Shreya and Tanmay Pal
I. Introduction
“So the climate is changing faster than our efforts to address it. The alarm bells keep ringing. Our citizens keep marching. We cannot pretend we do not hear them. We have to answer the call. We know what we have to do to avoid irreparable harm”
– Barack Obama (UN Climate Change Summit)
In the famous ‘Kingsnorth Trial’ in 2008, the United Kingdom Trial court for the first time recognised the defence of climate necessity and acquitted six climate change activists of causing criminal damage when they closed down a coal-fired power station during their protests. The activists accepted that they caused £30,000 of damage to the smokestack of Kingsnorth power station but raised the plea that their actions aimed to prevent more significant damage to valuable property caused by the impacts of climate change. The jury concluded that their activities were appropriate in light of the significant risks posed by climate change.
Amidst the looming threat of climate change, as it ravages our planet at an alarming pace, the power of collective activism becomes an effective weapon to ensure our voices are heard. Throughout our history, India has witnessed a series of remarkable social movements and active citizen participation, from the iconic Chipko movement to Narmada Bachao Aandolan, which serve as a testament to the growing environmental consciousness among the people. The authors in this post argue for the expansion of Section 81 of the Indian Penal Code (“IPC”) and the recognition of the climate necessity defence within the Indian legal framework. This move would be path-breaking, empowering individuals who act out of urgent necessity to safeguard the climate. This post analyses the emerging need for this defence in the Indian context, highlights the shortcomings involved in it, and concludes by offering solutions to address the challenges.
II. Understanding the Climate Necessity Defense
The Climate Necessity Defence is an affirmative defence. The Black’s Law Dictionary defines affirmative defence as “an assertion by a defendant that raises new facts and arguments that defeat the plaintiff’s claim even if all of the allegations in the complaint are true.” For the necessity defence to be made out, the defendant must produce evidence that, if found credible, will negate the criminal or civil liability. The necessity defence has been recognised in International customary law and Indian laws.
The persistent ignorance of the issue of climate change on the part of the State has driven the conscious citizen to resort to civil disobedience. Civil disobedience is a “public, non-violent and conscientious breach of the law,” done to instigate reform in law or official policies. It is a political-legal tool climate activists use to justify protest actions taken in defence of the climate. While claiming the defence of necessity in matters of climate protest, the individual is fully aware that his actions are illegal, but they purposely commit the crime with the political motive in mind. This defence, however, is not recognised in many States as it would favour the case of the protestors.
III. ‘Necessity’ defence under Indian Laws
Section 81 of the IPC defines the necessity as an act which is likely to cause harm but done in good faith without any criminal intention to avert any danger or harm to any person or property, i.e. for the greater good. It is pertinent to note that the clause doesn’t mention any specific situation where the defence of necessity can be claimed. Moreover, the definition mentions “avoiding harm to any person or property” and makes no mention of the environment or climate in specific. Moreover, there is no definition of “harm” and the meaning of the term can be understood in its ordinary meaning to include harm to body, mind, property or reputation. It is imperative to consider the intricate relationship between human beings and the environment. The scope of this section could be well expanded to cover actions undertaken to dodge the disastrous effects of climate catastrophe.
IV. Essentials of Climate Necessity Defence
The essential ingredients of climate necessity defence are not specifically determined but are loosely held to include certain circumstances. It’s crucial to remember that a new legal defence like the “climate necessity defence” would be recognised and accepted based on the legal jurisdiction, the applicable laws, and the local court interpretations. In Washington v. Ward case, an activist while defending its action of cutting down a chain-link fence and shut off tar sands oil flowing from Canada through a pipeline, the plea of Climate necessity was raised. The plea raised can be corroborated by the basic elements required for fulfilling Section 81 of IPC , which are as follows-
a. Imminent Danger
The imminent danger requirement would include the grave human or catastrophic harm that can be caused due to climate change. The US Supreme Court in Massachusetts v. E.P.A. opined that the Environmental Protection Agency’s reluctance to control greenhouse gas emissions would make Massachusetts exposed to “imminent” harm owing to the consequent adverse effects, including sea level rise arising due to climate change. The harm must be reasonably foreseeable and not fictitious in nature. The IPCC Working Group 3 Report titled ‘Mitigation of Climate Change’ highlighted the urgent global action required to tackle the menace of global warming below the internationally agreed target of 2 degrees Celsius in light of population explosion and economic growth, which exceeded the emissions-reducing effects of energy efficiency improvements.
