Holding the State Accountable

**Aaditi Anand Sinha

The need of the hour

Climate change litigation stands at the forefront of current legal discourse, challenging traditional notions of constitutional rights and state responsibilities. Recently, retired Justice Hima Kohli noted how there is an urgent need for a comprehensive climate law statute. Currently, environmental law principles, developed due to the contributions of an active judiciary, are being used to tackle climate change litigation. It has been noted that there is a need to import or develop legal principles that can fill the gaps left by this application.

By analyzing the SC’s order in M.K. Ranjitsinh v. Union of India (“M.K. Ranjitsinh”) and the petition in Ridhima Pandey v. Union of India (“Ridhima”), this essay highlights the innovative legal grounds holding states accountable for climate inaction. It aims to fill the gaps identified in the existing legal framework by drawing upon insights from the Verein KlimaSeniorinnen Schweiz v. Switzerland (“Verein”) judgment by the European Court of Human Rights (“ECHR”), addressing state liability in climate change.

Grounds for climate change litigation in India–M.K. Ranjitsinh and Ridhima

On March 21, 2024, a three-judge Supreme Court (“SC”) bench delivered a historic judgment in M.K. Ranjitsinh, expanding the understanding of climate change and human rights in India. The judgment’s most significant contribution lies in articulating the nexus between climate change phenomena and fundamental human rights. The bench noted that even though India recognizes climate change through various policies and commitments, there is “no single or umbrella legislation in India” to combat it (¶19). Nonetheless, climate change, intricately affecting human rights, can be addressed through fundamental rights (¶19).

Emphasizing Arts. 48A and 51A(g) of the constitution, the court noted the state’s duty to ensure a healthy environment for present and future generations, to prevent harm and ensure overall well-being (¶35), as enshrined in Art. 21 of the Constitution (¶30). Furthermore, the bench also endorsed that intersectionality plays a crucial role here – unequal energy access disproportionately affects women and girls due to their domestic roles involving collection of fuelwood and cooking (¶34). Additionally, the immediate challenges India will face in the near future directly affect the right to a healthy environment, particularly for vulnerable and indigenous communities, including forest dwellers (¶35). Hence, the right against adverse effects of climate change, rooted in Art. 14, and the right to a clean environment, protected under Art. 21, are “different sides of the same coin.”(¶24) 

Curiously, the bench noted that India’s international climate commitments had not been incorporated into domestic law (¶58), which contrasts with the National Green Tribunal’s (“NGT”) 2019 order recognizing that the Paris Agreement and other such protocols were adequately reflected in government policies (¶3). This concise ruling of the NGT, spanning a mere two pages, adjudicated on the landmark petition by a 9-year-old Ridhima Pandey.

Ridhima was India’s first climate change litigation, addressing the petitioner’s claim of belonging to a vulnerable group of children and young people (excluded from decision-making processes) and being affected by the government’s failure to implement effective science-based measures (¶1). Interestingly, while Indian citizens have recourse to remedies in tort law and various statutory frameworks, M.K. Ranjitsinh proposes a more prominent basis for climate litigation that has evolved from constitutional provisions, particularly the assertion of fundamental rights against the state. This shift underscores the growing importance of the constitutional framework in addressing climate-related harms, linking environmental protection directly to the right to life and a healthy environment.

In contrast, Ridhima primarily invoked the Public Trust Doctrine, emphasizing the state’s duty to act as a trustee of public resources. This doctrine positions the state as a guardian of the environment, with obligations independent of any specific claim to individual rights. It, therefore, offers an alternative path for climate litigation by framing environmental stewardship as a state responsibility, rather than focusing on individual rights violations. The coexistence of these frameworks suggests a multifaceted approach to climate litigation that could broaden the scope of judicial intervention, offering litigants different strategic avenues to hold the state accountable. 

The question arises: if the state has a duty of care and the citizens have a right against adverse effects of climate change, can an individual or a group of individuals bring a claim against the state? Considering that climate change ultimately affects all citizens, what standard of proof or threshold should be met to establish that a particular individual or group has been disproportionately affected by climate change? Moreover, how should the courts balance the collective nature of climate change impacts with the need to relieve those most vulnerable? These questions also raise causation issues and the extent to which the government can be held liable for its actions or inactions in the face of a global crisis. While M.K. Ranjitsinh referenced international judgments that attempted to establish such standards (¶¶45-49), it failed to create the same for the Indian context or even import the same principles. Therefore, the next section answers the above questions, by making a reference to the judgment in Verein. 

Lessons from Verein and testing Ridhima

In the case of Verein, KlimaSeniorinnen Schweiz, an association representing over 2,000 elderly Swiss women, along with four individual women, argued that the government’s inadequate measures to address climate change fail to protect their health from the dangers of climate change. The ECHR, in one of his historic judgments, found the government of Switzerland in breach of Article 8 of the European Convention on Human Rights (“Convention”). Article 8, which safeguards the right to respect for private and family life, has been invoked to advocate for a certain standard of environmental quality, thereby reinforcing the state’s obligation to create conditions that enable individuals to live in a healthy and safe environment. 

