Year : 2019 | Volume
: 5 | Issue : 2 | Page : 113--117
Climate change and health: Medico-legal framework in India
Assistant Professor, School of Law, University of Petroleum and Energy Studies (UPES), Dehradun, Uttarakhand, India
Assistant Professor, School of Law, University of Petroleum and Energy Studies (UPES), Dehradun, Uttarakhand
Amongst the ballistic missile politics, bitcoin slump, another predominant issue that needs serious redressal not only at international level, but also even at the national and domestic level is Climate Change. Climate Change is for real causing fundamental threat to health with both short and long-term effects. Melting glaciers, rising sea levels, global warming, severe drought, frequent wildfires are some of the effects of the problem. According to National Research Council, evidences of the effects of climate change have been found in tree rings, coral reefs, ocean sediments, and layers of sedimentary rocks. These evidences discloses the fact that the current warming is occurring ten times faster than the average rate of ice-age-recovery warming. The causes of climate change are increased human activities of deforestation, industrialization, burning fossil fuels, carbon emissions by motor vehicles leading to rise in greenhouse gases.
To address the problem of climate change at the international level, on 5th October 2016 the conditions for entry into force for Paris Agreement was laid. The Agreement entered into force on 4th November 2016 in accordance with its Article 21, Paragraph 1, which read as: “This Agreement shall enter into force on the thirtieth day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession.”
Till date, 185 state parties ratified out of 197 signatory parties in the Paris Agreement. Under the United Nations Framework Convention on Climate Change (UNFCCC) which aims to reduce greenhouse gas concentration at a predefined level with the support of the global community, Paris Agreement has successfully helped to remind the state parties that climate change is a common challenge wherein the global community has to identify, mitigate, strengthen and adapt their national and domestic policies.
The emergent issue of climate change sees no territorial boundaries. The global community must wake up to the warning that this ‘tragedy of the commons’ should be recognized, mitigated and collective action towards sustainability should be observed at the international, national and domestic level.
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Biswas N. Climate change and health: Medico-legal framework in India.J Indira Gandhi Inst Med Sci 2019;5:113-117
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Biswas N. Climate change and health: Medico-legal framework in India. J Indira Gandhi Inst Med Sci [serial online] 2019 [cited 2022 Aug 12 ];5:113-117
Available from: http://www.jigims.co.in/text.asp?2019/5/2/113/301093
The Problem of Climate Change in India - Causes and Effect
India, owing to its tropical climate changeability faces enormous effects and consequences of climate change. With its fast growing transition from developing to developed country, climate change is a leading hindrance to economic and social development.
In furtherance to the rapid urbanization, industrialization and other economic development, the challenge of climate change brings forth more pressure on the ecological and sociological systems. With its huge and growing population, a 7500-km long densely populated and low-lying coastline, and an economy that is closely tied to its natural resource base, India is considerably vulnerable to the impacts of climate change. Rise in temperature and seasonal variability in precipitation anticipates a rapid meltdown of Himalayan glaciers thus causing rise in sea levels and floods. Increase in floods would cause higher rates of diseases in tropical regions such as cholera and malaria. The risks amounting from climate change are enormous ranging from risks in public health, loss of economic and social development to jeopardizing the future generations.
The causes of climate change are ongoing from the time the humans have exploited the nature in the name of necessity. Excessive human activities such as Industrialization, urbanization, deforestation, increased use of motor vehicles, burning non-renewable energy such as petroleum, natural gas, fossil fuels etc. have resulted in the increase in emission of Green House Gases (GHG) causing the climate change.
Climate Change effects on Health
Sustainable Development Goals (SDG) 2030, also called the global goals came into effect from 2016 with over 170 implementing countries under the stewardship of UNDP. Goal 3 of SDG 2030 aims to ensure healthy lives and promote well-being for all and at all ages. Goal 13 aims to undertake urgent action to combat change and its impacts.
W.H.O. defines Health as ‘a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity’. Owing to continuous human exploitative activities, climate change is also manifesting itself in environmental, social, economic and individual behavior determinants of health such as clean drinking water, air, food, nutrients, sanitation, transportation, housing, industry, urbanization, energy, waste and the healthcare system. According to the reports of World Health Organization (WHO), the global mean surface will see a temperature rise by 4 degrees over the course of the current century and would globally cause additional 250,000 deaths yearly by 2030. This trend has already begun its effect on the rise in numerous water-borne, communicable diseases, respiratory and cardiovascular ailments. Irregular pattern of rainfall has affected the agricultural production leading to malnutrition in infants and minors and under-nourishment in adults.
