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‘How do you define environmental rights?’ by SH Kapadia

Environmental protection within particular societies involves a complex balancing process and ordering of socio-economic priorities. In relation to other rights, where does an environmental right fit into a hierarchy of human rights and how should the conflicts with other human rights, such as right to property/ livelihood, be resolved? How to balance environmental protection with a general or collective right to economic development?

Indian courts have proceeded by balancing interests and striking compromises. Environment and development have been accommodated in a framework of balancing and ad hoc equity rather than an absolute application of rights in the context of prevailing norms and community preferences. This is where restriction of environmental rights comes in. Thus, our courts have taken the view that there cannot be one universal applicable standard to judge all environments. One of the reasons being the problem of defining environmental rights so as to satisfy diverse ethical and cultural criteria.

To secure effective implementation, “rights” must be determinate in scope and consistent in formulation. How should “substantive environmental right” be defined? Which dimensions of the environment are to be protected? What degree of environmental change is permissible? In a survey of existing constitutional and statutory provisions relating to environmental quality, one finds a series of adjectives attached to the word “environment” such as “decent”, “viable”, “ecologically balanced”, “clean”, “healthy”, etc.

Why is this exercise of defining so difficult? One reason is that precise qualitative and quantitative dimensions of environmental protection are not readily translated into legal terms. Secondly, there is no uniformity of opinion on the definition of environmental rights. Difficult ethical decisions are at stake: are we to protect livelihood or ecological sustainability? Underlying such questions are different conceptions of the good life, involving moral choices of the most profound nature. Even where a precise textual definition exists, moral choices will lie in its interpretation. The appropriate authorities (including courts) will still be involved in balancing competing claims. Which standards would apply in the context of imperfect knowledge and scientific uncertainty? Hence, the need for regulatory mechanism. Courts are reactive, regulators are proactive. However, procedural as against substantive environmental rights are more effective.

A range of procedural environmental rights are effective and relevant to environmental protection, viz., right to information, right to be informed in advance of the environmental risk, right to participate in the decision-making process on environmental issues; right to environmental impact assessments; right to legal redress. There is another argument in favour of a procedural environmental right, rather than a substantive right, which is this: because the desired quality of the environment is a value judgment which is difficult to codify in legal language and which will vary across cultures and societies. Hence, it is difficult to arrive at a single precise formulation of a substantive right to a decent environment.

The solution lies in empowering people with robust procedural rights which will foster open a thorough debate on the matter. Much of the same argument applies to the pursuit of sustainable development. Moreover, problems of definition can be got over by adopting a more specific focus, for example on health, pollution etc. rather than on vague and subjective criteria of decency, satisfaction or viability. Lastly, we need to allow a significant “margin of appreciation” to those who interpret and apply the environmental laws. As stated above, a right to a substantive environment is too relative to have a common, universal core of meaning applicable to all. The Indian jurisprudence represents the high watermark of reformulated rights. In Span Motels case, the Supreme Court observed: “The aesthetic use and the pristine glory of the natural resources cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources”.

This formulation appears to suggest that it is the court alone that is the guardian of the said resources. As against this, even the purists accept that environmental protection entails a delicate balance between protection of the environment and other competing equities. It cannot be gainsaid that the utilisation of the environment and its natural resources has to be in a way that is consistent with the principles of sustainable development, but balancing these equities may entail policy choices.

In the ultimate analysis, the choice of the elected representatives of the people cannot be entirely supplanted by the wisdom of the court. In the circumstances, decisions relating to the utilisation of natural resources for productive purposes have to be tested on the anvil of the well-recognised principles of judicial review; is the decision strictly in accordance with the legislative policy underlying the law, if any, that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Subject to the above parameters, the doctrine of “margin of appreciation” should be made available to the decision making authority.

Excerpted from the CJI’s speech at the valedictory session of the International Seminar on Global Environment and Disaster Management in Delhi on July 24