Press Release
Ishita Deb
An intellectually enriching and thought-provoking session on ‘Transforming Climate Litigation’ was conducted by IMPRI, the Centre for Environment, Climate Change and Sustainable Development on 1 September 2024 (Sunday). This talk was a part of the Web Policy Talk series by IMPRI.
The distinguished panel consisted of Mr Ashish Kothari who was the chair and the moderator, Ms Bhargavi S Rao, Ms Shibani Ghosh, Adv Lara Jesani and Ms Tulika Gupta. The commencement of the session began with Swetha, a research intern at IMPRI giving the introduction of the topic and the panel. Mr Ashish Kothari, (Visiting Senior Fellow) the chair opened the panel discussion by sharing his thoughts on the judgement. He highlighted the accuracy of the language used for the judgment, potential flaws in the judgment and the need for the Supreme Court of India to take a balanced judgment.
His emphasis was on the energy transition plans and their expansion, protection of core habitats, and the flaws with the definition of renewable energy resources for energy transition and expansion that includes energy resources that conflict with human rights and climate change such as nuclear and large hydro energy.
While examining the intricacies of the judgment Mr Kothari analysed it based on the challenges that will emerge in increasing the accessibility to the poor and not question the demand side of resources. This requires considering efficient ways of redistribution and striking a balance. Incorporating Mr Kothari’s observations, Ms Bhargavi S Rao enhanced the understanding of the judgment with her insights.
She expressed her concerns about the loss of access to resources by vulnerable groups which can push them into intergenerational poverty, issues with transmission lines and the missing opportunity of an ecocentric approach in the Supreme Court’s judgment. Overall, she conveyed her disappointment with the untapped potential of the judgement.
This was followed by Adv Lara Jesani who appreciated the Supreme Court’s judgment for recognizing the need for it to be a fundamental right to be free from the adverse effects of climate change. However, in her view, the current trend of authorities granting permits to facilitate mega projects and infrastructure development is risky, as many restrictions have been relaxed. The Supreme Court in the judgment failed to shed light on the Great Indian Bustard (GIB) becoming endangered and the plan of action to mitigate the issue.
Furthermore, Ms Shibani Ghosh pointed out the key highlights of the judgment which were laid out on the plans for resilience and adaptation to renewable energy and the inclusion of Article 14 in climate policy. She said that historically there is the relevance of adaptation and resilience plans in India however, not much mitigation which was the main focus of this judgment. Different sections of society are impacted differently, be it a gender issue or a forest community issue.
Thus, there is a lack of balance between having plans that support mitigation and plans that support adaptation and resilience. Moreover, she was disappointed by the fact that there was no future guidance for climate litigation which she supplemented with relevant examples. She gave the example of a thermal company using the claim that it generates power to provide cooling and comfort to the communities against environmental restrictions which sounds fair and logical in case of lack of future guidance.
On the contrary, Ms Tulika Gupta put forward her opinion that the articulation of the judgment by the Supreme Court was inaccurate. With the application of the inversion test, she mentioned that “if we separate the discussion, the obiter of the judgment from the final decision and the outcome is same, then the discussion is not legally binding”.
Thus, according to her the discussion of adverse effects of climate change is part of the discussion portion of the judgment, and the operator part only follows para 63. Therefore, the argument of the ratio and obiter has to be addressed first. highlighted that there are no key tools to address the issue of sustainability and conservation together. There is this problem of the ‘missing how’ for a clear and effective implementation path.
State of Protection for The Great Indian Bustard
Moving on, Mr Ashish put up the question of why this judgment does not protect GIB.
Starting the discussion on the Great Indian Bustard Ms Bhargavi discussed the example of the Karnataka government’s plan for SignCity where large chunks of land were allocated to this project and another 1000 acres of land were allocated to a private entity, Sajitar to develop solar parks which originally were home to GIB and Black Bucks. These species are meant to be protected under Schedule 1 of the Wildlife Protection Act.
Even after the final order was passed to set up the projects only after getting environmental clearance, the majority of the private entities did not abide by the law. Additionally, separate state action plans by the government of Karnataka never came out even after a decade. She emphasized the lack of coordination and consideration of this case by the Supreme Court for this judgment.
Building on the discussion, Adv Lara underlined how the Supreme Court lists the laws, schemes, and policies like Carbon Credit Programmes efficiently; however, she expressed her concerns about the fault lines in the poor implementation of laws, dilution of environmental policy and forest-related laws in the past decade. One major flaw identified by Adv Lara was that the Green Credit program labelled grasslands as wasteland, which allowed for their easier takeover.
Ms Tulika, taking inspiration from the successful plans and policies of Chile and Uganda, said that the ideal potential legislation of India should balance the need for clean energy and the need for environmental conservation. Secondly, they should specify a clear implementation path for this. Further, she said that since Chile is a leading producer of lithium and copper and Uganada has different priorities, their plans will be difficult to implement in the Indian context.
Shibani highlighted that India can’t take a similar route as many developed nations like the UK for example, as the emissions of India are increasing like any other developing country. She wanted to focus on coordination, knowledge sharing, knowledge building, knowledge sharing, strengthening of institutional capacity and formation of sectoral laws at the centre and state levels suitable in the Indian context.
