOMINGS IN THE COMPLAINT

REDRESSAL MECHANISM
As brought out in Chapter 5, the Supreme Court by expanding the concept of ‘right to
life’ interpreted that the right to a clean and healthy environment was included as a
fundamental right within Article 21. When the order of the Supreme Court got
disseminated amongst the Indian public, it believed that the right to a clean

environment and other essentials of leading a life with dignity and free from disease
was their fundamental right. Their understanding was that besides the judiciary, the
NHRC would be the appropriate forum to be addressed for ensuring the preservation
of such a right. They started petitioning the NHRC for issuing directions to the
executive agencies for taking corrective action. The receipt of such complaints in the
Commission were dealt with routinely without realising that the people staying in far
flung areas of the country who were petitioning the Commission were crying for
intervention in protection of their basic human rights as interpreted by the various
judgments of the Supreme Court. This was a classic example of the people getting
sensitized ahead of the high-level national institution. Therefore, it is not surprising
that the complaints received by NHRC were dealt with in a customary manner, just
as any other executive department of the government would carry out. Generally, the
complaints were disposed off after obtaining comments and views of those
authorities against whom the complaint was made by the petitioner. NHRC acted
more on paper and closed the case files without an investigation and verification of
the ground reality. The disclosure of victim’s identity by NHRC, in several cases, led
to reprisals and further victimisation of the complainant at the hands of the
authorities including the police. Resultantly, the level of non-satisfaction amongst
the petitioners was high.
A vibrant Commission should itself have arisen to absorb the implications of the
Supreme Court order widening the canvas of basic human rights in India and should
have taken pro-active action as is expected of a high powered national institution,
especially created as a watchdog for the protection of human rights of its citizens.
Even when the sensitized people started petitioning the Commission there was no
evidence emerging within the Commission for creating a ‘think tank’ towards
articulating the newly determined basic human rights across the institutions within
the country, by appropriate advocacy mechanisms. Therefore, it should not come as a
surprise that in the absence of any demonstrative action by the Commission, the
enthusiasm of the petitioners in approaching the commission did not fructify to the
extent of its potential and the number of petitions remained low. If the Commission
had demonstrated a visible action in addressing the grievances of the petitioners
meaningfully there is no doubt that many more complaints would have poured into
the Commission.

The Annual Reports of the Commission for the periods of study also do not make
significant mention of the initiative of the people approaching the Commission
seeking to preserve their expanded rights as enunciated by the Supreme Court and
any institutional rearrangement that the Commission would have created to deal
with such an initiative of the people. The interpretation by the Supreme Court in
creating the right to environment within the meaning of right to life and imposing an
obligation on the state to protect and preserve the environment was a unique step
and it was for the Commission to take it further by making the people aware of the
right by dissemination of the relevant judgments as well as strategising government
compliance. Had NHRC given due attention to the significance of the Supreme
Court’s decision wherein a new right had been created and made a proper strategy to
project the right, it could have stirred the government into taking action for its
articulation as an independent fundamental right within the Constitution of India.
9.8.2 THE PROMOTIONAL ROLE OF NHRC

While the flaws in the complaint handling process and the structural weaknesses and
statutory limitations as also the improvements that can be made in the system have
been discussed in Chapter 7, the real strength of NHRC lies in its promotional role of
advocacy, human rights education, training of personnel, human rights research,
building awareness and co-operation with the NGOs. In the context of right to a clean
environment NHRC should organize training for the legal and administrative
personnel engaged in the implementation of environmental laws; pursue inclusion of
the concept of the right to environment in the human rights curriculum in schools,
colleges and universities; undertake environment related human rights research and
build awareness in co-operation with the NGOs regarding the right to a safe and clean
environment. As the media has a significant role in creating awareness, NHRC should
sensitize the media so that human rights violations are reported objectively, especially
where poor communities have to bear the brunt of development projects. In matters
of policy, NHRC has the advantage of coordinating with all stake holders including
government authorities and non-state actors and suggesting remedial measures. Thus,
the NHRC is in a position to create a culture of human rights protection. By effective
exercise of its promotional role, it can prevent human rights violations from taking
place. It can play a pivotal role in influencing policy changes and enactment of new
legislation.

