The Genre-Bending of Climate Litigation in India

In a widely acclaimed judgment, India recently saw its first climate ruling issued by the Supreme Court (M.K. Ranjitsinh and Others v. Union of India). The Court derived the right to be free from the adverse effects of climate change from Article 21 and Article 14 of the Constitution. The ruling of the Supreme Court has been classified in this blog as an important step in connecting human rights and climate change. In this blog post, I offer another overarching route that cases connected to climate change in India have taken, which is genre-bending in that they use environmental litigation as the pathway to also address climate change. Rather than being on the periphery of these cases, climate change bridges environmental and climate jurisprudence. This genre-bending does not make these cases incidental but an intentional form of climate litigation whose contribution serves as fertile ground for jurisprudence to develop on the ecological polycrisis.

Intensifying heatwaves and rising authoritarianism

The headlines this past month have been consumed by the impacts of the ongoing heatwave across India and South Asia. The heatwave is accompanied by significant air pollution and a lack of access to water in many Indian cities. The environmental and climate reality of India, like that of other climate-vulnerable countries, is emblematic of the ecological polycrisis, which encompasses biodiversity loss, pollution, water and housing shortages, and climate change.

Another political challenge framing the polycrisis is the global rise of authoritarianism, which can be categorised as anti-green. In India, too, the rise of authoritarianism has been linked to decisions that exacerbate the environmental polycrisis. A recent statement released by more than seventy civil society organizations highlights how the current government has been diluting key environmental laws, such as the Forest Conservation Act,1980.

The climate crisis thus is an element of the larger polycrisis, and litigating the climate crisis requires a more holistic approach that accounts for its connections to other ecological crises. However, climate litigation has emerged globally as a specific genre of litigation that specifically focuses on examining climate harms and developing jurisprudence on mitigation, adaptation, and loss and damage. Within the climate litigation community, there is an artificial separation between broader environmental litigation and climate litigation. While there are examples of existing environmental laws and principles being repurposed for climate impacts, a divide remains between the types of cases and issues addressed by these two genres of litigation. This separation, I argue, risks fragmenting jurisprudence instead of fostering a more holistic approach to the polycrisis.

The Genre-bending of Climate litigation

In M.K. Ranjitsinh and Others v. Union of India, the court begins by examining the plight of the great Indian bustard and documenting the threats the endangered species faces. The court notes that “pollution, climate change, predators and competition with invasive species are among the many threats that exacerbate the challenges faced by these vulnerable species”. In doing so, the court already acknowledges the need to examine this case not purely through the lens of climate change but also in the context of other environmental harms such as pollution.

The extension of the right to life to include the right to be free from adverse effects of climate change is the other side of the coin of the right to a clean and healthy environment. This further solidifies and bridges what forms a spectrum of jurisprudence on the ecological crisis. The linkages between environment and climate are reinforced as the court notes, “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realized.” In some ways, a clean environment is read alongside the need to be protected from climate impacts.

In other cases, like Bombay Environmental Action Group v. State of Maharashtra, the petitioner argued for the conservation of Mangroves as a way to protect the city from sea-level rise, as well as conserving biodiversity using key environmental legislation. In Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa, 2006, a case concerning improper land acquisition prompted the court to reflect on the need for prioritizing environmental concerns as a means of shielding against the adverse impacts of climate change. In a more recent case, The State of Telangana v. Mohd. Abdul Qasim, a case concerning a land conflict and the categorization of forest land was used as an opportunity by the court to incorporate concerns for the rights of nature and climate change. In the judgement, the court notes, “India’s forest and tree cover is serving as a major mode of carbon mitigation for India and the world.”

In Ridhima Pandey V Union of India, too, the case advocates for the enforcement of existing environmental laws as a strategy to better cope with the climate crisis. The petition notes “that there are various environmental legislations and rules/notifications made thereunder existing in India which, if effectively implemented in its true spirit, would aid in tackling the issue of adverse climate change impacts”. The petition specifically emphasizes the enforcement of key forest and biodiversity legislation. Here too, the linkages between environmental law and climate law are neatly established.

These cases, and many more to come, offer a promising route where environmental litigation and existing environmental jurisprudence are used to address the climate crisis in a holistic way. While environmental law and jurisprudence may currently be inadequate to address specific climate-related legal questions, these gaps can be filled with newer legal ideas. However, the risk of artificially separating environment and climate litigation could lead to a fragmented and overly specialized jurisprudence that fails to encompass the complex environment and climate reality shaped by the polycrisis.

Deregulation and the Judiciary 

As mentioned earlier, the current and previous governments have been chipping away at India’s environmental legal framework. In M.K. Ranjitsinh and Others v. Union of India, the case calls for an umbrella legislation that relates to climate change. While there is a legislative gap that has to be filled, the challenge in the current political climate is a larger one of avoiding the deregulation of environmental laws that undergird the legal protections against climate and environmental harm.

The present government has been deregulating environmental laws like the Forest Conservation Act,1980, a primary legislation to conserve the forests. The amendment to dilute the FCA aimed to restrict the definition of forests which previously was broad to include all areas which come within the dictionary meaning of forests. In bringing these amendments to environmental laws, which has included amendments to the Biodiversity Act and Environmental Impact Assessment notifications, it has been done with limited adherence to parliamentary procedure and public participation. The judiciary has had to intervene in these instances too to limit the dismantling of environmental law.

The proposition of new climate legislation as mentioned in M.K. Ranjitsinh can either provide an opportunity to re-examine the legal infrastructure needed for combatting the climate crisis and fill the gaps needed or it may result in more diluted legislation being passed under the guise of climate change. The amendments that dilute the FCA were brought to make the law more appropriate to tackle climate change.

In conclusion, climate litigation in India, and M.K. Ranjitsinh in particular can be seen as bending genres and creating a continuum of jurisprudence that addresses the polycrisis. The question of climate legislation however is a harder one as the track record thus far shows rapid deregulation with the misappropriation of climate change as opposed to strengthening legal protections.