BY: Adv Palak Gupta
BSc. L.L.B. L.L.M. (Pursuing)
Advocate Supreme Court of India, Punjab Haryana High Court, Bombay High Court and Delhi High Court
It’s not the story which started today itself in the glimpse of 21st century but, de facto of its origin; the glimpse was found since time immemorial[1] when back to the time of war fares, French revolution, partition riots, emerging of East India Company, freedom fight, independence struggle etc. modifying into and taking the shape of violent turmoil banged the devastation of not only our country, but its resources and its essence, it’s beauty i.e. none other than our nature. May be it’s the call for an extremely dark fate that today, in the era of 21st century, Year 2017 after going across the surprising lessons of Ozone Hole over Antarctica[2], Alas! We are still facing Climate change as a threat to the equity of our environmental laws, essence of our resources and threat to the rising principle of Sustainable Development. Climate Change has emerged in recent times, as an important area of both international as well as domestic policy making and development planning, where the earth’s climate has demonstrably changed on global and regional scales since the pre-industrial era, with some of these changes attributable to human activities. As law students, our basics start from Article 21 of the Indian Constitution taking us a long way to Section 268-294A of Indian Penal Code[3] and Section 133 – 144 of Code of Criminal Procedure[4] where we are endowed with the facts that legal concepts have also earmarked significant provisions under various laws mugging up into the sole compilation of environmental laws whose need has been arrived at because man has been so diligently negligent in exploiting the environment that Government policies and Parliamentary Powers are even engaged in formation of laws. To teach man that clean and healthy environment is not only a part of scientific and healthy living but, a matter of right by the virtue of Article 14, Article 19 and Article 21 as well as, an obligation under Article 51-A of our constitutional provisions supplemented by Directive Principles of State Policies under Article 48-A, many strict policies and awareness campaigns, change in punitive theory of those who violate environmental laws have been made. Undoubtfully, the gist of Environmental Laws has been found in few landmark cases such as M.C. Mehta v. Union of India[5] (Taj Trapezium Case, Oleum Gas Leak Case, Calcutta Tanneries Case), Enviro Legal Action v. Union Of India[6], Vellore’s Citizen’s Case[7], Bhopal Gas Tragedy propounded by ‘ STOCKHOLM CONFERENCE’[8] proving to be a turning point in the environmental legislation. These cases have created history in picturizing that how much evil a man’s activity can be for environment and its principles.
Stockholm Conference; finally led to the birth of green revolution to tackle the problems of Global Warming, Greenhouse effect which have today globalized our country and have lead the generation into massive high temperature issue, diminishing the already fainting lines between seasons of winters and summers in such a manner that today, its unicoloured in yellow. This drastic climate change has targeted to distort our plan of sustainable development[9] by making the resources extinct just like the endangered species of our flora and fauna. Hence, equal rights to resources have become myth now. Precautionary Principle[10] turning to Curative Principle and Polluter Pays Principle[11] manipulated as Pay and Pollute, have lead to man-made disasters of floods, glacier melting, landslides, earthquakes etc. which used to be Natural earlier. But, now the man is hardly working furiously on the words “Forests precede mankind, deserts follow”. Four areas of risks have been identified vis-à-vis (a) Climate Change and Vector Borne Diseases, (b) Aerosols And Respiratory Diseases, (c) UV-A and UV-B and Corneal Damage and Cataract, (d) Environment and Heart Diseases. Following these assessments,task force groups have been constituted such as (a) Vector Borne Diseases and Climate Change (b) Respiratory Diseases and Climatic Pollutants and (c) Eye health and Environments. Most prominent activist who has been rapidly filing P.I.Ls in Courts to tackle the alarming situation of climate change is Mr. M.C. Mehta who tried hard and hard but, latest surveys are again and again challenging company licenses on the grounds of their harmful impact on climate. It has been admitted that global warming, climate change are the problems we are talking of since 10-15 years, still; no worthy outcome has been achieved because in past 30-40 years the temperatures across all over world have risen to 0.75 degrees and a threat to distant future has been claimed as our prominent rivers like Ganga, Yamuna, Brahmputra may die of dryness[12]. A need for environmental courts has also been marked in A.P. Pollution Control Board v. M.V. Nayudu[13] which somewhere emphasized[14] the clear indication of a future embedded in the depths of dark skies and horrible climate. Studies done at Indian Agricultural Research Institute indicate the possibility of loss of 4-5 million tonnes in wheat production with every rise of 1 degree temperature. Probability of yield losses, increasing glacier melting, population dynamics, global temperature increments, droughts, floods, cyclones, temperature extremes, reduction of Indian livestock GDP, water scarcity etc. are the fear causing effects. For the reduction of targeted greenhouse gaseous emissions, a climate change bill was introduced on 7th December 2012 to establish a National Committee providing for carbon budgeting and carbon trading schemes henceforth, reducing carbon emissions encouraging global warming and after effects. The variations in climate change have lead the parliament to pass climate change bills and acts many a times[15]. This is one of the most clear indicating evidences that climate change is becoming an increasing environmental problem converging law into it. We have been again and again confronting IGNORANTIA JURIS NON EXCUSAT i.e. IGNORANCE OF LAW IS OF NO EXCUSE nor is the VIOLATION OF LAW. But, this maxim fails many a times when it comes to obey fundamental duty and law of protecting the environment.
