Climate justice: A national legal framework

During a recent international conference held on “the Future of Environment and Climate Dynamics,” organized by the National Green Tribunal (NGT), the Chief Justice of India (CJI) came out with a powerful metaphor stating that “The Supreme Court (SC) of India is the Banyan tree of environmental justice, with roots deep in our civilizational ethos and branches sheltering the rights of unseen generations.” 

It is a fact that the Supreme Court had played a pivotal role in the enactment and enforcement of several environmental legislations in the country. Be it the forest and wild-life conservation, environmental protection acts or the implementation of rules about management of Air, Water, Noise pollution, coastal regulation zone, and the handling of Hazardous wastes, the SC had always been at the forefront of action. Another landmark contribution of the SC had been its decisions on several Public Interest Litigation Petitions and forming empowered committees on various subjects. One of the leading examples is   evolution of public liability insurance laws in the aftermath of Bhopal gas tragedy. 

To deal with such local environmental issues, though highly technical in nature, India is one of the major countries having a specialized court in the form of the National Green Tribunal (NGT) with headquarters at New Delhi and regional benches at Bhopal, Pune, Kolkata and Chennai in the country. 

The challenge before any legal system in the world including India, is to adjudicate on transboundary aspects of climate change and other global environmental issues. A complete mechanism to address these issues at the international level is at a nascent stage. In such a situation whether is it possible to have a national legal framework to deal with climate justice? 

Let us touch upon the international mechanism for a better understanding. The United Nations Framework Convention on the Climate Change (UNFCCC) and later the Kyoto Protocol and Paris agreement are the foundation for handling climate change related issues at the global level. What is the difference between a convention and a protocol?

A Convention managed by Conference of Parties (COP) is the foundational agreement where nations agree on basic goals, broad principles, and general rules on the subject. On the other hand, a Protocol managed by the Meeting of Parties (MOP) is a secondary agreement under an existing convention that adds specific, often legally binding targets and operational rules. Each international agreement has a separate dispute settlement mechanism.

Most of the international environmental agreements are negotiated under the umbrella of the United Nations with the exception of the Montreal Protocol on Protection of the Stratospheric Ozone Layer. 

The common but differentiated responsibility was an important outcome of the UNFCCC. Over a period, this principle got diluted. Now all the major economies had committed to reduce their   Green House Gases (GHG) emissions as per Paris agreement. As a case in point, India had committed to enhanced use of non-fossil fuel energy up to 50% of the installed electricity capacity by 2030. It is a matter of great satisfaction that India had achieved it ahead of time. 

Climate justice in a multi-sectoral ecosystem intricately linked with science, polity, economics, and social sectors at all levels is difficult to achieved until India develops a national framework relying on equal per capita emission, polluter pays principle, common responsibility, and a robust emission trading mechanism or any other suitable alternatives. The answer to this question lies in the future. Till such time, there is hardly anything that could be done by the judiciary on climate justice.

(S K Joshi served as Chief Secretary of Telangana from February 2018 to 

December 2019)