KIIT SCHOOL OF LAW

Subject: Environment Law

Topic
Climate Change: A compromise on Human Rights and
Fundamental Rights

Subject Professor:-
Prof. Madhuri Meelee

SUBMITTED BY:-

TORSHA SAHA
ROLL NO. 1683113
B.A. LL.B (B)
 Abbreviations used in this assignment

Abbreviation Full Forms

DPSP Directive Principles of State Policy
FR Fundamental Rights
HRC Human Rights Commission
ICESR International Covenant on Economic, Social and Cultural
Rights
IPCC Intergovernmental Panel on Climate Change
UDHR Universal Declaration of Human Rights
UN United Nations
UNFCCC United Nations Framework Convention on Climate Change
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Climate Change: A compromise on Human Rights and Fundamental

Rights
“Our house is on fire”
~Greta Thunberg at World Economic Forum,2019

Introduction

Environmental activists have always been on the frontline to gain attention for the
human existential crisis that is about to begin. When the activists with such extreme
visionary power kept on suggesting, the global political leaders turned their faces on
asking for an immediate action for climate change. The various summits organised
across the globe makes no sense at all when the individuals are blinded by a thought
that ‘climate change is a myth.’
Climate change refers to a long time alteration that includes major changes in
temperature, precipitation, or wind patterns, among other effects, that occur over
several decades or longer.The differences in temperature for a longer period of time
has resulted into loss of lives of farmers due to change in favorable weather
conditions. As a result of this climate change, the right to life is ensured by various
constitutions of states is hampered. In 2020, it is not an undisputed fact that climate
change brought about by human activities affects human rights and principal
privileges of citizens of different states i.e fundamental rights. As many scholars are
of the view that climate change suffers from absence of proper threshold along with
the burden of speculative probability in occurence, the States refrain themselves from
making laws, majorly for environment protection. States are committed to regard,
ensure, promote and satisfy every single human rights for all individuals but is it not
going all in vain?
This draft will highlight why climate change is an issue for human rights and
fundamental rights by making a brief analysis of various UN organization reports,
caselaws and other sources. I have restricted the concept of fundamental rights to
India only.

Why is climate change an issue under human rights and fundamental rights?

Human rights are the basic rights available to all the individuals on earth irrespective
of caste,color,creed, race, sex or status in the society. The Universal Declaration of
Human Rights (UDHR) guarantees these human rights and when these rights are
enculcated and are enforceable within states, they become fundamental rights.
Therefore, fundamental rights are subset human rights. Human beings are widely
known to be the most egocentric creatures on earth and unless there is any loss that is
or is to be incurred, we don't tend to care about it.Therefore, there is an immense need
to interlink the issue of climate change with human/fundamental rights enjoyed the
human beings.
On a legal stance, the current status of climate change threatens many human rights
such as right to life, right to self determination, right to food and etc which are also
listed under Chapter 3 of Indian constitution as fundamental rights.Through more
frequent, longer and more severe weather events such as hurricanes,heatwaves,
droughts, and flooding will become a part of our daily life. Rise in sea level threatens
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dislocation of particular tribe or community living in coastal areas. Also, the countries
who have taken major steps for checking climate change are the ones having highest
historical emissions.1 In contrast, those facing the most severe impacts of climate
change are notably the people below or on the margin of poverty line.
The HRC has affirmed that human rights obligations have the ability to strengthen
both international and national policy-making in the area of climate change. The 1972
Stockholm Declaration provided the basis for further elaboration of a human right to
environmental quality.The Fifth Assessment Report (AR5) by the Intergovernmental
Panel on Climate Change unequivocally states that "human influence on climate
system is clear2, and recent anthropogenic emissions of green house gases are at its
peak. Also it was found by the panel that people who are socially, economically,
culturally, politically, institutionally or otherwise marginalized are especially
vulnerable to climate change and also to some adaptation and mitigation responses.
Therefore it is described as an ethical and moral challenge of a global scale that
demands a human rights solution3. Also parties to the UNFCCC have also agreed to
"fully respect human rights in all climate-related actions"4.

