DEBATING A CLIMATE CHANGE LEGISLATION FOR INDIA: HUMAN RIGHTS AND ENFORCEMENT

Introduction

The identification of the ever-growing threats ensuing from climate change has paved the way for several developments vis-à-vis international and national legal frameworks. In particular, India has worked towards climate change adaptation and mitigation over the past several years and has become a popular developing country in its realm. Climate change policy itself covers a wide range of areas within environmental parameters, and in India, climate change policies generally cover an array of climate influencing parameters including, but not limited to, types of energy, environmental pollution, forestry, and disaster management.

India has ratified or committed to several important international conventions and climate change policies, including the Paris Agreement, the Kyoto Protocol, the 2030 Agenda for Sustainable Development, and is seemingly in due course to implement the 2030 Agenda of which climate change addressal is a fundamental tenet. It has since National Mining Policy, 2019 and Nationally Determined Contributions (NDCs as under the Paris Agreement), further highlighting and enhancing older legislations and policies including National Action Plan on Climate Change (2008), the Environment (Protection) Act 1986, The Forest Conservation Act and more. Though many of these policies are climate-related, the one key element absent from Indian policy is a comprehensive national legislation on climate change action concerning adaptation and mitigation, outlining various goals, accountability and assessment systems, and strategies for combatting climate change. Many have explored the possibility of the same, which is pertinent on the grounds of its implications on environmental conservation and humanitarianism. This article discusses the need and scope for a legislation, in light of the parameters of human rights and enforcement.

India And The Prospects Of A Legislation

As mentioned, India does have several legislations, and other judicial support regarding climate change, and the need for a national legislation is most definitely a contested idea. Those who favour such a legislation keep in mind that India is en route to achieving two of the three targets in the NDCs and shall require legislative attention to achieve the third on carbon sinks, with other experts calling for a mere streamlining of the various separate initiatives and policies. The former contention has been prevalent regarding the addressal of gaps vis-à-vis Greenhouse Gas Emissions (GHG) policy. This is key as India is one of the top five countries vis-à-vis emissions, with the COVID- 19 pandemic creating a further hindrance for India in an important year for the climate change discourse. To enhance mitigation efforts during such times would thus require adequate national and local policies, especially since qualitative reviews show that the existing framework of policies is ‘fragmented’ and ‘incoherent’ even stating that the ‘uncoordinated national policies’ would not be adequate eventually.

Additionally, there is evidenceto suggest that most estimations vis-à-vis India’s contribution regarding energy sources, pollution and global warming would fall under the ‘uncertain’ category, as they are based on assumptions regarding economic growth. Thus, there may be increased challenges and slower advancement than theorised. As of 2020, climate change policy trackers did project that India could achieve its commitments under current policies, but highlighted that such may not be consistent with expectations under the Paris Agreement regarding the restriction of global temperature rise as under 1.5 degrees Celsius. While it is possible to identify laws and legislation which serve as an equivalent to a paramount, all-encompassing legislation on this subject-matter in India (such as the National Action Plan on Climate Change), a flagship policy is yet to be seen. Overall, the idea of a national comprehensive legislation is perhaps well-founded in light of the aforementioned.

The ‘Human Rights’ Factor

The subject of climate change is inextricably tied up with the idea of human rights. Its impact on human life, development, public health and more, makes the intersectionality of and relationship between climate change and human rights principles seemingly key to a conversation on policy. India is no doubt one of the most vulnerable countries in the matter of climate change, primarily regarding its heavy dependence on agriculture and forestry, implying that a slip-up in this arena could create various systemic human rights issues. These include the right to a healthy environment, life, development, food, water and more. In lieu of this, would protecting human rights serve as grounds for state compulsion vis-à-vis climate change adaptation and mitigation? This can be argued as the ideas of anchoring the human rights dimensions in climate change response and integrating human rights into climate change action has been significantly affirmed. . In general, the application of human rights will automatically subject it to a higher standard, and since climate change is clearly a human rights issue, its inclusion in climate change response becomes integral.Additionally, this is an obligation towards future generations as well.

