Development and Right to Livelihood
A pollution-free environment is sin qua non for the inhabitants of this
planet. The Supreme Court of India, recognizing this in its judicial creativity,
granted the right to live in a Fundamental rule of law for the pollution-free
environment under Article 21 of Indian Constitution. At the same time, the right
to development places the human being at the center development, forcing the
state to guarantee the benefits of development to citizens.
The right to the environment and the right to development have their origin in Article 21 of the the Constitution. Such a claim of rights necessarily raises a question of respect in part of the state. This document traces the origin of environmental law and law development in the broader context of fundamental rights. Critically examine the file usefulness of declaring these rights in the framework of the Constitution.
It fundamentally supports its the judiciary, in its judicial creativity, has operated unreasonable interference in the matter reserved for the executive, which does not conform to the basic structure of the Constitution. Therefore the document calls for the maintenance of harmony and peace between the two states bodies.
The traditional content of rights revolves around the values of freedom and autonomy of individuals, which have then been imbued with the socio-economic interest of an individual. The increase in the pacification of rights raises high concerns about the state's obligations to fulfill these rights.
On the one hand, the addition of content raises the standards of human values and, on the other hand, raises serious doubts about the implementation of newly created or guranteed rights. Human rights discourse is based on inseparable and non-negotiable values of dignity. Generations after generations have discussed the place of the right to the environment in human rights discourse.[2]
It is interesting to note that both the right to the environment and the right to development have their own origin in Article 21 of the Indian Constitution. The right to the environment is also based on the reading of article 48A.[3]
Which is in the nature of the principles of Directive Principle of State policy. It should be remembered that the nature of rights and their applicability raises the question of the implementation of these rights on the basis that these rights belong to the field of socio-economic rights, which require an implementation mechanism other than that of human rights. traditional. The nature of rights plays an important role in the fulfillment of the obligations of the state.
If judicial pronouncements cannot be respected, they threaten the institutional legitimacy of the judiciary. The judiciary must follow a reasonable and cautious path that intersects with the political arena. It is no exaggeration to say that such a judicial creativity can damage the rights discourse rather than reinforce the debate.
Prelude
Livelihoods, defined as the rights of displaced people from the land where special economic zones are established, are at the heart of this chapter. The acquisition and relocation of land are an integral part of the process of establishing the SEZ. This is because the essential prerequisite for issuing a notification for declaring an area as a SEZ is that the principal must provide the details of the area identified for the establishment of the SEZ along with proof of legal right and possession and a state certificate The government or authorized agency that said the area is free of any clutter[4].
Furthermore, the minimum area of land to establish SEZs is huge[5] necessarily implies the transfer of ownership to the lessor by of the original owners of the land or the lease to the leasor[6]. In the case of leasing the land, the lease agreement must have a duration of not less than twenty years [7]and the lessor and the conditions of the lease are aspects that the Council approval takes into account when evaluating any proposal for the creation of SEZs.
Furthermore, the adequate provision for the rehabilitation of displaced persons is one of the general conditions incorporated in the format of the letter of approval issued by the Council to the SEZs. Being conceived as industrial enclaves covering large tracts of land, SEZs are likely to necessarily imply the purchase of land by the promoter or its acquisition by the state, either for itself or for a private developer of the SEZ.
The resulting displacement of people who depend on these lands raises concerns about the livelihoods of the displaced. It is in recognition of this concern that the letter of approval issued to the SEZ promoter incorporates this general condition of providing rehabilitation services to displaced persons who are granted approval for the establishment of the SEZ. Though livelihood may not be the only concern that emerges on account of displacement. however, livelihood being very fundamental to human survival and human dignity, it has been chosen as the focus for this study.
Since livelihood in the context of displacement relates to various conditions of life, the same is constituted by a spectrum of rights ranging from the right to maintenance which in turn may depends on right to property, right to work, right to rehabilitation and resettlement, right to adequate standard of living, at one end and right to development encompassing right to self determination and right to culture figuring at the other end of the spectrum.
Rather than a single right to means of subsistence, capturing the basic core of the right to livelihood, spectrum of rights is studied because of three reasons.
Firstly, the fact of displacement directly invokes a large number of rights recognized in the human rights Conventions[8].
Secondly, right to work or livelihood has been recognized as not only contributing towards survival of individual as well as his/her family but also towards individual development and recognition within the community[9].
Thirdly, displacement of people for setting up SEZs is inextricability linked to the centrality of the ideology of development for the very self definition of the postcolonial state[10],where legitimacy of the state comes from its rational character to direct a programme of economic development for the nation.[11]
The issues and concerns pertaining to livelihood of the displaced are thus deeply embedded in the ideology of development adhered to by the Indian state after independence and the peculiar formulation and operationalisation of legal norms in the pursuit of development. Another complexity in the spectrum of rights discussed in this chapter emerges from the varied nature of these rights within the international and national legal frameworks together with the recognition of some of these rights only with respect to certain specific sections of society.
Further one finds the ideology of development greatly influencing the scope of various rights having a bearing on livelihood of people. For instance rights like right to adequate standard of living, right to subsistence, work, property, compensation, rehabilitation and resettlement have found due recognition on account of their compatibility with the ideology of development.
On the other hand since rights like right to self determination and right. to culture especially of indigenous people, deeply linked to their livelihood processes, when interpreted broadly have the potential to come into conflict with ideology of development the struggle for giving due recognition to the comprehensive scope of these rights has proved to be an onerous task [12]
Livelihood rights of people displaced for establishment of SEZThe questions that the research seeks to address are complex and intertwined and at times require investigation cutting across various disciplines. Since law does not exist as an autonomous realm, but is part of the social totality,[13]therefore any discussion on displacement of people on account of setting up of SEZs must be situated in the broader political, economic and social context.
Therefore the discussion on livelihood concerns arising from setting up of SEZs also undertakes an appraisal of the rationale justifying displacement for setting up of SEZs, the legality of the process, the exclusions that the law masks in the legality and the interface of all these with the dominant ideology of development.
(Grey boxes indicate lesser degree of compatibility of these rights with the ideology of development)
Therefore, the first part of the chapter examines the development ideology that has been in vogue in India since independence, the worldview it assimilates and the processes involved in achieving goals, focusing on displacement as an integral part of it. This development ideology. Subsequently, the nuances of the internal rules relating to property rights are assessed with particular reference to the notion of eminent domination, its relationship with the ideology of development.
Land acquisition, rehabilitation, and resettlement, their relationship to the right to livelihoods and their potential to secure them are addressed in the light of the development discourse in the next part of the chapter. The international and constitutional norms that guarantee them, the nature of the obligations they impose on the state and the potential they have to protect the interests of the displaced are analyzed. Finally, the deductions from the discussion in the different parts of the chapter are consolidated in the conclusion.
Before embarking on this journey of assessing the spectrum of subsistence rights law which includes an assessment of the law relating to the right to purchase land and related compensation rules, along with the broader notion of eminent dominion and property rights enshrined in the legal framework national, it is essential to clarify that the legislation currently governing is the Land Acquisition Act of 1894 (hereafter LAA), however, there is a state initiative to replace it with comprehensive legislation on land acquisition, rehabilitation and resettlement.
The right to fair compensation and transparency in the 2013 Acquisition, Rehabilitation and Resettlement Act (hereafter the RFCTLARR bill) has been approved by both houses of Parliament and is awaiting presidential approval before it can technically be called legislation. However, the presidential consensus and subsequent application of the new law, which also explicitly repeals the 1894 legislation, appears to be a matter of time.
Dominant Ideology of Development, Displacement and Livelihood
Like most postcolonial societies, India also embarked on the coveted path of development after independence. The key feature of the notion of development adopted in India after independence and which has been tirelessly pursued for over sixty years, despite the gradual incorporation of other concerns beyond this dominant feature, has been the primacy of economic growth. However, focus on economic growth, as the development strategy is not specific to India but is part of the global development discourse, especially after WWII and has been adopted as a future agenda by a large number of postcolonial nations.[14].
