Chapman University Dale E.

Fowler
School of Law
From the SelectedWorks of Deepa Badrinarayana
January 2009
Te Emerging Constitutional Challenge of Climate
Change: India in Perspective
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Electronic copy available at: http://ssrn.com/abstract=1463556
THE EMERGING CONSTITUTIONAL CHALLENGE OF CLIMATE CHANGE:
INDIA IN PERSPECTIVE
!
Persuading polluters to pay for the damage they cause elsewhere, in the interest of
helping those worst affected, will be a major challenge in coming decades. Burden
sharing is a very complex issue, and frankly I dont see much sign of it happening yet.
--Rajendra Pachauri, Chairman IPCC
1
Introduction:
A major breakthrough in negotiations was achieved in Bali when the United
States agreed to rejoin negotiations to establish an international regime to address climate
change concerns, post-Kyoto.
2
Despite U.S. re-engagement, the future of the
negotiations and an effective global climate regime depend on the ability of developed
nations such as the United States and rapidly developing economies such as China and
India to agree on emissions reduction targets and binding mitigation obligations, and for
developed countries to provide adequate financial and technological aid.
3
While such
mitigation based on emission rights is an important point of negotiation, it nevertheless
undercuts the equally important question of violation of constitutional rights, which are
implicated in the case of developing countries such as India.
India is a constitutional democracy whose growing GDP and emissions make it an
important player in global mitigation instruments and strategies but, the protection of
constitutional rights of Indians which is threatened by the absence of an effective
!
19 Fordham Envtl L Rev 1 (2009).
1
Laurie Goering, Warming to the Challenge of Climate Change, Chicago Tribune, April 29, 2007. Also
cited at http://inel.wordpress.com/2007/04/29/rajendra-pachauris-3-points-on-climate-change/
2
Juliet Eilperin, Bali Forum Backs Climate Road Map, U.S. Accedes on Aid Pledges, Wins Fight to Drop
Specific Targets for Emissions Cuts, The Washington Post, A01, Sunday, December 16, 2007.
3
See generally Andrew C. Revkin, As China Goes, So Does Global Warming, The New York Times,
December 16, 2007, http://www.nytimes.com/2007/12/16/weekinreview/16revkin.html.
Electronic copy available at: http://ssrn.com/abstract=1463556
international climate treaty is not adequately discussed. In particular, the rights of
Indians, whose head count support the Indian governments equitable claim to emit green
house gases (GHG) based on a per capita calculation, are at stake, but there is no remedy
in sight as focus remains on emission rights-based mitigation strategies.
This article argues that climate change presents a serious challenge to
constitutional rights of Indians; rights which can only be taken away by the State and by
proper legal procedure. Further, as foreign states are involved and as international and
other remedies against these states are limited, safeguarding constitutional rights presents
substantial challenges that cannot be addressed even through the Indian judiciarys
epistolary jurisprudence. Through this analysis, the article aims to demonstrate a less
examined issue in international climate regime discussions that at stake is a
fundamental legal, social and political document of modern societies.
The first part of the article provides an overview of the global climate change
regime, including a brief scientific background. The second part discusses Indias status
and position with respect to climate change, including mitigation strategies and
adaptation challenges. The third part examines the potential constitutional challenges that
could arise due to climate change. The fourth and the fifth parts discuss the scope for
judicial action and their limits, followed by concluding remarks.
Climate Change Brief Background of Science, Economics and Law
The scientific proposition that certain human activities increase the concentration
of greenhouse gases (GHGs)
4
present in the atmosphere and accelerate the rise in global
temperature levels, consequently launching unpredictable and catastrophic changes in
climate patterns, was first put forth in the 19
th
century.
5
Concrete scientific efforts to
understand weather as a phenomena influenced by complex and continuous interaction
between natural events and anthropogenic actions began towards the later half of the 20
th
century.
6
Several scientific research activities have been undertaken by government-
funded institutions,
7
independent research centers,
8
and other initiatives, notably, the
Intergovernmental Panel on Climate Change (IPCC), which was established in 1988
jointly by the World Meteorological Organization (WMO) and the United Nations
Environment Program (UNEP)
9
to build a global scientific database to aid global scale
action.
After nearly a half a century of controversial and contentious discussions, most
scientific bodies, including IPCC, which is the closest representation of a global position
4
The main GHGs are carbon dioxide, methane, nitrous oxide, CFC-12, HCFC-22, perflouro methane, and
sulfur hexafluoride; of these, only former three exist naturally in the atmosphere. Prior to industrialization,
their concentrations in parts per million (or billion) by volume (ppmv/ppbv) was 278 ppmv, 700 ppbv, and
275 ppbv, respectively. These have increased by 30%, 240%, and 15% respectively since 1994 due to
human activities. However, of the three, CO2 has the highest potential for global warning in the short and
the long terms. See Mark Maslin, Global Warming, A Very Short Introduction, tbl. 1, 16-17, 2004.
5
TIM FLANNERY, THE WEATHER MAKERS, 36-43, 2005. See also Daniel Bodansky, The History of the Global
Climate Change Regime, International Relations and Global Climate Change, Urs Luterbacher and Detlef
F. Sprinz (Editors) 23 2001.
6
Ibid 153-165. See also Maslin, supra note 4, 23-25.
7
For instance, the United Kingdom meteorological office has established the Hadley Center on Climate
Prediction and Research to study the effects of climate change and advice the government, corporations,
and international organizations, see, http://www.metoffice.gov.uk/research/hadleycentre/; the US
Environmental Protection Administration has set up a Climate Change Science Program,
http://www.epa.gov/climatechange/policy/ccsp.html, and the Goddard Space Flight Center of National
Aeronautics and Space Administration (NASA) has special ongoing programs on climate change and
global warming; in fact, a compilation of links to key climate change programs in the United States and
abroad is provided by NASA at http://globalchange.nasa.gov/Resources/pointers/glob_warm.html.
8
In the United States for instance, the Pew Center has established an extensive climate research program,
http://www.pewclimate.org/.
9
See About IPCC, available at http://www.ipcc.ch/about/index.htm.
on the issue, agree that anthropogenic emissions of greenhouse gases have been
accelerating average global temperatures increase since the beginning of the industrial
era. In fact, dire consequences are predicted, unless the increase is limited to a 2 degree
Celsius by the end of the century, as compared with 1990 levels.
10
IPCC has concluded
that there is a very high likelihood that failure to achieve the 2 degree Celsius limit will
result in a climate tipping point, unleashing irreversible non-linear, exponential, long-
term impacts and feedback effects.
11

The intensity of the catastrophes in such an event would vary regionally; areas
such as sub-Saharan Africa and small-island countries will possibly be most affected by
increased droughts, hurricanes, and sea level rises.
12
Even though some scientists
challenge these findings,
13
most scientists now agree that there is sufficient basis to
justify, in fact catalyze, global emissions reductions.
Translating scientific recommendations into action, however, is perceived as a
threat to the evolving socio-economic stability of human civilization. Much like stable
climatic conditions, hydrocarbon-based economic growth has contributed to human
10
See Understanding and Responding to Climate Change, Pew Center on Global Climate Change,
http://www.pewclimate.org/docUploads/Climate101-FULL_121406_065519.pdf; Intergovernmental Panel
on Climate Change, Fourth Assessment Report, Climate Change 2007: Synthesis Report, Summary for
Policy Makers (IPCC Synthesis Report 2007), http://www.ipcc.ch/pdf/assessment-
report/ar4/syr/ar4_syr_spm.pdf
11
Until the report was published several possible linear forcing scenarios were predicted. See Maslin, supra
note 4, figure 5, 18-21; the non-linear result is also explained as the equivalent of pushing a car over the
edge, and once at the edge, even a small shove would be sufficient to get the car rolling non-stop till it
slows down on its own when it finds a new stable ground.
12
IPCC Synthesis Report 2007, supra note 10.
13
See e.g. Richard Lindzen, Climate of Fear, Global-warming Alarmists Intimidate Dissenting Scientists
into Silence, The Wall Street Journal, Opinion Journal, Editorial Page, Wednesday, April 12, 2006,
http://www.opinionjournal.com/extra/?id=110008220, arguing that minority scientists findings, even
though well-substantiated, are muted by majority views. See also Toni Johnson, Alternative Views on
Climate Change, Council on Foreign Relations, September 28, 2007, http://www.cfr.org/publication/14318/
alternative_views_on_climate_change.html; Richard Lindzen, Climate of Fear, Global-warming Alarmists
Intimidate Dissenting Scientists into Silence, THE WALL STREET JOURNAL, OPINION JOURNAL, Editorial Page,
Wednesday, April 12, 2006, http://www.opinionjournal.com/extra/?id=110008220.
settlement and progress in many parts of the world;
14
free trade has launched new
opportunities for several more countries to become industrialized and progress
economically.
15
In fact, during the early stages of scientific research, noted economists
from several countries concluded that global action on climate change was not
economically feasible, desirable, or even, necessary.
16

