Climate Litigation, Activism And Environmental Advocacy In India

Session Report
Madhesh Raj P R

With the growing challenges of climate change around the world, it has become imperative that governments address them through litigation to ensure the conservation of their respective natural environments. The speaker for the session, Mr Debadityo Sinha, is a Lead in Climate and Ecosystems at the Vidhi Centre for Legal Policy, New Delhi, and presented on Day 4 of the Cohort on “Climate Litigation, Activism and Environmental Advocacy in India.” The session was hosted by Dolly Kaushik, and the speaker examined the regulatory framework governing the protection of riverine ecosystems in India.

It explained how different environmental legislations interact to regulate pollution, conserve biodiversity, protect forests, and ensure that development projects undergo environmental scrutiny before being implemented. The session also had a significant focus on the Environmental Impact Assessment (EIA) Notification, 2006, and the procedures for obtaining environmental clearances.

Basis of Environmental Laws in India

The session began with the speaker pointing to the environmental aspirations of the Constitution as provided under Article 48A for the State to safeguard the forests and wildlife in the country as a Directive Principle of State Policy (DPSP) and under Article 51A(g) for the citizens to protect and improve the natural environment and have compassion for living creatures as a Fundamental Duty. The Constitution further enshrines powers over water supplies, irrigation, canals, and storage under the State List in Entry 17, and the power to regulate inter-state rivers in the public interest under the Union List in Entry 56.

The guiding principles for environmental regulations in India were then briefed by the speaker. The mitigation hierarchy from avoidance and minimisation measures such as shifting spatial footprints and deployment of advanced pollution control technologies, respectively, to restoration and offsetting measures, like rehabilitating degraded ecosystems and employing compensatory mechanisms as a last resort to counterbalance, explained how India’s regulations remain predominantly preventive in nature. Other principles like the precautionary principle, the principle of sustainable development, the public trust doctrine, and the principle of absolute liability were also discussed.

The modern environmental law is relatively recent in emergence, with only fifty years of active implementation. The meaning of environmental protection has thus evolved from protecting forests and water resources to protecting other living beings and non-living things. The session delves into the external and internal influences on its environmental regulations.

Environmental Rule of Law (ERoL) is famously discussed by the United Nations Environment Programme (UNEP), where the ERoL consists of seven core elements that lay the foundation of environmental laws for several countries. Internally, alongside the constitution, there are other influences that shape the nature of environmental regulation in India, such as social movements like the Silent Valley Movement during the 1970s and 1980s, the commitments of the government towards international recommendations since the 1970s, the role of the National Green Tribunal and intervention by the judicial system, especially since the 1990s.

Environmental Clearance

The Environment (Protection) Act of 1986 is often cited as a prescriptive umbrella framework with 26 sections, with the Union Government as the primary implementor with an extensive range of power to create more rules, regulations, notifications, any number of authorities, restrict activities, appoint officers and create standards that are to be followed. The Act is constantly evolving and expanding in scope.

Under this act, comes laws that have an impact and jurisdiction over several aspects of the natural environment, such as, the Wildlife (Protection) Act, 1972, the Forest (Conservation) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Public Liability Insurance Act, 1991, the Biological Diversity Act, 2002 and the National Green Tribunal Act, 2010 among others. The Water Act prohibits discharge of pollutants into water bodies beyond a set limit and specifies penalties for non-compliance.

It also sets up the Central Pollution Control Board (CPCB) and the State Pollution Control Board (SPCB), which lay down measures to prevent water pollution and direct states through the CPCB and the SPCB. Industries also require prior consent to establish and operate for new discharge, which is mandated for all industries and local bodies discharging any waste into water, stream, land or well.

The Environmental Clearance is mandated under the Environment Impact Assessment (EIA) Notification, 2006 for new developmental projects or major expansions. The projects are categorised into two, namely Category A and Category B, where the prior consists of large-scale projects such as national highways, major mining and so on which requires mandatory clearance from the Ministry of Environment, Forest and Climate Change (MoEFCC), while the latter has two sub-categories, Category B1 (localised projects mandatorily requiring an Environmnetal Impact Assessmnet Report)and B2 (minor projects eligible to be exempted from a formal EIA report and public consultation).

The clearance process predominantly consists of screening, scoping, public consultation, appraisal and finally approval. The data collected at every level of the process must be complete, without any fabrication or manipulation, to ethically support the correct appraisal of the potential impacts of the project.

Wildlife and Forest Clearance

The Union government protects certain areas for environmental conservation through the Wildlife (Protection) Act, 1972. Any proposal to use these areas or any developmental activities within 10 kilometres of protected areas must be done only on the recommendation of the National Board of Wildlife (NBWL). Any wildlife covered under the WPA must not be handled without authorisation by the Chief Wildlife Warden of the state. It restricts and prohibits individuals and others from damaging or destroying a sanctuary without a prior permit.

Private forests were regulated only post-independence, when zamindar and other privately managed forests came under state control through separate private forest acts of respective states. Permission is granted for Forest Clearance (FC) under Section 2 of the Forest (Conservation) Act, 1980. Its applicability depends on how the Act defines forest and non-forest activities, and the rules and guidelines for the FC process are prescribed by MoEFCC. The FC is granted in two stages.

User agencies apply for FC to the state; the Divisional Forest Officer (DFO) verifies, after which the state forwards the clearance to the respective authority as per rules. The speaker discussed T N Godavarman Thirumalpud v. Union of India and others, a landmark case that reinstated the applicability of forest laws on private forests. India has more than 200 forests, and this has encouraged the Supreme Court to place significant weight on State Acts so as to identify and regulate the use of forests.

Exemptions of the Law and Emerging Issues

The session examined the emerging challenges in forest conservation, with a particular focus on the Forest (Conservation) Act, 2023. The speaker discussed how exemptions granted for strategic infrastructure, public utilities, tourism, safaris, plantations, and reconnaissance activities could weaken existing safeguards and accelerate habitat fragmentation. Case studies from elephant corridors, Loktak Lake, the Andaman and Nicobar Islands, and the Aravalli region illustrate the ecological consequences of infrastructure expansion and poorly planned development.

The session further highlighted concerns over unscientific plantation drives and the Green Credit Rules. The recent Supreme Court interventions that have prevented diversion of forest land and reaffirmed a broader interpretation of forests were discussed. The session concluded by stressing that sustainable development must prioritise ecological integrity, scientific restoration, and stronger implementation of existing environmental laws, along with economic and infrastructural goals.