The general role of environmental human rights in addressing climate change intersects with constitutionality in India. One of the major developments has been the constitutional rights relating to the environment, specifically the recognition of rights regarding the legal aspects of climate change which have accrued in India from judicial activism through public interest litigations. There have been monumental cases such as M.C. Mehta v. Union of India[i] addressing the environment, with specific cases of the National Green Tribunal more closely related to climate change, including Pandey v. India[ii] on the adequacy of the climate change mitigation and Laxman v. Union of India[iii] on the subject of carbon emission. Overall, litigation in India has grown and covered the topics of climate change vis-à-vis governmental lack in regulation, governmental decisions with climate change impact, proper implementation of the existing framework, demanding new policies, and governmental defence of policy decisions. The underlying role of human rights in climate litigation is undoubted, but where human rights would play a potential role would be in a specific climate change legislation is another conversation. Perhaps the primary and tangible application of human rights to a legislation would be through creating effective measures and systems for access to information, formal participation of affected communities, and access to justice. It has further been proposed that substantive and procedural measures regarding actionable rights, causation, liability, guidelines for awards and more, may be elaborated upon in such legislations.

Interesting, it has been seen that countries that work towards human development initiatives may not necessarily be working towards climate change adaptation policies. It has further been argued that advancement in climate change policy seems to rely on the extent to which government leadership and allied agencies prioritise climate change. With respect to India, such leadership efforts have been increasingly recognised in this realm, implying that the requirement then consists of accommodating the human rights dimension in policy. Human rights, therefore, is not only an adjacent concern, but one that applies to and calls for a more effective policy and legislation in India.

The Issue Of Enforcement

India has most certainly picked up momentum in climate law policy, with general credit to the prioritization of agriculture, forestry and other key sectors that may be overlooked in some cases. However, a general issue among current national policies regarding adaptation is the absence of emphasis on local enforcement measures. For example, Indian laws regarding flood disaster management are catered towards the definitional aspects of the central government. The substantial role of climate change overall is hardly recognised in such policies, further constrained by the fact that local authorities are not a focus of the same. India, back in 2009, proposed the drafting of individual ‘State Action Plan on Climate Change’, which was followed through by 2014. However, since then, there have been several issues vis-à-vis this model, from a lack of budgetary needs and institutional infrastructure to political motivations and misconstruing the measures of adaptation.

In 2019, the Ministry of Environment, Forests and Climate Change put forth guidelines to revise the state plans. However, the COVID-19 pandemic might once again force states to reconsider the same since addressing the effects of the pandemic are more important at a local level in such matters. Local responsibility has been advocated for on the grounds of public health issues relating to climate change. It could be argued that a lack of development regarding local enforcement may, in the future, incrementally culminate into a large-scale inefficiency in climate change mitigation and adaptation. A national climate change legislation could aid mainstreaming, help emphasize the key elements missed out and define local enforcement mechanisms, further providing guidance and encouragement to consciously and actively pursue the state plans underway.

Conclusion

Climate change policy and addressal is a clear priority for India, as it moves closer to the 2030 Agenda. The debate on whether a comprehensive national legislation is required for the same highlight three crucial findings on general prospects, accounting for human rights, and prioritizing enforcement. Firstly, analysing India’s current policies unveil that the prospects of a national legislation are favourable. Secondly, human rights play a central role in climate change litigation and legislation and would be an integral basis for and aspect of a legislation. Thirdly, that the issues in effective local enforcement could be tackled by such a legislation. Ultimately, the debate on the need for a national, all-encompassing legislation on climate change for India seems to end affirmatively.

[i] M.C. Mehta v. Union of India and Others, (2002) 2 SCR 963. [ii] Ridhima Pandey v. Union of India, (2019) Application No. 187/2017. [iii] Hanuman Laxman Aroskar v. Union of India, (2020) Civil Appeal No. 12251 of 2018; M.A. No. 965 of 2019.

Title Image: Power Engineering International


This article has been written by Megha Sharma. Megha is a third-year B.B.A. LL.B. Student at O.P. Jindal Global University.