Author: Krushna Bawa, a student at DES’S Shri Navalmal Firodia Law College, Pune.
Abstract:
The issue of climate change is a critical one of the twenty first century, posing a great threat to ecosystem balance, economic development, food security, health concerns and human rights. The country being one of the most rapidly growing economies of the world, and the third largest contributor of greenhouse gases to the atmosphere, India finds itself in a distinct position within international efforts at climate governance. While India contributes to the overall global emission levels of greenhouse gases on account of its huge populace and large industries, its per capita levels of emissions are relatively low compared to that of the developed countries.
In India, environmental governance is influenced by constitutional provisions, legislative laws, judiciary, executive actions and international treaties. The Constitution of India through articles 21, 48A, and 51A(g) provides the basic legal foundation for ensuring environmental security. Legal acts such as Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Environment (Protection) Act, 1986 and National Green Tribunal Act, 2010 are the main laws that regulate environmental conservation. Internationally, India is a state party to the United Nations Framework Convention on Climate Change (UNFCCC); Kyoto Protocol and the Paris Agreement.
Even with the existence of legislation, there are significant political and institutional challenges in the realm of environmental governance. The tension between economic growth and environmental protection, lack of enforcement, jurisdictional conflicts, and severe natural calamities bring out the structural weaknesses. In this paper, an analysis will be made on the response of India in terms of legislation and politics concerning global warming, the constitutional and statutory framework for public health management, and the landmark judicial decisions.
To The Point:
Climate change is no longer limited to the rudimentary understanding of environmental science but has become an essential matter of the constitution, law, geopolitics, and socioeconomic stability. The occurrence of extreme heat waves, erratic monsoons, vanishing glaciers, floods, extinction of various species, and regular occurrence of violent weather patterns further adds to the urgency of having proper climate governance in place.
The Indian model for environmental governance entails legal measures that include constitutional provision, law-making, judicial intervention, and policy formulation by the executive authority. The judiciary has widened the ambit of Article 21 of the Constitution to include the right to a clean and healthy environment as an important facet of the right to life. At the same time, the parliament has formulated laws related to environmental issues.
Climate governance goes beyond legal regimes and is largely influenced by political decision-making, federal issues, economics, international relations, and public involvement. Policymakers are continually faced with the dilemma of developing industry, ensuring energy security, creating jobs, and preserving nature. As such, climate policy is an extremely delicate field that requires coordinated efforts between Union institutions, state administrations, local administrations, businesses, and citizens’ groups.
The pledge by India to reach Net Zero emissions by 2070, build more renewable energy infrastructure, promote green hydrogen, and adopt climate adaptation is indicative of growing political will. However, it is important for India to focus on building its capacity to implement these sovereign priorities effectively.
Use of Legal Jargon:
Climate Change:
Climate change refers to any disruption of global or regional weather patterns that occurs due to the human-induced emission of greenhouse gases.
Environmental Governance:
Environmental governance involves all the systems of constitutional provisions, statutes, administrative agencies, judicial decisions, and government policies pertaining to the protection and conservation of the environment.
Climate Justice:
Climate justice recognizes that environmental degradation impacts the vulnerable groups disproportionately, necessitating an equitable sharing of legal responsibility, mitigation obligation, and protection measures.
Sustainable Development:
Sustainable Development is the principle that Development should meet the needs of the present without compromising the ability of future generations to meet their own needs.
Intergenerational Equity:
Intergenerational equity is an obligation imposed on current generations by law to conserve natural resources for future generations.
Precautionary Principle:
Precautionary Principle demands taking preventive measures through law before causing any irreparable ecological damage, despite lack of certainty about science.
Public Trust Doctrine:
A legal principle that states natural resources like river, forests, lakes, air and water are kept for public use and cannot be privately owned by any private company.
Polluter Pays Principle:
The principle is legally binding on those who cause pollution of the environment, obliging them to cover all expenses related to preventive actions, mitigation measures, and restoration of ecology.
Environmental Federalism:
The principle refers to the constitutional division of powers pertaining to ecological governance between the federal Union Government and state governments.
Climate Adaptation:
The principle implies structural efforts to mitigate climate impacts and increase resilience through laws, regulations, and policies.
The Proof:
Environmental Governance and Its Constitutional Basis:
Even though the Constitution of India did not contain any provision on environmental governance in its original form, the Forty-Second Constitutional Amendment Act of 1976 marked a paradigm shift in Indian environmental law and governance. Article 48A was introduced under the Directive Principles of State Policy and provides that it is the duty of the state to conserve the environment and protect flora and fauna in India.