International and National Framework towards Environment Protection and its nexus with determinants of Health
Since 1980s, the enormity and depth of the environmental related regulation and steps towards adaptation has seen expansion internationally, nationally and locally. Consequently, this strive towards effective roadmap and its implementation cannot be met unless the global community achieves the minimum standard of the right to wholesome, healthy and pollution free environment.
Paris Convention on Climate Change
Recapping and improvising the influential Stockholm Conference in 1975 and Rio de Jenerio Earth Summit in 1992, the Paris Convention under the United Nations Framework Convention on Climate Change (UNFCCC) bases itself on the vision of mitigating and adapting to the climate change by lowering the greenhouse emission and adapt to the climate resilient development through the support and cooperation of 197 signatories of which 185 state parties have already signed and ratified the agreement. The agreement aims to reduce the carbon output by settng a standardized global average temperature to be below 2°C as the nationally determined contributions (NDCs) made by all countries with effect to 5 years revision for assessment. Implementation of the Paris Agreement is essential for the achievement of the Sustainable Development Goals, and provides a roadmap for climate actions that will reduce emissions and build climate resilience. The 139th Session by the W.H.O Executive Board on Health and Climate Change states that the Paris Agreement provides a critical opportunity to advance public health as a central element not only of the response to climate change, but of the overall 2030 Agenda for Sustainable Development .
International Covenants on Economic, Social and Cultural Rights
India has signed and ratified ICESCR on 10th April 1979 which works on the same streaks as Universal Declaration of Human Rights (UDHR) to include particularly, right to an adequate standard of living (Article 11), right to health (Article 12) amongst others. Article 12 of ICESC clearly mentions state parties to recognize the full achievement of the right to health, reduction of still-births and infant mortality, improvement of environmental and industrial hygiene, prevention and treatment of epidemic, endemic, occupational diseases and assurance of medical services and attention .
The Indian Legal framework
Article 21 of the Constitution is a fundamental right, which reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This indispensable umbrella right expands itself to include the right to clean and healthy environment.
Besides the fundamental right related to environmental protection, the 42nd amendment to the Indian Constitution brought directive principles of state policy, the non-justiciable which cannot be legally enforceable in the court of law:
The State’s responsibility with regard to environmental protection has been laid down under Article 48-A of our Constitution, which reads as follows: “The State shall Endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”.
The Indian Constitution also provides the Fundamental duties, which casts moral obligation on all Indian citizen to protect and improve the environment. Article 51-A (g) of our Constitution which reads as follows: “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”
India has various national legislations pertaining to regulation of human activities and environmental protection such as the Environmental (Protection) Act of 1986 which act as “umbrella” legislation designed to provide a frame work for Central government in coordination with the provisions of Water Act & Air Act. Air protection The Air (Prevention and Control of Pollution) Act of 1981 provides for the prevention, control and abatement of air pollution. The Ozone Depleting Substances (Regulation and Control) Rules to enact rules for regulating use of substances, which causes in ozone depletion. The Energy Conservation Act of 2001 provides for efficient use of energy and its conservation. Electricity Act 2003 aims to coordinate development of the power sector by providing a comprehensive framework for power development. The Indian Forest Act of 1927 and Forest Conservation Act of 1980, which consolidates the law relating to forests, the transit of forest produce and the duty livable on timber and other forest, produce and forest conservation. Biological Diversity Act, 2002 to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.
National Environment Policy, 2006 outlines essential elements of India’s response to Climate Change. The policy includes adherence to principle of common but differentiated responsibility and respective capabilities of different countries, identification of key vulnerabilities of India to Climate Change, and in particular, its impact on water resources, forests, coastal areas, agriculture and health, assessment of the need for adaptation to Climate Change and encouragement to the Indian Industry to participate in the Clean Development Mechanism (CDM) .
The policy making for the environment protection and conservation in India has been inclusive and participatory approach from both the sides of indigenous as well as the industrial experts. The goal is to have a holistic set up wherein the public being the stakeholders have the supreme responsibilities as well as the duties towards the environment protection and conservation. The role of the Central and State Pollution Control Boards are to ensure that prior environmental permits, compliance through periodic reporting, inspection, conducting environmental impact assessments before settng up industries or enterprises, imposing sanctions for non-compliance of any of the formalities.
The responsibility of the State with regard to raising the level of nutrition and the standard of living and to improve public health has been laid down under Article 47 of the Constitution. Thus, it is the duty of the state to ensure that public health should be a top priority and activities detrimental to environment should be side stepped.
Some of the laws governing safety of patients, staff in health care sector and general population are Bio-Medical Waste Management Handling Rules, 2000; Prevention of food adulteration Act 1954; Rules for provision of safe drinking water. National Health Policy formulated in 2002 aimed to achieve good health for all in the country and decentralization of health care system. Various Vector Borne Disease control programmes are National Anti-Malaria Programme, Kala-Azar Control programme, Japanese encephalitis control programme, dengue and dengue hemorrhagic fever control programme aims to spread awareness on prevention and control from the grass-root levels. Mission Indradhanush launched in 2014 aims vaccination of children from preventable diseases such as Tuberculosis, Diphtheria, Tetanus, Polio etc. by 2020.
