Recent Judgement
The issue before the Court was whether and how electricity transmission lines can be built through the habitat of the critically endangered Great Indian Bustard.
The government claimed that a previous court order protecting the bird’s habitat had affected the country’s renewable energy potential.
Modifying this order, the Court prioritised transmission infrastructure to enable accelerated development of renewable energy to address climate change.
But the more seismic aspect of the judgment was the newly minted ‘climate right’ rooted in the constitutionally guaranteed right to life (Article 21) and right to equality (Article 14).
Reading this right into the Constitution potentially opens the door to climate litigation, empowering citizens to demand from the government that this right be protected.
One way forward is the slow accretion of judicial decisions around this right.
But another is new legislation to actively realise a right against the adverse effects of climate change.
Implications
One way forward is the slow accretion of judicial decisions around this right.
But another is new legislation to actively realise a right against the adverse effects of climate change.
The former approach, the proliferation of court-based action through enhanced litigation around climate claims, will likely lead, slowly and over time, to an incomplete patchwork of (judiciary-led) protections.
As with many other well-meaning judicial orders directing the protection of fundamental rights, realising climate rights could become contingent on the passage of several subsequent policy actions
Is the latter approach, climate legislation, then a preferred approach to protect climate rights?
The judgment itself states that there is no ‘umbrella legislation’ in India that relates to climate change.
And in so doing, seems to implicitly recognise the merits of an overarching, framework legislation
Drawing from the experience of other countries, framework legislation can bring several advantages.
It can set the vision for engaging with climate change across sectors and regions,
create necessary institutions and endow them with powers,
and put in place processes for structured and deliberative governance in anticipation of and reaction to climate change.
But the more seismic aspect of the judgment was the newly minted ‘climate right’ rooted in the constitutionally guaranteed right to life (Article 21) and right to equality (Article 14).
Reading this right into the Constitution potentially opens the door to climate litigation, empowering citizens to demand from the government that this right be protected.
One way forward is the slow accretion of judicial decisions around this right.
But another is new legislation to actively realise a right against the adverse effects of climate change.
Indian context
India needs to transition to a low-carbon energy future, an imperative that is highlighted in the Ranjitsinh judgment.
But this, by itself, is not nearly enough to enforce a right against the adverse effects of climate change.
Climate legislation should also create a supportive regulatory environment for more sustainable cities, buildings, and transport networks.
It should enable adaptation measures such as heat action plans sensitive to local context.
It should provide mechanisms for shifting to more climate-resilient crops.
It should protect key ecosystems such as mangroves that act as a buffer against extreme weather events.
And, it should actively consider questions of social equity in how it achieves these tasks.
In brief, it should provide a way of mainstreaming and internalising climate change considerations into how India develops.
The factor of federalism
Many areas relevant to climate action, from urban policy to agriculture and water fall under the authority of sub-national governments — States or local levels, and electricity also is a concurrent subject.
An Indian climate law must simultaneously set a framework for coherent national action while decentralising sufficiently to empower States and local governments, and enable them with information and finance to take effective action.
Finally, the enabling role should ideally also extend beyond government.
Business, civil society and communities, particularly those on the frontlines of climate impacts, have essential knowledge to bring to energy transition and resilience.
Finding ways of enabling participation in decision making would enable all these sections of society to bring their knowledge to the table in addressing climate change.
An effective Indian climate law based on enabling procedures would also provide opportunities for voice to diverse segments of society
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