However, this economic viewpoint is changing. Notably, the Stern Review
Report
17
on the economics of climate change concluded that cost of inaction would be
higher than the cost of mitigating climate change. According to the Review, measures to
reduce climate change would cost only about 1% of the gross domestic product (GDP) of
the global economy, whereas climate change would reduce global GDP by 20 percent.
Although the Review has been criticized for several reasonsthat its estimate of the
costs of climate change is very low and that its overall conclusions are erroneous
18
the
Report has nevertheless swung the debate in the direction of the economic benefits of
investing in green house gas reduction, via carbon taxes and emissions trading.
19
14
See Flannery, supra note5, 69-79. See generally DANIEL YERGIN, THE PRIZE: THE EPIC QUEST FOR OIL, MONEY
AND POWER, 1991.
15
See generally JEFFREY SACHS, THE END OF POVERTY, 18 (2005), THOMAS L. FRIEDMAN, THE LEXUS AND THE
OLIVE TREE (2000).
16
See e.g., The Copenhagen Consensus, 2004, http://www.copenhagenconsensus.com/Default.aspx?
ID=158. A panel comprising economists, including some Nobel laureatesJagdish Bhagawati (Columbia
University), Robert Fogel (University of Chicago, Nobel laureate), Bruno Frey (University of Zurich),
Justin Yifu Lin (Peking Douglass North of Washington University in St Louis, Nobel laureate), Thomas
Schelling of the University of Maryland, Vernon Smith (George Mason, Nobel laureate), and Nancy Stokey
(University of Chicago)concluded that any investment in climate change via the Kyoto Protocol or
carbon taxes was a bad investment/project. Similarly, a House of Lord special committee on economic
affairs published a report, The Economics of Climate Change, expressed skepticism about basing
economic decisions on IPCCs scientific findings. See, Nigel Lawson, Against Kyoto, Prospect, 116,
November 2005.
17
Stern Review on the Economics of Climate Change, available at, http://www.hm-
treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/sternreview_index.cfm.
18
See e.g. The Stern Review: A Dual Critique, World Economics, Vol. 7, No. 4, December 2006, abstract
available at http://www.world-economics-journal.com/WEJArticle.asp?Vol=7&Iss=4&Id=261. See also
Expert Reaction to Stern Review, BBC News, October 30, 2006,
http://news.bbc.co.uk/go/pr/fr/-/1/hi/business/609812.htm
19
In fact, Sir Nicholas Stern appeared before the two US Senate Committees--Environment and Energyto
present his findings, and urged law makers to launch carbon tax or emissions system. While both industries
(for instance CEO of Pacific Gas & Electrical) and some Senators responded positively, few believed that
Giving effect to the imperative scientific recommendation through law and policy
is equally, if not more, contentious. A global legal regime to address climate change was
established in 1992 at the Rio Conference, when several UN Members signed the United
Nations Framework Convention on Climate Change (UNFCC).
20
The agreement set out
the basic structure for establishing legal obligations among countries to reduce
greenhouse gases; detailed obligations were set out in the Kyoto Protocol, which was
opened for signature in 1997.
21
The Kyoto Protocol allocated emissions quotas to all countries, keeping 1990 as
the baseline year, and required nations that had historically contributed to the problem to
undertake binding obligations to reduce emissions within a fixed time period.
22
The
Protocol also provided several economic-based incentives for reducing emissions,
notably provisions for emissions trading, joint implementation, and clean development
mechanisms.
Emissions trading, or carbon trading, facilitated the sale, and purchase, of carbon
credits among countries, based on their Kyoto allocations; joint implementation allowed
countries to collaboratively invest in projects that would reduce emissions and generate
carbon credits; clean development mechanisms allowed developed countries to invest in
response was imminent. See J.R. Pegg, U.S. Lawmakers Hear Stern Warnings on Climate Change,
Environment News Wire, February 2007,http://www.ens-newswire.comens/feb2007/2007-02-14-10.asp
20
UN Framework Convention on Climate Change (UNFCCC), May 29, 1992, 31 I.L.M. 849, entered into
force Mary 21, 1994.
21
Kyoto Protocol Status of Ratification as of 11
th
May 2007, at http://unfccc.de; Kyoto Protocol to the
United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998), entered
into force Feb. 15, 2005.
22
See Anita M. Havlvorssen, Common, But Differentiated Commitments in the Future Climate Change
RegimeAmending the Kyoto Protocol to Include Annex C and The Annex C Mitigation Fund, 18 COLO. J.
INTL ENVTL. L. & POLY 247 (2007). The reasons for differentiating between developed and developing
countries on grounds of economic differences and historic contributions to the build up of greenhouse gases
in the atmosphere is specifically recognized and acknowledged in the Preamble to UNFCCC,
www.unfcc.ch
emission-reducing technologies, particularly in developing countries, in return for carbon
credits.
23
However, Kyoto Protocol provoked several negative reactions, notably, from the
United States, which withdrew completely from the Protocol,
24
and also from the
nongovernmental sector and from economists.
25
Newly industrializing nations such as
Brazil, China, and India balked at the U.S. governments position that these countries
should also undertake mandatory obligations given their growing rate of emissions. As a
result of the controversy, the Protocol and its mechanisms did not come into effect until
2005, nearly a decade after its being open for signature and six years before its
expiration.
26
Countries that ratified the Protocol, including the European Union (EU) and
Japan, have established carbon trading mechanisms;
27
in fact Japan recently received its
carbon offsets.
28
Further, even within non-ratifying countries, emissions reduction
policies are being developed. For example, U.S. states have independently taken
23
Article 17 of the Kyoto Protocol provide for parties to trade in emissions to meet their obligations or
benefit economically from their excess emission credits; Article 6 provides for Annex I countries to
undertake joint efforts to reduce emissions; Article 12 allows Annex I countries with obligations to reduce
emissions to invest in projects in developing countries, so that they can get credits for reducing emission
levels. Kyoto Protocol, http://unfccc.int/resource/docs/convkp/kpeng.html. See also, Farhana Yamin and
Joanna Depledge, The International Climate Change Regime, A Guide to Rules, Institutions and
Procedures, 74-136 (2004).
24
The Byrd-Hagel Resolution passed by the U.S. Senate unanimously, 95-0, expressly advised the Clinton
Administration not to accept binding obligations under Kyoto Protocol unless developing countries did so
as well. Byrd-Hagel Resolution, Report No. 105-54, 105
th
Congress, 1
st
Session, S. Res. 98. See also, Letter
to Members of the Senate on the Kyoto Protocol on Climate Change, 37 Weekly Comp. Pres. Doc. 444
(Mar. 13, 2001) for a statement by President Bush rejecting the Kyoto Protocol.
25
See e.g. Richard N. Cooper, Toward A Real Global Warming Treaty, Foreign Affairs, March/April 1998.
26
See Daniel Wallis, Russia Ratifies Kyoto, Starts on February 16, Planet Ark, November 19, 2004, http://
www.planetark.com/dailynewsstory.cfm?newsid=28198&newsdate=19-Nov-2004, announcing that the
Kyoto Protocol would become effective from February 2005 with Russias signature adding the requisite
ratification requirement.
27
See EU Emissions Trading Scheme (EU ETS), http://ec.europa.eu/environment/climat/emission.htm. See
also MARJAN PEETERS AND KURT DEKETELAERE, EU CLIMATE CHANGE POLICY, 2006.
28
. See also Japan Becomes First Nation to Receive Carbon Offsets, Daily News, November 19, 2007,
http://www.energysavingtrust.org.uk/resources/daily_news/japan_becomes_first_nation_to_receive_carbon
_offsets.
initiatives to reduce carbon emissions through internal trading mechanisms, and other
regulations;
29
even the Senate is poised to introduce significant legislations.
30
Developing
countries such as India and China have also adopted policies to reduce emissions from
certain sectors and promote renewable energy.
31
Also, Australia, which had refused to
ratify the Protocol unless China and India accepted binding obligations declared that it
would ratify the Kyoto accord, at the thirteenth meeting of the Conference of Parties held
in Bali in December 2007.
32
Currently, of the major emitters, China, India and the United States are the only
countries that have refused to accept binding emissions under the Kyoto Protocol.
33
An
effective post-Kyoto regime, therefore, depends directly on the position taken by these
countries in the negotiations launched at Bali.
34

Climate ChangeIndia in Perspective
Currently, India is ranked as one of the top five emitters of greenhouse gas
emissions,
35
but as a developing country whose industrial process began in the later half
of the 20
th
century it does not bear historical responsibility for carbon dioxide reduction
targets.
36
Moreover, despite having a 4.23% share of the global emissions,
37
which
29
See generally MICHAEL GERRARD (ED), GLOBAL CLIMATE CHANGE AND US LAW, 2007.
30
See Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative
Proposal is Best?, 102 NORTHWESTERN L. REV. 123 (2007), available at https://www.law.
Northwestern.edu/lawreview/colloquy/2007/32/; plus FT and NYT news on new CAFE standards.
31
Infra, 9-17.
32
See Rod McGuirk, Australia Signs Up to Ratifying Kyoto, THE WASHINGTON POST, Monday, December 3,
2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/12/03/AR2007120300135.html.
33
Ibid.
34
For an analysis of the various conflicting interests of negotiating an appropriate global agreement, see,
Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 HARVARD ENVIRONMENTAL LAW REVIEW
1 (2007).
35
See THE LITTLE GREEN DATA BOOK, World Bank, 2007,
http://siteresources.worldbank.org/INTDATASTA/64199955-1178226923002/21322619/LGDB2007.pdf;
36
Infra note 49.
37
The Climate Performance Index, German Watch, websitehttp://www.germanwatch.com; the percentage
of emissions is based on emissions from energy, transport (including air), residential, and industry sectors.
excludes the 10% global emissions share from land use shifts such as deforestation,
38
the
sub-continents overall position on the issue is less troubling than that of other emitters,
particularly China and the United States.
According to a recent Climate Change Performance Index, Indias energy-related
emissions are much lower than that of China or United States, which contributed 18.80%
and 21.44%, respectively in 2007.
39
Further, Indias global share
40
remains relatively low
despite the fact that its share of the global population is 17.02%
41
and its share of the
global GDP is close to that of Japan at 6.16%, in effect the fourth largest economy among
the top emitters.
42
In fact, India a high ranking of five for its climate performance in
2007; this figure is closer that of Germany and United Kingdom that are undertaking
critical measures to address the problem, and much higher than that of most other top
emitters including Canada, China, Italy, Japan, Republic of Korea, The Russian
Federation, and the United States were ranked in the high 40s and 50s.
43

India also leads the chart of top emitters that are demonstrating positive emissions
trends.
44
Indias growth has not been accompanied by high escalation of emissions despite
38
Brazil and Indonesia are the other two major contributes to emissions from land use shifts such as
deforestation. Ibid, Figure 1. However, in the COP 13 meeting held in Bali, developing countries including
India and Brazil agreed to discuss emissions from deforestation as part of treaty negotiations to replace
Kyoto. See Summary of the Thirteenth Conference of Parties to the UN Framework Convention on Climate
Change and Third Meeting of Parties to the Kyoto Protocol, 3-15 December 2007, Earth Negotiations
Bulletin, Vol. 12, No. 354, Tuesday December 18, 2007, available at
http://www.iisd.ca/download/pdf/enb12354e.pdf.
39
See Climate Change Performance Index 2008, German Watch, available at http://www.germanwatch.org/
klima/ccpi2008.pdf. (CCPI). Also, between 1990 and 2004, Chinas CO2 emissions in metric tons
increased from 2,398.9-5,007.1, the United States from 4818.3-6045.8, and India from 681.7-1342.1.
United Nations Development Program (UNDP) Human Development Index, Statistics of the Human
Development Report, 2007/2008 Human Development Index Rankings, http://hdr.undp.org/en/statistics/,
(UNDP HDI).
40
According to UNDP Human Development Index, between 1990 and 2004, Indias global share increased
from 3 to 4.6%; Chinas from 10.6 to 17.3; but the global share of United States went down from 21.2 to
20.9 %.
41
China and United States global population share is 20.39% and 4.61%, respectively, id.
42
United States global GDP share is 20.13%; Chinas 14.75%; and Japans 6.36%, id.
43
Ibid , Table 3,
44
Russia follows close behind, with Canada, China and United States trailing at the bottom. CCPI, Figure
5, supra note 39.
its increasing dependence on coal.
45
In comparison, economic growth in China has been
accompanied by a 3% per capita increase in emissions.
46
As such, India outpaces China
with respect to emission levels, trends in emission increases, and overall climate change
performance; India is ranked among the top ten nations performing well, as opposed to
China which is ranked in the 40s and 50s. The only area where China leads is on climate
policy; it is ranked seventh.
47

