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Litigating Climate Change in India and Pakistan: Analysing Opportunities and Challenges



This chapter forms part of an edited collection on global perspectives on climate litigation. After the case of Asghar Leghari v Pakistan, a global spotlight has been placed on Pakistan, as well as the region more generally, for the potential of climate litigation. The chapter analyses climate litigation in India and Pakistan and the opportunities and challenges that exist going forward. It traces the limited case law that has developed to date expressly incorporating climate considerations. The chapter analyses the development of litigation with reference to broader socio-political dimensions of litigation, environment and climate change in the region. Furthermore, a broader sphere of ‘litigation in the context of climate change’ is analysed, broadening the scope of litigation beyond what is traditionally seen as ‘climate litigation’ . This includes litigation that brings forward issues that deal with mitigation and adaptation but do not necessarily expressly frame arguments in terms of ‘climate change’. Accordingly, the chapter provides a fresh perspective to the current literature on climate litigation in India and Pakistan, through a more focussed analysis of climate litigation in the domestic political and legal context within which such litigation takes place.
Litigating Climate Change in India and Pakistan: Analysing Opportunities and
Birsha Ohdedar*
Accepted version. Published in: B. Ohdedar, ‘Litigating Climate Change in India and Pakistan:
Analysing Opportunities and Challenges’ in Ivano Alogna, Christine Bakker and Jean-Paul Gaucci
(eds), Climate Change Litigation Global Perspectives (BRILL, 2021).
In 2018, the case of Asghar Leghari v Pakistan
put a global spotlight on the region as a leading
jurisdiction for climate litigation. In Leghari, an agriculturalist brought a petition for the
enforcement of his fundamental rights demanding that the Government of Pakistan take more
action on climate change. Judge Shah in the Lahore High Court (a judge with a pro-
environment record both as a judge and lawyer) ordered the establishment of a committee to
begin the operationalisation of Pakistan’s climate policies.
The order carefully weaved
together human rights, climate change adaptation and justice. The Courts in Pakistan and India
are often identified for their climate litigation potential because of a history of public interest
litigation and a reputation for an ‘activist’ judiciary.
Not long after Leghari similar new
petitions were filed in both Pakistan and India.
Thus, both jurisdictions are now of interest to
academics, lawyers, activists tracking and analysing the expansion of climate litigation around
the world.
This chapter analyses climate litigation in India and Pakistan and the opportunities and
challenges that exist going forward. It traces the limited case law that has developed to date
expressly incorporating climate considerations. The chapter does not aim for an in-depth
analysis of each climate change case. Rather, the chapter analyses the development of litigation
with reference to broader socio-political dimensions of litigation, environment and climate
change in the region.
* Lecturer, School of Law and Human Rights Centre, University of Essex,
Asghar Leghari vs. Federation of Pakistan, Writ Petition 22501cddc/2015 (Jan 25, 2018 Lahore High Court).
Benazir Shah, ‘Shah’s Revolution’ Newsweek Pakistan (25 September 2016)
<> accessed 1 April 2020.
See for example: Jacqueline Peel and Jolene Lin, ‘Transnational Climate Litigation: The Contribution of the
Global South’ (2019) 113 American Journal of International Law 679; Joana Setzer and Lisa Benjamin,
‘Climate Change Litigation in the Global South: Filling in Gaps’ (2020) 114 AJIL Unbound 56; Jolene Lin,
‘Litigating Climate Change in Asia’ (2014) 4 Climate Law 140.
Ridhima Pandey v Union of India, Application No. 187/2017, National Green Tribunal. Petition available
documents/2017/20170325_Original-Application-No.-___-of-2017_petition-1.pdf accessed 22 April 2020;
Rabab Ali v Federation of Pakistan & Another (Petition filed at Supreme Court, April 2016) petition available
documents/2016/20160401_Constitutional-Petition-No.-___-I-of-2016_petition-1.pdf accessed 22 April 2020.
The chapter goes on to analyse a broader sphere of ‘litigation in the context of climate change’
rather than only what is generally defined as ‘climate litigation’
. This includes litigation that
brings forward issues that deal with mitigation and adaptation but do not necessarily expressly
deal with climate change. Indeed, a rich jurisprudence has developed where litigation has
partially been successful in linking issues of rights, livelihoods, ecology and justice. Tracing
this jurisprudence provides a broader understanding of litigation on climate change in the
Accordingly, this chapter provides a fresh perspective to the current literature on climate
litigation in India and Pakistan, through a more focussed analysis of climate litigation in the
domestic political and legal context within which such litigation takes place. While legal
commentators have identified the region for its climate litigation potential, this is often
discussed in a decontextualized manner.
Much of the literature is comparative, or solely
focuses on the Leghari judgement as a standalone leading case.
Drawing upon the broad legacy
of the Courts, authors conclude the strong potential for climate litigation. While this may be
true, as will be argued, the picture is slightly more complex and nuanced. The politics of climate
change, discourse around climate change, the politics of the court, as well as developments in
different types of litigation, are also important in explaining the opportunities and challenges
for climate litigation in Pakistan and India. Ultimately, through understanding this context we
can assess how future litigation can enact and implement substantive change. The lessons
drawn in this chapter are also relevant to the growing literature on climate change litigation in
the Global South where similar challenges are faced.
This chapter has four substantive sections. Section II discusses the background to climate
change and the courts in the region. Section III examines recent ‘climate litigation analysing
litigation that concerns climate-specific policies and litigation that attempts to enforce
existing environmental laws and policies. This section also highlights climate litigation that is
potentially hazardous from a broader justice perspective because of a narrow climate framing.
Section IV examines litigation ‘in the context of’ climate change, highlighting how the courts
have been dealing with climate issues, often without climate language. Finally, Section V
analyses the challenges and opportunities for future climate litigation in the region.
Kim Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmental Law
483, 485.
To be clear, ‘climate litigation’ in this article is defined as cases that have a clear climate component in its
language or reasoning. These may include cases where climate change appears as a ‘core’ or ‘peripheral’
concern. This can be contrasted with many of the cases discussed in Part IV that go beyond ‘climate litigation’.
