CHAPTER 7

LEGAL REGULATION OF GLOBAL WARMING IN INDIA

Almost every national government in the United Nations now has a minister
and a department tasked with policy on the environment, and many regional and local
governments have also developed this capacity. Since 1992 the volume and quality of
environmental legislation (international, national and local) has expanded hugely, and
international agreements have not only raised the profile of environmental change but
also begun to drive global policy change.1
Domestic or national law refers to the legal system applicable to a defined
territory over which a sovereign power has jurisdiction. International Law, on the other
hand, regulates the conduct of the States and other international actors. Over the years
domestic and international systems of law have evolved in parallel. In certain fields
and regions of the world, international law has shaped and significantly contributed to
the development of domestic environmental law. Yet international environmental law
also reflects domestic experiences considered successful by the Community of
Nations. The result is a complex relationship in which the two levels of environmental
law mutually contribute to and reinforces each other.2
National governments represent their countries in international environmental
negotiations, but they are not entirely free to formulate policy positions. While it may
be possible for these representatives to ignore domestic constituents in the pre-
negotiation phase, national governments in democratic states ultimately rely on
majorities in legislatures or in public referenda in order to ratify international
agreements. Furthermore, even the ratification of international environmental
agreements cannot guarantee that these will be successfully implemented since
industries, courts, and interest groups often find sufficient leeway to delay and, po-
tentially, circumvent the implementation of international obligations at the domestic
level. Therefore, government positions are likely to be influenced by domestic pressure
groups in anticipation of the challenges posed by ratification.3
Two international conferences on Environment and development one at

1
Arvind Jasrotia, “Environmental protection and sustainable development: exploring the dynamics of
ethics and law”, vol. 49, Jan-March 2007, No.1, p. 46
2
Dr. P Ishwara Bhat, and Sri Bhat Sairam, “International Environmental Law Principles: Defining
Terms”, The Karnataka Law Journal, 2005(3), p.1
3
Sprinz and Martin Weifs, Domestic Politics and Global Climate Policy, 1st edition, Jaipur: Techno
Science Publications, 1996, p. 88
Stockholm in 1972 and another at Rio de Janerio in 1992 have influenced
environmental policies in most countries, including India. Many countries and
international agencies have accepted the polluter pays principle, the precautionary
principle and the concept of intergenerational equity as guidelines for designing
environmental policies. 4
Climate change is a major challenge for developing countries like India that
face large climate variability and are exposed to enhanced risks from climate change.
Climate change will also significantly impact the economic growth and social
development of India, where eradication of poverty is the first and overriding
priority. It is for this reason that India has a huge stake in the multilateral climate
change negotiations that are taking place under the purview of United Nations
Framework Convention on Climate Change (UNFCCC).
No single country causes the problem; no single country can cure it. Only by
collective community action can that tragedy be avoided.5 India is also not immune
from the impact of global warming and climate change. Any sharp rise in sea level
could have a considerable impact o n India. The United Nations Environment
Programme included India among the 27 countries that are most vulnerable to a sea
level rise.6
Unfortunately, India is among the countries that will suffer the most serious
consequences as a result of global warming. The impact is already being felt. 7 In
India, climate change could represent additional pressure on ecological and socio-
economic systems that are already under stress due to rapid urbanization,
industrialization, and economic development. With its huge and growing population,
a 7500-km long densely-populated and low-lying coastline, and an economy that is
closely tied to its natural resource base, India is considerably vulnerable to the
impacts of climate change.
Increases in temperature and seasonal variability in precipitation are expected
to result in more rapid recession of Himalayan glaciers. In fact, the Gangotri glacier is
already retreating at a rate of 30 meters a year. According to the UN report, in the

4
http://www.mse.ac.in/pub/op_sankar.pdf accessed on 27th May 2014
5
Fred L. Morrision and Rudiger Wolfrum, International, Regional and National Environmental Law,
Netherland, Kluwer Law International, 2000, p.167
6
H. A. C. Prasad, J. S. Kochher, “Climate Change and India: Some Major Issues and Policy
Implications,” Department of Economic Affairs, Ministry of Finance, Government of India, March
2009, p. 8
7
R. Ramchndran, “Himalayan Concerns”, Frontline, March 9, 2007, p.14
Himalayas, rapidly melting glaciers will cause floods followed by a dip in river flow.
The decrease could see the Gangetic plans turn infertile. Cholera and malaria would
increase because of floods. Cereal yields in south Asia could drop by 30 per cent by
2050, devastating an agriculture-led rural economy like India. Food security and loss
of livelihood along with cultivable land is a nightmarish scenario.
The country is extremely vulnerable to the possible impact of climate change,
especially sea-level rise and shifts in monsoon cycles, because agriculture contributes
approximately 30 percent to the gross domestic product and employs about two-thirds
of the labor force.8
Thus many nations including India have understood the importance of
environmental law. At first the environmental law focused attention towards the
punitive aspects only. Gradually the state realized that prevention of environmental
degradation and pollution is more important than punishing the persons for causing
pollution. Thus the legal objective has changed from punitive to preventive. Here
comes the importance of the preventive and protective legislations. 9
Thus, there is a there is a need of an effective response to curb global warming
by evolving norms and establishing institutions to take strategic steps to mitigate
global warming in India. To address these environmental challenges in coordination
with the state governments, the central government has established an environmental
legal and institutional system to meet these challenges within the overall framework
of India’s development agenda and international principles and norms.
7.1 Pre Constitutional era
The history of the evolution of law in relation to pollution and other
environment problems can be traced to the ancient period. From the Vedas,
Upanishads, Smritis and other ancient literatures we find that man lived in complete
harmony with nature. From the ancient scriptures of Hindu religion one learns that the
people gave so much importance to trees, plants, wild lives and other things of nature
that they developed a long tradition of protecting and worshiping nature.
Environmental ethics has always formed an inherent part of Indian religious precepts
and philosophy.10

8
Sprinz and Martin Weifs, supra note 3, p. 88
9
S. Sivkumar, “Environmental Protection: International and National Perspectives”, CULR, 2004, p.
291
10
Bhaskar Kumar Chakravarty, “Environmentalism: Indian Constitution and Judiciary”, JILI, vol. 48,
Jan-Mar 2006, p. 99
 Yajnavalkya Smriti, a historic Indian text on statecraft and jurisprudence,
suggested to have been written before 5th century AD, prohibited the cutting of trees
and prescribed punishment for such acts. Kautalya’s Arthashastra, written in Mauryan
period, emphasized the need for forest administration. Ashoka went further, and his
Pillar Edicts expressed his view about the welfare of environment and biodiversity.
Thus, ancient India had a philosophy of environmental management enshrined in old
injuctions contained in various scriptures and smrities11
Law of Torts
The law of torts is largely uncodified and also based on accepted principles.
Thus the common law principles including nuisance, negligence, trespass and strict
liability are the oldest form of remedies to abate the hazards of pollution. In India the
law of torts has been generally followed to provide equity, justice and good
conscience. The Supreme Court has evolved the principle of absolute liability in
addition to the above traditional categories as it felt that the rule of strict liability laid
down in Ryland v Fletcher12 was no longer suitable in the prevailing socio-economic
conditions of the country.13
Early Legislations
The Shore Nuisance (Bombay-Kalova) Act, 1893 was enacted to check wastes
and marine water pollution. The Oriental Gas Company Act, 1857 and the Bengal
Smoke Nuisance Act, 1905 were enacted to prevent or reduce atmospheric pollution
in and around Calcutta. The Bombay Smoke Nuisance Act, 1912 was passed to check
smoke nuisance in Bombay area. For preservation of forests, the Cattle Trespass Act
1871 and Indian Forest Act 1927 were passed. The Indian Easement Act of 1882
guaranteed property rights of riparian owners against “unreasonable” pollution by
upstream users.14
The Indian Penal Code, 1860
The Indian Penal Code 1860, enacted during the British rule, contains one
chapter (Chapter XIV) on offences affecting public health, safety, convenience,
decency and morals. It deals with offences affecting public health, safety and
conveyance, which covered aspects like water, are and noise pollution. Section 268

11
S Shanthakumar’s Introduction to Environmental Law, 2nd edition, Nagpur, Wadhwa and Company,
Reprint 2009, p. 75
12
918680 LR 3 HL 330
13
M. C. Mehta v Union of India, AIR 1987 SC 1086
14
Supra note 4
covers public nuisance. It defines public nuisance as any act or an illegal omission
which cause any common injury, danger, or annoyance to the public or to the people
in general who dwell or occupy property in the vicinity, or which must necessarily
cause injury, obstruction, danger or annoyance to person who may have occasion to
use any public right.15 Sections 269 and 272 deal with adulteration of food or drink
for sale and adulteration of drugs respectively. Section 277 lays down that, whoever,
voluntarily corrupts or fouls the water of any public spring or reservoir, so as to
render it less fit for the purpose for which it is ordinarily used shall be punished with
imprisonment for a term which may extend to 3 months, or with a fine which may
extend to Rs. 500, or with both. Section 278 lays down that whoever voluntarily
vitiates the atmosphere so as to make it noxious to the health of persons in dwelling or
carrying on business in the neighborhood or passing along a public way shall be
punished with fine which may extent to Rs. 500. Sections 284, 285 and 286 deal with
negligent conduct with respect to poisonous substances, combustible matter and
explosive substances. Sections 428 and 429 cover mischief to animals. 16
Other concerned provisions are a “negligent act likely to spread infection or
diseases dangerous to life”17 and making atmosphere noxious to health.18 Thus, even
the pre-constitutional statues like Indian Penal Code 1860 and Code of Criminal
Procedure, 1973 and the criminal sanctions contained in specific environmental
legislation and municipal Acts contain provisions for criminal aspects relation to
environment
The Indian Forest Act, 1927
Although it embodies the colonial policies of the pre-independence era, the
Forest Act of 1927 remains in force. This Act consolidates, with minor changes, the
provisions of the Indian Forest Act of 1878 and it’s amending Acts.
The 1927 Act deals with four categories of forest, namely, reserved forests,
village forests, protected forests, and non-government (private) forests. A state may
declare forestlands or waste lands as reserved forests, and may sell the produce from
these forests. Any unauthorized felling of trees, quarrying, grazing and hunting in

15
S. Sivkumar, supra note 9, p. 294
16
Supra note 4
17
The Indian Penal Code s.270
18
S. Sivkumar, supra note 9, p. 293
reserved forests is punishable with a fine or imprisonment, or both.19 Such initiatives
help reduce pollution. Thus, various legislative measures were taken during the
British period for prevention of pollution and for conservation of natural resources.
7.2 Constitution and Environment Protection
The post Independence era witnessed a lot of changes in the policies of the
government with respect to environment protection especially after the framing of the
Constitution. The constitutional law has a seminal role to play in the protection and
preservation of environment. In fact the space for environment-related legislation in
the constitution is an outcome of the human urge for development with a social face.20
Inspite of such a rich reverence shown to the earth and its environment, as
depicted in the ancient Indian scriptures, the Constitution of India, as enacted and
adopted in 1949, hardly averred to natural environment of earth and its vitality for
human health. The makers of the Constitution did not appear to be concerned in this
regard so as to give a constitutional mandate for preservation and protection of the
natural environment.21 It did not contain any specific provisions on environment and
even the word environment did not find a place in the Constitution but there were
certain provisions which to a great extent had direct bearing on the environment such
as improvement of public health,22 organization of agricultural and animal husbandry
on modern and scientific lines23 and protection of natural monuments from spoliation,
disfigurement etc. 24 The provision contained in Article 47 is more important as it
provides that the state shall regard the raising of the level of nutrition and the standard
of living of its people and improvement of public health as among its primary duties.
Protection and improvement of environment is inherently included in the
improvement of public health because without it public health cannot be assured. This
clearly reflects that the framers of our constitution were very much conscious about
the environmental concern.
Many countries have engrafted environmentalism into their basic
constitutional laws. India by the 42nd Constitutional Amendment, 1976 enjoined the

19
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 2nd edition, New
Delhi, Oxford University Press, 2001, p. 64
20
Md Zafar Mahfooz Nomani, “Enviro-Constitutional Ethos in Right Duty Discourse: Towards the
Creation of an Equitable and Sustainable Socio-Legal Order”, Indian Journal of Environmental Law,
Vol.1, 2000. p. 61
21
Bhaskar Kumar Chakravarty, supra note 10, p. 100
22
Constitution of India, Article 47
23
Constitution of India, Article 48
24
Constitution of India, Article 49
State as well as citizens to express solidarity and compassion to biotic and abiotic
entitles. The constitutionalism and environmentalism inter woven strive to achieve to
said goals through superior as well as subordinate legislations. 25
The UN Conference on Human Environment held at Stockholm in 1972
exerted major influence on environmental legislations in India. A National Committee
on Environmental Planning and Coordination (NCEPC) was set up in the Department
of Science and Technology in 1972 to make necessary preparations for the
Conference. The Government of India took a number of steps to implement the
decisions taken at the Conference by means of amendments to the Constitution, new
legislations relating to environmental protection and creation of institutions for
implementing the legislations. The Constitution of India was amended by the 42nd
constitutional amendment and the subject of “ecology and environment” was
incorporated for the first time through Articles 48A and 51A (g).26
Thus, India took a bold step to include environmental protection rights and
duties in its Constitution. By incorporating Article 48A in part IV of the Constitution,
which contains the directive principles of state policy, the state has been given the
constitutional mandate to protect and improve the environment and to safeguard the
forest and wildlife of the country. Since the principles laid down in the part IV of the
Constitution are fundamental in the governance of the country, therefore it has been
now the constitutional duty of state to deal with the matters relating to environment,
forest and wildlife of the country.27
7.2.1 The Preamble
The Preamble contains certain basic values and philosophies that India
guarantees to its citizens and strives to achieve as a nation. The Preamble states inter
alia that social, economic and political justice will be secured for all citizens and that
liberty and equality will be promoted. These values are the cornerstone of true
democracy and are universal in nature. Every nation strives to achieve them.28
The Preamble opens with the words, ‘We, the people of India’ which indicates

25
Md Zafar Mahfooz Nomani, supra note 20, p. 63
26
Art. 48A - The State shall endeavor to protect and improve the environment and to safeguard the
forests and wildlife of the country. Art. 51A (g) - It shall be the duty of every citizen of India- to
protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures;
27
Bhaskar Kumar Chakravarty, supra note 10, p.100
28
http://www.lawteacher.net/international-law/essays/domestic-implementation-of-international-law-
law-essay.php and also at http://ssrn.com/abstract=1771302 accessed on 5th Jan 2014
the source from which the Constitution comes, i.e., the people of India. Thus, we, the
people are solely responsible for constituting India into a “Sovereign, Socialistic, and
Secular, Democratic, Republic”29 and in this we find a glimpse of the concern for the
society as in such a society the state pays more attention to the social problems than
any individual problems. Environmental pollution which has emerged as one of the
biggest social problems is being regarded as a real problem affecting the society at
large and thus the State is under an obligation to fulfill basic aim of socialism, i.e., to
provide decent standard of living to all which can be possible with a pollution free
environment.
Environment as a subject, environment as a concern and environment as a part
of socio-economic-political structure in the country seems to have taken of. In fact it
has entered the structure in such a way that no intellectual, political or even academic
discourse is complete without it. Thus, when we talk of social, economic or political
justice we must include environment, as it has become a part of the social structure.
The state, therefore, should endeavor to take all necessary steps to secure its citizens
environmental justice.30
7.2.2 Fundamental Rights
The fundamental rights are a necessary consequence of the declaration in the
preamble to the constitution that the people of India having solemnly resolve to
constitute India into a sovereign, democratic, republic… The framers of the Indian
constitution visualized the great many difficulties in enunciating the fundamental
rights in general terms and have left in the hands of the judiciary to interpret them.31
The Fundamental Rights in Part III and the positive mandates to the State in
the form of Directive Principles in Part IV can be compared with the Universal
Declaration of Human Rights (UDHR) and commonalities can be traced. 32 While
enjoining the fundamental right to freedom, equality and adequate conditions of life,
in an environment of a quality, it imposes a solemn responsibility to protect and
improve the environment for present and future generations. The Rio Declaration on
Environment and Development 1992 provides that ‘human beings are at the centre of
concerns for sustainable development and they are entitled to a healthy and productive