However, India is not far behind with a rank of fourteen, and is also fourth in the
upward curve of countries that are adopting sound climate policy.
48
In 2002, India
acceded to Kyoto Protocol, although neither the Protocol nor UNFCC obligate the
Government of India to reduce its greenhouse gas (GHG) emissions.
49
Nevertheless, the
administration is undertaking several voluntary measures that will slow down GHG
emission increases. These measures include promotion of renewable energy
50
and
investments in clean development technologies.
51
The Government has also adopted
45
CCPI predicts that China and India will jointly rack up a 72% demand for the period 2004-2030, id.
46
Ibid. However, both countries remain below their quota or target limits under Kyoto. According to
UNDPs Human Development Index, between 1990 and 2004, Indias per capita emissions increased
from .8 to 1.2 %; Chinas from 2.1 to 3.8%. Incidentally, the U.S. per capita emission increased from 19.3-
20.6% and Canadas from 15-20%.
47
CCPI; in fact, the Chinese Government is committed to adopting several climate positive policies.
48
CCPI Figure 7; Germany, China, and the United Kingdome hold the top position.
49
Under Article 2 (a) & (b) of UNFCCC only developed countries and other Annex I countries, are
required to stabilize emissions by adopting appropriate national policies and regularly submit progress
reports. Further, under Article 3 of the Kyoto Protocol, Annex I countries are required to reduce their GHG
emissions to at least 5% below 1990 levels between 2008-2012, and have been assigned specific emission
quotas under Annexes A and B.
50
The Ministry of New and Renewably Energy, which began as a Department of Non-Conventional Energy
Sources within the Ministry of Energy in the 1970s was recast as a new ministry in 2006. It is exploring
alternatives such as solar, wind, hydropower and biogas substitutes. See Ministry of Renewable Energy,
Annual Report 2005-2006. See also Administrative Circular Notification, No. 24/1/1993-Admn.II,
Government of India, October 20, 2006.
51
According to Article 12 of the Kyoto Protocol, [t]he purpose of the clean development mechanism shall
be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the
ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance
with their quantified emission limitation and reduction commitments under Article 3. This means Annex I
and non-Annex I countries facilitate projects that would support low-emission development, which would
reduce potential increase in emissions in the non-Annex I country and which would count towards the
Annex I countrys emissions reduction. In effect, contributing to the prevention of increased emissions in
one country would be treated as an effort towards stabilization of GHGs to 1990 levels. A list of CDM
energy regulations
52
and established new ministries or administrative agencies.
53
It has
also set up special committees, including one headed by IPCC Chairperson, Rajendra
Pachauri and other prominent government and non-government representatives, to
consider additional venues for action.
54

Yet, despite the positive trends Indias climate scenario is not entirely
encouraging. Within the country, competing policies and interests present significant
challenges to ongoing mitigation efforts. Demand for energy and carbon intensive
materials to sustain development activities has risen exponentially. Notably, there is
increasing demand for electricity for hi-tech industries and for modern amenities such as
air conditioners and cars;
55
for materials to build infrastructure for the spiraling land and
air traffic; and for cement for commercial and residential construction.
56
These energy requirements have driven the Government to exploit domestic coal
reserves, and have increased its dependence on petroleum resources
57
despite growing
projects underway in India is available at See http://cdmindia.nic.in.
52
For example, the Energy Conservation Act (ECA) was passed in 2001 to promote efficient use of energy;
The Energy Conservation Act, 2001, No. 52 of 2001, Ministry of Law, Justice and Company Affairs, Sec. 1
The Gazette of India Extraordinary 3.
53
The Bureau of Energy Efficiency (BEE) was created under ECA. It comprises ministers of Central and
State energy-related agencies. BEE is working with key industries including cement, paper and pulp, and
aluminum, to establish voluntary energy efficiency practices. It is also drafting standards for energy
labeling, building codes, certification programs, among other initiatives. See http://www.bee-india.nic.in/
54
Divya Gandhi, Committee on Climate Change Set Up, THE HINDU, Friday, May 11, 2007,
http://www.thehindu.com/2007/05/11/stories/2007051102381300.htm
55
Indian car manufacturer, the Tata Group, is poised to introduce the first line of low-priced cars, which has
raised concerns about the impact on CO2 emissions, and other pollution. See Jo Johnson, Green Activists
concerned over Peoples Car, Financial Times, January 9, 2008,
56
See P.R. Shukla, Rajesh Nair, Manmohan Kapshe, Amit Garg, S. Balasubramaniam, Deepa Menon, and
K.K. Sharma, Development and Climate: An Assessment of India, Indian Institute of Management,
Ahmedabad, May 2003 (on file with author). See also Steven Ferrey, Why Electricity Matters, Developing
Nations Matter, and Asia Matters Most of All, 15 N.Y.U. Envtl. L. J. 113 (2007), explaining the growing
demand for electricity in Asia, notably India and China, and their reliance on coal; INDIAS INITIAL NATIONAL
COMMUNICATIONS TO THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, Ministry of Environment
and Forests, New Delhi, 2004, http://unfccc.de. See generally, Daniel Yergin, Dennis Eklof & Jefferson
Edmond, Fueling Asias Recovery, 77 FOREIGN AFF. 34 (1998), discussing Asias future fuel needs, for
transport and market growth, in the context of energy security.
57
See also Steven Ferrey, Why Electricity Matters, Developing Nations Matter, and Asia Matters Most of
All, 15 N.Y.U. Envtl. L. J. 113 (2007), explaining the growing demand for electricity in Asia, notably India
and China, and their reliance on coal; INDIAS INITIAL NATIONAL COMMUNICATIONS TO THE UNITED NATIONS
emphasis on weaning away from traditional fuel.
58
Further, the administrations focus on
encouraging internal and foreign direct investments to jumpstart some of the above
mentioned projects, particularly infrastructure buildingpower plants construction,
marine ports, telecommunications and real estate
59
threaten to undermine environmental
impact assessment legislation,
60
which are being used in other jurisdictions such as the
United States to measure climate change impacts of a project, even if with limited
success.
61
This is especially worrisome if one considered the U.S. Department of
FRAMEWORK CONVENTION ON CLIMATE CHANGE, Ministry of Environment and Forests, New Delhi, 2004,
http://unfccc.de. See generally, Daniel Yergin, Dennis Eklof & Jefferson Edmond, Fueling Asias Recovery,
77 FOREIGN AFF. 34 (1998), discussing Asias future fuel needs, for transport and market growth, in the
context of energy security.
58
The Ministry of New and Renewable Energy estimates that only 5-6% of energy will be produced
through renewable resources. See Ministry of Renewable Energy, Annual Report 2005-2006. See also,
Administrative Circular Notification, No. 24/1/1993-Admn.II, Government of India, October 20, 2006. See
also David Sandalow, Freedom from Oil, 2008, for a discussion on the problems of reliance on traditional
oil.
59
The Indian Electricity Act of 2003 gives incentives such as a fixed return on investment of 16%, removal
of licensing requirements to operate and maintain power-generation stations, participation in distribution
and transmission with license from a newly created Central Electricity Regulatory Commission (CERC),
provision for selling power directly without government intervention, and the creation of a separate
Appellate Tribunal for Electricity. The Government is also drafting an Open Skies Policy and an Airport
Economic Regulatory Authority to expand modern construction of airports. See Mark J. Riedy and
Andrews Kurth, Project Finance India 2007Overcoming Hurdles to Growth: Current Trends and
Innovative Transactional Structures in India, 1587 PRACTICING LAW INSTITUTE 143. See also Nandan Nelivigi,
Doug Peel, and Christopher Krishnamoorthy, Infrastructure Project Finance in India: Recent
Developments, 1587 PRACTICING LAW INSTITUTE 133, 2007.
60
For instance, the Govindrajan Committee specifically recommended the removal of hurdles to
infrastructure development, especially EIA. See Report on Reforming Investment Approval &
Implementation Procedures, Part-I (Investment approval procedures-Government and Public Sector
Projects), Government of India, May 2002, http://dipp.nic.in/implrepo/implrepo1.pdf. See also, Ritu
Paliwal, EIA Practice in India and its Evaluation using SWOT Analysis, Environmental Impact Assessment
Review, Vol. 26, Issue 5, July 2006, pp 492-510.
61
For example, in the United States, litigation seeking application of NEPA to assess impacts of major
federal actions on climate change have been increased, especially in 2007, although with partial success. In
Center for Biological Diversity v. National Highway Traffic Safety Administration (NHTSA), 508 F. 3d 508
(9
th
Cir., 2007), the Circuit court held that NHTSA rule setting CAFE standards for light trucks was flawed
because it had not prepared an environmental impact statement considering the effects of greenhouse gases.
However, many district courts have dismissed claims that an EIS should consider climate impacts. See e.g.
Audubon v. Department of Transportation, 2007 WL 3299255 (D. Md. 2007); North Slope Boroughs v.
Minerals Management Service, Slip Copy, 2007 WL 1106110 (D. Alaska, 2007). Border Power Plant
Working Group v. Department of Energy, 467 F. Supp 2d 1040 (S.D. Cal. 2006), in which the US District
Court of Southern California held that the government was not required under NEPA to conduct impact
assessment to measure increase in carbon dioxide emissions by taking into account emissions from plants
in Mexico before constructing utility plants.
However State Environmental Policy Act (SEPA) has been enlisted by many States to assess climate
impacts. See Dustin T. Till, Assessing Climate ChangeTrends under State Environmental Policy Acts and
the National Environmental Policy Act, ENVIRONMENTAL IMPACT ASSESSMENT COMMITTEE NEWSLETTER, ABA,
Energys prediction that at the current growth rate Indias CO2 emissions could increase
between 72 and 225% by 2025,
62
which, regardless of the fact that at 5% its global
contribution will be lower than that of China, Europe and United States,
63
would threaten
the goal of curbing temperature increases at two degrees Celsius.
In short, increase in trade and commerce is driving up Indias GDP and its
emissions. Therefore, given its steady economic growth
64
the Government of India is
under international pressure to accept binding obligations post-Kyoto, much like Annex I
nations.
65
Thus, the Government faces the uphill challenge of designing and maintaining
policies that balance economic growth and climate change mitigation. It has responded
by focusing on alternative energy options, even though they can neither fuel its current
developmental demands, nor adequately minimize the countrys impact on climate
change.
Much more alarming, however, are the potential effects of climate change within
the sub-continent. The Intergovernmental Panel on Climate Change (IPCC)
66
predicts that
Vol. 3, No. 1, November 2007.
62
See KEVIN BAUMERT ET AL., WORLD RES. INST., NAVIGATING THE NUMBERS: GREENHOUSE GAS DATA AND
INTERNATIONAL CLIMATE POLICY 12 fig. 2.1. (2005).
63
See Energy Info. Admin., U.S. Dept of Energy, DOE/EIA 0484, International Energy Outlook 2006 93
tbl.A10 (2006), available at http://www.eia.doe.gov/oiaf/ieo/pdf/ieoreftab_10.pdf. China, Europe and
United States are predicted to have a global share of 23.3, 16.3, and 18.6 percent, respectively.
64
Indias GDP has grown steadily by about 8% in the last few years. See Reserve Bank of India Press
Release, RBI Increases Cash Reserve Ratio, February 13, 2007,
http://www.rbi.org.in/scripts/BS_ViewBulletin.aspx?Id=8333.
65
In legal terms, India would have to accept emissions reduction obligations within a fixed period of time,
like other Annex I Parties as explained in Article 2, Kyoto, supra note 49.
66
The Intergovernmental Panel on Climate Change, comprising scientific experts from a select number of
countries, was established in 1988 by the Executive Council of the World Meteorological Organization
(WMO), with support from UNEP, to identify uncertainties and gaps in present knowledge about
climate change and its potential impacts; gather information to evaluate policy implications and
response strategies; reviewnational/international policies regarding GHGs; and carry out scientific
and environmental assessments regarding GHG emissions and transfer them for relevant governmental and
intergovernmental agencies. These functions are divided among three Working Groupsavailable
scientific information on climate change, environmental and socio-economic impacts of climate change,
and formulation of response strategies, which have published regular reports since 1990. See
Intergovernmental Panel of Climate Change, 16 Years of Scientific Assessment in Support of the Climate
Convention, December 2004, at http://ipcc.ch.
glacial melts in the Himalayan region alone will increase flooding, trigger avalanches and
landslides, and cause extinction of species and ecosystems.
67
As such, Himalayan
glaciers, including the Gangotri, which is a source of the perennial and holy river Ganga,
have receded by thirty meters, endangering water supply in the dry season.
68
Other
changes in hydrological cycles are also expected to cause extreme drought or flood
conditions;
69
shorten crop duration periods to the detriment of agricultural yields,
70
threaten biological diversity,
71
increase risk of malarial outbreaks by creating conditions
favorable to disease carrying vectors;
72
and increase cyclones in coastal regions.
73

