Term Paper for Comparative Constitutional Law of SAARC

Nations(2024)

Topic: Environmental Constitutionalism In South Asia: Analyzing The

Frameworks And Judicial Activism In India, Pakistan, And Bangladesh

Course: Comparative Constitutional Law of SAARC Nations

(Compulsory Paper)

Course Code: LW002

Course Instructor’s name: Dr. Balram Raut

Date of submission: 22:11:2024

 Submitted by: Shri Kant Kumar, LLM (1st Semester)

Enrollment Number: SAU/LLM/2024/63

South Asian University

ENVIRONMENTAL CONSTITUTIONALISM IN SOUTH ASIA: ANALYZING THE

FRAMEWORKS AND JUDICIAL ACTIVISM IN INDIA, PAKISTAN, AND BANGLADESH

Abstract

This article explores the evolving landscape of environmental constitutionalism in

South Asia, focusing on India, Pakistan, and Bangladesh. It examines how these
countries have integrated environmental rights within their constitutional
frameworks, particularly through the lens of the right to life. The article highlights
landmark judgments that have shaped environmental jurisprudence in the region, the
role of public interest litigation, and the challenges faced by courts in enforcing
environmental rights. By analyzing the historical context and judicial approaches, this
study aims to provide insights into the effectiveness of constitutional mechanisms
in promoting environmental protection.

1. Introduction

The intersection of environmental issues and constitutional rights has gained

prominence in recent decades, particularly in the context of post-colonial states in
South Asia. The recognition of the right to a clean and healthy environment as an
integral part of the right to life has prompted significant judicial activism in India,
Pakistan, and Bangladesh. This article delves into the constitutional frameworks of
these countries, examining how they have adapted to address environmental
concerns while navigating the complexities of socio-political realities.

2. Constitutional Design and Relevance

2.1 India

The Indian Constitution, enacted in 1949, is a pioneering document that incorporates

Directive Principles of State Policy (DPSPs). The 42nd Amendment in 1976 explicitly
recognized the state's duty to protect the environment, stating, "The State shall
endeavour to protect and improve the environment and to safeguard the forests and
wildlife of the country"1. Furthermore, Article 51A(g) mandates citizens to protect
and improve the natural environment, establishing a dual responsibility for both the
state and citizens.2

The Supreme Court of India has interpreted these provisions to expand the
scope of the right to life under Article 21, linking it directly to environmental
protection.3 This judicial interpretation has paved the way for numerous landmark
rulings that emphasize the importance of a clean environment as a fundamental
right.4

2.2 Pakistan

In contrast, Pakistan's Constitution of 1973 initially lacked explicit provisions for

environmental protection. However, the 18th Amendment in 2010 devolved powers
to provinces, allowing for more localized environmental governance.5 Despite the
absence of specific environmental rights, Pakistani courts have interpreted the right
to life under Article 9 to include the right to a healthy environment, demonstrating
judicial creativity in advancing environmental causes.6

The Supreme Court has emphasized that the state has a duty to protect the
environment as part of its obligations under the Constitution.7 This evolving
jurisprudence reflects a growing recognition of environmental rights within the legal
framework of Pakistan.

2.3 Bangladesh

Bangladesh’s Constitution underwent a significant amendment in 2011,

incorporating environmental protection as a fundamental principle of state policy.
Article 18A states, "The State shall endeavour to protect and improve the
environment and to preserve and safeguard the natural resources, biodiversity,

1
Article 48A, Constitution of India
2
Farrukh, M. S. (2023). Environmental Constitutionalism in South Asia: A Comparative Study of India,
Pakistan, and Bangladesh. Central European University.

3
M.C. Mehta v. Union of India, AIR 1996 SUPREME COURT 2231
4
Farrukh, 2023
5
Ibid.
6
Ms. Shehla Zia v. WAPDA, PLD 1994 SC 693
7
Asghar Leghari v. Federation of Pakistan, (2015) W.P. No. 25501/201
wetlands, forests, and wildlife for the present and future citizens".8 This amendment
reflects a growing recognition of the importance of environmental rights within the
constitutional framework.

