CLIMATE JUSTICE IN INDIA AND THE RIGHT AGAINST ADVERSE EFFECTS OF CLIMATE CHANGE

Author: T. Roshini from Chennai Dr.Ambedkar Government Law College, Pudupakkam.

Prologue

“The Lord God took the man and put him in the Garden of Eden to nurture it and keep it.”

-The Bible (Genesis 2:15)

As humans our relationship with nature transcends the mere appreciation of it and has long evolved with an ancient understanding of interdependence. This sense of divinity of the environment and nature comes from a social contract our ancestors signed with nature- that acknowledged a fundamental truth: the survival of humanity was ultimately contingent on the well-being of nature. In India, long before the ink touched the pages of the Constitution, the wisdom of the Upanishads and other sacred scriptures whispered the interconnectedness of all beings. This paper begins with the recent landmark case of M.K. Ranjitsinh and Others v. Union of India, a pivotal moment where the right against climate change gained recognition in India. Following this, the paper tries to explore how, over time, the Indian judiciary has progressively interpreted the law to address the adverse effects of climate change and also adopt the evolving international consciousness of environmental law. In this case of M.K. Ranjitsinh and Others v. Union of India, started with a petition filed for protection of the Great Indian Bustard (GIB) and other avians like the Lesser Florican. These birds are listed as scheduled species under Part III of Schedule I of the Wild Life (Protection) Act, 1972. The Great Indian Bustard has been endangered due to climate change impacts and their collision with overhead transmission wires near their habitat. The Supreme Court allowed the petition and put a halt to installation of overhead transmission wires by solar energy companies in Rajasthan and Gujarat in an area spanning 99,000 sq.km and in a judgement on April 19, 2021 directed that all overhead transmission lines be laid underground.

The respondent ministries filed for a modification to the order as they urged that conversion to underground lines was not feasible, expensive and the upcoming renewable energy sector would be adversely affected by the order. Respondents demonstrated how the area under dispute had been recognized by the government for its solar and wind energy potential. India had committed itself to international treaties and conventions to make a shift on energy dependency from fossil fuels to renewable resources with determination to combat the global climate crisis. Restricting renewable energy development could jeopardize these commitments, hindering global efforts to combat climate change. The major issue before court was on deciding to either protect an endangered species or allowing infrastructure to combat climate change.

In 2021, the Supreme Court reversed its prior decision and allowed the transmission lines to be put up after examining India’s obligations which flowed under the Paris Agreement and other conventions to tackle climate change. The court noted that the shift to renewable sources was not just an ambition of the government’s public policy but was the necessity of the hour with India at the precipice of the climate crisis. Failing to do so, it will affect the global struggle against climate change, thereby threatening fundamental rights of Indians, such as the right to life, equality, access to energy, et al because of the consequences of climate change. The court connected the dots between failing to mitigate climate change and the violation of fundamental rights like access to clean air and water, health, and even life itself. The court argued that the government has a duty to protect its citizens from this looming threat, and gave to the people the Right Against Adverse Effects of Climate Change. With this newly recognized right, empowering citizens to hold their governments accountable for taking concrete action.

Journey to Climate Justice and the Right Against Adverse Effects of Climate Change

The M.K. The Ranjitsinh case has marked a milestone in India’s legal journey towards climate justice. However, this victory stands on the shoulders of a rich history of environmental activism and evolving frameworks. India has seen mass movements on environment protection with having witnessed the Silent Valley Movement, Chipko Movement and the Narmada Bachao Andolan just to name a few, which have shown how people are actually affected and concerned about the climate crisis.

But before talking about India, it is important to discuss how environmental law, climate justice and human rights have evolved on a global arena– this is because there is a difference between the development of these laws in the Global North and the Global South; also there has been a progressive shift with recognition of ecocentrism over an anthropocentric approach by the Indian courts while interpreting environmental law and adjudicating matters.

Climate justice in the Global North and the Global South

Global South has seen a rights-based remedy for the injured parties and litigants to hold their governments accountable for climate change harms. Hence, climate litigation hinges on violation of human rights in the Global South; this is contrary to the Global North where remedies are statutory based and courts have a limited role in redressing in accordance with the environmental legislation. This dichotomy in the evolution of laws between the North and South arises because the Global North has been historically contributing more to polluting the Earth with a higher share of Greenhouse Gases (GHG) and has over time evolved environmental legislations to regulate the same. The Global South, with the newly independent colonies did not have such a legislation and this creates a legal vacuum that necessitates relying on existing human rights laws to address climate change.

In early 1990s, the Global South saw many lawsuits arising out of violation of Socio-Economic Rights (SERs) and in a space with lack of legislations to address the same, the final redressal mechanism which developed was to approach the courts on grounds of human rights violations. The courts in these countries have championed the citizens by protecting them by finding remedies within fundamental human rights; These examples of constitutionalism in Global South jurisprudence is seen in India where the Supreme Court took decision to solve the problem of hunger and malnourishment, in South Africa, where the courts found a right to health and housing and Latin American jurisdictions where court upheld the right to housing, health, work and education. Pakistan found a right against climate change with Leghari Vs Pakistan.