29
Inserted by the Constitution (42 Amendment) Act, 1976 for “Sovereign, Democratic, Republic”
30
Dr. Sukanta K. Nanda, Environmental Law, 1st edn, Allahabad,Central Law Publications, 2007, p. 65
31
Prof. M. P. Jain, Indian Constitutional Law, 5th edn, Nagpur, Wadhwa & Company, 2005, p. 832
32
Supra note 27
life in harmony with nature. To promote environmentalism it calls for application and
use of law as an essential means at local, national and global levels.33
Though Article 21 does not explicitly mention environment, the Supreme
34
Court and the various High Courts of the country have given a wider interpretation
to the word “life” in this Article. According to the courts, the right to life includes the
right to live in an environment congenial to human existence.
Thus, Right to life being the foremost human right implies the right to live
without the deleterious invasion of pollution, environmental degradation and
ecological imbalances. The environment today should be of paramount legal
importance and the focal agenda of modern socio-legal order. The legal system,
therefore, is expected to instill environmentalism, deep ecological values and eco
centrism to bring about an equitable and sustainable socio-legal regime. However, the
task is quite assiduous because scientific and technological developments have
suppressed the harmony of creation.35
7.2.3 Directive Principles of State Policy
The State’s responsibility with regard to environmental protection has been
laid down under Article 48-A of our Constitution, which reads as follows: “The State
shall endeavor to protect and improve the environment and to safeguard the forests
and wildlife of the country”.
India’s constitutional commitment towards environmentalism, under Directive
Principles, endeavors to protect the environment and continuously improve its
status.36 The constitutional duty entrusted upon the state to protect and improve the
natural environment is based on the “Doctrine of Public Trust.”37
By incorporating article 48A in part IV of the Constitution, which contains the
directive principles of state policy, the state has been given the constitutional mandate
to protect and improve the environment and to safeguard the forest and wildlife of the
country. Since the principles laid down in the part IV of the Constitution are
fundamental in the governance of the country, therefore, it has been now the
constitutional duty of the state to deal with the matters relating to environment, forest

33
Md Zafar Mahfooz Nomani, supra note 20, pp. 62-63
34
Subhash Kumar v. State of Bihar, A.I.R 1991 S.C 420, 423; M.C .Mehta v. Union of India (Delhi
Crushing Case), (1992)3 S.C.C 256,256; and Virendar Gaur v. State of Haryana (1995)2, S.C.C
577,581
35
Md Zafar Mahfooz Nomani, supra note 20, p. 60
36
Ibid
37
Bhaskar Kumar Chakravarty, supra note 10, p.101
and wildlife of the country. While the executive and legislative wings of the state are
implementing the directive principles by policy decisions and appropriate legislations,
the judicial wing is also implementing them through judicial activism.
7.2.4 Fundamental Duties
The 42nd constitutional amendment did not confine the constitutional
obligation to protect and improve environment only in the hands of the state but
brought the obligation down to the level of the citizens also by incorporating Article
51A (g) in a newly introduced part, namely part IV-A of fundamental duties. This
amendment is considered to be a revolution, as it was not only first of its kind in
constitutional history expressing concern for environment and its protection, but it
also accorded recognition to Buddhist and Gandhian environmental ethics, as Article
51A (g) made it a fundamental duty for all the citizens of India not only to protect and
improve the natural environment but also to have compassion for all living creatures.
Another significant aspect of Articles 48A and 51A (g) is that the state and its citizens
shall not only protect the environment but must also improve it.
Environmental protection is a fundamental duty of every citizen of this
country under Article 51-A (g) of our Constitution which reads as follows: “It shall be
the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living
creatures.”
The constitutional mandate to environmentalism is not only directed to states
but to citizens as well. The fundamental duty chapter is the charter of country’s
resolution towards implementation of human values, eco-ethics, national ideology and
environmentalism. It solemnly resolves to protect improve the natural environment by
adopting sympathy and compassion for living creatures. Article 48 envisages that the
state shall endeavor to protect and improve and safeguard the flora and fauna of the
country. The protection and improvement clause appearing in both articles speaks
volumes about environmentalism and constitutionalism. Mere protection is not
considered enough in the eye of the Constitution but a solemn constitutional
commitment to improve the environment and its quality coupled with kindness and
compassion towards natural entities, animals and living creatures are pointers to
environmentalism oriented values. Compassion and kindness being the subject of
morality amply reflect the constitutional conscience towards environmentalism.
 Generally, Articles 48A and 51A (g) impose two fold responsibilities. On one
hand, it gives directives to the state for the protection and improvement of
environment and on the other it casts a duty on every citizen to help in the
preservation of the natural environment. Combined together it lays the foundation for
unique enviro-constitutional jurisprudence in a novel discourse of right and duty.38
Article 51A gives effect to the declaration in Article 29(1) of the Universal
Declaration of Human Rights, which emphasizes the duties owed by individuals to the
community at large. These duties benefit community and also help in the full
flourishing of the individual.
By this 42 nd constitutional amendment the Constitution of India has become
one of the very few constitutions in the world, which have enshrined a commitment
for protection, and improvement of environment. One can now very emphatically
assert that by raising the protection and improvement of environment to the status of
constitutional law, the “third generation” human right which is very important not
only from the individual point of view but also from the point of view of the
community at large has got its due place in the national charter of India. It is
submitted that by incorporating this third generation human right under directive
principles of state policy and fundamental duties of citizens, an endeavor has been
made to make enforcement of this right mandatory for both the state and its citizens.
The constitutional duty entrusted upon the state to protect.
There is a constitutional pointer to the state under Article 48A not only to
protect but also to improve the environment. The neglect or failure to abide by the
pointer or to perform the duty is nothing short of betrayal of fundamental law which
the state and every citizen is bound to uphold and maintain.39 Other Constitutional
Amendments were the two entries 17A Forests and 17B Protection to wild animals
and birds were added in the Concurrent List.
7.2.5 Constitutional basis of Law and Policy relating to Climate Change
Article 21 of the Constitution is a fundamental right which reads as follows:
“No person shall be deprived of his life or personal liberty except according to
procedure established by law.” Climate change, if unmitigated, will directly and
indirectly bear upon Article 21 rights that are guaranteed under the Indian
Constitution. This is evident in some of the early predictions made by scientists and

38
Md Zafar Mahfooz Nomani, supra note 20, p. 65
39
Ibid
some preliminary observations of possible climate-related occurrences. For example,
the IPCC predicts that glacial melts in the Himalayan region alone will increase
flooding, trigger avalanches and landslides, and cause extinction of species and
ecosystems. As such, Himalayan glaciers, including the Gangotri which is a source of
the .perennial and holy river Ganga, have receded by 30 meters, endangering water
supply in the dry season. Other changes in hydrological cycles are also expected to
cause extreme drought or flood conditions in some river basins, shorten crop duration
periods to the detriment of agricultural yields, threaten biological diversity, increase
the risk of malarial outbreaks by creating conditions favorable to disease carrying
vectors, and increase cyclones in coastal regions.
Some early observations of the effects of climate change are also becoming
visible. In early 2007, an Indian farmer was reportedly forced to abandon his ancestral
agricultural land because it was part of one of two islands submerged in the
Sunderbans region. Another farmer faced a similar threat temporarily. Absent
compensation and support from their government, the former moved to urban areas in
search of alternative livelihood, whereas the latter stayed on despite the risk of future
flooding and limited access to food. Both incidents, which have been attributed to
climate change related sea level rise, portend the fate of some of the nearly 65% of
India's population that is dependent on agriculture, forestry and fisheries for a living.40
Thus, climate change will affect not only the economic growth of India but
more importantly the wide array of fundamental rights - to life, to livelihood and to
health that have been guaranteed under the Indian Constitution. Pursuing
constitutional remedies, however, presents risks as well as opportunities.41
Bringing climate change within the constitutional dialogue may not only be
strategically desirable, but may be the only viable option in India to compensate
victims for their loss and, more importantly, to deter continuing GHG emissions in
India. The Indian Constitution, could serve as a potential basis for pursuing climate
change litigation within India, not only because of its substantive provisions but also
because the Supreme Court of India has facilitated enforcement of fundamental
constitutional rights by relaxing several formal procedural rules, which generally

40
Benjamin J Richardson (ed), “Climate Law and Developing Countries”, UK: Edward Elgar
Publishing Limited, 2009, p. 69
41
Ibid
impede access to courts. Thus, the presence of substantial threats of climate-related
violations should be sufficient to invoke the Court’s writ jurisdiction under Article 32.
Thus the basic law of the land enjoins both the state and the citizen to protect
the environment and conserve the better part of it. The regulation of environmental
area began in the colonial period with forest related legislation and now it includes the
specific legislation in the areas like water, air, forest, wildlife and the Environment
(Protection) Act 1986. Specific environmental legislations have met more success, but
the substances and administration of the above legislation have widely been
criticized.42
National Policies
In addition to the Constitutional mandate, India has a number of national
policies governing environmental management, including the National Policy on
Pollution Abatement (NPPA, 1992) and the National Conservation Strategy and
Policy Statement on Environment and Development (NCS/PSED, 1992). While these
national policies are not judicially enforceable, they serve as guiding principles for the
central and state governments to follow.
The NPPA encourages the use of economic instruments to complement
traditional command-and control approaches to pollution abatement. To integrate
environmental considerations into decision making at all levels, the policy adopts the
following guiding principles:
i. prevention of pollution at source;
ii. adoption of best available technology;
iii. the polluter pays principle; and
iv. public participation in decision making.
The NCS/PSED provides an overarching policy framework on environmental
management, including conservation of natural resources and economic development.
Key instruments for promoting environmental change include conducting
environmental impact assessments, developing educational campaigns, and ensuring
public participation. As the nodal agency, the Ministry of Environment and Forests
(MOEF) is responsible for implementing the NPPA and the NCS/PSED.43

42
S. Sivkumar, supra note 9, pp. 295-296
43
http://www.oecd.org/environment/outreach/37838061.pdf accessed on 7th March 2014
National Environment Policy, 2006
National Environment Policy, 2006 outlines essential elements of India’s
response to Climate Change. These, inter-alia, include adherence to principle of
common but differentiated responsibility and respective capabilities of different
countries, identification of key vulnerabilities of India to Climate Change, in
particular impacts on water resources, forests, coastal areas, agriculture and health,
assessment of the need for adaptation to Climate Change and encouragement to the
Indian Industry to participate in the Clean Development Mechanism (CDM).44
The primary objective of any legislation is to ensure social justice and well
being through enforcement of certain codes of conduct. Legislation for environmental
protection is also based on the recognition of the fact that it is necessary to abide by
the requirements to prevent damage to the environment, which is a common property.
7.3 Legislative Framework of regulation of Global Warming in India
There is a dichotomy in environmental protection and economic development
through industrialization. A possible compromise between the two is conceived in the
form of sustainable development. It aims at economic development without inflicting
any serious harm to the environment or tilting ecological balance. This is serious
concern to a developing country like India. Thus preservation and conservation of
environment have become the objectives of legal thinking in this millennium, along
with policies governing economic development. There are about two hundred laws
dealing with environmental protection both before and after independence in India.
However, the pre-independence laws have not dealt with environmental protection
exclusively. 45
Subscription to internal legal arrangements and commitment to implement
them through ratification, without the necessary national preparation for the same in
putting across the Indian points of view, in international fora, have led to making of
laws to fulfill our international obligations.46

44
Lok Sabha Secretariat Parliament Library And Reference, Research, Documentation And
Information Service (LARRDIS) Climate Change-India’s Perspective at http://164.100.47.134/intranet
/CLIMATE_CHANGE-INDIA’s_PERSPECTIVE.pdf accessed on 7th March 2014
45
Michael R. Anderson, “ Individual Rights to Environment Protection in India” in Alan E. Boyle and
Michael R. Anderson (Eds), Human Rights Approaches to Environmental Protection, Clarendon Press
(1996), pp.199-200………..CULR, 2004, S Sivakumar
46
M K. Ramesh, “Environmental Justice Delivery in India: In Context”, Indian Journal of
Environmental Law, Vol. 2, 2002, p. 12
 The year 1972 marks a watershed in the history of Environment Protection in
India. In this year The Stockholm Declaration which may be considered as the Magna
Carta of the environment declared: (a) Man has the fundamental right to freedom,
equality and adequate conditions of life, in an environment of quality that permits a
life of dignity and well being and (b) Man bears a solemn responsibility to protect and
improve the environment for present and future generations. The conference is of
particular significance to India as our country expressed its policies and concern over
environmental protection and at the same time the conference initiated a series of
environmental legislations in India.47
India was represented by the Prime Minister Smt. Indira Gandhi who while
addressing the Conference brought on the forefront the peculiar environmental
problems of India.48 The views expressed at the Stockholm Conference forms a core
part of the basic environmental philosophy of India that found expression in various
governmental policy pronouncements in subsequent years.49
After the advent of Stockholm Conference in 1972 there was a significant
change in the concept of environmental protection in India. India has enacted several
legislations to protect and conserve the environment. The major environmental
concerns of India were focused on water pollution, air pollution, soil erosion,
deforestation, desertification and loss of wildlife. The most challenging problem in
protection of environment is the Nation’s desire to industrialize faster.50 Most of the
environment related laws enacted by the Parliament have been based on Articles 252
and 253 of the Constitution.51 Some of these legislations are regulatory while some
are punitive and others prevent the damage to the environment.52

47
Dr. J L. Aparajit and Miss. Adhara Badhe, “Judicial Response towards the Protection of
Environment”, Journal of Indian Legal Thought, Vol. 1:97, 2003, p. 122
48
She emphasized that; “poverty and need” are the biggest polluters. She exclaimed that, “the
environmental problems of the developing countries are not the side effects of excessive
industrialization but reflects the in-adequacy of the development. The rich countries may look upon the
development a cause of environmental destruction, but to us it is one of the primary means of
improving the environment for living or providing food, water sanitation and shelter of making the
desert green and the mountain habitable. Hence the view point of developed countries is that
environmental problems were an abblection of industrialization and their suggestion for no growth
policy as the only viable means of protecting the biosphere.” India shared the view along with other
developing countries that environmental problems are mostly due to lack of development rather than
excessive development.
49
Dr. J. L. Aparajit and Miss. Adhara Badhe, supra note 47
50
R. C Trivedi, “Laws and Institutions for Control of Pollution in India”, Chartered Secretary,
September 2002, p. 1257.
51
Art. 252 (1) - If it appears to the Legislature of two or more States to be desirable that any of the
matters with respect to which parliament has no power to make law for the states except as provided in
Art. 249 and 250 should be regulated in such States by Parliament by Law, and if resolutions to that
 Environment statutes are regarded as ‘beneficent’ legislations, enacted to
advance the directive principles of state policy contained in Article 48A of the
Constitution. Being beneficent legislation, it is the duty of the court to adopt an
interpretation favoring ecological preservation. Another related rule requires courts to
adopt a ‘purposive’ interpretation, or an approach that advances the purposes that the
legislature had in mind when enacting the law.53 Thus various national laws for the
prevention and control of industrial and urban pollution which also aim at combating
global warming have been enacted.
7.3.1 The Forest (Conservation) Act, 1980
Alarmed at India’s rapid deforestation and the resulting environmental
degradation, the Central Government enacted the Forest (Conservation) Act in 1980.
This Act was adopted to protect and conserve forests. The Act restricts the powers of
the state in respect of de-reservation of forests and use of forestland for non-forest
purposes.
As amended in 1988, the Act requires the approval of the Central Government
before a state ‘de reserves’ a reserved forest, uses forestland for non-forest purposes,
assigns forestland to a private person or corporation, or clears forestland for the
purpose of reforestation. An advisory Committee constituted under the Act advises
the center on these approvals.54
It prevents even the state governments and any other authority dereserves a
forest which is already reserved. It prohibits forestland to be used for non-forest
purposes, except with the prior approval of the central government. 55 This Act was
passed to prevent deforestation, which results in ecological imbalance and
environmental deterioration resulting in global warming.