Safeguards Against Corporate Law Violations
The moderator then initiated the discussion on how to ensure that the powerful companies or forces don’t violate the laws.
Adv Lara pointed out that in a bid to enhance the ease of doing business in India, the authorities have relaxed several restrictions which have also led to the dilution of previous environmental policies. Her fundamental concern was regarding the fact that the climate policy cannot be opposed to the environment policy, along with a strong emphasis on the smooth and efficient flow of knowledge. She shed light on the low rejections of environmental clearances, the need to synchronise all the policies and the enhancement of the domestic framework.
Furthermore, Ms Bhargavi mentioned the adaptation issues in the policies as most of the state action plans are top-down approaches ignoring the most vulnerable groups like sex workers, LGBTQ+ etc who usually have to bear the brunt of these changes in policies. This distances them even further from access to housing, clean drinking water, healthcare etc thus this calls for the urgent need to transform the current plans into ground-up plans.
Then, the discussion was about a change in mindset and perspective of balancing habitat conservation with protecting the keystone species and how the suggested plans cannot be urban-focused. Further, the panellists talked about the prime factors to make an inclusive development plan, inclusion of vulnerable groups in city planning and ignorance of socio-political alternatives.
Ms Bhargavi mentioned the NAPCC and its eight missions with the main focus on the solar mission and not on housing or quality water access, and lack of ground-level planning.
Adv Lara went on to highlight the Mumbai Climate Action Plan and how laws on paper lack enforceability. She strongly feels that there is a need for more stringent restrictions, protection against land grabs and the development of climate consciousness among the citizens rather than being fully dependent on the laws.
Then, Ms Tulika spoke about the need for consensus between different stakeholders and philosophical consensus. She specified how some of the crucial laws were passed in the 1970s and 80s way before climate change was considered a threat. Mentioning stats, she explained that India would require a 5% landmark for fulfilling the current needs of energy using solar power and this might lead to a lot of conflicts. So, India should focus much more on environmental integration and to attract investments, we should have a set of frameworks that fits well within the Indian context.
Climate Change and the Role of Communities
The chair then segued the conversation to the role of communities at the grassroots level, the colonial mindset when it comes to conservation and the question of at what step the community should step in for law-making to mitigate the poor implementation of inadequately defined laws.
The panellists discussed the dodging of the Land Acquisition Act (1894) with petty compensations, taking an example from the case of the Chamra area where the powerful forces would allure men with alcohol to take over the vulnerable community member’s land without their family’s consent, the use of violence to snatch land away and the shift away from the Land Acquisition Act by state amendments like in case of Rajasthan, Gujarat etc.
Ms Bhargavi felt that in a bid to support the rise of capitalism, the traditional local knowledge and local power were diminishing. Adv Lara indicated that there has been an increase in the removal of required restrictions for industries like infrastructure, and the participation of the community in lawmaking has also diminished as there is an absence of public consultation in these processes.
Another significant issue is the ease of making amendments without the need for any parliamentary process. There is no mechanism or process to file complaints or grievances to the authorities by the vulnerable communities. Ms Shibani felt that the landmark decisions on environment conservation have always been against the environment which shakes the faith in the judiciary and creates a trust deficit.
Way Forward
The floor was then opened for the audience for questions. The audience suggested a couple of suggestions like conducting orientations for the judiciary and educating them about the science behind the climate crisis. Future laws could include provisions granting affected communities the explicit right to veto projects, empowering them to say ‘no’ to development projects that may harm their environment or livelihoods. Additionally, such legislation should prioritize reducing current energy demands through the adoption of energy-efficient technologies and the exploration of alternative sustainable energy sources.
The panel suggested the need to inculcate nature-related activities in the education curriculum, push for experiential exposure, adopt technology that can help abate the energy demands, increase mass people’s movements and public pressure and the need to institutionalize climate data, incorporate data modelling and include the on-ground data input.
However, India at this moment does not have access to these technologies and resources as pointed out by Ms Tulika. Ms Bhargavi shared an anecdote from Kerala about a student who was denied a loan from the bank because they said that her house (collateral) would submerge in floods. The example set the ground to understand when the livelihoods of people are at stake at such a large scale, the commons cannot be compromised.
Ms Tulika also suggested that this is the best opportunity for persuading the financial institutions to provide insurance to vulnerable communities, use backward induction from here to find the accurate methodology to implement this efficiently and consider the community perspective in policy making.
Lastly, the closing remarks were given by Mr Ashish Kothari with a recommendation for IMPRI to formulate a guidance note on how this judgment could be misused and ways to avoid it, which can be translated into different languages. To conclude the session, Swetha extended a formal note of thanks.
Transforming Climate Litigation
Transforming Climate Litigation
Watch the event at IMPRI #Web Policy Talk
About the Contributor
Ishita Deb is a research intern at IMPRI. She’s currently pursuing her MA in economics from Boston University, USA. She completed her BA in economics from Lady Shri Ram College for Women, Delhi University. Her areas of research interest include macroeconomics and international economics.
