Climate change is one of the greatest threats which a country like India is facing, which has far-reaching environmental, social, and economic consequences. The Global Climate Risk Index of 2021 lists India the 7th nation to be affected the most due to climate change. Climate change exposes the vulnerable communities to various dangers pertaining to crop failures, displacements, loss of livelihood, food security etc. To address this global challenge, India is following a multi-faceted approach, which is mainly focused on building robust legal and policy frameworks that seeks to balance environmental protection with sustainable development. This plan includes, the National Action Plan on Climate Change (NAPCC), many state-level plans, as well as various international commitments, such as the Paris Agreement.

This paper attempts to give an in-depth analysis into the realm of the climate change law and policy in India. It explores the role and impact of climate change litigation in shaping the country's climate policies, and in further enforcing compliance. I would also be focusing on the challenges which come while implementing these laws and policies. Furthermore, I would be emphasising on the importance of such policies and the emerging trend of climate litigation with respect to comparative international standards as well. This paper would also analyze the key cases which helped in framing certain key concepts under this, and what has been the position of ICJ on climate litigation over the years.

Climate Law and Policy Framework

India does have several laws and enactments pertaining to climate or environmental issues, however as of now it doesn't have a definite legislation on climate change. In 2008, it came up with the National Action Plan on Climate Change (NAPCC), submitted to the UN Framework Convention on Climate Change (UNFCCC) in 2015, as it's a signatory to the same.[1] The NAPCC focuses on domestic issues, and it highlights 8 national missions under its ambit, which aims at promoting an in-depth understanding of climate change.

The main objective of the NAPCC is to act as a framework thereby, encouraging the promotion of sustainable development while addressing the country's various vulnerabilities and priorities. In India each State has the power to develop its own action plan on the environmental issues which that particular State might face, and this falls under the State Action Plans on Climate Change (SAPCC's).

India has also adopted many policies and initiatives, and active renewable energy programs. In 2006, the National Environment Policy was adopted, wherein the principal objectives include taking proper steps for the conservation of critical environmental resources, to oversee that the environmental resources are being used effectively and efficiently, and further enhancement of environmental resources. The policy on the abatement of pollution, provides a step-by-step approach to regulate pollution on many levels, including regulations, agreements, and other measures.

Moreover, the Environmental Impact System (EIA) is a well-devised, mandatory program followed in India since many years, to incorporate environmental related concerns in the development process. Other than these, there have been some specific developments in the Energy Sector as well.

Not just on a domestic level, but on an international level, India aims to mitigate climate change. For example, India is a party to the Paris Agreement (2015), which deals with reducing the emission of greenhouse gases, and in return, increasing the use clean fuels. As a part of this agreement, India submitted its Nationally Determined Contributions (NDT's) outlining the commitments to climate action, with the required targets to be achieved in curbing this.

While India's climate change laws and policy frameworks are comprehensive in nature, there have been many hindrances in implementing the same, which would be discussed further on in the paper. However, despite these obstacles, these policy frameworks, laws, and legislations have played an important role in addressing climate change and promoting sustainable development. Continued efforts to implement these would lead India to contribute its efforts in combatting this global issue.

Climate Litigation

In addition to policy measures, climate litigation is emerging as a significant tool in India to hold actors accountable for their environmental impacts. Climate litigation is emerging as an important mechanism in India, with public interest litigation (PIL) and lawsuits against corporations and government bodies driving policy changes and enforcement of environmental laws.[2] Climate change litigation engages in different types of claims ranging from administrative law, constitutional law, private law, to private international law, human rights etc.

In 2010, the National Green Tribunal was established which provided the citizens with a more nuanced and a specialized forum for disputes related to environmental matters, and with the coming up of the NGT many judgments followed, and also many policy changes took place for the better. While climate litigation holds promise for promoting climate justice and shaping policy, it faces challenges such as legal complexities, resource constraints, and a lack of established precedents. Despite these hurdles, climate litigation is poised to play a crucial role in advancing India's climate goals.[3]

Key Climate Litigation Jurisprudence in India

India, being a diverse, and a heavily populated country, over the years, has seen a rise in climate-related litigation involving the citizens of the country, stakeholders, environmental organizations, government's concerned, and corporations. This paper aims to discuss a few landmark climate litigation cases in this regard.

