This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the provisions related to climate change in India.

Introduction

Over the past few years, climate change has become a major issue in India. The threats by climate change are very evident. Global warming is one the major reasons for climate change, India is among the countries which will face serious consequences of global warming. It will also impact the economic growth and social development of India. It is the main reason why India is a party to multilateral climate change negotiations which are done under the framework of the United Nation Framework Convention on Climate Change.

Due to the rapid increase in industrialisation and urbanisation, climate change in India adds more pressure on socio-economic and ecological systems. So, India has understood the importance of environmental laws. With time, legislations have been made to protect the environment and laws which were made covering the punitive aspect only. The nation realised that there is a need to make changes in the law, so the objective of the legislation has changed from punitive to preventive. 

To deal with the problem of global warming, the Central Government in coordination with the State Government has established environmental laws within the framework of India’s development agenda. 

Effects and factors of climate change

There are a number of factors for climate change in India which are affecting human beings, animals, plants and trees. These factors will likely impact the agriculture, ecosystem and water levels in India. 

• Change in Rainfall patterns since 1950: it has been observed that there is a significant decline in monsoon rainfall and the frequency of heavy rainfalls has also increased. Sudden changes in monsoon could lead to a major crisis and due to heavy floods, larger parts of India could be affected. It is expected that the dry year will be drier and wet years will be wetter. 
• Extreme heat is also a significant factor as India is already experiencing a warm climate.
• Droughts are also a major factor which have major consequences from the past many years. Droughts are the main reason for affecting more than India’s half crops every year and due to that, there is a huge fall in crop production.
• Melting of Glaciers is also one of the causes of climate change and it’s threatening the stability of Indian rivers, especially of Brahmaputra and Ganges. As in India rivers are dependent on the monsoon rainfall and melting of snow from glaciers is subsequently increasing the flow of these rivers which is significantly impacting the irrigation and food that can be produced in these areas where these rivers are situated. 

Climate change has various impacts on the health of human beings in India. There are a number of increasing cases in India where poor people are likely to get affected because of malnutrition and child stunting. There is an impact of climate change on human beings in various ways. 

• Health effects due to food insecurity

There is an increase in rainfalls and temperature which is likely to affect the crops and agriculture in India. Unnecessary rainfalls are the main reason for causing flash floods which are destroying crops every year. This is threatening food security and countries like India where malnutrition is already a major public problem.

• Health effects of rising sea-levels

Due to an increase in sea levels, deaths and injuries due to floods are very common. And, it can cause the availability of freshwater due to the intrusion of saltwater. It causes loss in agriculture and due to that, there is a health effect on nutrition.  

• Health effects of extreme weather events

The number of natural disasters are increasing rapidly and the result of that is killing of people, or it’s making people homeless or injuring them. Extreme weather can cause storms, floods, droughts and thousands of people were killed in these natural disasters which are caused due to climate change and it also has adverse effects on human beings and on the environment. 

• Health effects of retracting glaciers

Due to rise in temperature, snowmelt can occur which will cause the shift in the timing of spring. And excessive melt in snow can cause flash floods. This can affect the availability of freshwater for human use and for other purposes.    

Environment and constitution

Earlier our Constitution of India didn’t contain any specific provisions regarding the environment. But there were certain provisions related to the organisation of agricultural and animal husbandry, improvement in public health, protection of national monuments etc. which shows a connection to the environment.  The Constitution of India under Article 47 states that it is the primary duty of a state to raise the nutrition level, the standard of people living in it and the improvement of public health. It is evident from it that protection and improvement of the environment are included in the improvement of public health because without protecting the environment, public health cannot be assured. 

After the 42nd Amendment to the Constitution of India, the words ecology and environment were added to it under Article 48A and Article 51A(g) for the first time. It was a good step taken by the government to add the duties of the citizens and environmental protection rights to the constitution. In part IV of Constitution, Article 49A was added, which means directive principles of state policy. Under this, the state has given a right under the constitution to protect the environment and to improve it and to safeguard the forest and wildlife of the country.

Fundamental Rights

Fundamental Rights are given in Part III of the Indian Constitution, which means every citizen of India enjoys certain rights, the right to freedom, right to equality, right to adequate conditions of life in an environment. It puts a responsibility to protect and preserve the environment for the present generation and for the future generations as well.

