Sue the State for Heatwaves- A Case for Violation of Right against Adverse Effects of Climate Change

During my time in Delhi for the last one month, I have been taking auto/ electric rickshaws for commuting to metro stations or directly to the destinations if reaching the metro station was an insurmountable task due to traffics (blockades for VIP passage is a common occurrence in the locality I live in). In an entirely black uniform, I am exposed to an extremely hot and burning wind, a manifestation of the deadly heatwave that has grasped the Indo-Gangetic plains for at least the last one month. While people with private vehicles line around my rickshaw at a traffic signal and enjoy the luxury of their ACs, I and the rickshaw driver get the punishment of being exposed to the heatwave and burning exhaust of these vehicles. And the prognosis of this intensifying or remaining the same in June makes me wonder this: if majority of the people can’t afford to get AC vehicles, and if a large section of the citizenry relies on non-AC workplace but perhaps more essential livelihoods (farming, transportation, construction, among others), is it a fait accompli for the economically marginalised? Or do they have a right to sue the government for inapt action in enhancing climate adaptation and mitigation plans?

When the Supreme Court introduced the right against adverse effects of climate change in M K Ranjitsinh v. Union of India, the reasoning fundamentally relied on Article 14, apart from Article 21, of the Constitution. One paragraph (Paragraph no. 26, 2024 INSC 280) specifically elaborated on this aspect by documenting instances of how different communities are impacted by climate change variably based on their economic, social and cultural background. Indubitably, the observation was significant in defining the scope of this newfound right, signifying a progressive acknowledgment of intersectional impact of climate change. The fact that Supreme Court has constitutionalised this right avers that the government has a crucial responsibility to protect the citizens from climate change, with special attention to the intersectional and varying impacts on different communities. Otherwise, the government is culpable of violating the rights under Articles 14 and 21 of the Constitution. On the face of it, the repercussions and responsibilities imposed in the garb of this right are unprecedented and arguably, at this nascent stage since this right has been materialised, the violations vis-à-vis its fulfilments exceed tremendously.

Exploring this hypothesis through the occurrence of heatwaves and state’s track record for ensuring preservation of right to life (specifically, right to health) of every section of the society, one can identify a palpable void of inaction and abandonment. With the offices of primary lawmakers fully air-conditioned, certain offices of the state themselves are reeling under the impact of this inaction with inapt infrastructure. Unsurprisingly, the general public is undoubtedly on its own, with capitalist empowerment sponsoring ACs in some dwellings whilst capitalist retardment exposing the majority of the citizenry to the former’s exhausts exacerbating the already life-snatching heat. This intersectionality has not been compensated by the state through establishment of appropriate climate change adaptation mechanisms.

An analysis of the approach framed for addressing heatwave concerns reveals a lackadaisical approach of the state in actively taking on the responsibility of establishing infrastructure which protects marginalised communities which are unable to afford private adaptation measures, namely ACs. To the state’s credit, NDMA’s ‘Beating the Heat: how India successfully reduced mortality due to heatwaves’ perhaps encapsulates the approach taken by the state in fulfilling their responsibility to protect the citizens. Formulation of national guidelines to enable Heat-wave Action Plans, conducting workshops, research, advisories, community sensitisation, heat-wave warnings- these form the crux of the state’s approach. Evident is a reductionist approach to the issue at hand where at the end of the tunnel, the actual protection of communities from heatwaves through establishment of requisite infrastructure still remains a far-fetched accomplishment. In simple terms, what does one do with the advisories, research, warnings and community sensitisation, when one is not aided by requisite adaptation facility and equipment? Establishment of heat shelters, water cooling capacities, greening of crowded public areas, among other measures, remain an intervention far too absent, even when at least 23 Heat Action Plans (HAPs) have been formulated.

And this where the newly-founded right in M K Ranjitsinh can possibly come into action. With this right, primarily the vulnerable communities, can seek urgent government action to protect them in view of the fact that they are responsible to ensure their survival and well-being. The mere fact that mortalities have reduced does not aver that this right is not being violated; heat stress itself, which retards one in efficiently performing their livelihood or miscellaneous activities, should be construed as a clear violation of one’s right to life under Article 14 and 21. This perhaps can also become a litmus test about the contours of this newly-founded right and the future of climate litigation in India.