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The 1972 U.N. Conference on the Human Environment was the pioneer event that brought the global environment into the public consciousness, leading to the establishment of the United Nation Environment Program (UNEP). But it was 1992, the U.N. Conference on Environment and Development (Rio Earth Summit), when the climate change was considered as a global threat by the world community and on 12th June 1992, countries have joined an international treaty, the United Nation Framework Convention on Climate Change (UNFCCC), as a framework for international cooperation to combat climate change by limiting average global temperature increases and the resulting climate change and coping with impactst Following this summit, several countries along with India have made a concerted effort to enact environmental laws, establish environment ministries and agencies, and enshrine environmental rights and protections in their national constitutions. But the current level of both climate ambition and climate action are inadequate to meet the challenge. Climate Action Tracker states out that the Nationally Determined Contribution (NDC) targets adopted in Paris Agreement are not sufficient to limit warming at 1.5℃. At COP26 (November 2021), it was clear that the updated targets (based on 2030 targets) were still falling short and would, at most, limit warming at 2.4℃, almost a full degree above the Paris temperature limit. Government decided to give themselves another year to ‘revisit and strengthen’ their target further in 2022. India is the 5th most vulnerable country to climate change impacts. It is in India’s interest that GHG emissions are reduced significantly, and serious effort is made globally to meet the 1.5°C goals. For this, India will have to take a leadership role in international climate actions. There are many existing climate-relevant legislations in India, including laws on environment protection, forest management, electricity, and mining. On paper, these have created bodies and rules which are sufficiently broad to include climate policy in their scope. However, these laws are not climate-specific – they are not guided by core climate principles, their institutional frameworks are not sufficiently integrated or coordinated to tackle the multi-faceted nature of the problem, and they are not geared for the iterative ambitious target-setting required by the Paris Agreement and best available science. This paper describes the current status of climate action legislation in the country and also makes effort to find out domestic legal forces running in the country for the implementation of climate actions. Paper also brings out the challenges in the country’s climate action legislation and ways forward.

For this paper, researcher have studied and explored several research papers, books, reports, newspaper and website of different ministries. India's NDC submitted to UNFCCC is also analyed for this paper. The National Action Plan on Climate Cange - document is also used in this study. Bieniel Update Report [1,2,3] are also studied during the preparation of this paper. Program, schemes and target for climate change actions commited by Indian government are also concerned during the preparation of this paper.

Climate Law and Legislation: Global Scenario

Climate change is an international environmental issue. In economic theory terms, climate change is a public good issue, requiring global coordination to achieve effective outcomes. It was the Intergovernmental Panel on Climate Change (IPCC) that highlighted the threat of Global Warming and its consequence the climate change in its First Assessment Report, which was published in 1990. This IPCC report was becoming the base for UNFCCC and Conferences of the Parties (COPs). Since the UNFCCC was first established in 1992, there have been extensive international discussions, known as “Conferences of the Parties” or COPs, aimed at reaching a global agreement on emissions reduction and slowing down its consequence the climate change. The COPs are the major events that provides direction and framework to countries to get their climate targets and actions (planning and schemes). Since COPs begins, several countries have their environmental ministries or agencies to tackle environmental issues which latter includes climate change issue also. With the beginning of COPs, those countries who don’t have any environment regulating body have also make effort to enact environmental laws, establish environment ministries and agencies, and enshrine environmental rights and protections in their national constitutions. By all these, countries have also implemented their policies and schemes in the way to tackle GHG emissions which is the major reason of global warming and its consequence the climate change.

But however, the current level of both climate ambition and climate action, which are taken in the sequence of COPs are inadequate to meet the challenge of climate change. And, this is happening because of implementation gap. For example, Under the Paris Agreement, countries are free to choose their climate targets, called Nationally Determined Contributions (NDCs). The Agreement cannot force countries to enhance their targets or penalize them for not meeting self-declared targets. So, this non-binding agreement creates a compliance gap. This gap in the ‘compliance mechanism’ will have to be filled by national laws. Many countries have enacted domestic climate change laws to reflect their international commitment and set up a framework for domestic climate action. On the other hand, many countries have relied on the existing laws to enhance domestic climate action and India is one of those.