effect are passed by the all the houses of the Legislatures of those States, it shall be lawful for
parliament to pass an Act regulating that matters accordingly, and any Act so passed shall apply to such
states and to any other States by which it is adopted afterwards by resolution passed in that behalf by
the House or, where there are two Houses, by each of the Houses of the Legislature of the States.
(2) Any Act so passed by parliament may be amended or repealed by an Act of parliament
passed or adopted in like manner but shall not, as respects any states to which it applies, be amended or
repealed by an Act of the legislature of that states.
Art. 253 Notwithstanding anything in the forgoing provisions of this Chapter, Parliament has power to
make any law for the whole or any part of the territory of India for implementing any treaty, agreement
or convention with any other country or countries or any decision made at any international conference,
association or other body.
52
Dr. J. L. Aparajit and Miss. Adhara Badhe, supra note 47, p.100
53
Shyam Divan and Armin Rosencranz, supra note 19, p. 59
54
Ibid, p. 64
55
Supra note 4
7.3.2 The Air (Prevention and Control of Pollution) Act, 1981
To implement the decisions taken at the United Nations Conference on the
Human Environment held at Stockholm in June 1972 Parliament enacted the Air Act.
The Act’s statement of objects and reasons contains the government’s explanation of
the contents and the scope of the law, and its concern for the ‘detrimental effect [of
air-pollution] on the health of the people as also on animal life, vegetation and
property’.
The Air Act’s framework is similar to the one created by its predecessor, the
Water Act of 1974. To enable an integrated approach to environmental problems, the
Air Act expanded the authority of the central and state boards established under the
Water Act, to include air pollution control and states not having water pollution
boards were required to set up air pollution boards.
The objective of this Act is to provide for the prevention, control and
abatement of air pollution, for the establishment, with a view to carrying out the
aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers
and functions relating thereto and for matters connected therewith.
To counter the problems associated with air pollution, ambient air quality
standards were established, under the 1981 Act. The Act seeks to combat air pollution
by prohibiting the use of polluting fuels and substances, as well as by regulating
appliances that give rise to air pollution. Under the Act establishing or operating of
any industrial plant in the pollution control area requires consent from state boards.
The boards are also expected to test the air in air pollution control areas, inspect
pollution control equipment, and manufacturing processes.56
Increase in Air pollution contributes to Global Warming and the major
sources of air pollution are industrial emissions from thermal power plants, cement
plants, petroleum refineries and chemical industries, automobile exhaust, house hold
burning of fossil fuels and other carbonaceous matter and natural sources like dust
storms and forest fires etc.
Therefore, to reduce air pollution and combat global warming Chapter IV of
the Air Act, 1981 from Sec.19 to 31 A contains provisions for the prevention and
control of Air pollution.

56
http://envfor.nic.in/divisions/ic/wssd/doc2/ch2.html accessed on 27th May 2014
7.3.3 The Environment Protection Act, 1986
The Environment Protection Act (EPA) was enacted in the aftermath of the
Bhopal gas tragedy in 1984 claiming more than 3000 lives. The Statement of Objects
and Reasons of this Act refers to the decisions taken at the Stockholm Conference in
June 1972 and expresses concern about the decline in environmental quality,
increasing pollution, loss of vegetal cover and biological diversity, excessive
concentrations of harmful chemicals in the ambient atmosphere, growing risks of
environmental accidents and threats of life system.
The EPA is an ‘umbrella’ legislation designed to provide a framework for
Central Government coordination of the activities of various central and state
authorities established under previous laws, such as the Water Act and Air Act. It is
also an enabling law, which articulates the essential legislative policy on
environmental protection and delegates wide powers to the executive to enable
bureaucrats to frame necessary rules and regulations. 57 Under this Act, the central
government is empowered to take measures necessary to protect and improve the
quality of the environment by setting standards for emissions and discharges;
regulating the location of industries; management of hazardous wastes, and protection
of public health and welfare.58 The scope of the EPA is broad, with ‘environment’
defined to include water, air and land and the inter relationships which exist among
water, air and land, and human beings and other living creatures, plants, micro-
organisms and property. ‘Environmental pollution’ is the presence of any
environmental pollutant, defined as any solid, liquid, or gaseous substance present in
such concentration as may be, or may tend to be, injurious to the environment.59
Section 3(1), of the Act empowers the Center ‘ to take all such measures as it
deems necessary or expedient for the purpose of protecting and improving the quality
of the environment and preventing, controlling, and abating environmental pollution’.
Section 7 of the EPA prohibits the discharge or emission of environmental
pollutants in excess of the prescribed standards. To implement this mandate, the
government has framed the Environment (Protection) Rules of 1986 (EPR). The
standards are set out in the schedule appended to the EPR.60

57
P K. Goel, K P. Sharma, “Environmental Guidance & Standards in India”, 1stedn, Jaipur, Techno
Science Publications, 1996, p. 66
58
Supra note 56
59
See Sec.2 (b) and (c) of E.P Act, 1986
60
See Rule 3 of EP Rules 1986.
 This Act provides for Environment Impact Assessment (EIA) which is the first
attempt at a comprehensive statutory EIA programme which began on 27 January
1994 when the Union Ministry of Environment and Forests issued a notification
dealing with mandatory EIA. The notification mandates a public hearing and requires
the project proponent to submit an EIA report, an environment management plan,
details of the public hearing and a project report to the impact assessment agency for
clearance, with further review by a committee of experts in certain cases. The impact
assessment agency is the ministry itself.
This Act also provides for the Ecomark Scheme wherein 1991, the
Department of Environment, Forests and Wildlife announced a scheme for labeling
environment friendly products. The objects of the scheme are to encourage
manufacturers to introduce environment friendly products, reward genuine initiatives
to reduce adverse environmental impacts and assist consumers in making an
informed, responsible choice while purchasing goods. The label known as ‘Ecomark’
may be used by the manufacturers of the consumer goods who meet the environment
criteria notified by the Central Government for the purpose of the scheme. Though
qualification criteria have long been published for a number of goods such as soaps,
detergents, paper and paints the scheme has yet to gain acceptance.61
From time to time the central government issues notifications under the EPA
for the protection of ecologically-sensitive areas or issues guidelines for reducing
pollution to mitigate global warming.62
7.3.4 The Factories Act, 1948 (amended in 1987)
The primary aim of the 1948 Act has been to ensure the welfare of workers
not only in their working conditions in the factories but also their employment
benefits. While ensuring the safety and health of the workers, the Act contributes to
environmental protection. The Factories Act, 1948 provides that the liquid effluents,
gases and fumes generated during a manufacturing process should be treated before
their final disposal to minimize the adverse effects. During this period the focus of
economic policy was on planned economic development in a mixed economy
framework. The dominant policy objectives were economic growth, employment
generation, balanced regional development and equity.

61
Shyam Divan and Armin Rosencranz, supra note 19, pp. 70-71.
62
Supra note 56
 The Act contains a comprehensive list of 29 categories of industries involving
hazardous processes, which are defined as a process or activity where unless special
care is taken, raw materials used therein or the intermediate or the finished products,
by-products, wastes or effluents would: Cause material impairment to health of the
persons engaged Result in the pollution of the general environment 63 but after the
Amendment in 1987 as a post-independence statute has explicitly showed concern for
the environment. Soon after the decisions of the Supreme Court in Shriram Gas Leak
Case 64 and experience of Bhopal Tragedy, the 1987 amendment to the Factories Act
introduced special provisions on hazardous industrial activities.
The 1987 amendment empowers the states to appoint site appraisal
committees to advice on the initial location of factories using hazardous processes.
The occupier of every hazardous unit must disclose to her workers the Factory
Inspector and the local authority all particulars regarding health hazards at the factory,
and the preventive measures taken. The occupier is required to maintain workers’
medical records and must employ operations and maintenance personnel who are
experienced in handling hazardous substances.65
7.3.5 Public Liability Insurance Act, 1991
The Public Liability Insurance Act (PLIA), 1991 is enacted ‘to provide for
mandatory public liability insurance for installations handling hazardous substances to
provide minimum relief to the victims. Such insurance apart from safeguarding the
interests of the victims would also provide cover and enable the industry to discharge
its liability to settle large claims arising out of major accidents. If the objective of
providing immediate relief is to be achieved the mandatory public liability insurance
should be in the principle of “no fault” liability as it is limited to only relief on a
limited scale.
The Act covers accidents involving hazardous substances and insurance
coverage for these. Where death or injury results from an accident, this Act makes the
owner liable to provide relief as is specified in the Schedule of the Act. The PLIA was
amended in 1992, and the Central Government was authorized to establish the
Environmental Relief Fund, for making relief payments.66

63
Ibid
64
M. C. Mehta v. Union of India AIR 1987 SC 965
65
Shyam Divan and Armin Rosencranz, supra note 19, pp. 65-66
66
Supra note 56
 However, availability of immediate relief would not prevent the victims to go
to courts for claiming larger compensation it mandates that business owners operating
with hazardous substances take out insurance policies covering potential liability from
an accident and establish Environmental Relief Funds to deal with accidents involving
hazardous substances. The National Environmental Appellate Authority Act of 1997
requires the central government to establish an authority to hear appeals on area
restrictions where industrial operations will not be carried out or will be carried out
with certain safeguard measures. In 2005, Parliament enacted the Right to Information
Act designed to promote greater transparency and accountability of the government
and public participation in decision-making.67
Society’s responses to climate change, be they in the realm of adaptation or
mitigation, will also entail liabilities for insurers and their customers. The insurance
industry faces material liability exposures to both the causes and consequences of
climate change and the costs of adaptation. Climate change will clearly affect insurers
as policyholders suffer damage from extreme weather events, climate change will also
implicate insurers in other ways as climate-related liability risks increase.
Liability claims related to climate change have already emerged in United
States, Australia, Germany, New Zealand, the United Kingdom, and perhaps
elsewhere. For almost a decade now, plaintiffs have tried to sue various industries for
damages resulting from greenhouse gas emissions and climate change. Therefore
under this Act also such liabilities may incur in the near future.
7.3.6 The Electricity Act, 2003
This Act seeks to create a framework for the power sector development by
measures conducive to the industry. Electricity Act does not explicitly deal with
environmental implications of activities related to power transmission. The applicable
legal provisions under this Act are as follows: Section 68(1) sanction from the
Ministry of Power (MOP) is a mandatory requirement for taking up any new project.68
The development of grid interactive renewable power took off with the coming into
force of the Electricity Act 2003 (EA 2003), which, among other things, provides for
regulatory interventions for promotion of renewable energy.69

67
Supra note 43
68
http://www.caretrust.in/Environmental%20laws.pdf accessed on 14th April 2014
69
http://mnre.gov.in/information/renewable-energy-regulatory-framework/ accessed on 4th April 2014
 The National Tariff Policy (NTP) 2006 requires the State Electricity
Regulatory Commissions (SERCs) to fix a minimum percentage of Renewable
Purchase Obligation (RPO) from such sources taking into account availability of such
resources in the region and its impact on retail tariffs and procurement by distribution
companies at preferential tariffs determined by the SERCs. NTP has further
elaborated on the role of regulatory commission; mechanism for promoting renewable
energy and timeframe for implementation, etc. The policy was amended in January
2011 to prescribe solar-specific RPO be increased from a minimum of 0.25 per cent in
2012 to 3 per cent by 2022. Further, the National Action Plan on Climate Change
(NAPCC) suggests increasing the share of renewable energy in the total energy mix
at-least up to 15 percent by 2020.
Ministry of New & Renewable Energy has initiated an exercise to track the
evolving renewable power regulatory framework and develop a repository of
information in a consolidated manner. This exercise is expected to help understand
the dynamic nature of the renewable energy regulations and related issues and also
create a platform to share information on pertinent issues which helps in mitigating
global warming.70
7.3.7 The Energy Conservation Act 2001
Considering the vast potential of energy savings and benefits of energy
efficiency, the Government of India enacted the Energy Conservation Act, 2001. The
Act provides for the legal framework, institutional arrangement and a regulatory
mechanism at the Central and State level to embark upon energy efficiency drive in
the country. Five major provisions of EC Act relate to Designated Consumers,
Standard and Labeling of Appliances, Energy Conservation Building Codes, Creation
of Institutional Set up (BEE) and Establishment of Energy Conservation Fund.
The Act became effective from 1st March, 2002 and Bureau of Energy
Efficiency (BEE) operationalized from 1st March, 2002. Energy efficiency
institutional practices and programs in India are now mainly being guided through
various voluntary and mandatory provisions of the Energy Conservation Act.71
It provides a legal mandate for the implementation of the energy efficiency
measures through the institutional mechanism of the BEE in the central government

70
Ibid
71
http://powermin.nic.in/acts_notification/energy_conservation_act/introduction.htm accessed on 18th
April 2014
and designated agencies in each state. A number of schemes and programmes have
been initiated and it is anticipated that these would result in a saving of 10,000 mw by
the end of 11th five year plan in 2012.
To enhance energy efficiency, four new initiatives will be put in place. These
are: A market based mechanism to enhance cost effectiveness of improvements in
energy efficiency in energy-intensive large industries and facilities, through
certification of energy savings that could be traded. Accelerating the shift to energy
efficient appliances in designated sectors through innovative measures to make the
products more affordable. Creation of mechanisms that would help finance demand
side management programmes in all sectors by capturing future energy saving sand
lastly developing fiscal instruments to promote energy efficiency.72
This Act requires large energy consumers to adhere to energy consumption
norms, new buildings to follow the Energy Conservation Building Code, and
appliances to meet energy performance standards as well as display energy
consumption labels. The Act also created the Bureau of Energy Efficiency to
implement the provisions of the Act.73
Programmes such as The Energy Conservation Awards recognize innovation
and achievements in energy conservation by the Industries, buildings, zonal railways,
state designated agencies, aviation, manufacturers of BEE star labeled appliances and
municipalities and raises awareness that energy conservation plays a big part in
India's response to reducing global warming through energy savings. These initiatives
suggest the potential for large scale replication, and of concrete measures which can
help mitigate global warming. The awards scheme has been in operation since 1991.
32 sectors of Industry and other establishments are included in the Awards. In the
Awards 2010, a new category for Thermal Power Stations has also been introduced so
as to recognize their initiatives and efforts undertaken to conserve energy.74
Another such initiative is the Bachat Lamp Yojana (BLY) Lighting
Programme, 2009. This scheme was developed by Bureau of Energy Efficiency
(BEE) to promote energy-efficient lighting in India. There are no mandatory
requirements in India requiring the use of energy efficient CFL at the household level,
so participation is voluntary. Quality long-life CFLs will be distributed to grid-

