In anticipation of Volume 54.4 of the Georgetown Journal of International Law, this blog previews the introduction and abstract to “India’s Progressive Environmental Case Law: A Worthy Roadmap for Global Climate Change Litigation” by M P Ram Mohan, Els Reynaers Kini, and Sriram Prasad. This article will be published in full in Volume 54.4. 

Introduction 

In July 2020, the Irish Supreme Court (Friends of the Irish Environment v. Ireland), while refusing to acknowledge a constitutional right to environment, observed that India is the only state in the common law tradition to find a constitutional right to environment without an express constitutional provision.

The Indian Supreme Court in the early 1980s found a constitutional right to a healthy environment to exist within Article 21, which guarantees the right to life. Post-1980s, many cases have interpreted the right to life to include the right to live in a wholesome environment, the right to live in a pollution free environment, the right to enjoyment of pollution free and fresh air, and the right to a clean environment and a decent environment, among others. The judicial formulation of the right to live in a pollution free and healthy environment also includes the right to live in a healthy environment with minimal disturbance of ecological balance. 

In 2011 and 2013, Professor Lavanya Rajamani remarked that no climate-related claim had been brought before the Indian Supreme Court and that climate litigation was in its infancy in India. Professor Lavanya Rajamanifurther opined that the Indian Supreme Court would likely interpret the right to a healthy environment to include the right to a healthy climate, or that the Indian Supreme Court may apply a human rights framework to climate litigation. The idea of linking the expansive environmental law jurisprudence which evolved in the Global South to inform climate litigation was missed in the global discourse. This holds true especially for India, where expansive interpretation was utilized to protect climate considerations within the ambit of environmental jurisprudence. Scholars have only recently started articulating this linkage either through an already expanded understanding of environmental law or through human rights. 

In 2019, Jacqueline Peel and Jolene Lin noted that the Global South experience of climate litigation serves two purposes. One, it helps contribute to global climate governance as climate change is a global phenomenon. Two, it helps “inform advocacy, partnering initiatives, and capacity-building efforts,” which would help reduce emissions and combat climate change. They also observe that “seemingly universal definitions of climate change litigation fail to capture developments occurring outside the Global North adequately.” 

The article examines Peel and Lin’s claim and aims to compare and understand perspectives from India to inform global climate governance and comprehend the diverse nature of climate litigation. In doing so, the article analyzes whether there is a considerable difference between environmental litigation and climate litigation in the Indian context. The article further considers how a more inclusive understanding of climate litigation would include some environmental litigation. 

To evidence how much Indian environmental litigation is excluded if a narrow definition of climate litigation is adopted, the authors refer to fifteen cases classified as climate litigation in India by two leading climate litigation databases (LSE GRI – Climate Change Laws of the World and Sabin Center for Climate Change Law). Some authors have objected to the application of a narrow definition of climate litigation, as has been applied by these databases. 

Climate litigation, as defined by authors in the Global North, may exclude many cases that positively contribute to combating climate change in India. The article examines scholarly writings that opine that Global North scholars need to adjust their “lens” of viewing transnational climate change litigation to get a “clearer picture of the most promising jurisdictions for further growing the climate justice movement.” This claim is tested using Indian cases not ordinarily classified as climate litigation and hence absent from the global conversation on climate litigation. The article shows that the excluded cases have the potential to inform the global climate governance discourse. 

The article investigates how Indian environmental jurisprudence can inform the global climate governance narrative by analyzing the creativity of the Indian judiciary in allowing easy access to justice, often through a right-based framework. The article analyzes the challenges faced in the Global North, mainly Europe, and compares the similarities between the flurry of rights-based environmental cases currently before the European Court of Human Rights (ECHR) and how Indian courts have dealt with similar issues.

Many cases before the ECHR may apply a rights-based framework and raise questions relating to the human right to a healthy environment and a healthy climate. Indian environmental jurisprudence over the last several decades can help formulate climate litigation strategy and inform global climate justice. In the United States, Juliana v. United States did raise such a question but was dismissed because “a comprehensive scheme to decrease fossil fuel emissions and combat climate change” would have exceeded the court’s powers. Further, Juliana was considered a longshot as U.S. Courts have “gotten out of the business of recognizing new un-enumerated fundamental rights.” The article limits the examination of the rights-based arguments to the cases currently before the ECHR.  

Many common law and civil law jurisdictions are faced for the first time with assessing whether there is a fundamental right to a healthy and pollution free environment. This question forces them to review whether state inaction on climate change infringes this fundamental right. Overall, this article explores how the long-standing tradition of some common law countries, such as India, which have acknowledged the fundamental right to a healthy and pollution free life for many decades, can assist judges in other jurisdictions and inform global climate governance. 

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M P Ram Mohan is a Professor at the Indian Institute of Management Ahmedabad and a Research Affiliate at the Centre for Peace, Hiroshima University. Els Reynaers Kini is a Partner at M V Kini Law Firm in Mumbai. Sriram Prasad is a Researcher at the Indian Institute of Management Ahmedabad.