Climate litigation in India: Understanding the legal landscape

In a recently edited volume titled Comparative Climate Change Litigation: Beyond the Usual Suspects, Shibani Ghosh authors a chapter where she reviews the potential hooks in the legal and regulatory framework for climate litigation in India. She analyses the adequacy of the framework to allow individuals to hold the government accountable for its policies and decisions on climate issues.

The chapter notes that even though India does not have a climate legislation, it has several potential hooks in the Constitution and other laws that could facilitate climate claims in the courts. The Constitution not only secures to individuals the right to a clean and healthy environment, but also imposes a duty on the State to protect and improve the environment. Violation of either of these could be a basis to bring a climate claim before a court of law.

In her chapter, Ghosh studies the scope of laws such as the Environment (Protection) Act 1986, the Forest (Conservation) Act 1980, Air Act 1981 and the Electricity Act, 2003. She finds that climate claims could be facilitated through their broadly-worded provisions and challenges to regulatory clearances granted under these legislations on the ground that climate concerns were not taken into consideration. In addition to legislation, she looks at how policies, plans and international obligations such as India’s NDCs could be used to substantiate climate claims. For instance, cases challenging forest clearances could use the NDCs as a reference point to stress on the importance of forest conservation.

Ghosh analyses judicial precedents and studies how courts have reacted to such claims, whether against a private or a public actor. While there have been claims against inadequate climate mitigation actions which were initiated either through a challenge to regulatory approvals, or implementation of a government policy, there is yet no judicial order on claims involving inadequate adaptation measures. She concludes that while courts are fairly liberal in ascertaining who can approach them and in defining fundamental rights, certain barriers still remain, which show that one must not be overly optimistic about climate litigation in India.

In a previous essay titled ‘Litigating Climate Claims in India,’ published in the American Journal of International Law (AJIL) Unbound, Ghosh discussed how the use of the rights-based language and principles like the public trust doctrine by the Indian judiciary in environmental cases place the courts in an ideal situation to litigate climate claims. But the overflowing dockets of courts, their deferential approach towards economic policies or decisions involving the executive and India’s priority towards developmental concerns are the major reasons why climate language is still used very much in the peripheral sense and not so much as a core issue in courts as yet.

(Environmentality is a collection of ideas, perspectives, and commentary by researchers at the Initiative on Climate, Energy and Environment, Centre for Policy Research, New Delhi. Views and opinions expressed in this blog are solely those of the authors. They do not represent institutional views.)