"I have long understood that climate change is not only an environmental issue it is a humanitarian, economic, health, and justice issue as well."-- Frances Beinecke

Climate change is a long-term change in the average weather patterns that have come to define Earth's local, regional and global climates. These changes have a broad range of observed effects that are synonymous with the term.

Changes observed in Earth's climate since the mid-20th century are driven by human activities, particularly fossil fuel burning, which increases heat-trapping greenhouse gas levels in Earth's atmosphere, raising Earth's average surface temperature. Natural processes, which have been overwhelmed by human activities, can also contribute to climate change, including internal variability (e.g., cyclical ocean patterns like El Nio, La Ni'a and the Pacific Decadal Oscillation) and external forcings (e.g., volcanic activity, changes in the Sun's energy output, variations in Earth's orbit).

The UNEP Global Climate Litigation Report: 2020 Status Review provides an overview of the current state of climate change litigation globally, as well as an assessment of global climate change litigation trends.

It finds that a rapid increase in climate litigation has occurred around the world. In 2017 there were 884 cases brought in 24 countries. As of 1 July 2020, the number of cases has nearly doubled with at least 1,550 climate change cases filed in 38 countries. This growing tidal wave of climate cases is driving much-needed change.

The Indian judiciary has played an active role in addressing issues of environmental protection and human rights. Public Interest Litigation (PILs), which allows those without locus standi to approach the courts over an issue of public interest, has become the dominant pathway through which environmental cases are filed, oftentimes on human rights grounds.

Climate change litigation in India is still in the nascent stages. The court, nevertheless, has been the space where regulatory failures to address environmental issues have been checked, and the judiciary has taken a far-reaching role in compelling the government to protect the environment.

Environmental Jurisprudence In India

Environmental jurisprudence of India is indeed an ambiguous combination of reluctance to protect the natural environment and lack of environmental consciousness, excessive regulatory efforts and shoddy implementation mechanism, perpetual massive infringement of basic human rights and extreme protest by claimants and stakeholders.

Locus Standi is necessary for the commencement of court proceedings. The development of Public Interest Litigation (PIL) in India liberalized the locus standi, allowing any institution or individual negotiating in uberrima fidei to petition the Supreme Court (Article 32) and High Courts (Article 226) for judicial remedy on the grounds of encroachment of environmental rights which broaden the spectrum of PIL to include environmental protection.

The court has already incorporated a right to a healthy environment with nascent yet evolving international environmental principles such as the precautionary principle, the principle of sustainable growth, polluter pays principle, the principle of intergenerational justice, and the notion of the state as a trustee of all-natural capital.

Further, it is well established that public nuisance emerges from unreasonable intervention with the public's general right. As a result, every citizen has right to be heard for public nuisance. In India, public nuisance has previously contained challenges such as sewer cleaning issues, brick grinding processes, hazardous waste disposal, and factory effluent discharges.

However, climate change is indeed a mystery. The description of public nuisance is found in Section 268 of the Indian Penal Code, 1860, "A individual is liable of a public nuisance if he or she commits any act or renders any unlawful omission that causes some common damage, or nuisance to the public or to the people in general who live or inhabit property in the neighborhood, or which may inevitably cause injury, obstacle, hazard, or annoyance to persons who may have reason to use any public right."

Furthermore, after reviewing some environmental laws, I believe there are some provisions that the plaintiff in climate change litigation might make effective use out of. For example, Section 2(a) of the Environment (Protection) Act of 1986, an umbrella law designed to provide a mechanism for Central Government regulation of the action of different state and central authorities established under existing regulations, namely the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981.

Environment has been defined as "water, air, including land, as well as the interrelationships that exist within as well as between water, air, and land and human beings, other living organisms, plants, microorganisms, and property" in Section 2 (Any solid, fluid, or vaporized material present in such concentration as may be, or appear to be, injurious to the environment,) according to Section 2(b) of the Act.

