Constitutional environmental rights in South Asia

The concept of constitutionalising environmental rights refers to the embedding of the protection of environment into the country’s constitution. Such environmental rights can be constitutionalised by establishing them as substantive rights, such as a fundamental right to a healthy and safe environment, by incorporating them into procedural rights, such as the public’s right to information and multi-stakeholder participation in environmental decision-making, or by imposing a state obligation to protect the environment. Due to South Asia’s vulnerability to climate change, the region’s judiciary and legislature have been proactive in changing how environmental laws are enforced in light of fundamental human rights.

To begin with, Bangladesh has codified the provision for the protection and improvement of the environment and biodiversity through the 15th amendment to the Constitution. Article 18A imposes an obligation upon the state to preserve and safeguard its natural resources, along with wetlands, forests, and wildlife, for the present and future generations. However, the said provision is in Part II of the Constitution and lacks judicial enforceability. Nevertheless, the fundamental principles of the state policy cast an obligation upon the government to act to achieve them. Thus, the incorporation of an environmental protection clause within the Constitution (although in Part II) is a step in the right direction.

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Due to South Asia’s vulnerability to climate change, the judiciary and legislature of the region have been proactive in changing how environmental laws are enforced in light of fundamental human rights.

The case of Dr Mohiuddin Farooque v Bangladesh (1996) marked the first instance where the Court acknowledged the importance of environmental protection and gave an extensive interpretation to ‘the right to life’, stating that the right will include the enjoyment of pollution-free water and air. Similarly, in the writ petition of Nishat Jute Mills v Human Rights and Peace for Bangladesh (2019), the Court granted the Turag River and every river flowing through Bangladesh the status of a legal person.

In a similar manner, India also incorporated Article 48A in their Constitution to provide better means to preserve and protect the environment. The provision provided in this article puts the responsibility upon the state to conserve and enhance the environment and to maintain the forests and wildlife. Likewise, Article 51A(g) has imposed a duty upon every citizen in India to protect and improve the natural environment. The Indian court, in the case of Kinkri Devi v State of Himachal Pradesh (1987), held that Articles 48A and 51A(g) have stressed upon both the state’s obligation to protect and improve the environment, and its citizens’ duty to improve the environmental conditions as well as conserve forests, flora, fauna, rivers, lakes, and other sources of water in the nation.

Pakistan incorporated a new fundamental right in its Constitution in the form of Article 9A. The Article guarantees the right to an environment free from pollution without drawing an inference from ‘the right to life’. Before the promulgation of Article 9A, there existed extensive judicial interpretation of Article 9. For instance, in the case of Shehla Zia v WAPDA (1994), the court expanded the scope of the right to life to include a right to a healthy environment. With the adoption of the new Article, the previous inference was formalised by removing ambiguity.

In the same manner, the Sri Lankan Constitution, under Article 27(14), casts a duty upon the state to protect, preserve, and improve the environment for the benefit of the community. Similarly, under Article 28(f), in exercising the rights and freedoms, it is the duty of every person in Sri Lanka to protect nature and conserve its riches. However, both of these provisions fall under Chapter VI of the Constitution, which imposes mere duties and are not enforceable by any court or tribunal. However, even without explicitly enumerating enforceable environmental rights, the Supreme Court of Sri Lanka has made significant strides towards increasing the protection of the environment through its judicial decisions, like the Eppawala Phosphate case. This case is significant because it referred to the public trust doctrine in relation to natural resources.  It can be said that the process of constitutionalising environmental rights in South Asia has seen a transition from judicial activism to legislative actions.

Whereas countries, such as Bangladesh and Sri Lanka, still depend heavily on the interpretation of their judicial branches to bring life to unenforceable policies, Pakistan’s recently amended Constitution recognises an environment free of pollution as an absolute fundamental right. Since South Asia faces unprecedented environmental threats, being one of the most environmentally vulnerable parts of the world, these legal discussions are not simple intellectual exercises; they have become matters of survival.

The writer is a research associate at Law Lab.