72
India: National Action Plan on Climate Change (NAPCC) http://chimalaya.org/2012/01/21/india-
national-action-plan-on-climate-change-napcc/ accessed on 24th May 2014
73
http://www.iea.org/policiesandmeasures/pams/india/name-23940-en.php accessed on 3rd May 2014
74
Supra note 71
connected residential households in exchange for an incandescent lamp (ICL). Once
the CFLs have reached their end of life or any CFLs which have failed prematurely
during the project period will be collected and disposed of as per applicable
environmental norms. Such schemes are aimed at reducing global warming.
7.3.8 The Companies Act, 2013
The landmark Companies Act, 2013, makes it mandatory for companies to
spend 2% of their profit on corporate social responsibility (CSR)75, which will set
stricter compliance and create new opportunities for business spending on
environmental issues and clean energy. Companies are advised to give preference to
CSR activities that best align with the business. 'Environment Sustainability' is listed
as one of the eligible CSR activities.76
Corporate Social Responsibility is not a new concept in India, however, the
Ministry of Corporate Affairs, Government of India has recently notified the Section
135 of the Companies Act, 2013 along with Companies (Corporate Social
Responsibility Policy) Rules, 2014 “hereinafter CSR Rules” make it mandatory (with
effect from 1st April, 2014) for certain companies who fulfill the criteria as mentioned
under Sub Section 1 of Section 135 to comply with the provisions relevant to
Corporate Social Responsibility.77
It requires that companies having a net worth of Rs 500 crore or more or a
turnover of Rs 1,000 crore or a net profit of 5 crore must spend 2 % of net profit on
CSR activities. A schedule in the rules lists various activities companies can
undertake as CSR. Companies should take measures to check and prevent pollution;
recycle, manage and reduce waste, should manage natural resources in a sustainable
manner and ensure optimal use of resources like land and water, should proactively

75
The term “Corporate Social Responsibility (CSR)” can be referred as corporate initiative to assess
and take responsibility for the company's effects on the environment and impact on social welfare. The
term generally applies to companies efforts that go beyond what may be required by regulators or
environmental protection groups1.
Corporate social responsibility may also be referred to as "corporate citizenship" and can involve
incurring short-term costs that do not provide an immediate financial benefit to the company, but
instead promote positive social and environmental change.
76
http://www.theclimategroup.org/what-we-do/news-and-blogs/indian-businesses-must-spend-2-of-
their-earnings-on-csr/ accessed on 13th Jan 2014
77
Megha Kapoor, “India: Corporate Social Responsibility: Mandating Companies To Contribute
Towards Society” http://www.mondaq.com/india/x/305620/Corporate+Commercial+Law/Corporate+
Social+Responsibility+Mandating+Companies+To+Contribute+Towards+Society accessed on 20th
May 2014
respond to the challenges of climate change by adopting cleaner production methods,
promoting efficient use of energy and environment friendly technologies.78
Thus, the move makes India one of the first countries in the world to mandate
spending on social welfare as part of company activity by law. The Climate Group is
of the view that, this new provision will facilitate an enabling environment to develop
longer term strategies to address some of the most persistent economic, social and
environmental issues facing Indian society. Furthermore, this provision has the
potential to play a catalytic role in bringing together many corporates under an
umbrella to address some of these issues collaboratively for much greater impacts.79
7.3.9 Twelfth Five-Year Plan and Climate Change
Indian Five year Plans have stressed on goals such as rapid economic growth,
employment generation, poverty alleviation and balanced regional development.
Since June 1991 there has been a tilt in economic policy towards economic
liberalization and globalization. The importance of sustainable development is also
being stressed as an objective of public policy.80
The theme for 12th five year plan is faster, inclusive and sustainable growth.
But in making planning and development policies, programmes and plans they still
use old indicators for sustainable growth like responsibility of industries for
monitoring environmental concerns, waste management, eco-friendly tourism etc. The
underlying notion is that growth will take care of environment and sustainability
concerns automatically. With increasing industrialization, growing population,
progressive pressure put by socio-economic infrastructure, our natural resources and
environment has come under lot of stress leading to adverse effects of climate change,
depleting natural resources and ecosystem imbalance.81
While India is increasingly pushing for sustainability development in nation's
growth, back home it is quite lackadaisical in adopting innovative practices. In
Economic Survey 2012-13, it was stated that, currently sustainable development and
planning process are seen in divergent views and there is increasing need to integrate

78
Lok Sabha Secretariat, Parliament Library And Reference, Research, Documentation And
Information Service (LARRDIS) Corporate Social Responsibility available at
http://164.100.47.134/intranet/CorporateSociaResponsbility.pdf accessed on 6th March 2014
79
Supra note 76
80
Supra note 4
81
Sustainable Development in Indian planning process and climate change available at
http://donny1605.hubpages.com/hub/Sustainable-Development-in-Indian-planning-procees-and-
climate-change accessed on 27th May 2014
them so that sustainable development is seen as integral part of our planning process.
Sustainable development rests on the three pillars of economic, social and
environmental convergence and any imbalance in any one of these is bound to create
ecological, humanitarian and socio-economic crisis. Environmental imbalance due to
local, regional ecological disturbances, unbearable and unviable social and economic
practices has brought adverse effects to our nation as well as to world. A 4x4 study by
Ministry of environment and forests has put forth four vulnerabilities caused by
climate change: Food, Agriculture, Forests and Environment degradation.82
But at a time when India is embarking on path of economic empowerment the
need for adopting suitable green accounting practices and environment friendly
regime in planning and implementing process is not up to desired global standards.
7.3.10 National Action Plan on Climate Change
At a global level, climate change management has taken the form of an
International Convention, the UNFCCC, 1992. The primary goals of the UNFCCC
were to stabilize greenhouse gas emissions at levels that would prevent dangerous
anthropogenic interference with the global climate. The convention embraced the
principle of common but differentiated responsibilities which has guided the adoption
of a regulatory structure.
India signed the agreement in June 1992, which was ratified in November
1993. As per the convention the reduction/limitation requirements apply only to
developed countries. The only reporting obligation for developing countries relates to
the construction of a GHG inventory. India has initiated the preparation of its First
National Communication (base year 1994) that includes an inventory of GHG sources
and sinks, potential vulnerability to climate change, adaptation measures and other
steps being taken in the country to address climate change.83
Building on the framework of the UNFCCC, the Kyoto Protocol broke new
ground with its legally binding constraints on greenhouse gas emissions and its
innovative ‘mechanisms’ aimed at cutting the cost of curbing emissions. India has
undertaken numerous response measures that are contributing to the objectives
of the UNFCCC. India is a non‐Annex I country under the Kyoto Protocol and thus
has no binding target for emissions reduction.

82
Ibid
83
Supra note 56
 However, India is an active participant in the CDM established by the Protocol.
Rather than integrative binding legislation, India is developing a policy process to
specifically address climate change. India adopted NAPCC in 2008 outlining existing
and future policies and programmes directed at climate change mitigation and
adaptation. On 4th October 2012, the Indian government approved India’s 12th
Five‐Year Plan for 2012–2017, drafted by the Planning Commission, which sets a
target of 8.2% growth during that period. The Plan makes clear that high growth
requires supporting growth in energy and that the Indian government must take steps to
reduce the energy intensity of production processes and also to increase domestic
energy supplies as quickly as possible.
India’s emissions are estimated to be of the order of 1331.6 million tonnes of
the carbon dioxide equivalent GHG emissions in 2007. The emissions indicate an
annual growth of 4.2% from the levels in 1994. Whereas India’s CO2 emissions are
only about 4% of total global CO2 emissions and much less if the historical
concentrations are taken into account. Still India has been conscious of the global
challenge of Climate Change.
In pursuance of the obligations cast on parties to the UNFCCC, India has
undertaken to communicate information about the implementation of the Convention,
taking into account the common but differentiated responsibilities and respective
capabilities and their specific regional and national development priorities, objectives
and circumstances. The elements of information provided in the communication
include a national inventory of anthropogenic emissions by sources and removals by
sinks of all GHGs, a general description of steps taken to implement the Convention
including an assessment of impacts and vulnerability and any other relevant
information. India has submitted the Second National Communication (NATCOM) to
the UNFCCC in 2012.
The first National Communication was submitted in 2004. As per the Second
national Communication submitted by India to the UNFCCC, it is projected that the
annual mean surface air temperature rise by the end of the century ranges from 3.5 c
to 4.3 c whereas the sea level along the Indian coast has been rising at the rate of
about 1.3 mm/year on an average. These climate change projections are likely to
impact human health, agriculture, water resources, natural ecosystems, and
biodiversity. India’s strategy for addressing Climate Change is reflected in many of its
social and economic development programmes.84
Thus, NAPCC incorporates its vision of sustainable development and the steps
it must take to realize it. The Prime Minister, Dr. Manmohan Singh, set up a High
Level advisory group known as the Prime Minister’s Council on Climate Change
which included Government Representatives and Non-Government Members. The
Council coordinated National Action Plans for assessment, adaptation and mitigation
of Climate Change. It also advised the Government on proactive measures that can be
taken by India to deal with the challenge of Climate Change. It also facilitated inter-
ministerial coordination and guide policy in relevant areas.85
The NAPCC coordinated by the Ministry of Environment and Forests is being
implemented through the nodal Ministries in specific sectors/areas. On June 30, 2008,
India’s first NAPCC outlining existing and future policies and programs addressing
climate mitigation and adaptation was released. The plan identifies eight core
“national missions” viz:
National solar mission
Its objective is to make solar energy competitive with fossil-based energy
options. Launch an R & D programme facilitating international co-operation to enable
the creation of affordable, more convenient solar energy systems and Promote
innovations for sustained, long-term storage and use of solar power. A national solar
mission will be launched to significantly increase the share of solar energy in the total
energy mix while recognizing the need to expand the scope of other renewable and
non-fossil options such as nuclear energy, wind energy and biomass.
India is a tropical country, where sunshine is available for longer hours per
day and in great intensity. Solar energy, therefore, has great potential as future energy
source. It also has the advantage of permitting a decentralized distribution of energy,
thereby empowering people at the grassroots level. Photovoltaic cells are becoming
cheaper with new technology. There are newer, reflector-based technologies that
could enable setting up megawatt scale solar power plants across the country. Another
aspect of the solar mission would be to launch a major R & D programme, which
could draw upon international cooperation as well, to enable the creation of more

84
Supra note 44
85
Ibid
affordable, more convenient solar power systems, and to promote innovations that
enable the storage of solar power for sustained, long-term use.86
National Mission for Enhanced Energy Efficiency
The National Mission for Enhanced Energy Efficiency is one of the eight
missions under the National Action Plan on Climate Change. The objective of the
Mission is to achieve growth with ecological sustainability by devising cost effective
strategies for end- use demand side management. The MoP and BEE have been
entrusted with the task of preparing the implementation plan for the National Mission
for Enhanced Energy Efficiency (NMEEE) and to upscale the efforts to create and
sustain market for energy efficiency to unlock investment of around Rs. 74,000
Crores. The Mission, by 2014-15, is likely to achieve about 23 million tons oil-
equivalent of fuel savings- in coal, gas, and petroleum products, along with an
expected avoided capacity addition of over 19,000 MW. The carbon dioxide emission
reduction is estimated to be 98.55 million tons annually. 87
Market Transformation for Energy Efficiency (MTEE) to accelerate the shift
to energy efficient appliances in designated sectors through innovative measures to
make the products more affordable with focus on leveraging international financial
instruments, including CDM to make energy efficient appliances affordable and
increase their levels of penetration. Since the public sector holds the key to
aggregation of CDM projects so as to reduce transaction costs, barriers to widespread
adoption of CDM need to be removed.
National mission on sustainable habitat
A national mission on sustainable habitat will be launched to make habitat
sustainable through improvements in energy efficiency in buildings, management of
solid waste and modal shift to public transport. The mission will promote energy
efficiency as an integral component of urban planning and urban renewal through
three initiatives.
The energy conservation building code, which addresses the design of new
and large commercial buildings to optimize their energy demand, will be extended in
its application and incentives provided for retooling existing building stock.88

86
Supra note 72
87
Supra note 71
88
Supra note 72
 Recycling of material and urban waste management will be a major
component of ecologically sustainable economic development. India already has a
significantly higher rate of recycling of waste compared to developed countries. A
special area of focus will be the development of technology for producing power from
waste. The national mission will include a major R & D programme, focusing on bio
chemical conversion, waste water use, sewage utilization and recycling options
wherever possible.
Better urban planning and modal shift to public transport, making long term
transport plans will facilitate the growth of medium and small cities in ways that
ensure efficient and convenient public transport. In addition, the mission will address
the need to adapt to future climate change by improving the resilience of
infrastructure, community based disaster management, and measures for improving
the warning system for extreme weather events. Capacity building would be an
important component of this mission.89
National Water Mission
A national water mission will be mounted to ensure integrated water resource
management helping to conserve water, minimize wastage and ensure more equitable
distribution both across and within states. The mission will take into account the
provisions of the national water policy and develop a framework to optimize water
use by increasing water use efficiency by 20% through regulatory mechanisms with
differential entitlements and pricing. It will seek to ensure that a considerable share of
the water needs of urban areas are met through recycling of waste water, and ensuring
that the water requirements of coastal cities with inadequate alternative sources of
water are met through adoption of new and appropriate technologies such as low
temperature desalination technologies that allow for the use of ocean water.
The national water policy would be revisited in consultation with states to
ensure basin level management strategies to deal with variability in rainfall and river
flows due to climate change. This will include enhanced storage both above and
below ground, rainwater harvesting, coupled with equitable and efficient management
structures.90
The mission will seek to develop new regulatory structures, combined with
appropriate entitlements and pricing. It will seek to optimize the efficiency of existing

89
Ibid
90
Ibid
irrigation systems, including rehabilitation of systems that have been run down and
also expand irrigation, where feasible, with a special effort to increase storage
capacity. Incentive structures will be designed to promote water-neutral or water-
positive technologies, recharging of underground water sources and adoption of large
scale irrigation programmes which rely on sprinklers, drip irrigation and ridge and
furrow irrigation.
National Mission for Sustaining the Himalayan Ecosystem
A mission for sustaining the Himalayan ecosystem will be launched to evolve
management measures for sustaining and safeguarding the Himalayan glacier and
mountain eco-system. Himalayas, being the source of key perennial rivers, the
mission would, inter-alia, seek to understand, whether and the extent to which, the
Himalayan glaciers are in recession and how the problem could be addressed. This
will require the joint effort of climatologists, glaciologists and other experts. We will
need to exchange information with the south Asian countries and countries sharing the
Himalayan ecology.
An observational and monitoring network for the Himalayan environment will
also be established to assess freshwater resources and health of the ecosystem.
Cooperation with neighboring countries will be sought to make the network
comprehensive in its coverage.
The Himalayan ecosystem has 51 million people who practice hill agriculture
and whose vulnerability is expected to increase on account of climate change.
Community-based management of these ecosystems will be promoted with incentives
to community organizations and panchayats for protection and enhancement of
forested lands. In mountainous regions, the aim will be to maintain two-thirds of the
area under forest covers in order to prevent erosion and land degradation and ensure
the stability of the fragile eco-system.91
National Mission for a Green India
A national mission will be launched to enhance ecosystem services including
carbon sinks to be called green India. Forests play an indispensable role in the
preservation of ecological balance and maintenance of bio-diversity. Forests also
constitute one of the most effective carbon-sinks.92