Role of Indian Judiciary
The Indian judiciary have a vital role in bringing various integral environmental principles such as the doctrine of sustainable development, inter-generational equity, polluters pays principle and precautionary principle.
In the landmark case of M.C. Mehta v. Union of India, (Oleum Gas Leak) which laid the foundation of the notable principle of ‘Absolute Liability’ or ‘No fault liability’ principle which held industries and enterprises engaging with hazardous or inherently dangerous activity absolutely liable for compensation to the victims, thus diverting from the principle of ‘Strict Liability’ in Ryland v. Fletcher which had certain exceptions giving enterprises the space to escape liability. The Oleum Gas Leak also laid the concept of deep pocket wherein the compensation depended on the financial status of the enterprise.
The Indian judiciary has used effective tools like Suo Moto Cognizance and Public Interest Litigation to address the detriments caused to the environment. News article by Times of India about the mining in Bhopal being a threat to the natural habitat for tigers , the Supreme Court took up the issue of Yamuna river pollution caused by untreated industrial sewage wastes giving necessary directions to the concerned authorities based on a 1994 news item published in Hindustan Times . Public Interest Litigation which can be brought to the court of law by any individual either affected directly or indirectly concerning a public matter has taken its place through a series of M.C. Mehta vs. Union of India ranging from oleum gas leak or the Kanpur Tanners in the 1980s to vehicular pollution in Delhi or mining activities in Aravalli Hills in the 21st century; prohibition of mining activities in Rural Litigation and Entitlement Kendra vs. State of U.P ; industries dealing with dangerous substances causing pollution violates the right to wholesome life in Indian Council for Enviro- Legal Action vs. Union of India  and noise pollution is violation of Article 21 in Church of God (Full Gospel) v. KKR Majestic Colony Welfare Association are some of the significant examples that bring judiciary and public in close range.
The idea of right to life and liberty enshrined under Article 21 of the Indian Constitution has a very wide ambit. Supreme Court has from time to time incorporated and interpreted the significance of right to health and healthy environment in order to live a dignified and decent life. It was upheld in Pt. Parmanand Katara vs. Union of India  that every doctor has a professional obligation to extend immediate medical services to protect life. The apex court also mentioned the duty of the State to take concrete steps in providing medical amenities to the hospitals in order to avoid delay to preserve and value human life .
Judiciary has played a vital role to interpret the nexus between the consequences of climate change and health and the constitutional obligation of state towards the general public. In order to have effective and speedy justice delivery, the National Green Tribunal (NGT) established in the year 2010 provides enforcement of any legal right and compensation relating to environmental protection and conservation of forests and other natural resources. Recently, NGT in Shailesh Singh vs. Sheela hospital and Trauma Centre, Shahjahanpur & Ors , has given directions to all States and UTs to furnish reports on compliance of Bio-Medical Waste Management (BMW) Rules, 2016 in order to ensure scientific disposal of medical wastes and prevent further damage to public health.
Implementation of Environment Protection Regulations
India has a very wide-ranging framework of legal and institutional mechanisms to respond to the enormous challenges of climate change, owing to population growth, poverty and illiteracy augmented by urbanization and industrial development. Poor implementation and enforcement of the laws arises as pollution control authorities neither have accurate evidence/information regarding the quantities of effluents/emissions/solid wastes and their characteristics nor have adequate technical facilities and skilled manpower/support for observing the polluting units. Monitering of GHG emissions would be effective when it would be in coordination with the various Ministries such as environmental, health, Renewable energy, Mines, petroleum and Natural Gas. Public awareness should be created nationally and domestically through government programs, health care systems and school curriculum, about the present state concerning environmental protection conservation and adaptation as well as the concept of sustainable development. Moreover, State can only help enforce and implement the laws, but it is the duty of the citizen to abide by the law as they owe it to their neighbors, themselves and the future generations.
In a developed country like India with the longest constitution undergoing constant amendments, the list of legislations, action plans, national missions, reports on environmental protection, climate change, forest conservation, hazardous wastes are humongous. The Ministry of Environment, Forest and Climate Change is the nodal agency for addressing, implementation of environmental protection and climate change legislations. The implementation surround themselves around various identification, strengthening and adapt to the resilient system to mitigate the maximum effects. There is a need for expansion of technical support and capacity development for environmental protection and capacity development. Funds for Climate change adaptation is estimated to be $70 billion to $100 billion per year by 2050, but only fraction of these funds have been made available to date, and a much smaller proportion directed to health protection . Fund allocation for environmental protection and adaption to climate change should be prioritized by the state.