The NHRC enjoys an advantageous position as compared to the judiciary and the
NGT, as by raising awareness about the environment and human rights issues, it can
ensure that people’s rights to access information and to participate in making
decisions that affect the environment are guaranteed. The NHRC can persuade the
Government to ensure that these procedural rights are carried out not as a mere
formality but effectively so that the affected persons can exercise their right to a safe
and healthy environment in a meaningful way. The right to free speech and freedom
of assembly of those who work to save the environment from harm must also be
protected to enable the former to speak out without any fear of persecution.
While the government needs to address several areas to make the NHRC more
effective, the most important is to empower the Commission sufficiently to make its
decisions immediately enforceable. Further, the Commission should also be
equipped with powers to impose penalties as in the Right to Information Act174 (2005)
on officials who furnish false reports or do not furnish reports on time. The State
Human Rights Commissions (SHRCs) which are independent of the NHRC are
embroiled in state politics and have not done much by way of earning the confidence
of the people. It is for this reason that the complainants are compelled to address the
same complaint to several authorities which results in duplication. The NHRC should
have a hierarchical relationship with the SHRCs to ensure more effective delivery of
justice. NHRC should concentrate mainly on issues that have policy dimensions and
thus require a systemic approach for their resolution.
The role of the NHRC is thus not one of substitution but rather it is complementary to
that of the courts. Even if the Commission receives complaints with regard to cases
pending before the courts, it should assess the ancillary issues relating to human
rights instead of merely dismissing the cases in limini on the ground that the matter is
pending resolution in court. Moreover, it should, on merits, assist the complainant in
airing contentious issues before the court or seek to intervene in the matter by itself
becoming a party. The NHRC could also introduce a scheme of providing financial
assistance to witnesses. Last, but not the least, the Commission should recognise the
important role that communities can play in protecting the environment and
encourage their participation.
174 Act No 22 of 2005

9.9 ROLE OF ADVOCACY: INTERNATIONAL AND NATIONAL
At the international level the NHRC is a member of the ICC, a global network of
NHRIs and at the regional level of Asia Pacific Forum comprising the NHRIs of the
Asia Pacific region. It is involved in monitoring the human rights situation in the
country and it submits an independent report to the Human Rights Council for the
Universal Periodic Review. It is in a position to articulate and lobby with other
NHRIs to endorse the drafting of an international convention recognising the right to
a healthy environment especially in the context of climate change which is a global
phenomenon. An international convention will influence national governments to
legislate at the national level and commit appropriate action for the enforcement of
the right.
In 2007, NHRC participated in the 12th Annual Meeting of the Asia Pacific Forum
held in Sydney in which one of the major issues that was discussed related to the
response on the human rights dimensions of climate change. It was a large gathering
of representatives of NHRIs, regional governments, NGOs and the UN. At the same
meeting, the Advisory Council of Jurists (ACJ) comprising legal experts from the
Asia-Pacific region of which an eminent jurist 175 from India is a member
recommended in its final report176 on ‘human rights and the environment’ that the
NHRIs could become strategic partners in the process of change, and help in
bridging the gap between human rights law and the environmental law. ‘They are in
a position to make recommendations to their respective governments to support the
articulation of a substantive right to environment in the form of an international
convention,’ (ACJ, 2007). In its report, the ACJ underlined the dramatic human
rights challenges facing governments and communities in the region resulting from
pollution and climate change, rising sea levels, polluted air and unsafe water
contributing to almost a third of deaths and diseases in some developing countries. It
pointed out that while many countries have environmental laws and constitutional
protections in place, they were not robust enough to address widespread human
rights issues that will result from climate change.
There is no evidence of NHRC having considered or taken up the adoption of a

specific right to environment with the government or having taken any pro-active
175
Mr Fali S Nariman, Distinguished Indian Constitutional Jurist and Senior Advocate
176
Human Rights and the Environment: Final Report and Recommendations (2007). Available at
www.ohchr.org.

steps to build public opinion in this regard. In the background of the judicial
interpretation of the right to environment in the national context and the
recommendations of the ACJ, the NHRC should have taken this opportunity to
catalyze other members of the forum to work towards the articulation of an
international convention and convince them to take up the issue with their respective
governments. On the domestic front, it could have used the developments to support
the jurisprudence already evolved by the Supreme Court to convince the government
about the benefits that would accrue by giving the right to environment a proper
independent status as a fundamental right within the Constitution of India rather
than leaving it to interpretation.
The NHRC as a member of the ICC has to take up its role of advocacy more
vociferously to support the efforts being made by the UN and the APF towards
articulation of the right to environment. NHRC is in a position to articulate and lobby
with other NHRIs for gaining majority support on the drafting of an international
convention recognising the right to a safe and healthy environment. An international
convention will influence national governments to legislate at the national level and
commit appropriate action for the enforcement of the right. Thus, NHRC can be a
powerful catalyst in playing a more effective and sustained role in protecting the
environment from a human rights perspective and in articulation of a substantive
right to a healthy environment for generations present and future.
9.10 THE DISTINCTIVE BUT COMPLEMENTARY ROLES OF THE HIGHER JUDICIARY,

THE NGT AND THE NHRC IN PROTECTING THE ENVIRONMENT FROM A HUMAN
RIGHT S PERSPECTIVE
In the context of the right to a clean and safe environment, complaint redressal
mechanism and the articulation of the right to environment in an international
convention and in giving it a constitutional independent status within the national
system the Supreme Court and the High Courts (referred to as higher judiciary), the
NGT and the NHRC have separate but complementary roles. While the power and
mandate of each of these institutions has been dealt with in the respective chapters a
brief comparison is made here to bring out the most relevant aspects which stand out
in respect of each of these institutions working with a common objective towards the
protection and promotion of human rights.