The reasons for the choice of this particular development approach adopted by most postcolonial states can be traced to the works of Arthur Lewis and W. W. Rostow and to the peculiar political configuration of the world after the Second World War. Lewis described economic development in terms of the relationship between two sectors in a country, namely the capitalist and the traditional over time.[15]14
The traditional sector, according to Lewis, is a subsistence farming system that does not generate profit-making investments but acts only to sustain its current condition, while the capitalist sector through the reinvestment of profits is dynamic, which advances the social system[16]. The expansion of the capitalist sector depends on the extraction of labor from the subsistence sector, which is growth completed[17] 16.
Finally when the entire surplus labour of the traditional sector gets absorbed into the capitalist one, the latter will dominate the economy and will be self sustaining[18]. Similarly W. W. Rostow in his classic work ‘The Stages of Economic Growth’ focuses on the transition of a traditional society into industrialized developed country[19].
He identifies five stages of this linear transition, which all societies according to him will eventually go through.
The stages are as follows[20]:
The end of the Second World War was also marked by a large-scale decolonization process which indicates the relaxation of the hegemony of the imperial powers over the former colonies, as well as the phase of the cold war within the bipolar world. At this stage, the United States has prepared itself for its role as the central power of the liberal capitalist system and, in its efforts to stop the spread of communism, has also turned its attention to the third world.
The phase following 1955 also saw the two great world powers. The phase following 1955 also saw competition from the two major world powers of the time for the provision of development aid in the third world.[21].The key elements of the approach towards development along with.
More than half of the world population lives in conditions close to misery. Their diet is inadequate, they are victims of disease. Its economic life is primitive and stagnant. Their poverty is a disadvantage and a threat both to them and to the more prosperous areas. For the first time in history, humanity possesses the knowledge and the ability to alleviate the suffering of these people.
I believe we must make the benefits of our wealth of technical knowledge available to peace-loving peoples to help them realize their aspirations for a better life. What we imagine is a development program based on the concepts of democratic fair dealing. Higher production is the key to prosperity and peace. And the key to greater production is a broader and more vigorous application of modern scientific and technical knowledge.
The theoretical base provided by the work of Lewis and Rostow amalgamated with then prevalent political conditions to crystallize into what has come to be known as the modernization approach to development. Keeping with the views put forth by Lewis and Rostow modernists saw development as an Evolutionary process of increasing societal differentiation that would ultimately produce economic, political and social institutions similar to the west.[22]
Thus underdevelopment was not seen as opposite of development but only as its incomplete and embryonic form.[23] Sustaining the image of progress modernists stressed industrialization, infrastructure creation, scientific advancement, economic growth and liberal democracy.
In short, the core connotation that development assumed with the idea of modernization was economic growth through industrialization. Gross domestic product has become the target standard for judging a country's level of development.
Shortly after independence, India embarked on the development process. For the past more than sixty years, the development initiative in India has been driven by the dominant ideology of development, where economic growth has prevailed through industrialization, the creation of infrastructure and an increased use of science and technology.
Economic growth was seen to dent existing poverty in the country and when the rise in poverty took on an unprecedented proportion, as reflected in the sixth five-year plan, the growth-based development strategy was complemented by some direct means. of poverty reduction. The dominant approach to development is widely reflected in the plan documents and the following statement by the pioneer of the development process in India, namely Pt. Jawaharlal Nehru[24]
We are trying to catch up, as far as possible, with the industrial revolution that took place a long time ago in Western countries. Nehru also once commented that there can be no planning if that planning does not include large industries. conditions in India must be undergoing economic development.
He also recognized that the high rate of capital formation was a common feature of almost all developed countries during the period of expansion and further argued that the underdeveloped countries that do a late start must aim for development comparable in a shorter period.[25]
In subsequent plans, the goal of economic growth is reaffirmed.[26] Even when the data on poverty has risen to an alarming level and the need to address it has been incorporated into the sixth plan document, it has not resulted in a reconsideration of the approach dominant development in India, but has simply been integrated with the specific poverty characteristic of all aviation programs.
The following quote from the sixth plan enjoys in India’s approach to development is reflective of the sanctity that growth.
Experience shows that a substantial acceleration of the general rate of growth of our economy, measured by the growth of gross domestic product in real terms, is an essential condition for achieving these (in reference to the elimination of poverty, the generation of employment paid and technological and economic self-sufficiency). However, there is also compelling evidence indicating the limited effectiveness of the drip effect.
Therefore, in accordance with our overall social and economic objectives, public policies should acquire a more acute redistribution approach to increase the share of the poorest sectors in national income and consumption and in the use of public services. Therefore, specific action programs such as the National Rural Employment Program and other anti-poverty plans targeting selected population groups are essential components of a strategy designed to help eliminate unemployment and poverty.
The early 1990s marked a shift in the development ideology dominant since independence. This change did not occur in the ends that the development process sought to achieve, but in the means to achieve it. This shift has been from a public sector assigned to a high-level place in the Indian economic scene to a philosophy of growth, driven by market forces and liberal policies[27].
Maintaining the basic principles of the modernization approach For development, again India has drawn on the development experience of other nations over the past four decades and has decided to restructure the ideals of autonomy and efficiency induced by competition.
The ideology of development aiming at economic growth through industrialization and infrastructure development whether spearheaded by the public sector or the private in the pre and post liberalization period respectively, necessitated control over land for the same and consequent displacement of people living in those areas.
Over the years, the pressure on land has increased for the aforementioned purposes and so have protests against displacement due not only to the extent of displacements [28]but also to regulatory shortcomings to adequately address displacement problems. The dominant ideology of growth-led development based on large-scale industrialization promises a good future for only a few, as it itself thrives by destroying the ways of life of all those to whom industrialization occurs. Development and destruction thus appear as Siamese twins within the dominant ideology of development.
It may be in tune with the utilitarian ideal of the greatest good for the greatest number of people rather than implying the greatest good for all. In the context of development, some scholars see displacement as a consequence of the struggle for control of natural resources, which implies a transition of these resources from being the life support system of the community and from an informal economy to individual and corporate ownership. of the formal capitalist economy. [29]
In addition to the nature and ideological basis of the type of development pursued, concerns have also been raised about the development process. Development decision-making is condemned as non-participatory[30]which considers Indian citizens simply as objects of development decisions and programs [31] - development or even as anti-poor.37 Therefore, Professor Baxi believes that development now appears as a new theology in which the democratic articulation emergesagainst the people. 38
The displacement of people from their place of residence, whether or not they own the land in which they reside, jeopardizes their livelihoods. Therefore, a number of legal issues arise in the specific context of the displacement of people for the establishment of SEZs.
The strength of the existing law to secure people's livelihoods would involve a discussion of the following:
In Chameli Singh vs In the state of U.P. [35], the court stated that the right to live in any civil society implies the right to food, water, a decent environment, education, health care and housing. These are the basic human rights known to any civil society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights, 1948 or the ones guaranteed under the Constitution of India cannot be exercised without these basic human rights.
The freedom guaranteed by article 21 is available to a person against the state. An injured person may appeal as a last resort for the violation of Article 21 under Article 32 and Article 226 of the Indian Constitution[36].
The freedoms guaranteed by Article 21 are not absolute. The right to life, protected by Article 21, has received a broad interpretation to include human rights jurisprudence within its scope. In Sodan Singh v. NDMC[37], the Supreme Court stated that:
in view of the global development in the field of human rights, these judicial decisions are a strong indicator towards the recognition of an affirmative right to the basic necessities of life under Article 21.
In Francis Coralie v. Union Territory of Delhi[38], the court held that the right to life includes the right to live with dignity. In Unni Krishnan v. State of AP[39], the court held that if Article 21, which is the heart of fundamental rights, has received an expanded meaning from time to time, there is no justification why it cannot be interpreted in the light of the principles .