67
Climate Change 2007 Impacts, Adaptability and Vulnerability, Working Group II Contribution to the
Intergovernmental Panel on Climate Change Fourth Assessment Report, Summary for Policy Makers, April
2007, Intergovernmental Panel on Climate Change, available at http://www.ipcc.ch. See also Andrew C.
Revkin, Poor Nations to Bear the Brunt as World Warms, New York Times, April 1, 2007.
As described in the section on the Asia scenario, Glacier melt in the Himalayas is projected to increase
flooding, and rock avalanches from destabilized slopes, and to affect water resources within the next two
decades to three decades. This will be followed by decreased river flows as the glaciers recede. Freshwater
availability in Central, South, East and Southeast Asia, particularly in large river basins, is projected to
decrease due to climate change which, along with population growth and increasing demand arising from
higher standards of living could adversely affect more than a billion people by the 2050s. Coastal area,
especially heavily-populated mega-delta regions in South, East and Southeast Asia, will be at greater risk
due to increased flooding from the sea and, in some mega-deltas, flooding from the rivers. Climate change
is projected to impinge on sustainable development of most developing countries of Asia, as it compounds
the pressures on natural resources and the environment associated with urbanization, industrialization, and
economic development. It is projected that crop yields could increase up to 20% in East and Southeast Asia
while they could decrease up to 30% in Central and South Asia by the mid-21
st
century. Taken together and
considering the influence of rapid population growth and urbanization, the risk of hunger is projected to
remain very high in several developing countries. Endemic morbidity and mortality due to diarrhoeal
disease primarily associated with floods and droughts are expected to rise in East, South and Southeast Asia
due to projected changes in the hydrological cycle associated with global warming. Increases in coastal
water temperature would exacerbate the abundance and/or toxicity of cholera in South Asia. Ibid.
68
Emily Wax, A Sacred River Endangered by Global Warming, THE WASHINGTON POST, Sunday, June 17,
A14, 2007.
69
See A.K. Gosain, Sandhya Rao, and Debajit Basuray, Climate Change Impact Assessment on Hydrology
of Indian River Basins, CURRENT SCIENCE, Vol. 90, No. 3, (February 10, 2006). The studies cover the Krishna
and the Mahanadi river basins, but as the authors point out, India comprises of thirteen major river basins
and much more works needs to be done to determine the impact of climate change on all of them.
70
Jayant Sathaye, P.R. Shukla and N.H. Ravindranath, Climate change, sustainable development and India:
Global and national concerns, Current Science, Vol. 90, No. 3, February 10, 2006.
71
N.H. Ravindranath, N.V. Joshi, R. Sukumar and A. Saxena, Impact of Climate Change on Forests in
India, Current Science, Vol. 90, No. 3, February 10, 2006.
72
Sumana Bhattacharya, C. Sharma, R.C. Dhiman and A.P. Mitra, Climate change and Malaria in India,
CURRENT SCIENCE, Vol. 90, No. 3, 10 February, 2006. See also Health Ministry Warns of Spurt in Diseases,
THE INDIAN EXPRESS, Wednesday, May 16, 2007.
73
A.S. Unnikrishnan, K. Rupa Kumar, Sharon E. Fernandes, G.S. Michael and S.K. Patwardhan, Sea level
changes along the Indian Coast: Observations and Projections, CURRENT SCIENCE, Vol. 90., No. 3, February
10, 2006. The authors predict that the intensity and number of cyclone activities will rise in the Bay of
As such, Indias record on managing weather-related calamities is rather dismal.
According to a Climate Risk Index, which rates countries weather risk record that is not
attributed to climate change,
74
India was ranked ninth among the ten most affected
countries for the period 1995-2004; during this same period, the Human Development
Index (HDI) ranked India 127
th
in the world.
75
In fact, India was ranked first for long term
deaths in the same period; even though this was not the case in 2006, the country
remained in the list of top ten countries prone to weather related calamities.
76

The only area that India did not top the HDI list was for GDP losses, which was
noted to be generally higher in developed countries, primarily because insurance and
similar costs, which most affected people in developing countries, including India, cannot
afford.
77
However, according to another study, India is predicted to suffer the highest
GDP loss from climate change, more than Africa, if there is a 2.5 degree Celsius increase
in global temperature and climate change.
78
An early indication of the implications of such losses is already becoming evident
in some parts of the country. In 2007 an Indian farmer was reportedly forced to abandon
his ancestral agricultural land, which was part of one of two islands submerged in the
Sunderbans region due rise in sea level.
79
Another farmer faces a similar threat.
80
Absent
compensation and support from the Government, the former moved to urban areas in
Bengal and the Arabian Sea between 2041 and 2060.
74
Sven Anemller, Stephan Monreal, and Christoph Bals, Global Climate Risk Index 2006, Weather
Related Loss Events and their Impacts on countries in 2004 and in Long Term Comparison, GERMAN WATCH,
http://www.germanwatch.org/klak/cri.html. The ranking is based on four factorsdeath tolls, deaths per
100,000 inhabitants (which in the case of India is balanced against the population), amount of overall losses
in USD, and overall losses in relation to GDP.
75
Ibid.
76
Ibid.
77
Ibid.
78
See WILLIAM NORDHAUS & JOSEPH BOYER, WARMING THE WORLD 91 tbl 4.10 (2000).
79
Roger Harrabin, How Climate Change Hits Indias Poor, BBC NEWS, Thursday, 1 February 2007.
80
See also Sujoy Dhar, Environment-India: Rising Seas Threaten Bengals Deltaic People, INTER PRESS
SERVICE NEWS AGENCY, October 21, 2007, available at, http://ipsnews.net/news.asp?idnews=38035.
search of alternative livelihood, whereas the latter stayed on despite the risk of future
flooding and limited access to food.
81
Both incidents, which have been attributed to
climate change related sea level rise, portend the fate of nearly sixty five percent of
Indias population that is dependent on agriculture, forestry and fisheries for a living.
82
In balance, even though Indias current climate change performance is
encouraging, future increases in emission levels remains a critical concern, and its
adaptation challenges are intimidating. Further, despite Indias climate mitigation
policies, its adaptation policies remain inadequate and yet the Governments attention is
focused on maintaining its emission rights, supported by financial and technological
capacities.
83

The Implications under the Constitution of India: Climate Change in Perspective
The Constitution of India was adopted in 1950, three years after Indias
Independence; the Constitutional Drafting Committee considered several models, notably
that of United Kingdom and the United States, in determining the structure of governance
and power distribution among the Union Government (also referred to as Central
government) and State Governments.
84
However, one of the most salient features,
fundamental rights, was incorporated in Part III of the Constitution.
81
Ibid; supra note 79.
82
See Indias Initial National Communications to the United Nations Framework Convention on Climate
Change, Ministry of Environment and Forests, New Delhi, 2004,
http://unfccc.int/resource/docs/natc/indnc1.pdf.
83
See generally Thomas Fuller and Andrew C. Revkin, Climate Deal Seems Close, But Elusive, THE NEW
YORK TIMES, December 15, 2007, available at http://www.nytimes.com/2007/12/15/world/15climate.html?
scp=10&sq=india%2C+bali+and+climate+change. See also Summary of the Thirteenth Conference of
Parties to the UN Framework Convention on Climate Change and Third Meeting of Parties to the Kyoto
Protocol, 3-15 December 2007, EARTH NEGOTIATIONS BULLETIN, Vol. 12, No. 354, Tuesday December 18,
2007, available at http://www.iisd.ca/download/pdf/enb12354e.pdf. India and other developing countries
made the finally accepted proposal that mitigation action should be nationally appropriate, based on
technological and financial capacity.
84
See generally DURGA DAS BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA, 19
th
Ed, 2007.
The rights conferred under Part III are based on similar provisions in other
jurisdictionsthe Bill of Rights in England and the United States, and the Declaration of
the Rights of Man in France.
85
Constitutional drafters were also influenced by the
Universal Declaration of Human Rights (UDHR) adopted in 1948.
86
The final document
recognized six fundamental rightsto equality,
87
against exploitation,
88
to freedom of
religion,
89
cultural and education,
90
constitutional remedies,
91
and right to freedom (of
speech and expression, of peaceful assembly without arms, to association, of movement,
of residence, of profession or trade).
92

The rights were not only conferred because of the worldwide civil liberties
movement and rights movement of that period, but also in response to deeply disturbing
inequalities and social distortions within the India society. For example, caste-based
discrimination left many groups without sufficient social, economic, and political rights;
93
speech and freedom had been curbed by the British administration in India, fearing civil
unrest;
94
and numerous discriminatory cultural practices prevailed.
95
In an effort to reject
such practices, the Government of India not only passed legislation abolishing such
85
Ibid.
86
Universal Declaration on Human Rights, http://www.un.org/Overview/rights.html
87
Article 14, Constitution of India.
88
Articles 23 and 24; in particular these provisions prohibit trafficking in human beings as slaves or
prostitutes and child labor.
89
Articles 25, 26, 27 and 28 confer Indian citizens the right to practice any religion of their choice, pursuant
to the countries adherence to secularism.
90
Articles 29 and 30 protect cultural rights of minorities, including their language and religious practices.
91
This right is protected by Article 32, allowing citizens to file writ petitions in case of denial of their
fundamental rights.
92
Articles 19 through 22 confer a series of freedoms; notably, Article 21 grants to right to freedom of life
and personal liberty.
93
See generally JOHN MCLEOD, THE HISTORY OF INDIA 2002. See also Indian History, Know India,
Government of India, http://india.gov.in/knowindia/ancient_history.php
94
Ibid.
95
For example, social norms such as preventing widows from remarrying were prevalent in several parts of
the country. Ibid.
violating norms and practices, but also rejected the basis for such practices through the
fundamental rights provision.
96

While the Constitution guarantees Indians fundamental rights, they are not
necessarily unlimited. Fundamental rights are subject to constitutional amendments; in
fact, the right to property which was originally included as a fundamental right was
removed from Part III and reconstituted as a general constitutional right under Article
300-A.
97
Further, in cases of emergency the Government has the authority to suspend
these rights, including the right to judicial review, but the power is subject to reasonable
substantive and procedural safeguards.
98