1. In terms of mandate, the higher judiciary has a constitutional obligation to protect
the human rights of the citizens. It has the power to issue writs of mandamus to
compel the authorities concerned to perform their legal obligations under law. The
Supreme Court is empowered to creatively interpret the constitutional provisions
with a view to advancing human rights. The Supreme Court has laid the foundation
of environmental jurisprudence in the country, expanded the concept of Article 21 to
establish a human right to a clean and safe environment and applied international
principles in addressing domestic environmental problems. Decisions of the
Supreme Court are binding on all courts and tribunals.
The National Green Tribunal (NGT) draws its mandate from the statute 177
establishing it and is the first specialised body in the country set-up with a view to
reduce the burden of litigation in higher courts and to provide speedy environmental
justice. There is a specific recognition in the statute of the judicial pronouncement
regarding the right to a healthy environment as being construed as a part of the right
to life under Article 21 of the Constitution of India. It is empowered to enforce any
legal right relating to environment. While issuing an order, decision or award it
applies the internationally recognised principles which have been incorporated in the
statute178.
The jurisdiction179 of the Tribunal is limited to civil and administrative matters only
in respect of the seven environmental legislations listed in Schedule I 180 which
involve a substantial question relating to environment. The Wildlife Protection Act,
1992 has been left out of its purview. It does not have the power to impose penalties
in case of criminal offences which are listed in the seven environmental legislations
over which it has civil jurisdiction only. The NGT, besides adjudicating violations of
environmental law has the power to provide compensation, relief and restoration of
ecology in accordance with polluter pay principle and enforcement of the
precautionary principle. It is a special fast track court to ensure a balance between
177National Tribunal Act, 2010 ( No 19 of 2010)

178 Section 20 of NGT Act, 2010
179 Sections 14 to 24 in Chapter III of the NGT Act
180 (1) The Water (Prevention and Control of Pollution) Act, 1974, as amended in 1988.
(2) The Water (Prevention and Control of Pollution) Cess Act, 1977, as amended in 1991.
(3) The Forest Conservation Act, 1980, as amended in 1988.
(4) The Air (Prevention and Control of Pollution) Act, 1981, as amended in 1987.
(5) The Environment (Protection) Act, 1986.
(6) The Public Liability Insurance Act, 1991.
(7) The Biodiversity Act, 2002.

environment and sustainable development. The advantage lies in the composition of
the tribunal as it has judicial members as well as technical/specialist members on the
bench. Unlike the other Courts it does not have to rely on external expertise to deal
with multidisciplinary issues. This facilitates decision making. The Tribunal covers
all the regions of the country by following a circuitry procedure.
The National Human Rights Commission of India (NHRC) is a quasi-judicial body,

set up in 1993, with the mandate of ‘better protection of human rights’ and all
‘matters connected therewith or incidental thereto’. Though it has only
recommendatory powers it has other important functions such as monitoring the
human rights situation in the country and advising the government on human rights
issues. Besides complaint handling, NHRC has a unique role of advocacy and
promotion of human rights. The Supreme Court reposes a high level of confidence in
NHRC. Important human rights matters181 have been remitted by the Supreme Court
to NHRC for monitoring and reporting periodically. There has however, been no
remit in respect of environmental matters.
2. In terms of membership, the judges of the higher judiciary are non-specialists in

environmental matters. The advantage in having generalist judges address
environmental issues is that they have a broad vision of national policies. They are
insulated from the political process and can take unpopular decisions ( Rosencranz,
2001). They can compel the defendant project authorities to enhance their budget for
environment protection. The NGT on the other hand has the advantage of having a
balanced mix of judges and experts as members on the bench. As a specialised body
it is competent to address multidisciplinary issues relating to environment and does
not normally rely on outside expertise. The NHRC on the other hand has a mix of
generalist judges and experts whose primary engagement and focus is the protection
and promotion of human rights in the country. The generalists are not necessarily
experts in the field of environment. It therefore lacks the technical knowledge in
environmental issues and has to rely on outside expertise. NHRC very often relies on
the government agencies who are themselves responsible for the human rights
violation.
181 Starvation deaths in Orissa; Monitoring of Mental Hospitals in Agra, Gwalior and Ranchi; Agra
protective Home