See for example: Peel and Lin (n 3); Setzer and Benjamin (n 3); Lin (n 3); Louis J Kotzé and Anel du Plessis,
‘Putting Africa on the Stand: A Bird’s Eye View of Climate Change Litigation on the Continent’ [forthcoming]
Journal of Environmental Law and Litigation; Emily Barritt and Boitumelo Sediti, ‘The Symbolic Value of
Leghari v Federation of Pakistan: Climate Change Adjudication in the Global South’ (2019) 30 King’s Law
Journal 203.
Some exceptions are: Shibani Ghosh, ‘Litigating Climate Claims in India’ (2020) 114 AJIL Unbound 45;
Emeline Pluchon, ‘Leading from the Bench: The Role of Judges in Advancing Climate Justice and Lessons from
South Asia’, Routledge Handbook of Climate Justice (Routledge 2018); Parvez Hassan, ‘Judicial Commissions
and Climate Justice in Pakistan’, Asia Pacific Judicial Colloquium on Climate Change (2018)
0-%20Dr.%20Parvez%20Hassan.pdf> accessed 20 March 2020.
A. Contextualising climate change
At the international level, Pakistan and India have traditionally taken a stance that climate
change is an issue for developed countries who need to mitigate their emissions and provide
financial and technical support for adaptation.
The position is based on notions of climate
justice and equity. For example, India played a leading role in framing differential treatment
under the climate regime, anchoring the principle of common but differentiated responsibility
and respective capabilities into the UN Framework Convention on Climate Change.
position has slightly shifted over time. But, by and large, both countries maintain policy
positions that conserve a (carbon-intensive) development space and ensure that the obligations
imposed on developing countries like itself are kept at a minimum.
Nevertheless, both countries have significant mitigation and adaptation concerns. Pakistan, for
example, faces energy deficits, poverty and developmental challenges.
It has set itself a vision
of becoming an upper-middle-income country by 2025 and being among the ten largest
economies in the world by 2047.
At the same time, Pakistan has to contend with being one of
the most climate-vulnerable countries in the world.
The international context explains the slow development of climate-specific law and policy in
Pakistan and India. Domestically, climate change has often been viewed as an issue of foreign
policy concern. Hence, for most of the last three decades, the public discussion in India was
limited and focused on whether to engage on climate change.
Given the international climate
justice arguments, India’s civil society has been sympathetic to the Government’s international
position. At the same time civil society has found it difficult to scale back claims of climate
Both countries are part of the ‘Like Minded Developing Countries’ negotiating bloc, who are identified for key
negotiating positions based on mitigation based on historic responsibility and the provision of finance and
technology transfer to developing countries. See: Lau Blaxekjær and Tobias Dan Nielsen, ‘Mapping the
Narrative Positions of New Political Groups in the UNFCCC’ (2014) 10–11 <https://www.indiaeu-
Sandeep Sengupta, ‘India’s Engagement in Global Climate Negotiations from Rio to Paris’ in Navroz K
Dubash (ed), India in a Warming World: Integrating Climate Change and Development (Oxford University
Press 2019) 116119.
ibid 118.
According to the UNDP, 38 per cent of the population of Pakistan experience Multidimensional Poverty, see:
United Nations Development Programme and Oxford Poverty & Human Development Initiative,
‘Multidimensional Poverty in Pakistan’ (2016) xi
Pakistan.html> accessed 8 June 2016. On Pakistan’s energy shortages, see: M Mujahid Rafique and S Rehman,
‘National Energy Scenario of Pakistan Current Status, Future Alternatives, and Institutional Infrastructure: An
Overview’ (2017) 69 Renewable and Sustainable Energy Reviews 156.
Ministry of Planning, Development and Reform, ‘Pakistan 2025: One Nation- One Vision’ (Government of
Pakistan) <> accessed 12 April 2020.
For example, a study of countries most affected by climate risks between 1994-2013 found Pakistan in the 10
most climate affected countries in the world. See: Sönke Kreft and others, Global Climate Risk Index 2015 Who
Suffers Most From Extreme Weather Events? Weather-Related Loss Events in 2013 an 1994 to 2013
(Germanwatch Nord-Süd Initiative eV 2014).
Navroz K Dubash, ‘An Introduction to India’s Evolving Climate Change Debate’ in Navroz K Dubash (ed),
India in a Warming World: Integrating Climate Change and Development (Oxford University Press 2019) 23.
justice to the local level.
In other words, the discourse on climate change, among civil society
activists and NGOs, has remained at this international level. Articulating local concerns around
developmental and environmental challenges like education, health, access to water and
sanitation, in the language of climate change has not been forthcoming.
For example, in India,
large-scale activism on issues such as big dams and deforestation were framed as social justice
or environmental justice issues without bringing in the links to climate change and climate
justice. This context foregrounds the discussion of climate litigation in this chapter. Overall,
there has not been widespread engagement with ‘climate change’ by civil society activists at
the local level, even if they are dealing with its associated social and environmental impacts.
B. The role of the Courts in environmental and rights-based litigation
Despite expressly climate-related’ activism being limited at the local level, India and Pakistan
have a history of using the judiciary for environmental rights-based claims more broadly.
Commentators have identified Pakistan and India as jurisdictions with strong potential for
future climate litigation, based on a history of progressive judgements that have borne from
public-interest litigation.
Rajamani and Ghosh state that India had an engaged and proactive
civil society, an activist judiciary, a progressive body of enviro-legal jurisprudence and an
unparalleled culture of public interest litigation that meant it was ripe for climate litigation.
Similarly, Lin states that it is perhaps just a matter of time before climate change becomes a
subject of litigation in the Indian courts.
Setzer and Benjamin note that in Pakistan, dynamic
judicial and legislative interactions illustrate new opportunities for advancing climate action in
highly vulnerable countries.
With the growth of climate litigation in recent years, there has been an emerging interest in
climate litigation in the Global South for rights-based climate litigation.
Commentators have
also identified the judiciary as being uniquely positioned to link climate change with human
rights. Peel and Lin, in their analysis of climate litigation in the Global South, argue that India
and Pakistan have progressive judiciary that generates judgements that protect the rights of
vulnerable social groups and the environment.
Pluchon writes that judges in South Asia have
responded courageously, clear-eyed in the view they can and must play a crucial role in
advancing environmental rights and climate justice.
However, to assess such potential, it is
Sengupta (n 10) 133; Susannah Fisher, ‘The Emerging Geographies of Climate Justice’ (2015) 181 The
Geographical Journal 73, 7980.