Human Rights and Fundamental Rights vis-a-vis Climate Change

Climate change majorly questions the ability of enforcement of the human rights, in
the form of fundamental rights, by the states and the duty bearers.
It heavily jeopardizes the following human rights and fundamental rights(of India):-

S.No. RIGHTS HUMAN RIGHTS FUNDAMENTAL

RIGHTS
1. Right to life Article 3 of UDHR states that Article 21 of Indian
every person has right to Constitution protects
life.Climate change threatens right to life. This
the very existential of a human article has a broad
life on earth. Climate interpretation and
change kills through drought, consists various
increased heat, expanding aspects of human
disease vectors and a myriad of rights. It includes the
other ways. right to have a
pollution free
environment and air
to breathe. It is
discussed in the case
of Subhash Kumar v.
State of Bihar5
2. Right to self Article 1 of UN Charter- Article 14 ensures

1
Climate Watch,Global greenhouse gas emissions database, www.climatewatchdata.org/ghg-Damassa,
The History of Carbon Dioxide
Emissions;https://www.wri.org/blog/2014/05/history-carbon-dioxide-emissions
2
Intergovermental Panel on Climate Change, Fifth Assessment Report: Climate Change 2014
Synthesis Report Summary for Policymakers (Bonn: United Nations Framework Convention on
Climate Change), p.2 (hereinafter IPCC,AR5)
3
Conference of Paris, 2015, p. 7
4
United Nations Framework Convention on Climate Change, Report of the COP on its sixteenth
session, FCCC/CP/2010/7/Add.1
5
AIR 1991 SC 420
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determination States must respect the right to equality before law,

self determination prohibition of
of all peoples and ensure that discrimination on
they have the necessary grounds of race,
resources to provide for religion, gender, and
themselves. Climate change not caste or birth
only poses a threat to the lives place.During an
of individuals; but also to their extreme or even a
ways minimal climate
of life and livelihoods, and to change, nobody must
the survival of entire peoples. be discriminated on
the basis as
mentioned above.
3. Right to food Article 11 of ICESR ensures It falls under broader
right to food. It is a aspect of Article 21.
fundamental right of everyone It is discussed in the
to be free from hunger, no case of FRANCIS
matter what the situation is. CORALIE MULLIN
Vs. THE
ADMINISTRATOR,
UNION TERRITORY
OF DELHI & ORS6
4. Right to Health UDHR guarantees right to It is again a broader
and proper health and proper medication. aspect of Article 21.
medication Climate change is expected to It is discussed in
lead to detail in the case of
increases in ill-health in many Vellore Citizens
regions and especially in Welfare Forum vs
developing countries with low Union of India7
income,
5. Right to water It entitles entitles everyone to It is included in wider
and sanitization sufficient, safe, acceptable, interpretation of
physically accessible and Article 21 and Article
affordable water for personal 14. Article 14
and domestic uses. This is one because everyone is
of basic human right that needs entitled to clean
to be protected during a climate drinking water.8
change, and also most of the
people are already deprived of
it due to global warming.
6. Right to house It is guaranteed under Article It was strucked down
11 of ICESCR. Every as a fundamental
individual is entitled to a right and now has
shelter where he/she/it can been put under
reside. Due to unstable climatic DPSP . In India,
9

conditions, poorer section of DPSP and FRs are

6
1981 AIR 746
7
1996 5 SCR 241
8
Id 7
9
Supra 6
 4

the society has started losing complimentary to

their residence. Due to rise in each other. (kept at
water level, people are forced same footing)
to move out their residence and
main source of income.

Analysis and Criticism:

The right to life is a basic human right guaranteed to all the individuals and states are
responsible for its protection without any failure. But when it comes to climate change,
the duty bearers do not realise the gravity of the infringement taking place. Various
people across the globe are dying because of droughts, floods, famine, floods,
cyclones which were once counted as natural calamities. But the climate change has
impacted heavily and has made these natural events as artificial events triggered by
human activities. In India, the very right to life with dignity has always bhave had a
lacuna with respect to climate change. As Article 21 is known to have various colors,
it ensures and the sole protector of a lot of human rights guaranteed by UN. In the
case of Subhash Kumar vs State of Bihar, the hon’ble Supreme Court has has
observed that right to life under the Article 21 includes right to clean environment.
This also means that there is a major violation of right to life of the people who are
working in and residing near the factories or polluted river beds as the very Art. 21
ensures every person is entitled to pollution free air for breathing and drinking water10.
According to ICESCR, right to food has been also counted as a basic human right.
The rich are getting richer, the poor are getting poorer. According to the IPCC,
climate change undermines food security; therefore, it threatens realization of the
right to food.11 In 21st century with so much of science and technology, people have to
experience sleepless nights due to hunger. The very state must be held responsible for
not protecting the rights of people. In India, right to food , health and sanitization has
been brought under the umbrella of Article 21. Violation of fundamental rights is
unconstitutional, if abriged by the State12 without following "procedure established by
law"13. In the context of climate change, since there is no procedure of law by which
citizen can be denied rights, the very contravention of the rights constitutes a
constitution violation. Local tribes are moving away from coastal area due to rise in
level of water bodies. The fishermen are facing a barrier in their trade practise that
directly hampers their source of income because the water pollution is making water
bodies inhabitable for the organisms living in it. All this is a result of global warming
and hence, it clearly shows that all of such events are linked to climate change directly.
Right to housing as guaranteed by Article 11 of ICESCR has been violated repeatedly.
The Indian Constitution does not recognise right to property as a fundamental right,
but considers as Directive Principles of State Policy (DPSP). The DPSPs are
mentioned part IV of the constitution and they are not enforceable. These principles
direct the State in policy making. Also, it has been noted that DPSPs and fundamental