3. In terms of case load, the higher judiciary in India is already overburdened with all
types of cases. As on December 2, 2014 the total pendency of cases in the Supreme
Court was 64,919 of which 45,566 matters are more than one year old182. The NGT
has been set up as a fast-track court and it had adjudicated 586 cases183 till May 2014.
As per the statute, it has to ‘endeavour’ to dispose applications and appeals within a
period of six months from the date of initial filing. On an average, it has been
adhering to the timeline184. The NHRC on the other hand does not have a statutory
limit to dispose off a case. The study however showed that in respect of environment
complaints, NHRC disposed only 6% of the cases in less than 6 months and 16%
between 6 months to 1 year. Majority of the cases were disposed between 1-2 years.
Thus, NGT is the appropriate forum for seeking relief in environment related matters
falling within its jurisdiction. However, despite NGT coming into effect NHRC
continues to receive environment related complaints. During the period 2010-2011 to
2012-2013 it had received 987 complaints185. The NHRC, after the amendment of the
PHR Act in 2006 is empowered to send the state related individual complaints to the
respective SHRCs for processing and taking action. These complaints are then
treated as if they were original petitions made to the SHRCs.
4. In terms of procedures, even though the Supreme Court relaxed the rule of
standing and permitted ordinary citizens to approach the court in an informal
manner bringing to its notice matters of public interest, the procedures followed are
highly formal. The court normally appoints amicus curiae to assist it. Decision
making is highly structured and judges often have to rely on the expertise of the
government agencies to consider the policy implications of a case. In dealing with
environmental issues, the court has to appoint independent expert committees to
give inputs and assist in monitoring implementation of judicial decisions or making
on the spot inspections. In respect of the environment cases186, the court had to
innovate new methods in cases where hundreds of litigant industries, municipalities,
pollution control boards and governmental authorities had to file affidavits before it.
In comparison, the NGT as per the statute is not bound by the procedures of the Civil
Procedure Code. It has framed its own procedures187 which are nonetheless formal. A
182 http://supremecourtofindia.nic.in/pendingstat.htm
183 586 cases adjudicated between May 2011 to May 2014.
WWFIndia<http://www.wwfindia.org/about_wwf/enablers/cel/national_green_tribunal/case_summa
ries/
184 ibid
185 NHRC-CMS data as on 13/05/2014
186 MC Mehta v Union of India: WP 3797 of 1985
187 National Green Tribunal ( Practice and Procedure Rules) 2011

minimum fee of one thousand rupees or one percent of the compensation claimed
has to be paid by the applicant at the time of filing the complaint. In contrast, NHRC
can be approached by complainants through a simple letter. The complaint can be in
any language. There is no fee and no lawyer is needed to present the case. The
decision making process is not rigid and structured as the courts. It too has the
flexibility of evolving its own procedures. It would appear that because of the
simplicity of procedure and no costs of filing a complaint people still continue to
approach the NHRC despite the establishment of NGT meant to exclusively handle
environment cases. In two cases in 2013 (Pollution of Ganga at Varanasi, UP and
illegal sand mining in coastal areas of Kerala) the NHRC took suo motu cognisance
based on media reports and issued notice calling for a report from the Secretary,
Ministry of Environment and Forests. In the notice the Commission stated that ‘the
right to safe and clean environment is one of the most important human rights.
Preserving environment is not only important for the present generations but also
the future generations to come’. Lately it has taken up several other issues such as
water pollution due to thermal power plants; disposal of bio-medical waste by
hospitals; air pollution by Visakhapatnam Port Trust; groundwater pollution by
industries in AP; chemical industries in Patancheru and waste management in Delhi.
Assuming a more active role, the NHRC in these cases besides having given notices to
the respective state authorities, has asked its own Special Rapporteurs to investigate
and report188 in the matter.
5. Both, the Supreme Court and the NGT can respond to only those cases that are
brought before it. The NHRC on the other hand has the power to take suo-motu
cognisance of human rights violations anywhere in the country and conduct its own
investigation and make on the spot study. According to the provisions of the National
Green Tribunal Act, 2010, the tribunal has no jurisdiction to act suo motu. The NGT
nevertheless has taken suo-motu cognisance in some cases189. This power has been
challenged before the Madras High Court wherein it has been contended that the
Southern Zone of NGT has been over-stepping its jurisdiction and should be
prohibited from doing so. The Madras High Court has issued an order restraining
the Tribunal from initiating proceedings. Concerns on the NGT overstepping its
jurisdiction were earlier raised by the MoEF as well. The NGT argued that since it is
188
NHRC website nhrc.nic.in/
189
Tribunal at its own motion v Ministry of Environment and Others; Application No 16/2013(CZ) (Suo-
Motu)