91
Ibid
92
Ibid
 The prime minister has already announced a green India campaign for the
afforestation of 6 million hectares. The national target of area under forest and tree
cover is 33% while the current area under forests is 23%. The mission on green India
will be taken up on degraded forest land through direct action by communities,
organized through joint forest management committees and guided by the
departments of forest in state governments. An initial corpus of over Rs 6000 crore
has been earmarked for the programme through the compensatory afforestaion
management and planning authority (Campa) to commence work. The programme
will be scaled up to cover all remaining degraded forest land. The institutional
arrangement provides for using the corpus to leverage more funds to scale up
activity.93
National Mission for Sustainable Agriculture
The mission would devise strategies to make Indian agriculture more resilient
to climate change. It would identify and develop new varieties of crops and especially
thermal resistant crops and alternative cropping patterns, capable of withstanding
extremes of weather, long dry spells, flooding, and variable moisture availability.
Agriculture will need to be progressively adapted to projected climate change
and our agricultural research systems must be oriented to monitor and evaluate
climate change and recommend changes in agricultural practices accordingly.
This will be supported by the convergence and integration of traditional
knowledge and practice systems, information technology, geospatial technologies and
biotechnology. New credit and insurance mechanisms will be devised to facilitate
adoption of desired practices. Focus would be on improving productivity of rainfed
agriculture. India will spearhead efforts at the international level to work towards an
ecologically sustainable green revolution.94
National Mission on Strategic Knowledge for Climate Change
Its objective is to Work with the global community in research and technology
development by collaboration through different mechanisms. The mission also has its
own research agenda supported by climate change related institutions and a climate
research fund. Encourage initiatives from the private sector for developing innovative

93
Ibid
94
Ibid
technologies for mitigation and adaptation. 95 To enlist the global community in
research and technology development and collaboration through mechanisms
including open source platforms, a strategic knowledge mission will be set up to
identify the challenges of, and the responses to, climate change. It would ensure
funding of high quality and focused research into various aspects of climate change.
The mission will also have, on its research agenda, socio-economic impacts of
climate change including impact on health, demography, migration patterns and
livelihoods of coastal communities. It would also support the establishment of
dedicated climate change related academic units in universities and other academic
and scientific research institutions in the country which would be networked. A
climate science research fund would be created under the mission to support research.
Private sector initiatives for development of innovative technologies for adaptation
and mitigation would be encouraged through venture capital funds. Research to
support policy and implementation would be undertaken through identified centers.
The mission will also focus on dissemination of new knowledge based on research
findings.
These eight national missions, taken together, with enhancements in current
and ongoing programmes included in the technical document, would not only assist
the country to adapt to climate change, but also, importantly, launch the economy on a
path that would progressively and substantially result in mitigation through avoided
emissions.96
Ministries with lead responsibility for each of the missions are directed to
develop objectives, implementation strategies, timelines, and monitoring and
evaluation criteria, to be submitted to the Prime Minister’s Council on Climate
Change. The Council will also be responsible for periodically reviewing and reporting
on each mission’s progress. To be able to quantify progress, appropriate indicators
and methodologies will be developed to assess both avoided emissions and adaptation
benefits.97
The Government is implementing the NAPCC with a view to enhance the
ecological sustainability of India’s development path and address Climate Change.
95
http://currentaffairs.gktoday.in/pmo-forms-executive-panel-on-climate-change-0220134896.html
accessed on 20th April 2014
96
Supra note 72
97
National Action Plan on Climate Change Government of India June 2008
http://www.c2es.org/docUploads/India%20National%20Action%20Plan%20on%20Climate%20Chang
e-Summary.pdf accessed on 5th April 2014
The Government regularly reviews the progress under the NAPCC, based on the
information provided by the concerned nodal Ministry. The Government has also
constituted an Executive Committee on Climate Change in January, 2013, under the
chairmanship of Principal Secretary to Prime Minister to assist the Prime Minister’s
Council on Climate Change in evolving a coordinated response to issues relating to
Climate Change at the national level and to monitor the implementation of the eight
National Missions and other initiatives under the NAPCC.98
All national missions have been approved by the Prime Minister’s Council on
Climate Change and are at different stages of implementation. Thus, these national
missions will be institutionalized by respective ministries and will be organized
through inter-sectoral groups which include in addition to related ministries, ministry
of finance and the planning commission, experts from industry, academia and civil
society. The institutional structure would vary depending on the task to be addressed
by the mission and will include providing the opportunity to compete on the best
management model.
Each mission will be tasked to evolve specific objectives spanning the
remaining years of the 11th plan and the 12th plan period 2012-13 to 2016-17. Where
the resource requirements of the mission call for an enhancement of the allocation in
the 11th plan, this will be suitably considered, keeping in mind the overall resources
position and the scope for reprioritization.99
7.3.10.1 Indian Network for Climate Change Assessment
Steps have also been taken to increase capacity at the institutional level for
conducting research into Climate Change science and making necessary assessments.
The Ministry has already set up a network, namely the Indian Network for Climate
Change Assessment (INCCA) comprising of 127 research institutions tasked with
undertaking research on the science of Climate Change and its impacts on different
sectors of economy across various regions of India. INCCCA has helped the Ministry
put together its GHG Emissions Inventories and in carrying out other scientific
assessments at more frequent intervals.100
The approach that the NAPCC proposes India takes is, “a directional shift in
the development pathway” that promotes development objectives while also yielding

98
Supra note 44
99
Supra note 72
100
Supra note 44
co-benefits for addressing climate change effectively.” Once again it should be
pointed out that climate change benefits are seen only as a byproduct or co-benefit of
a sustainable plan to meet development targets and not as a goal in itself.101
7.3.10.2 State Action Plans on Climate Change
Under advice of the Central Government, State Governments are also
preparing State Action Plans on Climate Change that are aimed at creating
institutional capacities and implementing sectoral activities to address Climate
Change. So far, 21 States namely Andaman and Nicobar, Andhra Pradesh, Arunachal
Pradesh, Assam, Delhi, Jammu & Kashmir, Kerala, Karnataka, Lakshadweep,
Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland, Odisha, Punjab,
Rajasthan, Sikkim, Tripura, Uttarakhand, and West Bengal have prepared document
on State Action Plan on Climate Change (SAPCC).102
Climate change may alter the distribution and quality of India’s natural
resources and adversely affect the livelihood of its people. With an economy closely
tied to its natural resource base and climate-sensitive sectors such as agriculture,
water and forestry, India may face a major threat because of the projected changes in
climate. India’s development path is based on its unique resource endowments, the
overriding priority of economic and social development and poverty eradication, and
its adherence to its civilization legacy that places a high value on the environment and
the maintenance of ecological balance.103
The states play the major role in the implementation of the NAPCC. In an
address on August 18, 2009, the Prime Minister called upon the states and union
territories to initiate the preparation of state action plans. State level plans need to
create an institutional and operational framework for implementing the missions and
aligning them with other developmental priorities of the state.
The Indian Ministry of Environment and Forests (MoEF) has asked all Indian
states to develop action plans to define how they intend to undertake activities and
programmes aimed at climate change adaptation and mitigation. These SAPCC
should be in line with the objectives of the NAPCC and ensure its implementation at
state level.104

101
http://www.climate-leaders.org/climate-change-resources/india-and-climate-change/indias-national-
action-plan-on-climate-change accessed on 19th June 2014
102
Supra note 44
103
Supra note 72
104
http://www.ccarai.org/fields-of-work.html accessed on 11th Dec 2013
 State climate change action plans are treated synonymously with sustainable
development planning. This approach usefully injects environmental issues into
development planning, but represents a lost opportunity to internalize climate
resilience. The study draws on an analysis of state climate plans in five states:
Karnataka, Himachal Pradesh (HP), Madhya Pradesh (MP), Odisha, and Sikkim. The
states were primarily chosen to represent geographic and agro-climatic spread, and
variability in donor organizations involved, with additional attention to agro-climate
variability, size and, economic prosperity. Further, only states that had completed a
draft report were considered. As of January 2014, the climate plans of MP and Sikkim
had been endorsed, whereas HP, Karnataka and Odisha were awaiting approval.105
7.3.10.3 Karnataka state action plan on climate change
In June 2009 Government of Karnataka (GoK) constituted a Coordination
Committee to oversee and coordinate the state’s response to climate change. It
assigned the mandate to prepare the SAPCC to Environmental Management & Policy
Research Institute (EMPRI). In the planning process, the committee emphasized the
need to develop Karnataka SAPCC in close consultation with GoK who should
eventually own the action plan. This is reflected in the composition of the
Coordination.
Committee to which 15 key departments are member Work on Karnataka
SAPCC was preceded with a rapid assessment of sectoral actions of government
departments. Directed by the Coordination Committee, this review solicited
cooperation from 22 departments, 14 of which took part in the stocktaking exercise.
They provided details of actions already taken and in some cases, specific plans in
respect of climate change. Actions taken or proposed were reviewed keeping in view
the mandate and scope ensuing from the NAPCC as primary cornerstone. An initial
report of findings was released in December 2010 as a precursor.106
As a large, emerging economy, India faces big challenges relating to energy
and climate change. On the one side, the country has hundreds of millions of people

105
From margins to mainstream?: climate change planning in India as a 'door opener' to a sustainable
future available at http://www.indiaenvironmentportal.org.in/content/389214/from-margins-to-
mainstream-climate-change-planning-in-india-as-a-door-opener-to-a-sustainable-future/ accessed on
23rd Nov. 2013
106
Karnataka State Action Plan on Climate Change Draft Report for Government of Karnataka
September 17, 2011//// http://www.nicraicar.in/nicrarevised/images/State%20Action%20Plan/
Karnataka%20SAPCC%20draft%20-%20EMPRI,%20TERI%202011-09-17.pdf accessed on 8th Jan
2014
without access to electricity and an economy demanding more energy to power
growth. These pressures mean that energy use, and emissions, are likely to grow
substantially over the next few decades. At the same time, India is vulnerable to the
impacts of climate change, in particular water stress, impacts on agriculture and
susceptibility to weather-related disasters.107
Despite having no obligation, as a developing country, to tackle emissions,
India is coordinating comprehensive policies across the economy covering both
mitigation of GHG emissions and adaptation. Building public awareness will be vital
in supporting implementation of the NAPCC. This will be achieved through national
portals, media engagement, civil society involvement, curricula reform and recognition
awards, details of which will be worked out by an empowered group. The group will
also consider methods of capacity building to support the goals of the national
missions.
There is a need to develop appropriate technologies to measure progress in
actions being taken in terms of avoided emissions, wherever applicable, with
reference to business as usual scenarios. Appropriate indicators will be evolved for
assessing adaptation benefits of the actions.108
7.4 Role of Judiciary
The phenomenon of the emergence of Courts of Law in India, perhaps, as the
sole dispenser of environmental justice is occurring. By delivering landmark
judgments, that have, indeed, altered the common man’s perception of the Court of
Law as just a forum for dispute resolution and nothing else; the Indian Judiciary has
carved out a niche for itself as a unique institution. The increasing interest and a sense
of inevitability in approaching the corridors of justice, over every conceivable
environmental problem interest groups and individuals, bear witness to this
unprecedented occurrence.109
The judiciary now in analyzing the issues relating to environment is taking
recourse to constitutional environmentalism more assertively and forcefully. In the
recent years, the Supreme Court of India and some High Courts of the states under
Articles 32 and 226 of the Constitution respectively have led the way in the
enforcement of environmental laws through citizen-led public interest litigation (PIL)

107
http://www.rtcc.org/2013/02/19/in-focus-indias-climate-change-laws/ accessed on 22nd May 2014
108
Supra note 72
109
M. K. Ramesh, supra note 46, p. 9
that has its legal basis in the constitutional right to a healthy environment. Through
this judicial activism, the courts have issued orders with specific implementation
requirements that not only remedy the case at hand, but also set new policies and
practices with widespread implications for the regulated community as well as
regulatory agencies.
The environmental constitutionalism which led to incorporation of Articles
48A and 51A (g) in the Constitution received further impetus in 1978 when the Apex
Court in Maneka Gandhi case in interpreting Article 21, which deals with the human
right relating to life and personal liberty, held the view that the correct way of
interpreting the provisions of part III (i.e., fundamental rights) would be to expand the
reach and ambit of the fundamental rights rather than to attenuate their meaning and
content by judicial interpretation. This has not only given new dimensions to Article
21, but the Court in interpreting subsequent issues relating to environment and
ecology has given birth to new environmental jurisprudence through its judicial
activism and held that right to life includes right to clean and health environment.
This enabled the Court to expand Article 21 in such a way that non-justiciable
directives contained in Article 48A got resurrected as enforceable fundamental right,
in a manner beyond the comprehension of the makers of the Constitution. This is to
say; for all practical purposes the directives contained in Article 48A have been raised
to the status of fundamental right enforceable by writ petitions under Articles 32 and
226 of the Constitution.
Another important development of this new environment jurisprudence is that
the traditional view that the negative language of Article 21 and the use of the word
‘deprived’ in it, has imposed upon the state of negative duty not to interfere with the
life and personal liberty has undergone a sea change. Now, under the new
environment jurisprudence and constitutional environmentalism the state is under a
positive obligation to ensure clean and healthy environment for enjoyment of life of
every individual.110
Lack of vision, in foreseeing environmental problems, not evolving
appropriate policies, plans and programmes, beside non-dynamic, reactive (rather than
being pro-active), legislative laws, in tackling the complex and ever challenging

110
Bhaskar Kumar Chakravarty, supra note 10, p.101
environmental issues and problems appear to be at the root of the activist stance of the
courts of law.111
The scope, thus, includes right to livelihood, right to roads, right to speedy
trial, right to clean air, forest, water and environment and right to traditional method
of environmental protection under right to life. The right to life approach not only
implies the absence of a polluted environment but also the quality of the environment
by enumerating justifiable entitlements such as a clean river and lakes, coastal
resource zone, afforestation, preservation of wetland, healthy growth of wildlife and
ornithology.112
An important recent development is the rise of judicial activism in the
enforcement of environmental legislation. This is reflected in the growth of
environment-related public litigation cases that have led the courts to take major steps
such as ordering the shut-down of polluting factories.113 In the quest for development,
man since time immemorial has been continuously thriving upon environment. In his
process to manage environment, to achieve higher standard of living he has caused
serious irreparable damage to the environment. Several legislations have been enacted
to impose a check on these human actions, which deplete the environment. But the
true savior has been the judiciary, which has time and again balanced man’s
development with the environment.
Pollution is also a part of Social Justice. In Minerva Mills Co. Ltd., Vs. Sut
Mill Mazdoor Union (AIR 1955 SC 170), it was held that, “Social justice connotes the
balance of adjustments of the various interests concerned in the social and economic
basis.” Public health is a part of social justice. A decent life presupposes decent
health, and not only the individual has to be kept from disease, but the whole
environment has to be kept halcyonic to ensure perfect health. In this context the
Supreme Court highlighted the relevant Articles 41, 43, 47 and 48-A of the
Constitution. 114
If we observe the cases becomes clear that the courts were certainly protecting
the environment. Though protection to the environment was not directly accorded
under environmental protection legislations, it was given indirectly through other
legislations having clauses pertaining to the environment. The IPC, Cr. P.C, Factories

111
M. K. Ramesh, supra note 46. p. 10
112
Md Zafar Mahfooz Nomani, supra note 20, p. 66
113
Supra note 57
114
Dr. J L. Aparajit and Miss. Adhara Badhe, supra note 47, p. 120
Act and the Law of Torts have helped indirectly in the development of environmental
laws in India and in absence of effective environmental enactments in the pre-1972
period these laws have helped to protect and conserve nature to a large extent. On
various occasions our courts have effectively interpreted various provisions to save
our environment for e.g. in Narendra Kumar Vs. Union of India (AIR1960 SC 430).
The Supreme Court exclaimed that Restrictions includes prohibition in certain cases
to save forests’. Keeping in mind the intention of law framers courts have positively
interpreted various words and phrases in the interest of nation and its environment. 115
In this context, Article 48-A of the Constitution is significantly important. In
Minerva Mills V. Union of India, (AIR 1978 SC 597) Y. V. Chandrachud, C. J.,
observed that a balance between the fundamental Rights (Part III) and Directive
Principles of State Policy (Part IV) form the basic components of the fundamental
structure of the Constitution of India. The fundamental rights as guaranteed by the
Indian Constitution projected a picture of a perfect, full-fledged and free citizen while
the Directive Principles aid at self sufficient society. The aspiration of the citizens is
achieved by the complementary role played by the Fundamental Rights and the
Directive Principles.
A primary duty of the State is spelt out in Article 47 to raise the level of
nutrition and standard of living and to improve health as this Article directs towards
betterment of public health. In Ratlam Municipality V. Vardhichand, (AIR 1980 S
1622) the court enforced the duty against the defaulting local authorities irrespective
of the insufficient financial resources of such authority. 116
The right to clean environment as an integral part of the right to life, which in
turn is a human right, has been recognized In the decision of the Supreme Court in
117
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh. From here
onwards a new era has started to include clean environment as an integral part of the
right to life under Article 21 of the constitution of India. Environmental right, as a
part of the human rights law, now stands substantiated through judicial precedents and
other sources of international law. 118