Law and Legislation of Climate Action in India

Background Information and Institutional Arrangement of Climate Action in India

Ministry of Environment, Forest and Climate Change (MoEFCC) is the nodal Ministry in the Government of India (GoI) for coordination and management of climate change-related programmes, actions and reporting information. According to the UNFCCC Article, all Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall develop, periodically update, publish and make available to the Conference of the Parties (COPs), the information following Article 12 of the Convention and decisions of the COPs and related guidelines (UNFCCC, 1992). Later, the convention stating that “developing countries, consistent with their capabilities and the level of support provided for reporting, should submit Biennial Update Reports containing updates of national Greenhouse gas inventories, including a national inventory report and information on mitigation actions, needs and support received.” The decision also states the need to consider national capabilities and financial support required to facilitate the timely preparation of biennial update reports. Decision 2/CP.17, Paragraph 41(f) and (g) mandated Non-annex I Parties (developing countries) to submit Biennial Update Reports (BURs) every two years with the national GHG inventories being not more than four years older than the submission year. In fulfilment of these requirements, MoEFCC with its cross-ministerial and institutional network is implementing and executing the matters related to the National Communications (NCs) and Biennial Update Reports (BURs).

Towards the fulfilment of reporting obligations under the UNFCCC, India has so far furnished two full national communications and two BURs (Figure IA1) to the UNFCCC:

I. Initial National Communication (INC) in June 2004, containing national GHG inventory of 1994.

II.   Second National Communication (SNC) in May 2012, containing national GHG inventory for the year 2000.

III.  First Biennial Report (BUR-1) in January 2016, containing national GHG inventory for the year 2010.

IV.  Second Biennial Update Report (BUR-2) in December 2018, containing national GHG inventory for the year 2014.

V. Third Biennial Update Report (BUR-3) in 2021, containing national GHG inventory for the year 2016.

For the preparation of National Communication on a continuous basis, GoI has taken steps and made efforts towards creating a sustainable institutional structure. Preparation of the BUR required a comprehensive study, and technical as well as administrative arrangements, in addition to stakeholder’s participation in various tasks and activities. To ensure adequate attention and participation, elaborate implementation arrangements have been formulated. National Steering Committee (NSC) under the chairmanship of the Secretary, MoEFCC is in place that oversees the preparation and implementation of the work programme of the BUR.

Environmental Laws (Acts) and Climate Action

There are many existing climate relevant legislations in India before the enforcement of National Action Plan on Climate Change (NAPCC), including laws on environmental protection, forest management, electricity and mining. (Table 1) On paper, these have created institutional bodies and rules which are sufficiently broad to include climate policy in their scope. However, these laws are not climate specific as they are not guided by core climate principles, their institutional framework are not sufficiently integrated or coordinated to tackle the multi-faceted nature of the problem, and they are not geared for the iterative ambitious target – setting required the Paris Agreement and best available science. Beside this, none of these acts currently has the framework to mainstream climate change at the institutional level. Each of these legislation takes a different approach to the sharing the power and duties between Central, State and local governments.  

So, the Indian laws in their current form are broadly capable but not specifically suited to addressing climate change.  

Table 1.

Environmental Court

The National Green Tribunal (NGT) was established in the year 2010 under the National Green Tribunal Act of 2010 to dispose of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights related to environment. The Act was enacted through the parliament of India, under the provision of Article 21 of the constitution of India, which emphasises the right to live in a clean and healthy environment. As per provision of NGT Act (2010), the tribunal has the ‘jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I’. These include, the Water (Prevention and Control of Pollution) Act (1974), the Water (Prevention and Control of Pollution) Cess Act (1977), the Forest (Conservation) Act (1980), The Air (Prevention and Control of Pollution) At (1981), The Environment (Protection) Act (1986), the Public Liability Insurance Act (1991), and the Biological Diversity Act (2002).  Each bench of the NGT is supposed to have both judicial and expert Members. However, the Tribunal being a ‘quasi-judicial body’ has limited power. It has authority similar to law-enforcement agencies, but it is not like a normal court. The courts have the power to adjudicate all types of disputes, but the NGT has the power of enforcing laws on administrative agencies. The NGT has developed a jurisprudence over the past decade that has challenged the decision making by the Government regarding environmental clearances and monitoring. This has resulted in conflict with MoEF&CC, as evidenced by the recent development of non-filling bench membership, reluctance to authorize appropriate staff, infrastructure, and resource support by the MoEF&CC.

Other Important Climate Relevant Legislation

Despite of these laws and legislation, there are several other legislations which enhances the climate relevant legislation in the country. These are:

Environment Impact Assessment

Environment Protection Act, under its Section 3(1), provide power to Central Government 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. The Central Government has issued, among others, a Notification under section 3(1) and (2) and Rule 5(3) on 14^th September 2006 for accord of prior environmental clearance for the following activities (specified in a Schedule to the Notification); Mining, extraction of natural resources, power generation; Primary processing; Materials production and processing; Manufacturing and fabrication; Service sector/Physical infrastructure and; Construction and area development.