empowered to evolve its own procedure, it can take suo motu cognisance of any
environmental problem. The matter is however subject to interpretation by the
Supreme Court.
6. In terms of exercising international influence in promoting the right to

environment as a human right, though the Supreme Court and the NGT do not have
a direct role as compared to NHRC, it may be pertinent to state that the reported
judgments of the Supreme Court have had a far reaching effect. They are used as
references by the judiciary in other jurisdictions. There is adequate literature to
suggest that the contribution of the Supreme Court in expanding the concept of right
to life and relaxing the rules of standing so that ordinary people could petition the
court were hailed as best examples of an innovative and progressive judiciary to meet
the environmental challenges (Werksman, 2009; Amirante, 2012). The Supreme
Court is attentive to the international developments in the field and has not hesitated
to apply international environmental principles in a number of environmental cases.
The NGT unlike the Supreme Court is bound by the statute and can apply only those
international principles which are specifically included in the NGT statute.
The Courts do not have any role in advocacy and promotional measures. The NHRC,
on the other hand, has a specific190 mandate to study treaties and other international
instruments on human rights and make recommendations for their effective
implementation. It interacts with the UN human rights bodies and submits the
report on the human rights situation in the country for the Universal Periodic Review
by the Human Rights Council. In preparing its report it holds several meetings with
all the stakeholders in different parts of the country191. Being in conformity with the
Paris Principles relating to plurality, operational and fiscal independence and
transparency the NHRC enjoys ‘A’ status accreditation by the International
Coordinating Committee of National Human Rights Institutions (ICC). It has
speaking rights and seating at Human Rights Treaty bodies and other UN organs. It
can therefore influence through advocacy the international human rights bodies and
national human rights institutions in the articulation of an international convention
linking environment and human rights and codifying the right to environment.
190 Section 12 (f) of Protection of Human Rights Act, 1993. (Act No.10 of 1994).
191 NHRC Annual Report 2009-2010

To sum up, the judiciary, the NGT and the NHRC have separate but complementary
roles. The Supreme Court is guided by the Constitution of India while the other two
institutions are guided by their respective statutes. There is no overlapping of
functions except in relation to complaints where the petitioners may choose any
forum if the matter is in public interest. The analysis however shows that in
complaint matters the NGT is a more suitable forum to approach. The NHRC,
despite the limitation of enforcement powers has the advantage of playing a wider
role as compared to the courts. It can co-ordinate and discuss policy issues with all
stake holders including the government. It can engage in advocacy and training. It
can undertake research studies and recommend systemic and policy changes to the
government. The government is obliged to respond to the recommendations made by
the NHRC in the form of a report annually submitted to the Parliament. An
important role that the NHRC plays in making government accountable is through
its interaction with the international human rights mechanism and it’s submissions
to the UN Human Rights Council for India’s Universal Periodic Review.
For the preparation of the last UDHR report the NHRC had five regional
consultations and a national consultation with NGOs, academics, officials and State
Human Rights Commissions (SHRCs), even though its mandate and work involve a
continuing dialogue with the Central and State Governments, whose performance on
human rights it evaluates, and with civil society, from which the more serious
complaints are received. According to NHRC, it did so because of the diversity of
India and to ensure that regional priorities were captured192.
In the light of the above, NHRC has a wider and a unique role in protecting and
promoting a right to environment in the national and international context.
9.11 THE WAY FORWARD

1. At the international level, though there has been a general recognition of the
linkage between environment and human rights, the UN and other international
bodies have not succeeded in their relentless efforts made during the last two
decades to arrive at a consensus for codification of the ‘right to environment’ in the
form of an international convention. Nevertheless, the recognition of the ‘right’ at the
regional level, and at the national level by several countries, indicates an encouraging
trend towards addressing concerns pertaining to the environment, health and human
rights in an integrated manner rather than in isolation. Human activities impact the
environment, which, in turn, affects not only human beings but other living creatures
192 NHRC Annual Report 2009-2010