Pradip Swarnakar, ‘Climate Change, Civil Society, and Social Movement in India’ in Navroz K Dubash (ed),
India in a Warming World: Integrating Climate Change and Development (Oxford University Press 2019) 254.
Lin (n 3); Pluchon (n 8); Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’
(2018) 7 Transnational Environmental Law 37, 5253.
Lavanya Rajamani and Shibani Ghosh, ‘India’ in Richard Lord and others (eds), Climate Change Liability:
Transnational Law and Practice (Cambridge University Press 2011) 176.
Lin (n 3) 142.
Setzer and Benjamin (n 3) 59.
See for example: Peel and Lin (n 3); Setzer and Benjamin (n 3); Joana Setzer and Lisa C Vanhala, ‘Climate
Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ (2019) 10 Wiley
Interdisciplinary Reviews: Climate Change e580, 5.
Peel and Lin (n 3) 706.
Pluchon (n 8) 139.
important to first analyse the historic and contemporary context of environmental and rights-
based litigation and the judiciary in India and Pakistan.
A major reason for the growth of rights-based litigation has been public interest litigation (PIL).
PIL brought forward several technical and procedural flexibilities. Standing rules were
transformed to allow for claims to be brought on behalf of a public grievance, and to allow any
person, acting bona fide, to advance claims of human rights violations on behalf of victims who
could not do so themselves as a result of their poverty, disability or socially or economically
disadvantaged positions.
From an environmental justice and rights perspective, this allowed
petitioners (such as civil society activists) to bring forward cases on behalf of communities
affected by environmental harm, or to address a general environmental justice grievance. At its
core, the relaxation of standing rules allowed for petitions on ‘public interest’ grounds, giving
rise to PIL.
The courts have also expanded their to allow for the appointment of fact-finding commissions
and experts, transforming the judiciary’s role in PILs from adversarial to investigatory. The
use of the doctrine of continuous mandamus, where the Court leaves cases open for long
periods has also been important in the growth of rights-based environment cases, allowing for
the Courts to issue multiple orders over time to oversee the implementation of rights.
Accordingly, judicial flexibilities and techniques have given rise to a rich and unique
jurisprudence on environmental, development and human rights issues. In both countries, the
judiciary has expanded the constitutional right to life to produce new derivative rights to water,
food and a healthy environment.
The judiciary has also incorporated core principles of
international environmental law into its jurisprudence, for example, the polluter pays,
sustainable development, and the precautionary principle.
Moreover, green courts and benches play an increasing role: a National Green Tribunal
(”NGT”) was established in India in 2010 and environmental tribunals have existed in Pakistan
since 1999. To be clear, for this chapter, references to courts and judiciary include the role of
the tribunals and their members.
C. The complex legacy and state of the judiciary
For example, in Pakistan, the foundations of PIL are based on Article 199(1) of the 1973 Constitution that
allows a High Court to hear cases regarding the ‘enforcement of any Fundamental Right’ if satisfied that there is
‘no other adequate remedy provided by law’ on the application of ‘any aggrieved person’. For a more complete
discussion, see: Maryam S Khan, ‘Genesis and Evolution of Public Interest Litigation in the Supreme Court of
Pakistan: Toward a Dynamic Theory of Judicialization’ (2014) 28 Temple International and Competition Law
Journal 285, 298299. Similarly, Article 226 of the Indian Constitution (for the High Court) and Article 32 (for
the Supreme Court).
See: Jona Razzaque, Public Interest Environmental Litigation in India, Pakistan and Bangladesh (Kluwer
Law International 2004) 94122.
In India, see Indian Council for Enviro-legal Action v Union of India and Ors (1996) 3 SCC 212 (polluter
pays principle) and Vellore Citizens Welfare Forum (1996) 5 SCC 647 (sustainable development and
precautionary principle). In Pakistan, see Shehla Zia v WAPDA, Pakistan PLD 1994 SC 693 (sustainable
development and precautionary principle). The polluter pays principle has not been incorporated to the same
extent in Pakistan. There are only a few cases that expressly refer to the principle such as: Mohammad Ayaz v
Government of Punjab (2017) CLD 772, where the Lahore High Court made reference to it. For a more
complete discussion on the incorporation of principles of international environmental law into the jurisprudence
of India and Pakistan see: Razzaque (n 26) 317369; Shibani Ghosh (ed), Indian Environmental Law: Key
Concepts and Principles (Orient BlackSwan 2019).
The discussions above explain the potential for climate litigation. Indeed, PIL has historically
been lauded as a pillar of hope, protecting the rights of the poor and radically shifting the
relationship between citizen and state.
Today, the reputation of the judiciary on issues of
environmental and social justice is mixed. Particularly in India, there has been a well-
established critique of the judiciary’s approach over the last twenty years.
While examining
these in detail is beyond the scope of this chapter, a few short points are important to
contextualise the role of the judiciary in recent times.
First, there is a critique of an ‘activist’ judiciary and the over extension of powers that are
normally reserved for democratically elected governments.
Second, in India, commentators
have noted how the judiciary’s rulings have reflected the broader neoliberal ideologies of the
state since the1990s.
Thus, the court has often issued judgements that protect ‘economic
development’ over the rights of the poor and marginalised. For example, in the Narmada
judgement, the rights of local people were seen as a justifiable sacrifice for the development
of a large hydropower dam.
In other cases, the courts have utilised the justification of
‘protecting the environment’ to demolish slums and render people homeless, based on the
‘unhygienic’ conditions, such as poor drainage infrastructure (that was never provided by the
Third, the implementation of judicial orders is an ongoing issue that has weakened the
judiciary. As Singh highlights, in India, while there may be consensus on the legitimacy of
judicial activism the judiciary neither has the purse nor the sword and remains the weakest
wing of the government.
With a well-documented apathetic attitude towards implementation
of environmental law, the role of the petitioner does not end with filing the petitions and getting
the decision in their favour, rather there is a responsibility to keep monitoring the
implementation of the judicial decision.
Indeed, it means there can be a continuous back and
forth with the judiciary to try to implement an order.