An environmental impact assessment (EIA) study or report is intended to identify, assess an evaluate the economic, environmental and social impact of a proposed project or developmental activity. The EIA is used to predict the environmental impacts of a project in the pre-planning stage itself so that decisions can be taken to minimise any adverse impacts on the environment and is considered a critical aspect of sustainable development.

In March 2020, the MoEF&CC released the Draft Environment Impact Assessment Notification, 2020, which seeks to replace the 2006 Notification. The draft notification has been widely criticized, one of the significant criticisms being the exemption of certain projects from public consultation.

National Clean Energy and Environment Fund (Coal Cess)

India imposed a cess on domestically produced and imported coal and set up the National Clean Energy and Environment Fund (NCEEF) back in 2010. The policy was designed to earmark part of the revenue from the coal cess for the NCEEF that, in turn, funded research and innovative projects in clean energy. The coal cess revenue was also used for other needs, such as rejuvenation of the river Ganga. Initially, a ₹50 clean energy cess was levied on every tonne of coal produced or imported. The cess, collected by the Central Board of Excises and Customs, has been steadily increased over the years. It doubled to ₹100 per tonne in 2014, ₹200 per tonne in 2015, and ₹400 per tonne in the 2016 budget. With the introduction of the Goods and Service Tax (GST) in India in July 2017, the Clean Energy Cess was abolished by the Taxation Laws Amendment Act, 2017. A new cess on coal production, called the GST Compensation Cess, was put in its place at the same rate of ₹400 per tonne. The GST Compensation Cess is aimed at filling in the budget deficits that State Governments faced following the GST introduction. This last round of changes effectively means continued taxation of coal production as a source of funding for various regional development needs.  

After considering these various environmental legislations and authorities, it is clear that the Constitutional authority to enact a framework legislation on climate clearly exists. There is a strong existing precedent of using international agreements to enact domestic environmental legislation, which makes enactment of a national framework legislation straight forward under Article 253 of the Constitution. After consideration of these legislations, one thing become very clear that there is a wealth of existing Indian legislation which is climate-relevant. On paper, these have created bodies and rules which are sufficiently broad to include climate policy in their scope.

However, while all these legislations are climate-relevant, climate change cannot be comprehensively addressed under these existing laws. This is because climate change is not explicitly within the scope of these laws. Here crucial amendments are required to make these laws climate-compliant.  This is because climate change is not explicitly within the scope of these laws. Overall, while India has existing ‘climate related laws’ broadly defined, none of them have ambitious climate change action as a goal. Climate change is ‘incidental and peripheral’ in these legislations.

Climate Specific Policies and Action Plan

India the 2^nd largest population and 5^th largest economy and has contributed only about 4.37% of the global cumulative GHG emissions between 1850 and 2019. India’s GHG emission in 2016 were 2,838,889 Gigagram of CO₂ equivalent (CO₂e) without Land Use, Land Use Change and Forestry (LULUCF). With the inclusion of both GHG emissions and removals from the LULUCF sector, net national emissions were 2,531,069 Gigagram of CO₂ e. At the same time, given its topography, demography, and disparate level of economic development across the population, India is extremely vulnerable to the impacts of climate change. In 2008, the Government of India released the National Action Plan on Climate Change (NAPCC), which brought a “co-benefits approach”—an approach that promotes India’s development objectives while addressing climate change effectively as well. The focus of the NAPCC is on promoting understanding of climate change, and action on adaptation, mitigation, energy efficiency, and natural resource conservation while pursuing overall economic growth. The plan outlines eight national missions.

1. National Solar Mission

Aims to promote the use of solar energy in India by making it competitive with fossil fuels. It promotes activities to encourage research and development to improve efficiency and affordability f solar power energy storage system.

2. National Mission for Enhanced Energy Efficiency

 Aims to improve energy efficiency of domestic, commercial and industrial sectors by creating an enabling policy regime and encouraging innovative business models for improving energy efficiency.

3. National Mission on Sustainable Habitat

 Aims to encourage sustainable urban planning in India with the help of policy, infrastructural and research interventions in sectors such as buildings, waste management, water resources and transportation.

4. National Water Mission

 Aims to ensure sustainable water supply by conserving water, minimising waste and ensuring equitable distribution of water resources throughout India.

5. National Mission for Sustainable Himalayan Ecosystem

Aims to enhance understanding of climate change impacts and adaptations required in Himalayas. 

6. National Mission for Green India

Aims to protect, enhance and restore forests and respond to climate change with appropriate adaptation and mitigation activities. It plans to increase green cover and focuses on multiple ecosystem services – especially biodiversity, water, biomass, mangroves, wetlands and critical habitats, with carbon sequestration as a co-benefit.

