Exercising right to environment

Nature is the common binding force of mankind, and to preserve it, mankind must make constant efforts. But man's greed attacks nature, environment and ecology. An environment is a set of natural, artificial or man-made, physical, chemical and biological elements that make the existence, transformation and development of living organisms possible. Emergence of environmental law is due to the need to conserve the environment in order to avoid its destruction and maintain a congenial quality of life.
 Environmental law comprises those substantive, procedural and institutional rules of international law which focus, as their primary objective, protection of the environment and maintenance of the quality of life. The Universal Declaration of Human Right, 1948 has also given emphasis on quality of life. Article 3 and Article 25 of the declaration recognise the right to life, liberty and security of human beings along with the standard of living. Article 29 of the declaration imposes duty on the individual towards the community through which free and full development of his/her personality could be possible.
So, there is a close relationship between development and conservation of environment. This relationship was acknowledged at the Stockholm Conference on Human Environment, 1972. The right to environment has been receiving increasing recognition in the Constitutions of several countries. In March 2005, France adopted the Charter for the Environment and gave it a constitutional status. The preamble of the 1958 Constitution, the founding text of the 5th Republic, now reads as follows: "The French people solemnly proclaim their attachment to Human Rights and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004."
The Constitution of Switzerland has also incorporated a detailed provision on protection of environment. Article 73 refers to sustainable development, Article 74 deals with the protection of environment, Article 76 deals with the protection of water from contamination, Article 77 refers to protection and preservation of forestry.
Article 26 of the Constitution of Republic of China affirms, "The state protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards"
Article 25 of Japanese Constitution states, "All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the State shall put its endeavours for the promotion and extension of social welfare and security, and of public health".
Article 42 of the Russian Constitution states, "Everyone shall have the right to a favourable environment, reliable information about its condition and to compensation for the damage caused to his or her health or property by ecological violations."
The constitution of South Africa also confers constitutional status to the right to environment. Section 24 of the Constitution of South Africa states, "Everyone has the right-(a) to an environment that is not harmful to health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that--(i) prevent pollution and ecological degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development."
Article 35 of the Korean constitution states, "All citizens shall have the right to a healthy and pleasant environment." Article 46 of the constitution states, "Each citizen shall have the right to a healthy and pleasant environment.
More than 60 countries directly confer constitutional status to the right to congenial environment. Bangladesh has also adopted constitutional rights to protect the environment and human rights. The right to life, a fundamental right, has been extended to the right to a healthy environment. 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 lived.
In Bangladesh, public interest litigation has proved to be an effective in environment protection initiatives. PIL on environmental issues are called public interest environmental litigation (PIEL).The first PIEL has been 'Dr. Mohiuddin Farooque vs the Government of Bangladesh'. In the case, the Supreme Court has recognised the right of 'any citizen' or any voluntary organisation to file writ petition seeking remedy where a public injury has been caused. This has opened a new avenue in the era of environmental law. There was another case - 'Khushi Kabir and others vs the Government of Bangladesh and others' that related to commercial shrimp cultivation and its adverse effect on the socio-economic development.
In Bangladesh, the legal framework is the recent Bangladesh Environment Conservation Act 1995 (amended 2010). This Act was enacted to provide for conservation and improvement of environmental standards and to control and mitigate pollution of the environment. The Act combines precautionary approach as well as penal measures against the polluter.
The Environmental Conservation Rules 1997 determine the standards of air quality, water quality, noise quality, motor vehicle exhaust quality and sewer and waste discharge quality. The rules and procedures of environmental impacts assessment (EIA) are also guided by the Environment Conservation Act 1995 (amended 2010) and the Rules of 1997. Implementation of law and the rules is not promising as the pollution standards are being laid down by various government agencies. Moreover, the agencies are in charge of implementing them. Only in limited cases, citizens have access to justice through environmental legislation. For example, in Bangladesh, the committee of Environment has identified some 903 polluting companies in 1989. However, no action was taken against them.  Similar is the case with river encroachment and public park encroachment where the cases are pending with the court. Environmental pollution on the nature of private nusiance can be prevented under the codified tort principles in Bangladesh.
Environmental wrongs may be redressed by invoking section 91 of the Code of Civil procedure 1908 which provides that a suit for declaration or for injunction or for other appropriate relief may be instituted by the attorney general or with his consent, by two or more persons for resloving a public nuisance or any other wrongful act affecting or likely to affect the public. This section encourages community proceedings and is very simple to invoke. But it is also of little use in Bangladesh. However, one may also get relief against environmental wrongs under sections 133 and 144 of the Code of Criminal Procedure 1898, (Cr.P.C). Section 133 empowers a magistrate to issue a conditional order for redressal of nuisance. On the other hand, Section 144 of the Cr.P.C empowers the court to issue order at once in urgent cases of nusiance or apprehended danger. Furthermore, under sections 52 to 55 of the specific Relief Act 1877 together with order 39 rules 1 and 2 of Code of Civil Procedure, steps for temporary injunctions can be taken in order to prevent environmental pollution, committed already or likely to be committed in future.
In Bangladesh, the right to environment is yet to be widely exercised by the citizens. Bangladesh requires many changes and reforms in the legal framework in order to pave the way for protection of environment from degradation.
The writer is senior lecturer, World University of Bangladesh.
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