Right to environment, inscribed as a guideline under Article 48 A of the Constitution, has been read under Article 21 of the Constitution by the Indian courts as a human right[40]. The entire environmental law jurisprudence has evolved under the shroud of Article 21 of the Constitution of India[41]. Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence.[42]
Health hazards, due to pollution, have also been brought within its extended meaning. Indian Supreme Court has said that any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21.[43]Right to water has also been recognized as a part of right to life.
The Constitution imposes on the Supreme Court the duty to protect the environment . On the other hand, giving credit to the role of the state, the Supreme Court in the Vincent Panikurlangara v. Union of India[45] judgment affirmed that a healthy body is the basis of all human activities.
In a welfare state it is the obligation of the state to guarantee the creation and maintenance of conditions conducive to good health. Supreme Court indulgence, in Research Foundation v. Union of India[46]38[47], the court stated that the right to information and participation of the community are necessary for the protection of the environment and human health is an inalienable part of Article 21 and is governed by accepted environmental principles. The government and the authorities must motivate citizen participation by formulating the necessary programs .
This approach was reiterated in Goa Foundation v. Union of India, 39 in which the court stated that the Indian government is not powerless to ensure compliance with environmental laws, in particular the Environmental Protection Act 1986. The government is ordered to issue an order for the closure of non compliant that continue to operate in violation of environmental laws.
Similarly, the judiciary has interpreted the right to development as part of Article 21 of the Indian Constitution. The human right to development bases its premise on both fundamental rights and the guiding principles of state policy. Fundamental rights and directives constitute both two wheels of the development chariot. In clarifying the right to development, the Supreme Court of India in Samatha v. The state of AP[48]40 State affirmed that:
India, as an active participant in the 1986 Declaration on the Right to Development and a signatory to it, is its duty to formulate policies, legislative or executive, and to protect social, economic and civil rights. and cultural values of the people, especially the poor, the Dalits and the tribes, as prescribed in article 46 read with articles 38 and 39 of the Constitution.
Through this constant effort and interaction, the right to life would have meant realizing its full potential as an inalienable human right. Social and economic democracy is the basis on which political democracy would be a way of life in Indian politics. Law as a means of social engineering must create a just social order by eliminating inequalities in social and economic life
In N.D. Jayal and Anr. v. Union of India,[49] 41 in the second case of the Tehri dam, the Supreme Court stated that the right to development cannot be treated as a mere right to economic improvement or it cannot be limited as a misnomer to simple construction activities. The right to development includes much more than economic well-being and includes in its definition the guarantee of fundamental human rights. The right to development encompasses the entire spectrum of civil, cultural, economic, political and social processes, for the improvement of people's well-being and the realization of their full potential.
It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component of development.
Right to Development vis-à-vis Right to Environment
The era of pro-environmental judgment begins with Kendra v. Law and rural litigation. Union of India [50]. In this case, the Supreme Court of India, reading the development against the right to the environment, said that the consequence of this order we have issued would be that the tenants of the limestone quarries who were ordered to close permanently, after examining According to the Bandyopadhyay Committee report, you would be out of the industry where you have invested large sums of money and greatly extended your time and effort.
This would certainly create difficulties for them, but it is a price you must pay to protect and safeguard the right of people to live in a healthy environment with minimal alteration of the ecological balance and without avoidable risks for themselves and their livestock.
Families and agricultural land. and undue contamination of air, water and the environment. of limestone quarries and also ordered the state to establish the monitoring committee to ensure afforestation, extraction and all ù aspects necessary to achieve natural normality in Doon Valley. The court also issued instructions on the finances, powers and duties of the oversight committee.
Similarly, in Ambica Quarry Works v. State of Gujarat [51]and others, the two appeals focused on the question of how to find a balance between the need to exploit the mineral resources hidden in the forests and the need to preserve the ecological balance. thus stopping the growing environmental degradation.
The Supreme Court in the said case took a stance towards the protection of environment and observed that in this case the renewal of the mining leases will lead to further deforestation or at least will not help reclaiming the areas where deforestation has taken place.
In similar lines, in M.C. Mehta v. Union of India[52], popularly known as the Kanpur Tanneries case, the Supreme Court which struck a balance between the right to development and the right to the environment said: In cases of this nature, this court can issue appropriate instructions if it finds that the public is committing a nuisance or other illegal act that affects or may affect the public and the legal authorities that have a duty to prevent it are not taking adequate measures to rectify the complaint.
For every violation of a right there should be a remedy .The addresses in this case were directed to industries. In a final case, the Supreme Court ordered Kanpur Nagar Mahapalika to act in accordance with the provisions of Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, or the relevant statutes promulgated under it to prevent water contamination in the Ganges River by the waste accumulated in the large number of dairy farms of Kanpur with 80,000 head of cattle. so that the dairy waste does not eventually reach the Ganges River or, alternatively, the Mahapalika could organize the disposal of the waste in motor vehicles, in case the owners of the newspapers could not claim any compensation.
The court He also ordered the Mahapalika to take immediate action to prevent the collection of manure from the pit and deprived of manure within the city. The Kanpur Nagar Mahapalika should take immediate steps to increase the size of the sewers in the working colonies, so that the wastewater can be transported smoothly through the sewer system, and wherever the line has not yet been built, measures must be taken to establish it.
The court also ordered that immediate action be taken undertaken by Kanpur Nagar Mahapalika to build a sufficient number of public latrines and urinals to prevent people from defecating in the open ground. The proposal to impose any charges for the use of such latrines and urinals will be dropped as this would be a reason for the poor not to use public latrines and urinals.
The above list of cases shows the Supreme Court's pro-environmental approach. While, in Narmada Bachao Andolan vs Union of India[53], where the controversy concerned the Sardar Sarovar dam, the Supreme Court, while denying the allegations of the petitioners, stated that while protecting people's rights so that they are not violated in any way, it must be taken so that the court does not violate its jurisdiction.
In our constitutional framework there is a fairly clear demarcation of the powers of the governing bodies. The court has acted forcefully whenever the executive has tried to influence the jurisdiction of the court. At the same time, in the exercise of its enormous power, the court should not be convened or assume any governmental duties or functions. Courts cannot direct government, nor can the administration afford to abuse or abuse power and get away with it. The role of the higher judiciary under the Constitution imposes a great obligation on it as a sentinel to defend the values of the Constitution and the rights of the populations in digene.
Therefore, the courts must act within the legally permissible limits to uphold the rule of law and exploit its power in the public interest. It is precisely for this reason that this court has consistently stated that the court will not interfere in political matters. When there is a valid law that requires the government to act in a particular way, the court should not, without repealing the law, give instructions that do not comply with the law.
In other words, the court itself is not above the law. As for government-initiated projects and public policy, the courts should not become an approval authority. The government usually makes these decisions after due attention and consideration. In a democracy, the well-being of people in general, and not just a small part of society, should be the concern of responsible government.
Conclusion
Development is a holistic concept. The Constitution of India, charged with raising the morale of society, absorbing itself in the spirit of the struggle for freedom, provided for various aspects of development against the Guiding Principles of State Policy. The Directives provide for measures to build a society on the principles of fundamental freedoms guaranteed by the Indian Constitution. Filled with socio-economic rights, which constitute the fundamental components of imagined India, the directives create an inescapable duty for the government to act to achieve the stated goals.
Though, overwhelming activism shown by the judiciary can take shelter under the guardianship of environmentalist, on a deep perusal, it fails to satisfy the mandate of the Constitution.[54] It is pertinent to note that the Indian courts have read the right to development and the right to the environment in Article 21 of the Indian Constitution. The right to a healthy environment is a social interest enshrined in the guiding principles of state policy under the Indian Constitution.
Until now, Indian courts have walked a tightrope when it comes to balancing the guiding principles of state policy with the fundamental rights enshrined in the Constitution.[55] In recent years, they have read the socio-economic rights, enshrined in the directive principles of State policy and fundamental rights[56]. Placing the realization of these rights under the protection afforded to fundamental rights denies not only the essence of these rights, but also the importance and significance of those rights.
End-Notes:
[1] Dadwal, L., Position of Human Rights: An Indian Profile, 39 C.M.L.J. 221, 225 (2003).
