SUSTAINABILITY TRANSFORMATIONS, ENVIRONMENTAL RULE

OF LAW AND THE INDIAN JUDICIARY: CONNECTING THE DOTS

THROUGH CLIMATE CHANGE LITIGATION

BLJ5.4 PRINCIPLES OF ENVIRONMENTAL LAW

SUBMITTED BY:
SHREE PAWAR
UID: UGJ21-47

B.A LL. B (HONOURS IN ADJUDICATION AND JUSTICING)

SEMESTER- V
ACADEMIC SESSION: 2022-2023

SUBMITTED TO:

PROF. (DR.) VEENA ROSHAN JOSE

(ASSISTANT PROFESSOR OF LAW)

MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

REVIEW OF LITERATURE
TITLE: SUSTAINABILITY TRANSFORMATIONS, ENVIRONMENTAL RULE OF LAW
AND THE INDIAN JUDICIARY: CONNECTING THE DOTS THROUGH CLIMATE
CHANGE LITIGATION

AUTHOR: GITANJALI N. GILL

ABOUT THE AUTHOR: Professor Gitanjali N. Gill is a tenured full professor of

environmental law at the Northumbria School of Law, Northumbria University, UK. Her
research interest and published work in leading peer-reviewed journals forms a coherent body
reflecting the thematic issues including access to environmental justice, climate change,
biodiversity, SDGs, sustainability and good governance in Asia with a focus on India.

She acts as an expert academic advisor to prestigious international organisations including the
Sabin Centre Peer Review Network on Climate Change Litigation, Columbia Law School,
New York.

INTRODUCTION


Gill, G. N., & Ramachandran, G. (2021). Sustainability transformations, environmental rule of law and the
Indian judiciary: Connecting the dots through climate change litigation. Environmental Law Review, 23(3), 228-
247. https://doi.org/10.1177/14614529211031203

Prof. (Dr) Gitanjali N. Gill, Professor of Environmental Law, Northumbria Law School, Northumbria
University, United Kingdom
The author in this article has focused on earth’s health and environmental crisis which are
increasing day by day, he has focused on the concept of sustainable development and role of
judiciary in reshaping governance for sustainability. Role of judiciary is seen as strategic tool
in shaping the environment and concerns for climate change. The author highlights the
pressing need to confront the environmental crisis facing the planet, emphasizing the urgency
of rethinking lifestyles, production methods, and consumption patterns to achieve
sustainability. Within this context, the concept of “transformations towards sustainability”
takes centre stage, gaining traction in global scientific and policy discussions. The 2021
United Nations Environment Programme (UNEP) Report speaks out that system-wide
transformation is crucial for a sustainable future.

Author also highlights United Nations' 2030 Agenda for Sustainable Development. The
Sustainable Development Goals (SDGs), integral to the 2030 Agenda, represent bold,
integrated, and transformative steps, balancing economic, social, and environmental
dimensions. Structured around the five P's that are people, planet, prosperity, peace, and
partnership, the SDGs aim to propel the world toward a sustainable and resilient path. While
multiple actors play a role in governance, the article places particular emphasis on the
judiciary's pivotal role in steering the transformation process towards sustainability and
equity. The judiciary emerges as a crucial partner in achieving sustainability goals. The article
posits judicial intervention as a strategic tool capable of effecting transformative changes
through the implementation, development, and enforcement of environmental laws. As a case
study, the article examines Indian climate change cases, illustrating how the judiciary can
contribute to transformative discourse.

This article is divided into five parts of which first is introduction, secondly the social science
literature on sustainable development. Third part focuses on the role of judiciary for
sustainable development. Section 4 examines climate change law and role of NGT and
Supreme court in transformative discourse under three categories “climate conscious”,
“climate accountability” and “climate futurity”. And lastly conclusion.

TRANSFORMATIONS TOWARDS SUSTAINABILITY: THEORETICAL REVIEW

The author defines the term Transformation as a psycho-social process, author a view it as a
process and goal for societal change and environmental sustainability. He views fostering
transformations as a key approach to addressing environmental and societal challenges, also
conveys how transformation can lead to profound shifts in structural, functional, relational,
and cognitive aspects of systems.

Approaches

Literatures on transformation and sustainable development comes mostly from western

scholars who mainly focuses on problems of global north, it is not easy to navigate this
literature therefore the author has provided a tabulation explaining various scholars from
various view-points, goal and political beliefs see towards transformation of sustainability.