as well. Therefore, it is imperative to protect the eco-system not only for the benefit
of human beings but also for the sake of the environment itself. Thus, in a rights-
based approach, the right to environment would entail a duty on the part of the State
to protect and promote the environment, and citizens would have the right to make
such a claim as a human right. What is, however, more important is that alongside
this right, all citizens, corporate and business houses should realise that they have a
corresponding duty to preserve and protect the environment (Ruggie Principles,
2011).
2. OHCHR and UNEP, the two key institutions at the international level for human
rights and environment respectively have joined hands to take forward the efforts for
codification of a right to environment. The Independent Expert appointed by the UN
to study the human rights obligations relating to the enjoyment of a safe, clean,
healthy and sustainable environment is expected to put forth a more convincing draft
in the light of various developments, which would ultimately influence the world
community to adopt a more positive stance in this direction (UNGA, 2012). As the
National Institutions for the Protection and Promotion of Human Rights (NHRIs)
could play a useful role in expediting the process of codification by acting as
intermediaries between the UN mechanism and their respective governments, NHRC
should actively participate in the discussions and influence NHRIs to lobby with their
respective governments.
3. NHRC is in an advantageous position of raising awareness about the environment

and human rights with all the stakeholders, professionals, schools and universities.
NHRC could persuade the government to incorporate the right to a clean and healthy
environment as an independent substantive right in the Constitution of India rather
than leaving it as a ‘derivative’ right subject to interpretation in each case. The
advantages of having a constitutional right to a healthy environment are already
documented in a recent research (Boyd, 2012). It should also ensure that a range of
procedural rights such as right of people to access information and to participate in
decision-making process are carried out not as a mere formality but effectively so that
the affected persons can exercise their right to environment in a meaningful way.
4. While the aforementioned actions on part of the NHRC are important, in order to
have a more effective role, the way forward for NHRC is to advocate for its
representation in department specific parliamentary committees and persevere with

the government to evolve a mechanism whereby it can interact with members of the
Standing Parliamentary Committees on Environment and Human Rights. This will
give a visibility to NHRC where it can contribute in a meaningful way by interacting
with the elected representatives to carry the environment and human rights agenda
forward.
5. NHRC is placed in a position in which it can take up policy matters with the
government that require systemic changes. It can influence the government to carry
out the Human Rights Impact Assessment (HRIA) of policies, programmes and
projects as a mandatory requirement either by integrating it into the Environment
and Social Human Rights Impact Assessment (ESHIA) process which is already a well
established process or as an independent process. Though some initiatives have been
taken, HRIA is a relatively recent concept and the methodology is still evolving. The
aim of the HRIA is to help governments to comply with their international and
national human rights obligations. It makes policy formulation more coherent and
helps governments to take concrete steps towards progressive realisation of human
rights. A human rights based approach to development includes the principles of
participation, non-discrimination, transparency, accountability and empowerment.
The rights based framework will help decision makers to assess the impact of the
policy proposal on the people likely to be affected so that they can make
improvements in the policy to ensure that they do not adversely affect but rather
promote human rights.
A practical guide193 on how to integrate human rights into environmental, social and
health impact assessments has been developed by IPIECA, the global oil and gas
industry association for environmental and social issues and the Danish Institute for
Human Rights (DIHR) for the oil and gas industry. It is a joint effort of the human
rights practitioners from DIHR and impact assessment practitioners from IPIECA
members. Together they have tried to bridge the gaps in the terminologies, processes
and approaches between the two sets of impact assessments. In a human rights based
approach, development is seen as an entitlement rather than an act of charity and
people affected are seen as rights-holders rather than as stakeholders.
193
Available at www.ipieca.org/system/files/publications/Integrating_HR_into_environmental_social
&HIS_0.pdf

6. The National Institutions for the Protection and Promotion of Human Rights
(NHRIs) play an important role in translating international human rights norms and
standards into practical action at the ground level. In the development of the
International Convention on Persons with Disabilities, NHRC played an active role
right from the drafting stage to its adoption by the world community. The Special
Rapporteur of NHRC represented not only NHRC but the Asia Pacific Forum at the
meetings of the UN Ad hoc Committee wherein she contributed the experience of the
region to elaborate the new Convention. A similar active participation by NHRC is
required to develop a new Convention on a right to a clean and healthy environment.
Acceptability in India is not seen as a major issue. Once enacted, it is to be
implemented by mobilising resources, making information available, transparency,
monitoring and accountability. The incorporation of the right to a clean environment
in the National Action Plan for the Protection and Promotion of Human Rights by the
government will enable a systematic analysis of the situation in the sector, propose
legislative, administrative and other measures to address the issues and build a
national process of accountability. As recommended by the Advisory Council of
Jurists,194 the National Human Rights Institutions can provide a bridge between the
international environment law and human rights law. They are placed in a strategic
position to make recommendations to their respective governments to support the
articulation of a substantive right to environment in the form of an international
convention.
7. In the context of India, as the NHRC enjoys ‘A’ category accreditation with the
International Co-ordination Committee (ICC) of NHRIs it is in a position to exercise
its mandate of advocacy within both, the international system and the national system
to provide a statutory backing for establishing a legal obligation on the State to
enforce the right to a safe and secure environment. Within the national system it
should not be difficult for the NHRC to convince policy-makers to translate this into a
statutory obligation, as the jurisprudence in this direction has already been laid down
by the Supreme Court of India, and a provision to this effect has been incorporated in
the National Green Tribunals Act, 2000.
8. The NHRC should reflect and engage in emerging issues such as ‘intergenerational
equity’ especially in the context of climate justice. The right of the future generations
194Available at: http://www.asiapacificforum.net/support/issues/acj/references/right to environment,

