Climate change is seento be a phenomenon that demands collective responsibility1and climate litigation should be inclined on the lines of society being asubset of nature rather than being solely technical in its dealings.
It isgenerally argued that there are two styles in climate litigation- Mitigationand/or Adaptation.2 The reason why one cannot particularly choosebetween the two styles is, simply because there are various issues under thebroad umbrella of climate change and subsequently require to be dealt withdifferently. Mitigation, mainly, aims at reducing reverberations of any furtherhuman interference with the flimsy status quo of the environment and “stabilizegreenhouse gas levels in a timeframe sufficient to allow ecosystems to adaptnaturally to climate change, ensure that food production is not threatened andto enable economic development to proceed in a sustainable manner.”3Adaptation is accepting the status quo, due to irreversible damage, and gearingup to avoid potential vulnerability in the future in cases of sea-level encroachment or extremeweather conditions.4The Constitutionof India was formed in 1950, set in the backdrop of time wherein climate changewas non-existent and couldn’t be visible even at the horizon. However, thereare constitutional provisions that directly provide for potential vulnerabilityto climate change and ensure the citizens a clean environment. The provisionshave significant characteristics of both Mitigation and Adaptation.
Thejudiciary plays a major role in shaping the course of the consequences onefaces as a citizen of the country, and this has been a great deal sinceenvironmental protection began enjoying national and international importance5lately after Paris agreement.6 In Shirish Barve v. Union of India7,it was held that since “TheState shall Endeavour to protect and improve the environment and to safeguardthe forests and wildlife of the country”8 thus, the construction of a saidbypass-road was unnecessary and if allowed, would be a gross encroachment ofhigh fertile and productive land. Further, it was also held that the majorstakeholders, the farmers, would lose their livelihood and change in land usewould thereby affect the environment.9 Itmust be noted that the mostprocreative Article 21 of the Constitution of India lays down “Protection oflife and personal”10 whichis “the procedural magna carta protective of life andliberty.11 Given that the majorityof Indian population resides in rural India, climatechange has about 4-9 per cent impact on agriculture each year. As agriculturecontributes 15 per cent to India’s GDP, climate change presumably causes about1.5 per cent loss in GDP.
12 Clearly, this is in contravention to the right to life whichis not limited to mere physical breathing but encompasses activities thatfacilitate living i.e. Right to livelihood. Law can aid law and order andessentially laws and rules have been laid down that promote public health andendeavour to raise the standard of living of the citizens13however, status quo of law and order can inspire the evolution of laws as seenin Ridhima Pandey v. Union of India &Ors14wherein, the petition has sought toprovoke the judiciary to incite new developments in the field of environmentalprotection and has nudged the National Green Tribunal to rightfully exerciseits power where “a substantial question relating tothe environment” is involved. The petitioner can be seen to exercisefundamental duties of environmental protection as under the law that states, “It shall be the duty of every citizen of India toprotect and improve the natural environment including forests, lakes, riversand wildlife and to have compassion for living creatures.
“15 The enforcementauthorities have a few legislations that have attempted to cause some sort ofaction on climate change in India. The National Action Plan on Climate Change(NAPCC) was implemented with a view to act as an ‘umbrella’ to encompass theexisting and expendable legislations. It boasted of 8 core missions that werecleverly distributed to address or rather adapt to the various environmentalproblems. However, a difference in approach may be seen in the 8thmission. The ‘National mission on strategic knowledge on climate change’ wasambitious in nature when it constituted a Climate Research Fund and aimed atglobal collaborations on research to mitigate climate change associated issues.16 Post Copenhagen, Indiahas been expedited into limelight with various legislations such as inclusionof climate change issues into the agenda of India’s 12th Five YearPlan 2011, National Green Tribunal Act2010, Greenhouse Gas Emissions 2007, andvarious others.17 Climate Litigation, in specific has been addressed under theNational Green Tribunal Act,2010. Climate Change is a product of obnoxiousactivities carried by humans, often such activities are undertaken for economicdevelopment and therefore take the defence of natural justice in the context ofa modern society.
