A law around low-carbon climate resilient development

Premium

In a landmark judgment, the Supreme Court of India recently recognised a right to be “free from the adverse impacts of climate change” in M.K. Ranjitsinh and Others vs Union of India — sourcing it from the right to life and the right to equality. In a previous article on this page in this daily, “Court on climate right and how India can enforce it” (July 1, 2024), we argued that while this is indeed an important step in establishing climate jurisprudence in India, it raises the very important question of just how this right will be protected.

Earlier, we had suggested that a patchwork of judicial interventions would fall short of the encompassing and systemic approach climate change requires. There is, therefore, a strong case for climate legislation, but only if it is tailored to the Indian context. Taking this issue forward provides an opportunity, but also a challenge, for the new government.

Law to inform development choices

Preparing India to reduce the risks of climate change and address its impacts requires nothing less than re-orienting development toward low-carbon and climate resilient futures. Any law that attempts to take this on must ensure these objectives are internalised in routine decision-making at all levels of development. Because climate change relentlessly targets the vulnerable, and because an energy transition must be just, it must be grounded in the imperative of advancing social justice.

While the concept of climate law is often associated with a top-down approach of setting and achieving targets, in a developing country, this approach is limited because addressing climate change is about more than limiting emissions.

The Great Indian Bustard and climate action verdict

Instead, it requires careful, ongoing, consideration of each developmental choice and its long-run synergies and tradeoffs with low-carbon and climate resilient futures. To achieve this, the substantive right of protection against adverse effects of climate change must be realised, in part, through well-defined procedures in law that are applicable across levels of government. Climate action is more credible when a well-designed institutional structure is strategising, prioritising, troubleshooting and evaluating policies behind the scenes.

Several countries (67 according to one estimate) have experimented with ‘framework climate laws’ that build governance capacity to address climate change. Umbrella laws that define government-wide goals and substantiate them with a set of processes and accountability measures are a known and increasingly popular way of bringing climate action to the heart of government.

Climate change, a passing cloud in Indian politics

However, these laws vary, and India’s approach must be tailored to our context. Starting from a low base of per capita emissions — less than half the global average — India’s emissions are still growing, and our objective should be to squeeze out as much development as possible from each ton of carbon and avoid locking-in to high carbon futures. Moreover, India is highly vulnerable to climate impacts, and climate resilience must be an essential element of the new law. In meeting both objectives, considerations of social equity must be central. Consequently, India’s law must ensure development, but in a low-carbon direction while building resilience to ever more pervasive climate impacts.

What we arrive at, then, is a law that helps navigate developmental choices. It must create the basis for thoughtful decision-making toward achieving a low-carbon, resilient society. For example, since Indian cities are still growing and changing rapidly, what could low-carbon, climate resilient cities of the future look like? And what levers exist to shape those cities? How can city planning minimise the risk of floods and vulnerability to heatwaves? How should transport needs be met through technology shifts such as electric vehicle adoption and greater attention to public transport and lifestyle shifts?

Have a low carbon development body

A framework climate law should lay out an institutional structure capable of crafting viable answers to these questions. Our ongoing work at the Sustainable Futures Collaborative provides some suggestions. An immediate priority is to create a knowledge body in government capable of rigorously parsing policy options and the futures they might generate. We recommend an independent ‘low-carbon development commission’, staffed with experts and technical staff, which could offer both national and State governments practical ways of achieving low-carbon growth and resilience.

The shape of a five-year climate agenda for India

This body could also serve as a platform for deliberative decision-making. Vulnerable communities and those that may lose from technological change need to be systematically consulted. Hearing their concerns and incorporating some of their ideas could lead to longer-lasting policy outcomes. An example is South Africa’s Presidential Climate Commission, which is tasked with charting a course toward just transition based on inputs and representations from stakeholders.

Effective climate governance also requires the ability to set directions, make strategic choices, and encourage the consideration of low carbon choices and climate change impacts within line ministries. Accordingly, the law could create a high-level strategic body, which we label a ‘climate cabinet’, a core group of Ministers plus representation from Chief Ministers of States, tasked with driving strategy through government. Across the world, climate policy is often defeated by siloed decision-making. This is one way of fixing it.

A whole-of-government approach will also require dedicated coordination mechanisms for implementation. The Ministry of Environment, Forest and Climate Change should continue to play a central role, but it needs to be complemented by higher-level coordination. Here, the pre-existing Executive Committee on Climate Change (made up of senior bureaucrats from multiple Ministries), provides a useful template but only if it is reinvigorated with clearly specified legal powers and duties.

Engagement with the federal structure

Not least, the law must pay attention to India’s federal structure. Many areas crucial to reducing emissions and improving resilience — electricity, agriculture, water, health and soil — are wholly or partially the preserve of State and local governments. When a climate impact is felt, it is felt first, and most viscerally, at local levels.

85% Indians say climate change affecting them: Survey

Any institutional structure or regulatory instrument created to protect the Court’s newly established climate right must meaningfully engage with subnational governments. First, the law must establish a channel for subnational governments to access national scientific capacity, potentially through the low-carbon development commission as an intermediary, as a step toward solving the pervasive problem of insufficient local climate scientific capacity.

Second, it could articulate ways of financing local action, for example by requiring centrally-sponsored schemes to be more aligned with climate goals or by requiring national departments to climate tag expenditure towards local climate resilience.

Restoring earth’s right to ‘good health’

Third, the law could establish coordination mechanisms that allow the Centre and States to consult on major climate decisions. It could also require the Centre and States to put out periodically updated medium-term climate plans built around unified goals. To enable development of State-specific solutions, States could also build complementary institutions to those at the Centre, providing knowledge, strategy-setting, deliberation and coordination functions.

The framework law proposed here — one that enables and catalyses action across national Ministries and the federal structure — cannot be the only legal tool in the country’s regulatory arsenal. Complementary sectoral laws and amendments may be required, but they would be informed by the approach laid out by the framework law.

The Court’s historical pronouncement in M.K. Ranjitsinh opens the door to legal and governance changes that make possible an actionable right against the adverse effects of climate change. But to realise this promise, this open door has to actually be used to pass a climate law that is well suited to the Indian context, that steers Indian development choices toward a low-carbon and climate resilient future, and that also advances justice.

Navroz K. Dubash is Senior Fellow at the Sustainable Futures Collaborative. Aditya Valiathan Pillai is Fellow at the Sustainable Futures Collaborative. Shibani Ghosh is Visiting Fellow at the Sustainable Futures Collaborative