The new right for climate action in India

By Harshita Kaur

The Directive Principles of State Policy as enshrined in the Indian constitution are the essential elements that help our democratic country to achieving an inclusive, equitable and welfare state. Increasingly favourable judicial interpretations gave a fill-up towards implementation of the directive principles of state policy which are now more than an ideal directive but becoming instruments of the citizens for procuring their implementation for betterment of their lives.

Falling back to 1949, climate action didn’t seem to be a part of right to life or directive principles of state policy. The scientific knowledge of those days could not visualise the gravity of increasing carbon emission which accelerated with passage of time. Currently, as the climate change has become threat to the existence of life on the planet, climate action and its associated vulnerability has affected every habitat in one way or the other. In this context, the ruling of the Supreme Court that “people have a right to be free from adverse effects of climate change” in a recent judgement in March 2024 has come as an assertive command at right time. This right has come up as the highpoint in a case relating to the conversation of the critically endangered Great Indian Bustard (GIB), whose verdict was awaited by many conservationists and activists eagerly.

Climate change is being witnessed as an inexplicable change all over the globe. And India has been a conscious contributor and committer in the global talks for working towards climate action. The government at the centre and states have made action plans with the help of enactments of laws and missions aiming to protect the environment in one way or the other. The Environment (Protection) Act 1986, or the number of projects under the National Mission for Sustainable Habitat (NMSH), these governmental policies, rules and regulations have been recognizing the adverse effects of climate change.

The nationally determined contributions (NDCs) to the UNFCCC seek to enhance the country’s contribution towards the achievement of the strengthening of the global response to threat of change under the Paris agreement. India’s NDC’s have been setting up quantitative targets towards use of non-renewable energy, reducing emissions, providing for forests and tree cover aiming to achieve India’s long-term goal of reaching net-zero by 2070. The updated NDCs also focuses on “lifestyle for environment” and this judgement of the Supreme Court reaffirms India’s commitment towards combating the climate change.

What changes does this judgement against adverse effects of climate change bring to us, as citizens, is of utmost importance. Despite the plethora of decisions on the right to clean environment and recognition of climate change as a serious threat, the articulation that the people can practice this right to be free from climate adversities is yet to be signified.  The nationally determined objectives needed to be individually determined and contextualized to a citizen’s life.

Any citizen of India has the right to life (Article 21) and right to equality (Article 14), and the Supreme Court’s original civil jurisdiction has very evidently affirmed the inclusiveness of the effects of climate change under both these articles. The vagaries of climate change have inevitably affected the right to health due to direct and indirect impacts of air pollution, rising temperatures, climatic hazards, etc. No strata of Indian societies are refrained from these persistent issues. The violation of these rights can be sensed in the inability of vulnerable communities to adapt to climate change or even cope at their own pace.

The impacts on right to equality are also evident with the varying geography of India and a range of vulnerable populations. For instance, citizen residing at Indian islands or coastal regions are more susceptible to impacts of sea level rise and oceanic problems. Similarly tribal and indigenous communities are losing their habitat and their culture due to destruction of forests and lands leading to their displacement. Thus, climate change could adversely impact the constitutional guarantee of these rights.

The Supreme Court has also exclaimed that this right is an indication that the constitution recognizes the importance of the natural world. The Article 48A “providing to protect and improve the environment and to safe safeguard the forests and wildlife of the country” and the Article 51A “stipulating the duty of every citizen of India to protect and improve the natural environment” are the instruments of Instructions for the state to prioritize the climate action considerations. Widely adopted global climate action initiatives such as the United Nations Environment Programme (UNEP) report of 2015 has also outlined human rights obligations related to climate action, including both mitigation and adaptation efforts. The right to a healthy environment and the right to be free from the adverse effects of climate change has come up under the larger umbrella of India’s mission to combat climate change in association with India’s commitment under international conventions, giving importance to solar power as a source of renewable energy and the litigations for climate change in other jurisdictions.

Recently, Europe’s top human rights court gave a ruling in favour of more than 2000 Swiss women, who argued that their government’s climate inaction have put them at risk of death due to heatwave. The vulnerability of these women due to gender and age was duly considered in the ruling which justified the claim on Swiss government. In another case, a resident of Kiribati appealed in the court for refugee status in New Zealand on the grounds of sea level rise due to climate change though was unsuccessful in the claim.

It is significant that the nuances related to these rights would need more deliberation, but it’s undoubtedly a landmark achievement by the Supreme Court pushing for the constitutional courts as avenues to litigate climate issues through the “new” right to be free from adverse effects of climate change. It is a right step forward in paving a way for climate equity as it opens opportunities for vulnerable people all over the country to get the impacts of climate action acknowledged and worked upon by the respective governments.

The author is Research Associate, Transport and Urban Governance Division at The Energy and Resources Institute (TERI).

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