7. National Mission for Sustainable Agriculture

 Aims to improve sustainability, productivity, remuneration and climate resilience of agriculture in India.  

8. National Mission on Strategic Knowledge on Climate Change

Aims to create a comprehensive knowledge system that informs and supports climate change actions in India with the help of research and communication-based actions.

The NAPCC in its current form is broad and lacks specificity. While the solar, energy efficiency, and forestry missions include mitigation components in the form of quantified targets (and thus have been able to draw investments), missions on sustainable agriculture, water, and sustainable Himalayas do not. Consistent with the approach of NAPCC, State Action Plans on Climate Change (SAPCCs) are also in place for 33 States & Union Territories of the country. States and Union Territories have indicated their sector specific and cross sectoral priorities actions for combating climate change in its SAPCCs.

National Adaptation Fund

The National Adaptation Fund for Climate Change (NAFCC) was established in 2015 to meet the cost of adaptation to climate change for the state and Union Territories of India that are particularly vulnerable to the adverse effect of climate change. The Government has set up a budget provision of ₹350 crores for the year 2015-16 and 2016-17, with an estimated requirement of ₹181.5 crores for financial year 2017-18 for NAFCC. The projects under NAFCC prioritizes the needs to build climate resilience in the areas identified under the State Action Plan on Climate Change (SAPCC), and the relevant missions under the NAPCC.

The Fund is considered to be grossly inadequate to meet India’s climate challenges. In the 2021-22 budget, the amount has been reduced to just ₹40 crores.

New Commitment & Targets on Climate Action

India at the 26^th session of the COP to the UNFCCC held in Glasgow, United Kingdom, expressed to intensify its climate action by presenting to the world five nectar elements (Panchamrit) of India’s climate action. This update of India’s existing NDC translates te ‘Panchamrit’ announced at COP 26 into enhanced climate targets. The update is also a step towards achieving India’s long-term goal of reaching net-zero by 2070.

Earlier, India submitted its Intended Nationally Determined Contribution (NDC) to UNFCCC on October 2, 2015. The 2015 NDC comprised eight goals; three of these have quantitative targets upto 2030 namely, cumulative electric power installed capacity from non-fossil resources to reach 40%; reduce the emission intensity of GDP by 33 to 35 % compared to 2005 levels and creation of additional carbon sink of 2.5 to 3 billion tonnes of CO₂ equivalent through additional forest and tree cover.

As per updated NDC, India now stands committed to reduce emissions intensity of its GDP by 45% by 2030, from 2005 level and achieve about 50% cumulative electric power installed capacity from non-fossil fuel-based energy resources by 2030. India’s updated NDC also reaffirm our commitment to work toward a low carbon emission pathway, while simultaneously development goals.

The updated NDC also represents the framework for India’s transition to cleaner energy for the period 2021-2030. The updated framework, together with many other initiatives of the Government, including tax concessions and incentives such as Production Linked Incentives scheme for promotion of manufacturing and adoption of it will lead to an overall increase in green jobs such as in renewable energy, clean energy industries – in automotives, manufacturing of low emissions products like Electric Vehicles and super-efficient appliances, and innovative technologies such as green hydrogen, etc. India’s updated NDC will be implemented over the period 2021-2030 through programs and schemes of relevant Ministries/Departments and with due support from States and Union Territories. The Government has launched many schemes and programs to scale up India’s actions on both adaptation and mitigation. Appropriate measures are being taken under these schemes and program across many sectors, including water, agriculture, forest, energy and enterprise, sustainable mobility and housing and waste-management, circular economy and resource efficiency, etc. As a result of the aforesaid measures, India has progressively continued decoupling of economic growth from greenhouse gas emissions. The Net-Zero target by 2030 by Indian Railways alone will lead to a reduction of emissions by 60 million tonnes annually. Similarly, India’s massive LED bulb campaign is reducing emissions by 40 million tonnes annually.

Challenges for Climate Action in India

As the climate change consider as global issue, but its consequences are not same for each country, in the same way the challenges for climate action are also not same for each country, as it differs relatively their development stage, geographical conditions, resource availability, emission intensity, emission share, development of climate action institutions, energy sources, policy finance, litigation institutions, political will and many more variables.

Despite of low per capita GHG emission, Indian government has makes very futuristic and effective climate policies which are compatible for Paris Agreement, however, currently India is combating several climate action related challenges. Few are here:

A.    Managing the Politics of Global Climate Change Policy

B.    Reducing India’s Coal Dependency

C.    Reforming Climate – insensitive Agriculture Policy

D.    Balancing Growth and Development

E.    Climate Action Financing

F.    Weak Climate Litigation Framework  

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