Delhi offers a perfect example to study the paradox which exists between right to environment and right to development. It is difficult to draw a line between both the rights as both of them clearly could not be said to co-exist.
By Saurabh Bindal
Every newspaper one reads is talking about the state of air quality in Delhi, the capital of India. If you get to come to Delhi it is advised that you do so at your own risk. Delhi offers a perfect example to study the paradox which exists between right to environment and right to development. It is difficult to draw a line between both the rights as both of them clearly could not be said to co-exist. The leitmotif of this piece is to enlighten the readers about the paradox called reconciliation of right to environment with the right to development.
What is Right to Environment?
Right to environment lends support from the reading of Article 48 A from the Directive Principles of State Policy and Article 51A(g) from the chapter on fundamental duties. Right to development also basis its premise on Directive Principles of State Policy. Interestingly, both right to environment and right to development have been read by the Indian judiciary to draw their genesis from Article 21, which serves as a crutch under the Constitution of India.
Before these rights were read as part and parcel of Article 21 of the Constitution of India, they denoted the socio-economic rights towards which a State was obligated to take positive steps for accomplishment. Socio-economic rights, which form part of the Directive Principles of State Policy under the Constitution of India are read as positive un-enforceable rights for which a State is obligated to work upon based on its resources. These human rights are so essential for the well-being of an individual, and society as a whole, that their enforcement was entrusted by the framers of the Constitution of India to the State. The intention of our forefathers was to lay an effective tract, by which, the realization of the socio-economic needs of the society were to be guaranteed by the State.
Right to Development
Reading of the right to development and right to environment under the chapter on fundamental rights under the Constitution of India, not only disbalances the right duty equilibrium maintained by the drafters of the Constitution, but also casts a negative obligation on the State to not make laws which hinders right to development and right to environment. The readers may notice that the positive obligation of the State has now been read by the judiciary as a negative obligation. The difference in these obligations was summed up in Parliamentary Debates (Lok Sabha), Part II, 16th May 1951, Constitution (First Amendment Bill), col. 8822 in the following words “The Directive principles of State Policy represent a dynamic move towards certain objectives. The Fundamental rights represent something static, to preserve certain rights which exist. Both again are right. But somehow and sometimes it might so happen that dynamic movement and that static standstill do not quite fit into each other”.
However, this being said, the question that now arises is whether a balance can be achieved between the two rights which have to co-exist as enforceable rights. For drawing a chart in which both these rights could coexist, the Indian judiciary read the concept of sustainable development under Indian law.
Sustainable Development and Right to Development
Sustainable development means the type or extent of development that can take place, and which can be sustained by nature/ ecology with or without mitigation. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to reasonable person test. The conundrum which now remains is whether public interest will tilt towards the right to environment or right to development.
In the author’s opinion, right to environment should always lead the way when in conflict with the right to development in the larger public interest. It is the obligation of the State to ensure the existence of these rights with the resources it has. The paradox called right to environment and right to development could only be untied if progressive steps are taken for enforcement of both the rights by the State. Casting such rights, by reading them under Article 21, gives an opportunity to the State to shirk its responsibility to enforce such rights. More than the judiciary, which is trying to strike a balance between the two rights, the State should be obligated to positively work towards these rights. Howsoever euphoric may it sound, the existence of both the rights in the same basket is still a distant dream.
Delhi offers a perfect canvass for us to see whether the judiciary will take steps to maintain a balance between right to environment and right to development and at what cost or whether, State, in terms of its cast obligations will secure peace amongst the two raging rights.
(The author is an Advocate by profession and has a deep interest in the information technology sector. Views expressed are the author’s own.)