Legislation Related to Climate Change in India
Author : Femi Ann Varghese
Climate change is the most urgent problem the world is facing as its implications will be felt at the existential level.Like cancer, the harmful effects of climate change grow, intensify, and eventually turn out to be fatal to our lives. As a developing economy with a billion-plus population and an aspiration to become a leading power in the international political scenario, India faces a big challenge.
The Global Climate Risk Index 2020 released by German watch ranked India as the fifth most vulnerable country with respect to climate risks. Whereas India is ranked 29 out of the 191 countries assessed by the World Bank in its Inform Risk Index. Another study finds that India is the third largest emitter of greenhouse gases after the United States and China. These studies indicate India’s precarious environmental condition. Consequently, India is in a difficult position where it, being a developing country, has to balance between two binaries: economic development and climate change mitigation.
This bleak scenario warrants a study of India’s legislative measures in dealing with climate change and their effectiveness in dealing with both the sectorial issues related to climate change and the big picture.
India’s Climate Change Legislation
India’s history with climate change legislation began during the British regime. Since then India has come a long way in regulating various aspects of climate change from its prevention and mitigation to rehabilitation and resettlement. The legislation enacted in the post-independence period are:
The Wildlife (Protection) Act, 1972
Water (Prevention and Control of Pollution) Act, 1974
Water (Prevention and Control of Pollution) Cess Act, 1977
The Forest (Conservation) Act, 1980
Air (Prevention and Control of Pollution) Act, 1981
Atomic Energy Act of 1982
Environment (Protection) Act, 1986 (EPA)
Motor Vehicles Act,1988
Public Liability Insurance Act (PLIA), 1991
National Environment Tribunal Act, 1995
The National Environment Appellate Authority Act, 1997
Energy Conservation Act, 2001
The Electricity Act, 2003
Disaster Management Act, 2005
National Green Tribunal Act, 2010
Wetlands (Conservation and Management) Rules, 2010
The Finance Bill 2010-11 and the Clean Energy Cess Rules, 2010: provided for the creation of a corpus called the National Clean Energy Fund
National Renewable Energy Act, 2015
E-Waste (Management) Rules, 2016
CERC (Terms and Conditions for Tariff Determination from Renewable Energy Sources) Regulations 2017
State Electricity Regulatory Commissions (SERCs) have issued regulations for Renewable Purchase Obligations (RPOs)
Climate Change and the Constitution of India
1. Article 21
“No person shall be deprived of his life or personal liberty except according to procedure established by law”
In Virendra Gaur v. State of Haryana,and Subhash Kumar v. State of Bihar, A.I.R,the Supreme Court interpreted the right to life to include the right to a healthy environment.
2. Article 48A
“The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
3. Article 51A(g)
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”
International level Obligations
1. India is a non-Annex 1 country under the Kyoto Protocol. Thus, it does not have any binding target under it.
2. In October 2016, India ratified the Climate Convention at the 2015 United Nations Framework Climate Change Conference (Paris Agreement) which binds parties to take action to reduce greenhouse gas emissions.
3. India has signed and ratified several international conventions relating to oceans, marine environment, and related activities. Some of them are: MARPOL 1973/1978; London Dumping Convention, 1972; Convention on Civil Liability for Oil Pollution Damages (CLC 1969) and its Protocol, 1976; Fund, 1971 and its Protocol, 1979; CITES, Convention on Biodiversity, 1992 includes coastal biodiversity also.
Climate change encompasses a wide array of issues. Despite occupying a central stage in the international climate change negotiations in recent years, India does not have a comprehensive, integrated, and binding climate change-specific law yet. What we have instead are multiple legislation that deal separately with a few elements related to climate change. Our domestic legislation deal with only a small part of the quagmire that climate change is. This has resulted in excessive dependence on bureaucracy, red tape delays, multiple institutional frameworks that seem redundant, and eventually, the inefficient implementation of these laws. There is also an imbalance in the focus given to different aspectsof dealing with climate change like regulation of sources, mitigation, adaptation, rehabilitation, and climate justice.
The fact that the Indian Parliament has passed environment related laws decades before the awareness about climate change began to catch wind and became a hot topic is commendable. However, these laws werenot devised to deal with the larger issue of climate change. According to Parul Kumar and Abhayraj Naik, these laws are “outdated and relies on a disjointed institutional architecture, without having clarity on foundational values.”
India’s Executive has a strong and relevant portfolio in climate change with policies like the National Action Plan on Climate Change, 2008 with its eight missions. But these policies and schemes require corresponding actions taken by the Legislature to give them the force to make them effective.
Even the Constitution of India, which was rightly given enough flexibility to keep up with the dynamism that comes with time, does not adequately reflect the increasing importance of this issue. Besides, ‘climate change’ does not appear as a subject in any of the three lists in the Seventh Schedule of the Constitution of India and the subjects relating to the environment and relevant for dealing with climate change such as forests, electricity, public health, agriculture, atomic energy, etc. are distributed across the three lists. This creates ambiguity in the legislative competencies of the Central and State Governments and impedes the formulation of an effective climate change policy.
India’s weather conditions have become increasingly erratic in recent years. Therefore, India must undertake capacity-building measures on a war footing. The most immediate step in this direction should be the enactment of climate change-specific legislation that covers the regulation of the causes, mitigating the effects, enhancing adaptability, rehabilitation of victims, and ensuring climate justice. Translate India’s international obligations into national laws.
In addition, the Parliament of India must pass laws that concentrate on the individual aspects of climate change similar to the Renewable Energy Act and the Electricity Act. These must include laws for promoting sustainable and climate-resilient agriculture, facilitating credit support mechanisms for farmers and insuring them against climate risks, protection of coral reefs, regulation of coastal zone, promoting eco-friendly activities like bicycling, and so on. These laws must be designed to supplement executive actions. They must specify the goals, objectives, authorities, processes, and responsibilities. They should be in line with the recent studies, developments, and technologies. Efforts need to be taken to update and unify the existing laws, cut down the excessive and overlapping regulatory frameworks. To assess the adequacy and efficacy of the legislation related to climate change in India, one needs to determine whether they regulate not just the causes of climate change but also the rehabilitation of those at the receiving end of the rage of Mother Nature as well as those affected as a result of moving away from conventional activities like the coal miners.
A carrot and stick approach should be adopted. Punishments must include the principle of polluter pays such as achieving carbon neutrality within a prescribed timeframe and compensation to the affected in addition to a fine and/or imprisonment. The judiciary must ensure the speedy and timely disposal of lawsuits related to climate change given the time-sensitive nature of this issue.
Recognizing the issue as an interpretation of the right to life under Article 21 is not enough. As a signal that India has correctly understood the significance of the issue,the Constitution needs to be amended to include the ‘Right to Healthy Environment’ as a fundamental right. To resolve the issue regarding the ambiguity concerning legislative competence, the Parliament must redistribute the subjects relevant to climate change in the most appropriate manner so that the Centre and the States can work in concert.
To meet the twin goals of economic development and climate change risk mitigation, India still has a long way to go. But we don’t have enough time. New lawsmust be enacted and the flaws of the existing laws should be corrected. The task will be particularly difficult considering the diverse conditions.Yet, all these must happen without compromising India’s developmental needs. Together, we shall overcome.
1995 (2) SCC 577 1991 SC 420
Edited by Sathyanarayanan Iyer, Associate Editor, Lawgic Stratum.