115
Ibid, p 121
116
Ibid, p. 123
117
A.I.R 1985 S.C 652. See also Subash Kumar v. Bihar A.I.R1991 S.C.420
118
S. Sivkumar, supra note 9, p. 290
 In Subhas Kumar v. State of Bihar,119 the Apex Court has held that right to
live is a fundamental right under Article 21 of the Constitution and it includes the
right of enjoyment of pollution free water and air for full enjoyment of life. If
anything endangers or impairs the quality of life in derogation of laws, a citizen have
a right to recourse to Article 32 of the Constitution for removing the pollution of
water or air which may be detrimental to the quality of life.
The Supreme Court has explained the inter-relation between ecological issues
and fundamental rights as ecological concern arising in this Court under Article 21 or
under Article 136 or under Article 226 in the High Courts are, in our view, of equal
importance as human rights concern. In fact both are to be traced to Article 21, which
deals with the fundamental rights to life and liberty. While environmental aspects
concern ‘life’, human rights aspects concern ‘liberty’. 120
In M. C Mehta v. Union of India and others 121 the Supreme Court held that
when there is manufacture and sale of hazardous products then necessary steps should
be taken for reducing hazard to workmen and community living in neighborhood.
Damage in case of accident caused by leakage of liquid or gas must also be paid to the
petitioner.
Supreme Court further in Virender Gaur v. State of Haryana 122 has observed
that Article 21 protects right to live as a fundamental right. Enjoyment of life and its
attainment including the right to life with human dignity encompasses within its
ambit, the protection and preservation of environment, ecological balance, and
freedom from pollution of air and water, sanitation without which life cannot be
enjoyed. Any contract or action, which would cause environmental pollution,
environmental, ecological, air, water, pollution, etc., should be regarded as amounting
to violation of Article 21. Therefore, hygienic environment is an integral facet of right
to healthy life and it would be impossible to live with human dignity without a
humane and healthy environment. Environmental protection, therefore, has now
become a matter of grave concern for human existence. Promoting environmental
protection implies maintenance of the environment as a whole comprising the man
made and the natural environment. Therefore, there is a constitutional imperative on
the State Government and the municipalities, not only to ensure and safeguard proper

119
AIR 1991 SC 420
120
A.P. Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 825
121
AIR 1987 SC 965.
122
(1995) 2 SCC 577.
environment but also an imperative duty to take adequate measures to promote,
protect and improve both the man made and the natural environment.
In the Bangalore Medical Trust v. B S. Muddappa 123 held that discretion
vested in an authority must be exercised for the purpose of attaining the objects of the
laws. A plot reserved for a public park could not be allotted arbitrarily to a private
hospital by altering the town-planning scheme. The alteration did not improve the
scheme and, therefore, was contrary to the purpose for which the power to alter the
scheme was conferred.
In M I Builders v. Radhey Shyam Sahu 124 Supreme Court ruled that there is no
alter to this except to dismantle the whole structure and restore the park to its original
conditions leaving a portion constructed for parking. We are aware that it may not be
possible to restore the park fully to its original condition as many trees have been
chopped off and it will take years for the trees now to be planted to grow. But a
beginning has to be made.
In Santi Park ‘Sorent’ Co-op. Hsg. Soc. Ltd. V. Municipal Corporation,125
considering the provisions of the Air Act, the air quality norms and statutory
obligations of the municipal corporation, the High Court of Bombay issued
comprehensive directions to the respondents to abate the nuisance. The directions
included proper management of the solid waste disposal site.
In Murali D. Deora v. Union of India and others 126 the Supreme Court
observed that fundamental right guaranteed under Article 21 of the Constitution of
India, inter alia, provides that none shall be deprived of his life without due process
of law. There is no reason why a non-smoker should be afflicted by various diseases,
including lung cancer or of heart, only because he is required to go to public places. It
is indirectly depriving him of his life without any process of law.
A public interest petition, filed to protect Taj Mahal a world wonder and the
monument of international repute, sought appropriate directions to the authorities
concerned to take immediate steps to stop air pollution in Taj Trapezium (TTZ). The
sulphur dioxide emitted by the Mathura Refinery and other industries when combined
with oxygen with the aid of moisture forms sulphuric acid called “acid rain” which
has a corroding effect on the gleaming white marble. The Supreme Court decisions

123
AIR 1991 SC 1902.
124
AIR 1999 S.C 2468.
125
W.P No. 1138 of 1996.
126
(2001) 8 SCC 765.
were based on the reports of various technical experts that air pollutants have a
damaging effect on the Taj and the people living in the TTZ. The court observed that
“precautionary principle” requires that environmental measures must anticipate,
prevent and attack the causes of operation, which are detrimental to the environment.
The Supreme Court further upheld that the polluting industries should changeover to
the natural gas as an industrial fuel or should relocate themselves in new industrial
estates outside TTZ. The UP government was directed to give assistance and
incentives to the industries in the process of relocation while workmen shall be
entitled to certain rights and benefits.127
To protect the deteriorating quality of air so as to protect the health of the
people in Delhi, which is the facet of the Article 21 of the Constitution, the Supreme
Court has highlighted very categorically the constitutional duty of the state to protect
the environment and held that Articles 39(e), 47 and 48A collectively cast a duty on
the local authority to phase out grossly polluting old vehicles and non CNG buses to
improve environment and protect the health of the people of Delhi.128
The Supreme Court in a case has highlighted very categorically the
constitutional duty of the state to protect the environment and held that Articles 39(e),
47 and 48A collectively cast a duty on the local authority to phase out grossly
polluting old vehicles and non CNG buses to improve environment and protect the
health of the people of Delhi.
The Kerala High Court achieved a more modest agenda in requiring the Kerala
government to strictly implement vehicular emission regulations framed under the
MVA. The court directed the state to provide a smoke meter and gas analyzer at every
major town. 129 The Gwalior Bench of Madhya Pradesh High Court issued similar
directions.130 The question remains whether the court in M. C. Mehta’s case should
have restricted the new emission regime to the national capital region or extended to
all polluted metropolitan regions? Should other High Courts follow the lead and
prescribe similar technology forcing deadlines in respect of the polluted cities in their
jurisdiction.131

127
M. C. Mehta v. Union of India, AIR 1997 SC 734
128
M. C. Mehta v. Union of India, AIR 2001 SC 1948
129
Murali Purshotaman vs. Union of India, AIR 1993 Ker. 297
130
Santosh Kumar Gupta vs. Secy., Ministry of Environment, AIR 1998 M.P 43
131
The Bombay High Court required compliance with the Euro I norms from 1 January 2000 and Euro
II norms from January 2001 in respect of private (non-commercial) vehicles. Smoke Effected Residence
Forum vs. Municipal Corporation, Writ petition no. 162 of 1999 in a later order the court issued
 In P.C Cherian v. State of Kerala 132 , the Kerala High Court said that the
carbon particle (carbon black) emitted from two rubber factories amounted to an
actionable public nuisance under section 133 of the code of criminal Procedure 1973.
The court took judicial notice of the health effects of air pollution and it had to strike
a balance between the community interest and the interest of the workers in protecting
their jobs. The court held that there is no scope for doubt that carbon black on the
clothes of the residents, which make them soiled, and their deposits on food articles
would cause annoyance to them all.133
In Koolwal’s case the court raise a questionable point that when every citizen
owes a constitutional duty to protect the environment (Article 51 A), the citizen must
also be entitled to court’s aid in enforcing the duty against recalcitrant state
agencies.134
A very unique jurisprudential innovation has been incorporated into the
equality principle by bringing inter-generational equity and sustainable development
under its precinct. Further, in the M C Mehta v. Union of India case, the Court held
that precautionary principles and the polluter pays principle were the broad
constituents of sustainable development and right to life. The other fundamental rights
having a bearing on environmentalism are the right to practice any profession or carry
on any occupation or trade or business. However, the Courts most often than not
impose restrictions on development-oriented plans which come in the way of
sustainable development.135
To abate environmental degradation and pollution not only the fundamental
right to a wholesome environment is articulated through Articles 32 and 226 but the
Apex Court is resorting to Article 142 of the Constitution to auger
136
environmentalism. Thus view was firmed up in the Consumer Education and

comprehensive directions strengthening implementation of the emission norms, enhancing penalties

against violators, allowing citizens participation in the testing procedure, and constituting a committee
to recommend measures to control vehicular pollution. Order dated 15 December 1999.
132
1981 K.L.T.113
133
S. Sivkumar, supra note 9, p. 299
134
L. K. Koolwal v State of Rajasthan, AIR 1988 Raj 2
135
Md Zafar Mahfooz Nomani, supra note 20, p. 66
136
Constitution of India, Article 142 Enforcement of decrees and orders of Supreme Court and unless as
to discovery, etc (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or matter pending before it,
and any decree so passed or orders so made shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law made by Parliament and, until provision in that
behalf is so made, in such manner as the President may by order prescribe
Research Centre Case wherein the Supreme Court issued orders against thirty
asbestos mines and seventy four asbestos related industries to come abide by
ergonomic principles. A concurrent justification for the order was supported by
judicial obligations underpin under Article 142.137
The judiciary has evolved as well as applied various environmental principles
in the various landmark decisions. Absolute liability of hazardous and inherently
dangerous industry is high-water mark of the development of ‘polluter pays
principle’. The ‘polluter pays principle’ requires, a polluter bear the remedial or clean
up costs as well as the amounts payable to compensate the victims of pollution. The
principle as a remedial measure (for, it comes into force after the damage has
occurred) has been applied by the Supreme Court in a series of cases to enforce the
remedial costs on the polluters.
The “precautionary principle”, another part of the basic environmental law of
the land, which requires governmental authorities to anticipate, prevent and attack the
causes of environmental pollution and also imposes the onus of proof on the
developer or industrialist to show that his or her activity is environmentally benign,
has been applied the Apex Court in Sludge’s case, T N Tanneries case and Sapna
Motel case. The principle in more explicit terms was applied in M C Mehta v. Union
of India (Taj Trapezium case) for protecting the Taj from air pollution by coke/coal
fuel based industries operating within the Taj trapezium was revealed from expert
studies.138
The Supreme Court in Sapna Motel case has accepted the doctrine of Public
trust which rests on the premise that certain natural resources like air, sea, water are
means for general use and cannot be restricted to private ownership. These resources
are a gift of nature and the state, as a trustee thereof, is duty bound to protect them.
The State is the trustee, the general public the beneficiary, of such natural resources as
sea, running water, air, forests, and ecologically fragile lands.139

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and every power to make any order for the purpose
of securing the attendance of any person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself
137
Md Zafar Mahfooz Nomani, supra note 20, p. 66
138
Kailash Thakur and Hans Raj Jhingta, “Emerging Perspectives of Public Interest Litigation in
Environmental Protection”, CULR, 2006, p. 460
139
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 598
 The Supreme Court has assumed the role of public educator. In M C Mehta v.
Union of India, 140 the Supreme Court directed the exhibition and broadcast of
environmental messages and information by the media and introduction of
environment as a compulsory subject in schools and colleges. The Court issued
detailed directions regarding the compulsory screening of slides and documentaries in
cinema halls and the broadcast of programmes on radio and television. The UGC was
told to prescribe courses on environment in the universities syllabi. The State
Governments and Education Board were directed to take immediate steps to include
environment in the school curricula. To ensure strict compliance of its directions, it
has come heavily on defiant states enjoining upon them to strictly implement them
under the supervision of the state authorities.141
Taking on the “mining mafia” has been another concern of the Supreme Court.
Quite recently, it asked the central government to submit by January 27 the Justice
Shah Commission report on illegal mining in the states of Odisha and Jharkhand. The
report is expected to reveal the illegal financial transactions and expose the culprits.
Recently, the Court permitted 118 legal mines in the state of Karnataka to reopen,
lifting a two-year ban. However, it cancelled the leases of mining projects planned
outside the sanctioned area of the Bellary district.142
In Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors.,143 the judiciary has made a
reference to the impact of global warming on the sea level and has stressed the need
for protecting the areas that are ecologically sensitive and important such as national
parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves,
corals/coral reefs, areas, close to breeding and spawning grounds of fish and other
marine life, areas of outstanding natural beauty, historical heritage areas, areas rich in
genetic diversity, areas which are likely to be inundated due to rise in sea level
consequent upon global warming and such other areas as may be declared by the
Central Government or the concerned authorities at the State/Union Territory level
from time to time.

140
AIR 1992 SC 382
141
Kailash Thakur and Hans Raj Jhingta, supra note 138, p. 464
142
http://thediplomat.com/2014/01/the-indian-supreme-court-as-environmental-activist/ accessed on 2nd
May 2014
143
AIR 2004 SC 1834
 In Karnataka, Industrial Areas Development Board v Sri. C Kenchappa &
Ors.144 the Court overturned a direction by the Karnataka High Court to the appellant
to leave a land of one km as a buffer zone to maintain a ‘green area’ around the
periphery of a village. In this case the judiciary has made specific mention of the
entire world facing the serious problem of environmental degradation due to
indiscriminate development and due to industrialization, burning of fossil fuels and
massive deforestation leading to degradation of environment resulting in global
warming.
The judiciary has been well aware of international development in the field of
environmental law and is molding and developing the environmental jurisprudence in
the light of international conventions, treaties and agreements. The Indian judiciary by
taking recourse to international environmental principles is not only reinforcing,
strengthening and widening the environmental jurisprudence in India, but is also
making the executive and legislative wings of the state proactive in the field of
protection and improvement of the environment. In fact, relying on some international
environmental principles the Indian judiciary has been able to face some of the
challenges relating to environmental protection very successfully in the absence of
appropriate domestic legislation in the concerned field. The Supreme Court relaying
on the international concept of sustainable development, which calls upon the states to
bear solemn responsibility to conserve and use environment and natural resources for
the benefit of present and future generations, has given some important decisions
relating to environment.145
Emboldened by the human rights-oriented judicial initiative, India’s
environmental movement in the atmosphere of repressive policing and bureaucracy
has ushered a generation human rights regime. This was made possible by ethical and
legal considerations embedded in deep ecological postulates and numerous
international declarations into our constitutional body.146
Therefore, if anything endangers or impairs that quality of life in derogations
of laws, a person can take recourse to Article 32 or Article 226 for removal of
pollution of water or air that may be detrimental to the quality of air. A petition for
prevention of pollution is maintainable at the instance of the affected person or