Finally, it is important to keep in mind the changing political context that the judiciary operates
in, including its relationship with the executive. In Pakistan, the executive and judiciary have
Mayur Suresh and Siddharth Narrain, ‘Introduction’ in Mayur Suresh and Siddharth Narrain (eds), The
Shifting Scales of Justice: The Supreme Court in Neo-liberal India (Orient BlackSwan 2014).
See for example: Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the
Indian Supreme Court from a Social Movement Perspective’ (2007) 8 Human Rights Review 157; Mayur
Suresh and Siddharth Narrain (eds), The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India
(Orient BlackSwan 2014).
See for example: Anuj Bhuwania, Courting the People: Public Interest Litigation and Political Society in
Post-Emergency India (Cambridge University Press 2017).
See for example: Prashant Bhushan, ‘Supreme Court and PIL’ (2004) 39 Economic & Political Weekly 1770;
Suresh and Narrain (n 32).
Narmada Bachao Andolan v Union of India and Others (2000) 10 SCC 664 (Supreme Court of India).
Balakrishnan Rajagopal, ‘The Role of Law in Counter-Hegemonic Globalization and Global Legal Pluralism:
Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal of International Law 345, 376
Amita Baviskar, ‘The Politics of the City’ [2002] Seminar <http://www.india-> accessed 2 April 2018; Réne Véron, ‘Remaking Urban
Environments: The Political Ecology of Air Pollution in Delhi’ (2006) 38 Environment and Planning 2093.
Parmanand Singh, ‘Promises and Perlis of Public Interest Litigation in India’ (2010) 52 Journal of the Indian
Law Institute 172, 184.
Geetanjoy Sahu, ‘Implementation of Environmental Judgements in Context: A Comparative Analysis of
Dahanu Thermal Power Plant Pollution Case in Maharashtra and Vellore Leather Industrial Pollution Case in
Tamil Nadu’ (2010) 6 Law Environment and Development Journal 335, 340.
had a long fraught relationship, given periods of military dictatorship. Environmental tribunals
in Pakistan have suffered from long periods of not operating, due to vacancies, interference
and other bureaucratic impairments.
In India, in recent years the central government has
interfered with both the NGT and the Supreme Court impacting its independence and
Accordingly, many prominent lawyers, commentators and even former-judges,
have questioned recent actions of the Supreme Court and the NGT and whether they can still
effectively take action against the unbridled powers of the state.
A. Litigating climate policy through the Courts
The traditional ‘international’ framing of climate issues, referred to earlier, has meant a very
slow development of climate-specific laws and policies. Climate-specific laws and policies are
thus a very nascent area in both India and Pakistan. In India, the main climate policy at a
national level is the National Action Plan on Climate Change (“NAPCC”).
The NAPCC puts
forward a ‘co-benefits’ approach to addressing climate change. A co-benefits approach, under
the NAPCC, is to take measures that promote our development objectives while also yielding
co-benefits for addressing climate change effectively.
In other words, maintain a space for
climate action, while not sacrificing India’s position of being able to pursue (carbon-intensive)
economic development. Nevertheless, the development and implementation of climate policy
has been slow, particularly at the sub-national (state) level in India.
Nor has there been
climate-specific legislation enacted in India.
In Gaurav Bansal
, the NGT in India was petitioned to act against state and central
governments over the lack of implementation of climate policies. The government argued that
as climate change was the subject of international conventions, it does not lie within the ambit
of the NGT. However, the NGT held that it was within its ambit to scrutinise national climate
policies. States that did not yet have action plans on climate change were ordered to expedite
Martin Lau, ‘The Role of Environmental Tribunals in Pakistan: Challenges and Prospects’ [2019] Yearbook
of Islamic and Middle Eastern Law Online 1, 17.
On the executive interference and functioning of the NGT, see: Geetanjoy Sahu, ‘Ecocide by Design? Under
Modi, Vacancies At National Green Tribunal Reach 70%’ The Wire (15 February 2018)
<> accessed 25 May 2019; Gitanjali Nain Gill,
‘Mapping the Power Struggles of the National Green Tribunal of India: The Rise and Fall?’ [2018] Asian
Journal of Law and Society 1. On the Supreme Court, see: Alok Prasanna Kumar, ‘A Decade of Decay’ (2020)
55 Economic & Political Weekly.
Kumar (n 42); Karan Thapar, ‘Justice Lokur: 'SC Not Fulfilling Its Constitutional Role Adequately, Needs to
Introspect’ The Wire (30 April 2020) <
role-adequately-needs-to-introspect> accessed 4 May 2020; Prashant Bhushan, ‘The Supreme Court Is Locked
Down and Justice Is in “Emergency” Care’ The Wire (28 April 2020) <
supreme-court-justice> accessed 4 May 2020.
Government of India, ‘National Action Plan on Climate Change’ (Prime Minister’s Council on Climate
Change 2008).
ibid 2.
Oxford Policy Management, ‘India’s State Action Plans on Climate Change: Towards Meaningful Action’
(2015) <> accessed 12
April 2018.
Gaurav Bansal v Union of India, Application No. 498/2014, National Green Tribunal (July 23, 2015).
the drafting of such plans. The NGT also confirmed it could hear petitions that concerned
specific violations of the national or state action plans on climate change.
Accordingly, India’s main climate-specific policy instruments were justiciable, providing an
avenue for future climate litigation. This led to Mahendra Pandey
, where the Government of
Delhi had not enacted a state action plan on climate change. The NGT disposed of the matter
once an action plan was submitted. As Ghosh remarks, although the NGT did not play a role
in the formulation of the Government of Delhi’s plan, its interventions ‘expedited’ the matter.
In Pakistan, the main climate-specific policy is the National Climate Change Policy 2012.
federal government also released a Framework for the Implementation of Climate Change
Policy in 2013, to institutionalise and operationalise climate policy.
This policy development
lead to the most significant case in South Asia regarding climate change, to date: Asghar
Leghari v Federation of Pakistan.
In Leghari, the petitioner, a farmer, took the Government
of Pakistan to Court over failing to implement its national climate policy. The petitioner
submitted that climate change posed an ‘immediate and serious threat’ to his fundamental
The petition drew attention to the government’s inaction of implementing adequate
adaptation measures in accordance with the national Framework of Implementation of Climate
Change Policy. The petitioner asserted a breach of fundamental rights under Article 9 (the right
to life) and Article 14 (the right to dignity).
