How climate change is fuelling litigation in India and the world

IN AN important ruling that could energise climate litigation in India, the Supreme Court on April 6 said people had a fundamental right to be free from adverse impacts of climate change, and that this right flowed naturally from the right to life and the right to equality guaranteed in the Constitution. The court said people’s right to clean air or a clean environment was already recognised in Indian jurisprudence, and given the increasing ‘havoc’ being caused by climate change, it was necessary to carve out the right to be protected against its adverse effects as a distinct right in itself.

The apex court judgment came in a case in which climate change was only incidental to the arguments. The main matter pertained to the conservation of the Great Indian

Bustard (GIB), an endangered bird. The court, however, used the climate change argument to move away from the immediate issue and address the larger problem of the risks that people face from climate change.

The rise of climate litigation

The Supreme Court’s articulation comes at a time when there is a global surge in the number of people seeking legal remedies for issues related to climate change. As government and corporate actions on climate remain woefully inadequate, more and more people feel the brunt of climate change impacts, and an increasing number of concerned individuals and groups have been turning to courts to set things right.

The 2023 edition of the Global Climate Litigation Report, a periodic publication of the UN Environment Programme, identified 2,180 climate-related cases being heard by courts, tribunals, and other adjudicatory bodies in 65 countries. The 2020 edition of the same publication had identified 1,550 cases in 39 countries while the 2017 edition had found 884 cases in 24 countries.

The bulk of these cases have been filed in developed countries, mainly the United States and Europe. But increasingly, cases are being filed in developing countries as well. The report identified 11 cases in India, putting it 14th on the list of countries with the most number of cases.

A large proportion of these cases have used rights-based frameworks, similar to the one articulated by the Supreme Court. Petitioners have invoked the right to life, human rights, right to health, etc. to press for greater climate action.

In several cases, courts have concurred and given favourable verdicts. Most recently, a group of elderly Swiss women successfully argued before the European Court of Human

Rights that their rights to family life were being violated because of the adverse health effects of heatwaves. The court held that the government of Switzerland had indeed violated their human rights.

People have also sued governments for lack of enforcement of existing climate laws or policies, and corporations for liability, compensation or greenwashing — when firms or governments give a false impression that all of their products or activities are climate-friendly. The increase in climate-related cases has also sensitised the courts which are more likely to give favourable judgments than before. But while this may bring greater accountability in government and corporate climate actions, it would be too much to expect these verdicts to make any significant dent in the overall threat from climate change.

Climate litigation in India

Indian courts have been dealing with climate-related issues for a long time now, even though they might not have been categorised as climate litigation. The National Green Tribunal, which deals exclusively with environmentalmatters, is the main forum for such cases but petitions routinely land in High Courts and the Supreme Court as well. However, petitions referring to, or seeking recourse from, the broader problem of climate change, are rare. the supreme court’ s order on climate change is almost certain to change that.

“What the recent Supreme Court decision has done is to reinforce the critical nature of climate change, and that would potentially pave the way for a new jurisprudence where people, socio-economic development, nature and climate are equally prioritised,” Bharat Jairaj, who leads India’s Energy program at the World Resources Institute, said.

However, the effectiveness of court rulings on climate change remains a big question mark, particularly in the case of enforcing a right to be free from the adverse effects of climate change. Court interventions can be useful in matters relating to air or water pollution, or forest or wildlife conservation. But climate change is a very different beast. It is a multi-dimensional problem that cannot be tackled through any single or a small set of interventions. Minimising the impacts of climate change is beyond the capability of any single local, regional or national government.

Shibani Ghosh, a Supreme Court advocate and visiting fellow at Sustainable Futures Collaborative (an independent research organisation), said that for these reasons, the courts might not be as activist on climate change as they are on some other environmental issues, and use a “hands-off approach” in climate cases in the future.