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Balancing National Security and Fundamental Rights in Environmental Cases

  • Category
    Polity & Governance
  • Published
    13th Dec, 2021

Context

Frequent flooding, forest fire, earthquake and other calamities are causing incalculable loss and damage to an already fragile ecosystem.

Such loss demands a balance between security and fundamental rights of the citizens in the environmental cases.

Background

  • In February this year, Uttarakhand’s Chamoli district in the outer Garhwal Himalayas witnessed one of its major natural disasters in recent years that left over 200 killed or missing.
  • This is not the only natural disaster to have claimed lives and livelihood in the Himalayas.
  • The ferocious October flash floodsthat claimed at least 54 lives this year in Uttarakhand.
  • The flash floods in Kedarnath caused devastation in 2013, when more than 5,000 lives were lost.
  • Frequent forest fires, flash floods, cloud bursts, earthquakes and landslides in the region are evidence of it being in an extremely fragile and vulnerable zone
  • Climate change and global warming further exacerbate the already precarious situation.

The above facts point towards the many risks to lives and livelihood faced by the people living in the region by any activity which destabilises the mountains.

Analysis

How climate change is threatening human rights?

  • Human rights express the entitlement of all people to be treated equally, to live their life in safety and freedom, and to be protected by their government.
  • Climate change affects many of the human rights, such as right to life, health, food, and an adequate standard of living.

During COP 24, the UN climate change conference in Poland, 34 UN human rights experts – on issues ranging from business, development, and environment – called upon countries to take human rights-based climate action in line with the 1.5C temperature target in the Paris Agreement.

Is climate change, a case of ‘national security’?

  • Security can no longer be confined to national security threats or international relations alone. Off-late, the world over environmental changes has now also been listed as security threats.
  • It is believed that changing environmental conditions may affect war fighting capability, the existing defence works, and elaborate communication infrastructure.

Why changing climate is a threat to national security?

  • Affected mobility in warfare
  • Affected military operation: Flash floods out of glacier melt can complicate military planning and would affect the campaign season, logistics, surface mobility and weaponry platforms.
  • Wear and tear: High temperature would result in wear and tear on equipment and demands of more water.
  • Naval operations: Rise in water levels would affect Indian Navy at all levels of warfare—strategic, operational and tactical—impinging on issues of maritime boundaries, exclusive economic zone (EEZ), post operations, shallow water operations, notably for submarines and naval tactics
  • Affected performance of Air Force: The climate change would affect the performance of the aerial platforms, as well as that of the munitions, delivered from these platforms, because weather plays a key role in weapon delivery, particularly in the case of standoff weapons and laser-guided munitions.

Role of state to protect environment (Environment and Indian Constitution)

The Directive Principles of State Policy (DPSP) and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment.

Three constitutional provisions bear directly on environmental matters.

  • Article 21 states: "No person shall be deprived of his life or personal liberty except according to procedure established by law." In Subhash Kumar v. State of Bihar, A.I.R 1991 SC 420,and Virendra Gaur v. State of Haryana, (1995) 2 SCC 577, the Supreme Court recognized several liberties that are implied by Article 21, including the right to a healthy environment. The State High courts have followed the Supreme Court's lead, and virtually all now recognize an environmental dimension to Article 21.
  • Article 48A requires that "the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country."
  • Article 51A establishes that "it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wild life and to have compassion for living creatures."

SC’s view on clean environment

  • For years the Supreme Court has held that the ‘right to clean and safe environment’ is a fundamental right (Subhash Kumar vs State of Bihar; Rural Litigation and Enlightenment Kendra vs State of UPC. Mehta vs Union of India; Charan Lal Sahu vs Union of India; T.N. Godavarman vs Union of India).
  • When there is an identifiable risk of serious or irreversible harm to the environment, including, for instance, extinction of species, major threats to ecological processes, the burden of proof shall be placed on the person or entity proposing the activity that is potentially harmful to the environment.
  • This is also known as the precautionary principle (Vellore Citizen’s Welfare Forum vs Union of India)
  • It is this burden that the state has wanted to shift by raising the argument of national security in the Char Dham project case thinking that the court will grant it complete authority.
  • The law laid down in L. Sharma, therefore, becomes crucial and significant.

The Char Dham Project adds fuel to fire

  • The Char Dham project is a flagship initiative of the Union government.
  • This Rs 12,000-crore highway expansion project was envisaged in 2016 to widen 889 kilometres of hill roads to provide all-weather connectivity in the Char Dham circuit, covering Uttarakhand’s four major shrines:
    • Badrinath
    • Kedarnath
    • Gangotri
    • Yamunotri
  • There were several concerns against the project right from the start.
    • It was pushed through without clearances and valid permission, by falsely declaring that the stretches did not fall under the eco-sensitive zones and by clearly violating all Supreme Court’s directives.
    • An Environmental Impact Assessment (EIA) of the project was not carried out.
  • Since 2013, highway expansion projects of less than 100 km in India have been exempt from EIA.

Conclusion

At present, a rigorous analysis is important to understand how climate change is impacting the world and what climate solutions are required to reduce the impact and likelihood of security and wider conflict issues.

Building engagement strategies from this analysis and learning from people living and working in environments where climate change, conflict, and violent groups using terror tactics overlap, can help the climate justice and environmental peacebuilding movements avoid sinking into a securitized war on terror world.

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