As with many other instances of PIL, the Court took it upon itself to push the executive into
action. It treated the petition as a rolling review, or continuing mandamus, and thus took a role
as overseeing the implementation of Pakistan’s climate policies that were in question. The
Court created a Climate Change Commission, made up of members of various government
departments at both federal and provincial level, lawyers, representatives from the media,
academics, and representatives from environmental NGOs.
The Court noted that the role of
the Commission was to shift government departments towards climate-resilient
Over three years, the Commission oversaw the training and sensitising of different government
departments. In its final report in 2018, it noted that two-thirds of the priority items in the
Framework of Implementation of Climate Change Policy were now completed.
the Court disbanded the Climate Change Commission.
However, the Court did not stop there.
Instead of closing the case and leaving it to the executive going forward, it constituted a
Mahendra Pandey v Union of India, Application No. 470/2016, , National Green Tribunal (Jan 2, 2019).
Ghosh (n 8) 47.
Ministry of Climate Change (MOCC), ‘National Climate Change Policy’ (Government of Pakistan 2012) s 1.
Climate Change Division, ‘Framework for Implementation of Climate Change Policy’ (Government of
Pakistan 2013).
Asghar Leghari vs. Federation of Pakistan (n 1).
ibid [10].
ibid [13].
ibid [19].
The Commission met twelve times between 2015 and 2018, it set up implementation committees along six
climate-relevant priority areas These were (1) Water resources management; (2) Agriculture; (3) Forestry,
Biodiversity and Wildlife; (4) Coastal and Marine Areas; (5) Disaster Risk Management; (6) Energy. See:
Hassan (n 8).
Asghar Leghari vs. Federation of Pakistan (n 1) [19].
Standing Committee on Climate Change (with a smaller membership than the Commission)
that is seen as a link between the Court and the Executive.
The case was left open, to
specifically allow the Standing Committee to approach the Court for enforcement if required.
Leghari largely focusses on climate adaptation policies in Pakistan. Judge Shah mentioned the
vital importance of adaptation in Pakistan, reflecting Pakistan’s position as a developing
However, building on the success of Leghari, another petition was brought forward
to challenge the lack of climate mitigation action in Pakistan.
The petition in Maria Khan
centres upon lack of action and support for renewable energy projects. Maria Khan is still
pending; however, it creates a real test for the Supreme Court of Pakistan of whether it does
continue in the trajectory of Leghari regarding mitigation. In many ways, a successful
judgement for petitioners in Maria Khan could be ground-breaking in focusing on broad
mitigation policy in a country in the Global South.
B. Climate change and the enforcement of existing environmental laws and
Aside from climate-specific policies, petitions have also been brought to ensure that existing
environmental policies consider climate change. In India, nine-year-old petitioner Riddhima
Pandey petitioned the NGT that existing domestic and international environmental and climate
change policies compel the national government to take climate action. The arguments put
forward in Pandey
, were extensive and comprehensive. They invoked, among other things,
the need for climate change to be integrated into environmental impact assessments, the proper
enforcement of national forestry and air pollution laws, and the public trust doctrine.
The Pandey petition received much international attention.
However, the NGT’s final order
ignored most of the main points of the case. The NGT stated that there is no reason to presume
that (international) climate laws were not reflected in policies and taken into consideration in
granting environmental clearances, but it left it at that in a short two page judgement.
abrupt end to this petition reflects the ad-hoc nature of how some PIL petitions are dealt with
by the courts. The petitioners are appealing the decision.
Nevertheless, on other instances where climate change considerations have been peripheral,
the judiciary has passed orders regarding the implementation of environmental laws
incorporating climate considerations and climate language. For example, in Indian Council for
Enviro-legal Action
, the applicant had sought directions to stop industries emitting HFC-23
ibid [25].
ibid [21].
Maria Khan et al. v Federation of Pakistan et al., Writ Petition 8960/2019 (Lahore High Court).
Ridhima Pandey (n 4).
Reuters, ‘Nine-Year-Old Sues Indian Government over Climate Change Inaction’ Guardian (7 April 2017)
government-over-climate-change-inaction> accessed 22 April 2020.
Ridhima Pandey (n 4) [3].
Roshni Chakrabarty, ‘11-Year-Old Climate Activist Ridhima Pandey on Fighting Climate Change and Why
India Is Vulnerable’ India Today <
vulnerable-1628706-2019-12-16> accessed 14 May 2020.
Indian Council for Enviro-legal Action v MoEFCC & Others, Application No. 170/2014, National Green
Tribunal (Judgement, 10 Dec 2015).
(a greenhouse gas). The NGT recognised that HFC-23 emissions were an important
consideration for climate change, as well as ozone depletion and environmental harm. The
NGT directed the state to issue measures to regulate the gas, pursuant to the Environment
Protection Act
. In Sheikh Asim Farooq
a case was brought regarding the implementation of
urban tree protection and planting in Lahore. Both forestry and climate considerations were
brought to the Lahore High Court’s attention. The Court implemented tree planting and
protection in Lahore, justifying this on the bases of forestry laws, environmental and climate
change policy.
For countries in the Global South, energy and infrastructure are crucially tied to economic
growth and poverty alleviation agendas. India’s ‘co-benefits’ approach to climate change,
under its National Action Plan on Climate Change, puts forward the idea that it will marry its
climate objectives with economic development (based on increasing energy use and developing
infrastructure). While both Pakistan and India have traditionally been heavily reliant on fossil
fuels, wind, solar and hydropower are critical for future energy planning in both countries.
Such a transition will bring into focus both local concerns (regarding livelihoods and the
environment) and global concerns (regarding climate change), with litigation playing a critical
role. Not surprisingly, given the resource extraction burden on countries in the Global South,
most lawsuits in the Global South have focussed on mitigation issues such as preventing
construction of coal fired plants, or deforestation.
A recent example in Pakistan is Rabab Ali
, where the Lahore High Court has been petitioned
to examine, among other things, the approval of a coal-fired power station in the Thar Desert.
The petition considers fundamental rights, the public trust doctrine, climate change policies,
and various environmental laws and policies. The petitioner in Rabab Ali is a 7-year-old girl,
and, like Pandey, the petition is linked to the globally co-ordinated youth climate activists that
are bringing lawsuits around the world.
