Climate change impact now part of the constitutional discourse

THE Supreme Court recently expanded the scope of Articles 14 (right to equality) and 21 (protection of life and liberty) of the Constitution to recognise the right to freedom or protection from the adverse effects of climate change. What are the implications of this ruling?

First, one must be clear about what exactly is a ‘right’. A right is a claim of an individual or a group (e.g. women, LGBTQIA+) that supersedes considerations of costs and benefits. For example, a policeman cannot argue that the time and money spent on recovering the stolen money of a poor widow would exceed the amount stolen, and therefore no action need be taken on her complaint. Second, a right generally involves a duty — of an individual, institution or the government — to make good on the claim.

Climate change impact is due to global emissions of a set of gases known as greenhouse gases (GHGs). Such impact on a developing country has little relation to its own emissions. Governments can, on their own, do little to limit GHG emissions worldwide. This requires international consensus, which has made tentative, slow progress since 1992, when the UN Framework Convention on Climate Change (UNFCCC) was adopted.

The UNFCCC recognises that developed countries have a greater capacity for causing climate change as well as a higher capability to reduce emissions and mitigate the impact, known as the principle of ‘common but differentiated responsibility’. The present targets under the Paris Agreement of 2015 fall woefully short of the action required to maintain the global mean temperature rise to within the accepted level of 1.5°C. The realistic prospect, therefore, is that of increasingly severe climate change impact.

In these circumstances, since climate change is impacting India, for the most part, due to the actions of developed countries, against whom can a citizen claim the right of freedom from climate change? Logically speaking, the bloc of developed countries bears the major responsibility for the problem.

So far, the international climate change agreements provide only for very modest levels of funding to developing countries for adapting to climate change. So, does the SC’s ruling mean that the Indian government must mitigate climate change impact irrespective of the costs?

Another conception of rights is that of liberty rights versus welfare rights. Rights to life, free speech, etc. are liberty rights. Rights to education, a clean environment, including climate change rights, count as welfare rights. The former only requires that others refrain from violating the rights; the latter that the entity on whom the corresponding duty lies takes purposive action to realise it. Enforcement of liberty rights usually involves no significant costs.

However, welfare rights cannot generally be realised without large-scale resources. When resources are scarce, as in developing countries, choices must be made as to the relative priorities of different welfare rights.

Several studies have shown that mitigating climate change impact requires a great deal of money. In the absence of significant international funding by developed nations, this means that the Indian government would have to rely on its own resources to address the matter.

If the state has to ensure various welfare rights, such realisation would be partial in each case, given the limited resources. A fuller realisation of climate change rights would require new and additional resources from developed countries under the evolving international climate change regime. The prospects of such resources being forthcoming is bleak.

In 2005, a study was conducted on Central Government funding for climate-related impact. Schemes and programmes which had among their objectives the reduction of climate change impact (e.g. irrigation and flood control, forestry, cyclone shelters) were identified and their financial expenditure added up. The result was startling: about 1.8 per cent of India’s GDP was spent on these programmes, a figure which compares with India’s defence expenditure. This figure has probably increased since then.

So, will the recognition of the right to freedom from climate change have significant practical implications? Clearly, it will have little, if any, effect on flows of external resources. Given the historical level of national expenditure on reducing the risks of climate change impact, there seems to be little scope to raise the share of the GDP to realise climate change rights.

However, as the country’s economy grows, the absolute level of resources will also rise. Also, as citizens become richer, they will, on their own, increase their personal expenditure on avoiding the effects of climate impact — safer housing, greater spending on healthcare, conserving water and buying insurance policies against extreme weather.

Overall, citizens’ vulnerability to climate change impact will fall as the national economy grows. Development is the key to achieving freedom from this impact. The main effect of the SC judgment may be to pre-empt any possible future attempt to reduce allocations for addressing climate risks.

The SC judgment was in the context of an appeal against an order that all power lines for evacuating renewable power in the habitat of the endangered Great Indian Bustard (GIB) in Rajasthan and Gujarat should be relocated underground. This was because overhead lines killed a large number of the birds from inflight collisions. It was argued by the power companies that the expenditure involved would make renewable power uncompetitive.

Apparently, the right to environmental sustainability and India’s international obligations to mitigate GHG emissions are, in this case, in conflict. The loss of these renewable energy projects may make it more difficult for India to fulfil its obligations under the Paris Agreement; persisting with the projects may, on the other hand, further endanger the survival of the GIB. The court has suggested an expert study to find practical means of addressing both concerns. If a way is found, well and good. If not, perhaps policy research institutions can help resolve this difficult dilemma.