Although Article 21 does not specifically apply to climate, in this Article the Supreme Court and the various High Courts of the country have provided a broader definition of the term “life.” The right to life, according to the courts, requires the right to live in an environment which is congenial to human nature. Therefore, being the primary human right to life means the right to live without the detrimental interference of pollution, environmental destruction and ecological imbalances. Today’s world should be of fundamental legal importance and the subject of current socio-political order.

Consequently, the legal system is required to instil environmentalism, deep ecological principles and eco-centrism to bring about a socio-economic framework that is fair and sustainable. The challenge is very assiduous, however, because scientific and technical advances have eroded the harmony of life.

Directive Principles of State Policy

The State’s responsibility for the protection of the environment was laid down in Article 48-A of our Constitution, which reads as follows: “The State shall strive to preserve and improve the environment and the country’s forests and wildlife.” According to Directive Principles, India’s constitutional commitment to environmentalism aims to preserve the environment and constantly enhance its status. The constitutional obligation assigned to the State to protect and enhance the natural environment is based on the “Public Trust Doctrine.”

By inserting Article 48A in Part IV of the Constitution, which includes the state policy guidelines, the State has been given the statutory mandate to protect and develop the environment and to safeguard the country’s forest and wildlife. Provided that the values set out in Part IV of the Constitution are central in the country’s governance. 

Consequently, it has now become the statutory responsibility of the State to deal with environmental and forestry matters and country wildlife. While the state’s executive and legislative branches enforce the principles of the Directive through policy decisions and relevant legislation, the judicial branch also implements them through judicial activism.

Fundamental Duties

The 42nd constitutional amendment did not restrict the constitutional duty to protect and develop the environment in the hands of the state alone, but also took the responsibility down to citizens level by integrating Article 51A(g) into a newly added section, namely Section IV-A of fundamental duties. Article 51A(g) made it a fundamental obligation not only to conserve and improve the natural environment for all Indian people but also to exhibit respect for all living creatures. 

Another important feature of Articles 48A and 51A(g) is that the state and its people must not only protect but also enhance the environment.  Environmental conservation is a fundamental responsibility of every citizen of this country in accordance with Article 51-A(g) of our Constitution, which reads as follows: ‘Every citizen of India has a responsibility to conserve and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living beings.’

Under Article 48A, the State has a constitutional guide not only to protect but also to improve the environment. The omission or failure to comply with the pointer or the obligation is nothing short of a violation of fundamental law that the State and every person are bound to preserve and uphold. Other constitutional amendments include the two entries 17A Forests and 17B Wildlife Protection.

Constitutional law and policies regarding climate change

The climate change, if unmitigated, shall fall directly and indirectly on the freedoms secured by the Indian Constitution under Article 21. Climate change would impact not only India’s economic development but also, more significantly, the wide spectrum of fundamental rights – life, livelihood and health guaranteed by the Indian Constitution. However, seeking constitutional remedies poses both threats and opportunities. By adding rising climate change into the constitutional dialogue may not only be strategically beneficial, but may also be India’s only viable choice for compensating victims for their loss and, more importantly for deterring continuing Greenhouse Gas (GHG) emissions in India. The presence of serious risks of climate-related violations should be necessary to seek writ jurisdiction of the Court under Article 32. 

Environmental area regulation started with land-related legislation during the colonial era and now encompasses the broad legislation in areas such as water, air, landscape, wildlife and the Environmental (Protection) Act 1986. There are certain policies made by the government for climate change in India, to protect the environment. The policies are to be discussed below:

National Policies

India has a range of national policies governing environmental protection in addition to the Constitutional mandate, including the National Policy on Pollution Abatement, 1992 and the National Conservation Strategy and Policy Statement on Environment and Development, 1992. The National Policy on Pollution Abatement,1992 promotes the use of economic instruments as an addition to conventional emissions prevention and control strategies. The policy adopts the following guiding principles for incorporating environmental factors into decision-making at all levels:

• Polluter pays principle;
• Prevention of pollution at source;
• Public participation in decision making;
• To adopt the best technology which is available.