Currently Judicial Activism and its scope towards environmental problems has widened where P.I.L’s have worked somewhere very well in achieving few goals, not fully! But, still as it says – “Something is better than nothing”, we cannot ultimately neglect or deny the fact that active citizen participation has turned out to be a great output even in putting forward the major reasons behind the swings between climate change and natural calamities which have now become man-made. It has been held that the entire scenario has undergone tremendous change due to population explosion which has resulted into major climatic changes[16]. The grey areas of law in case of climate change have been dealt by the courts in Telangana Steel Industries And… v. State Of Andhra Pradesh and Others[17]. It has been discussed that it is not the climate change in India, but, it’s going to be the Climate Variability that is going to affect our presents and future. It would be so because Climate Variability means- somewhere it’s going to be too much rain for short intervals and sometimes, no rain at all for a long time. Climate change and variability is not only with regard to global warming but, it is going to be with regard to agriculture, water availability and public health which will lead to a definite estimation of water scarcity causing cholera, dengue, malaria etc. communicable diseases giving rise to mortality rate.[18]Need for balance between development and preservation of ecology was stressed in Live Oak Resort Pvt. Ltd. v. Panchgani H.S. Municipal Council.[19]
The increasing gist of legal approach has been identified and hence, Planning Commission of India gave forward Climate Change Plan.[20] In July 2011, the Steering Committee on Environment, Forests and Wildlife and Animal Welfare for the twelfth five year plan of Planning Commission formed a sub-group on climate change to outline initiatives for a supplemented Approach towards Climate Change. NAPCC[21] launched in 2008 is a body that is supporting government to tackle the issue of climate change and vulnerability through a process of sustainable development. The strategy under the plan wants to target the vulnerability of large sectors towards climate change. Under this mission, a three-fold strategy has been formulized. First, is – an overall approach towards sustainable development and carbon emission mitigating strategies. Second, is- to build respective adaptation strategy towards specific vulnerable sectors. Last but, not the least, launching of specific schemes in Environment and Forest Sectors by strengthening the scientific assessment capacity, GHG measurement and monitoring, henceforth, achieving environmental protection ultimately through mitigation schemes and techniques. The objectives of NAPCC calls for specific policy initiatives across wide variety of sectors particularly in the areas of agriculture, water, health, coastal management, ecosystems, all energies specially emphasizing renewable energy, infrastructure and climate change assessment. It has been reported and recorded that latest data states that 28 percent of GHG emissions from Agricultural Sector are also to be mitigated under the NAPCC mission. Apart from this, ICAR has launched in February 2011, a network project call NICRA[22] with a view to enhance climate resilience of Indian Agriculture to climate change and climate vulnerability through strategic research and technology demonstration. Furthermore, to deal with water scarcity and other issues, The National Water Policy was adopted in September 1987, which was reviewed and updated in April 2002. It provides for amendments in ISWD[23].