To date, the Government of India has defended numerous fundamental rights
petitions.
99
Moreover, the translation of the fundamental rights into practice remains an
ongoing process even though the Indian legislation has enacted several statutes on
numerous issues that are directly linked to fundamental rights. As discussed later,
innovative interpretation of substantive and procedural aspects of the Constitution have
become critical and indispensable for many Indians to realize their basic constitutional
rights, be it better economic and living conditions or sound environmental safeguards.
100
Climate change is an issue where mitigation legislation passed by the Government
addresses certain rights of the Indian community, say, access to energy to promote
personal liberty, but does not necessarily protect all fundamental rights. Catastrophic
events that may be unraveled by climate change will not only have severe economic
96
The practice of birth-based caste discrimination practice of untouchability, for instance, was abolished by
Untouchability Offences Act of 1955, and Article 17 of the Constitution specifically included such
abolition with the Fundamental Rights chapter. See generally H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA: A
CRITICAL COMMENTARY, 3
rd
ed., 1983.
97
44
th
Amendment Act, 1978, http://indiacode.nic.in/coiweb/amend/amend44.htm; by virtue of the
amendment certain feudal type land ownership systems have been abolished. Infra note 197.
98
Infra note 101.
99
Basu, supra note 84.
100
Infra, 27.
repercussions, but also implicate constitutional rights of citizens. The rights that will be
affected are either fundamental rights under the Indian Constitution, notably the Article
21 right to life, or rights that the Supreme Court of India has held to be an integral part of
Article 21,
101
including rights to livelihood,
102
health,
103
and basic necessities.
104
Violation
of fundamental rights is unconstitutional, if abridged by the State
105
without following
procedure established by law.
106
In the context of climate change, since there is no
procedure of law by which citizens can be denied these rightscontravention of the
rights constitutes a constitutional violation.
This emerging constitutional challenge is theoretically problematic, because
fundamental rights bind only the Republic of India
107
and not foreign states. But, at this
point many industrialized nations that are responsible for the dangerous levels of GHG
accumulations are foreign states, as affirmed in the Kyoto Protocol.
108
Even if one
considers a scenario whereby Indias emission increases add to the problem by 2030, at
present that estimate shows that the countrys global share will be much lower than that
of China, Europe or the United States, for instance.
109
Thus, even if some portion of
liability could be attributed to the Indian Government, much of the responsibility would
101
Article 21 states that [n]o person shall be deprived of his life or personal liberty except according to
procedure established by law.
102
Hoskot v. State of Maharashtra, A.I.R. 1978 S.C. 1533.
103
Bandhua Mukti Morcha v. India A.I.R. 1984 S.C. 802.
104
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1985 S.C. 180.
105
Article 12 defines State to include the Government and Parliament of India and the Government and the
Legislature of each of the States and all local or other authorities within the territory of India or under the
control of the Government of India.
106
Under Article 21 read with Article 12 (2), judicial review of governmental action may be sought if a
domestic law (defined under Article 13 (3) to include orders, notifications, bye-laws, rules, etc.)
contravenes the right to life and personal liberty without complying with appropriate legal procedure. See
generally, S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POLY 29, 38 (2001),
explaining the judicial review under the Indian Constitution.
107
Supra note 105.
108
Supra note 49.
109
CCPI, supra note 39.
lie with foreign States. There is no precedent of citizens of India claiming redress from
foreign nations for violating their constitutional rights.
At the most, affected citizens could pursue statutory remedies in certain
jurisdictions. For instance, the U.S. Alien Torts Claim Statute provides for foreign
nationals to bring a torts action against U.S. government and citizens for violation of
international law, or law of nations.
110
However, claimants must prove violation of
international law
111
and not of their own domestic law, not even the Constitution. Thus, in
this case Indian citizens would have to demonstrate that the U.S. government violated
international law in causing climate change in India,
112
a claim that presents a range of
evidentiary and jurisprudential problems which most of the affected Indians will find
insurmountable.
As the discussion on climate change indicates, even the IPCC is not yet entirely
certain about the extent of temperature increases that are natural as against that caused by
anthropogenic emissions, and the US has already made such an argument in a petition
filed against it before the UN Economic Scientific and Cultural Organization
(UNESCO).
113
Even if such distinction were possible, the burden obviously lies with
110
28 U.S.C. 1350.
111
Ibid.
112
For a discussion of the Alien Torts Claims Act (ACTA), its scope and limits, see, Anthony DAmato,
The Alien Tort Statute and the Founding of the Constitution, 82 AM. J. INTL L. 62 (1998); William S.
Dodge, The Historical Origins of the Alien Tort Statute: A Response to the Originalists, 19 HASTINGS
INTL & COMP. L. REV. 221 (1996); Donald J. Kochan, No Longer Little Known but Now a Door Ajar: An
Overview of the Evolving and Dangerous Role of the Alien Tort Statute in Human Rights and International
Law Jurisprudence, 8 CHAPMAN L. REV. 103 (2005). For a detailed analysis of the potential bringing
environmental claims under the Act, see, Russell Unger, Brandishing the Precautionary Principle Through
the Alien Tort Claims Act, 9 N.Y.U. ENVTL L. J.638 (2001).
113
In February 2006, the International Environmental Law Project at Lewis & Clark School filed a petition
before the UN World Heritage Committee of the United Nations Educational Cultural and Scientific
Organization (UNESCO) seeking not only the listing of the Waterton Glacier in Montana (shared with
Canada) as a world heritage in danger from climate change, but also requiring the United States to take
steps to prevent its destruction by curbing greenhouse gas emissions. In response to the petition, the United
States argued that the glacier melting due to temperature increases were also due to natural causes. For a
discussion of the petition and the US response, see, Bradford C. Mank, Civil Remedies, GLOBAL CLIMATE
CHANGE AND U.S. LAW (Michael Gerrard, Editor), 223-224, 253, 2007.
several States; if not the newly industrialized countries such as China, Brazil or
Indonesia, then certainly Australia, Canada, some European countries such as United
Kingdom and Germany, Japan and the United States, all of which have historically
contributed to the problem.
114
The acceptance of binding emissions reduction targets by
some nations does not necessarily exempt them from liability at this point, because most
of the major historic emitters have not met their reduction targets.
115
Thus, apportioning
liability would prove extremely difficult.
As such, despite a recent increase in ATCA claims in the human rights arena,
116
the response of U.S. district and appellate courts to environmental suits has been tepid.
117
Further, the exercise of judicial power in determining what constitutes international law,
including customary law remains contentious,
118
and invoking liability under a treaty that
the United States has specifically rejected seems highly improbable.
119
Also, if other
human rights claims such as that of the Inuit Circumpolar Conference before the Inter-
American Human Rights Commission are considered, the time taken for such dispute
resolution process to be complete is discouraging.
120
At a more theoretical level issues of
114
UNFCCC, Key GHG Data: Greenhouse Gas (GHG) Emissions Data for 1990-2003 submitted to the
UNFCCC 16-17 (Nov. 2, 2005).
115
Ibid.
116
For a list of all ATCA claims brought to date, see, The Alien Tort Provision: Correcting the Abuse of an
Early Federalist Statute, USA Engage,
http://www.usaengage.org/legislative/2003/alientort/alientorttpcases.html
117
For a discussion of recent ATCA environmental based claims and their outcomes, see, Bradford C.
Mank, Civil Remedies, GLOBAL CLIMATE CHANGE AND U.S. LAW (Michael Gerrard, Editor), 2007.
118
In the United States, the debate with respect to ACTA has turned to the issue of the extent of judicial
powers over foreign policy and its implications for the separation of powers, particularly in light of recent
human rights litigation that have been brought before U.S. courts. For a discussion on the debate on both
sides, see, Harold Hongju Koh, Is International Law Really State Law? 111 HARV. L. REV. 1824 (1998);
Curtis A. Bradley and Jack L. Goldsmith, Customary International Law As Federal Common Law: A
Critique of the Modern Position, 110 HARV. L. REV. 815; Donald J. Kochan, Constitutional Structure as a
Limitation on the Scope of the Law of Nations in the Alien Torts Claim Act, 31 CORNELL L. J. 153 (1998).
119
A brief opinion note in fact argued U.S. ought to withdrawing from Kyoto to avoid potential ACTA
claims. See Christopher Horner and Iain Murray, Why the United States Should Remove its Signature from
the Kyoto Protocol, CEI MONTHLY PLANET, September 29, 2004, http://www.globalwarming.org/node/738.
120
In December 2005, the chair of the Inuit Circumpolar Conference (ICC), Sheila Watt-Cloutier brought
an action claiming that the United States had violated the human rights of her peoples right to livelihood
and way of life, by causing climate change and the resultant melting of the ice in the Artic region, based on
inter- and intra generational justice may crop up; for instance, Posner and Sunstein in a
recent paper present the question, why should future Americans pay for the future
sufferings of future Indians, for the actions of past Americans?
121
Under these circumstances, judicial review under the Indian Constitution appears
to be an important, perhaps the best, venue for citizens to claim protection against and
redress for violation of their constitutional rights by acts foreign entities or states.
But, can the Indian Judiciary Intervene?
The Indian judiciary is well placed to address constitutional challenges arising
from climate change, primarily because of the public interest litigation or epistolary
jurisprudence that it has developed to protect fundamental rights of Indians. The Indian
Supreme Court has provided some broad and innovative interpretation of laws in
response to practical problems such as costs of litigation and other resource constraints
that made the judiciary, particularly higher courts located in major cities, inaccessible to
thousands of Indians.
Firstly, the Court has waived ripeness requirements for bringing an action, on
the ground that in a country where most people are unaware of their rights violations
should be addressed before actual violation occurs.
122
Thus, the presence of substantial
a 2004 Artic Climate Impact Assessment prepared jointly by over 300 scientists, with the participation of
15 countries and six indigenous groups. ICC also claimed violation also of UNFCCC and sought as relief,
US ratification of Kyoto and establishment of adaptation relief. The Commission has yet to admit the
petition. See Mank, supra note113, 221-223.
See also Hari M. Osofsky, The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and
Indigenous Peoples Rights, 31 AM. INDIAN L. REV. 675 (2006-2007).
121
See Eric A. Posner and Cass R. Sunstein, Climate Change Justice, John M. Olin Las & Economics
Working Paper No. 354 (2D Series); Public Law and Legal Theory Working Paper No. 177, accessed at
http://ssrn.com/abstract_id=1008958.
122
See Basheshar Nath v. Commissioner of Income Tax, A.I.R. 1959 S.C. 149, holding that waiver of
fundamental rights could not be upheld in a country where many people were ill-informed about their
rights. See also Sathe, supra note 106, 67.
threat of climate-related violations should be sufficient to invoke the Courts writ
jurisdiction under Article 32.
123

