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Climate change is seen
to be a phenomenon that demands collective responsibility1
and climate litigation should be inclined on the lines of society being a
subset of nature rather than being solely technical in its dealings. It is
generally argued that there are two styles in climate litigation- Mitigation
and/or Adaptation.2  The reason why one cannot particularly choose
between the two styles is, simply because there are various issues under the
broad umbrella of climate change and subsequently require to be dealt with
differently. Mitigation, mainly, aims at reducing reverberations of any further
human interference with the flimsy status quo of the environment and “stabilize
greenhouse gas levels in a timeframe sufficient to allow ecosystems to adapt
naturally to climate change, ensure that food production is not threatened and
to enable economic development to proceed in a sustainable manner.”3
Adaptation is accepting the status quo, due to irreversible damage, and gearing
up to avoid potential vulnerability in the future in  cases of sea-level encroachment or extreme
weather conditions.4

The Constitution
of India was formed in 1950, set in the backdrop of time wherein climate change
was non-existent and couldn’t be visible even at the horizon. However, there
are constitutional provisions that directly provide for potential vulnerability
to climate change and ensure the citizens a clean environment. The provisions
have significant characteristics of both Mitigation and Adaptation. The
judiciary plays a major role in shaping the course of the consequences one
faces as a citizen of the country, and this has been a great deal since
environmental protection began enjoying national and international importance5
lately after Paris agreement.6  In Shirish Barve v. Union of India7,
it was held that since  “The
State shall Endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country”8  thus,  the construction of a said
bypass-road was unnecessary and if allowed, would be a gross encroachment of
high fertile and productive land. Further, it was also held that the major
stakeholders, the farmers, would lose their livelihood and change in land use
would thereby affect the environment.9 It
must be noted that the most
procreative Article 21 of the Constitution of India lays down “Protection of
life and personal”10 which
is “the procedural magna carta protective of life and
liberty.11 Given that the majority
of Indian population resides in rural India, climate
change has about 4-9 per cent impact on agriculture each year. As agriculture
contributes 15 per cent to India’s GDP, climate change presumably causes about
1.5 per cent loss in GDP.12 Clearly, this is in contravention to the right to life which
is not limited to mere physical breathing but encompasses activities that
facilitate living i.e. Right to livelihood. Law can aid law and order and
essentially laws and rules have been laid down that promote public health and
endeavour to raise the standard of living of the citizens13
however, status quo of law and order can inspire the evolution of laws as seen
in Ridhima Pandey v. Union of India &Ors14
wherein, the  petition has sought to
provoke the judiciary to incite new developments in the field of environmental
protection and has nudged the National Green Tribunal to rightfully exercise
its power where  “a substantial question relating to
the environment” is involved. The petitioner can be seen to exercise
fundamental duties of environmental protection as under the law that states, “It shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures.”15 The enforcement
authorities have a few legislations that have attempted to cause some sort of
action on climate change in India. The National Action Plan on Climate Change
(NAPCC) was implemented with a view to act as an ‘umbrella’ to encompass the
existing and expendable legislations. It boasted of 8 core missions that were
cleverly distributed to address or rather adapt to the various environmental
problems. However, a difference in approach may be seen in the 8th
mission. The ‘National mission on strategic knowledge on climate change’ was
ambitious in nature when it constituted a Climate Research Fund and aimed at
global collaborations on research to mitigate climate change associated issues.16 Post Copenhagen, India
has been expedited into limelight with various legislations such as inclusion
of climate change issues into the agenda of India’s 12th Five Year
Plan 2011, National Green Tribunal Act2010, Greenhouse Gas Emissions 2007, and
various others.17