The efforts of India in 21st century are not in vain. India has been a very active participant in international climate change fora. India has made its initial communication on climate change impact assessment and vulnerability to UNFCCC through the project[24]. It has taken the problem of climate change very seriously and formulated the programs of NAPCC and NWM[25]. National Afforestation Programme, Green India Mission are sub- strategies under these missions. Also, policies are designed to afford protection against climate vulnerabilities[26]. India’s first National Commission (2004) had initiated a process of scientific assessment of nature, quantum and spatial occurrence of extreme events to be experiences against the climatic change scenario. The NAPCC mission by planning commission has identified GHG-IMS[27].Many other programmes[28] have also been formulized. As the author has already mentioned that one of the most prominent ways to tackle climate change is Sustainable Development where apart from the Polluter Pays and Precautionary Principles, the most pertinent reason behind these efforts is Inter-Generational Equity[29]. After Rio Declaration and Stockholm Conference, not only India but, other countries of world like Philippines etc. are also working out on the same doctrine. Supreme Court has held that State has a duty of Parens Patriae[30]. Court observed that petitioner’s responsibility to sue on the behalf of succeeding generations is based only and only on intergenerational equity principle and intergenerational responsibility doctrine. The Court said that- “Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put differently the minor’s assertion to their right to sound environment constitutes at the same time, the performance of their obligation to ensure the protection of similar rights for the generations to come. Court further opined that the present generation is a trustee and guardian of the environment for succeeding generations. Or else, the future generations would inherit nothing from us but, parched earth”[31]. Hence, as the title goes, NOW OR NEVER, It is our duty to oblige ourselves with the legal approach which is being made by the law, order and government towards this ever increasing disastrous problem of climate change which needs an equal contribution from us. Because proper implementation comes from the citizens and not the executors.[32]
India has reached far to progress in combating climate change. After the conference of UNFCCC at 19th session in Warsaw held in November 2013, India intended nationally determined agreement under UNFCCC. The decision taken at the conference invited all the parties to initiate or intensify domestic preparations for their INDC[33], without prejudice to legal nature of the contribution[34]. In the context of adopting a protocol, Under Article 2 of the said convention, another legal instrument or agreed outcome with a legal force was made applicable to all parties under the convention to achieve a common objective of combating climate change. The contributions under the convention took into account the imperatives for addressing the challenges of poverty eradication, public health and nutrition, population growth, water, sanitation, food security etc. Another progress has been made due to Prime Minister Mr. Narendra Modi’s Council namely Prime Minister’s Council on Climate Change with a high legal advisory group on climate change was constituted[35] with the three-fold objectives of – (a) Coordinate national action plan for assessment, adaptation and mitigation of climate change, (b) Advise government on pro-active measures that can be taken by our country to deal with the issue of climate change and (c) Facilitate inter-ministerial coordination and guidance policy in the relevant areas. The composition of this council comprises chairperson[36] and other 17 members[37]. Furthermore, Apart from NAPCC as has been discussed earlier, Jawaharlal Nehru National Solar Mission with the objective of establishing India as a global leader in solar energy has adopted a three phase approach. The First Phase System was designed[38]with the objective of focusing on the capturing of low-hanging options in solar thermal; promoting off-grid systems to serve populations without access to commercial energy and modest capacity addition in the grid-based systems. In the Second Phase System and Third Phase System which were designed[39] with the objective of aggressively ramping up the capacity to create conditions for the scaled-up and competitive solar penetration in the country. To achieve the mission by 2022, it will create an enabling policy framework for the deployment of 20K MW of Solar Power, favorable conditions for solar manufacturing capability, particularly solar thermal for indigenous production and market leadership, promote programmes for off-grid applications reaching 2K MW, Achieve 20 Million sq. meters solar thermal collector areas and Deploy 20 million solar lighting systems for rural areas. For promoting energy efficiency in the country and to achieve growth with ecological sustainability by devising cost effective and energy efficient energy, National Mission for Advance Energy Efficiency was devised which focuses on the initiatives of PAT[40], MTEE[41], EEFP[42] and FEED[43]. It was estimated under this mission that by 2015, 23 million tonnes of oil- equivalent per annum of fuel will be saved along with avoided capacity addition of over 19K MW. With the resultant estimation of annual reduction of Carbon – Dioxide emissions around 98.55 million tonnes. To stipulate the growth of Sustainable Development Sector, National Mission on Sustainable Habitat was launched with the objective of promoting sustainability of habitat through improvements in the efficiency of energy in buildings, urban planning, improved management of solid and liquid waste including recycling and power generation, modal shift towards public transport and conservation. To achieve the above mentioned objectives; the mission focused on Extension of the energy conservation building code, which addressed the design of new and large commercial buildings to optimize the energy demand. Also provision for the incentives has been made to retool the existing building stocking. Betterment of urban planning and modal shift to public transport has