The Jurisprudence of Survival: Article 21 and Environmental Rights
Subject: Constitutional Law & Human Rights
Focus: The derivation of Third-Generation Human Rights (Green Rights) from Article 21.
I. Introduction: The Teleological Expansion
From a human rights perspective, the Indian Supreme Court’s interpretation of Article 21 (“No person shall be deprived of his life or personal liberty except according to procedure established by law”) represents one of the most progressive judicial evolutions in the Global South.
Initially viewed as a negative right (protection against state deprivation), the post-Maneka Gandhi (1978) era transformed Article 21 into a positive repository of socio-economic rights. analysis suggests that the Court adopted an anthropocentric human rights approach—reasoning that the “right to life” is rendered nugatory if the environment sustaining that life is degraded. We essentially moved from a “right to existence” to a “right to a dignified existence,” which is impossible in a toxic environment.
II. The International Nexus
The Indian judiciary did not operate in a vacuum. The inclusion of environmental rights under Article 21 draws heavy inspiration from international soft law, specifically:
- The Stockholm Declaration (1972): Often called the Magna Carta of environmental law, asserting that man has a fundamental right to adequate conditions of life in an environment of quality.
- The Rio Declaration (1992): Specifically Principle 1 (Human beings are at the centre of concerns for sustainable development).
The Supreme Court effectively “read in” these international principles into domestic constitutional law, bridging the gap between Dualism and Monism.
III. Landmark Case Laws & Judicial Analysis
The evolution can be traced through a “Green Jurisprudence” timeline. Here are the critical citations:
1. The Genesis: Subhash Kumar v. State of Bihar (1991)
This is the locus classicus where the implied right became explicit. The Court moved beyond mere “protection” to “enjoyment.”
Judicial Remark (Justice K.N. Singh):
“Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.”
Analysis: This ratio transformed environmental litigation. It allowed citizens to approach the Supreme Court directly under Article 32, bypassing lower courts, elevating environmental degradation to a constitutional crisis rather than a mere tortious nuisance.
2. The Precautionary Architect: Vellore Citizens Welfare Forum v. Union of India (1996)
Here, the “Green Judge” (Justice Kuldip Singh) imported customary international law into Article 21.
- The Principles: The Court held that the “Precautionary Principle” (act before damage occurs) and the “Polluter Pays Principle” (liability extends to compensating victims and restoring the ecosystem) are essential features of “Sustainable Development.”
- The Remark: The Court observed that these principles are “part of the environmental law of the land” and flow from the constitutional mandate of Article 21.
3. The Public Trust Doctrine: M.C. Mehta v. Kamal Nath (1997)
The Court scrutinized the diversion of a river by a private entity.
Judicial Philosophy:
The Court invoked the ancient Roman “Public Trust Doctrine,” stating that resources like air, sea, waters, and forests have such great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The State is the “trustee” holding these resources for the “beneficiary” (the people).
4. Intergenerational Equity: Rural Litigation and Entitlement Kendra v. State of U.P. (1985) (The Dehradun Valley Case)
Often cited as the first environmental case in India involving the Supreme Court. The Court ordered the closing of limestone quarries that were disturbing the ecological balance, effectively prioritizing the “Right to Environment” over the “Right to Trade” (Article 19(1)(g)).
5. Recent Frontier: M.K. Ranjitsinh & Ors. v. Union of India (2024) (The Great Indian Bustard Case)
This is critical for a contemporary analysis. The Supreme Court explicitly recognized a “Right to be free from the adverse effects of climate change” as a distinct right under Articles 14 and 21.
Key Observation:
The Court noted that as climate change increases, the guarantee of the right to life becomes distinctively threatened, and thus, climate resilience is now a human right.
IV. Critical Critique
While the jurisprudence is robust, a critical human rights analysis reveals gaps:
- The Implementation Gap: We have what scholars call “symbolic legislation.” While the Supreme Court (SC) issues Continuing Mandamus (keeping cases open for years to monitor compliance, as seen in the Ganga Pollution cases), the executive machinery often fails to enforce these rights on the ground.
- Development vs. Rights: There is an inherent tension between the Right to Development (often backed by the State) and the Right to Environment (backed by communities). The Court often has to play the role of a policy-maker, which raises questions about the Separation of Powers.
- Class Dimensions: Environmental PILs (Public Interest Litigations) have sometimes been criticized for being “elitist”—clearing slums to “beautify” cities and protect the “environment,” inadvertently violating the Right to Shelter of the poor (as seen in some Delhi demolitions).
To conclude, the statement holds true: Article 21 has been the womb from which Indian environmental human rights have been born. The judiciary has successfully expanded the “Right to Life” to mean a “Right to a Livable Life.”
current challenge is no longer establishing the right—that is settled law. The challenge is Horizontal Application: ensuring that this right is enforceable not just against the State, but against powerful non-state corporate actors who are often the primary violators of environmental sanctity.