At the same time, Article 51A(g) also instituted a Fundamental Duty requiring all citizens to conserve the natural environment, including the forests, lakes, rivers, and wildlife. The constitutional amendment represents the collective legal obligation of the sovereign state as well as its citizens in the conservation of the environment.
However, the most important development was the interpretation of Article 21 by the Indian courts. The Right to Life guaranteed by Article 21 started including the right to a clean environment from the late 1980s onward. This legal development has firmly entrenched environmental protection as a fundamental right.
The division of legislative powers provided under Schedule VII also acts as a support for the constitutional structure. The coordination in law making between the central and state governments becomes vital for India’s climate governance as the regulation of the environment calls for coordinated statutory action.
The Statutory Framework that Regulates Climate and Environmental Protection
For environmental governance in India, there exists an extensive statutory framework. The Environment (Protection) Act, enacted in 1986 after the Bhopal Gas tragedy, serves as umbrella legislation which enables the Central Government to ensure protection of the environment as well as control pollution. The act provides for setting emission standards, controlling hazardous substances in industries, and impact assessment of projects.
The Air (Prevention and Control of Pollution) Act 1981 creates the mechanism through which air pollution can be monitored and controlled by means of the Central Pollution Control Board and State Pollution Control Boards. Since the emission of greenhouse gases and industrial pollutants are major causes of global warming, this legislation becomes very important in environmental governance.
Likewise, the Water (Prevention and Control of Pollution) Act, 1974 controls water pollution, and the Forest (Conservation) Act, 1980 aims at preventing the indiscriminate diversion of forest land for non-forest uses in order to achieve carbon sequestration and biodiversity preservation.
Institutional reforms have come through the National Green Tribunal Act, 2010. The NGT provides specialized judicial process for environmental disputes to ensure timely justice in cases of pollution, conservation, and monetary compensation. Collectively, these acts have provided a framework for litigation against environmental degradation in India.
Climate Policy in India and Environmental Governance
The climate policy within the Indian nation combines necessary conservation with economic development. Being a developing nation that is experiencing fast economic growth, India finds itself under the double challenge of reducing greenhouse gases into the atmosphere and making sure that there is alleviation of poverty, energy security, and growth of industries. Therefore, the policy of the state is largely guided by sustainable development and climate justice.
One such notable policy initiative is the National Action Plan on Climate Change (NAPCC), which was formulated in 2008. This action plan provides a robust legal and administrative framework for implementing eight main national missions:
• National Solar Mission
• Enhanced Energy Efficiency
• Sustainable Habitat
• National Water Mission
• Conservation of the Himalayan Ecosystem
• Green India
• Sustainable Agriculture
• Knowledge for Climate Change
Such missions help reduce greenhouse gas emissions and ensure sustainability.
Along with federal climate policy, there are also State Government-implemented Localized Climate Action Plans. This decentralization highlights the importance of cooperative federalism in Indian climate governance.
Commitment on the Global Stage and Indian Environmental Diplomacy
India is a participant in international environmental discussions where it calls for fairness in the formation of international climate agreements. The country is a signatory to United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement.
As per the Paris agreement, member countries are expected to submit Nationally Determined Contributions which outline their respective goals related to the climate. Some of the current goals of India include:
• Reducing emissions per unit of GDP.
• Increasing share of electricity produced from green sources.
• Planting forests to absorb maximum amount of CO2.
• Creating sustainable infrastructural systems and production of clean electricity.
At COP26 held in Glasgow, India committed itself to achieving Net Zero emissions by 2070. In addition, it promised to increase renewable energy capacity and drastically cut down the use of fossil fuels.
India is further promoting global climate cooperation through leading the International Solar Alliance and the Coalition for Disaster Resilient Infrastructure, thereby highlighting India’s growing legal leadership in international environmental law.
Development vs. Environmental Protection
Although there have been many legislative measures taken, the issue of political compliance by the executive branch is an important challenge. The biggest source of conflict in Indian environmental politics lies in the problem of balancing development with environmental protection. There have been many instances where big developmental projects such as roads, dam constructions, mining, ports, and industry corridors have led to economic development, but at the cost of large-scale deforestation, displacement of tribes, loss of biodiversity, and pollution. Thus, governments are faced with a difficult situation of clearing business ventures while maintaining regulatory controls.