Environmental pollution is described as "the existence in the environment of any environmental pollutant" under Sec 2(c) 'Any solid, fluid, or vaporized material present in such concentration as may be, or appear to be, injurious to the environment,' according to Section 2(b) of the Act. 'Environmental pollution' is described as "the existence in the environment of any environmental pollutant" under Sec 2(c). The Air (Prevention and Control of Pollution) Act of 1981 is indeed the principal legislation that alleviates India's air pollution epidemic.

Furthermore, if the court examines the current pollution norms for different geographical locations set by the government under various environmental statutes, establishing a causal link between harm and industry emissions would have been much simple.[i]

Constitutional Protection

To Improvise and protect the environment is a Constitutional mandate. It is a pledge towards a world accustomed to welfare state principles. While under chapters of Directive Principles of State Policy and Fundamental Duties, the Constitution of India defines various provisions for environmental conservation. Judicial activism has triggered the absence of a clear constitutional provision acknowledging the fundamental right to a safe and healthy climate.

Article 14
Article 14 of the Indian Constitution states that everyone is entitled to equality before the law and equal protection under the law. This right can also be affected when the government makes laws that have an adverse effect on the environment, hence Article 14 in an indirect way protects the environment. Article 14 implicitly imposes an obligation on the state to exercise fairness in its environmental protection measures.

Under Article 21 of the Indian Constitution, National Green Tribunal was established in the year 2010. Article 21 guarantees the citizen of India the right to healthy environment. India is the third country following Australia and New Zealand to have such system. The tribunal is a special fast-track quasi-judicial body comprising of judges and environment expert who will ensure expeditious disposal of cases.

The Supreme Court in M. C. Mehta v. Union of India [ii] observed that:
"Environment Court" must be established for expeditious disposal of environmental cases and reiterated it time and again. As a sequel to it the National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 19974 were passed by the Indian Parliament. But both the Act proves non-starter.

They could not cut much ice and there was a growing demand that some legislation must be passed to deal with environmental cases more efficiently and efficaciously. Ultimately the Indian Parliament Passed The National Green Tribunal Act, 2010 to handle all the cases relating to environmental issues.

In M.C Mehta v Kamal Nath[iii], In Himachal Pradesh, Span Motel owned by members of Shri Kamal Nath, diverted the course of River Beas to beautify the Motel along with encroaching upon some Forest land. The apex court ordered the Motel to hand over the forest land to the Government of Himachal Pradesh and imposed a fine of 10,00,000 as exemplary damages. The Apex court utilized Polluter Pays Principle and recognized Public Trust Doctrine for the first time.

In the case of Residents of Asha Nagar V. State of Maharashtra, Small scale industries located in Nandanvan Industrial Estate at Asha Nagar, Mulund (West), Mumbai according to the Maharashtra State Pollution Control Board caused industrial pollution by damaging the ecology. NGT ordered MSPCB to undertake necessary steps to recover compensation and monitor compliance of air and water quality norms by industries.

Article 19(1)(G) and Article 21
All the citizens have a Fundamental right to carry out any profession, or to carry on any occupation, trade or business within the geographical limit of India. Apart from the restriction conferred under Article 301, by Article 47, 302, 303, 304 and Article 19(6). While considering Article 19(1)(g) the aforesaid articles are read together not conferring Article 19(1)(g) an absolute right.

The vital objective of imposing restrictions is that one cannot harm the ecology to carry out business or profession and such practice must be detrimental to the interests of the public.

Article 21 states that "no person shall be deprived of his life and personal liberty except according to procedure established by law". Article 21 manifests constitutional value is of supreme importance within a democratic society. Justice Iyer has demarcated Article 21 as 'the procedural magna carta protective of life and liberty.'

In the case of Tamil Nadu Pollution Control Board vs Sterlite Industries (I) Ltd. ,On 23 March, 2013 enormous leak of So2 from the factories sulphuric acid plant affected residents of Thoothukudi causing 20 women of the neighbouring industries to get hospitalised.

