CIVICUS discusses a recent Indian Supreme Court ruling on climate change and human rights with Arpitha Kodiveri, an environmental law and justice scholar and assistant professor of political science at Vassar College, who works on the role of law in redressing the climate harms faced by South Asian Indigenous communities. Her recent book, ‘Governing Forests’, is published by Melbourne University Press.
India’s Supreme Court declared the right to be free from the adverse effects of climate change to be a fundamental right derived from the right to life and equality enshrined in the Indian Constitution. It said that the right to life cannot be fully realised without a clean environment that is stable and unaffected by climate change. The ruling came in a case focused on the protection of an endangered bird, in which climate change was a secondary issue. The Court found that the threats to the bird’s survival included pollution, climate change and other environmental factors.
What’s the significance of the recent Supreme Court ruling on climate change and human rights?
The fascinating thing about this case, M K Ranjtsinh and others v Union of India, is that it wasn’t even a case about climate change. It started out as a case about protecting an endangered bird called the Great Indian Bustard, which was dying because of solar power plant wires. This case highlights the complexity of environmental issues and how even green solutions aimed at reducing coalmining can inadvertently harm biodiversity.
Public interest litigation has become a common avenue for environmental legal action in India because it can be brought by anyone acting on behalf of the public interest, and not just by those directly affected by an issue. In this case, M K Ranjitsinh filed the case to protect the Great Indian Bustard.
The High Court considered whether the wires harming the bird could be placed on the ground. But when the case went to the Supreme Court, it took an unexpected turn.
The Supreme Court linked climate change and human rights in four ways. First, it interpreted the constitutional right to life to include the right to a healthy environment. This recognised a new legal right to a healthy environment, imposing a legal obligation on the state to ensure citizens are free from the adverse effects of climate change.
The ruling also highlighted the right to equality as a crucial element in human rights discourse on climate change. The Court recognised that climate change doesn’t affect everyone in the same way, as it deepens existing vulnerabilities. Indigenous communities, women, lower caste people and other excluded communities are the most vulnerable to its impacts.
In addition, the ruling linked the right to life to the right to access essential resources such as water, clean air and land. Finally, it touched on the tension between protecting biodiversity while promoting renewable energy and the need to take into account human rights impacts.
What are the ruling’s practical implications?
The ruling makes far-reaching demands, one of which is the need for an overarching climate law. I find this problematic for three reasons.
First, under the current government India has become an electoral autocracy – something that could hopefully change after the recent elections. But so far, it has not been possible to make much progress on legislation. Many environmental regulations have been lifted. The government has used climate change as an excuse to pass new legislation that dilutes existing environmental laws, such as the Forest Conservation Act. The current political and legislative environment isn’t conducive to considering a climate change bill.
Second, the current global trend is to ‘climatise’ every environmental problem. But it makes sense to address biodiversity and climate change separately, because we otherwise risk silencing the specific legal needs of separate environmental issues. An umbrella climate bill could undermine existing environmental laws or strengthen them depending on the outcome of such an intervention. Instead, we need to implement the laws we already have and avoid further deregulation.
Finally, from a jurisprudence point of view, the ruling is more of a guideline than an enforceable, tangible measure. It suggests a committee should look into the specific legal situation of the bird and the solar farm but doesn’t provide any actionable steps.
Many people have criticised the ruling for creating an adversarial situation between biodiversity and climate issues, which are interlinked and interdependent. We need to protect birds, but we also need renewable energy. This is causing confusion among environmentalists. We need renewable energy, but at what cost?
Others have criticised it because of the gap between what the Supreme Court says and what is actually enforced. This is a progressive statement but doesn’t do much more than provide additional legal hooks to keep going to court over.
What’s the role of Indian civil society in environmental litigation?
India’s climate and environmental movement has long been very active in the courts, so this case benefitted from the accumulated experience of legal activism that started in the 1970s and 1980s. Back then, civil society frequently took regulatory failures to court. Environmental regulators weren’t fulfilling their obligations to implement environmental laws adequately, and public interest litigation provided relatively easy access to the legal system for environmental groups. This created a robust culture of progressive environmental litigation. It made the courts an important place to check and balance decision-making processes and ensure participation.
In his analysis of the Indian Supreme Court’s role in developing environmental jurisprudence, Greetanjoy Sahu, a professor of development studies, found that the Court has adopted an activist stance, providing fertile ground for progressive cases like this one. India’s long history of rights-based environmental jurisprudence meant it was only a matter of time before a case linking climate and human rights emerged.
Has environmental legal activism faced criticism?
Yes, it has faced criticism, which is an essential part of any robust legal system. A book on public interest litigation in India, Courting the People, shows that those who bring public interest litigation cases often come from elite backgrounds. As a result, resulting rulings can sometimes be anti-poor.
For example, a case cited in the book is of an environmental lawyer who filed a public interest litigation case on air quality in Delhi. The court’s solution was to move all factories out of the city. While this was intended to be a positive environmental decision, it also meant that slum dwellers and factory workers had to relocate overnight. The environmental decision ended up having a negative socio-economic impact on marginalised communities.
What’s at the top of India’s environmental agenda?
India is on the edge of a precipice. As an extremely climate-vulnerable country, we face heatwaves, floods and significant human and biodiversity losses. At the same time, we need to achieve energy security, which means we need to exploit some of our core resources.
India needs adequate enforcement of existing environmental laws. There are numerous regulations that over the last decade haven’t been implemented. The focus has shifted from a precautionary to a compensatory approach. This means that instead of assessing the environmental impact of a project in advance, the government prefers to compensate for the damage after a project has been implemented. Climate and environmental protection are an afterthought. We need to return to a precautionary approach.
Finally, socio-economic rights must be an integral part of the effort to address the climate crisis. Without economic justice, we won’t tackle the climate crisis, which has its most adverse impacts on Adivasi or Indigenous peoples, women, children and Dalits – people of the lowest caste formerly known as ‘untouchables’.
Civic space in India is rated ‘repressed’ by the CIVICUS Monitor.
Get in touch with Arpitha Kodiveri through her LinkedIn page and follow @arpithakodiveri on Twitter.