The judiciary in Bangladesh has also recognized the right to a healthy

environment as part of he right to life, linking it to the fundamental rights enshrined
in the Constitution.9 This judicial approach underscores the importance of
environmental protection in the context of human rights.

3. Landmark Judgments in Environmental Jurisprudence

3.1 India

The Indian judiciary has played a pivotal role in shaping environmental jurisprudence
through landmark judgments. In the case of Rural Litigation and Entitlement vs. State
of Uttar Pradesh (1985)10, the Supreme Court halted mining operations in the
Himalayas, emphasizing the need to safeguard ecological balance as part of the
right to life. The court's proactive stance underscored the judiciary's commitment to
environmental protection.

In Subash Kumar v. State of Bihar (1991)11, the Supreme Court further

expanded the scope of the right to life to include the right to enjoyment of pollution-
free water and air, reinforcing the idea that environmental degradation directly
impacts human rights. This landmark ruling laid the foundation for subsequent
cases that addressed various environmental issues.

3 .2 Pakistan

In Pakistan, the judiciary has also taken significant steps to incorporate

environmental rights into the right to life. The case of Shehla Zia v. WAPDA (1994)12
marked a turning point, where the Supreme Court recognized the potential health
hazards of electromagnetic fields from a proposed electricity grid station, asserting
that the right to life encompasses a healthy environment. This case set a precedent
for future rulings that would further expand the interpretation of the right to life to

8
Constitution of Bangladesh, Article 18A
9
Dr. Mohiuddin Farooqe v. Bangladesh, 1997, WP 6020/1997
10
AIR 1985 SC 652
11
AIR 1991 SC 420
12
PLD 1994 SC 693
include environmental considerations.

The Sindh Institute of Urology and Transplantation vs. Nestle Milkpak

Limited (2005)13 case further exemplified the application of the public trust doctrine,
where the court declared underground water a public trust, emphasizing the state's
duty to protect natural resources for the benefit of society. This ruling highlighted the
judiciary's role in safeguarding public interests against private exploitation of natural
resources.

3.3 Bangladesh

Bangladesh has witnessed a similar evolution in environmental jurisprudence. In Dr.

Mohiuddin Farooqe vs. Bangladesh (1997)14, the Supreme Court recognized the right
to a healthy environment as part of the right to life, stating, "Although we do not have
any provision like Article 48A of the Indian Constitution for the protection and
improvement of the environment, Articles 31 and 32 of our Constitution protect the
right to life as a fundamental right". This case marked a significant step in
recognizing environmental rights within the constitutional framework of Bangladesh.

In BLAST and Others v. Bangladesh (2000)15, the court ordered the phasing
out of polluting vehicles in Dhaka, demonstrating its commitment to addressing
vehicular pollution as a violation of the right to life. This ruling underscored the
judiciary's proactive approach in tackling environmental issues through legal
mechanisms.

4. The Role of Public Interest Litigation

Public interest litigation (PIL) has emerged as a powerful tool in South Asia for
advancing environmental rights. This legal mechanism allows individuals or groups
to file petitions on behalf of those unable to do so, thereby democratizing access to
justice. In India, the Supreme Court has actively encouraged PILs, leading to
significant environmental rulings that have shaped the landscape of environmental
law.

In Pakistan, the judiciary has similarly embraced PIL, allowing citizens to

13
2005 CLC 424
14
1997 17 BLD
15
Writ Petition 1694/2000
challenge government actions that threaten environmental integrity. The case
of Asghar Leghari vs. Federation of Pakistan (2018)16 exemplifies this trend, where
the Supreme Court addressed the lack of implementation of climate change policies,
emphasizing the connection between environmental justice and fundamental rights.

Bangladesh has also seen the rise of PIL as a means to address

environmental issues. The BLAST case highlighted the role of civil society in
advocating for environmental protection, demonstrating the potential of PIL to
influence policy and judicial outcomes.