There have been some theories on why the Global South jurisprudence has evolved this way– Firstly, the government’s inability to enact laws and a lack of institutions to enforce have resulted in a policy failure by the state machinery. But the courts have been able to remedy this by providing litigants injunctive relief to prevent further environmental damage and supervisory jurisdiction mechanisms to ensure governments comply with court orders. Secondly, the Global South has seen a paradoxical coexistence of centralized, authoritarian governments often captured by private interests, and a fiercely independent judiciary at the same time. Thirdly, there has been an uneven distribution of resources within state machinery, as emerging economies often struggle with limited resources for mitigation strategies and robust environmental monitoring systems. However, courts, after adjudicating environmental cases, often find governments complying with their orders, albeit to a limited extent. This selective enforcement reflects the ability of the judiciary to leverage its authority even within resource-constrained environments.

Shift from anthropocentrism to ecocentrism in climate justice

The Indian legal system has witnessed a remarkable shift in its approach to environmental protection, moving from an anthropocentric (human-centred) perspective to one that embraces ecocentrism (intrinsic value of the environment). This importantly showcases a sense of respect for nature and ecosystem developed in the eyes of the law; giving rise to concerns to protect the environment and ecosystem from the threats posed by climate change induced harms. Historically, Indian environmental jurisprudence primarily focused on addressing environmental harm caused to humans. Court decisions, particularly concerning industrial accidents, prioritised compensating individuals and communities for damages to their property, health, and livelihood. While crucial for ensuring justice, this approach treated the environment as a resource to be exploited for human benefit, overlooking its inherent value. A paradigm shift began in the latter half of the 20th century, driven by growing environmental awareness and the recognition of the interconnectedness of the ecological web. This shift manifested in a series of landmark judgments that redefined the scope of environmental protection. The Asiatic Wild Buffalo case came upon preserving endangered fauna and the Red Sanders judgement of that of flora highlighted the importance of protecting endangered species. Article 51-A(g), casts a fundamental duty upon every citizen to protect and improve the environment. This provision underscores the collective responsibility towards environmental well-being.

The Niyamgiri Hills judgement on bauxite mining in Orissa would have brought some tension over the distinguishment of rights of tribal and non-tribal communities but the important part here was that the court recognized a certain value attached to a tribal land and the vitality of that ecosystem in supporting the tribal’s way of life. All this expanded the scope of Article 21 with the court reinterpreting the existing public trust doctrine. This doctrine holds that the government acts as a custodian for certain resources, like rivers and forests, for the benefit of the public. And since humans have a mutual dependency with these resources to survive their way of life, the state has an obligation to protect these resources, and upheld the principle of parens patriae. With the Inuit petition in the US and the court holding the state responsible for failing to mitigate climate change harms which affected the way of living of a tribe, the decision in Urgenda V Netherlands on bargaining for better environmental regulations and the right against effects climate change in Pakistan with Leghari’s decision, it is now generally agreed that human rights impose an obligation on states to not only respect these rights but also to protect and fulfil them. For human rights to be infringed, it is thus not necessary for the state itself to interfere with people’s rights through its own actions: in principle an infringement can also occur if the state fails in its duty to protect people against infringements from climate change impacts .

Right against adverse effects of climate change

The court found this newly recognized right in two fundamental pillars of the Indian Constitution Article 21 (right to life and personal liberty) and Article 14 (right to equality). This elevates environmental protection from a policy concern to a fundamental right, imbuing it with greater weight and legal significance.

Limitations on the ambit of the right

One key limitation arises from the concept of progressive realization. India, having ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), acknowledges the right to health, which can be significantly impacted by climate change. However, Article 2(1) of the ICESCR allows for progressive realization, stating that states must take steps “to the maximum of their available resources” towards achieving this right. This creates a potential loophole for governments to argue that climate change mitigation and adaptation strategies exceed their readily available resources, potentially delaying or even avoiding their obligations.

The current political climate in some countries, including India, has witnessed a worrying trend of relaxed environmental regulations. Instead of strengthening existing environmental laws to combat climate change, some governments have used it as an excuse to weaken existing protections. This can be seen in the dilution of environmental legislations like the Forest Conservation Act. This trend directly undermines the effectiveness of the right against adverse effects of climate change by removing crucial legal safeguards for the environment.

Fragmented legal frameworks, with climate change and human rights laws often existing in separate domains, make it difficult to establish a clear and direct link between specific climate events and human rights violations also linking climate change to right to health claims is controversial because traditional right to health jurisprudence focuses on impacts faced by individuals rather than populations, and is tailored to a narrow set (biomedical model) of hazards. As a result, right to health violations cannot be promptly assessed. For instance, attributing the worsening air pollution in Delhi solely to stubble burning in Punjab can be challenging due to a multitude of contributing factors.

Epilogue

The recognition of the right against adverse effects of climate change in India marks a watershed moment. It elevates environmental protection from a policy concern to a fundamental right. But ultimately, the success of the right against adverse effects of climate change rests not solely on legal pronouncements but on collective action. Public awareness campaigns, citizen engagement, and holding governments accountable for their commitments are all essential elements in this fight. By recognizing the inherent value of the environment and its interconnectedness with human well-being, we can chart a course towards a future where this right becomes a lived reality, not just a legal principle. The journey towards climate justice will be long and arduous, but the recognition of this new right signifies a vital step in the right direction.

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