[2] Dr. Adarsh Sein Anand, Former Chief Justice of India, Inaugural Speech at the Golden Jubilee Celebration of the Rajasthan High Court (Aug. 29, 1999) (there exist a danger by creating multiplicity of rights without possibility of adequate enforcement).
[3] The Constitution Of India, art. 48A.
[4] The Special Economic Zones Act, 2005, sections 3 (2), 3 (4), 4(1) read with rule 7 of the Special Economic Zones Rules, 2006.
[5] The Special Economic Zones Rules, 2006, Rule 5. The requirement of possession of minimum contiguous land anywhere between 10 to 1000 hectares depending on the category of SEZ and the region in which it is to be set up.
[6] Id., Rule 7.
[7] Ibid.
[8] Generally see violation of human rights in the context of forced evictions which may be caused in the name of development facilitated through the process of land acquisition. Right to Adequate Housing: Forced Evictions, General Comment 7, 1997, CESCR, paragraphs, 7, 15.
[9] Right to Work, General Comment 18, 2005, CESCR, paragraph, 1; ILO Convention 168, 1988, Preamble
[10] Partha Chatterjee, The Nation and its Fragments 202-205 (Princeton University Press 1993).
[11] Id., p. 202
[12] Declaration on the Rights of the Indigenous Peoples, 2007 for instance took years of drafting and discussion before adoption.
[13] J.E.Penner, Mccoubrey and White’s Textbook on Jurisprudence 152-166 (Oxford University Press, 2002).
[14] Anjan Chakrabarti, Anup Dhar, Dislocation and Resettlement in Development: From Third World to the World of the Third 36 (Routledge, New York, 2010).
[15] P.W.Preston, Development Theory: An Introduction 165 (Blackwell, Oxford, 1996).
[16] Ibid.
[17] Ibid.
[18] Ibid
[19] Ibid
[20] W.W. Rostow, The Stages of Economic Growth in Mitchell a. Seligson, John T Passe-Smith (ed.), Development and Underdevelopment 173-180 (Viva Books, New Delhi, 2010).
[21] P.W.Preston, Development Theory: An Introduction, 168 (Blackwell, Oxford, 1996).
[22] B.Z. Tamanaha, The Lessons of Law and Development Studies, 89 AJIL 471 (1995).
[23]Gilbert Rist, The History of Development: From Western Origins to Global Faith 74 (Zed books, London, 1997).
[24] Jawaharlal Nehru, Jawaharlal Nehru Speeches, 93 (Publications Division, New Delhi, 1954).
[25] Ibid.
[26] Generally see the plan documents available at http://planningcommission.nic.in/plans/planrel/fiveyr/index7.html.
[27] The Eighth Five-Year Plan, paragraph 1.1.6, available at
http://planningcommission.nic.in/plans/planrel/fiveyr/index7.html.
[28] A conservative estimate puts the figure at 143 lakhs. For details see Walter Fernandes, J.C.Das, Sam Rao Displacement ad Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 79 (Indian Social Institute, 1989).
[29] Walter Fernandes, J.C.Das, Sam Rao, Displacement and Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 63 (Indian Social Institute, 1989).
[30]Walter Fernandes, J.C.Das, Sam Rao, Displacement and Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 63 (Indian Social Institute, 1989).
[31] Upendra Baxi Notes on Constitutional Aspects of Rehabilitation and Displacement in Walter Fernandes, Enakshi Ganguly Thukral (eds.) Development, Displacement and Rehabilitation: Issues for a National Debate 164 (Indian Social Institute, 1989).
[32] Shantistar Builders v. Narayan, (1990) 1 S.C.C. 520 (right to life will take within its sweep, the right to food, clothing, decent environment and reasonable accommodation to live in).
[33]The Constitution Of India, art. 21.
[34] Kehar Singh v. Union of India, (1989) 1 S.C.C. 204.
[35] (1996) 2 S.C.C. 549
[36] L.K.Koolwal v. State of Rajasthan, A.I.R. 1988 Raj. 2 (maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action).
[37](1989) 4 S.C.C. 155.
[38] A.I.R. 1981 S.C. 746 (we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings).
[39] (1993) 1 S.C.C. 645.
[40] Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420 (the right to life enshrined in Art. 21 includes the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32).
[41] Damodhar Rao v. Municipal Corporation, Hyderabad, A.I.R. 1987 A.P. 170 (there can be no reason why practice of violent extinguishments of life alone would be regarded as violative of Art.21 of Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Art.21 of the Constitution).
[42] Virendra Gaur v. State of Haryana, 1995 2 S.C.C. 577
[43] M.C. Mehta v. Kamal Nath, (2000) 6 S.C.C. 213; see also Virender Gaur v. State of Haryana, (1995) 2 S.C.C. 577; A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 S.C.C. 718.
[44](2006) 1 SCC 1 (entitlement to clean environment is one of the recognised basic human rights. The right to life inherent in Article 21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.); see also V. Lakshmipathy v. State of Karnataka,A.I.R. 1992 Kant. 57 (where on account of human agencies, the quality of air and quality of environment are threatened or affected, the Court would not hesitate to use its innovative power to enforce and safeguard the right to life to promote public interest.).
[45] (1987) 2 S.C.C. 165.
[46] (2005) 10 S.C.C. 510.
[47] (2005) 11 S.C.C. 560.
[48] A.I.R. 1997 S.C. 3297.
[49] (2004) 9 S.C.C. 362.
[50] 1989 S.C.C. Supp. (1) 537
[51] 1987 S.C.R. (1) 562.
[52] [1987] 4 S.C.C. 463.
[53] A.I.R. 2000 S.C. 3751.
[54] Swami Shraddananda v. State of Karnataka, (2007) 12 S.C.C. 288 (the court cannot amend the constitution by judicial verdict or legislate or amend the law by process of interpretation).
[55] S.P. Sathe, Post Emergency Judicial Activism: Liberty and Good Governance, 10 (4) Journal Of Indian School Of Political 603 (1998).
[56] J. P. Unnikrishnan v. State of Andhra Pradesh, (1993) 1 S.C.C. 645; see also M. C. Mehta v. Union of India, A.I.R. 1987 S.C. 1086; Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, 1987 Supp. S.C.C. 487; Subash Kumar v. Union of India, (1991) 1 S.C.C. 598; N. D. Jayal v. Union of India, (2004) 9 S.C.C. 362; M. C. Mehta v. Union of India, (2006) 3 S.C.C. 399; Pt. Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2039; Shantisar Builders v. N. K. Totame, A.I.R. 1990 S.C. 5151; Gauri Shankar v.
The right to the environment and the right to development have their origin in Article 21 of the the Constitution. Such a claim of rights necessarily raises a question of respect in part of the state. This document traces the origin of environmental law and law development in the broader context of fundamental rights. Critically examine the file usefulness of declaring these rights in the framework of the Constitution.
It fundamentally supports its the judiciary, in its judicial creativity, has operated unreasonable interference in the matter reserved for the executive, which does not conform to the basic structure of the Constitution. Therefore the document calls for the maintenance of harmony and peace between the two states bodies.
Introduction Right To Development And Livelihood
A clean and healthy environment is one of the importan aspect for the existence of human civilization. It is sin qua non for the integral and permanent growth of society. The clean and healthy environment has been the focus of discussions since a very long time. Human rights comprise an inviolable interest of an individual which are non-negotiable. The inviolable interests of the individual, which guarantee individualism and well-being and , give pacification to human rights[1]The traditional content of rights revolves around the values of freedom and autonomy of individuals, which have then been imbued with the socio-economic interest of an individual. The increase in the pacification of rights raises high concerns about the state's obligations to fulfill these rights.