144
AIR 2006 S.C 2038
145
Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P AIR 1985 SC 652
146
Md Zafar Mahfooz Nomani, supra note 20, p. 67
persons, or even by a group of social workers or journalists. The lacunae in law and
laxity and indifference on the part of enforcement agencies has invited increased
judicial intervention and in some cases pass judicial strictures. To make up the
deficiencies in law, the Supreme Court has issued directions to fill cavernous gaps.147
India’s apex court, the Supreme Court, has been playing an important role as a
steward of environmental protection. In a recent order, it required the central
government to set up a national environment regulator with offices in every state by
March 31, 2014, entrusted with appraising and approving projects for environmental
clearances. In fact, Indian democracy is known not only for its judicial independence,
but, importantly, for offering numerous instances of judicial activism that has been
facilitated by the “innovative” tool of PIL - a judicial pill for relief against executive
wrongs.148
Thus, the Indian Supreme Court has interpreted the right to life under Article
21 in a manner that extends beyond mere survival, to cover conditions that are
necessary for higher standards of living. Climate change, could potentially affect both
the survival and standards of living of Indians. Therefore, constitutional litigation may
be one avenue to accelerate government responsiveness to climate change, and this
possibility may influence the tenor of the Indian Government in negotiations for a
post-2012 climate regime. Of course, even if litigation is a feasible option to influence
India's stance on addressing global warming, it may not amount to very much
internationally, given India's current limited influence in the post-Kyoto negotiations.
On the other hand, such litigation may be a more promising avenue to leverage
change domestically than any other currently available legal strategy. I therefore now
turn to discussing specifically how climate change could infringe constitutional rights
in India, before moving on to discussion of domestic constitutional litigation as a tool
for combating climate change. Even if the Supreme Court were to find an Article 21
violation, it could not exercise its jurisdiction over foreign nations. Article 32 of the
Indian Constitution provides for judicial review only in the case of violation of
fundamental rights by the Indian government.149
Even the option of bringing a constitutional challenge against the Indian
government as a strategy to catalyze action on climate change is not without

147
Kailash Thakur and Hans Raj Jhingta, supra note 138, p. 462
148
Supra note 142
149
Benjamin J Richardson. (ed), supra note 40, pp. 70-71
problems. The Constitution vests foreign affairs powers exclusively in the central
government. It grants to parliament, the legislative branch, the power to enact laws
regarding foreign affairs, including the power to conclude legal arrangements.
However in practice, the executive branch of government enters into and implements
treaties and international obligations, and the parliament merely has the power to
enact executing domestic legislation. 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 excluded from adjudicating international disputes,
except for advising the President upon request.
Furthermore, the judiciary may be hard pressed to grant appropriate remedies.
Short of directing the government on international climate negotiations and policies,
there is little that the Indian judiciary can effectively do by way of shielding
fundamental rights from climate change related violations, without risking its
institutional legitimacy. If and when the violations actually occur, the Supreme Court
could order the government to pursue international adjudication, but, as current
evidence suggests, international adjudication has limited utility. International
principles under which any such remedy might be claimed, such as the duty to prevent
transboundary pollution (even though interpreted as customary international law in
the Trail Smelter Arbitration), are often not complied with by states.150
There is no indication at this point those violations will be prevented or
compensated for when climate change related catastrophes unravel, especially if the
incidents in the Sunderbans are any indication. More importantly, the Indian judiciary
may be facing the limits of its capacity to deliver justice in this context, because of the
complexity of climate science, the nature and breadth of remedies from different
branches of government that will be required effectively to mitigate the problem, and
the role of international governments.151
The constitutional challenges that could be triggered by climate change lend
themselves to adjudication. This is why judicial intervention has become an important
strategic tool to catalyze action on climate change in other jurisdictions, notably the
US. In Massachusetts v. Environmental Protection Agency,152 a group of states and
environmental public interest groups brought an action against the federal EPA for

150
Ibid, p. 72
151
Ibid, p. 73
152
549 U.S. 497 (2007)
failing to take action to combat climate change. The majority of the Court held that
the EPA was legally required to exercise its jurisdiction under the Clean Air Act to
come to an opinion as to whether or not vehicular emissions posed a danger, and were
not free to shirk this obligation based on the rationale of scientific uncertainty.
Constitutional litigation in India could serve the same purpose - to catalyze
action on climate change by the Indian government. This has been the purpose of
public interest litigation in India, to fill the void created by incompetent
administration. Thus, despite the potential hurdles discussed earlier, constitutional
litigation could serve the purpose of forcing the government to think in terms of the
rights of its people that will be violated if climate change occurs, rather than thinking
in terms of the right of its people to add to the problem. Such a shift could possibly
lead to the Indian government taking a more cooperative approach in the current post-
Kyoto negotiations that would focus on both its responsibilities for mitigation and
adaptation strategies. The Indian Supreme Court’s directions may require the
government to rethink its negotiating positions, but it would be dangerous for the
judiciary to attempt to play a role in the negotiation of a climate deal because any
such attempts to overreach would also affect the entire constitutional structure upon
which the nation is founded.153
The judicial response in the past few years towards the protection of
environment has been substantial and effective as per the requirement of the time.
Judiciary has been vigilant and active in protecting environment through
constitutional and other laws. Environment is the most talked about subject in the
present. Masses are made conscious of their health and hygiene. Accordingly
everybody expects to get clean air, clean water, and cleaner surroundings and
ecologically balance atmosphere. If this trend of judicial activism in the matters of
environment protection continues on the aforesaid lines, then as natural collorary a
question arises in mind as to whether the judiciary or the courts shall be in a position
to cope up with the need of environment protection. The judiciary has its own
limitations and cannot go beyond a certain point. If this trend continues in this manner
then the hope of the citizens to get clean air, water and ecologically balanced
environment shall be a matter in the state of abeyance. 154

153
Benjamin J Richardson. (ed), supra note 40, pp. 74-75
154
Dr. J L. Aparajit and Miss. Adhara Badhe, supra note 47, pp.143-144
7.5 Institutional Framework for Mitigation of Global Warming
The Stockholm Conference on Environment and Development exerted great
influence on environmental policymaking leading to an amendment of the
Constitution, passage of important legislations such as the Water (Prevention and
Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act,
1981 and creation of institutions such as Central and State Pollution Control Boards
for implementing the provisions of the Acts which aim at reducing pollution there by
combating global warming.
Increase in Air pollution contributes to Global Warming and the major
sources of air pollution are industrial emissions from thermal power plants, cement
plants, petroleum refineries and chemical industries, automobile exhaust, house hold
burning of fossil fuels and other carbonaceous matter and natural sources like dust
storms and forest fires etc.
India has a very comprehensive framework of legal and institutional
mechanisms in the region to respond to the tremendous challenges to the environment
it is facing, owing to population growth, poverty and illiteracy augmented by
urbanization and industrial development. Since the 1970s an extensive network of
environmental legislation has grown in the country. The MoEF and the pollution
control boards i.e. CPCB and SPCBs together form the regulatory and administrative
core of the sector.155
7.5.1 Ministry of Environment and Forest
The nodal agency for implementing various legislations relating to
environmental protection at the centre is the Ministry of Environment and Forest
(MoEF). Besides giving directions to the CPCB on matters relating to prevention and
control of pollution, the MoEF is responsible for designing and implementing a wide
range of programmes relating to environmental protection. The Annual Report of the
MoEF for 1996-97 states that ‘the focus of various programmes of the Ministry and
its associated organizations, aimed at prevention and control of pollution is on issues
such as promotion of clean and low waste technologies, waste minimization, reuse or
recycling, improvement of water quality, environmental audit, natural resource
accounting, development of mass based standards, institutional and human resource
development etc. The whole issue of pollution prevention and control is dealt with a

155
Supra note 56
combination of command and control methods as well voluntary regulations, fiscal
measures, promotion of awareness, involvement of public etc.’
Established in 1985, the MOEF is the central government nodal agency
responsible for planning, promotion and coordination of all environmental activities,
including formulation of national policies, standards and regulation. 156 The objectives
of the MOEF are:
i. conservation and survey of flora, fauna, forests and wildlife;
ii. prevention and control of pollution;
iii. afforestation and regeneration of degraded areas;
iv. protection of the environment; and
v. welfare of animals.
In wake of the problem of climate change, Ministries dealing with the
environment, water resources, urban development, agriculture, power, and new and
renewable energy are the nodal agencies for all the eight missions under the NAPCC.
With the MoEF recently coming with an objective set of guidelines that can make
way for a smooth flow of green clearance; a certain amount of “green thought” within
that objective framework is certainly called-for.157
The central and state governments have introduced a number of subsidies for
pollution control equipment and treatment installations. The Common Effluent
Treatment Plant (CETP) subsidy scheme is undertaken by the MOEF to enable
clusters of small-scale industries to establish or upgrade CETPs. The central and state
governments subsidize each 25 percent of total project costs, 30 percent is secured
through loans from financial institutions, and the remaining 20 percent is covered by
the participating small industries themselves.
Specifically in mitigating climate change under the Credit Linked Capital
Subsidy Scheme, the Ministry of Small Scale Industry is providing assistance to small
industrial units for adoption of cleaner production technologies and installation of
pollution controls. The financial support of up to USD 225,000 includes a 15 percent
subsidy from the Small Industry Development Bank of India and the National Bank
for Rural Development (World Bank, 2006).158

156
Supra note 43
157
“India’s Climate Change Policy: Critical Analysis on Eco-preparedness”, Civil Services Chronicle,
November 2012, p. 18
158
Supra note 43
 Based on the environmental laws and directions given by the Supreme Court,
the central government has created number of authorities for designing, implementing
and monitoring its environmental programmes. At the state level, most states have set
up Departments of Environments and the SPCBs.
The CPCB and the SPCBs are responsible for implementing legislations
relating to prevention and control of pollution. Pollution arises both from point
sources, for example, factories and non-point sources, for example, automobiles. In
addition, ambient standards for air and water have been laid down and are being
regularly monitored by the CPCB with the support of the SPCBs find that despite the
legislative and administrative efforts and fiscal incentives for pollution control,
‘ambient standards of air and water pollution continue to be routinely exceeded and in
some places quality has distinctly deteriorated’.
7.5.2 The Central Pollution Control Board
The first important environmental law enacted by Parliament is the Water
(Prevention and Control of Pollution) Act, 1974. This Act paved the way for the
creation of CPCB and SPCBs. The main function of the CPCB shall be to promote
cleanliness of streams and wells in different areas of the states. The term stream
includes river, watercourse, inland water, subterranean waters, and sea or tidal waters
to such extent or such point a state government may specify in this behalf.159
The Air Act’s framework is similar to the one created by its predecessor, the
Water Act of 1974. To enable an integrated approach to environmental problems, the
Air Act expanded the authority of the central and state boards established under the
Water Act, to include air pollution control. States not having water pollution boards
were required to set up air pollution boards.
Sec. 16 provides for the functions of the Central Board and Sec. 17 provides
for the functions of the States board. The CPCB was constituted in September; 1974
under the Water (Prevention and Control of Pollution) Act, 1974. All the States of the
Union have adopted the Act and respective State Pol1ution Control Boards have been
setup. Since May 1981, the CPCB and the State Pollution Control Boards have been
entrusted with the added responsibility of air pollution control under the provisions of
the Air (Prevention and Control of Pollution) Act 1981. Enactment of the
Environment (Protection) Act, 1986 has further widened the scope of activities of the

159
Supra note 4
Boards. A full-time Chairman nominated by the Central Government heads the
Central Board. A full-time Member Secretary, possessing qualifications, knowledge
and experience of scientific, engineering or management aspects of pollution control
is also nominated by the Central Government. Besides, the Government also
nominates some fixed number of members representing various other bodies. The
Pollution Control Unit of the Board looks after the work of setting and upgrading the
environmental standards.
Increase in Air pollution contributes to Global Warming and the major
sources of air pollution are industrial emissions from thermal power plants, cement
plants, petroleum refineries and chemical industries, automobile exhaust, house hold
burning of fossil fuels and other carbonaceous matter and natural sources like dust
storms and forest fires etc.
Therefore to mitigate global warming, the CPCB may carry out various
functions and exercise powers as provided in Chapter IV of the Air Act, 1981 under
section 16. It may take appropriate steps to improve the quality of air and to prevent,
control or abate air pollution in the country.
It may advise the Central Government on any matter concerning the
improvement of the quality of air and the prevention, control or abatement of air
pollution and plan and cause to be executed a nation-wide programme for the
prevention, control or abatement of air pollution.
It may co-ordinate the activities of the State and resolve disputes among them
provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of air pollution and prevention,
control or abatement of air pollution and perform such of the function of any State
Board as may, be specified in and order made under sub-section (2) of section 18.
It may and organise the training of persons engaged or to be engaged in
programmes for the prevention, control or abatement of air pollution on such terms
and conditions as the Central Board may specifyand also organise through mass
media a comprehensive programme regarding the prevention, control or abatement of
air pollution;
It may collect, compile and publish technical and statistical data relating to air
pollution and the measures devised for its effective prevention, control or abatement
and prepare manuals, codes or guides relating to prevention, control or abatement of
air pollution and lay down standards for the quality of air.
 It may collect and disseminate information in respect of matters relating to air
pollution and perform such other functions as may be prescribed and also establish or
recognise a laboratory or laboratories to perform functions efficiently.
Air quality standards specify the levels of the air pollutants beyond which the
quality of air becomes harmful or unacceptable. For establishing quality standards 1:1
addition, to health effects, considerations are also given to the impact on climate,
vegetation, animal life, materials as well as on the aesthetic quality of the
environment. These effects have significant social, cultural and economic
implications, and often become more sensitive indicators of air quality than effects on
health.
In addition to stating the concentration limits for the pollutants, air quality
standards should also specify the methods of measurement, the average time over
which concentrations should be measured, and the frequency with which the limit
may be exceeded.
The air quality standards are basically developed in two forms.
i. Ambient air quality standards
ii. Emission standards (Standards of performance)
a. Industrial
b. Motor vehicles
Ambient air quality standards specify the desired limit for specific pollutant
levels in the surrounding air. 160 Today in wake of global warming the role of the
CPCB in lying down as well as enforcing norms is of utmost importance.
7.5.3 State Pollution Control Boards
The SPCBs were established under the Water Act of 1974 but also function
for the Air Act of 1981. At the State level, the SPCBs are attached either to the
Environment Department, or to the Forest and Wildlife Department. In general,
SPCBs perform the following functions:
i. advise the state governments on pollution related issues;
ii. plan a comprehensive state-level pollution control/prevention/abatement
program;
iii. implement and enforce national standards, making them more stringent if
warranted by local conditions;

