Court on climate right and how India can enforce it

By recognizing the right to be free from the adverse effects of climate change within the Constitution, the Court has opened new avenues for climate governance and litigation. This judgment provides an intriguing opportunity for the new government to enact more systematic and robust climate governance.

The Judgment and Its Context

Background of the Case:

The case primarily dealt with the construction of electricity transmission lines through the habitat of the critically endangered Great Indian Bustard. The government argued that a prior order protecting this habitat hindered the development of renewable energy infrastructure, essential for combating climate change.

Supreme Court’s Decision: The Court modified the previous order to facilitate the development of renewable energy infrastructure, prioritizing national clean energy goals over local conservation efforts in this instance.

Constitutional Basis: The right against the adverse effects of climate change is now seen as an extension of the right to life (Article 21) and the right to equality (Article 14).

• Right to Life (Article 21): This right has been broadly interpreted to include the right to a healthy environment, thus forming a legal basis for protection against climate change.
• Right to Equality (Article 14): This asserts that environmental burdens and benefits should not be distributed in a manner that discriminates against any particular group.

This interpretation opens the door for future climate litigation and demands from citizens for governmental accountability in climate protection.

Potential Challenges:

• Addressing Unresolved Questions
  • Despite its ground breaking nature, the judgment leaves several important questions unanswered:
• Emphasis on Clean Energy:
  • Does the judgment overstate the importance of large-scale clean energy projects as the primary solution to climate change, potentially underestimating the importance of local environmental resilience and climate adaptation?
• Protection and Enforcement:
  • How will the right against adverse climate effects be protected and enforced in practical terms?
• Government Agenda:
  • What does this judgment mean for the policy agenda of the newly formed government?

Two Approaches:

• Legislative vs. Judicial Approaches
  • Judicial Approach: Enhanced litigation around climate claims may lead to a patchwork of protections that are incomplete and contingent on subsequent policy actions.
  • Legislative Approach: A comprehensive climate legislation could provide a more systematic and overarching framework for addressing climate change.

Need for Climate Legislation

• The Supreme Court acknowledged the absence of an ‘umbrella legislation’ related to climate change in India.
• Framework legislation can:
  • Set a vision for climate engagement across sectors and regions.
  • Create institutions with necessary powers.
  • Establish processes for structured and deliberative climate governance.

Distinct Needs of India: India should not merely emulate climate legislation from other countries but tailor it to its unique developmental, ecological, and socio-economic context.

Key Components of Proposed Legislation:

• Support for Sustainable Development:
  • Regulations for sustainable cities, buildings, and transport systems.
  • Promotion of climate-resilient agricultural practices and crop diversification.
  • Protection of critical ecosystems like mangroves.

• Social Equity Considerations:
  • Ensure that climate legislation addresses social equity and justice, integrating these considerations in all climate-related policies.
• Adaptation and Mitigation:
  • Balance between mitigation efforts (like emission reductions) and adaptation strategies (like heat action plans and resilient infrastructure).

What should be done:

• Learning from International Experience
  • Avoid narrowly focused regulatory laws like the UK’s carbon budgets approach. 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
  • Adopt enabling laws that stimulate development-focused decisions across various sectors (urban, agriculture, water, energy) are more appropriate. These laws should systematically integrate climate resilience and low-carbon growth into decision-making processes.
  • Emphasize both adaptation and mitigation.
  • Create institutions and processes for mainstreaming climate change considerations.
• Federalism and Climate Law : Given India’s federal structure, an effective climate law must navigate the complexities of Indian federalism
  • National Framework with Local Empowerment: The law should set a coherent national framework while decentralizing authority to empower States and local governments.
  • Sub-National Jurisdictions: Climate action areas like urban policy, agriculture, and water management often fall under sub-national jurisdictions. The law should facilitate collaboration and provide necessary support.
• Engaging Non-Governmental Actors: An effective climate law should also involve non-governmental actors:
  • Inclusive Participation: Engage businesses, civil society, and communities in the decision-making process.
  • Knowledge Sharing: Leverage the knowledge and expertise of diverse societal segments to enhance climate resilience and energy transition efforts.

Conclusion:

The Supreme Court’s recognition of a constitutional climate right in the Ranjitsinh judgment presents an opportunity for India to enact comprehensive climate legislation. Such legislation should be tailored to India’s unique context, emphasizing both mitigation and adaptation, and ensuring inclusive, participatory governance to effectively address the adverse effects of climate change.