10
M.C Mehta vs UOI, (1991) SCC 2353
11
IPCC, AR5, p. 13.
12
Article 12 of Indian Constitution defines the Indian 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"
13
Aricle 21
 5

rights are supplementary and complementary to each other14. Therefore, it makes the
State responsible for making policies that enhances the situation when related to
Article 51.
Environment law has come up with various principle to cut down the global warming
and pollution at a very base level such as polluter pays principle15, precautionary
principle16, public trust doctrine17. Today as a citizen, I see all these principles failing
in their very cause for implementation. Starting with precautionary principle, this
principle is used for cutting down chances of a mishap caused by pollution. But in
today’s scenario when the global warming and climate change is so much more
prominent, there is actually no precaution to be taken. We have already reached the
final showdown; where we are counting our days on earth; talking about saving future
where future is just 20years from now.
Next comes polluter pays. I would like to discriminate this very principle. My stance
on this principle is even this is failing. Coming to the analysis how! Polluter
compensates by redressing the victims and also makes changes within the factories or
industries that caused that pollution at very first step. This might help in cutting down
the pollution rates of a factory that is probably now held liable for the pollution
caused today. Apparently this does not stop here. The factories go on working, no
organisation keeps a track of the level of pollution created by this factory in near
future. And most of all, how is the polluter going to pay the damages in monetary
form, caused by the pollution that lead to the climate change? Does giving away
monies gonna solve the problem of climate change? The issue is getting serious day
by day. And such problems exist for public trust doctrine as well because it
encourages the state to not privatise a natural resource which is meant for everyone.
For example if we consider a river getting polluted, the state would not stop the
factory for committing an environmental crime, but would impose heavy penalties or
at maximum level would ask to do a track change for realising the pollutants. Does
that really solve the issue of pollution and at large, the climate change?

There is a lot more modifications required in very policies made by the states and UN.
My stance in this regard that its high time that we realise that these environmental
crimes are threat to humanity. These crimes are much more important than white
collar crimes. Therefore, I would insist the various organisations to take major steps
that is by penalising it with a jail term and force the companies involved in such
practises to cease their operations. Also steps must be taken for sustainable
development.

Conclusion

Human rights and fundamental rights cannot be separated from climate change, as
climate change impacts the realization of every single human right, and human rights
are increasingly relevant for climate action. There is a need for greater consistency to
ensure that human rights are referenced not only in relation to adaptation, but
consistently in all climate action. Thus, there is a need to foster human-rights-based
approaches, including ensuring that rights are protected for all people in the context of

14
Dalmia Cement vs UOI
15
T.N. Godavarman Thirumulkpad vs Union Of India & Or (2002)

16
Vellore Citizens Welfare Forum Case, 1996 5 SC 647
17
M.C Mehta vs Kamal Nath Case
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climate change. Parties can and should develop frameworks and processes on how to
integrate rights-based approaches more systematically than by referencing individual
countries or policies for good practices.Last but not the least, our house is on fire18.

18
Greta Thunberg’s Speech at World Economic Forum,2019
 Bibliography

Books and Reports

1. Badrinarayana,Deepa.”The Emerging Constitutional Challenge of Climate Change:

India in Perspective”, volume 19,number 1, Article 1.
2. Knox,John H. Climate change and human rights: UNEP, 2015
3. Jain,M.P. Indian Constitutional Law, 2018
4. Rights in a Changing Climate, Human Rights Under The UN Framework
Convention On Climate Change, December 2019

Conferences and Treaties

1. 21st Conference of the Paris

2. Kyoto Protocol,2005

Internet Sources

1. <www.heinonline.com>
2. <https://www.wri.org/blog/2014/05/history-carbon-dioxide-emissions>
3. <www.scconline.com>
4. <www.manupatra.com>
5. <https://www.ohchr.org/EN/Issues/HRAndClimateChange>
6. <https://www.unenvironment.org>