Court on climate right and how India can enforce it

Because India is still developing, what the country needs is a law that enables progress toward low-carbon and climate resilient development

Updated - July 01, 2024 09:29 am IST

Published - July 01, 2024 01:24 am IST

‘As a new government considers its imperatives and agenda, Ranjitsinh is an opportunity to think through much more systematic governance around climate change’

‘As a new government considers its imperatives and agenda, Ranjitsinh is an opportunity to think through much more systematic governance around climate change’ | Photo Credit: SUSHIL KUMAR VERMA/The Hindu

Through its recent judgment in M.K. Ranjitsinh and Ors. vs Union of India & Ors., the Supreme Court of India has dropped a large rock into the relatively placid waters of India’s nascent climate change jurisprudence. It has read into the Constitution of India the right to ‘be free from the adverse effects of climate change’, identifying both the right to life and the right to equality as its sources. As a new government considers its imperatives and agenda, Ranjitsinh provides an intriguing opportunity to think through and possibly enact much more systematic governance around climate change.

A new right around climate

Scholars and legal practitioners are still unpacking the judgment. The issue before the Court was whether and how electricity transmission lines can be built through the habitat of the critically endangered Great Indian Bustard. The government claimed that a previous court order protecting the bird’s habitat had affected the country’s renewable energy potential. Modifying this order, the Court prioritised transmission infrastructure to enable accelerated development of renewable energy to address climate change. But the more seismic aspect of the judgment was the newly minted ‘climate right’ rooted in the constitutionally guaranteed right to life (Article 21) and right to equality (Article 14). Reading this right into the Constitution potentially opens the door to climate litigation, empowering citizens to demand from the government that this right be protected.

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But the judgment also leaves unresolved questions. Does the Court overstate the large-scale clean energy agenda as the main pathway to avoiding climate harms and, correspondingly, understate climate adaptation and local environmental resilience? Just how will this right against the adverse effects of climate change be protected? And what might it mean for the agenda of the newly formed government? One way forward is the slow accretion of judicial decisions around this right. But another is new legislation to actively realise a right against the adverse effects of climate change.

The former approach, the proliferation of court-based action through enhanced litigation around climate claims, will likely lead, slowly and over time, to an incomplete patchwork of (judiciary-led) protections. As with many other well-meaning judicial orders directing the protection of fundamental rights, realising climate rights could become contingent on the passage of several subsequent policy actions. Moreover, a patchwork approach is less likely to chart an overarching framework to guide future policy.

Is the latter approach, climate legislation, then a preferred approach to protect climate rights? The judgment itself states that there is no ‘umbrella legislation’ in India that relates to climate change. And in so doing, seems to implicitly recognise the merits of an overarching, framework legislation. Drawing from the experience of other countries, framework legislation can bring several advantages. It can set the vision for engaging with climate change across sectors and regions, create necessary institutions and endow them with powers, and put in place processes for structured and deliberative governance in anticipation of and reaction to climate change.

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Indian context is important

These are important advantages, and good reasons for India to consider climate legislation. But at the same time, it is essential that Indian climate legislation not blindly copy other countries, and is tailored to the Indian context.

Undoubtedly, India needs to transition to a low-carbon energy future, an imperative that is highlighted in the Ranjitsinh judgment. But this, by itself, is not nearly enough to enforce a right against the adverse effects of climate change. Climate legislation should also create a supportive regulatory environment for more sustainable cities, buildings, and transport networks. It should enable adaptation measures such as heat action plans sensitive to local context. It should provide mechanisms for shifting to more climate-resilient crops. It should protect key ecosystems such as mangroves that act as a buffer against extreme weather events. And, it should actively consider questions of social equity in how it achieves these tasks. In brief, it should provide a way of mainstreaming and internalising climate change considerations into how India develops. Nothing less is required to make progress toward avoiding the adverse effects of climate change.

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But having a single, omnibus law that covers all these areas is not feasible, particularly in the face of an existing legal framework that legislates on most of these issues. It is impossible to anticipate upfront all the ways in which society can and should prepare for climate change. So, what is the way forward?

Here, there is scope to learn from international experience both what not to do and what directions to follow. Climate laws in many countries, often following the example of the United Kingdom, focus narrowly on regulating carbon emissions, for example, by setting regular five yearly national carbon budgets and then putting in place mechanisms to meet them. This sort of approach, which has unfortunately become somewhat of a template for countries to follow, is ill-suited to India.

Instead, because India is still developing, is highly vulnerable, and yet to build much of its infrastructure, what the country needs is a law that enables progress toward both low-carbon and climate resilient development. The distinction between a regulatory law, such as the U.K.’s, and an enabling one, like, for example in Kenya, is important to understand. A regulatory law focuses, in a narrow way, on emissions and how they can be limited. An enabling law can be written to stimulate development-focused decisions in a range of sectors across the economy — urban, agriculture, water, energy and so on — by systematically asking whether each decision moves the country closer to or further from low-carbon growth and climate resilience. Importantly, this approach emphasises adaptation as much as mitigation.

An enabling law is likely to be a more procedurally-oriented law, one that systematically creates the institutions, processes and standards for mainstreaming climate change across diverse ministries and different parts of society. For example, such a law would build in procedures to support knowledge-sharing, ensuring transparency and avenues for public participation and expert consultation, prompting meaningful setting (and revision) of targets and timelines and reporting against these.

The factor of federalism

There is another dimension essential for a climate law tailored to India: ensuring that the law works effectively within Indian federalism. Many areas relevant to climate action, from urban policy to agriculture and water fall under the authority of sub-national governments — States or local levels, and electricity also is a concurrent subject. An Indian climate law must simultaneously set a framework for coherent national action while decentralising sufficiently to empower States and local governments, and enable them with information and finance to take effective action.

Finally, the enabling role should ideally also extend beyond government. Business, civil society and communities, particularly those on the frontlines of climate impacts, have essential knowledge to bring to energy transition and resilience. Finding ways of enabling participation in decision making would enable all these sections of society to bring their knowledge to the table in addressing climate change. An effective Indian climate law based on enabling procedures would also provide opportunities for voice to diverse segments of society.

These broad ideas provide a set of principles for a climate law tailored to India, one that provides a basis for taking forward and fulfilling the promise of the Ranjitsinh judgment.

Navroz K. Dubash is Senior Fellow at the Sustainable Futures Collaborative. Shibani Ghosh is Visiting Fellow at the Sustainable Futures Collaborative. Aditya Valiathan Pillai is Fellow at the Sustainable Futures Collaborative

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