On the one hand, the addition of content raises the standards of human values and, on the other hand, raises serious doubts about the implementation of newly created or guranteed rights. Human rights discourse is based on inseparable and non-negotiable values of dignity. Generations after generations have discussed the place of the right to the environment in human rights discourse.[2]
It is interesting to note that both the right to the environment and the right to development have their own origin in Article 21 of the Indian Constitution. The right to the environment is also based on the reading of article 48A.[3]
Which is in the nature of the principles of Directive Principle of State policy. It should be remembered that the nature of rights and their applicability raises the question of the implementation of these rights on the basis that these rights belong to the field of socio-economic rights, which require an implementation mechanism other than that of human rights. traditional. The nature of rights plays an important role in the fulfillment of the obligations of the state.
If judicial pronouncements cannot be respected, they threaten the institutional legitimacy of the judiciary. The judiciary must follow a reasonable and cautious path that intersects with the political arena. It is no exaggeration to say that such a judicial creativity can damage the rights discourse rather than reinforce the debate.
Prelude
Livelihoods, defined as the rights of displaced people from the land where special economic zones are established, are at the heart of this chapter. The acquisition and relocation of land are an integral part of the process of establishing the SEZ. This is because the essential prerequisite for issuing a notification for declaring an area as a SEZ is that the principal must provide the details of the area identified for the establishment of the SEZ along with proof of legal right and possession and a state certificate The government or authorized agency that said the area is free of any clutter[4].
Furthermore, the minimum area of land to establish SEZs is huge[5] necessarily implies the transfer of ownership to the lessor by of the original owners of the land or the lease to the leasor[6]. In the case of leasing the land, the lease agreement must have a duration of not less than twenty years [7]and the lessor and the conditions of the lease are aspects that the Council approval takes into account when evaluating any proposal for the creation of SEZs.
Furthermore, the adequate provision for the rehabilitation of displaced persons is one of the general conditions incorporated in the format of the letter of approval issued by the Council to the SEZs. Being conceived as industrial enclaves covering large tracts of land, SEZs are likely to necessarily imply the purchase of land by the promoter or its acquisition by the state, either for itself or for a private developer of the SEZ.
The resulting displacement of people who depend on these lands raises concerns about the livelihoods of the displaced. It is in recognition of this concern that the letter of approval issued to the SEZ promoter incorporates this general condition of providing rehabilitation services to displaced persons who are granted approval for the establishment of the SEZ. Though livelihood may not be the only concern that emerges on account of displacement. however, livelihood being very fundamental to human survival and human dignity, it has been chosen as the focus for this study.
Since livelihood in the context of displacement relates to various conditions of life, the same is constituted by a spectrum of rights ranging from the right to maintenance which in turn may depends on right to property, right to work, right to rehabilitation and resettlement, right to adequate standard of living, at one end and right to development encompassing right to self determination and right to culture figuring at the other end of the spectrum.
Rather than a single right to means of subsistence, capturing the basic core of the right to livelihood, spectrum of rights is studied because of three reasons.
Firstly, the fact of displacement directly invokes a large number of rights recognized in the human rights Conventions[8].
Secondly, right to work or livelihood has been recognized as not only contributing towards survival of individual as well as his/her family but also towards individual development and recognition within the community[9].
Thirdly, displacement of people for setting up SEZs is inextricability linked to the centrality of the ideology of development for the very self definition of the postcolonial state[10],where legitimacy of the state comes from its rational character to direct a programme of economic development for the nation.[11]
The issues and concerns pertaining to livelihood of the displaced are thus deeply embedded in the ideology of development adhered to by the Indian state after independence and the peculiar formulation and operationalisation of legal norms in the pursuit of development. Another complexity in the spectrum of rights discussed in this chapter emerges from the varied nature of these rights within the international and national legal frameworks together with the recognition of some of these rights only with respect to certain specific sections of society.
Further one finds the ideology of development greatly influencing the scope of various rights having a bearing on livelihood of people. For instance rights like right to adequate standard of living, right to subsistence, work, property, compensation, rehabilitation and resettlement have found due recognition on account of their compatibility with the ideology of development.
On the other hand since rights like right to self determination and right. to culture especially of indigenous people, deeply linked to their livelihood processes, when interpreted broadly have the potential to come into conflict with ideology of development the struggle for giving due recognition to the comprehensive scope of these rights has proved to be an onerous task [12]
Livelihood rights of people displaced for establishment of SEZThe questions that the research seeks to address are complex and intertwined and at times require investigation cutting across various disciplines. Since law does not exist as an autonomous realm, but is part of the social totality,[13]therefore any discussion on displacement of people on account of setting up of SEZs must be situated in the broader political, economic and social context.
Therefore the discussion on livelihood concerns arising from setting up of SEZs also undertakes an appraisal of the rationale justifying displacement for setting up of SEZs, the legality of the process, the exclusions that the law masks in the legality and the interface of all these with the dominant ideology of development.
(Grey boxes indicate lesser degree of compatibility of these rights with the ideology of development)
Therefore, the first part of the chapter examines the development ideology that has been in vogue in India since independence, the worldview it assimilates and the processes involved in achieving goals, focusing on displacement as an integral part of it. This development ideology. Subsequently, the nuances of the internal rules relating to property rights are assessed with particular reference to the notion of eminent domination, its relationship with the ideology of development.
Land acquisition, rehabilitation, and resettlement, their relationship to the right to livelihoods and their potential to secure them are addressed in the light of the development discourse in the next part of the chapter. The international and constitutional norms that guarantee them, the nature of the obligations they impose on the state and the potential they have to protect the interests of the displaced are analyzed. Finally, the deductions from the discussion in the different parts of the chapter are consolidated in the conclusion.
Before embarking on this journey of assessing the spectrum of subsistence rights law which includes an assessment of the law relating to the right to purchase land and related compensation rules, along with the broader notion of eminent dominion and property rights enshrined in the legal framework national, it is essential to clarify that the legislation currently governing is the Land Acquisition Act of 1894 (hereafter LAA), however, there is a state initiative to replace it with comprehensive legislation on land acquisition, rehabilitation and resettlement.
The right to fair compensation and transparency in the 2013 Acquisition, Rehabilitation and Resettlement Act (hereafter the RFCTLARR bill) has been approved by both houses of Parliament and is awaiting presidential approval before it can technically be called legislation. However, the presidential consensus and subsequent application of the new law, which also explicitly repeals the 1894 legislation, appears to be a matter of time.
Dominant Ideology of Development, Displacement and Livelihood
Like most postcolonial societies, India also embarked on the coveted path of development after independence. The key feature of the notion of development adopted in India after independence and which has been tirelessly pursued for over sixty years, despite the gradual incorporation of other concerns beyond this dominant feature, has been the primacy of economic growth. However, focus on economic growth, as the development strategy is not specific to India but is part of the global development discourse, especially after WWII and has been adopted as a future agenda by a large number of postcolonial nations.[14].
The reasons for the choice of this particular development approach adopted by most postcolonial states can be traced to the works of Arthur Lewis and W. W. Rostow and to the peculiar political configuration of the world after the Second World War. Lewis described economic development in terms of the relationship between two sectors in a country, namely the capitalist and the traditional over time.[15]14
The traditional sector, according to Lewis, is a subsistence farming system that does not generate profit-making investments but acts only to sustain its current condition, while the capitalist sector through the reinvestment of profits is dynamic, which advances the social system[16]. The expansion of the capitalist sector depends on the extraction of labor from the subsistence sector, which is growth completed[17] 16.
Finally when the entire surplus labour of the traditional sector gets absorbed into the capitalist one, the latter will dominate the economy and will be self sustaining[18]. Similarly W. W. Rostow in his classic work ‘The Stages of Economic Growth’ focuses on the transition of a traditional society into industrialized developed country[19].
He identifies five stages of this linear transition, which all societies according to him will eventually go through.
