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Protecting Public Health

Protecting Public Health

Do the air pollution particles act as vehicles for viral transmission?  Yes. The scientists across the globe uniformly confirm that there exists a murky relationship between air pollution and corona virus.  Studies in the US are suggesting that air pollution has significantly worsened the COVID-19 outbreak and led to more deaths than if pollution free skies were the norm. Hence, addressing air pollution and improving air quality has become the major challenge for nations in overcoming the pandemic.

 Everyone likes to live in a healthy and productive environment. It is a basic human necessity. Healthy and wholesome environment is a nature’s gift. Safe air quality which is part of safe environment has come to be recognized within the ambit of right to life. It is indisputable that air pollution weakens the immune system affecting people’s ability to fight off infection. Virus could disperse more widely on air pollution particles. So much so, the air environment should be kept clean and pollution-free.

Dimensions of Air Pollution

The magnitude, comprehensiveness and speed of man’s environmental intrusion have created the present critical relation to the biosphere.  The unlimited demands of man and his consumption patterns have made him to forget that human life is sustained by air. Ignoring the super importance of air, man is polluting his life sustaining supply as a result of massive industrialization, urbanization, mechanization, motorization and chemicalization of agriculture which have led to poisoning of the air and degradation of the air quality. It has made the lives of the citizens not worth living.

 Cities, though expanding in population and size, are now plagued with smoke, vapour, noise, suspended solid particulates, poisonous gases, acid rains, smog, haze, odours and other hazardous air pollutants, posing a serious threat to public health and air quality.

Human intervention is on the verge of damaging even the ozone layer, the protective cover of earth. It is found that ozone level exceed air quality standards bringing adverse impact on climatic conditions, human health and safety. Air quality degradation is reaching a stage that threatens to destroy the environment and the mankind, the most exposed to illness being women, children and the aged. These emerging public health issues having social and economic ramifications warrant immediate attention.

Public Health and Air Quality Protection-

Air Quality is directly related to public health. Bad air quality often brings public health to causality paving the way for spread of epidemics and infectious diseases. It also makes impossible productive, meaningful and qualitative life in its richness and fullness. Therefore, air quality degradation should be approached from a public health perspective and any human activity leading to air quality degeneration should be viewed as an invasion of the right to public health.  

Public health means a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. It was historically one of the last attended areas in any legal system. A breakthrough occurred in the global outlook with the Universal Declaration of Human Rights, 1948, which under Article 25 specifically recognized the right of everyone to a standard of living adequate for health and well-being. It also recognized related rights such as right to life, right to effective remedy for violation of fundamental right. However, the Declaration did not contain specifically public health issues.

At a later stage in 1968 the UN General Assembly for the first time acknowledged the existence of right to environment adequate to support human health and dignity by passing a resolution in that regard. This concept was further strengthened by the WHO Constitution which also affirmed that it is one of the fundamental rights of every human being to enjoy the highest attainable standard of health. Since then, health has gained positive recognition as a fundamental right, available to all and irrespective of any distinctions and warranting State protection and promotion.

             Right to public health has hitherto generated several questions which ultimately have brought within its purview, inter alia, the right to responsibility for health, the right to quality of life and the right to healthy environment. This right is no longer accepted as a charity or privilege of the few, but demanded as a right for all. It is a major public concern and that it involves combined efforts of the whole social fabric acting in partnership, viz, the individual, the community and the State.

Stockholm and Rio- Fulfilling the Future Aspirations

Two International Declarations on Environment and Development, Stockholm and Rio, have vitally influenced the environmental and public health policies of the world and placed compulsion on countries to preserve the natural resources including air for the present and future generations through careful planning and management. Resultantly, many countries including India have accepted the polluter pays principle, the precautionary principle and the concept of intergenerational equity as the guidelines for designing environmental policies aimed towards protection of public health.

The right to pollution-free air and environment, the principles of sustainable development and strict liability also were invoked to tackle air pollution problems at the grass-roots levels at elementary stages. Agenda 21 evolved by the Rio Conference also recognized the dependency of human health on a healthy environment. The concept of clean air to breathe is the result of such efforts for over the last few decades and synthesizes a new rationale within the human rights spectrum. It thus came to be regarded as community right rather than individual right.                