been achieved by maintaining quality of transportation by making long term transport plans to facilitate the growth of medium and small cities in such a way that ensures efficient and convenient public transport. Sustainable Development is incomplete without opting the 3 R’s i.e. Reduce, Reuse and Recycle. Hence, recycling of material and urban waste management under which a special area of focus has been figured out to be the development of technology for producing power from waste. The mission includes a major R and D program to focus on the bio-chemical conversion, waste water use and sewage utilization along with the recycling option wherever and whenever possible to the extent that the waste products can give worthy output to build nation’s sustainably developing capability of utilizing resources. In Vellore Citizen’s Welfare Forum v. Union of India[44], Supreme Court held that “During the two decades from Stockholm from Rio, Sustainable Development has come to be accepted as a viable concept to eradicate poverty and improve the quality of life while living within the carrying capacity of supporting eco-systems. We have no hesitation in accepting that Sustainable Development is a balancing concept between ecology and development and has also been accepted as an integral part of international law as well.” According to Brundtland report also, Sustainable Development is defined as the development that meets the demand of present generation without compromising with the needs of future generation to meet their own needs. Such missions have been supported under already mentioned main missions of NWM, National Mission for Sustainable Agriculture. Inspiration gathered from NMSA has been utilized in formulating National Mission for Sustaining the Himalayan Ecosystem to evolve management measures for sustaining and safeguarding the Himalayan glaciers and mountain ecosystem and attempt to address key issues like impacts of climate change on Himalayan glaciers, biodiversity, wildlife conservation and livelihood of traditional knowledge societies. Such objectives have been achieved and are being achieved by Creation of funds, Establishment of a State of Art National Centre For Himalayan Glaciology, Identification and networking of all knowledge institutions in the region which possess the institutional capacity for studies on Himalayan Ecosystems, Establishment of 10 new centers in existing institutions in areas of knowledge gaps complete with special mechanisms and tools to complete with special mechanisms and tools to create knowledge capacity for sustaining Himalayan Ecosystems, Annual status reports and data collections on the implementation and effects of the mission. Other National and Sub- National Initiatives include National Mission for a Green India, National Mission on Strategic Knowledge for Climate Change, National Clean Energy Fund, State Climate Change Action Plan, NABARD (National Bank For Agriculture and Rural Development), Indian Network For Climate Change Assessment, Low Carbon Strategies for Inclusive Growth, Bilateral Cooperation On Environment and Clean Technology etc.
The journey to this disastrous issue does not end here. With a view of future perspective, Government of India has even formulated Auto Fuel Vision and Policy 2025 for whose drafting an expert committee was constituted. This expert committee recommended for rolling out Bharat Stage IV, Equivalent of Euro IV and Euro V by 2017. This committee even recommended the institutionalization of an effective system for Inspection and Management regime for in-use vehicles and introductions of various policies to phase out old commercial vehicles. Also the committee suggested a few norms for two wheelers, three wheelers, four wheelers, heavy duty vehicles etc. Following the recommendations, government has set a target of providing BS-IV auto fuels in the entire country by 2017 using a phased approach for implementation.
Supreme Court has quoted that “Environmentalists conception of ecological balance in nature is based on the fundamental concept of nature as a series of complex biotic communities of which man is an interdependent part.”[45] Hence, a need of civilized man has been emphasized apart from the efforts of government and dynamism of judiciary. In 1987, Strict or Absolute Liability was imposed on the part of citizens on the account of use of hazardous substance[46]. Even if Fundamental Duties and Directive Principles of State are not enforceable, still elaborating their importance, Supreme Court again insisted on Citizen’s duty towards environment and its major contributions in the words according to which “It is necessary to state a few words about the importance of and need for protecting our environment. Article 51-A imposes a duty on citizens as well to protect and improve the natural environment”.[47]
In the conclusion, author wants to quote that “We are the first generation to be able to end poverty, and the last generation that can take steps to avoid the worst impacts of climate change. Future Generations will judge us harshly if we fail to uphold our moral and historical responsibilities”. Government, Legislature, Judiciary and Citizens have to work in a cooperative manner to fight the ever-increasing temperatures due to global warming, greenhouse effect, glacier melting and disastrous due to other side-effect of climate change. “We shall need a substantially new way of thinking if humanity needs to survive”. Hence, if you want to bring the change, be the change because there is only one corner of universe where you can be certain of changing and that is your own.
[1] Discussion on Global Warming on 8th May 2007 at www.indiankanoon.com by Shri C.K. Chandrappan, referred on 18th May 2017
[2] NASA report on Antarctica ozone hole 2016 posted on 25th, October, 2016 at http://www.nasa.gov.com . Referred on 18, May, 2017 where the latest data of NASA reports 8.9 million growth of ozone hole in the month of September.
[3] Chapter XIV of Indian Penal Code, 1860- Sections 268-294A dealing with offences related to public health, safety, convenience, decency and morals specifically dealing with the offences committed against environment to be the root cause of public nuisance.
[4] Sections 133-144 of Code of Criminal Procedure, 1973 are invoked in urgent cases for removal of public nuisance.