Environmental Federalism
There are elements of environmental regulation at both federal and state levels. Although the federal government enacts key legislations on environment, it is the state governments who are in charge of implementation through the State Pollution Control Boards, Forest Departments, and municipalities. Discrepancies in the political will, administrative capability, and finance often result in inconsistencies in regulations within different states.
Enforcement Issues and Bureaucratic Obstacles
India has robust environmental laws but their enforcement is irregular. Deforestation, industrial pollution, and mining continue in spite of laws prohibiting such activities. Poor systems of surveillance, red tape, lack of technical skills, and local political interference often hamper the effective enforcement of the federal environmental laws.
Case Laws:
1. Indian Council for Enviro-Legal Action v. Union of India, (1996)
In Indian Council for Enviro-Legal Action v. Union of India (1996), the chemical industries in Rajasthan released untreated effluents into the environment, thereby polluting the soil and groundwater table in the region, resulting in severe public health risks. The noble-minded petitioner contended that these industries had been in violation of the statutory environmental laws and must bear the economic responsibility for the degradation of the ecosystem. On the other hand, the respondents rejected their responsibility and fiercely contested their legal liability. The Supreme Court laid strict liability on these industries for the destruction of the ecology and ordered them to pay the entire cost of remediation. The Polluter Pays Principle was firmly recognized by the Court, whereby the industries indulging in harmful industrial activities will have to make economic restitution for their wrongs.
2. A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999)
In A.P. Pollution Control Board vs. Prof. M.V. Nayudu (1999), an entity was applying for statutory permission to set up an industry near two big reservoirs which supplied water to local people for their drinking purposes. The situation was quite alarming as there were high chances of pollution of these important water resources by the planned activities of the industry, which would put the health of many people at stake. On the other hand, the Pollution Control Board cross-appealed that the activity involved was too hazardous environmentally and had to be banned on that account while the private party argued that no scientific basis could prove the inevitable pollution.
3. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020)
Alembic Pharmaceuticals Ltd. vs Rohit Prajapati (2020) – The activists filed the case against the government clearance granted for expansion of a large pharmaceutical manufacturing facility. The public interest petitioners submitted that the company started operations without obtaining any necessary pre-construction environmental clearance. The respondents argued that granting ex post facto clearances amounted to statutory violation and completely negated the legislative intent behind prior impact assessment, while the company maintained that the ex post facto clearance regularized the facility. The Supreme Court held that ex post facto environmental clearances are inconsistent with the doctrine of environmental law and cannot legalize projects that start their operations without obtaining prior approvals.
Conclusion
Climate change continues to be a crucial legal, political, and socio-ecological issue for India. Although Parliament has provided an extensive statutory framework through its constitutional provisions, environment laws, international treaties, and judicial precedents, effective enforcement continues to pose a serious challenge. The Supreme Court has been instrumental in transforming the jurisdictional ambit of Article 21 by incorporating the principles of Sustainable Development, Precautionary Principle, Polluter Pays Principle, and Public Trust Doctrine. Given the aggressive approach of India towards macro-economic development, a balance needs to be struck between developmental policy and ecological sustainability. Climate adaptation in the future will require strict implementation, transparent governance, and increased public participation. Conservation of environment needs to be incorporated into the policymaking process as well as protect the legal rights of current and future generations.
FAQ
Q1. What is environmental governance?
Environmental governance refers to the legal, institutional, and administrative framework through which governments regulate environmental protection and sustainable use of natural resources.
Q2. Which constitutional provisions protect the environment in India?
Articles 21, 48A, and 51A(g) of the Constitution collectively provide the constitutional foundation for environmental protection.
Q3. What is the National Action Plan on Climate Change (NAPCC)?
The NAPCC is India’s national climate policy framework launched in 2008, consisting of eight missions addressing renewable energy, water conservation, sustainable agriculture, forestry, and climate adaptation.
Q4. What is the significance of the Paris Agreement for India?
The Paris Agreement requires India to implement its Nationally Determined Contributions (NDCs), promote renewable energy, reduce emissions intensity, and work toward achieving Net Zero emissions by 2070.
Q5. What are the major political challenges in addressing climate change?
Key challenges include balancing development with environmental protection, ensuring effective implementation of environmental laws, strengthening federal coordination, addressing climate justice, reducing pollution, and improving institutional accountability.