The OSPAR Hazardous Substances Strategy, 1998 aimed at reducing the concentrations of hazardous substances in the environment to near background values for naturally occurring substances and close to zero for man-made synthetic substances, and to move to the complete cessation of discharges of hazardous substances by the year 2020.  But as we stand in 2020, one has to fairly concede that very little has been achieved and vast remains undone. The Copenhagen Consensus, 2004 had included climate change and communicable diseases within a list of 10 major challenges facing the world. The above trends have made air environment as the nucleus in the ebb of public health spectrum.             

Constitutional Scheme on Public Health and Air Quality

In all civilized societies, the State assumes responsibility for the health and welfare of the citizens. It is the responsibility of every model Welfare State. In India, it has now come to be articulated as a facet of the right to life under Article 21, and has been legitimized as a fundamental right. Any disturbance of the basic environment element including air is regarded as hazardous to ‘life’ within the meaning of Article 21.

 Yet, the extent of the State obligation remains as the unresolved and unanswered issue inviting further debates. It is argued that the responsibility to protect and promote public health does not diminish by lack of resources. It is a primary duty of the State enforceable as a fundamental right. The existing attitude and practices speak volumes of the fact that State often places reliance on market conditions as an evasive attempt to escape from public health obligations which also includes the duty to ensure safe and clean environment.

Public health is listed as a State subject under the Constitutional scheme and by virtue of the power derived from Article 246(3) of the Constitution, the legislature of any State has exclusive power to legislate for that State in matters pertaining to public health. Centre can also legislate on this subject either under Article 249 or under Article 252 of the Constitution of India. Legislation can also be made by the Centre under Article 253 to give effect to any international treaty obligation or to implement the decision taken in any international conference or convention.

Directive Principles of State Policy

The Constitution of India provides for a number of Directive Principles of State Policy which have also made an express reference to environment. The characteristic feature of the Directive Principles of State Policy is that they are fundamental in the governance of the country and it is the duty of all the organs of the State to apply it. Citizens also have a constitutional duty to protect and improve the environment also supported by Public Trust Doctrine.

With the 73rd and 74th Constitutional Amendments taking legislative teeth, the local bodies are now made well equipped to function as effective agents in protecting and promoting public health. Now under the new age of constitutional environmentalism and transformative constitutionalism, the State is under a positive obligation to ensure clean and healthy environment for enjoyment of life of every individual.

Judicial Initiatives  

The judiciary in India has been adopting different approaches, forging new methods, tackling different situations, setting new goals to be achieved in its zeal to promote public health and to preserve the air quality. This can be seen as an attempt to reinforce the character of a Welfare State. Court has taken the consistent view that life, health and ecology have greater importance for the people and therefore it is its legitimate duty as enforcing organs of constitutional objectives to forbid all actions of the State and of the citizens  endangering public health and upsetting the environmental balance. As a result, public health jurisprudence in India has grown steadily and it displays the story of judicial response to citizens’ complaints against public health degradation and administrative sloth.  

The primary concern of the Court while dealing with public health hazards has been to ensure that the enforcement agencies take effective steps for the enforcement of the laws in letter and spirit. Constitutional history and precedents shows that Courts have intervened cautiously, as of absolute and acute necessity for the protection of the invaluable fundamental rights of the people to lead a meaningful and productive life in a healthy environment.

Drawing Lessons from the Past and Meeting New Challenges

The public health issues of the 21st century has witnessed several new threats in the form of HIV/AIDS, Ebola, West Nile virus, SARS, avian influenza, obesity, bio-terrorism, and now COVID-19. Legal system should devise modalities and ways within the constitutional framework to meet the present challenges.  Courts have expressed its concerns and have addressed the above problems as larger public health issues. However, it is an accepted fact that Law still stands as a silent spectator in these disturbing and puzzling situations and public health continues to be the neglected area of concern for the law makers and policy framers.

This warrants the presence of an alert civil society and good governance. The policies of the Government should aim at reduction of pollution load not merely as an important benefit to public health, but as a major economic incentive. The polluted countries should move towards more stringent social distancing measures. Ultimately the environment should show the signs of healing.

(Adv.Dr.Pauly Mathew Muricken, is a Lawyer at the High Court of Kerala. He is also an Adjunct Professor and Research Guide at The National University of Advanced Legal Studies, Kochi and a member of the Guest Faculty in Law at Cochin University of Science and Technology)

(Published on 22nd June 2020, Volume XXXII, Issue 26)