160
P. K. Goel, K. P Sharma, supra note 57, p. 64
 iv. grant consents to establish and to operate under the Air and Water Acts and
authorize hazardous waste disposal per rules under the EPA; and
v. Collect water cess for the use of water.161
The functions of the SPCBs also include inspection of any control equipment,
industrial plant or manufacturing process and to give, by order, such directions to
such persons as it may consider necessary to take steps for the prevention, control or
abatement of air pollution. The units belonging to the list of polluting industries
should obtain consents before their establishment or/and continuing their operations.
Therefore, to reduce air pollution and combat global warming Chapter IV of the Air
Act, 1981 from Sec.19 to 31 A contains provisions for the prevention and control of
Air pollution.
Firstly, the state government has the power to declare any area or areas within
the state as Air pollution control area or areas for the purpose of this Act after
consultation with the State Board.162
Secondly, to ensure standards for emission of Air pollutants from automobiles
the State government in consultation with the with State boards is empowered to give
such instructions as necessary to the concerned authority in charge of registration of
motor vehicles under the Motor Vehicles Act, 1939.163
Thirdly, provides for the restrictions on the use of certain industrial plants no
person shall without the previous consent of the state board establish or operate any
industrial plant in an air pollution control area.164
Fourthly, persons carrying industry, etc., are not allowed to emit air pollutants
in access of the standards laid down by the State Board and also empower the Board
to make application to the court for restraining persons from causing air pollutions.165
Fifthly, wherein in any area the emission of any air pollutant into the
atmosphere in access of the standards laid down by the State boards occurs or
apprehended to occur due to accident or other unforeseen act or event, the person of
the premises is bound to furnish information to State board and other agencies.166
Sixthly, any person authorized by the State Government is empowered to
enter any premises for inspection can obtain any necessary information and if
161
Supra note 43
162
Sec.19 of Air Act, 1981
163
Sec.20 of Air Act, 1981
164
Sec.21 of Air Act, 1981
165
Sec.22 and 22A of Air Act, 1981
166
Sec.23 of Air Act, 1981
necessary has got power to take samples of air and emissions from the premises and
reports of analysis of the samples has to be reported to the state board.167
Lastly, state government is empowered to establish a state air laboratory and
can appoint analysts and under Sec. 30 the reports signed by the analyst may be used
as evidence.168
The environmental standards developed by the Board find the place in various
schedules of the Environment (Protection) Rules, 1986. Most of these standards have
a legal element in them. The CPCB has also developed industry specific Minimal
National Standards (MINAS) taking into consideration the techno-economic
acceptability of the suggested treatment and ratio of the total annual cost of pollution
control to the annual turnover of the industry.169
To promote environmental compliance among small-scale industries, some
states like Andhra Pradesh, Uttar Pradesh, West Bengal, and Maharashtra have
initiated innovative economic incentive schemes that promote compliance with
environmental requirements. For example, in Kolkata (West Bengal), the majority of
small industries continue to use energy inefficient coal-fired heating installations
without any pollution control systems. The West Bengal PCB adopted strict
particulate emission standards and intensified enforcement efforts targeting these
pollution sources. In order to facilitate fuel conversion from coal to oil or gas in small
boilers and ceramic kilns, the PCB launched in 2001 a project to provide financial
assistance to these industries with support of the India-Canada Environment Facility
(ICEF).
Under the scheme, 25 percent of the capital costs of conversion are reimbursed
after the implementation as a matching grant by the West Bengal PCB, and further 25
percent by the ICEF. As of December 2004, a total of 228 small boilers and 18
ceramic kilns had been converted to cleaner fuel. This has led to a drastic reduction of
emissions of particulate matter from these industrial units. The same integrated
approach of regulation, enforcement, technical and financial assistance, including
support with providing the gas infrastructure, has been applied in Agra (Uttar
Pradesh), reportedly also with success (World Bank, 2006). 170

167
Sec24 to 27 of Air Act, 1981
168
Sec 28 and 29 of Air Act, 1981
169
P. K. Goel, K.P Sharma, supra note 57, p. 13.
170
Supra note 43
 Public-Private Partnerships through economic incentives, both the central and
state governments are promoting public-private partnerships (PPPs) for the
development of infrastructure for environmental services. For example, in Gujarat, 10
percent of the total investment of USD 1,644 million for controlling pollution has
come through a public-private partnership. CETPs, TSDF, and conveyance pipelines
for treated wastewater disposal into deep sea are eligible for a 25 percent state
subsidy. This is in addition to the 25 percent central government subsidies designated
for CETP, TSDF and common hazardous waste incinerators. Some states, including
West Bengal, Andhra Pradesh, and Maharashtra, are applying PPPs to address bio-
medical and hazardous waste management.
Some states are introducing initiatives to encourage good environmental
behavior through packages of economic and regulatory incentives. For example, the
Gujarat PCB provides incentives to industries implementing environmental
management systems (EMS) by issuing them consents on a priority basis and of
longer validity (six years), providing 25 percent rebates in water cess and 50 percent
discounts on fees for environmental audits. Some states have even tried to make ISO
14001 certification a precondition for consent renewal for the 17 most polluting
categories of industries. However, turning EMS into a sector-wide requirement
creates a disincentive for companies to adhere to voluntary initiatives in the future.171
Thus such initiatives of the SPCBs may help in mitigating climate change.
Environmental law enforcement, being a highly specialized area of implementation,
entrusted to different agencies under different laws, presents to non-too-happy-a-
picture.172 While the CPCB, at the Centre, is well served by a team of Law Officers,
their role is confined to assisting and briefing the Private Legal Counsels appointed
for the purpose, after the dispute involving the government comes up before the
Courts of Law. No system is evolved, as yet, to facilitate consultation, by the different
branches within the Board, with the legal wing, before or at the time of decision-
making by each one of them. No special care is taken in ensuring that the legal
personnel recruited do possess the knowledge and skill required for understanding and
interpretation of environmental laws. No regular, periodic, verifiable training
programme is evolved to ensure their capacities in Environmental Laws are enhanced,
by the Board.

171
Ibid
172
M. K. Ramesh, supra note 46, p. 15
 The story is no different in the regional offices of CPCB or in the State
Boards. Not all the State Boards have legal officers and, even where they are there,
their functions do not differ substantially from their counterparts in the CPCB. Since
the State Boards are normally the ones, that are involved in the litigative process, the
legal personnel recruited for the purpose are expected to possess the requisite
knowledge and skill as to the procedural and substantive aspects of environmental
laws. The expectations are belied as one goes through the litigation profile of different
State Boards. The higher judiciary has, time and again, reminded the Boards about
these lapses in their litigation. The Gujarat High Court, in Gujarat Water Pollution
Board v. Kohinoor Dyeing & Printing Works173 insisted that the Board officers take
effective steps for the service of the summons upon the accused; prepare the case
thoroughly; resist adjournments; seek exemplary costs to deter the accused from
adopting dilatory tactics and vigorously pursue appeals in the superior court.174
Constitution of core expert groups to advice the government on matters of
policy and implementation of law, especially when faced with an emergency situation
or in response to a directive from the higher judiciary, has become a routine affair. In
certain cases, it might appear that such a formation, to be in deference to the wishes of
the judiciary. However, on closer examination it becomes evident that the entire
exercise invariably has resulted in enabling the government to buy time, postpone
decision-making and when the reports are given, they remain at highest levels of
abstraction as to become more of enunciation of principles and not real tools for better
and effective implementation.175
Inspite of all the short comings these institutions play an important role in
combating climate change. Apart from these there are various other institutions and
NGOs who contribution in mitigating climate change is noteworthy.
7.5.4 Bureau of Indian Standards
It was initially Indian Standards Institution (ISI) whose name was charged to
Bureau of Indian Standards (BIS) from 1st April 1987. The present composition of
the Bureau is with its president as the union minister for parliamentary affairs and the
vice-president as the minister of state for food and civil supplies. The BIS is carrying
out significant work in the field of standardization for environmental protection since

173
1993 (2) GUJ. L. R. 1368
174
M. K. Ramesh, supra note 46, pp. 16-17
175
Ibid, p. 21
1950s, which is being looked after by different technical committees of the Bureau. A
brief account of the work done by BIS in the development of environmental standards
is summarized below.
The Chemical Division Council of the BIS recognized the growing menace of
air pollution and agreed to carry out work in this field in 1962. At that stage there was
no alternative but to allot this work to a sub-committee only because the number of
organizations and experts interested directly in air pollution were limited. Later,
however, several other organizations notably the Bhaba Atomic Research Center,
Universities and IITs got involved in the work leading to the building-up of Indian
expertise and data. Therefore, later a full-fledged Sectional Committee for air
pollution control was setup. The BIS has given the standard methodology for sampling
and measurement of air pollution. It has also given standards for ambient air and
emission standards for several industries. Further, the work for preparing steadied
codes of practice and guides for selected industries for controlling air pollution and
preparing standard specification for contra equipments has also been undertaken
BIS.176
Today, there is growing recognition that protecting the environment and
especially to combat global warming requires that the entire range of production
processes and products be environment friendly. One problem in this respect is the
continued use, in many countries, of obsolete, environmentally damaging industrial
production techniques and management damaging industrial production techniques
and management practices.177
7.5.5 The Indira Gandhi Institute of Development Research (IGIDR) is
represented by Dr. Jyoti Parikh in the Advisory Panel for Global Environmental
Issues set up by the Ministry of Environment and Forests. She was also the convening
lead author for the IPCC Working Group III chapter on decision-making frameworks.
She is a member of Scientific and Technical Advisory Panel (STAP) for the Global
Environment Facility (GEF). Dr. Parikh also contributed to a report prepared for the
Asian Development Bank coordinated by the Climate Change Institute in
Washington. IGIDR has contributed a number of papers on joint implementation at a
variety of conferences and workshops and so on. Recently, IGIDR prepared a project

176
P. K. Goel, K. P Sharma, supra note 57, pp 11-13.
177
United Nations Conference on Trade & Development, ‘Environment’, UNCTAD series on issues in
international investment arguments, United Nations, New York & Geneva, 2001, p. 9
document on GHG reduction strategies for the power sector in Maharashtra for the
UNEP.
7.5.6 The Center for Science and Environment (CSE) was one of the first
institutions to ask for an equitable share of environmental space for developing
countries on a per capita basis. Since then it has reported and commented on climate
change issues in the bi-weekly magazine, Down to Earth. It holds workshops and
conferences for AIJ and also holds dialogues with members of parliament and upper
house.
7.5.7 Development Alternatives (DA) is an organization that deals with the practical
demonstration of alternative technologies and methods. DA also organized a national
workshop on joint implementation in January 1995. It is also working out ways t
reduce CO2 emissions by developing appropriate construction materials and method.
7.5.8 Tata Energy Research Institute (TERI) has published several books on
climate change. It is also represented in the IPCC Working Groups II and III. TERI
I1n held several international workshops on climate related issues. It is also involved
in ALGAS project.
Other organizations involved in climate change issues are the Institute of
Economic Growth (IEG), the Indian Institute of Science (IISc), and the Indian
Institute of Management (IIM). These organizations and several more have
contributed general awareness and provided analytical background for policymaking.
State level awareness could spread more effectively with state-based NGOs. For
example, IGIDR in Maharashtra and the Indian Institute of Science in Karnataka have
done work on mitigation strategies for these states in addition to their work at national
and international levels.
Most NGOs support JI with guarded optimism, NGOs such as TERI and
IGIDR see this as a technology transfer exercise that could lead to greater energy
efficiency. IGIDR has so far expressed reservations about JI in sink projects, that is,
projects for plantations that divert land from agriculture or treat forests as carbon
sinks, However, IISc and IEG (and perhaps TERI) think that there may be a potential
for finding support for employment generation through sink projects, However, IEG
figures show that this may cost US$ 30 per ton of carbon fixed. CSE has expressed
stronger reservations for JI in general. They prefer to discuss carbon entitlement issue
first. Perhaps, due to support of NGOs in favor of JI or due to Governments own
analysis, the recent position of the government has mellowed so as to give approval of
pilot phase of JI. At the COP, Berlin, however, it is viewed as learning experience
only, According to MOEF, till the pilot phase is over, no discussion should be
entertained about carbon credit. But they have agreed to the pilot phase - although,
with some reluctance, for the time being.178
7.5.9 International Financial Institutions
The role of International Financial Institutions (IFIs) in the context of Climate
Change for India also needs to be examined. There are concerns that multilateral
financial institutions, being largely donor -driven, would be encouraged to bring in
climate related conditionalities even for their normal lending programmes. At the
same time, carbon trading could result in discrimination to developing countries who
fail to get the deserved price for projects taken with the intention of carbon emission
reduction while the emitters of carbon (developed countries) may get away with
increased emission levels. One issue that needs to be examined is why prices of
Certified Emission Reductions (CERs) for which developing countries are eligible are
lower than European Emission Allowances (EUAs), which are traded on several
European exchanges. India needs to monitor issues of trade competitiveness raised by
developed countries carefully, especially at WTO with regard to trade in
environmental goods and services. Environment has not been included in WTO
negotiations and we have to guard against t his making an entry through the back door
in the form of climate change negotiations in international institutions.179
There are also proposals for consolidating various initiatives of IFIs in India
on energy efficiency, renewable energy and climate change as a new paradigm for
clean energy in the context of global warming in place of getting them piece- meal.
There is a need to examine the appropriateness of such proposals as it could lead to
clubbing of developmental goals with climate change initiatives and diversion to
Climate Change purpose of funds hitherto given for developmental purpose and
meeting MDGs. A better option is probably to consolidate efforts only of those
related to climate change and leave the ones where there is overlapping, as it is. 180
India has also started to experiment with environmental information disclosure
and performance rating schemes to exert public pressure on non-complying industries.

178
Jyoti K. Parikh, “Institutional Framework for Climate Change in India”, Climate Change and North
South Co-operation, edit; Jyoti. K Parikh, Roy Culpeper, David Runalls, J. P. Painuly, New Delhi,Tata
McGraw-Hill Publishing Co. Ltd., 1997, pp.187-191.
179
H. A. C. Prasad, J. S. Kochher, supra note 6, p. 5
180
Ibid, p. 16
The Green Rating Project for the pulp and paper industry was launched in 1999 by the
Centre for Science and Environment with support from the Confederation of Indian
Industries. The exercise has achieved impressive results in terms of motivating
industries to adopt environmental policies but did not get widely replicated
7.6 Evaluation of the Institutional Framework relating to global warming
India is implementing its international law obligations steadily and effectively.
India, as a developing country has reasons to be concerned about the adverse impact
of climate change on its economy. A large part of its population depends on climate
sensitive sectors for livelihoods which makes it highly vulnerable to climate change.
Climate change can have serious impact on its crops, forests, coastal regions, etc.
which can in turn affect the achievement of its important national development goals.
The issue of climate change cannot however be taken up without linking it to
developmental needs such as poverty, health, energy access and education.
The Indian courts have played a very significant and vital role in environment
protection in India by applying the principles of international law. The scope of right
to life under Article 21 of the Constitution has been widened through the concept of
PIL and clean environment is now a fundamental right of every Indian.
India has a very comprehensive framework of legal and institutional
mechanisms in the region to respond to the tremendous challenges to the environment
it is facing, owing to population growth, poverty and illiteracy augmented by
urbanization and industrial development. India is one of the leading developing
countries in so far as having incorporated into its Constitution the specific provisions
for environmental protection. Despite the fact that India’s contributions to GHG
emissions are very small; the Government of India has taken many measures to
improve the situation in this regard. India has initiated several climate-friendly
measures, particularly in the area of renewable energy. It has one of the most active
renewable energy programmes besides having a dedicated Ministry for non
conventional energy sources and has also taken many other measures and policy
initiatives.181
Apart from the various legal and institutional provisions made by the
government to check the air pollution there is a need for execution of effective plan to
combat global warming. Thus, India has undertaken numerous response measures that

181
Ibid, p. 21-22
are contributing to the objectives of the UNFCCC and has formed a NAPCC which
incorporates its vision of sustainable development and steps it must take to realize it.
Engineering new and innovative forms of market, regulatory and voluntary
mechanisms to promote, the NAPCC addresses the urgent and critical concerns of the
country through a directional shift in the development pathway, including through the
enhancement of the current and planned programmes presented in the technical
document. The national action plan on climate change identifies measures that
promote our development objectives while also yielding co-benefits for addressing
climate change effectively. It outlines a number of steps to simultaneously advance
India’s development and climate change-related objectives of adaptation and
mitigation. But poor enforcement of the laws occurs as pollution control authorities
do not have reliable information regarding the quantities of effluents/emissions/solid
wastes and their characteristics and SPCBs do not have adequate technical facilities
and skilled manpower for monitoring the polluting units which can impose hardships.
And for the effective control of GHG emissions there must be coordination of the
various Ministries.
India’s commitment to climate mitigation and adaptation is considered by
many to be critical to the future of an effective post-2012 international climate
regime. This view stems from concerns about the potential effects that a rapidly
growing hydrocarbon economy of a billion people can have on the global climate and
on efforts by other nations to reduce GHG emissions. While playing its part in the
negotiation of this international regime, the Indian government must also be spurred
to action by considering the threat that the absence of an effective regime presents to
the constitutionally guaranteed rights of its citizens, and its own potential domestic
liability for climate induced harm.