marginalized sectors, or community of persons, regardless of the situs of the
violation and/or the personalities involved or implicated in the human
rights case or issues, may be the subject of a public inquiry.
The position is consistent with the approach adopted in other jurisdictions.
In 1997, for example, the Indian Supreme Court considered the relationship between
environmental protection and the right to life, and the responsibility of all parties to
uphold it16:
One of the fundamental duties of every citizen as set out in Article 51A(g) is
to protect and improve the natural environment, including forests, lakes,
rivers and wildlife and to have compassion for living creatures. These two
Articles have to be considered in the light of Article 21 of the Constitution
which provides that no person shall be deprived of his life and liberty
except in accordance with the procedure established by law. 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 of the Constitution ...
In the matter of enforcement of Fundamental Rights under Article 21 under
Public Law domain, the Court, in exercise of its powers under Article 32 of
the Constitution has awarded damages against those who have been
responsible for disturbing the ecological balance either by running the
industries or any other activity which has the effect of causing pollution in
the environment. The Court while awarding damages also enforces the
“POLLUTER PAYS PRINCIPLE” which is widely accepted as a means of paying
for the cost of pollution and control.
In 2005 the Nigerian High Court, ruled that practices of the Shell Petroleum
Development Company were interfering with the Claimant’s right to life17:
The actions of the 1st and 2nd respondents in continuing to flare gas in the
course of their oil exploration and production activities in the applicants’
community is a gross violation of their fundamental right to life (including
healthy environment) and dignity of human person as enshrined in the
Constitution.
16
M.C. Mehta v. Kamal Nath, 1997)1 SCC 388
Nigeria: Gbemre v Shell Petroleum Development Company Nigeria Limited and Others
(2005) AHRLR 151 (NgHC 2005)
17
20