The case of Ridhima Pandey v. Union of India (2017)[4] is a landmark case, which sparked discussions across the nation on climate change and activism. A petition filed by a nine-year-old girl the Indian government gave rise to this case, wherein accusations was made regarding failing to take enough measures to address climate change and safeguard the rights of future generations.

There have also been cases where the court has held polluters absolutely liable for hazardous activities, for example in the case of Uttar Pradesh Pollution Control Board v. Mohan Meakins Ltd. (2000).[5] In the case of Vellore Citizens Welfare Forum v. Union of India (1996),[6] the Hon'ble Supreme Court of India rightly recognized the virtue of sustainable development and also emphasised on the need to balance development projects while keeping in mind environmental protection as well.

The National Green Tribunal (NGT) has also established significant precedents,[7] and one such case was the case of Coastal Gujarat Power Ltd. v. Union of India (2020),[8] wherein the NGT scraped the environmental clearance (EC) given to a thermal power plant, as it assessed that this might contribute to climate change. In Subhash Kumar v. State of Bihar, the Supreme Court also held that the right of pollution free clean and clear water and air comes within the very ambit of the right to life.[9] This precedent has been followed by many other jurisdictions that have held the right to a clean and pure healthy environment as the right to life guaranteed under Article 21 of the Constitution.[10]

In the case of Dr. B. L. Wadehra v. Union of India,[11], the court held the government and the concerned institutions accountable and stated how they should fulfill their duties under environmental laws. On the similar lines, in the case of Vellore Citizens' Welfare Forum v. Union of India, the government followed the 'precautionary principle', wherein it requires the concerned government authorities to foresee, and prevent any causes which add to environmental pollution.

In Indian Council for Enviro-Legal Action v. Union of India,[12] it was strictly held that the enforcement agencies have a duty to rigorously enforce environmental laws. There's no argument that in the coming years, climate change jurisprudence in India will have a strong footing, and these cases discussed above, would be used as strong precedents.[13]

ICJ's Position

The International Court of Justice (ICJ) is an organ of the United Nations (UN), settles disputes between states by applying the tenets of international law.[14] In the past, the ICJ has not directly passed rulings which are specifically based on climate change, however environmental issues and broader principles have been discussed in great detail.[15] These include some notable developments, such as ICJ's Advisory Opinion on the Legality of the Threat or Use of nuclear weapons (1996), wherein consideration was based on environmental issues in the context of addressing the legality of nuclear weapons. In this States were expected to respect the environment of other States.

Further on, in 1997, under the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), the ICJ acknowledged the concept of sustainable development under the ambit of modern international law and emphasized on the duty to ensure that developmental actions do not cause significant harm to the environment. In 2010, the ICJ, under the ruling of Pulp Mills on the River Uruguay (Argentina v. Uruguay), also recognized the exigency for environmental impact assessments, and better monitoring techniques of projects which may affect the environment negatively and can further cause detrimental irreversible damage to the environment.

However, on 29th March 2023, climate change litigation finally reached ICJ, wherein the UN General Assembly (UNGA) in adopted a resolution (A/77/L.58), pertaining to certain obligations on States with respect to climate change. This was spearheaded by the Government of Vanuatu, which helped in preparing draft resolution while working in collaboration with other countries as well.[16] In this request, it was well acknowledged that to keep in mind the well-being of current and future generations, it's imperative to respond to climate change issues and threats.[17]

The main point for contention was the emission of greenhouse gases as the major - leading cause adding to global warming since mid-20th century. It also emphasised on the fact, as to how due to human activities over the years, climate issues have increased, causing irreparable damage to the environment. Reliance was also placed by the UNGA on the Paris Agreement, and the United Nations Framework Convention on Climate Change to address the threat poses by climate change, and how important it is to implement these treaties effectively. The resolution also focuses on a standardised procedure in place, to reduce gap between the States.