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Climate Litigation, in specific has been addressed under the
National Green Tribunal Act,2010. Climate Change is a product of obnoxious
activities carried by humans, often such activities are undertaken for economic
development and therefore take the defence of natural justice in the context of
a modern society. However, such precedence of growth of a nation to sustainable
development should be avoided. The same natural justice vis a vis sustainable
development, is the very essence of the NGT differently worded as
‘environmental justice’18 The National Green
Tribunal suffers from the shortcomings of being a ‘tribunal’. It has been
vested with powers only under the exhaustive list of seven laws related to
environment- The Water (Prevention and Control of Pollution) Act, 1974;The Water
(Prevention and Control of Pollution) Cess Act, 1977;The Forest (Conservation)
Act, 1980;The Air (Prevention and Control of Pollution) Act, 1981;The
Environment (Protection) Act, 1986;The Public Liability Insurance Act, 1991;
and The Biological Diversity Act, 2002. While the tribunal covers most of the environment
related laws, it has failed to understand that even though biodiversity,
forest, water, air are different elements of the nature, they cannot or should
not be dealt with in separate courts as the cause of action often overlaps.
This lacunae particularly arises due to the nature of words used in the
preamble of the said Act which spells- “effective
and expeditious disposal of cases relating to environmental protection and conservation of forests and other
natural resources including enforcement of any legal right relating
to environment and giving relief and compensation for damages to persons and
property and for matters connected therewith or incidental thereto”. Through a
bare reading of the aforementioned text, it clearly indicates the civil nature
of the suits that the Tribunal intends to entertain. Thus, conveniently pushes
cases under Wildlife Protection Act,2002 outside its purview as seen
in Vasant Krishnaji Vhatkar Vs. Union of India & Ors.19  This may seem as a
matter of oversight as Sec 2 (1)(c) of the said Act defines ‘environment’ to
include ” ..other living creatures, plants, micro-organisms..” Another area for
speculation may be that the entire National Green Tribunal Act,2010 is
declaratory in nature and merely entitles citizens with “right to healthy
environment as a part of right to life under Art.21 of the Constitution”20, therefore such an Act
that is based on an objective to present reduced statistics of cases in higher
courts and not for taking on climate change as a collective responsibility in
its actuality and entirety is highly questionable. This is substantiated by
Sec.2 (1)(g) of the Act 2010 that defines ‘injury’ to be limited to
“disablement or sickness resulting out of an accident” which is construed to
human loss, blatantly ignoring the wider good that essentially, a tribunal, a
litigating body for climate change should exist for.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1
Stanford Encyclopaedia of Philosophy, Aug 8 2005 ( Last accessed on 9/01/2018)

2
Responding to Climate Change, NASA Global Climate Change, https://climate.nasa.gov/solutions/adaptation-mitigation/
, (Last accessed on 9/01/2018)

3 2014 report on
Mitigation of Climate Change from the United Nations Intergovernmental
Panel on Climate Change, page 4

4
Responding to Climate Change, NASA Global Climate Change, https://climate.nasa.gov/solutions/adaptation-mitigation/
, (Last accessed on 9/01/2018)

5
Shibani Gosh, Climate Litigation in India: Gaining traction?, Centre for Policy
Research, Jan 15,2016, https://cprclimateinitiative.wordpress.com

6 Paris
Agreement, United Nations Climate Change, http://unfccc.int/paris_agreement/items/9485.php

7 Shirish
Barve v. Union of India,MANU/GT/0033/2014

8
INDIA CONST. (1950) Art.48-A

9 Shirish
Barve v. Union of India, London School of Economics and Political Science,
Grantham Institute of Research on Climate Change and the Environment, http://www.lse.ac.uk/GranthamInstitute/litigation/shirish-barve-v-union-of-india/

10 INDIA
CONT. (1950) Art.21

11 P. S. R. Sadhanantham vs Arunachalam & Anr, MANU /SC/0083/1980

12 Subhojit
Goswami, Climate change impact on agriculture leads to 1.5 per cent loss in
India’s GDP,  www.downtoearth.org.in , 17May,2017

 

13
INDIA CONST. (1950) Art.47

14 www.greentribunal.gove.in 228/2017
Ongoing

15
INDIA CONST. (1950) Art. 51-A (g)

16
National Action Plan on Climate Change 2008, Ministry of Environment and
Forest, http://www.moef.nic.in/modules/about-the-ministry/CCD/NAP_E.pdf

17Dr. Shravan Kumar Saini, Climate Change and
Environmental Laws in India,

 International Conference on Latest Trends in
Food, Biological & Ecological Sciences (ICLTFBE’14) July 15-16, 2014 Phuket
(Thailand), Pg.37

18
National Green Tribunal, Ministry of Environment, Forest and Climate Change, http://www.moef.nic.in/rules-regulations/national-green-tribunal-ngt

19  Vasant Krishnaji
Vhatkar Vs. Union of India & Ors. MANU/GT/0011/2014

20
National Green Tribunal Act,2010 , Publishes in The Gazette of India, June 2
,2010 , www.greentribunal.gov.in

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