Secondly, the Court has the authority to determine whether an injury has
occurred,
124
without relying on statutory enactments.
125
Further, petitioners need not
satisfy the other two standing requirements under U.S. law, causation and redressability
(remedy).
126
Thirdly, the Court can provide broad remedies, by issuing a writ of mandamus not
only ordering the government to perform non-discretionary functions, or enjoining it
from performing a statutorily prohibited action, but also requiring it to perform
discretionary functions.
127
Moreover, the Court can issue continuing mandamus,
128
obligating the government to take specific actions and report progress on a regular
basis,
129
as it has in the past.
130
123
Article 32 (1) states: [t]he right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed. Article 32 provides for writ petitions such as
mandamus and habeas corpus.
124
The Court has held that it has the authority to decide whether proper procedure was prescribed by the
legislature and followed by the executive under Article 21. Sathe, supra note 106, 67.
125
This position differs from the U.S. Standing requirement, where injury-in-fact is determined on the basis
of statutory provisions. In fact, in a recent climate-related litigations, Massachusetts v. U.S. Environmental
Protection Agency, 127 S. Ct. 1438 (2007), the U.S. Supreme Court held that injury-in-fact involved a
substantive test based on statutory rights and not on judicial determination of actual injury. See Access to
Courts After Massachusetts v. EPA: Who Has Been Left Standing? 37 ENVTL L. REP. 10692 (September
2007), discussing briefly the development of standing jurisprudence in the United States, leading up to the
Supreme Courts recent decision regarding the power of EPA to regulate carbon dioxide emissions.
126
See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), explaining each of the tests. Although the
Indian judiciary followed a three prong test similar to the United States law, it relaxed these requirements in
S.P. Gupta v. President of India, A.I.R. 1982 S.C. 149, in which the executive arbitrarily transferred judges
for their opinions, threatening the independence of the judiciary. The Court not lowered standing
requirements, but also held that the fundamental right to freedom of speech and expression enshrined in
Art. 19(1) of the Constitution included the right to information. Further, the Court ruled that the
Government was required to consult with the Chief Justice and other judges before appointing judges, even
though the final decision remained with the executive. See also Sathe supra note 106, 70, 96 and 102.
127
Sathe, supra note 106, 23.
128
Ibid, 82.
129
Sathe, supra note 106, discussing the orders issued by the Court to the Central Bureau of Investigation,
in Vineet Narain v. Union of India, A.I.R. 1996 S.C. 3386 and in Union of India v. Sushil Kumar Modi,
A.I.R. 1997 S.C. 314.
130
For instance in Kishen v. State of Orissa, A.I.R. 1989 S.C. 677, the Court ordered the Government to
prevent death by poverty and starvation, Similarly, in Azad Riksha Pullers case, A.I.R. 1981 S.C. 14, the
Court ordered the Punjab National Bank to give loans to auto riksha pullers, following a government order
Due to the above rulings, the Indian judiciary is considered to be one of the most
powerful courts in the world. In fact, in comparison US courts far more restrained by the
separation of powers doctrine enshrined in the Constitution.
131
Further, in the case of
environmental issues, representative suits may generally be brought against State
agencies within the scope of a given statute.
132
Fourthly, any person with sufficient interest
133
in helping poor and vulnerable
sections of the population can seek judicial review on behalf of victims of fundamental
rights violations.
134
In the alternative, the Court can assume suo motto jurisdiction by
treating letters or newspaper reports as writ petitions.
135

In addition to the procedural flexibilities, the Courts substantive interpretation of
fundamental rights, based on non-binding constitutional law provisions
136
and on foreign
that only owners of rikshas could legally ply the vehicles. Instead of striking down the Government order,
the Court arrangements for the majority of auto riksha wallahs, who did not own a vehicle, to acquire
rikshas.
131
Sathe, supra note 106.
132
See generally Access to Courts After Massachusetts v. EPA: Who Has Been Left Standing? 37 ENVTL L.
REP. 10692 (September 2007).
133
As a result, non-governmental organizations and public interest lawyers have filed many writ petitions
on behalf of those affected, which the Court had balanced by allowing only genuine petitions and not mala
fide actions. Sathe, supra note 106, 81.
134
See Bandhua Mukti Morcha v. India, A.I.R. 1984 S.C. 802. The Court observed that judicial review
proceeding to enforce fundamental rights was not limited to any person or proceedings under Article 32(1)
of the Constitution. The Court has taken such a broad approach to ensure that rights of Indians who are not
in a position to claim fundamental rights protection enjoy full constitutional protection. Judges in the
Supreme Court, notably Justice P.N. Bhagawati, view public interest litigation as a means for poor, under-
informed, and underprivileged Indians to access expensive judicial systems, and the judiciary must
therefore open up access through flexible rules. See P.N. Bhagawati, Judicial Activism and Public Interest
Litigation, 23 COLUM. J. TRANSNATL L. 561 (1085). See also Jeremy Cooper, Poverty and Constitutional
Justice, 44 MERCER L. REV. 611 (1993).
135
See Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675, in which the Court treated a letter from
a prisoner complaining about prison conditions as a writ petition seeking to enforce fundamental rights. See
also P.U.D.R. v. India A.I.R. 1982 S.C. 1473.
136
Directive principles contained in Part IV of Constitution set out non-binding goals, such as free legal aid,
gender non-discrimination, compulsory education, and provision for livelihood, for the Government to
implement. Article 37 states: [t]he provisions contained in this Part shall not be enforceable by any court,
but the principles therein laid down are nevertheless fundamental in the governance of the country and it
shall be the duty of the State to apply these principles in making laws. See also Andhra Pradesh Pollution
Control Board v. M. Nayuda (1999) 2 S.C.C. 718; M.C. Mehta v. Union of India, (1992) 2 S.C.C. 256;
Sachidananda Pandey v. State of West Bengal, A.I.R. 1987 S.C. 1109.
decisions and international law and principles,
137
also provide adequate room for a
constitution claim. Over the years the Court has read into fundamental rights provisions,
a range of ancillary rightslivelihood,
138
health,
139
basic necessities,
140
travel abroad
141
and privacy.
142

The possibility of successfully proceeding with a climate change claim also
appears favorable in light of the Courts invocation of epistolary jurisdiction to address
several environmental concerns, including protecting the Taj Mahal from coal and coke
pollution;
143
cleaning up the Ganga;
144
relocating hazardous industries in Delhi;
145
curbing
vehicular pollution;
146
requiring compulsory environmental education;
147
and re-directing
137
See Indian Council for Enviro-Legal Action, (1996) 5 S.C.C. 212, holding that the polluter pays principle
was law of the land; Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647, holding the
precautionary principle was part of Indias environmental laws; M.C. Mehta v. Kamal Nath, infra note 148,
using the Roman law doctrine of public trust, as applied by the Supreme Court of California in National
Audubon Society v. Superior Court 33 Cal. 3d 419 (1983). Also, for a study of trends in the Indian
judiciarys use of international and foreign decisions, see, Adam M. Smith, Making Itself at Home
Understanding Foreign Law in Domestic Jurisprudence: The Indian Case, 24 BERKELEY J. INTL L. 218, 240
(2006). The author provides statistics that demonstrate that the Supreme Courts reliance on foreign law,
not just British law, has declined since 1990s, although it relied heavily on Privy Council decisions in the
1950s.
138
Hoskot v. State of Maharstra, A.I.R. 1978 S.C. 1533.
139
Bandhua Mukti Morcha v. India A.I.R. 1984 S.C. 802.
140
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1985 S.C. 180.
141
See Satwant Singh v. Asst. Passport Officer, A.I.R. 1967 S.C. 1836; Maneka Gandhi v. Union of India,
A.I.R. 1978 S.C. 597, where the petitioner argued that by impounding her passport, the Government had
violated her Art. 21 right to personal liberty.
142
See Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295, holding that personal liberty implied the right
to privacy. See also Sathe, supra note 106, 51-57, for a detailed discussion on the interpretation of Article
21 by the Supreme Court.
143
M.C. Mehta v. Union of India, (1997) 2 SCC 353.
144
M.C. Mehta v. Union of India, (1998) 6 S.C.C. 63.
145
M.C. Mehta v. Union of India, A.I.R. 1996 5 S.C.C. 281. The Court ordered the closure and relocation of
more than 1300 major polluting hazardous industries from Delhi to sites in neighboring states. See M.C.
Mehta v. Union of India (1998) 6 S.C.C. 63.
146
M.C. Mehta v. Union of India, (1999) 6 S.C.C. 12; M.C. Mehta v. Union of India, (2002) 4 S.C.C. 359.
In both cases, the Court ordered the Government to implement Euro I and II standards for reducing
automobile pollution. Further, in a far reaching case, the Court ordered that all public buses be run on
compressed natural gas to reduce pollution.
147
M.C. Mehta v. Union of India, A.I.R. 1988 S.C. 103; M.C. Mehta v. Union of India (1998) 6 S.C.C. 63.
an illegally diverted river,
148
among others.
149
The Court has also proven adept in
catalyzing executive action on several issues.
150

Thus, theoretically the Indian judiciary has the capacity to address potential
climate change related violations of fundamental rights.
Limits of Judicial Intervention
Although the Court could assume jurisdiction to address the problem of potential
violation of fundamental rights because of climate change, it will not be able to provide
adequate remedies within the current framework of its jurisprudence, since the Court has
no jurisdiction over foreign States under the Indian Constitution. An Article 32 judicial
review is available only in the case of violation of fundamental rights by Indian
governments.
151
Thus, at this juncture the Court can at the most direct the Governments
international negotiations. In such an event, the Court will be intervening with the
Governments exercise of foreign affairs powers.
148
M.C.Mehta v. Kamal Nath, A.I.R. 2000 6 S.C.C. 213, in which Mehta challenged the diversion of the
river Beas by a Hotel, in which close relatives of Kamal Nath, the Minister of Environment and Forests,
held shares. The Court held that disturbing the basic environment such as air and water constituted a
violation of the right to life, which encompassed preservation of ecological balance. Incidentally, Kamal
Nath is now the Minister of Trade, representing India in the UK led coalition GLOBE, to address the
problem of global warming and climate change. See G8 + 8 Climate Change Dialogue, Brussels Legislators
Forum, GLOBE International, at www.globeinternational.org.
149
An overview of all the cases brought by M.C. Mehta regarding environmental protection at the M.C.
Mehta Environmental Foundation, http://www.mcmef.org/landmark.htm.
150
See M.C. Mehta v. Union of India (1998) 6 S.C.C. 63 (Delhi Pollution Case), in which the Court set up a
Committee to advice it on shifting the implications of shifting from traditional fuel to compressed natural
gas (CNG) for public buses, and ordered all related government agencies to coordinate with each other, and
monitored the implementation by requiring periodic requirements. Similarly, in T.N.Godavarman
Thiurmulpad v. Union of India, (2006) 5 SCC 57, the Court issued a series of orders regarding the
management of national forests.
151
Article 12 states: In this Part, unless the context otherwise requires, the State includes the Government
and Parliament of India and the Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of Government of India. In this Part refers to
the section on Fundamental Rights.
The Constitution vests foreign affairs powers exclusively with the Central
government.
152
It grants the Parliament, which is the legislative branch,
153
the power to
enact laws regarding foreign affairs,
154
including conclusion of legal arrangements.
155
However, in practice, the Executive
156
enters into and implements treaties and
international obligations,
157
and the Parliament has the power to enact executing domestic
legislation.
158
No provision of the Indian Constitution explicitly grants the judiciary the
authority to review matters related to foreign affairs. In fact, the judiciary is specifically
152
The subject matters with respect to which the State and Central government have jurisdiction are listed
in the Seventh Schedule. List I sets out areas for the Central Government, List II, the States, and List III for
both the State and Central governments, even though the Central government has preemptory powers in
case of overlap or conflict. The Central government also has residuary powers regarding subject matters
that are not covered in Lists II and III. See Articles 246 and 254.
153
The Parliament is composed of the President and two Housesthe Council of States and House of
People. See Article 79 of the Constitution of India.
154
However, because the President heads the Executive branch and is also part of the Legislature, the
division of powers under the Indian Constitution is considered a mix of both the British and the U.S.
systems. See Thomas M. Franck and Arun K. Thiruvengadam, International Law and Constitution-Making,
2 CHINESE J. INTL. L. 468,483 (2003).
155
List I, Item 10 lists foreign affairs as follows foreign affairs; all matters which bring the union into
relation with any foreign country. A series of foreign affairs related powers are listed in List Ipreventive
detention with respect to foreign affairs (Item 9); treaty-making and implementation (Item 14); foreign
jurisdiction (Item 16); and foreign exchange and foreign loans (Items 36, 37).
156
The executive branch is headed by the President. The President is advised by a Council of Ministers,
headed by the Prime Minister. See Article 74.
157
A similar practice has been observed in the United States. See G. Edward White, The Transformation of
the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1, 4-5 (1999), arguing against exclusive
Federal Executive authority to pursue foreign affairs.
158
See Franck and Thiruvengadam, supra note 154, 483-484 (2003). According to the authors, the Indian
practice bears the mark of British practice. They note that by reading Article 73, 246, 253 and Entry 14 of
List I, Schedule VII that the executive power of the Union government is co-extensive with the legislative
power in the matter of entering into, and implementation of, treaties.
The Indian position on foreign affairs powers resembles that of the United States to the extent that the
Congress , the legislative and executive branches both have some powers related to foreign affairs, which
they could exercise in cooperation, or not. However, the extent of power of each branch remains subject to
discussion. Also controversial is the extent of foreign policy powers relegated by States (which in India is
not a concern since States are not vested with foreign affairs powers under Lists II or III of the Seventh
Schedule to the Indian Constitution). For a discussion on the evolution of foreign affairs jurisprudence in
the United States, see, White, supra note 157.
excluded from adjudicating international disputes,
159
except for advising the President
upon request.
160