For years Vedanta CEO Pankaj Kumar appealed in NGT Delhi and Tamil Nadu. This agitated the public to get on the street to protect their environmental rights. However, on 28 March, 2018 the Madras High Court dismissed all the appeals and as per the Article 19(1)(g) passed the orders of TPCB and for the fifth time shut and sealed the plant due to the vital leak of S02.

Madras authorities laid emphasis on Article 19(6) and ordered to shut down the plant in 2013 and subsequently in 2018 on the grounds of violation of license conditions. This hearing was remarkable as it was different from any of the proceedings in Sterlite' s history. The Madras Government and TNCB were blamed for their inefficiency in not delivering the verdict before 22 years.

Article 48(A) and Article 51(A)(g)
The state is empowered to improvise and safeguard the environment along with safeguarding the forests and wildlife of India. The Parliament by 42nd Amendment, incorporated it in Article 51A to sensitize the citizens of India of their responsibility to improve and protect and the environment encompassing wildlife, lakes, forests.

Therefore, Article 48(A) and Article 51(A)(g) are foundation stones of environmental jurisprudence. In Sher Singh v State of HP, the court held that citizens are granted fundamental rights to a wholesome, decent and clean environment. Article 48(a) obligates the States to improve and protect and the wildlife, forest and environment.

In the case of Lt. Col. Sarvadaman Singh Oberoi Vs Union of India, the court held that whenever the State utilizes natural resources 'Public Trust Doctrine' will prevail over all the principles and fundamental rights. Therefore, the Court thought it prudent under Public Trust Doctrine, the State to act as a trustee of all the water bodies to safeguard for public utility.

Article 253
This article empowers the Parliament to enact any law for the whole or any part of the territory of India for the purpose of implementation of any agreement, treaty or convention with any other country or to make decisions at international conferences, association or other body.

Significance Of Public Interest Litigation

Public Interest Litigation (PIL) developed in India in the 1980s to voice the concerns of the marginalized section of the society. PIL has been considered as a "new era of judicial activism" in India. [iv] With the development of PIL, the Supreme Court relaxed the rule of locus standi and broadened the scope of aggrieved persons by allowing public-spirited citizens, institutions, non-governmental organizations and other parties to file a case on behalf of a person who is unable to file a suit.[v]

Over the years the ambit of PIL has included environmental claims other than claims from individuals on their fundamental rights.[vi] This can be seen in the case of Rural Litigation & Entitlement Kendra (RLEK) v. Union of India [vii] , where the court directed the closure of lime- stone quarries that was causing ecological degradation. In the Vellore Citizens Forum case[viii], a PIL was filed to stop water pollution caused by tanneries situated in Tamil Nadu. The courts directed the government to take immediate action to stop further pollution.

In environmental matters, PIL has been noted to be an effective justice delivery system to the victims of environmental degradation.[ix] With the scope of the locus standi widened, public-spirited citizens and organizations can file suits. Environmental suits that hold states accountable for not performing their functions have been addressed.[x]

Judges have the authority with regard to PILs to decide innovative solutions, direct officials, monitor policy changes and enforce orders. Public spirited people and the judiciary can facilitate in bringing justice to victims of climate change with the help of PIL.

PILs have been used across jurisdictions to address climate claims before adjudicating bodies. To illustrate, in Center for Social Justice Studies et al. v. Presidency of the Republic et al., the Colombian Constitutional Court allowed the petition to protect the rights of indigenous communities from mining and logging activities.

Further, in 2015 a claim was brought before the Commission of Philippines to investigate "the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines". This shows that PILs are growing in climate claims and the courts in India can see such claims in the future.[xi]

Challenges

Though the judiciary has been responsive to environmental issues in India, there have been some limitations.

Balance Between Developement And Environment Protection

How to balance development with environmental protection has been at the heart of environmental jurisprudence in India. The balance between environmental protection and economic development is a complex issue that requires careful consideration.

