South Asia Jurist Volume 02 | Page 11

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India’s argument for differentiated responsibility towards the emission of GHG is bolstered by some strong and legitimate arguments. Regardless of the lack of obligations for India towards the emission of GHG and its desire to have a robust and strong economy, there is tangible evidence of socio-legal impact of climate change for ordinary Indians.

India’s approach to domestic issues regarding climate change has been fragmented at best. There is a lack of policy and legislation regarding climate change in India and it is only through legislation for energy, forest, environment and other related areas that climate change has been indirectly addressed.

In the absence of legislative and executive action, questions have been raised regarding the possible judicial activism of the Indian Courts. The Indian Judiciary is considered to be one of the most powerful judicial branches. For instance a claim for protection of public interest can be sough through Public-Interest Litigation (PIL) by any citizen and the court shall not strictly apply the rule of locus standi (where the claimant has to show some form of harm). Furthermore, on certain occasions the Judiciary has issued a writ of mandamus on the Government directing them to carry out otherwise discretionary functions and duties.

There have already been instances of farmers having to abandon their agricultural lands due to rising water levels in West Bengal and other instances of farmer suicide in the Vidharbha region due to successive droughts. These events are tangible evidence that climate change is affecting the right to life and livelihood for many Indians. The Indian judiciary through judicial interpretation has shown that such instances can be construed as an illegal deprivation of life (protected by Article 21 of the Indian Constitution) by the state in a horizontal manner. The certainty of litigation based on climate change and the ‘right to life’ seems eminent. Given the habitual tardiness of the Indian judicial system and the lack of legislation in for climate change, it does seem that a vacuum currently exists for the protection of the ‘right to life’ from the effects of global climate change.

In the recent past due to severe international pressure, India voluntarily announced that it would reduce its emission intensity by a degree of 20% to 25% by end of the current decade. Also worth mentioning is the National Action Plan on Climate Change released by the Prime Minister’s Office. Whilst the plan does emphasize on the need to focus on the developmental aspects of India, it provides a broad framework for issues related to climate change at the domestic level. Regardless of the initiatives taken by the executive, the lack of domestic legislation and the absence of an international obligation does limit the protection afforded to people affected directly by climate change. It is safe to conclude that India is currently caught between the Scylla and Charybdis of two opposing objectives of development and climate change.

Domestic Implications

By Srinjoy Sarkar