As with Pandey, this petition involves a long list of
laws and policies, from the international to the domestic level, that are allegedly breached by
the project.
Among other things, the petition demands that untapped coal reserves are kept in
the ground and finances are redirected towards alternative (renewable) energy. At the time of
writing, the litigation remains pending.
C. Emissions framings as a potential hazard to justice
While the cases discussed above represent largely positive developments in climate litigation,
albeit at times limited in scope, it is also noticeable that a narrow focus on climate change and
emissions reductions can lead to overlooking ecological damage and human rights issues. This
is most noticeable in the cases concerning renewable and clean energy projects. Globally, many
of these projects have clashed with the rights of local populations and drastically changed the
Environment (Protection) Act, 1986.
Sheikh Asim Farooq v Federation of Pakistan etc, Writ Petition 192069/2018 (Lahore High Court, 30 August
Ibid [46]-[50].
Peel and Lin (n 3) 685.
Rabab Ali (n 4).
These are co-ordinated by Our Children’s Trust, a US based non-profit organisation. See: ‘Our Children’s
Trust’ (Our Children’s Trust) <> accessed 22 April 2020.
Rabab Ali (n 4).
A significant concern is that ‘clean energy’ and technological ‘climate fixes
can camouflage other environmental and social injustices.
Take the example of wind power in India, which is exempted from requiring and
Environmental Impact Assessment (“EIA”). In 2013, a challenge against the construction of a
wind energy project was brought to the NGT in India.
The development of the wind farm, a
Clean Development Mechanism project under the Kyoto Protocol, and its surrounding
infrastructure saw significant changes being made to the surrounding ecology, impacting
environment and livelihoods of residents.
The petitioners sought, among other things, a
direction from the tribunal that wind projects require EIAs and environmental approvals. The
NGT agreed with the overall premise that wind power did not need EIAs, agreeing with the
government’s position that as a ‘green energy’ source there was no adverse environmental
However, NGT did order that compensatory payments be made for afforestation, to
mitigate the roads that were built alongside the windmills (hence acknowledging, in part, that
there was damage).
Similar trends can be seen for hydropower projects. Hydropower has a reputation for being
‘clean’ or ‘green’ energy generation. However, such a framing is disputed, with recent studies
showing significant greenhouse gas emissions from large hydropower reservoirs.
In addition,
nationalistic discourses around nation-building, modernisation and development can
accompany large hydropower projects, obfuscating the environmental and social costs.
judiciary has on many instances showed its reverence for large hydropower. For example, the
Supreme Court of Pakistan has set up a fund itself (with the chief justice contributing a large
amount) to the building of the controversial and expensive Daimer-Bhasha dam.
A much
earlier example is the Narmada
case in 2000, when the Supreme Court of India justified the
approval of the project (which displaced hundreds of thousands of people, transformed the
See for example: Mary Finley-Brook and Curtis Thomas, ‘Renewable Energy and Human Rights Violations:
Illustrative Cases from Indigenous Territories in Panama’ (2011) 101 Annals of the Association of American
Geographers 863; Alexander Dunlap, ‘The “Solution” Is Now the “Problem:” Wind Energy, Colonisation and
the “Genocide-Ecocide Nexus” in the Isthmus of Tehuantepec, Oaxaca’ (2018) 22 The International Journal of
Human Rights 550.
R Ahlers and others, ‘Framing Hydropower as Green Energy: Assessing Drivers, Risks and Tensions in the
Eastern Himalayas’ (2015) 6 Earth System Dynamics 195.
Kallpavalli Vrishka Pempakamdarula Paraspara Sahayaka Sahakara Sangam Ltd. & Others v Union of
India, Application No. 92/2013, National Green Tribunal (Judgement, 1 July 2015).
M Suchitra, ‘Green Energy Takes Toll on Green Cover’ [2015] Down to Earth
<> accessed 22 April 2020.
Kallpavalli (n 71) [16].
Gwenaël Abril and others, ‘Carbon Dioxide and Methane Emissions and the Carbon Budget of a 10-Year Old
Tropical Reservoir (Petit Saut, French Guiana)’ (2005) 19 Global Biogeochemical Cycles; Ivan BT Lima and
others, ‘Methane Emissions from Large Dams as Renewable Energy Resources: A Developing Nation
Perspective’ (2008) 13 Mitigation and Adaptation Strategies for Global Change 193.
Marcus Nusser, ‘Technological Hydroscapes in Asia: The Large Dams Debate Reconsidered’ in Marcus
Nusser (ed), Large dams in Asia: contested environments between technological hydroscapes and social
resistance (Springer 2013).
Elizabeth Ingram, ‘Fund to Build Diamer Basha and Mohmand Dams in Pakistan Reaches Nearly INR1
Billion’ Hydro Review (17 August 2018) <
basha-and-mohmand-dams-in-pakistan-reaches-nearly-inr1-billion/> accessed 13 May 2020.
Narmada Bachao Andolan v Union of India and Others (n 32).
landscape and ecology of the region) on, among other things, the need for cleaner energy
This reflects a potential hazard for ‘climate litigation’, because if climate framings are reduced
into a battle against carbon emissions, it can obscure the questions of livelihoods, environment,
poverty and rights. Climate framings can be exploited to fetishize technological solutions at
any cost. A relevant example is climate policy in the water sector in India. Matthew England’s
empirical work on climate policy in India found that the plasticity of discourses around
climate change has meant that civil servants have utilised climate discourses as an additional
justification to mobilise large projects that they had always supported.
That is, bureaucrats
have used the flexibility of what climate change means, from a solution’ point of view, to
justify developing more large hydropower dams and other interventions. Moreover, as
mentioned earlier, a key criticism of the judiciary in recent times has been its adherence to the
economic ideology of the state, that includes decisions on energy and infrastructure
development. Accordingly, these cases demonstrate a risk for litigants where a narrow climate
framing is adopted in litigation. If climate language creates an opportunity to obscure material,
social, and environmental justice issues, then there is very little reason for claimants to invoke
climate change.
A. Litigation without emissions: mitigation and adaptation
At the same time the judiciary has also been engaged with litigation ‘in the context’ of climate
change. Bouwer draws attention to this line of thinking, stating it is time to look beyond actions
that are overtly about climate change, and to pay attention to the multiple ways in which climate
change issues might be present but invisible.