Author has explained transformative sustainability through four tabulated approaches.

1) Transitions approach 2) social-ecological transformations 3) sustainability pathways

4) transformative adaptation.

The article explores diverse approaches to sustainability transformations, each offering

unique insights into the complex challenge. The transitions approach, targeting specific
sectors, underscores the need for substantial and long-term changes in pursuit of sustainable
production and consumption. Social-ecological transformation, rooted in ecology and social
sciences, acknowledges the integral role of people in ecosystems, emphasizing resilience. The
sustainability pathway adopts a human-centric perspective, navigating sustainable
development through governance and contextual considerations. Transformative adaptation,
linked to vulnerability and climate change, delves into power dynamics and aims to empower
vulnerable groups.

Navigating Sustainability Transformations: Incremental vs. Radical Change.

The author delves into the debate on incremental versus radical change in sustainability
transformations, emphasizing the systemic consequences of radical actions. Incremental
changes, seen as slow adjustments, are critiqued for their perceived limitations, while radical
changes are prioritized for their transformative potential. The article acknowledges the
challenges of implementing quick and large-scale radical changes, it also highlights the
potential resistance and organizational crises. The author also mentions the issues of ill-
functioning institutions and coordination challenges within regulatory bodies. The authors
support the nuanced approach for developing economies, aligning with Patterson's middle
path perspective. He has also stressed on the point that change need not be massive or rapid
but can result from cumulative, incremental shifts.

"Judiciary as Guardians of Sustainability: The Role of Environmental Rule of Law"

The article emphasizes the judiciary's pivotal role in governance and the transformative
process, particularly through the lens of the environmental rule of law. Governance, involving
multiple actors and levels, is seen as crucial for achieving sustainable development goals. The
judiciary acts as a guardian of the rule of law, integrates values like dignity, freedom, fairness,
and justice. The term “environmental rule of law” highlights its significance in bridging the
gap between environmental laws and their implementation. The judiciary's role in law
enforcement and consistent application of environmental laws contributes to sustainability
transformations. Judiciary's decisions encouraging sustainability principles play a vital role in
driving transformative change for a sustainable future.

“Judicial Leverage: Catalysts for Climate Transformation in India”

The section delves into India's climate change litigation, particularly the transformative role
played by the judiciary. Rather than providing a comprehensive and chronological overview
of cases, the article strategically focuses on illustrative Indian cases that contribute to
understanding transformative perspectives. It underscores the escalating discourse on societal
transformations as an imperative response to climate change. Author also highlights the fact
that the urgency of achieving far-reaching solutions aligning with the Paris Agreement
targets, the judiciary emerges as a key player in shaping ambitious mitigation and adaptation
efforts. The narrative emphasizes the necessity of improved governance interventions, where
strategic judiciary interventions become instrumental.

Before delving into India's judiciary, the global perspective on judicial responses in climate
governance is briefly explored. Recognizing the judiciary's vital role in promoting sustainable
futures and facilitating transformative outcomes, the article aligns with the viewpoints of
legal experts such as Justice Benjamin, Chief Justice Brian Preston, and Justice Mansoor Ali
Shah. The judiciary is positioned as a critical pillar for addressing climate change, providing
equal access to justice, upholding the rule of law, and forcing various sectors to take climate
change seriously. The article offers a glimpse into India's commitment to tackling climate
change through integrated initiatives, transformative changes, and well-defined policies.

The author contend that strong, specialized judiciaries can act as a “lever of
transformation,” driving incremental yet cumulative changes towards sustainability
transformations. The article recognizes examples of judicial leverage, such as addressing
planetary emergencies, enforcing Paris Agreement commitments, and displacing
unsustainable practices. Author also praises the Justice Chandrachud’s judgement on climate
change in 2021.

Climate Consciousness for Sustainable Futures

Author has also focused on the concept of climate consciousness and its integration into
judicial decisions in India, emphasizing the dual emotions of ‘externalisation’ and ‘leave no
one behind.’ The narrative depicts climate consciousness as a complex interplay of negative
feelings, such as despair and awareness of mortality, and positive aspirations aligned with the
SDGs' principles of integration, indivisibility, and universality. The judiciary is positioned as
a catalyst for transforming climate consciousness, playing a crucial role in developing laws
and fostering a change in societal awareness.

