Climate litigation is in its infancy in India. Climate-related claims have yet to be litigated in the courts. There are a few cases in which climate change has been referred to but only in passing. This situation may well be set to change. Climate change and its impacts are rapidly capturing the popular imagination in India. There is a growing recognition of the importance and urgency of the climate challenge, and a slew of climate policies and initiative at the national and state levels have been launched in response. India has an engaged and proactive civil society, an activist judiciary, a progressive body of enviro- legal jurisprudence, and an unparalleled culture of public interest litigation. This suggests not just that there are potential litigants waiting in the wings but also that climate-related claims are likely to be favorably entertained by the judiciary. A suitable legitimate system should be organized so as to manage environmental change issue and the same may end up being a key task for the lawful organization in years to come. The part of the legal is especially vital in deciphering the current laws for planning another legitimate methodology in the setting of developing effect of nursery gas emanations, and the steadily expanding monetary exercises influencing each feature of human profitability, day by day life and continuous worldwide environmental change arrangement.
Potentiality and Possibility:-
Climate change litigation finds its roots in liability claims as civil society is becoming aware of the fact that human actions and the emission of certain greenhouse gases into the atmosphere can lead to grim consequences for the environment, property and human health. It creates the possibility of future litigation against governments or corporations engaged in commercial activities. Once commenced, it raises whole new legal challenges of which both plaintiffs and the defendants must be aware. Climate change litigation can be spawned from:
(a) A cause of action based on nuisance or negligence where climate change is the causal factor, which may raise liability issues;
(b) An administrative law claim against a public authority challenging any action, inaction, breach of statutory duty or constitutional law or otherwise a failure on the part of the authority to regulate greenhouse gas emission properly;
(c) Other legal causes of action arising out of growing public awareness of climate change matters which can include alleged breaches of advertising regulations and standards in the course of making claims in respect of climate change, or alleged failure by companies, their directors or officers to adequately report climate change and other environmental impacts affecting company performance which can lead to shareholders derivative actions or other regulatory actions that are consequential in nature.
In India, the first two possibilities are already being explored but in entirely different environmental contexts and not as part of climate change litigation. Broadly speaking, in India the citizen has a choice of the following remedies to obtain redress in case of violation of his/her environmental right:
(a) A common law action against the polluter including nuisance and negligence;
(b) A writ petition to compel the authority to enforce the existing environmental laws and to recover cleanup costs from the violator; or
(c) Redressal under various Environmental Statues like Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act of 1974, Air (Prevention and Control of Pollution) Act of 1981 etc.; or
(d) Compensation under Public Liability Insurance Act, 1991 or the National Environment Tribunal Act, 1995 in the event of damage from a hazardous industry accident.
Actions of nuisance and negligence are very common in India when it comes to check environmental pollution in the present scenario. But unfortunately, none of them have been used so far to include climate litigation purely. Nuisance can be of two types, private or public. A private nuisance takes place when one uses one’s property in a manner that harms the property interests of others. Theoretically, if a company uses its property in a way that harms others’ property interests by contributing to global warming, it can be held liable under private nuisance. Climate change, however, is a broad problem that has less to do with defendants’ use of their property and that involves much less direct “annoyance” with “neighbours.” Therefore, private nuisance does not seem like a good option for a climate change lawsuit. Public nuisance is a more appropriate remedy for climate change cases.
Climate change litigation in Indian courts:-
Notwithstanding the burgeoning concern over climate impacts and increasing climate regulation in India, there is as yet no dedicated climate legislation either in place or in the pipeline, and climate litigation is still in its infancy. The term ‘climate litigation’ can be construed in a narrow or broad fashion. While there may be advocacy benefits to a broad framing of climate litigation, for purposes of conceptual clarity this article favours a narrow approach to defining climate litigation. Markell and Ruhl, for instance, define climate litigation as any litigation ‘in which the party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts.’ This definition brings productive clarity in that it helps identify cases in which climate change is at issue rather than merely referenced in the obiter. It is also helpful because the application of such a definition identifies cases that the parties to the litigation and/or the Court, rather than scholars or advocates, perceive and characterize as ‘climate litigation.’ Such a definition is not only more faithful to the motives for the litigation but also more likely to identify cases that have the desired knock-on policy, regulatory or advocacy impact. Defined in this narrow fashion, however, there is, as yet, no climate litigation in India. Climate change is yet to form the core subject matter of a legal dispute. Environmental jurisprudence in India is an uneasy mixture of “willingness to protect environment and lack of environmental awareness”, “overabundant legislative efforts and slipshod enforcement process”, “constant gross violation of basic human rights and intense protest by the victims and stake-holders.” These jural opposites, connected to diametrically differing philosophies of democracy and socialism, provide an obscure picture of environmental law in India.
The judiciary had remained as a bystander to environmental despoliation for more than two decades since the inception of modern environmentalism on Indian soil. It had started assuming a pro-active role only in 1980s. Since then development of Indian environmental jurisprudence has been heavily influenced by some of the most innovative judgments passed by the Indian courts. Locus Standi is an essential for initiating legal proceedings. According to the traditional rule, only a person whose own right was in jeopardy was entitled to seek remedy. Furthermore the matter that comes before a court must be a justiciable matter. This created hardship because as per this rule, a person claiming a public right or interest had to show that he or she had suffered some special injury over and above what members of the public had in general suffered. Therefore, injuries which are diffuse in nature e.g. air pollution affecting a large community was difficult to redress. This traditional locus standi doctrine was also detrimental for the poor community of India as it disallowed any concerned citizen to sue on behalf of the underprivileged class in the court of law. Till date, the poor and underprivileged are unwilling to assert their environmental rights because of poverty, ignorance or fear of social or economic reprisals from the dominant class of community.