(Accessed on 6 March 2012).

to an environment of quality has generated a debate in the academic circles. The
effects of climate change are being experienced globally. As a form of environmental
justice, a fair treatment of all people present and future is required by the creation of
policies and projects aimed at addressing climate change. The issue most debated is
why we should care about the future generations? Does the future generation have a
right? How can they have rights when they do not exist? These are some of the issues
which signal a deeper reflection.
9. Climate change is an issue of both human rights and fundamental justice. The
effects of climate change are cumulative. Climate change is already having a
profound adverse impact on poorer communities around the world, as they
experience climate shocks of severe droughts, catastrophic storms and floods. They
don’t have the means of providing climate adaptation strategies. Climate change is
disproportionately affecting the daily lives of hundreds of millions of people
jeopardising their fundamental human rights (Robinson, 2012). Human lives,
particularly poor communities are affected by rising temperatures leading to poor
health and environmental problems. The negative impacts of global warming are
evident in respiratory illness, infectious diseases, high rise in energy costs, and
extreme natural disasters such as floods and cyclones. Undoubtedly, the poor bear a
disproportionate burden from the impact of climate change and from ill-designed
government policies. The people most affected are the least responsible for causing
climate change and the least able to cope.
In the context of developing countries where a large population is vulnerable, it is

imperative to protect human rights in the face of climate change. Many developing
countries feel that those countries which have imposed climate change on the rest of
the world are guilty of violating the human rights of people in vulnerable countries
and must be held accountable. The international community must respect the extra
territorial human rights obligations and refrain from taking action that interferes
with the enjoyment of human rights in other countries. They must also prevent
private parties over whom they have influence from interfering in the enjoyment of
human rights in other countries While there is a broad consensus on the relationship
between environment and human rights there is no agreement on whether states
should be obliged to respect human rights of people in other countries for example by
reducing CO2 emissions to safe levels and be held accountable for human rights
violation if they do not( Limon,2009).

10. The right to a safe and healthful environment can be viewed in the context of a
duty to future generations. The duty to protect and preserve the environment stems
from the duty expressed in the theory of ‘intergenerational equity’ which articulates
that we as human beings have inherited a natural and cultural patrimony from past
generations, both as beneficiaries and custodians and we are under a duty to pass it
in the same if not better state to the future generations. This theory finds support
from religious and ethical norms and in modern times from many legal documents
and declarations including the UN Charter and the Bill of Rights endorsing the
principles for protecting the needs of the future generations. The Stockholm
declaration (1972), the Rio declaration (1992), the Framework Convention on
Climate Change incorporated the principle of protecting and improving the
environment, meeting the developmental and environmental needs of the future
generations, and protecting the climate system for the present and future generations.
The obligation to future generations has assumed the proportion of obligations in the
form of erga omnes deriving its source from international customary law.
The question that normally arises is whether this obligation of the present generation
inhere a right on the future generation? There is a continuous relationship between
generations and unless all life on earth becomes extinct altogether one generation
will continue to succeed the other with certainty and regularity. According to
Professor Weis, while rights are always connected with obligations, the reverse is not
true. The rights of the future generations are not rights possessed by individuals but
are generational rights, conceived in the temporal context of generations. The rights
based approach provides the best way to protecting the future generations. Professor
Weis warns that the rights of future generations should not be subservient to the
needs of the present generation. If obligations of the present generation are not
linked to the rights of the future generation, the present generation will have a strong
incentive to bias the obligations in its own favour at the expense of the future
generations. Weis looks at intergenerational rights as a means of preserving the
planet for future generations. (Weis, 1989).
We are using the earth’s resources at an unprecedented rate. The environmental

degradation is taking place so fast that the impact of our actions is becoming
apparent within a short span instead of the too distant future as earlier imagined. In
the context of sustainable development, the intergenerational justice is under threat.
We are consuming the finite resources in the present without leaving anything for the