5. Challenges in Enforcing Environmental Rights

Despite the progressive judicial interpretations and constitutional provisions,

significant challenges remain in enforcing environmental rights in South Asia. One
major obstacle is the lack of political will and inadequate implementation of
environmental laws. In many cases, governmental agencies prioritize economic
development over environmental protection, leading to conflicts between
development projects and ecological sustainability.

Judicial activism, while beneficial in many respects, has also faced criticism
for overstepping the boundaries of judicial authority. Critics argue that courts should
refrain from interfering in executive functions, particularly in areas where policy
decisions are involved.17 This tension between the judiciary and the executive can
lead to pushback against judicial rulings, as seen in Pakistan during the emergency
proclamation by General Pervez Musharraf.

Moreover, the polycentric nature of environmental issues complicates judicial

resolution. Environmental problems often involve multiple stakeholders and require
coordinated responses across various sectors, making it difficult for courts to
provide comprehensive solutions.18 The complexity of these issues can result in
lengthy litigation processes, further delaying effective action.

16
Writ Petition No. 25501/2015
17
Baxi, U. (2007). The Avatars of Indian Judicial Activism: Explorations in the Jurisprudence of the
Supreme Court of India. In Fifty Years of the Supreme Court of India: Its Grasp and Reach . Oxford
University Press.
18
King, J. A. (2008). The Pervasiveness of Polycentricity: A New Perspective on Environmental
Governance. Public Law, 101, 101-102.
 6. Comparative Analysis of Environmental Constitutionalism

All three nations acknowledge the right to a healthy environment as a fundamental

aspect of the right to life, indicating a growing recognition of the interdependence
between human rights and environmental protection. However, the mechanisms for
enforcing these rights and the degree of judicial activism vary significantly among
them.

In India, the judiciary has taken a proactive stance in shaping environmental

rights, establishing a robust framework through a series of landmark judgments that
have broadened the interpretation of the right to life under Article 21 of the
Constitution. The Indian Supreme Court has consistently ruled that a clean and
healthy environment is essential for the enjoyment of life and has utilized public
interest litigation (PIL) to empower citizens to seek judicial remedies for
environmental grievances.

Pakistan's judicial system has also made noteworthy advancements in

incorporating environmental considerations into the right to life, despite the lack of
explicit provisions in its Constitution regarding environmental rights. The Supreme
Court of Pakistan has interpreted Article 9, which guarantees the right to life, to
encompass the right to a healthy environment. This interpretative approach has
allowed the judiciary to play a crucial role in environmental governance, often
stepping in to address issues of public concern and holding the government
accountable for environmental degradation.

Bangladesh, while relatively recent in its constitutional acknowledgment of

environmental rights, has swiftly adopted a similar judicial approach to its
neighbours. The 2011 amendment to the Constitution explicitly included the
protection of the environment as a fundamental principle of state policy. The
judiciary in Bangladesh has actively engaged in public interest litigation, leveraging
this mechanism to confront pressing environmental challenges. This rapid evolution
in judicial activism reflects a growing awareness of the importance of environmental
rights and the judiciary's role in safeguarding these rights for future generations.

7. Conclusion

The evolution of environmental constitutionalism in South Asia reflects a growing

recognition of the interdependence between human rights and environmental
protection. The integration of environmental rights within the constitutional
frameworks of India, Pakistan, and Bangladesh has paved the way for significant
judicial activism and public interest litigation, empowering citizens to advocate for
their rights.

However, challenges remain in ensuring the effective enforcement of these

rights, necessitating a concerted effort from all stakeholders, including the judiciary,
executive, and civil society. As environmental issues continue to escalate, the need
for robust constitutional mechanisms to protect the environment becomes
increasingly urgent. The experiences of South Asia can serve as valuable lessons for
other regions grappling with similar challenges, highlighting the potential of
constitutional frameworks to promote environmental justice and sustainability.