Indeed, on many instances, the courts have been
dealing with the fundamental issues that climate change brings forth, without necessarily doing
it under the language of climate change or emissions that is the focus of the majority ‘climate
change litigation’ literature. It is important to analyse these cases because, as mentioned in
Section II, civil society activists have struggled in scaling back climate discourses from the
international to the local level.
Yet, climate issues still persist on the ground and are being
litigated in the Courts.
When one scratches below the surface of any particular climate cause or impact (or mitigation
and adaptation concern), a wide array of litigation can be found. Take, for example coal and
mining issues in India. To date, there has been one decision of any note that mentions climate
change and falls under the cap of ‘climate litigation’. In Ratandeep Rangari
, the NGT heard
an application regarding violations of a permission granted to a coal-based power station. The
case was heard on air pollution grounds, regarding the ash content of the coal. Climate change
was a peripheral issue, the NGT held that enforcing rules around maximum ash content were
an important way to ensure ‘co-benefits’ of reductions in greenhouse gas emission.
ibid 768.
Matthew I England, ‘India’s Water Policy Response to Climate Change’ (2018) 43 Water International 1.
Bouwer (n 5) 502.
Fisher (n 16).
Ratandeep Rangari v State of Maharashtra & Others, Application No. 19/2014 (WZ) , National Green
Tribunal (Judgement, 15 Oct. 2015).
ibid [34].
ordered that the state government implement monitoring and compliance protocols for thermal
power plants, based on this justification.
Although this is one the few cases to mention climate change and coal, there has been a rich
jurisprudence developed through the courts drawing attention to many of the concomitant
issues that arise from mining and coal that are particularly relevant from a climate justice
perspective. For example, in Goa Foundation
, the Indian Supreme Court took strong
regulatory action against rampant mining of iron ore in the state of Goa, where the state
government had effectively turned a blind eye to environmental violations. The Court drew
attention to the rights issues related to extraction (including the rights of people’s livelihoods
who worked on the mines). Most notably, the Court ordered that any future mining would have
to contribute royalties to a Permanent Fund, that it established, to further intergenerational
equity and sustainable development.
To be sure, the Goa Foundation case has global
relevance, including in terms of furthering climate justice, for providing a novel approach to
intergenerational equity.
Litigation has also been brought to fight against exploitative and harmful extractive practises.
The NGT put in measures to prevent the practice of ‘rat hole mining’, an extremely
controversial method that involves digging small holes sideways (around 3-4 feet in diameter)
into hills and crawling into the holes to manually extract coal.
The practice has a significant
human cost, such as deaths, accidents, the use of child labour, and human trafficking.
method of mining also leads significant water and environmental issues around the mining sites
(and of course greenhouse gas emissions down the line in using the coal extracted).
Implementation of the NGT’s ban remained a problem because of the nexus between the mine
operators and the state.
Nevertheless, in 2019, the Supreme Court upheld the NGT’s ban on
the practice of rathole mining.
Litigation has also been critical to alleviating vulnerability to climate change, contributing to
climate (adaptation) policy. For example, in Swaraj Abhiyan v Union of India
, a petition was
brought against state governments that were refusing to declare a drought, as well as the central
government for the lack of implementation of essential aspects of the Disaster Management
Act 2005 and several aspects of drought relief measures. The facts in Swaraj Abhiyan highlight
ibid [40].
Goa Foundation v Union of India (2014) 6 SCC 590.
ibid 636.
Edith Brown Weiss, ‘Intergenerational Equity in a Kaleidoscopic World’ (2019) 49 Environmental Policy and
Law 3.
Impulse NGO Network and All Dimasa Students Union Dima Hasao Dist. Committee Vs. State of Meghalaya
and Ors,Application no. 13/2014, National Green Tribunal (Judgement, 9 June 2014).
Baniateilang Majaw, ‘Ending Meghalaya’s “Deadly Occupation”: India’s National Green Tribunal’s Ban on
Rat-Hole Mining’ (2016) 49 Law and Politics in Africa, Asia and Latin America 34, 41.
ibid 4951.
State of Meghalaya v All Dimasa Students Union, Dima Hasao District Committee & Ors., Civil Appeal No.
2968 of 2019, Supreme Court of India (Judgement, 3 July 2019).
Swaraj Abhiyan v Union of India & Ors (2016) 7 SCC 498 (Supreme Court of India).
the common failings of governments in responding to droughts that show blatant disregard for
lives and livelihoods.
In Swaraj Abhiyan, the Court commented on the ostrich-like attitude of state governments
towards the drought situation crisis that causes suffering to millions.
The Supreme Court
passed orders that mandated the operationalisation of critical aspects of the Disaster
Management Act
that were yet to be implemented, such as setting up a relief fund and the
development of a national plan. The Court paid detailed attention to policy documents like
‘drought manuals’, that were the main instrument to guide state governments before, during
and after a drought. The Court oversaw, through a continuing mandamus, the mandatory
revision of drought manuals. The manuals were held to beout of date and allowing states
circumvent their relief obligations. Accordingly, while the judgement in Swaraj Abhiyan did
not mention climate change, the substance of the ruling has a significant impact on the
governance of climate adaptation in the country through shifting the paradigm on drought relief
and management.
These cases demonstrate how material shifts in adaptation and mitigation can be made without
having to use a climate framing (that may at times obscure the justice issues). The Courts in
India and Pakistan are familiar with the many issues that arise from the impacts of climate
change, such as floods and droughts. Given the complexity of climate framings, discussed
earlier, petitioners will remain careful in whether choosing to bring attention to climate issues.
The importance of human rights, intergenerational equity, in these cases demonstrate also the
development of litigation in the context of climate justice in the region.
The discussion above has highlighted both challenges and opportunities for litigation on
climate change in India and Pakistan. Despite the complex and conflicting legacy of the
judiciary, it remains a forum that will be utilised to advance claims concerning climate-related
issues. As Hilson highlights, for social and environmental movements, a lack of political
opportunity may influence the adoption of litigation as a strategy in place of lobbying and
In Pakistan and India, there are often limited or ineffective political
opportunities to enact change. Many of the cases discussed above illustrate the continuing
potential for the courts to affect change.
