RIGHT TO A FUTURE

The apex court has made an 'observation' on the right to be free from the adverse effects of climate change. Can this pave the way to a cleaner future?

What would it mean to have a legislation on climate change? A law that gives citizens the right to demand clean air and water, sustainable development, and balanced ecology. A legal tool to empower the citizens to ask for a less-carbon future. A legal subsection that can better the life of species, in addition to humans.

A recent observation by the Supreme Court in a case that argued the pros of solar power plants against the rights of an endangered bird in Rajasthan seeks to raise similar questions. In the case of M K Ranjitsinh & Ors v Union of India, it is the first instance where the Supreme Court has mentioned the “right to be free from the adverse effects of climate change.” The Court ruled in favour of the solar industry.

Rights and wrongs

This has started a debate among the factions of law, legislature and environment protection. A right to climate change under the country’s Constitution was not recognised by the founding fathers, but they did stipulate the “right to life’ under Article 21. Citing the same section, the SC said: “As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right.”

The articulation of a fundamental right in the context of climate change — sourced from both the right to equality in Article 14 and right to life in Article 21 — is extremely significant.

“It is likely to be considered a strong precedent for future litigation where climate change issues are raised. The Court has worded the right quite broadly and it can be invoked in a variety of cases, whether those raising concerns relating to adaptation to climate impacts or making demands for mitigating causes contributing to climate change,” says Shibani Ghosh, an environment lawyer and researcher.

Ghosh says this not only sends a strong signal by the Court but also places the High Courts and the National Green Tribunal on much stronger footing to exercise their jurisdiction and adjudicate climate claims. While identifying a climate right, the judgment also identifies the Indian State as being responsible for mitigating green house gases emissions, adapting to climate impacts and protecting the fundamental rights of individuals.

The idea of making the state responsible for climate claims is not new and has gathered pace in the last decade, with several countries drafting legislation on it. A study by the Grantham Research Institute on Climate Change and Environment in 2021 said there were 167 countries with close to 1,200 climate laws in place. Though most of them pertain to issues related to climate action, such as emission control, it does indicate a growing trend of legally binding climate targets. The United Kingdom, for instance, has a legally binding target for reducing carbon emissions.

For the first time now, India has initiated an informed discussion on having similar legislation. Under its National Action Plan on Climate Change (NAPCC), India has eight missions, each with its own target. In its last submission to the UNFCC, India has committed to become a net zero economy by 2070 and have 50 per cent of its energy requirement met through green sources. Neither the net zero target nor any other mission is a law.

Only 18 countries across the globe have a detailed plan on meeting their net zero targets, according to Net Zero Tracker. India in its last submission in 2022 outlined a 120-page plan to reduce carbon emission, promote green energy, and realise its sustainable development goal. Most of the country’s global commentary largely revolves around its low carbon growth and attacking the developed world for being historical polluters. India is also a strong votary of the ‘polluter pays’ principle.

Duty, rights, politics

But none of these intentions reflect in the plan of the two national parties. In their respective manifestos, neither the Bharatiya Janata Party nor the Congress Party committed to any numerical targets on environment and climate, and there is no mention of any law or rule on climate action.

The BJP’S Sankalp Patra has a chapter that says, if elected the party “will use both traditional wisdom as well as modern practices to contribute to a healthier planet.” The plan mentioned is more or less similar to India’s current climate action plan. It includes the net zero target, river revitalisation, air quality improvement, afforestation, and protecting various ecologies — from the Himalayas to the coastal regions. The manifesto also mentions the schemes launched in the second term of the BJP government: PM Surya Ghar Yojana, Railway Electrification, PM e-bus, promotion of EVS, Ethanol and Bio-fuel promotion, and Green Credit Programme.

There is no mention of the rights of the individual, but it does highlight the “LIFE Mission” launched in 2022. The Mission aims at fostering “sustainable life choices among Indian citizens.” The language of the mission makes it fall more under the “duty” part of the Constitution, than “rights”, says an environmentalist.

The Congress, under whose regime India drafted its first NAPCC, in its Nyay Patra talks about climate funding through a “green transition fund”, with states and the private sector, and a separate adaptation fund as well. “We will launch a Green New Deal Investment Programme focused on renewable energy, sustainable infrastructure and the creation of green jobs,” it says. There is no mention of any duty or right.

There has hardly been any precedent in the country where a lawmaker has proposed to have a legal legislative structure to climate action. In 2021, BJP MP Jayant Sinha had moved a private bill proposing a Climate Change (Net Zero Carbon) law.

“I have submitted a Private Members Bill in Parliament to make this a legally binding commitment — we will surely attract massive investments around the world if we take this approach,” Sinha had posted on his social media handles.

But experts say India’s apex court arguing for defending the rights of an individual against the effects of climate change might pave the road towards legislation.

“The right to be free from the adverse effects of climate change is much broader than the right to clean air or health, which is also a part of the right to life. Being a fundamental right, this right can be enforced against the State. You could of course file a case of nuisance against your neighbour but not a writ. On a serious note, relying on this right, one could file a PIL against the government for not implementing, say, sustainable development goals adequately,” says Shruti Kanodia, Managing Partner, Sagus Legal.

Ghosh shares this view. “In future cases, presumably the government department that did not take the necessary or adequate steps to prevent or mitigate the adverse effects of climate change could be held liable. And, depending on the fact situation, this liability could extend to private entities as well,” she says.

Right or not, the Indian citizen has found a legal precedence to raise a Greta Thunberg’s “How dare you” question before its local and national leaders.