Building on our previous analysis of Article 21, it requires us to look beyond the existence of the law and examine its efficacy in the face of modern crises.
While the “Right to Environment” is settled law, the current legal landscape is volatile. We are witnessing a clash between Judicial Progressiveism (expanding rights) and Legislative/Executive Regression (diluting norms for economic growth).
Here is a critical analysis of the recent challenges and strategic suggestions for the future of environmental human rights in India.
I. Contemporary Challenges: The “Green” Crisis
The primary challenge today is not the absence of rights, but the systematic weakening of the frameworks designed to protect them.
1. The Challenge of “Legislative Dilution” (The FCA 2023)
The most significant recent setback to Article 21’s environmental guarantee is the Forest (Conservation) Amendment Act, 2023.
- The Issue: The amendment significantly narrows the definition of “forest.” It potentially overrides the landmark T.N. Godavarman (1996) judgment, which protected deemed forests (forests by dictionary meaning, regardless of ownership).
- Human Rights Critique: By removing legal protection from vast tracts of unclassified forests, the State threatens the habitat and livelihood of indigenous communities. This arguably violates the “doctrine of non-regression” (environmental laws should not be weakened once established).
2. The “Green Energy” Paradox (The Great Indian Bustard Case)
- Case: M.K. Ranjitsinh v. Union of India (2024)
- The Conflict: This case presented a unique dilemma: Climate Action (Solar Power) vs. Biodiversity (Endangered Birds). The Great Indian Bustard (GIB) was dying due to collisions with high-voltage power lines used for solar energy.
- The Challenge: The Court had to balance two environmental rights. While the Court established a “Right against adverse effects of climate change,” it also faced pressure from the government that putting power lines underground (to save the bird) would make renewable energy too expensive.
- Critique: This highlights that “Green Development” can sometimes violate the “Right to Environment” if not carefully managed.
3. The “Institutional Incapacity” of Statutory Bodies
- The Problem: The Pollution Control Boards (SPCBs) and the National Green Tribunal (NGT) suffer from severe vacancies and lack of autonomy.
- Observation: In many recent cases (e.g., the Delhi Air Pollution matters), the Supreme Court has had to micromanage executive functions because the statutory bodies failed to act. This “Continuing Mandamus” is a symptom of a broken system, not a cure.
II. Strategic Suggestions:
To strengthen the “Right to a Wholesome Environment” under Article 21, we need structural reforms rather than just more judgments.
1. Legislative Reform: A “Climate Change Act”
- Suggestion: India currently regulates climate change under the umbrella of the Environment Protection Act, 1986, which is outdated. We need a dedicated Climate Change Act.
- Why: To create statutory carbon budgets and legally binding net-zero targets. This moves climate action from “policy promises” (which are hard to enforce in court) to “statutory obligations” (which are writ-enforceable).
2. Procedural Reform: “Climate Impact Assessments” (CIA)
- Suggestion: The current Environmental Impact Assessment (EIA) process focuses on local pollution. It must be upgraded to a Climate Impact Assessment.
- Mechanism: Before approving any project (e.g., a new highway or mine), the State must calculate its “Carbon Footprint” and “Climate Resilience.” If a project disproportionately accelerates climate change, it should be deemed a violation of Article 21.
3. Judicial Innovation: The “Non-Regression” Principle
- Suggestion: The Supreme Court should explicitly recognize the Principle of Non-Regression as part of the Basic Structure of the Constitution.
- Effect: This would act as a judicial check on the Parliament. If the legislature tries to amend laws to weaken environmental protection (like the FCA 2023), the Court could strike it down as unconstitutional because it violates the fundamental right to life.
4. Corporate Accountability: Horizontal Application of Rights
- Suggestion: Move beyond State liability. Courts must enforce environmental rights directly against corporations.
- Trend: Inspired by global trends (like the Shell case in the Netherlands), Indian courts should hold that large corporations have a “Duty of Care” under Article 21 to reduce emissions, irrespective of government regulations.
Summary Table: From Problems to Solutions
| Current Challenge | Legal/Human Rights Issue | Proposed Solution |
| FCA Amendment 2023 | Removal of protection for “deemed forests.” | Apply Non-Regression Principle to strike down dilution. |
| GIB / Solar Conflict | Green Energy vs. Biodiversity. | Holistic EIAs that include biodiversity impact of green infra. |
| Weak Enforcement | SPCBs are politically controlled and underfunded. | Independent Environmental Regulator (constitutional status like Election Commission). |
| Climate Vagueness | No specific law for climate change rights. | Enact a specific Climate Change Act with enforceable targets. |