The article highlights how Indian judicial decisions, exemplified by cases like Ajay Khera v.
Container Corporation of India and Nuggehalli Jayasimha v. Government of Delhi, reflect
a growing climate consciousness. The judiciary is shown framing climate sustainability
narratives, linking methane emissions to livestock, and addressing issues like deforestation
and forest fires. The examples illustrate the judiciary's role in raising awareness, connecting
climate challenges with legal frameworks, and promoting sustainable practices. The
judiciary's engagement with the concept of carrying capacity in environmental decision-
making is also emphasized. The NGT's direction to assess capacity in 'non-attainment cities'
for air pollution, exemplified by the Ajay Khera case, demonstrates a commitment to
informed policy decisions for comprehensive sustainability actions. Author also mentions that
NGT has showcased climate consciousness by advancing India's National Action Plan on
Climate Change (NAPCC).
Accountability for Climate Action

This article also talks about the pivotal theme of accountability in climate change governance,
underscoring its significance in addressing the actions and decisions contributing to
greenhouse gas emissions. The concept of accountability, defined as the relationship between
an actor and a forum, is explored with a focus on answerability and enforceability in the
public domain.

The article contends that accountability is crucial in achieving emission reductions and
fostering decarbonization as part of transformative change. The judiciary is positioned as a
key player in ensuring accountability, particularly in making public authorities answerable for
unsustainable practices and non-enforcement of laws. The judiciary's role in both the
processes and outcomes of transformational decisions is emphasized, aligning with the SDGs
and promoting enduring sustainable development. Some landmark of judicial decisions, such
as Hanuman Laxman Aroskar v. Union of India, showcase the climate accountability within
the environmental law. The judiciary's scrutiny of flawed environmental clearances and its
integration of SDGs and international commitments highlight a commitment to
transformative change.

Author has also mentioned the cases related to construction projects demonstrate climate
accountability, exposing regulatory failures in addressing environmental impacts and long-
term sustainability. The judiciary's intervention in instances like Society for Protection of
Environment & Biodiversity v. Union of India and University of Delhi v. Ministry of
Environment reflects a commitment to the precautionary principle and emphasizes the
essential role of carrying capacity assessments in urban planning for achieving environmental
sustainability.

Judicial Visionaries: Paving the Way for Climate Futurity

The article highlights the pivotal role of futurity in steering transformative processes toward
sustainability, emphasizing the necessity of imagination and collective envisioning of realistic
and desirable futures. In the context of climate change, futurity involves projecting a
sustainable vision that anticipates and addresses existential threats, calling for proactive
measures such as climate change fiction and climate justice.
Author says that judiciary has played a vital role in transformative lever in shaping a
sustainable future, referred to as the “environmental rule of law,” where judgements not only
halt detrimental practices but also foster an enabling environment for a climate-sustainable
vision. He also mentions cases, like Hanuman Laxman Aroskar v. Union of India, which
shows judiciary's sustainability vision by directing initiatives to reduce greenhouse gas
emissions, incorporating practices such as green infrastructure, renewable energy, and LED
lights.

Author also highlights the fact that climate futurity is exemplified in decisions promoting
non-coal fuel sources, with directives to explore cleaner alternatives like piped natural gas,
biogas, and propane. Renewable energy cases, such as Hindustan Zinc Limited v.
Rajasthan Electricity Regulatory Commission, underscore the judiciary's role in endorsing
environmentally friendly measures to generate green energy, reducing dependency on fossil
fuels.

CONCLUSION

The authors' argument, rooted in the environmental rule of law, asserts that judiciary plays a
crucial part in enforcing environmental laws and moving towards sustainability. The judiciary
emerges as a guarantor of environmental rule of law, providing a legal foundation for
transformative changes aligned with the collective vision of a sustainable future. In essence,
the article applauds the role of judiciary, progress, and support for achieving the Sustainable
Development Goals in the face of the climate crisis.

The authors adeptly weave together threads of governance, accountability, and futurity,
highlighting the judiciary's proactive stance in addressing climate change and promoting
environmental rule of law. The transformative adaptation lens, emphasizing vulnerability and
equity, adds depth to the discourse, elucidating the nuanced interplay of legal frameworks and
societal shifts. The emphasis on climate consciousness, accountability, and futurity in judicial
decisions reflects a holistic approach toward sustainability. The judicious blending of legal
frameworks, climate consciousness, and a forward-looking perspective positions the judiciary
as a beacon, steering society toward a future that harmonizes with the environment.