The stages are as follows[20]:
- Traditional Society:
It is marked by limited production on account of non- availability or non-usage of modern science and technology
- The Preconditions for Take-off:
Translation of modern science into new production functions in both agriculture and industry, mobilization of savings and risk taking in pursuit of profit or modernization
- The Take-off:
Expansion and domination of forces making for economic progess, rise in the rate of effective investment and savings and economic exploitation of hitherto unused natural resources and methods of production
- The Drive to Maturity:
Sustained, even if fluctuating progress, increase in investment marked by output outstripping increase in population, efficient application of modern technology over very wide range of resources
- The Age of High Mass Consumption:
The leading sectors shift towards durable consumers’ goods and services, increase in real income per head allows for consumption transcending basic necessities, increase in proportion of urban to total population, extension of modern technology no longer remains an overriding objective but is replaced by increase in allocation of resources to social welfare.
The end of the Second World War was also marked by a large-scale decolonization process which indicates the relaxation of the hegemony of the imperial powers over the former colonies, as well as the phase of the cold war within the bipolar world. At this stage, the United States has prepared itself for its role as the central power of the liberal capitalist system and, in its efforts to stop the spread of communism, has also turned its attention to the third world.
The phase following 1955 also saw the two great world powers. The phase following 1955 also saw competition from the two major world powers of the time for the provision of development aid in the third world.[21].The key elements of the approach towards development along with.
More than half of the world population lives in conditions close to misery. Their diet is inadequate, they are victims of disease. Its economic life is primitive and stagnant. Their poverty is a disadvantage and a threat both to them and to the more prosperous areas. For the first time in history, humanity possesses the knowledge and the ability to alleviate the suffering of these people.
I believe we must make the benefits of our wealth of technical knowledge available to peace-loving peoples to help them realize their aspirations for a better life. What we imagine is a development program based on the concepts of democratic fair dealing. Higher production is the key to prosperity and peace. And the key to greater production is a broader and more vigorous application of modern scientific and technical knowledge.
The theoretical base provided by the work of Lewis and Rostow amalgamated with then prevalent political conditions to crystallize into what has come to be known as the modernization approach to development. Keeping with the views put forth by Lewis and Rostow modernists saw development as an Evolutionary process of increasing societal differentiation that would ultimately produce economic, political and social institutions similar to the west.[22]
Thus underdevelopment was not seen as opposite of development but only as its incomplete and embryonic form.[23] Sustaining the image of progress modernists stressed industrialization, infrastructure creation, scientific advancement, economic growth and liberal democracy.
In short, the core connotation that development assumed with the idea of modernization was economic growth through industrialization. Gross domestic product has become the target standard for judging a country's level of development.
Shortly after independence, India embarked on the development process. For the past more than sixty years, the development initiative in India has been driven by the dominant ideology of development, where economic growth has prevailed through industrialization, the creation of infrastructure and an increased use of science and technology.
Economic growth was seen to dent existing poverty in the country and when the rise in poverty took on an unprecedented proportion, as reflected in the sixth five-year plan, the growth-based development strategy was complemented by some direct means. of poverty reduction. The dominant approach to development is widely reflected in the plan documents and the following statement by the pioneer of the development process in India, namely Pt. Jawaharlal Nehru[24]
We are trying to catch up, as far as possible, with the industrial revolution that took place a long time ago in Western countries. Nehru also once commented that there can be no planning if that planning does not include large industries. conditions in India must be undergoing economic development.
He also recognized that the high rate of capital formation was a common feature of almost all developed countries during the period of expansion and further argued that the underdeveloped countries that do a late start must aim for development comparable in a shorter period.[25]
In subsequent plans, the goal of economic growth is reaffirmed.[26] Even when the data on poverty has risen to an alarming level and the need to address it has been incorporated into the sixth plan document, it has not resulted in a reconsideration of the approach dominant development in India, but has simply been integrated with the specific poverty characteristic of all aviation programs.
The following quote from the sixth plan enjoys in India’s approach to development is reflective of the sanctity that growth.
Experience shows that a substantial acceleration of the general rate of growth of our economy, measured by the growth of gross domestic product in real terms, is an essential condition for achieving these (in reference to the elimination of poverty, the generation of employment paid and technological and economic self-sufficiency). However, there is also compelling evidence indicating the limited effectiveness of the drip effect.
Therefore, in accordance with our overall social and economic objectives, public policies should acquire a more acute redistribution approach to increase the share of the poorest sectors in national income and consumption and in the use of public services. Therefore, specific action programs such as the National Rural Employment Program and other anti-poverty plans targeting selected population groups are essential components of a strategy designed to help eliminate unemployment and poverty.
The early 1990s marked a shift in the development ideology dominant since independence. This change did not occur in the ends that the development process sought to achieve, but in the means to achieve it. This shift has been from a public sector assigned to a high-level place in the Indian economic scene to a philosophy of growth, driven by market forces and liberal policies[27].
Maintaining the basic principles of the modernization approach For development, again India has drawn on the development experience of other nations over the past four decades and has decided to restructure the ideals of autonomy and efficiency induced by competition.
The ideology of development aiming at economic growth through industrialization and infrastructure development whether spearheaded by the public sector or the private in the pre and post liberalization period respectively, necessitated control over land for the same and consequent displacement of people living in those areas.
Over the years, the pressure on land has increased for the aforementioned purposes and so have protests against displacement due not only to the extent of displacements [28]but also to regulatory shortcomings to adequately address displacement problems. The dominant ideology of growth-led development based on large-scale industrialization promises a good future for only a few, as it itself thrives by destroying the ways of life of all those to whom industrialization occurs. Development and destruction thus appear as Siamese twins within the dominant ideology of development.
It may be in tune with the utilitarian ideal of the greatest good for the greatest number of people rather than implying the greatest good for all. In the context of development, some scholars see displacement as a consequence of the struggle for control of natural resources, which implies a transition of these resources from being the life support system of the community and from an informal economy to individual and corporate ownership. of the formal capitalist economy. [29]
In addition to the nature and ideological basis of the type of development pursued, concerns have also been raised about the development process. Development decision-making is condemned as non-participatory[30]which considers Indian citizens simply as objects of development decisions and programs [31] - development or even as anti-poor.37 Therefore, Professor Baxi believes that development now appears as a new theology in which the democratic articulation emergesagainst the people. 38
The displacement of people from their place of residence, whether or not they own the land in which they reside, jeopardizes their livelihoods. Therefore, a number of legal issues arise in the specific context of the displacement of people for the establishment of SEZs.
The strength of the existing law to secure people's livelihoods would involve a discussion of the following:
- The nature of the property right enshrined in India law and its potential to secure livelihoods
- Restrictions on property rights in the form of the notion of eminent dominion as embodied in the Land Acquisition Act of 1894 and the RFCTLARR Bill, the role that development ideology plays in justifying the expansive power of the state under eminent dominion.
- The general rules regarding compensation, rehabilitation and resettlement, the concerns arising from them, the implementation of SEZ legislation and popular struggles in the context of SEZs.
- International and national standards regarding the right to subsistence, the right to work, the right to an adequate standard of living and the concerns that affect them.
Right To Environment Under The Constitution
Article 21 of the Indian Constitution represents the first line of freedoms relating to life [32]and personal liberty[33]. For any civil society, there can be no more important attributes than the life and personal liberty of its members[34].22 Life enshrined in the article 21 received an expansive interpretation in the hands of the judiciary. Some of the rights, not specifically mentioned as fundamental rights, have been elevated to the category of fundamental rights by the judiciary.In Chameli Singh vs In the state of U.P. [35], the court stated that the right to live in any civil society implies the right to food, water, a decent environment, education, health care and housing. These are the basic human rights known to any civil society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights, 1948 or the ones guaranteed under the Constitution of India cannot be exercised without these basic human rights.
The freedom guaranteed by article 21 is available to a person against the state. An injured person may appeal as a last resort for the violation of Article 21 under Article 32 and Article 226 of the Indian Constitution[36].
The freedoms guaranteed by Article 21 are not absolute. The right to life, protected by Article 21, has received a broad interpretation to include human rights jurisprudence within its scope. In Sodan Singh v. NDMC[37], the Supreme Court stated that:
in view of the global development in the field of human rights, these judicial decisions are a strong indicator towards the recognition of an affirmative right to the basic necessities of life under Article 21.
