Month: Oct 2019

In recent years, carbon dioxide emissions have nearly doubled, sea levels are rising, ice sheets are shrinking and the planet is getting hotter. Whether certain leaders of the world believe in climate change or not, it is something which is undeniably taking place because we can all feel the effects and repercussions of it, be it the shrinking island of Japan or the ever reducing number of animal species. Majority of scientists around the globe have confirmed that human activity is not only an aggravating factor but is also the cause of most of the climate change. In the present times, a situation of urgency has arisen after predictions that the Arctic cover will melt in a few decades. Therefore, it is a vital responsibility for governments as well as the legal systems to ensure prevention and mitigation by all means. 

Unfortunately, in India, environmental laws and rules governing climate change are not only decades old and outdated but they also fail to address the urgency of the situation in which we are today. While there is no scarcity of legislations, ranging from the Environmental (Protection) Act, 1986 to the Water and Air Acts, these rules and regulations majorly fail to be effective. A major reason for their failure is that the boards and authorities established under these acts to work as enforcement agencies lack accountability and implementation. Many a times, giant corporations get away with causing pollution and offences listed in these acts by paying a few fines which are only worth a penny for them. Even though India is a signatory to various environmental resolutions and has also ratified the UN framework convention on Climate Change in 1993 and the Kyoto Protocol in 2002, there has still been very less enforcement considering that it’s a dualist nation. Another major reason is the lack of political will and lack of awareness among the citizens, which in turn fails to create the much needed political pressure. The country’s climate policy is also outdated, as the last one was formulated in 2008, a decade back. The ‘National Action Plan on Climate Change’ which was then formulated has evidently not been successful as most of the goals listed therein have not been achieved, such as the integration of climate laws and reporting of greenhouse gases (GHGs). 

Hence, now the need arises for the courts and tribunals to take all measures for prevention and mitigation, so as to ensure the safety and well-being of citizens. As Justice D.Y. Chandrachud mentioned in his recent speech, there is a need for the courts to devise solutions instead of waiting for the parliament and this is exactly what India needs. It has unquestionably become an issue of fundamental rights of the people and the right to life guaranteed by Article 21 of the constitution, so the tribunals must seek to protect the same. Therefore, in order for the judiciary to eliminate the causes of climate change, there is a requirement of creative interpretation of laws as against a strict and literal interpretation which hinders progress and advancement. Doing this would not only benefit the community but also reiterate the essence and objective behind the legislation. Therefore, there is a dire need to interpret all legislation in an environmentally friendly way while keeping in mind the long-term consequences of such judgments, since it is a common law jurisdiction and precedents also play an important role. 

In order to truly achieve environmental justice, the courts will have to take up an active role in creative interpretation so as to restrain harmful corporate projects and practices and also formulate guidelines through judicial activism. The ‘precautionary’ and ‘polluter pays’ principle along with the ideals of sustainability must always be kept in mind, so as to protect the right to life of future generations as well. It is unfortunate that in the case of Ridhima Pandey v. Union of India [O.A. No. 187/2017], the petition filed in the National Green Tribunal by a nine year old girl alleging inaction on climate change by the government based on the doctrine of public trust on behalf of all children and future generations was recently disposed of as the court believed that “climate change is covered” in existing laws. It must be remembered that based on the doctrine of public trust, the state is the trustee of all natural resources for the benefit of citizens. Furthermore, a severe adoption of absolute and strict liability principles along with correlating the measure of compensation to the size of the enterprise will also have to be adhered to. It is also vital that environmental justice can no longer be limited to environmental cases and tribunals, and must extend to every decision ranging from matters of land like the Aarey forests of Maharashtra to commercial development matters. 

Another aspect which affects interpretation is the polarity between economy and the climate, as unfortunately economic agendas act as powerful hindering forces for environmentally sound decisions. However, it is now high time to think about the future stakeholders considering the fact that a good economy will do no good if most of the population is unable to afford even clean air. 

In conclusion, in order to give way to creative interpretation, there is a need to learn new meanings of old concepts, take up a proactive role with a liberal approach for suo-motu powers and also move towards scientifically driven and sustainable decisions and judgments. If the same does not materialize, then the citizens of this country would not have a future, let alone the future generations to come.