                     

National Environmental Policy, 2006

This policy outlines the core elements of India’s climate change response which include adherence to the concept of mutual yet distinct obligation of different countries, recognition of India’s main vulnerabilities to climate change, in particular, impact on water supplies, forests, coastal areas, agriculture and health, assessing the need to adapt to climate change and encouraging Indian industry to participate in the Clean Development Mechanism. Environmental protection legislation is often focused on the understanding that the conditions to avoid harm to the environment, which is common property, need to be upheld.

Legal provisions in other legislations

Environmental security and economic growth are dichotomised by industrialization. A potential solution in the context of sustainable development is conceived between the two. It aims at economic development without harming the environment or tilting the ecological balance. This is of particular concern to a developing country such as India. While the protection and conservation of the environment, along with policies regulating economic development, has become the priority of legal thought in this millennium, there are approximately two hundred laws dealing with environmental security in India, both before and after independence. 

Environmental statutes shall be regarded as ‘beneficial’ legislation enacted to promote the principles of state policy laid down in Article 48A of the Constitution of India. Being lawful, it is the court’s responsibility to pursue an interpretation that favours ecological preservation.

1. The Forest Conservation Act, 1980

The Central Government, shocked at India’s rapid deforestation and the subsequent environmental degradation, enacted the Forest (Conservation) Act in 1980.  The aim of this Act was to protect and preserve forests. The Act limits the state’s powers to de-reserve forests and exploits forests for non-forest purposes. As amended in 1988, the law requires the Central Government’s approval before a reserved forest state uses forest land for non-forest purposes, assigns forest land to a private individual or company, or clears forestland for reforestation purposes. The centre is advised on these approvals by an advisory committee formed under the Act.

Even the state governments and any other authority is prohibited from de-reserving a forest that is already reserved. It forbids the use of forestland for non-forest purposes, except with prior central government approval. This Act was introduced to avoid deforestation, resulting in ecological imbalances and degradation of the ecosystem resulting in global warming.

2. The Air Prevention and Control of Pollution Act, 1981

The framework of the Air Act is similar to that which was established by its predecessor, the 1974 Water Act. In order to allow an integrated approach to environmental issues, the Air Prevention and Control of Pollution Act, 1981 expanded the authority of the central and state boards established under the Water Act to include air pollution control and states that do not have water pollution boards were required to create air pollution boards. 

The aim of this Act is to provide for the prevention, control and reduction of air pollution, for the establishment of boards with a view to fulfil the aforementioned purposes, for the conferral and assignment of powers and duties relating to them to such boards, and for matters relating to them. Increase in air pollution leads to global warming, and the major sources of air pollution are industrial emissions from thermal power plants, cement plants, petroleum refineries and chemical factories, vehicle exhaust, household burning of fossil fuels and other carbonate and natural causes such as dust storms and forest fires, etc.

For this purpose, Chapter IV of the Air Act 1981 provides for measures to prevent and control air pollution in order to minimize air pollution and combat the warning of global warming from Sections 19 to 31 A.

3. The Environment Protection Act, 1986

This Act was enacted in the wake of the 1984 Bhopal Gas tragedy which claimed more than 3000 lives. The Environment Protection Act is an umbrella designed to provide a mechanism for the coordination of the activities of various central and state authorities established under previous legislation, such as the Water Act and the Air Act, by the Central Government. It is also enabling legislation that articulates a key legislative policy on environmental protection and delegates wide powers to the executive.

Under this Act, the Central Government shall be empowered to take the required steps to protect and improve the quality of the environment by setting emission and discharge standards; controlling the position of industries; managing hazardous waste and maintaining public health and welfare. Environmental pollution means the presence of any pollutant from the environment, described as any solid, liquid or gaseous material present in such a concentration as may or may be harmful to the atmosphere. 

Section 3(1) of the Environment Protection Act empowers the Center to take all steps that it considers necessary or expedient in order to protect and enhance the quality of the atmosphere and to avoid, monitor and minimize contamination of the water.

Section 7 of the Environment Protection Act forbids the release or emission of contaminants from the atmosphere above the specified requirements. To enforce this provision, the Government has drawn up the Environment (Protection) Rules of 1986 (EPR).