In fact, in Novartis v. Union of India, the High Court of Chennai (appellate court)
held that it did not have the jurisdiction to decide whether the Indian Patent Act, 1970
complied with the Agreement on Trade Related Intellectual Property Agreement
(TRIPs).
161
Based on an early U.S. Supreme Court decision, the Court decided that where
Governments had entered into an international agreement, which contained a dispute
settlement clause, they were bound by such a contract and not to domestic court
jurisdiction. In another instance, the Court had also held that it does not have the
authority to compel the Government to enact national laws executing its international law
obligations, and that where such laws are absent rights created under the corresponding
treaty cannot be enforced by the courts.
162
Yet, as argued by scholars the Indian Supreme Court has placed checks on the
executive treaty-making power in the past.
163
For instance, in Madhav Rao Scindia v.
Union of India,
164
the Court held that the government does not have the authority to use
159
Article 363, which reads as follows: 363. Bar to interference by courts in disputes arising out of certain
treaties, agreements, etc.(1) Notwithstanding anything in this Constitution but subject o the provisions of
article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out
of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State
and to which the Government of the Dominion of India or any of its predecessor Governments was a party
and which has or has been continued in operation after such commencement, or in any dispute in respect of
any right accruing under or any liability or obligation arising out of any of the provisions of this
Constitution relating to any such treaty, agreement, covenant, engagement, sanad or similar instrument.
The limitation on the jurisdiction is also reiterated in the provision to Article 131, which provides for
original jurisdiction of the Supreme Court.
160
Article 143 reads as follows: Power of President to consult Supreme Court.(1) If at anytime it appears
to the President that a question of law or fact has arisen, or it is likely to arise, which is of such a nature and
of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may
refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit,
report to the President its opinion thereon.
161
W.P. Nos. 24759 and 24760, 2006, 06.08.2007.
162
See Jolly George Verghese v. Bank of Cochin 2SCC 360 (1980).
163
See Franck and Thiruvengadam, supra note 154.
164
A.I.R. 1971 S.C. 530 (2003).
its foreign affairs provision to unilaterally withdraw recognition of royalty status to
former princes.
165
Thus, unlike in the United States,
166
the judiciary has not consistently
held that foreign affairs are a prerogative of executive branch subject only to limited
intervention from the legislative branch. As discussed earlier, it has in fact relied on
international instruments such as UDHR
167
to give effect to fundamental rights.
168
Further, the Supreme Courts reasoning in developing epistolary jurisdiction
supports an argument in favor of judicial intervention in foreign affairs. The judiciary
interpreted locus standi liberally, because the Court believed that the promises of a
constitutional democracy were beyond the reach of many Indians due to financial and
cultural constraints.
169
Judges who pioneered public interest litigation reasoned that in a
society where oppression and poverty were cultural norms, most people would not have
the knowledge or the means to claim their constitutional rights.
170
None of these conditions have changed, despite Indias economic growth. India
remains home to some of the poorest people in the world. According to the 2005 United
165
See Burt Neuborne, The Supreme Court of India, 1 INTL J. CONST. L. 476, 487-492 (2003).
166
In the United States, foreign matters are generally excluded from judicial review under the political
question doctrine. However, recent cases United States v. Alvarez-Machain and Hamdi, and the position of
noted scholars in favor judicial intervention constant bring the question back for reconsideration. For an
overview of the U.S. position, see, THOMAS FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF
LAW APPLY TO FOREIGN AFFAIRS? (1992). See also Anne-Marie Slaughter Burley, Are Foreign Affairs
Different? Book Review, 106 HARV. L. REV. 1980 (1993), reviewing the implications for Thomas Francks
argument against the political question doctrine limitation on judicial review. See also Jide Nzelibe, The
Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941 (2004), for an overview of the various issues related to
foreign affairs powers of the judiciary and the need for a more reasoned approach that would allow the
judiciary to address foreign affairs.
167
See Keshavananda Bharati; the Supreme Court held that to the extent possible, the Constitution of India
should take into consideration and give effect to the United Nations Charter and UDHR. See also ADM
Jabalpur v. Shukla AIR 1976 SC 1207 (minority opinion); Ajay Hasia v. Khalid Mujib AIR 1981 SC 487
and Vishaka v. State of Rajasthan [1997] INSC 701.
168
P.N. Bhagawati, supra note 134.
169
See also Ashutosh Varshney, Democracy vs. Growth in India, FOREIGN AFFAIRS, 93 (March/April 2007),
discussing current challenges to democracy in India.
170
Ibid. See also Maureen B. Callahan, Cultural Relativism and the Interpretation of Constitutional Texts,
30 WILLAMETTE L. REV. 609 (1994), arguing drafters of the Indian Constitution sought to transform the
society.
Nations Human Development Index (HDI), India was ranked 128 among all countries;
171
despite a GDP that was higher than that of Tajikistan (3530 v. 1370), India was ranked
relatively lower in the HDI (0.68 v. 0.62).
172
Reportedly, the subcontinent also contains
some of the most polluted and hazardous sites on the planet.
173
Administrative systems
remain corrupt
174
and access to courts remains abysmal, expensive and slow.
175
In other
words, a large percentage of Indians remain vulnerable to climate change-related
violations of their fundamental rights, without redress. Thus, the Indian judiciary would
be justified in exercising its jurisdiction to intervene in foreign affairs, to safeguard
climate change related violations within Article 32.
However, short of directing the Government international climate negotiations
and policies, there is little that the Indian judiciary can do by way of shielding
fundamental rights from climate change violations, without risking its legitimacy.
176
If
171
According to the 2007/2008 UNDP Human Poverty Index, India is ranked 62
nd
among the 108
developing countries; poverty is not merely measured in terms of people living below $1 a day, but also in
terms of the percentage of people without, say, drinking water, which is currently at 14%, United Nations
Development Index 2005, United Nations Development Reports, Human Poverty in India: Focusing on the
Most Deprived in Multiple Dimensions of Poverty,
http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_IND.html
172
Ibid.
173
Fiona Harvey, Planets Most Polluted Sites Unveiled, FINANCIAL TIMES, Thursday, September 13, 2007,
page 4. India, with China and Russia was reported to contain most contaminated sites, including toxic
mining sites.
174
See generally PRATAP BHANU MEHTA, THE BURDEN OF DEMOCRACY, 2003. See also, Toral Patel, Corrupt
Practices in India: No Payoff, 20 LOY. L.A. INTL & COMP. L. J. 389, 398, 1998. But see Report on the
Transparency International Global Corruption Barometer, TRANSPARENCY INTERNATIONAL, 7
th
December 2006,
noting, however, some improvements; Wolfgang Schurer, A Geopolitical and Geo-Economic Overview: On
the Rise of China and India as Two Asian Giants, 29-SUM FLETCHER F. WORLD AFF. 145, 158 (2005), noting
that despite problems of administrative corruption the new cabinet in New Delhi has an impeccable anti-
corruption record and that India is well on its way to building both domestic and international trust in its
legal and regulatory climate.
175
See Ashish S. Prasad and Violeta I. Balan, Strategies for U.S. Companies to Mitigate Legal Risks from
Doing Business in India, CORPORATE LAW AND PRACTICE COURSE HANDBOOK SERIES, PLI ORDER NO. 11926,
(February-March, 2007).
176
As such there are criticisms that the judiciary has ignored the separation of powers doctrine. See Armin
Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the Limits of
Judicial Power, 28 COLUM. J. ENVTL. L. 223 (2003), arguing that although intervention to abate Delhis
pollution was timely, the Court undermined the development of administrative capacity to address
environmental matters by usurping executive functions. See also Peter Waldman, Jurists Prudence Indias
Supreme Court Makes Rule of Law A Way of Governing: Splintered Political System Leaves Judges to
Battle Corruption and Pollution, THE WALL STREET JOURNAL, Monday, May 6, 1996.
and when the violations actually occur, the Court could order the Government to pursue
international adjudication, but as current evidence suggests, international adjudication has
limited utility.
177
International principles, under which remedy could be claimed, such as
the duty to prevent transboundary pollution, even though interpreted as customary
international law in the Trial Smelter Arbitration,
178
are not complied with by States.
179
Indeed, a domestic legislation prohibiting certain actions and consequences may
be the best response, if one considers the decision in Pakootas v. Teck Cominco Metals
Ltd.,
180
(Pakootas). In Pakootas, the Court held that smelter industries that released
hazardous waste into the Washington River, with proper permits from Canadian
environmental authorities, were liable under a U.S. law on hazardous waste.
181
The Court
held that even though the waste was released on the Canadian side the companies
responsible for the pollution were liable to clean up the waste in the United States, since
the effects were felt within the U.S. It also held that the U.S. Environmental Protection
Agency had a non-discretionary duty to enforce CERCLA against the companies.
182
In effect, the U.S. court extended the scope of a national legislation to a foreign
entity, for acts committed outside of the United States on the ground that the effects were
felt in the United States. In arriving at the conclusion, the Court rejected the companies
177
See generally CESARE P. ROMANO, THE PEACEFUL SETTLEMENT OF INTERNATIONAL ENVIRONMENTAL DISPUTES 39-
41 (2000).
178
See Trail Smelter Arbitration (US v. Canada), Convention for Settlement of Difficulties Arising from
Operation of Smelter at Trail, B.C.U.S. Treaty Series No. 893, signed at Ottawa, April 15, 1935,
ratifications exchanged Aug. 3, 1935, http://www.lfip.org/laws666/trailsm.htm.
179
Daniel Bodansky, Customary (And Not So Customary) International Environmental Law 3 IND. J.
GLOBAL LEGAL STUD. 105, 116 (1995).
180
452 F. 3d 1066 (2006). The Supreme Court recently rejected a review petition upon the recommendation
of the Solicitor General on the grounds that the issue was moot since EPA had withdrawn the order, making
the Appellate Court decision moot, and that in any case, the matter was appropriately decided taking into
account the facts of the case and scope of the law. See Teck Cominco Metals Ltd. v. Pakootas, No. 06-1188,
(S. Ct. 2008). The Solicitor Generals brief is available at http://www.usdoj.gov/osg/briefs/2007/2pet/6invit/
2006-1188.pet.ami.inv.pdf.
181
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9603.
182
Supra note 180.
argument that they were not responsible for the flow of the river, which essentially
carried the waste from Canadian soil, and noted that Washington taxpayers ought not to
bear the economic burden for external actions.
183
While the case reflects a long history of cross-border pollution involving Canada
and United States, including failed diplomatic interventions to adequately address the
problem,
184
the rationale for the judgment nevertheless provides an important lesson. It
demonstrates that domestic legislation can be the most accessible safeguard against
individual rights violations, as opposed to international remedies. Hence, the Indian court
could draw on Pakootas and order the Indian government to pass legislation on climate
change that hold persons or States responsible for climate change liable to redress
constitutional rights violations, and compensate those who suffer economic losses
consequently.
However, such legislation can be diplomatically undesirable. Moreover, the
Government has traditionally been reluctant to enact any legislation that could curb
development, or been unsuccessful in litigating on behalf of those affected, as
demonstrated by two critical cases discussed below.
The Bhopal gas leak incident
185
illustrates the inability of the government and the
legal system to adequately deliver justice to citizens. Following the gas leak, the Indian
183
For an analysis of the history of smelter waste-related disputes between U.S. and Canada and the Ninth
Circuit decision, see, Michael J. Robinson-Dorn, The Trial Smelter: Is Whats Past Prologue? EPA Blazes a
New Trial for CERCLA, 14 N.Y.U. ENVIRONMENTAL LAW JOURNAL 233 (2006).
184
See generally REBECCA M. BRATSPIES AND RUSSELL A. MILLER (EDITORS), TRANSBOUNDARY HARM IN
INTERNATIONAL LAW 2006.
185
On December 3, 1984, at a pesticide plant of Union Carbide India Limited located in Bhopal, Madhya
Pradesh, a tank holding 43 tonnes of toxic methyl isocynate (MIC) was released due to an allegedly
accidental mixture with water. The gas killed about 2,100 people instantly and injuring 200,000.
Considered one of the worlds worst industrial disasters, the accident was magnified by the absence of
proper medical and other response to curb and reverse the damage, as well as by inadequate safety
standards in the first place. The harm suffered by most victims remains uncompensated to date. Infra note
187.
Government passed the Bhopal Act
186
to consolidate the thousands of civil suits brought
before Indian and U.S. courts and to represent the interest of its citizens against a foreign
entity, based on the parens patriae doctrine.
187
The Act not only allowed the Government
to act on behalf of its citizens, but also provided mechanisms for distribution of
compensation among victims.
However, the litigation remained contentious because the Government brought an
action before the District Court of New York instead of its own courts, on the ground that
a foreign entity was involved and that its own courts lacked the capacity to redress the
matter.
188
However, the New York court dismissed the claim for forum non conveniens
reasons.
189
Eventually, the case was brought before the Madhya Pradesh High Court,
based on the Indian rule of absolute liability.
190
But, after much bargaining on both sides,
the Indian government settled the matter in 1989,with Union Carbide Company agreeing
to government $465 million, of which the Indian subsidiary paid $45 million.
The settlement not only led to criticisms about the government bargaining away
the rights and claims of thousands of victims, but also the actual distribution of
compensation, especially since a large portion of the victims and their families have not
received any to this day.
191
186
The Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985.
187
For an overview of Bhopal, the role of the Government, and the aftermath, see, Tim Covell, The Bhopal
Disaster Litigation: Its Not Over Yet, 16 N.C. J. INTL L. & COM. REG. 279 (1991).
188
The Union Carbide Company held nearly half the shares in the company, ibid.
189
In re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842 (S.D.N.Y. 1986); affirmed in 809 F.2d
195 (2d Cir.) (1987).
190
Based on the strict liability rule, under the absolute liability rule any multinational enterprise carrying on
hazardous activities is liable for damage resulting from such activity, and cannot claim any of the
exceptions available under the original rule. See M.C. Mehta v. Union of India (Oleum Gas Leak case),
(1987) A.I.R. (S.C.) 1086. For a discussion of the settlement process, see, Covell, supra note 187.
191
A chronology of the case and its present status has been posted by Union Carbide Company at
http://www.bhopal.com/chrono.htm. See also, World failed Bhopal Gas Victims, Monday 29
th
November,
2004, http://news.bbc.co.uk/2/hi/south_asia/4050739.stm
Similarly, Narmada Bachao Andolan v. Union of India and Others,
192
involving
the damming of the Narmada River, popularly known as the Sardar Sarovar or the
Narmada Dam projects,
193
showcases the inadequacy of legal protection for Indians
affected by natural resource abuses. Most people displaced by rising water levels remain
without adequate compensation, primarily because the issue of land-related displacement,
which is governed by the British-era Land Acquisition Act, 1894,
194
confers on the
government the right to take private property in public interest, by paying adequate
compensation calculated according the legislation.
195
In fact, once a government
determines that a parcel has to be acquired for public purpose; one can only appeal the
amount of compensation.
196

