Recognising a judicially enforceable right to environment

The issue of climate justice in Bangladesh has long been relegated to the footnotes of constitutional discourse. In the original version of our Constitution, environmentalism was regarded neither as a constitutional right nor as a state policy. When the Fifteenth Amendment of the Constitution introduced Article 18A in 2011, it was the first express mention made within the Constitution itself of environmental protection. However, the clause was incorporated in the non-binding part of the Constitution, namely ‘Fundamental Principles of State Policy’. As such, the so-called “right” to the environment was no more than an empty promise, due to the provision of Article 8(2) that renders fundamental principles judicially unenforceable. Indeed, Article 18A simply requires the state to “protect and improve the environment”, but it does not grant citizens an enforceable right. As such, the courts have had to continuously rely on a dynamic interpretation of Article 32 of the right to life. In the cases Grameenphone Ltd v BTRC and Nazrul and Brothers Ltd v Government of Bangladesh (2020), arguments referencing Article 18A were made only tangentially to underscore the inherent shortcomings of the prevailing system of laws. This conundrum leads to two main concerns: first, environmental rights depend on broad judicial interpretations of the right to life, which can potentially dilute the right to life; second, environmental governance is based on the discretion of the executive rather than citizen-activated mechanisms of enforcement. 

Bangladesh can no longer ignore the enforceability of environmental rights. The UN Human Rights Council Resolution 48/13 (2021) and the UN General Assembly Resolution 76/300 (2022) affirm the right to a clean, healthy, and sustainable environment. The recent 2025 Advisory Opinion of the International Court of Justice in respect of Climate Change reiterated that certain rules of international law relating to climate system, may give rise to erga omnes obligations binding upon all states regardless of their treaty memberships. Moreover, the Court recognised that climate-related obligations do not only derive from treaties, such as the Kyoto Protocol, and Paris Agreement, but also from customary international law norms. Notably, Bangladesh’s very submissions before the ICJ itself expressly acknowledged that this right is “now well accepted under international law”. Accordingly, in my opinion, to deny judicial enforceability at the national level is to do what Bangladesh itself has denounced at the international level. 

The end of authoritarian government in 2024 has created what was dubbed by some scholars a “constitutional moment”, when fundamental constitutional changes are possible. Other post-authoritarian contexts elsewhere demonstrate how progressive environmental rights are incorporated within the constitutions. South Africa incorporated within its 1996 Constitution an enforceable right to an environment not harmful to health or well-being, and Kenya incorporated within its 2010 Constitution a right specifically to a clean and healthy environment. Kenyan jurisprudence, especially per the judgment Peter K. Waweru v Republic (2006), shows that these rights can be made justiciable by balancing environmental integrity and public interest. Both countries reveal that ESC rights, once relegated to a secondary status as non-justiciable, can be both incorporated and enforced without depriving democratic governance. 

In this light, it needs to be mentioned that the Constitution Reform Commission of Bangladesh has emulated this comparative trend by calling for entrenching progressive environmental rights within the Constitution. Failing to take advantage of this would entail forfeiting a crucial moment of rights-based rejuvenation. 

Critics regularly contend that judicial protection of ESC rights poses the peril of judicial overreach on issues of policy and allocation of resources. However, comparative constitutional practice inform that courts can practice restraint and, at the same time, ensure accountability. The popular case Minister of Health v Treatment Action Campaign (2002) of the South African Constitutional Court is a key example in this regard. Analogously, progressive realisation of duties empowers courts to reconcile rights protection with available resources. Far from upsetting separation of powers, judicially enforceable ESC rights can strengthen democratic accountability and hold the state to account for its inaction. 

Budgetary constraints are yet another usual counterargument. However, budgetary issue may arise in cases relating to civil and political rights as well. In conclusion, in order to meet international standards of law and comparative practice, Bangladesh must move beyond its prevailing reliance on expansive reading of the right to life. While the courts have commendably expanded the ambit of Article 32 to encompass environmental concerns, this method is unhelpful both for the sake of rights and state’s duties. Granting a justiciable right to a safe, clean, healthy, sustainable, and balanced environment would increase clarity in governance, consistency in application and enforcement of rules.

The writer is student of Law, University of Dhaka.