This Act also provides for the Ecomark Program, in which a system for marking environmentally friendly goods was introduced in 1991 by the Department of Climate, Forests and Wildlife. The aims of the scheme are to enable manufacturers to implement environmentally friendly goods, to reward genuine measures aimed at mitigating adverse environmental impacts and to help consumers become aware.

The Central government issues notices under the EPA from time to time for the protection of environmentally sensitive areas.

4. The Factories Act, 1948

The main objective of this The Factories Act, 1948 was to ensure the welfare of workers not only in their working conditions in the factories but also in their employee benefits. The Act contributes to environmental conservation while maintaining the safety and health of staff. This Act stipulates that the liquid effluents, gasses and fumes formed during a manufacturing process should be treated before their final disposal to mitigate adverse effects.

The Act provides a detailed list of 29 categories of industries involving hazardous processes, defined as a process or operation in which, unless careful care is taken, the raw materials used therein or the intermediate or finished goods, by-products, waste or effluent will be, cause of material disability of the individuals engaged in health result in the contamination of the general environment but since the 1987 amendment as a post-independence law has shown clear consideration of the environment. 

Shortly after the decision of the Supreme Court in Shriram Gas Leak Case and the experience of Bhopal Tragedy, the amendment to the Factories Act of 1987 added special regulations relating to dangerous industrial practices. 

5. The Companies Act, 2013

This Companies Act, 2013 Act made it compulsory for corporations to spend 2 percent of their income on Corporate Social Responsibility, ensuring tougher standards and providing new incentives for company investment on environmental and renewable energy matters. It is advised that companies offer priority to Company Social Responsibility (CSR) activities which are better aligned with the sector. It allows companies with a net worth of Rs 500 crore or more or a Rs 1,000 crore turnover or a net profit of 5 crores to spend 2 percent of net profit on Corporate Social Responsibility activities. A schedule in the rules lists different tasks that can be performed by companies as Corporate Social Responsibility. It states that Companies should take steps to control and prevent pollution; recycle, manage and minimize waste; manage natural resources sustainably and ensure the best use of resources such as land and water. Addressing climate change issues by introducing sustainable manufacturing processes, encouraging the effective use of environmentally friendly energy technologies.

As a result, India is one of the first countries in the world to mandate social welfare spending as part of the corporate activity by law. The Climate Group believes that this new provision would promote the creation of a more sustainable environment to address some of the most pressing economic, social and environmental issues facing Indian society.

Indian network for climate change assessment

The government has also taken steps to improve institutional-level capacity to undertake work on climate change science and to make appropriate assessments. The Ministry has already formed a network, called the Indian Climate Change Assessment Network, consisting of 127 research institutions tasked with conducting research on climate change science and its impacts on different economic sectors across different regions of India. It has aided the Ministry in compiling its greenhouse Gas (GHG) Pollution Inventories and in carrying out more regular scientific evaluations at intervals. 

State action plans on climate change

State governments are also planning State Action Plans on Climate Change under the advice of the Central Government to build institutional capacity and introduce sectoral activities to tackle climate change. It will change the distribution and quality of India’s natural resources and adversely affect its people’s livelihoods. An economy like India which is closely linked to its natural resource base and climate-sensitive sectors such as agriculture, water and forestry, India is facing a major challenge due to climate change predictions.

India’s direction of development is focused on its unique resources, the overarching goal of economic and social growth and the eradication of poverty, and its adherence to its legacy of civilization, which places great importance on the environment and the preservation of the ecological balance. 

The Ministry of Environment and Forests of India (MoEF) has asked all Indian states to establish action plans to identify how they expect to carry out climate change adaptation and mitigation activities and programs. These State Action Plans on Climate Change should be consistent with National Action Plans on Climate Change objectives and ensure their implementation at the state level.

