Law analysis
Constitutional analysis of right to environment
S. M. Masum Billah
In our constitution there is no specific fundamental right dealing with environment. It has also not found a place in the fundamental principles of state policy. The pledge in the preamble for ensuring 'fundamental human rights and freedoms' and imposition of duty 'to protect public property' in Article 21 of our Constitution, has given a safeguard against degradation of environment. A combined interpretation of Article 31 and Article 32 is often said to form the basis of 'right to environment' under Bangladesh Constitution. Article 31 states that every citizen has the right to protection from action detrimental to the life liberty, body, reputation, or property, except in accordance with law. Article 32 envisages that no person shall be deprived of life or personal liberty, save in accordance with law. These two articles together incorporate the fundamental 'right to life'. The judiciary of Bangladesh has also widened the horizon of 'right to life' as an all encompassing right, 'right to healthy environment' being inclusive within it. Apart from this, Article 15 can be said to engulf the essence of sustainable development. It goes like this, “it shall be a fundamental responsibility of the State to attain, through planned economic growth, a constant increase of productive forces and a steady improvement in the material and cultural standard of living of the people.” Indeed, planned economic growth, constant increase and material standard of living are the ringing tune of sustainable development. With this essence of sustainable development in concentration, Bangladesh has already signed, ratified and acceded to almost 22 international conventions, treaties and protocols related to environment including the UNCCD. There are almost 200 laws in Bangladesh dealing with environment or having environmental connotations. The state owes a constitutional responsibility to carry out the statutory obligations and international law commitments.
FAP-20 Case- a landmark in our legal history: Dr. M. Farooque v. Bangladesh 49 DLR (AD) (1997) 1 is a trend setter in the history of our constitutional dispensation. This case is also known as FAP-20 Case. In this case, Dr. Farooque challenged the validity of some flood action programs taken by the government in 1995. The main allegation of the Appellant was that the project would adversely affect and injure more than a million people by way of displacement, damage to the soil, destruction of natural habitat of fishes, flora and fauna and creating a drainage problem, threatening human health and worsening sanitation and drinking water supplies. It was alleged that the project would create environmental hazards and ecological imbalance. Accepting the contentions of the Appellant and allowing the locus standi the Appellate Division held that any encroachment to fundamental rights including right to healthy environment is amenable to judicial scrutiny under Article 102 of the Bangladesh Constitution. Justice ATM Afzal declared rather empathically, in the 'context of engaging concerns for the conservation of environment, irrespective of the locality where it is threatened any person' should be attributed a 'threshold standing' to have his grievance mitigated.
Justice B. B. Roy Chowdhury made it clearer when he said “Articles 31 and 32 of our Constitution protect right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.” The constitutional urge to assimilate international environmental law within the domestic sphere was vivid in this landmark case.
Post-Mohiuddin Farooque: The FAP-20 case opened a new dimension of Public Interest Litigation in Bangladesh. This later has been coined as Public Interest Environmental Litigation. The post-FAP-20 case era is circumscribed largely by the environmental concerns and challenges. Bangladesh Environmental Lawyers Association (BELA) seems to lead from the front to this respect. In more than 40 cases having environmental concerns and implications BELA along with other sister organizations have challenged and obtained rule under the umbrella of FAP- 20 case's interpretation and Article 32 of the Bangladesh Constitution. Commercial shrimp cultivation, vehicular pollution, unlawful construction of brick fields, industrial pollution, hill cutting, gas explosion in Magurchara, Illegal lake fill up, removing tannery to out side Dhaka city, encroachment of rivers, Filling up Ashulia flood flow zone etc are a few to name among those.
Indian Constitution in parlance: Indian Constitution was originally bereft of any reference to environment. By the Constitution (Forty-second Amendment) Act, 1976, Article 48 A was introduced as a new Directive Principle of State Policy. Prior to this the Indian judiciary interpreted right to environment to be encompassing within right to life. According to Article 48-A "the State shall Endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country". Article 51-A in the form of "Fundamental Duties" was also incorporated by the 42nd Amendment, a provision of which reads as thus "it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures". So the Indian Constitution speak about two-fold responsibilities. On the one hand, it enjoins the State to take steps for protection and improvement of the environment, and on the other hand it casts a duty on every citizen to help in the preservation of natural environment. In the case of Virender Gour v. State of Haryana (1995) 2 SCC 577 at p. 580, the Indian Supreme Court observed that the sate particularly has a duty to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic government. The Indian constitutional jurisprudence may help us to enlighten our environmental law and to re-asses the constitutional recognition of this right, at least as a negative right within the ambit of Fundamental Principles of State Policy expressly.
The World Commission on Environment and Development in its report in 1987 opined that (also quoted in FAP-20 case, at para 100) “[E]nvironmental protection and sustainable development must be an integral part of the mandates of all agencies of governments, of international organizations and major private sector institutions. These must be made responsible and accountable for ensuring that their policies programs and budgets encourage and support activities that are economically and ecologically sustainable both in short and longer terms.” If the state becomes failure to vindicate these purposes, the lofty ideals of the Constitution would be a nugatory. Infringement of right to environment should not be restricted to the violation of defined fundamental rights alone. In this modern age of technology, scientific advancement, economic progress and industrial growth the socio economic rights are under phenomenal change. Now, rights are emerging which call for collective protection and therefore we must act to protect all the constitutional, fundamental and statutory rights as contemplated within the four corners of our Constitution.
S. M. Masum Billah is Assistant Professor, Department of Law Northern University Bangladesh.