The judiciary has interpreted Article 21 liberally to include an unarticulated right, i.e. the right to wholesome environment and more precisely right to enjoy pollution-free water and air and more. The court has also integrated a right to a wholesome environment with nascent but emerging principles of international environmental law e.g. polluter pays principle, the precautionary principle, the principle of inter-generational equity, the principle of sustainable development and the notion of the state as a trustee of all natural resources.
In India, public nuisance so far has covered issues ranging from sewage cleaning problems to brick grinding operations, from hazardous waste management to untreated effluent discharges from factories. But climate change is still unexplored. It has to be further understood that in liability claims proceedings based on nuisance or negligence arising out of global warming, the plaintiff always faces problems establishing his standing because it is extremely difficult to set up a causal connection between the injury suffered by the plaintiff and defendant’s emission of greenhouse gases. In United States, to establish standing in a Federal Court, a plaintiff must show that:-
(a) A particular injury has been suffered;
(b) A causal connection exists between the injury and conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant; and
(c) It must be likely, as opposed to merely speculative, that a favourable court decision will relieve the injury complained of.
Social and Ethical Dimension:-
Climate litigation encompasses ethical, scientific, economic, social, and other complexities of the age. Lawyers bear the responsibility of making their clients aware of how climate change may have an effect on their rights. At the same time, as citizens, we have responsibilities of our own.55 We need to be more conscious about intergenerational equity and our present and future responsibility, social, ethical and legal that may determine the potential winners or losers in climate change litigation.
In India, on the other hand, reaction against environmental degradation is mainly influenced by unequal exchange, poverty and population growth. Climate change as a recent phenomenon is yet to form a part of mainstream litigation here. It is undeniable that judicial activism of India in environmental matters actually has shaped the environmental law tremendously and owes its debt in many ways to the active social movements. This may be the reason why, in spite of possibilities, the nuisance or negligence or others yet to encompass climate change in them.
Climate consciousness in India has increased in leaps and bounds in the last five years. The pressure thus generated has resulted in a raft of policies and practices in relation to climate change. There is as yet no comprehensive legislation to address climate change mitigation or adaptation. A private member’s bill, ‘Climate Change Bill, 2012,’ was introduced to fill this gap, but it is unlikely to be passed. There is also as yet no litigation in which climate concerns have been at issue. The Supreme Court, High Courts and various tribunals have acknowledged and even endorsed the relevance of climate concerns in the context of environment-development trade-offs and decision-making, however, a climate- centric rights-based or other claim is yet to brought to the portals of the Indian Courts. Given the rapidly increasing interest in and consciousness on climate impacts, the expansive interpretation of standing in Indian courts and tribunals on matters of public interest, and the extensive enviro-legal and rights jurisprudence developed over the years, a rights-based climate claim is both quite likely to be brought before Indian courts, and to be favourably entertained. In particular in so far as such a claim relates to carefully circumscribed and argued adaptation-related fundamental rights violations. While such cases will likely have tremendous narrative value, whether they will catalyze progressive domestic legislation, address the numerous environmental governance concerns that lie at the heart of ineffective implementation, or lead to a more proactive international stance, however, is unclear.
- David Freestones, The International Climate Change legal and Institutional Framework: An Overview, in Legal Aspects Of Carbon Trading: Kyoto, Copenhagen And Beyond (David Freestones et al. eds., 2009)
- Shyam Divan, Armin Rosencranz, Environmental law and Policy In India: Cases, Materials And Statutes, (2002, 2nd ed.).
- Pratap Bhanu Mehta, ‘Just Impatient – Can a jurisprudence of exasperation of sustain the Court’s authority?’ The Telegraph, 17 October 2005.
- Billett, ‘Dividing climate change: global warming in the Indian mass media,’ (2010) 99(1-2) Climatic Change 1–16.
- Anu Jogesh, ‘A change in climate? Trends in climate change reportage in the Indian print media,’ in Navroz K. Dubash (ed), Handbook of Climate Change and India: Development, politics and governance 266 (OUP, India, 2011).
- Kanchi Kohli and Manju Menon, ‘The Nature of Green Justice’, (14 April 2012) xvii (15) Economic and Political Weekly 19- 22.
- Michael R. Anderson, ‘Individual Rights to Environmental Protection in India,’ in A. Boyle and M. R. Anderson (eds.), Human Rights Approaches to Environmental Protection 199 (OUP, Oxford, 1996).
- ‘Private Members Bill presented’ The Economic Times, 12 April 2012. The Bill is available at http://184.108.40.206/BillsTexts/LSBillTexts/asintroduced/1748LS.pdf.
Author: Abhimanyu Shrivastava
Author is pursuing B.A., LL.B. (Hons.) with specialization in Energy Laws from University of Petroleum and Energy Studies, Dehradun.
You may reach author at: firstname.lastname@example.org