In Francis Coralie v. Union Territory of Delhi[38], the court held that the right to life includes the right to live with dignity. In Unni Krishnan v. State of AP[39], the court held that if Article 21, which is the heart of fundamental rights, has received an expanded meaning from time to time, there is no justification why it cannot be interpreted in the light of the principles .
Right to environment, inscribed as a guideline under Article 48 A of the Constitution, has been read under Article 21 of the Constitution by the Indian courts as a human right[40]. The entire environmental law jurisprudence has evolved under the shroud of Article 21 of the Constitution of India[41]. Right to life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence.[42]
Health hazards, due to pollution, have also been brought within its extended meaning. Indian Supreme Court has said that any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21.[43]Right to water has also been recognized as a part of right to life.
Role Of Supreme Court In Providing Healthy Environment
Indian Supreme Court, while recognizing the role of the Supreme Court in providing healthy environment, in T.N Godavarman Thirumulpad v. The Union of India[44]stated that natural resources are the heritage of the whole nation. It is the obligation of all stakeholders, including the union government and state governments, to conserve and not waste resources. Any threat to ecology can lead to the violation of the right to enjoy a healthy life guaranteed by Article 21, which must be protected.The Constitution imposes on the Supreme Court the duty to protect the environment . On the other hand, giving credit to the role of the state, the Supreme Court in the Vincent Panikurlangara v. Union of India[45] judgment affirmed that a healthy body is the basis of all human activities.
In a welfare state it is the obligation of the state to guarantee the creation and maintenance of conditions conducive to good health. Supreme Court indulgence, in Research Foundation v. Union of India[46]38[47], the court stated that the right to information and participation of the community are necessary for the protection of the environment and human health is an inalienable part of Article 21 and is governed by accepted environmental principles. The government and the authorities must motivate citizen participation by formulating the necessary programs .
This approach was reiterated in Goa Foundation v. Union of India, 39 in which the court stated that the Indian government is not powerless to ensure compliance with environmental laws, in particular the Environmental Protection Act 1986. The government is ordered to issue an order for the closure of non compliant that continue to operate in violation of environmental laws.
Similarly, the judiciary has interpreted the right to development as part of Article 21 of the Indian Constitution. The human right to development bases its premise on both fundamental rights and the guiding principles of state policy. Fundamental rights and directives constitute both two wheels of the development chariot. In clarifying the right to development, the Supreme Court of India in Samatha v. The state of AP[48]40 State affirmed that:
India, as an active participant in the 1986 Declaration on the Right to Development and a signatory to it, is its duty to formulate policies, legislative or executive, and to protect social, economic and civil rights. and cultural values of the people, especially the poor, the Dalits and the tribes, as prescribed in article 46 read with articles 38 and 39 of the Constitution.
Through this constant effort and interaction, the right to life would have meant realizing its full potential as an inalienable human right. Social and economic democracy is the basis on which political democracy would be a way of life in Indian politics. Law as a means of social engineering must create a just social order by eliminating inequalities in social and economic life
In N.D. Jayal and Anr. v. Union of India,[49] 41 in the second case of the Tehri dam, the Supreme Court stated that the right to development cannot be treated as a mere right to economic improvement or it cannot be limited as a misnomer to simple construction activities. The right to development includes much more than economic well-being and includes in its definition the guarantee of fundamental human rights. The right to development encompasses the entire spectrum of civil, cultural, economic, political and social processes, for the improvement of people's well-being and the realization of their full potential.
It is an integral part of human right. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as integral component of development.
Right to Development vis-à-vis Right to Environment
The era of pro-environmental judgment begins with Kendra v. Law and rural litigation. Union of India [50]. In this case, the Supreme Court of India, reading the development against the right to the environment, said that the consequence of this order we have issued would be that the tenants of the limestone quarries who were ordered to close permanently, after examining According to the Bandyopadhyay Committee report, you would be out of the industry where you have invested large sums of money and greatly extended your time and effort.
This would certainly create difficulties for them, but it is a price you must pay to protect and safeguard the right of people to live in a healthy environment with minimal alteration of the ecological balance and without avoidable risks for themselves and their livestock.
Families and agricultural land. and undue contamination of air, water and the environment. of limestone quarries and also ordered the state to establish the monitoring committee to ensure afforestation, extraction and all ù aspects necessary to achieve natural normality in Doon Valley. The court also issued instructions on the finances, powers and duties of the oversight committee.
Similarly, in Ambica Quarry Works v. State of Gujarat [51]and others, the two appeals focused on the question of how to find a balance between the need to exploit the mineral resources hidden in the forests and the need to preserve the ecological balance. thus stopping the growing environmental degradation.
The Supreme Court in the said case took a stance towards the protection of environment and observed that in this case the renewal of the mining leases will lead to further deforestation or at least will not help reclaiming the areas where deforestation has taken place.
In similar lines, in M.C. Mehta v. Union of India[52], popularly known as the Kanpur Tanneries case, the Supreme Court which struck a balance between the right to development and the right to the environment said: In cases of this nature, this court can issue appropriate instructions if it finds that the public is committing a nuisance or other illegal act that affects or may affect the public and the legal authorities that have a duty to prevent it are not taking adequate measures to rectify the complaint.
For every violation of a right there should be a remedy .The addresses in this case were directed to industries. In a final case, the Supreme Court ordered Kanpur Nagar Mahapalika to act in accordance with the provisions of Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, or the relevant statutes promulgated under it to prevent water contamination in the Ganges River by the waste accumulated in the large number of dairy farms of Kanpur with 80,000 head of cattle. so that the dairy waste does not eventually reach the Ganges River or, alternatively, the Mahapalika could organize the disposal of the waste in motor vehicles, in case the owners of the newspapers could not claim any compensation.
The court He also ordered the Mahapalika to take immediate action to prevent the collection of manure from the pit and deprived of manure within the city. The Kanpur Nagar Mahapalika should take immediate steps to increase the size of the sewers in the working colonies, so that the wastewater can be transported smoothly through the sewer system, and wherever the line has not yet been built, measures must be taken to establish it.
The court also ordered that immediate action be taken undertaken by Kanpur Nagar Mahapalika to build a sufficient number of public latrines and urinals to prevent people from defecating in the open ground. The proposal to impose any charges for the use of such latrines and urinals will be dropped as this would be a reason for the poor not to use public latrines and urinals.
The above list of cases shows the Supreme Court's pro-environmental approach. While, in Narmada Bachao Andolan vs Union of India[53], where the controversy concerned the Sardar Sarovar dam, the Supreme Court, while denying the allegations of the petitioners, stated that while protecting people's rights so that they are not violated in any way, it must be taken so that the court does not violate its jurisdiction.
In our constitutional framework there is a fairly clear demarcation of the powers of the governing bodies. The court has acted forcefully whenever the executive has tried to influence the jurisdiction of the court. At the same time, in the exercise of its enormous power, the court should not be convened or assume any governmental duties or functions. Courts cannot direct government, nor can the administration afford to abuse or abuse power and get away with it. The role of the higher judiciary under the Constitution imposes a great obligation on it as a sentinel to defend the values of the Constitution and the rights of the populations in digene.
Therefore, the courts must act within the legally permissible limits to uphold the rule of law and exploit its power in the public interest. It is precisely for this reason that this court has consistently stated that the court will not interfere in political matters. When there is a valid law that requires the government to act in a particular way, the court should not, without repealing the law, give instructions that do not comply with the law.
In other words, the court itself is not above the law. As for government-initiated projects and public policy, the courts should not become an approval authority. The government usually makes these decisions after due attention and consideration. In a democracy, the well-being of people in general, and not just a small part of society, should be the concern of responsible government.
Conclusion
Development is a holistic concept. The Constitution of India, charged with raising the morale of society, absorbing itself in the spirit of the struggle for freedom, provided for various aspects of development against the Guiding Principles of State Policy. The Directives provide for measures to build a society on the principles of fundamental freedoms guaranteed by the Indian Constitution. Filled with socio-economic rights, which constitute the fundamental components of imagined India, the directives create an inescapable duty for the government to act to achieve the stated goals.