This chapter has analysed the development of climate litigation in India and Pakistan. The
international framing of climate change, as pointed out earlier, has hindered the development
of capturing climate language and climate justice challenges at the local level. Litigation that
expressly incorporates climate language or reasoning has accordingly been limited. Where it
has appeared, climate change has largely been a peripheral issue.
Nevertheless, there are a number of emerging petitions that demonstrate potential. In Pakistan,
the legacy of Leghari
has already inspired further action through the courts, such as Maria
See for example: Jitendra, ‘Farmers Suffer as States yet to Declare Drought’ [2018] Down to Earth
accessed 22 April 2020.
Swaraj Abhiyan v Union of India & Ors. (n 93) 498.
Disaster Management Act, 2005.
Chris Hilson, ‘New Social Movements: The Role of Legal Opportunity’ (2002) 9 Journal of European Public
Policy 238.
Asghar Leghari vs. Federation of Pakistan (n 1).
and Rabab Ali
. Indeed, the use of PIL will remain an important part of the ongoing
transnational climate activism aimed at ‘flooding the courts’ and utilising judicial flexibilities.
At the same time, the chapter has also argued that there are hazards to narrow climate
framings in litigation. An overly narrow focus on emissions, for example, can produce results
that ignore wider livelihoods, rights and ecological issues as seen in the cases in India
concerning hydropower and wind energy.
Moreover, this chapter also demonstrates that climate change has indeed been alive in the
courts in other ways. The integral issues associated with mitigation and adaptation, even if the
language of ‘climate change’ has been absent, have been litigated regularly. These cases, in
fact, have produced some of the more innovative judgements from a rights and (climate) justice
Finally, the lasting challenge of litigation will be whether it can deliver practical and
substantive change to alleviate the suffering or climate impacts and/or deliver just transitions.
Although the Leghari case has been noted for its ‘symbolic value’
as a leading case at a global
level, the more important question from a domestic perspective is how climate litigation will
go from symbolic to transformational. The courts in India and Pakistan have a legacy of
incorporating numerous principles of international environmental law and of expanding
constitutional rights to incorporate environmental rights. The courts may in time incorporate
principles of climate change law and climate language, in the way Leghari
has begun to do.
It may also provide numerous examples of cases concerning climate change that provide
important rights language and justice principles. However, there are reasons to be cautious
about such potential too, given the history of environmental litigation in the region.
An analogous example is the case of water law and policy in India. Courts in India have
provided a rich jurisprudence that draws attention to the human and environmental aspects of
water, in a way legislation and policy have failed to. The judiciary has expanded the right to
life to include the human right to water, as well as drawn upon the relevance of principles of
international environmental law, such as the precautionary principle, polluter-pays, and
sustainable development in cases concerning water.
However, beyond pronouncements of
principles and rights, the judiciary have not provided much detail of how these principles
apply. Moreover, the legislature and the executive have largely ignored these principles in
formulating new legislation and policies. Thus, while there have been progressive
pronouncements by the courts, and at times they have taken strong action to prevent acts of
environmental harm, there have been limited improvements in shifting the overall framework
of water law and policy to make a more structural difference in the lives of people.
Maria Khan et al. v Federation of Pakistan et al (n 56).
Rabab Ali v Federation of Pakistan & Another (n 4).
Adela Suliman, ‘Citizens Must “Flood the Courts” in Fight for Climate Justice: Economist’ Reuters (4
October 2017) <
courts-in-fight-for-climate-justice-economist-idUSKBN1C929Z> accessed 20 April 2020.
Barritt and Sediti (n 7).
Asghar Leghari vs. Federation of Pakistan (n 1).
For an overview see: Philippe Cullet and Sujith Koonan, Water Law in India: An Introduction to Legal
Instruments (2nd edn, Oxford University Press 2017) 913, 4767.
Philippe Cullet, ‘A Meandering Jurisprudence of the Court’ in Mayur Suresh and Siddharth Narrain (eds),
The Shifting Scales of Justice: The Supreme Court in Neo-liberal India (Orient BlackSwan 2014) 144.
This outlines the challenge for lawyers, academics and activists interested in climate litigation,
to analyse and ensure the impacts of such litigation, on whether it provides more than symbolic
value. Ultimately, litigation will remain just one avenue of change. But, unless litigation can
become a tool for broader legislative and political change, its impacts may remain removed
from the daily lives and struggles of hundreds of millions across India and Pakistan who will
bear the brunt of the climate crisis.
... The second case was dismissed upon submission of a state-APCC (SAPCC) by the state Government [44]. In acknowledging these jurisdictional limits, the Tribunal nevertheless brought cases under judicial spotlight, thus indirectly affecting expeditious policy formulation without overstepping its powers [45], [46]. On other occasions, as in the HFC-23 case, '…the NGT has exercised greater caution with policy decisions of the government…' [47], [48]. ...
... Judicial outcomes, in terms of content and enforcement, are unpredictable, and contingent upon various legal/non-legal factors [45]. Against documented implementation deficits of existing environmental laws, the role of the litigant, beyond securing a favourable outcome, extends to even monitoring the implementation of judicial decisions [46]. ...
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See for example: Mary Finley-Brook and Curtis Thomas, 'Renewable Energy and Human Rights Violations: Illustrative Cases from Indigenous Territories in Panama' (2011) 101 Annals of the Association of American Geographers 863; Alexander Dunlap, 'The "Solution" Is Now the "Problem:" Wind Energy, Colonisation and the "Genocide-Ecocide Nexus" in the Isthmus of Tehuantepec, Oaxaca' (2018) 22 The International Journal of Human Rights 550.
Kallpavalli Vrishka Pempakamdarula Paraspara Sahayaka Sahakara Sangam Ltd. & Others v Union of India
Kallpavalli Vrishka Pempakamdarula Paraspara Sahayaka Sahakara Sangam Ltd. & Others v Union of India, Application No. 92/2013, National Green Tribunal (Judgement, 1 July 2015).
Green Energy Takes Toll on Green Cover
  • M Suchitra
M Suchitra, 'Green Energy Takes Toll on Green Cover' [2015] Down to Earth <> accessed 22 April 2020.
Fund to Build Diamer Basha and Mohmand Dams in Pakistan Reaches Nearly INR1
  • Elizabeth Ingram
Elizabeth Ingram, 'Fund to Build Diamer Basha and Mohmand Dams in Pakistan Reaches Nearly INR1