The ECHR recognized that the issue of climate change is an intergenerational one and involves a disproportionate sectional burden on a few communities more than the rest (¶410). Hence, inadequacy of the state’s action in this matter not only worsens the situation, but also additionally endangers the vulnerable communities (¶413). M.K. Ranjitsinh seems to be speaking the same language while elaborating on the intricate connection between climate change and human rights. For the purpose of this analysis, it is essential to explore the question of causation and victim status.

The ECHR stated that causation involves four key links (¶425): (i) Scientific link between GHG emissions, atmospheric accumulation, and climate change phenomena, (ii) Climate change effects and a legal inquiry to its ill effect on enjoyment of human rights, (iii) Specific harms to individuals/groups due to the actions/inactions of state authorities, (iv) Attributing responsibility to states for that particular climate change effect on individual/group. 

In Ridhima, three of the above four links have been established, as demonstrated in the following table–

For the remaining one link, i.e., between the harm caused and the action/inaction of the state, it is essential to understand how victim status can be accorded. To prevent generalized claims (actio popularis) and ensure the protection of individual right, the ECHR requires specific criteria for establishing victim status (¶487). First, the applicant must demonstrate a high intensity of exposure to the adverse effects of climate change, indicating significant levels and severity of risk due to governmental action or inaction (¶487). 

The second requirement is that there must be an urgent need to ensure the applicant’s protection, especially if there are no adequate measures to mitigate the harm (¶487). In assessing these claims, the ECHR must also consider factors such as local conditions, individual vulnerabilities, the nature and scope of the complaint, the probability and immediacy of adverse effects, and the specific impact on the applicant’s life, health, or well-being (¶488). 

In the context of Ridhima, the question is whether the evidence adequately fulfills the tests for victim status. From the table below, it is evident that the tests are fulfilled–children are particularly exposed to climate change and there is an urgent need to protect them. 

Thus, it is clear that in the light of M.K. Ranjitsinh and Verein, the petition in Ridhima qualifies for determining liability of the State for its failure to ensure protection of children and young people against climate change.

Caveats in incorporation of the test

The previous section demonstrated how Ridhima becomes a successful petition, when grounded in the principles of Verein. But while there is merit in adopting those principles in the Indian jurisdiction, there are multiple caveats.  

First, simply incorporating the principles will severely impact their effectiveness in the Indian context, particularly considering the acute information asymmetry between the State and those most directly affected due to climate change – young people, tribal populations, women, etc. In light of this and the inherent flexibility in the test in situations of such asymmetry, refining the approach is required–when a climate change litigation is brought, the petitioners establish a prima facie case against the State and once the court is satisfied that it does exist, then the burden of proof of disproving causation falls upon the State. This second stage can be guided through the principles developed in Verein. 

Secondly, it would be incorrect to assume that Verein principles  would undermine India’s environmental doctrines such as Precautionary Principle and Polluter Pays, as well as the doctrine of Public Interest Litigation. As discussed earlier, post-MK Ranjitsinh, climate change litigation in India also rests on fundamental rights, which complement rather than contradict the Public Trust Doctrine and the Precautionary Principle. These principles can reinforce the court’s decisions rather than clash with each other. For instance, in establishing victim status in India, the jurisprudence on Public Interest Litigation (“PIL”) allows third parties to represent affected individuals or communities. While this does not negate the requirement to prove the victim’s harm, it enables broader access to justice. Therefore, in case there is a climate change PIL on behalf of a community, the victim status of that community can nonetheless be established through Verein principles without necessitating a conflict with India’s established doctrines.

Way forward

This analysis demonstrates the development of a constitutional framework for climate litigation in India. The combination of fundamental rights and environmental protection principles, as seen in M.K. Ranjitsinh and Ridhima, provides a solid basis for future climate-related cases. Insights from international cases like Verein KlimaSeniorinnen Schweiz offer useful approaches to proving causation and establishing victim status in climate litigation. This blend of domestic and international legal principles strengthens the potential for climate change cases against the state in India. It also reflects a broader shift in how courts interpret constitutional rights in relation to environmental issues. This emerging approach may lead to clearer definitions of state obligations towards citizens and the environment, potentially driving stronger climate action. 

** Aaditi Anand Sinha is a second-year BA LLB (Hons.) student at the National Law School of India University, Bangalore, with a keen interest in criminal and constitutional law. She is passionate about exploring the broader societal impact of legal frameworks in her writing. An avid reader and film enthusiast, she finds inspiration in literature and cinema in her free time, which enriches her understanding of law and society.

Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.