Therefore, to mitigate this, the UNGA, under Article 96 of the Charter of the United Nations has requested the ICJ to give an advisory opinion on the same. This is indeed a big step in climate change litigation on an international level. The ICJ's position in this would unquestionably strengthen the principles related to the environment and concerns related to climate change, and would also act as a strong precedent, and influence future climate litigation worldwide. ICJ's decision could also encourage States to strengthen climate policies and o adhere to the international practices set.

Implications and Challenges in Implementation

There's still a need to implement the climate change policies in India in an efficient way, by focusing on institutional, political, regulatory bodies, and other socio-economic factors. These complex factors can act as an obstacle, thereby hindering the efficient implementation of the climate change policies.

There are certain key challenges related to implementing climate change policy in India with respect to institutions, such as:

• Institutional Fragmentation and Coordination: India being a highly populated country has multiple government agencies and departments looking into climate change and other environmental matters. However, this often leads to overlap of responsibilities, leading to coordination challenges and inefficiencies. Moreover, due to multiple agencies, it's a challenge to demarcate clear jurisdictional boundaries amongst these multiple agencies and institutions, leading to confusion, and delays in the policy decision making process.
   
• Regulatory Inconsistency and Gaps: Different States manage their own policy matters, leading to state-level disparities. Moreover, due to the ever-changing landscape, frequent changes and amendments are made, affecting the long-term investments in climate change initiatives as stakeholders become uncertain and wary of these changes.
   
• Limited Institutional Capacity and Resources: Various times the institutions involved in these processes or the regulatory bodies lack the necessary funds needed to efficiently carry out their mandates. Moreover, there's also a shortage of skilled, trained, and expert personnel in these fields which leads to poor implementation.
   
• Weak Monitoring and Enforcement Mechanisms: India, as of now, doesn't have a robust monitoring system in place to check the environmental changes taking place or the policy outcomes. This issue is also concerned with the fact that there's weak enforcement of the existing laws, thereby allowing harmful activities such as pollution to persist.
   
• Political and Economic Pressures: Due to political connections, certain industries might get favored as compared to others, such as industries dealing with fossil fuels. Moreover, with transition to renewable energy sources, there comes high costs, and such implementation can also cause significant economic challenges, especially for certain areas dependent heavily on traditional industries.
   
• Public Awareness and Participation: A major hindrance in climate policies is the lack of knowledge and understanding amongst the public. Moreover, engagement and participation from the local communities can cause a challenge due to the diverse needs and perspectives.
   
• Infrastructure and Technological Barriers: Inadequate infrastructure, for example lack of energy grids, impedes the adoption of climate policies. There's also a challenge of limited access to the advanced renewable energy technologies present which further slows down the transition.
   
• Legal and Judicial Challenges: In such matters, there lies a handful of legal complexities such as the interpretation of international agreements and various national laws. Climate litigation is a useful tool, however, due to the lack of established precedents and legal standards, it remains underutilized.

The Way Forward
Addressing the challenges mentioned above requires an interplay between the various factors present causing a hindrance to the effective implementation of climate policies. It requires a comprehensive approach that will strengthen the coordination between various institutions, standardize regulations, improve on the monitoring and enforcement mechanisms, and the infrastructure.[20]

Climate litigation in India continues to play an imperative role in raising awareness and pushing for stronger climate action. These cases have not only helped to challenge government's policies and decisions but have also helped to hold the authorities concerned accountable for their inadequate measures and efforts in addressing climate change in India.

Since climate litigation in India is often hindered due to procedural delays, hurdles in the judicial system and lenient enforcement of such court orders, therefore, it's imperative to strengthen the legal system, and to instill faith in the public. This can be done so, by fostering collaboration between the various stakeholders involved, and enhancing public participation, in order to leverage and use the full potential of climate litigation as a driving meaningful change. There should be frequent implementation of policies and incentives in place to further promote sustainable and clean energy transitions and practices.