Waste segregation and minimization, reuse- recycle, lowering the use of plastics, simplicity in food habits should be inculcated to the public by the State. Enabling Incentives and motivations towards inculcating such civic sense from the grass-root level of domestic to district level creates impetus for effective implementation rather than fines/punishment. Similarly, state should formulate incentives in the form of renewal of license for compliance of environmental impact assessment (EIA) by the companies.
Establishment of monitoring systems and epidemiological data to ensure adequate early warning system for prevention and control of diseases. Regular assessments of compliance of laws, policies, action plans, rules and reviewing their efficiency is another significant step towards implementation.
No single country causes the problem; no single country can cure it. Only by collective action can that tragedy be avoided. The issue is about social justice to ourselves, our neighbors and the future generations to come. This relationship between natural resources and social justice should be a constant reminder to us in the course of our development plans based on natural resources. Climate change is the result of a buildup of greenhouse effect in the atmosphere. The need for ensuring human security in climate change through the protection of human rights and promotion of good governance policies is one of the important aspects in development of rights based approach.
Thus, there is a need of an efficient response to curb global warming by evolving norms and establishing institutions to take strategic steps to alleviate global warming in India. To address these environmental challenges, with the synchronization of the state government, the central government and the global community, environmental legal and institutional system will be effective when it overcomes the challenges within the inclusive framework of India’s development agenda and international principles and norms. The vision of any nation at this hour should be national as well as domestic growth economically, socially and environmentally for achieving social justice for maintaining ecological balance and sustainable development.
|1||NATIONAL RESEARCH COUNCIL, SURFACE TEMPERATURE RECONSTRUCTION FOR LAST 2,000 YEARS (National Academy Press, Washington, D.C 2006).|
|2||ENVIRONMENTAL PROBLEMS AND POLICIES (K.R. Gupta ed., Atlantic Publisher New Delhi)|
|3||CLIMATE AND HEALTH COUNTRY PROFILES - 2015: A GLOBAL OVERVIEW (W.H.O, UNFCCC 2015) at https://www.who.int/ globalchange/resources/country-profiles/climatechange _global_overview.pdf (accessed on 01/08/2019).|
|4||Health and Climate Change, Report by the Secretariate, W.H.O Executive Board 139th session, Provisional Agenda Item No. 6.4, 20 May 2016 available at http://apps.who.int/ gb/ebwha/pdf_ files/EB139/B139_6-en.pdf?ua=1 (accessed on 02/08/2019).|
|5||Article 12 of International Covenant on Economic, Social and Cultural Rights, United Nations 1967 available at https://treaties. un.org/doc/Treaties/1976/01/19760103% 2009- 57%20PM/Ch_IV_ 03.pdf (accessed on 02/08/2019).|
|6||Lok Sabha Secretariat Parliament Library And Reference, Research, Documentation And Information Service, Climate Change, India’s Perspective, (LARRDIS) Climate Change-India’s Perspective at http://220.127.116.11/intranet /CLIMATE_CHANGE- INDIA’s_PERSPECTIVE.pdf (accessed on 03/08/2019).|
|7||M.C. Mehta v. Union of India, AIR 1988 SC 1037; (1987) 1 SCR 819.|
|8||Ryland v. Fletcher, UKHL 1 LR 330(1968).|
|9||Tribunal at its own motion vs. Ministry of Environment & Others, Original Application No. 16/2013 (CZ) (Suo Moto).|
|10||News Item published in Hindustan Times titled ‘And Quiet Flows the Maily Yamuna”, In re. vs. State, Writ Petition (Civil) No. 725 of 1994; (2009) 17 SCC 708; (2012) 13 SCC 736|
|11||M.C. Mehta v. Union of India (1987) 4 SCC 463; AIR (2001) SC 1948; (2004) 12 SCC 118|
|12||Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652|
|13||Indian Council for Enviro- Legal Action v. Union of India, AIR 1996 SC 1446|
|14||Church of God (Full Gospel) vs. KKR Majestic Colony Welfare Association, AIR 2000 SC 2773|
|15||Pt. Parmanand Katara vs. Union of India & Ors, AIR 1989 SC 2039|
|16||Paschim Banga Khel Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.|
|17||Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahajanpur & Ors, National Green Tribunal (Principal Bench, New Delhi) Original Application No.710/2017.|
|18||FRED L. MORRISON AND RUDIGER WOLFRUM, INTERNATIONAL, REGIONAL AND NATIONAL ENVIRONMENTAL LAW 167 (Netherland, Kluwer Law International, 2000).|