India

While there have been cases where parties have raised and courts have referred to climate concerns, the only case that had climate concerns at its core – Ridhima Pandey v Union of India – has been rejected by the National Green Tribunal (NGT), without assessment of the applicant’s claims. An appeal against this decision is pending before the Supreme Court (SC). A reason for the absence of more specific climate cases could be attributable to the fact that there are many other – in the “mainstream” societal perception more apparent and urgent – environmental issues which are brought to the courts more frequently. In such cases, climate issues are often raised as only one of various issues.

Indian courts have adopted fairly liberal rules of standing in environmental cases. Even if individuals are not directly affected by the environmental harm, they can still claim standing before the courts.

Indian courts are usually reluctant to review national policies. In BALCO Employees’ Union (Regd.) v Union of India & Ors, the SC stressed that the legality of the policy, rather than the wisdom of soundness of the policy, is the subject of judicial review. However, in practice, an individual could potentially bring a case challenging a national climate policy, if the policy impacts the environment significantly and violates fundamental rights (Sachidananda Pandey v State of WB). In judgements from various High Courts in India, judicial review has been exercised in relation to State policies, e.g., noting that the ‘adverse effects of environmental pollution are now felt, […] like global warming’ and that ‘the warnings of global warming have deserved scant attention’ (Swami Parmanand Bhatta Company v Union of India, para. 10, and Outdoors Communication v PWD and Municipal Corporation of Delhi, para. 4). India’s Nationally Determined Contribution (NDC) under the Paris Agreement has been mentioned in one decision of the SC (Hanuman Laxman Aroskar v Union of India); however, the issue of its justiciability was not discussed. 

With respect to grounds, the NGT must apply the principles of sustainable development (recognised by the SC in M.C. Mehta v Union of India – Taj Trapezium case), the precautionary principle (recognised by the SC in Vellore Citizens Welfare Forum v Union of India), polluter pays (discussed by the SC in Indian Council for Enviro-legal Action v Union of India), and no-fault liability when deciding a case. These principles have been incorporated into Indian law by the SC, similar to the principle of inter-generation equity (State of Himachal Pradesh v Ganesh Wood Products), and the notion of the State being trustee of all-natural resources (M.C. Mehta v Kamal Nath and Ors). The SC has held that the legal position regarding applicability of the precautionary and polluter-pays principles, which are part of the concept of sustainable development, is now well settled in India (Research Foundation for Science Technology & National Resource Policy v Union of India and Anr) and in this regard, requires these principles to be ‘applied in full force for protecting the natural resources of this country’ (Intellectuals Forum v State of A.P).

Furthermore, the Constitution contains Directive Principles of State Policy, which could be used as future grounds. These include duties to raise standards of living and improve public health (Art. 47), to protect the environment and safeguard forests and wildlife (Art. 48A), and to foster respect for international law (Art. 51 and SC in Vishaka v State of Rajasthan). While these principles are not directly enforceable by courts, the SC has held that they must be read harmoniously with the fundamental rights enumerated in the Constitution (Minerva Mills v Union of India). Courts have often read the right to life and liberty (Art. 21) and the duty to protect the environment (Art. 48A, Art. 51A (g)) together when determining an environmental right or establishing that such a constitutional right has been violated (MC Mehta v Union of India – Badkal lake and Surajkund case). The SC has also interpreted Art. 21 liberally to include unregulated rights i.e., the right to a wholesome environment and more precisely, the right to enjoy pollution free water and air.

Various human rights in Indian law, in particular, the right to life, the right to live with human dignity, the right to food, the right to health, the rights to pollution-free and clean environment, the right to livelihood, and the right to development, could also form prospective grounds. The principle of inter-generational equity (State of Himachal Pradesh v Ganesh Wood Products), in combination with these rights, also provides a basis for potential litigation.

The SC and High Courts may be approached under the writ jurisdiction (Art. 32 and Art. 226 of the Constitution respectively). For instance, the parties may petition for a writ of mandamus directing the government to take certain ‘climate friendly’ policy decisions (Manushi Sangathan Delhi v Govt. of Delhi and Ors); or take into account climate related considerations in its decision-making processes. Cases may also be filed in the NGT under Section 14 of the NGT Act – claiming that government policies raise a substantial question relating to the environment.