[5] 1986(2) SCC 176
[6] 1966(3) SCC 212
[7] Vellore Citizens Welfare forum v. Union of India 1996 (5) SCC 647
[8] Held in Stockholm, Sweden from 5th June – 16th June 1972, the UN Scientific Conference, also known as the first Earth Summit, adopted a declaration that set out principles for preservation and enhancement of the human environment, and an action plan containing recommendations for international environmental actions.
A brief history of climate change posted by the UN Chronicle on June 2007 under Volume XLIV number 2 https://unchronicle.un.org
[9] Conserve the resources as if you have borrowed them from your future generation and not as if you have inherited them from your ancestors.
[10] Principle with basic theme as Prevention Is Better than Cure.
[11] One who pollutes, has to pay and has been highlighted in landmark judgments of Rural Litigation and Entitlement Kendra Dehradun v. State Of Uttar Pradesh
[12]U.N. Inter Government Report on Climate Change and Global Warming by Inter- Governmental Panel on 26th April 2007 referred on 22nd May 2017 at https://indiankanoon.org
[13] 1999 (2) SCC 718
[14] 186th Report Of Law Commission of India posted on September 2003 and referred on 18th May 2017 from www.lawcommissionofindia.com
[15] Climate Change Act 2008, Climate Change Bill 2012, Climate Change Act 2015, Climate Change Act 2016, Climate Change Act 2017 etc.
[16] Marathawada Janta Vikas Parishad v. The State Of Maharashtra and Ors. 2002 (1) ALL MR 217
[17] A.I.R. 1994 SC 1831
[18] Discussion Regarding Climate Change on 8th May 2007 referred on 24th May 2017 from www.indiankanoon.org.
[19] (2001) 3 SCC 763,756 and (2002) 4 SCC 356
[20] 12th five year plan forwarded in July 2011 and posted on October 2011 at https://planningcommission.nic.in/reports
[21] National Action Plan On Climate Change
[22] National Initiative On Climate Resilient Agriculture
[23] Interstate Water Disputes Act reference to Article 21
[24] NATCOM National Communication Project in 2004
[25] National Water Mission
[26] .ICZM – Integrated Coastal Zone Management
[27] GHG Inventory Management System – The implementation arrangement has targeted energy, industry, agriculture and waste.
[28] BCRI-NCAP – Black Carbon Research Initiative – National Carbonaceous Aerosols Programme, LTERO- Long Term Ecological Research Observatory for climate change, CCAS- Climate Change Assessment Studies.
[29] Preserving natural resources for the use of future generation because these resources have been borrowed from our upcoming generation and not inherited from our ancestors.
[30] The monarch, or any other authority, regarded as the legal protector of citizens unable to protect themselves.
[31] Minors Oposa v. Secretary of the Department of Environment and Natural Resources (DENR) (1994) 33 ILM 173
[32] Rights of Future Generations by K.I. Vibhuti Volume 21
[33] Intended Nationally Determined Contributions
[34] Paragraph 2(b) of Decision 1/CP 19.
[35] In June 2007 and Reconstituted in November 2014
[36] Prime Minister Mr. Narendra Modi
[37] Minister of External Affairs, Finance Minister, Minister of Environment, Forests and Climate Change, Minister for Water Resources, River Development and Ganga Rejuvenation, Minister of Agriculture, Minister of Urban Development, Minister Of Science and Technology, Minister of State for Power, Coal and Renewable Energy, Cabinet Secretary, Foreign Secretary, Secretary of Ministry of Environment, Forests and Climate Change, Dr. R.K. Pachauri ( Director General of TERI), Shri. Nitin Desai (Distinguished Fellow of TERI), Shri. Chandra Shekhar Das Gupta, Shri. Ajay Gupta (Member of BEE), Shri. J.M. Mauskar and Principal Secretary of Prime Minister Mr. Narendra Modi
.
[38] 2010-2013
[39] 2013-2017 and 2017-2022 respectively
[40] Perform Achieve and Trade- A market based mechanism to facilitate energy efficiency improvements in large industry intensive industries and facilities, by issuing energy saving certificates.
[41] Market Transformation for Energy Efficiency- accelerating the shift to energy-efficient appliances and equipments in designated sectors through innovative measures that make such products more affordable.
[42] Energy Efficiency Financing Platform- Creating mechanisms to finance demand side management programmes in all the sectors of economy by capturing future energy savings.
[43] Framework for Energy Efficient Economic Development- developing fiscal instruments to promote energy efficiency.
[44] 1996 (5) SCC 647
[45] State of Bihar v. Murad Ali Khan A.I.R. 1989 SC Page number 1
[46] Ryland’s v. Fletcher (1868) LR 3 HL 330
[47] M.C. Mehta v. Union Of India AIR 1988 SC 1037.
Advocate In Action 