However, such precedence of growth of a nation to sustainabledevelopment should be avoided. The same natural justice vis a vis sustainabledevelopment, is the very essence of the NGT differently worded as’environmental justice’18 The National GreenTribunal suffers from the shortcomings of being a ‘tribunal’. It has beenvested with powers only under the exhaustive list of seven laws related toenvironment- The Water (Prevention and Control of Pollution) Act, 1974;The Water(Prevention and Control of Pollution) Cess Act, 1977;The Forest (Conservation)Act, 1980;The Air (Prevention and Control of Pollution) Act, 1981;TheEnvironment (Protection) Act, 1986;The Public Liability Insurance Act, 1991;and The Biological Diversity Act, 2002. While the tribunal covers most of the environmentrelated laws, it has failed to understand that even though biodiversity,forest, water, air are different elements of the nature, they cannot or shouldnot be dealt with in separate courts as the cause of action often overlaps.This lacunae particularly arises due to the nature of words used in thepreamble of the said Act which spells- “effectiveand expeditious disposal of cases relating to environmental protection and conservation of forests and othernatural resources including enforcement of any legal right relatingto environment and giving relief and compensation for damages to persons andproperty and for matters connected therewith or incidental thereto”. Through abare reading of the aforementioned text, it clearly indicates the civil natureof the suits that the Tribunal intends to entertain.
Thus, conveniently pushescases under Wildlife Protection Act,2002 outside its purview as seenin Vasant Krishnaji Vhatkar Vs. Union of India & Ors.19 This may seem as amatter of oversight as Sec 2 (1)(c) of the said Act defines ‘environment’ toinclude ” ..other living creatures, plants, micro-organisms..
” Another area forspeculation may be that the entire National Green Tribunal Act,2010 isdeclaratory in nature and merely entitles citizens with “right to healthyenvironment as a part of right to life under Art.21 of the Constitution”20, therefore such an Actthat is based on an objective to present reduced statistics of cases in highercourts and not for taking on climate change as a collective responsibility inits actuality and entirety is highly questionable. This is substantiated bySec.
2 (1)(g) of the Act 2010 that defines ‘injury’ to be limited to”disablement or sickness resulting out of an accident” which is construed tohuman loss, blatantly ignoring the wider good that essentially, a tribunal, alitigating body for climate change should exist for. 1Stanford Encyclopaedia of Philosophy, Aug 8 2005 ( Last accessed on 9/01/2018)2Responding to Climate Change, NASA Global Climate Change, https://climate.nasa.gov/solutions/adaptation-mitigation/, (Last accessed on 9/01/2018)3 2014 report onMitigation of Climate Change from the United Nations IntergovernmentalPanel on Climate Change, page 44Responding to Climate Change, NASA Global Climate Change, https://climate.nasa.gov/solutions/adaptation-mitigation/, (Last accessed on 9/01/2018)5Shibani Gosh, Climate Litigation in India: Gaining traction?, Centre for PolicyResearch, Jan 15,2016, https://cprclimateinitiative.wordpress.com6 ParisAgreement, United Nations Climate Change, http://unfccc.
int/paris_agreement/items/9485.php7 ShirishBarve v. Union of India,MANU/GT/0033/20148INDIA CONST. (1950) Art.48-A9 ShirishBarve v.
Union of India, London School of Economics and Political Science,Grantham Institute of Research on Climate Change and the Environment, http://www.lse.ac.
uk/GranthamInstitute/litigation/shirish-barve-v-union-of-india/10 INDIACONT. (1950) Art.2111 P. S.
R. Sadhanantham vs Arunachalam & Anr, MANU /SC/0083/198012 SubhojitGoswami, Climate change impact on agriculture leads to 1.5 per cent loss inIndia’s GDP, www.downtoearth.org.in , 17May,2017 13INDIA CONST.
(1950) Art.4714 www.greentribunal.gove.in 228/2017Ongoing15INDIA CONST. (1950) Art.
51-A (g)16National Action Plan on Climate Change 2008, Ministry of Environment andForest, http://www.moef.nic.
in/modules/about-the-ministry/CCD/NAP_E.pdf17Dr. Shravan Kumar Saini, Climate Change andEnvironmental Laws in India, International Conference on Latest Trends inFood, Biological & Ecological Sciences (ICLTFBE’14) July 15-16, 2014 Phuket(Thailand), Pg.3718National Green Tribunal, Ministry of Environment, Forest and Climate Change, http://www.moef.nic.
in/rules-regulations/national-green-tribunal-ngt19 Vasant KrishnajiVhatkar Vs. Union of India & Ors. MANU/GT/0011/201420National Green Tribunal Act,2010 , Publishes in The Gazette of India, June 2,2010 , www.greentribunal.gov.in