While economic development is important for the growth of a country, it should not come at the cost of environmental degradation. The judiciary, in turn, has repeatedly failed to curtail developmental activities at the expense of environmental protection.

A noteworthy case where this dynamic is visible is the Narmada Bachao Andolan case, where local communities filed a case before the Supreme Court calling for restrictions on the height of the dam. The Supreme Court instead permitted the dam construction, reasoning that it would not be an ecological disaster.

Exclusionary Conservation

India has two competing strains of environmentalism: one that stems from 'environmentalism' and another that is purely exclusionary. The judiciary has at different points in time complied with each one of these two competing strains. The current failure to reconcile these two competing strains of environmentalism outside the courts either within other branches of government or through discourse  leads adversarial settings like courts to make more polarizing decisions. [xii]

Suggestions
India's consumer society is quickly expanding, as is the country's population, outpacing economic gains. Knowing one's environmental rights is critical, particularly in a world where rapid human activity produces new and complicated ecological problems almost every day. Therefore, I suggest that the Government must establish a causal nexus between a country's GHG emissions or deficiencies in adaptation strategies and particular impact of climate change that damage human rights.

Extraterritorially extending rights guarantees to actions that arise outside the state(s) where the consequences are more acute; then by using potential climate change effects the judiciary must establish cases of human rights abuses, which are usually identified after real harm has occurred.[xiii]

Conclusion
Though there are many challenges ahead for India to cope with climate change and associated growing litigation, there is improvement. India ranks 8th on the Climate Change Performance Index (CCPI) 2023, which was released in COP 27. The CCPI assesses 59 countries and the European Union on climate change policies and actions, and aims to enhance transparency in international climate politics and enable comparison of climate protection efforts and progress made by individual countries.

India has improved 2 ranks in CCPI 2023 and is the only G-20 country in the top 10 rank. India has also earned a high rating in the GHG Emissions and Energy Use categories, while a medium for Climate Policy and Renewable Energy. The aggressive policies of India towards rapid deployment of renewables and robust framework for energy efficiency programs have shown considerable impact. As per the CCPI report, India is on track to meet its 2030 emissions targets.

References:

1. Rai, D. (2021) Deciphering climate change litigation in India : Application of common law principle, iPleaders. Available at: https://blog.ipleaders.in/deciphering-climate-change-litigation-in-india-application-of-common-law-principle/ (Accessed: 20 December 2023).
2. MC Mehta v Union of India 1987 AIR 1086.
3. MC Mehta v Kamal Nath (1997)1 SCC 388.
4. Gitanjali Nain Gill (2012), "Human Rights and the Environment in India: Access through Public Interest Litigation" 14 Environmental Law Review 200 (14 December 2023).
5. S.P Gupta v. Union of India, 1981 Supp SCC 87, at para. 17.
6. M.C Mehta v. Union of India (1987) 1 SCC 395; Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
7. Rural litigation and entitlement kendra v Union of India 989 Supp (1) SCC 504.
8. Vellore citizens welfare forum v. Union of India, (1987) 4 SCC 691.
9. Supra note 39 at 203.
10. Almrita Patel v. Union of India, WP No. 888 of 1996; M.C. Mehta v. Union of India, AIR 1997 SC 734.
11. Jacob, V.A. (2021) Ili Law Review Winter Issue 2021, Indian law Institute. Available at: https://www.ili.ac.in/pdf/win21_5.pdf (Accessed: 17 December 2023).
12. Kodiveri, A. (2022) Climate Change Litigation in India (chapter 20) - litigating the climate emergency, Cambridge Core. Available at: https://www.cambridge.org/core/books/litigating-the-climate-emergency/climate-change-litigation-in-india/5A6DBB4325E033DEF0681C5C89C506AE (Accessed: 10 December 2023).
13. Rai, D. (2021) Deciphering climate change litigation in India : Application of common law principle, iPleaders. Available at: https://blog.ipleaders.in/deciphering-climate-change-litigation-in-india-application-of-common-law-principle/ (Accessed: 20 December 2023).