Conclusion
This paper aim to highlight the importance of climate change law and policy in India, and how it's the need of the hour. It further emphasizes on climate litigation and how it has shaped the need for stronger climate action. However, continued efforts are needed to overcome procedural barriers, enhance enforcement mechanisms, and develop robust legal and policy frameworks that align with India's commitments to address climate change. By delving into and further inspecting key cases and their suggestions, the paper underlines the capability of the legal framework and action, acting as a catalyst to implement meaningful climate action, thereby protecting the rights of the generations to come.[21]

With the ever-changing landscape, India's legal and policy framework for climate change is also evolving to address the implications of climate change and environmental degradation. Climate litigation allows for promoting strict compliance with the existing laws and policies. In my opinion, in the future, with the advancement, and as climate litigation continues to grow, it will likely have a major impact on shaping future climate change laws and policies in India, thereby achieving India's climate goals.

References:

1. UNFCCC (1992): unfccc.int/resource/docs/convkp/conveng.pdf; http://www.sustainable-environment.org.uk/Action/Earth_Summit.php
2. Arpitha Kodiveri, "Climate Change Litigation in India: Its Potential and Challenges." Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action. Ed. César Rodríguez-Garavito. Cambridge: Cambridge University Press, 2022. 364–375
3. Parul Kumar & Abhayraj Naik: India's New Constitutional Climate Right: Examining the Significance of M.K. Ranjitsinh and Others v. Union of India and Others for Climate Litigation in India, https://verfassungsblog.de/indias-new-constitutional-climate-right/
4. Ridhima Pandey v. Union of India (2017), Original Application No. 187 of 2017.
5. Uttar Pradesh Pollution Control Board v. Mohan Meakins Ltd. (2000) 3 SCC 745.
6. Vellore Citizens' Welfare Forum v. Union of India, 1996 5 SCR 241, ILDC 443 (IN 1996), 1996 5 SCC 647, 1996 AIR 2715, JT 1996, 375, 28th.
7. National Green Tribunal Act, 2010, Preamble, No. 19, Acts of Parliament, 2010 (India).
8. Coastal Gujarat Power Ltd. v. Union of India (2020).
9. Subhash Kumar v. State of Bihar (1991) 1 SCC 598.
10. Municipal Council Ratlam v. Vardhichand, AIR 1980 SC 1622 (India); M.C. Mehta v. Union of India, AIR 1987 SC 1086 (India); Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 (India).
11. Dr. B. L. Wadehra v. Union of India, AIR 1996 SC 2969.
12. Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281.
13. Amitabh Sinha, 'How Supreme Court's Verdict on Climate Change can push Climate Litigation in India', The Indian Express, April 22nd, 2024, https://indianexpress.com/article/explained/explained-climate/supreme-court-climate-change-litigation-9273166/
14. UNDP (2007): "Fighting climate change: Human solidarity in a divided world," Human Development Report, 2007/2008, Palgrave Macmillan.
15. Michel Prieur, Le Principe de Non Régression en Droit de l'Environnement, Condition du Développement Durable (2013).
16. Maria Antonia Tigre, Natalia Urzola and Juan Sebastián Castellanos, "A Request for an Advisory Opinion at the Inter-American Court of Human Rights: Initial Reactions", Climate Law: A Sabin Centre Blog, 17th Feb, 2023, https://blogs.law.columbia.edu/climatechange/2023/02/17/a-request-for-an-advisory-opinion-at-the-inter-american-court-of-human-rights-initial-reactions/
17. "ICJ Should Address Legal Contradictions Holding Back Action on Climate Change", Press Release, IIED, 17th Oct, 2023, https://www.iied.org/icj-should-address-legal-contradictions-holding-back-action-climate-change
18. H.A.C. Prasad & J.S. Kochher, "Climate Change and India – Some Major Issues and Policy Implications", Department of Economic Affairs, Ministry of Finance, Government of India (2009).
19. Shibani Ghosh, "Litigating Climate Claims in India," 114 Am. J. Int'l L. 44 (2020); Francesco Sindico & Makane Moïse Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects 47 (2021).
20. S.A. Bogolyubov, "Is Climate Law Justified?", in Law & Climate of the Planet: A Scientific Publication (Yu Tikhomirov, S.A. Bogolyubov & N.V. Kichigin eds., 2018).
21. Intellectuals Forum, Tirupathi v. State of A.P. & Others, (2006) 3 SCC 549.