192
Narmada Bachao Andolan v. Union of India and Others, A.I.R. 1994 S.C. 319. In this case,
representatives of people who stood to be displaced by the dam construction; several villages were set
identified for flooding, brought a public interest litigation arguing violation of fundamental rights because
of the project.
193
The Sardar Sarovar project began in 1946, prior to Independence, but ran into problems with respect to
rights of riparian states, the height of the dam, costs, and power distribution. The Narmada Water Dispute
Tribunal was established to resolve the issues, which reviewed environmental, social and economic impact
statements before granting a Final Award, specifically requiring the Government to allocate alternative
lands to people whose lands would be submerged, one year before carrying out the submergence, even
though no specifications were made with respect to place of rehabilitation. The State of Gujarat as the main
beneficiary was required to take on much of the burden. The World Bank entered into a loan arrangement
in 1985 with the Indian government to fund large portions of the dam, which accelerated the project.
However, the rehabilitation process lagged behind critically, especially since many of the displaced either
did not own the land they depended on, or did not possess the proper land transfer papers. As villages
flooded, large communities were left without remedy. The apathy of the situation commanded international
attention, resulting finally in the World Bank establishing an independent fact finding committee, which
concluded that the environmental and social impacts of the dam far exceeded the benefits. In light of the
report and internal and international pressure, the Bank withdrew from the Project in 1993. The
Government of India, however, sought to continue. The issue is far from settled as documentation regarding
those affected continues to present increasing evidence of a severely botched effort to balance
environmental, social, and economic concerns. In fact, the protests surrounding the Narmada Dam project
resulted in the creation of a World Commission on Dams, which reported that large dams were unviable
development solutions. See Komala Ramachandra, Sardar Sarovar: An Experience Retained? 19 HARV.
HUM. RTS. J. 275 (2006). See also http://narmada.org
194
A copy of the legislation is available at, http://punjablaws.gov.pk/laws/12.html, last visited 10 October
2007.
195
For a discussion of the problems with the land acquisition law in India and takings jurisprudence, see,
See generally Pooja Mehta, Internally-Displaced Persons and the Sardar Sarovar Project: A Case for
Rehabilitative Reform in Rural India, 20 AM. U. INTL. L. REV. 613 (2005). See also S. PARASURAMAN, THE
DEVELOPMENT DILEMMA: DISPLACEMENT IN INDIA, 40-41; 58 (1992).
196
Land Acquisition Act, 1894, sections 4-12.
Moreover, given the complex caste system and the remnants of a near feudal-like
land ownership system in India, especially in rural areas, many farmers either lease or
simply work on the land, and may not be entitled to compensation.
197
Rehabilitation
programs are plagued by administrative gaps and delays, as State governments fail to
fully and timely comply with awards given by the Narmada Tribunal and judicial
intervention is limited.
198
Both Bhopal and Narmada are but two well-known instances of administrative
failures and judicial inefficacy to prevent, protect against and adequately redress
constitutional violations of thousands of Indians. Rights violations occur routinely in
India,
199
and there is no indication at this point that such violations will be prevented or
compensated when climate change-related catastrophes unravel, especially if the
incidents in the Sunderbans are any indication.
200
More importantly, the Indian judiciary,
which has earned the title of Supreme Court for Indians,
201
may be facing the limits of its
capacity to deliver justice.
Concluding Remarks:
197
See generally Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 TEX. L. REV. 1763,
1767(2004), referring to India as an essentially feudal society. Property rights were initially part of
fundamental rights, but have since then been repealed. Yet, the zamindari system that was recognized by
the British government in India perpetuated a feudal approach to land ownership. Amendments in several
states to redistribute the land by abolishing this system through a series of constitutional amendments have
led to constitutional challenges based on the amount of compensation, which is now generally not subject
to challenge. For a discussion of the key cases that shaped the constitutional jurisprudence of property in
India, see, Neuborne, supra, note 165, 490. See also Thomas Allen, Commonwealth Constitutions and
Right not to be Deprived of Property, 42 INTL & COMP. L. Q. 523 (1993), discussing the challenges that
judiciaries face in interpreting property rights and the role the influence of property jurisprudence among
Commonwealth countries, including India.
198
Pooja Mehta, supra note 195.
199
Neuborne, supra note 165.
200
Supra notes 79 and 80.
201
Upendra Baxi, Constitutionalism as a Site of State Formative Practices, 21 CARDOZO L. REV. 1183, 1205
(2000).
As the fifth largest emitter of carbon dioxide, Indias participation and
engagement is critical to the future of an effective international climate regime,
particularly when one considers the potential effects that a rapidly growing hydrocarbon
economy of a billion plus people can have on the global emissions, and hence the
climate. This is a legitimate concern and one that requires attention; and indeed, the
Indian government has been responsive and is presently ahead in the curve of mitigation
trends. However, Indias efforts to mitigate climate change, or for that matter taking an
international position challenging industrialized countries to reduce emissions, cannot
ensure that fundamental rights of millions of Indians will be protected if there is a two or
more degrees Celsius increase in global temperature.
This emerging constitutional challenge in the case of climate change illustrates
that the focus on limiting international obligations to reduce emissions could potentially
undermine a foundational document of not only nations legal system, but its entire form
of governance; the fine balance between the rights of people and the constraints over
government powers.
202
Moreover, in India, the judiciary assumed great powers and
provided broad interpretations and remedies to fill an important void in governancethe
inability of a substantial number of Indians to fully participate in constitutional
government and exercise their rights. In other words, courts added certain welfare
rights that could not could not be delivered by a pure social-citizenship rights
conception of the Constitution.
203
202
See generally Henry W. Andersen, The Constitution An Expanding Charter of Government, 18 B.U. L.
Rev. 491 (1938)
203
See Frank I. Michelman, Democracy-Based Resistance to a Constitutionsl Right of Social Citizenship: A
Comment on Forbath, 69 FORDHAM L. REV. 1893 (2000-2001), discussing the need for judicial interpretation
of Constitution to ensure protection of welfare rights, as opposed to social-citizenship, whereby processes
of democratic governance would address welfare concerns as well.
But, when these rights can no longer be effectively preserved even by expansive
judicial review because of events beyond the control of Courts the efficacy of
constitutional governance, in particular fundamental rights, is imperiled. The challenge
for India is therefore not merely that of preserving their right to emit carbon dioxide or
develop, or even that of mitigating climate change, but of preserving their constitutional
government. And, this concern should also be reflected in treaty negotiations following
Bali.