Though, overwhelming activism shown by the judiciary can take shelter under the guardianship of environmentalist, on a deep perusal, it fails to satisfy the mandate of the Constitution.[54] It is pertinent to note that the Indian courts have read the right to development and the right to the environment in Article 21 of the Indian Constitution. The right to a healthy environment is a social interest enshrined in the guiding principles of state policy under the Indian Constitution.
Until now, Indian courts have walked a tightrope when it comes to balancing the guiding principles of state policy with the fundamental rights enshrined in the Constitution.[55] In recent years, they have read the socio-economic rights, enshrined in the directive principles of State policy and fundamental rights[56]. Placing the realization of these rights under the protection afforded to fundamental rights denies not only the essence of these rights, but also the importance and significance of those rights.
End-Notes:
[1] Dadwal, L., Position of Human Rights: An Indian Profile, 39 C.M.L.J. 221, 225 (2003).
[2] Dr. Adarsh Sein Anand, Former Chief Justice of India, Inaugural Speech at the Golden Jubilee Celebration of the Rajasthan High Court (Aug. 29, 1999) (there exist a danger by creating multiplicity of rights without possibility of adequate enforcement).
[3] The Constitution Of India, art. 48A.
[4] The Special Economic Zones Act, 2005, sections 3 (2), 3 (4), 4(1) read with rule 7 of the Special Economic Zones Rules, 2006.
[5] The Special Economic Zones Rules, 2006, Rule 5. The requirement of possession of minimum contiguous land anywhere between 10 to 1000 hectares depending on the category of SEZ and the region in which it is to be set up.
[6] Id., Rule 7.
[7] Ibid.
[8] Generally see violation of human rights in the context of forced evictions which may be caused in the name of development facilitated through the process of land acquisition. Right to Adequate Housing: Forced Evictions, General Comment 7, 1997, CESCR, paragraphs, 7, 15.
[9] Right to Work, General Comment 18, 2005, CESCR, paragraph, 1; ILO Convention 168, 1988, Preamble
[10] Partha Chatterjee, The Nation and its Fragments 202-205 (Princeton University Press 1993).
[11] Id., p. 202
[12] Declaration on the Rights of the Indigenous Peoples, 2007 for instance took years of drafting and discussion before adoption.
[13] J.E.Penner, Mccoubrey and White’s Textbook on Jurisprudence 152-166 (Oxford University Press, 2002).
[14] Anjan Chakrabarti, Anup Dhar, Dislocation and Resettlement in Development: From Third World to the World of the Third 36 (Routledge, New York, 2010).
[15] P.W.Preston, Development Theory: An Introduction 165 (Blackwell, Oxford, 1996).
[16] Ibid.
[17] Ibid.
[18] Ibid
[19] Ibid
[20] W.W. Rostow, The Stages of Economic Growth in Mitchell a. Seligson, John T Passe-Smith (ed.), Development and Underdevelopment 173-180 (Viva Books, New Delhi, 2010).
[21] P.W.Preston, Development Theory: An Introduction, 168 (Blackwell, Oxford, 1996).
[22] B.Z. Tamanaha, The Lessons of Law and Development Studies, 89 AJIL 471 (1995).
[23]Gilbert Rist, The History of Development: From Western Origins to Global Faith 74 (Zed books, London, 1997).
[24] Jawaharlal Nehru, Jawaharlal Nehru Speeches, 93 (Publications Division, New Delhi, 1954).
[25] Ibid.
[26] Generally see the plan documents available at http://planningcommission.nic.in/plans/planrel/fiveyr/index7.html.
[27] The Eighth Five-Year Plan, paragraph 1.1.6, available at
http://planningcommission.nic.in/plans/planrel/fiveyr/index7.html.
[28] A conservative estimate puts the figure at 143 lakhs. For details see Walter Fernandes, J.C.Das, Sam Rao Displacement ad Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 79 (Indian Social Institute, 1989).
[29] Walter Fernandes, J.C.Das, Sam Rao, Displacement and Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 63 (Indian Social Institute, 1989).
[30]Walter Fernandes, J.C.Das, Sam Rao, Displacement and Rehabilitation: An Estimate of Extent and Prospects in Walter Fernandes, Enakshi Ganguly Thukral (eds.), Development, Displacement and Rehabilitation: Issues for a National Debate 63 (Indian Social Institute, 1989).
[31] Upendra Baxi Notes on Constitutional Aspects of Rehabilitation and Displacement in Walter Fernandes, Enakshi Ganguly Thukral (eds.) Development, Displacement and Rehabilitation: Issues for a National Debate 164 (Indian Social Institute, 1989).
[32] Shantistar Builders v. Narayan, (1990) 1 S.C.C. 520 (right to life will take within its sweep, the right to food, clothing, decent environment and reasonable accommodation to live in).
[33]The Constitution Of India, art. 21.
[34] Kehar Singh v. Union of India, (1989) 1 S.C.C. 204.
[35] (1996) 2 S.C.C. 549
[36] L.K.Koolwal v. State of Rajasthan, A.I.R. 1988 Raj. 2 (maintenance of health, sanitation and environment falls within Art.21 thus rendering the citizens the fundamental right to ask for affirmative action).
[37](1989) 4 S.C.C. 155.
[38] A.I.R. 1981 S.C. 746 (we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings).
[39] (1993) 1 S.C.C. 645.
[40] Subhash Kumar v. State of Bihar, A.I.R. 1991 S.C. 420 (the right to life enshrined in Art. 21 includes the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32).
[41] Damodhar Rao v. Municipal Corporation, Hyderabad, A.I.R. 1987 A.P. 170 (there can be no reason why practice of violent extinguishments of life alone would be regarded as violative of Art.21 of Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Art.21 of the Constitution).
[42] Virendra Gaur v. State of Haryana, 1995 2 S.C.C. 577
[43] M.C. Mehta v. Kamal Nath, (2000) 6 S.C.C. 213; see also Virender Gaur v. State of Haryana, (1995) 2 S.C.C. 577; A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 S.C.C. 718.
[44](2006) 1 SCC 1 (entitlement to clean environment is one of the recognised basic human rights. The right to life inherent in Article 21 of the Constitution of India does not fall short of the required quality of life which is possible only in an environment of quality.); see also V. Lakshmipathy v. State of Karnataka,A.I.R. 1992 Kant. 57 (where on account of human agencies, the quality of air and quality of environment are threatened or affected, the Court would not hesitate to use its innovative power to enforce and safeguard the right to life to promote public interest.).
[45] (1987) 2 S.C.C. 165.
[46] (2005) 10 S.C.C. 510.
[47] (2005) 11 S.C.C. 560.
[48] A.I.R. 1997 S.C. 3297.
[49] (2004) 9 S.C.C. 362.
[50] 1989 S.C.C. Supp. (1) 537
[51] 1987 S.C.R. (1) 562.
[52] [1987] 4 S.C.C. 463.
[53] A.I.R. 2000 S.C. 3751.
[54] Swami Shraddananda v. State of Karnataka, (2007) 12 S.C.C. 288 (the court cannot amend the constitution by judicial verdict or legislate or amend the law by process of interpretation).
[55] S.P. Sathe, Post Emergency Judicial Activism: Liberty and Good Governance, 10 (4) Journal Of Indian School Of Political 603 (1998).
[56] J. P. Unnikrishnan v. State of Andhra Pradesh, (1993) 1 S.C.C. 645; see also M. C. Mehta v. Union of India, A.I.R. 1987 S.C. 1086; Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, 1987 Supp. S.C.C. 487; Subash Kumar v. Union of India, (1991) 1 S.C.C. 598; N. D. Jayal v. Union of India, (2004) 9 S.C.C. 362; M. C. Mehta v. Union of India, (2006) 3 S.C.C. 399; Pt. Parmanand Katara v. Union of India, A.I.R. 1989 S.C. 2039; Shantisar Builders v. N. K. Totame, A.I.R. 1990 S.C. 5151; Gauri Shankar v.
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