                    

Landmark judgements

1. In the case, Virender Gaur v. State of Haryana, the Hon’ble Court noted that Article 21 guarantees a fundamental right to life. The enjoyment of life and its achievement, including the right to live with human dignity, requires environmental protection and sustainability, ecological harmony and freedom from air and water pollution, sanitation without which life can not be enjoyed. Any contract or action that would cause pollution of the environment, ecology, air, water, pollution, etc., should be considered as infringing Article 21. A hygienic environment is also an integral facet of the right to a decent life and without a fair and clean climate, it would be difficult to live with human dignity. Therefore, environmental conservation has now become a matter of significant concern for human life. Promoting the conservation of the environment means protecting the ecosystem as a whole. Consequently, the State Government and the municipalities have a constitutional imperative not only to ensure and safeguard a healthy environment but also to take appropriate steps to encourage, preserve and improve man-made and natural ecosystems.
2. In the case, M.C.Mehta v. Union of India the Supreme Court directed the display and distribution of environmental messages and media information, and the inclusion of the environment as a compulsory topic in schools and universities. The Court gave specific guidance on the compulsory screening of slides and films in cinema halls and the streaming of radio and television programmes. The UGC had been told to recommend environmental courses in the syllabi of the universities. The Boards of State Governments were directed to take urgent measures to integrate the environment into the school curriculum. In order to ensure full compliance with its directives, rebellious states have been required to enforce them strictly under the control of the state authorities.
3.  In the case, Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors. the Court referred to the effect of global warming on the sea level and stressed the need to protect ecologically sensitive and significant areas, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, coral/coral reefs, areas close to fish breeding and spawning grounds and other marine life, areas of outstanding natural beauty, historical heritage areas, areas rich in genetic diversity, areas likely to be flooded due to rising sea levels due to global warming, and other areas that may be declared by the Central Government or the authorities concerned at State / Union Territory level from time to time.
4. In the case, Industrial Areas Development Board v. Sri. C Kenchappa and Ors. the Court reversed the appellant ‘s order by the Karnataka High Court to leave one kilometre of land as a buffer zone to preserve an ‘open area’ around a village ‘s periphery. In this case, the judiciary has made specific mention of the whole world facing a serious problem of environmental degradation due to unruly developments and industrialisation, the burning of fossil fuels and massive deforestation leading to environmental degradation which leads to global warming.
5. In this case, M.C.Mehta v. Union of India a PIL was filed to protect Taj Mahal and to take urgent action to avoid Taj Trapezium air pollution. This case is also known as Taj-Trapezium case. Sulfur dioxide emitted by the Mathura Refinery and other industries, when combined with oxygen by means of moisture, forms sulphuric acid called “acid rain” which has a corrosive effect on white marble. The decisions of the Supreme Court were based on reports by various technical experts that air pollutants have a harmful effect on the Taj and the people living in the TTZ. The Court noted that the “precautionary principle” requires environmental measures to anticipate, prevent and address the causes of the operation that are detrimental to the environment. The UP Government has been directed to provide assistance and incentives to industries in the process of relocation, while workers are entitled to certain rights and benefits.  

Conclusion      

Global warming is one of the serious issues in India and threats due to climate change are very evident. It is a major challenge for developing countries like India. The impact of climate change is affecting human beings, animals and the environment. Climate change has an adverse impact on the health of human beings such as Health effects due to food security, vector-borne diseases, other health effects, health effects of rising sea-levels, health effects of retracting glaciers, health effects of extreme weather events, extreme temperatures. Climate change will seriously affect their crops, forests, coastal regions, etc. This, in effect, will affect the achievement of its significant national growth objectives.

Various legislations have been incorporated to combat the menace of climate change. India has very detailed legal and institutional structure mechanisms for responding to enormous environmental threats in the region. India is one of the largest developing countries to the degree that special clauses have been included in the Constitution for the protection of the environment. Indian Network for Climate Change has also been established by the government to deal with the problem. It incorporates its goals and the steps it will take to achieve sustainable development. Overall, India is taking effective measures to curb the menace of climate change in India. 

References

• https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2822161/
• https://eprints.lancs.ac.uk/id/eprint/125076/1/CLIMATE_CHANGE_AND_ITS_IMPACT_ON_INDIA_A_COMMENT.pdf
• https://iclg.com/practice-areas/environment-and-climate-change-laws-and-regulations/india
• https://www.livemint.com/mint-lounge/features/decoding-india-s-climate-future-11574428096985.html

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: