THE CONUNDRUM OF CLIMATE DYSTOPIA AND RIGHT TO HEALTHY ENVIRONMENT

Introduction

The world was all of a sudden introduced to the dangers of Climate change when Greta Thunberg, a 16 year old girl, decided to skip school to go on a strike against climate change [1]. The movement rapidly gained momentum and within a couple of months, more than 20,000 students from across the world had joined Greta in her fight against the mighty. Today, it is an accepted notion that Climate change is a reality that now affects literally every part of our world. In the words of United Nations High Commissioner, “The human implications of the currently projected levels of global heating are catastrophic. Storms are rising and tides could submerge entire island nations and coastal cities. Fires rage through our forests and the ice is melting and we are burning up our future – quite literally”. Christened as the “triple planetary crisis”, it is suffice to say that climate change, pollution and natural loss represent the biggest threat to human rights worldwide [2].

There are no two ways about it that we are on the verge of a cosmic cataclysm. However, one might wonder, what can be the nexus between climate change and human rights? To answer this, at the outset, climate change threatens the very enjoyment of a range of human rights including those relating to life, water, sanitation, food, health, housing, self-determination, culture and development as affirmed by the Intergovernmental Panel for Climate Change [3]. In fact, our failed response to the climate crisis is reflected by the fragility exposed by the Covid-19 virus also. Thus, climate change poses both immediate and overarching threat against the full realization of human rights [4].

Admittedly, the States have a legal as well as a moral obligation to prevent the predictable adverse effects of this occurrence from wrecking havoc across the globe. The Idai and Kenneth cyclones across South Africa, the bushfire in Australia, the deadly floods and landslides in Bangladesh are just the tip of the iceberg in the long-term effects of climate change [5]. Apart from the foresaid infamous calamities, the typhoon Lekima in China, the Hurricane Dorian in United States, the typhoon Hagibis in Japan are some of the repercussions of climate change. In fact, the threat posed by this catastrophe is so stark that Indonesia literally decided to move its capital to a safe surface which was not “sinking” [6]. From this we can infer that if urgent action is not taken, civilization as we know it would no longer exist [7].

International Response to climate change

It would be wrong on our part to assume that there has been no response from the Global community against climate change. At the outset, the Office of the UN High Commissioner for Human Rights has been tirelessly working towards ensuring that the International and National environmental and climate policies are implemented in accordance with the jus cogens principles of International Humanitarian law, the sustainable development goals of 2030 and the Paris Accords on Climate Change which obliges every party to respect, promote and consider their respective human rights obligations when addressing climate change concerns [8].

It can also be said that international response against Climate Started even before the infamous protests hit the new channels. For instance, in 1992, the members of the United Nations gathered at the Rio Conference which resulted in the United Nations Framework Convention on Climate Change [9]. The convention gained momentum by the Kyoto Protocol of 1997 which came into force in 2005 [10]. However, the acceptance of the Protocol was not a smooth process and even today; China, India and United States are hesitant to accept several standards set forth under the Protocol.

Apart from the aforesaid, several International Organizations have raised concern over the devastating impact of climate change, if left unchecked. For instance, the IPCC has observed that “people who are socially, economically, culturally, politically, institutionally, or otherwise marginalized are especially vulnerable to climate change. The Special Rapporteur on extreme poverty and human rights also recently warned about a future of climate apartheid, where the wealthy pay to shield themselves from the worst impacts of climate change while the poor suffer immensely [11].

As the years go by and new records are set for rising temperatures, a number of lawsuits against climate change inaction are also rising sharply across the world. For instance, in 2013, when the Urgenda Foundation sued the Netherland’s Government for its failure to take sufficient action against climate change, the Court ruled in favor of the foundation and since then, this ruling has acted as a precedent for other climate lawsuits across the globe. The Juliana v. United States Lawsuit is yet another instance, albeit with negative results, wherein a group of 21 youngsters filed a suit demanding the Government to reduce the Co2 emissions. Although the case failed owing to lack of legal standing, it sure paved the way for several other similar suits. In the same year, a lawsuit was filed in France for the inclusion of climate change in the constitution [12]. As a welcome change, these Courts have also stressed upon the moral duty of the industrial giants to respect the human rights as enunciated by the UN Guiding Principles on Business and Human Rights while mitigating the effects of climate change.

Climate change: An Indian Perspective

India being one among the top 3 emitters of Co2 is highly susceptible to climate change. In fact, in the words of India’s former Environment Minister, Jairam Ramesh, “no country in the world is as vulnerable, on so many dimensions, to climate change as India”[13]. The lacuna in the national legislation is cited as one of the reason for this threat, howbeit, India has taken several voluntary measures to mitigate the same. It has now become a key player in the international negotiations on mitigating the force of climate change and the Government has also successfully adopted several innovative clean energy regulations and established new ministries for investments in clean energy [14].

The fundamental rights, the Directive Principles of State Policy and the Fundamental Duties explicitly enunciate the national commitment to protect and improve the environment. The judicial wing of India has also been working in full swing towards addressing the issue of environmental degradation and violation of fundamental rights.

The cases of Subhash Kumar v. State of Bihar and Virendra Gaur v. State of Haryana are apt examples wherein, the Supreme Court recognized several liberties that are implied by Article 21, including the right to a healthy environment. In the words of Justice P. Bhagwati, Article 21 of the Constitution embodies a constitutional value of supreme importance in a democratic society. The phrase “life” in Article 21 does not signify mere physical act of breathing or animal existence; it has much wider scope and includes in its ambit the right to human dignity, livelihood, health, environment etc. The Right to life also includes the right of enjoyment of pollution free water and air and if anything impairs that quality of life, a citizen has right to have recourse to Article 32 of the Constitution. Thus, the “right to life” under Article 21 means the right to clean surroundings, which leads to a healthy body and mind. Furthermore, right to life also includes the right to livelihood and climate change which causes disruption of millions of livelihoods threatens the very fabric of the right under Article 21.

The case of MC Mehtaalso pioneered the indigenous jurisprudence of Absolute Liability to compensate the victims of environmental degradation. It is also incumbent to mention the case of Vellore Citizens Welfare Forum as it addressed the issue of environmental degradation from the standpoint of “sustainable development” which is sine qua non for the prevention of climate change. The Supreme Court also laid down that both the Central and the State Government have the duty to implement the “precautionary principle” and the “polluter pay principle” as part of sustainable development goals under Section 3(3) of the Environment (Protection) Act, 1986. Furthermore, in the case of Rural Litigation andEntitlement Kendra, the Court held that under Article 21 of the Constitution, the citizens of the country have a fundamental right to a wholesome, clean and decent environment. The Courts have also decreed that the public at large is the beneficiary of the sea, running waters, air, forests and ecologically fragile lands and the State as a trustee is under a legal duty to protect the natural resources.

Though the aforesaid dictums do not directly touch upon the topic of climate change, it can be said that we are heading in the right direction. Howbeit, connecting human rights and environment would undoubtedly turn out to be a valuable sourcebook that explores the uncharted territory of combating climate crisis[15].

Conclusion

Despite India being vulnerable to climate change, the only concrete action against it is the National Action Plan on Climate Change laid down by the MoEF&CC in 2008. The policy was also given sufficient attention in the 12th five-year plan by the Planning Commission which opined that “climate change concern should permeate all processes of planning in the long term”. India has also submitted Intended Nationally Determined Commitments document to the UNFCCC in 2015 to contribute to the global climate change regime [16]. However, the NAPCC couldn’t materialize properly as the approach adopted by the policy was considered as “too broad and lacking specificities” [17] .

Apart from the aforesaid policy, we are yet to have a comprehensive legislation upon climate justice. Furthermore, Climate change being a relatively modern concept, it finds no mention in either of the three lists under the 7th Schedule and as such, there is no proper authority on the bifurcation of the powers between the Union and the State concerning the climate legislation. Owing to this, several states developed different State Action Plans on Climate Change on the lines of the NAPCC which resulted in lack of uniformity.

Thought India has several environmental laws and the Courts have also opined that climate concerns can judicially be covered under the environmental impact assessments under the Environmental Protection Act, 1986, Climate change is only “incidental and peripheral” in these legislations [18]. Time are changing though, climate consciousness is gradually increasing in India. The pressure from the public has resulted in raft policies in relation to climate change including a few private members Climate Change Bills [19]. India can also take notes from the United Kingdom and establish an independent Statutory Authority to institutionalize the implementation, monitoring and adjudication of the climate change concerns. However, it must be kept in mind that climate change is something above environmental justice; it is about human solidarity. Now, it is left to the wisdom of the legislature to enact human rights centric climate change law.

Urgenda Foundation v. the Kingdom of Netherlands, [2015] HAZA C/09/00456689.

Juliana v. The United States,  947 F.3d 1159 (9th Cir. 2020).

In Re Greenpeace Southeast Asia and Ors., Case No. CHR-NI-2016-0001.

Subhash Kumar v. State of Bihar,AIR 1991 SC 420.

Virendra Gaur v. State of Haryana, (1995) 2 SCC 577.

Francis Coralie Mullin v. the Union Territory of Delhi, AIR 1981 SC 746.

Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.

Subhash Kumar v. State of Bihar,AIR 1991 SC 420.

Milk Men Colony Vikas Samiti v. State Of Rajasthan, (2007) 2 SCC 413.

Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., AIR 1986 SC 180.

MC Mehta v. Union of India, AIR 1987 SC 1086.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2718.

Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh,AIR 1985 S.C. 652.

Sher Singh v. State Of Himachal Pradesh, CWPIL No.15 of 2010.

M. C. Mehta vs. Kamal Nath, (1997) 1 SCC 388.

Ridhima Pandey v. Union of India and Ors., OA No. 187/2017.

Michelle Bachelet, United Nations High Commissioner for Human Rights, 9 September 2019, Opening Statement to the 42nd session of the Human Rights Council.

UN General Assembly, Transforming our world : the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.

 Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

UN General Assembly, United Nations Framework Convention on Climate Change : resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189.

UN General Assembly, Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, FCCC/CP/1997/L.7/Add.1.

IPCC, “Summary for policymakers”, Climate Change 2014: Impacts, Adaptation, and Vulnerability (IPCC, 2014).

Climate change and poverty : report of the Special Rapporteur on Extreme Poverty and Human Rights, Geneva : UN, 17 July 2019, A/HRC/41/39.

UN Human Rights Council, Protect, respect and remedy : a framework for business and human rights : report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, 7 April 2008, A/HRC/8/5.

Article 21, 48-A, 51(A)-g, the Constitution of India, 1950.

Written by – Nimrah Ali (School of Excellence in Law, the Tamilnadu Dr. Ambedkar Law University, ChennaiBCOM LLB (Hons)- Vth Year)