future generations, our direct descendents. Though regulations are in place in several
countries in the form of emission and effluent standards, requirement of an EIA for
development projects, these may not be adequate to counter any cumulative effect
and long term environmental degradation that may be caused collectively more
specifically in the context of climate change. Decisions made today will affect the
quality of life of generations to come.
Our obligations to the future generation call for a new set of policies to be pursued’.
Paul Wood argues that the discretionary powers of the state need to be curbed to
preserve biodiversity for the future. A constitutional right to a decent environment
would protect the interests of future generations from the living majority’s disregard
for the environment (Wood, 2004). Others believe that a new set of administrative
bodies are needed to strike down laws and policies contrary to the interests of the
future generations. In view of the international dimensions of environmental issues
some advocate the formation of a super agency or an international court vested with
the power to review national legislations with future generations in mind. Rather
than curtailing the powers of the living, some believe that powers of future
generations be increased by entrusting environmental organisations to represent the
unborn in specially reserved parliamentary seats or appoint an ombudsman licensed
to intervene in parliamentary proceedings for future generations. Model statutes195
have been proposed on a rights based framework directed specifically towards the
future generations, definitions that look at long-term state of the environment and
suggest creating an ombudsman for future generation. Several decisions taken in the
present will affect the quality of life for future generations. Future generations will
suffer from the degradation of the environment and the extent to which earth’s
resources are wasted.
According to Professor Baxi 196 the focus should go beyond the intergenerational
equity to the sustainability of the planet itself. Vasudhaiva Kutumbakam a Sanskrit
word which means the whole world is one family. It is morally wrong for human
beings to pollute and destroy parts of the natural environment. It is wrong to say that
the aim of sustainable development is for the human beings (present or future). The
195 An Environment Right for Future Generations: Model State Constitutional Provisions and Model
State; Science and Environment Health Network, International Human Rights Clinic at Harvard law
School. November 2008. Available at http://www.sehn.org
196 Revised Thesis 2015196 Personal Discussion ( 15 September 2014)

natural environment has intrinsic value in its own right and this value ought to be
respected and protected. Environment should not be seen as an instrument for
serving the ends of human beings. The foremost loyalty of all generations should be
towards the planet itself. Each living generation should meet its obligations in
protecting and preserving the planet not because it owes an obligation to the future
generation but because of the obligation to sustain the intrinsic worth of the planet.
If the planet is protected, the consequential benefits will automatically flow to all
generations present and future. Protecting the planet is our biggest challenge.


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CONCLUSION, RECOMMENDATIONS AND THE

The negative effects of pollution and environmental degradation are being

9.1 ENVIRONMENT AND HUMAN RIGHTS

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As discussed in Chapter 1, environment and human rights are inextricably linked

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9.2 EVOLUTION OF THE JURISPRUDENCE TOWARDS A RIGHT TO ENVIRONMENT

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At the national level, a number of countries have incorporated in their constitutions

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9.3 PERSPECTIVES ON THE RIGHT TO ENVIRONMENT

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The arguments against having an independent right to environment articulated at

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9.4 TOWARDS CODIFICATION OF THE RIGHT TO ENVIRONMENT IN THE FORM OF

Although existing human rights instruments facilitate the derivation of a right to

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The human right to a healthy environment includes individual as well as collective

164 Human Rights Council: Resolution 19/10

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Since the right to environment can be regarded as a basic fundamental right, on

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The biggest challenge therefore, in articulation of an independent right to an

9.5 THE RIGHT TO ENVIRONMENT IN THE NATIONAL CONTEXT: JUDICIAL

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In public interest litigation cases relating to pollution and environment related

166 AIR 1986 2 SCC 431

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9.7 THE NATIONAL GREEN TRIBUNAL

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The NGT, in resolving environmental grievances, awarding compensation to the

9.8 THE NATIONAL HUMAN RIGHTS COMMISSION (NHRC)

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9.8.1 PERCEPTION OF THE PEOPLE AND SHORTCOMINGS IN THE COMPLAINT

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9.8.2 THE PROMOTIONAL ROLE OF NHRC

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174 Act No 22 of 2005

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There is no evidence of NHRC having considered or taken up the adoption of a

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9.10 THE DISTINCTIVE BUT COMPLEMENTARY ROLES OF THE HIGHER JUDICIARY,

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177National Tribunal Act, 2010 ( No 19 of 2010)

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The National Human Rights Commission of India (NHRC) is a quasi-judicial body,

2. In terms of membership, the judges of the higher judiciary are non-specialists in

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6. In terms of exercising international influence in promoting the right to

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9.11 THE WAY FORWARD

192 NHRC Annual Report 2009-2010

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3. NHRC is in an advantageous position of raising awareness about the environment

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