Climate Change Brings New Legal Challenges, Courts Must Address Them Through Creative Interpretation Of Law : Justice BV Nagarathna

While delivering a lecture at the Maharashtra National Law University, Justice BV Nagarathna of the Supreme Court recently expressed that climate change gives rise to several new legal challenges, which the Court must be alive to and address with creative interpretation of existing laws.

"Climate change poses several challenges not just to a stable environment, but also to human life. The right to health (which is a part of the right to life under Article 21) is impacted due to factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding...recently, this Court in MK Ranjitsinh vs. Union of India held that the people of India have a right against adverse effects of climate change. It is also possible that this observation will hopefully empower the High Courts and the National Green Tribunal to take this right into consideration while arriving at an outcome in cases before them."

The observation came while the judge was delivering the 4th GL Sanghi Memorial Lecture at the law school on 26th October 2024, instituted in the memory of Shri GL Sanghi, Senior Advocate, Supreme Court. The theme of the lecture was “Environmental Justice and Climate Change”.

At the outset, Justice Nagarathna underlined that the Constitution was amended in 1976 to introduce Articles 48A and 51A to the Directive Principles of State Policy (under Part IV) and Fundamental Duties (under Part IVA) that obligate both the State and the citizens to protect and improve the environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures.

Thereafter, the judge took the audience through a plethora of decisions which built and strengthened the environmental law framework, such as MC Mehta v. Union of India and Subhash Kumar v. State of Bihar (where the right to live in a pollution free environment was recognized under Article 21), TN Godavarman v. Union of India (which expanded the definition of 'forest land' under the Forest Conservation Act, 1980) and MK Ranjitsinh v. Union of India (where a right against adverse effects of climate change was suggested).

Addressing the environmental cost of development, Justice Nagarathna said that Constitutional Courts have a responsibility to ensure that any development proposal by the Executive causes as minimal suffering as possible. If constitutional conscience is followed, we have to shift from an anthropocentric approach to an eco-centric approach to environmental issues, the judge stressed.

Justice Nagarathna further emphasized that environmental justice should not be seen in isolation. Rather, it must be seen as part of a broader framework of justice. In this regard, it was explained that human and environmental concerns must be dealt with simultaneously, instead of harboring a perception of dichotomy between the two.

Environment and large scale projects

Indisputably, developmental projects have often required cutting down of vast expanses of trees. On this, Justice Nagarathna expressed that the loss that follows (including in terms of slowing down the impact of climate change) cannot be countenanced in any manner, regardless of compensations contemplated in law.

"it may be necessary for the law to mandate climate change impact assessment...Attribution studies are now being used to link human activities to observed changes in the climate system and corresponding impacts on natural and earth systems...it is necessary that judges and advocates are trained to handle and be familiar with such reports", the judge said.

Environment and the individual

Justice Nagarathna further expressed that law alone is not enough to protect the environment and/or to deal with climate change. It begins at the level of the individual as well. "We must be mindful of how our actions affect others and our surrounding. It is only when our thoughts are pure that our actions cause minimal suffering to others. That is the essence of the fundamental duty enshrined in Article 51A(g) of the Constitution", the judge said.

Referring to Articles 48A and 51A(g), Justice Nagarathna remarked that citizens have an extra fundamental duty to have compassion for living creatures, which is to be understood through the constitutional scheme enshrined in the Preamble to the Constitution.

Environment and institutional authorities

The judge further called for recognition of fundamental rights enshrined in the Constitution as rights creating demands on institutions to ensure that they are exercised well.

"we have a right to live in a clean and healthy environment. The corollary to this right is that the institution which maintains such environment, such as the Municipality or the Municipal Corporation and State Governments, are bound to act in such a way that this right is protected".

It was underlined that the institutions in place to protect such rights must be adequately equipped. Also, the government cannot wash its hands off by saying there are enough regulations in place when, in spirit and in implementation, they do not promote environmental justice.

Adverting to the concept of compensatory afforestation, Justice Nagarathna highlighted that between 2017 and 2022, total CAMPA funds received and transferred to states were around Rs.57,325 crores. However, nearly 38,698 crores were unutilized.

"This huge amount of money collected makes me feel as if laws in place to conserve forests are reduced to mere procedures instead of promoting development! I hope this is not true. When laws are enacted in furtherance of a constitutional duty, it is necessary that those laws are implemented keeping in mind those duties", the judge said.

There is nothing 'natural' about disasters

Notably, Justice Nagarathna also voiced an opinion that there is nothing 'natural' about natural disasters. Rather, disasters occur because we humans have designed our living spaces without regard to their interaction with the environment.

The judge implied that humans indulge in a process of 'othering', where they distinguish themselves from the cause of disasters (that is, they themselves): "Despite humans to blame, we term such disasters as 'natural' disasters and shift the blame on nature, thereby 'othering' it."

A case for declaring some areas inviolable

Further, the judge indicated that areas such as biologically significant areas (BSAs), Heritage sites (HS), Bio-Corridors (BC) and Eco-Sensitive Zones, are seminal in harboring biodiversity, regulating local environment and contributing to reduction of the acceleration of climate change through carbon sequestration.

As such, governments should ensure that ecosystem of such areas is given paramount consideration, before meddling. In support of her view, she gave the example of tiger safaris being promoted in tiger reserves and wildlife sanctuaries, which give rise to a risk of disrupting the natural life of the wildlife animals.