Climate litigation in India has been largely focused on public actors; however, the outcomes in those cases also inform cases against private actors. The National Green Tribunal Act, for instance, does not differentiate between public and private actors in terms of remedies.

Legal action against private actors may be taken where they have violated statutory provisions and infringed a citizen’s right to the environment. Although there is no particular statutory obligation requiring private actors to take actions in specific conformity with India’s NDC targets, it could be argued that major GHG emitters – e.g. thermal power plants – contribute to the ‘environmental consequence’ of climate change, thereby establishing the National Green Tribunal’s jurisdiction on climate claims.

A case where a private actor has been ordered to take mitigation or adaptation measures based on human rights grounds has not yet materialised. Of particular relevance for future litigation are claims against private actors on grounds of inadequate adaptation measures, comparable to the project-specific litigation against public actors.

Cases against private actors may challenge regulatory approval granted to them which does not adequately – or at all – consider climate impacts. Cases may also be filed if conditions laid out in the regulatory approvals – which may be relevant to climate change mitigation or adaptation – have not been complied with.

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. This has allowed individuals to recur to the courts to challenge specific projects that allegedly led to more climate change.

Legal action against public actors in a project-specific context can be based on the public trust doctrine, on rights grounds or statutory duties.

Under the public trust doctrine, which forms part of the Indian legal system, the State has a legal duty to protect natural resources. The SC has quashed a lease deed granting forest land for the construction of a motel, relying upon the public trust doctrine (M.C. Mehta v Kamal Nath and Ors). Concerning another relevant principle, the SC recently made clear that the Environmental Rule of Law seeks to create essential tools to bring structure to the discourse on environmental protection and draw within the fold all stakeholders in formulating strategies to deal with current challenges such as climate change (Himachal Pradesh Bus Stand Management and Development Authority v The Central Empowered Committee and Ors).

Indian human rights jurisprudence has interpreted the right to life to include different specific environmental rights. Examples include the right to enjoyment of pollution free water and air (Subash Kumar v State of Bihar), the right to live in a healthy environment with minimal disturbances to ecological balance (Rural Litigation and Entitlement Kendra v State of Uttar Pradesh), and the right to environmental protection and conservation of natural resources (Intellectuals Forum v State of A.P).

Moreover, claims against the public sector may be made for dereliction of regulatory duties (e.g., failure to stop a polluting industry from operating). The Environment (Protection) Act 1986invests the Government with powers to enact rules and regulations concerning pollution and processes which impact the environment. Individuals could bring a claim against the State if regulatory processes under these rules and regulations do not include climate considerations at different stages, or if relevant considerations concerning sources and impacts of climate change were not taken into account during grant of regulatory approvals. This could be the failure to regulate GHG emissions in view of unacceptable environmental effects and a derogation from India’s commitment to the Paris Agreement (Ratandeep Rangari v State of Maharashtra and Court v State of Himachal Pradesh).

Relevant cases in this regard include a complaint by companies concerning a provision which obliged them to purchase energy from renewable sources, in which the SC upheld the validity of this regulation and recognised the importance of reducing emissions and reducing GHGs (Hindustan Zinc v Rajasthan Electricity). In another case, the NGT quashed a notification of the Delhi Development Authority which aimed at providing housing for the poor, keeping in view the serious impacts this would have on climate change (Mahendra Pandey v Union of India Ors). In Narmada Bacho Andolan v Union of India, the SC – while allowing to continue the construction of a controversial dam – noted as part of their rationale for favouring hydroelectric power that, while global warming has become a major cause of concern and thermal power projects contribute to environmental pollution by using fossil fuels, the specific contribution of the project would be negligible. In another case, the SC has stated that the danger of climate change needs to be averted and that although GHG emissions largely originate from developed countries, India also needs to regulate its electricity sector to protect the environment. (Tamil Nadu Newsprint And Papers Ltd. v Tamil Nadu Electricity Regulatory Commission). Other relevant judicial precedents may be found in the NGT’s decision concerning the submergence of forest land and resulting methane emissions due to a massive irrigation project (Om Dutt Singh v State of Uttar Pradesh), or the SC’s decision concerning impacts of polluting industrial emissions on heritage sites (M.C. Mehta v Union of India – Taj Trapezium case).

A challenge of regulatory approvals could be a statutory appeal in the NGT or a writ of mandamus in the High Court or SC seeking directions against a public actor or seeking to compel the government to execute its legal duties. As a precedent of possible judicial interventions, in Hanuman Laxman Aroskar v Union of India, the SC intervened in the construction of an international airport, stalling all work, and adopting a Zero Carbon Programme for both the construction and operational phase. While the suspension was lifted, a specialised body was appointed to oversee compliance of the directions issued by the Court. The NGT has ordered suspension of a clearance accorded by the Ministry of Environment and Forests for the construction of a hydroelectric power project, in line with the principles of sustainable development and the protection of endangered species (Save Mon Region Federation and Lobsang Choedar v Union of India). Remedies for cases of this kind include compensation for loss of livelihood and loss of property (Srinagar Bandh Aapda Sangharsh Samiti v Alaknanda Hydro Power Co. Ltd).

Concerning adaptation measures, India’s rights jurisprudence also provides potential bases for litigation. While there have been no specific decisions pertaining to the adequacy of climate adaptation measures taken by the government, the SC has struck down a government amendment to the Coastal Regulatory Zone Notification, diluting protection afforded to the coastline. The Court held that the amendments were against the public interest and granted the government unchecked discretion that could result in serious ecological damage (Indian Council for Enviro-legal Action v Union of India). The Court directed the government to complete the coastal planning exercise in a time-bound manner and ensure the enforcement of legal provisions in relation to coastal protection.

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.