b. Lesser Harm
The Lesser harm element implies that the harm caused by the criminal act must be less than the harm the defendants believed would happen if they didn’t act. UNICEF has gone on to label the climate crisis as a ‘child rights crisis’ as over 1 billion children are at high risk of severe and destructive climate hazards. Moreover, marginalized communities will face the disparate and disproportionate impact of climate change. The “Food Policy Report: Climate Change- Impacts on Agriculture and Costs of Adaptation (2009)” by the International Food Policy Research Institute highlights that climate change is predicted to disrupt global food security and increase child malnutrition by 20% by 2050. The effects on the climate are disastrous and with time become more severe in nature. As Obama described, global warming is “a peril that can affect generations.” The harm resulting from climate change is greater harm and the State’s inaction is partly responsible for amplifying that harm.
c. Causal Relationship
A reasonable nexus has to be established to depict that the protester’s actions would avoid or minimize the harm they sought to achieve. People v. Gray, a New York City air pollution protest case, is a very crucial judgement to allow the defence and for its insightful analysis of the link between civil disobedience and policy reform. The activists must show the efficacy of the civil disobedience movement in lessening the impact of climate change. The defence must also take into account the defendant’s reasonable belief rather than just focusing on whether the object sought to be achieved is successful or not.
d. No Reasonable Alternative
The defendants are required to show that they had no other reasonable options left, other than resorting to civil disobedience. In People v. Pena, the court noted that “the more imminent the peril, the less likely the existence of an alternative course of action”. In Washington v. Brockway, famously known as the Delta-5 case, the defendants failed to convince the court that they had no other lawful avenues to address climate change other than blocking oil trains. Nonetheless, they were praised by a judge as “part of the solution” to climate change and described as “tireless advocates of the kind that we need more of in this society”. It must be understood that the possibility of further legal action should not completely preclude the claim of climate change necessity.
V. Emerging Need for Climate Necessity Defence in India
The National Environmental Policy 2006 acknowledges that human-induced climate change will have adverse effects on India’s rainfall patterns, ecosystems, water resources, coastal and marine resources, and also lead to an increase in the range of several disease vectors. Despite their decade-long struggle, the Gond community, indigenous to Chhattisgarh, continues to fight against coal mining in the Hasdeo Aranya reserve. They attempted to block two new coal mines which have caused extensive environmental damage. However, the government chose to turn a blind eye to their pleas and approved three new mines.
In another incident in Kallamoli, a coastal village, women from 26 neighbouring coastal villages formed a human chain, while fishermen picketed the construction site, staging a protest against the construction of a coal jetty. Despite their attempts to address the issue through district administrations, their efforts were fruitless, leaving them with no choice but to protest. Meanwhile, the Odisha government’s move to approach the Supreme Court to annul the 2013 gram sabha resolution which opposed the bauxite mining in the Niyamgiri mountain range, further alienated the Adivasi local community.
The Indigenous population who are on the frontline to preserve the climate and most dependent on nature for their survival, bears a disproportionate impact of climate change. For them, the climate is intricately woven into the fabric of their cultural, social and economic existence. These people often face the punitive measures of the law and become victims of the tactics applied by the powerful industry owners, police and enforcement agencies. The Odisha Government’s agreement to mine bauxite in Niyamgiri hills is a living example to this. The rights of the forest dwellers are overlooked and they are threatened with the arrests which clearly demonstrates the continuous conflict between big multinational companies and local communities. Adding to their struggles is the recent amendment to the Environmental Protection Act of 1986, a change that removes the punishment of imprisonment for environmental offenders. This amendment would foster a “pollute and pay” attitude among the big corporations.
VI. Challenges Ahead and Conclusion
The judiciary often misconstrues the climate change necessity defence on several fronts. Firstly, (mis)application of the imminence requirement; secondly, they undervalue the significance of the “reasonable alternative” in relation to the necessity defence. Thirdly, they fail to recognise the differences in harm between climate change and nonviolent civil disobedience. Fourthly, refusing to acknowledge the value of utilising civil disobedience as a means to combat the detrimental effects of climate change.
In the case of R v. Basto, the activists were accused of aggravated trespass for allegedly breaking into Heathrow Airport’s northern runway and building a structure that caused planes to be halted for many hours. Each defendant, according to the judge, believed that “climate change is already killing people all over the world as a result of hurricanes, droughts, floods, and other disastrous weather-related events” and that “unless something is done to minimise carbon emissions climate change that is likely to be catastrophic to mankind will occur.” In brief, what is reflected in this case from the defendants is a current scientific time frame (which is “already causing deaths”), followed by future and policy time frames (which both state that catastrophic climate change “will occur”). Thus, the argument presented by the defendants was rejected by the court.
The court in the United States v. DeChristopher noted the climate change effects to be “harm or evil that may or may not occur is insufficient for purposes of the necessity defence.” However, it is crucial for the court to consider that the causal connection doesn’t mean that the effect must be immediate, rather the actions might accelerate the climate protection measures ultimately reducing the effects of climate change. A strict requirement of direct causation would rule out the efficacy of the civil disobedience movement.
The climate necessity defence’s main thrust is that “corporations and the government have acted so little, or have been so irresponsible, that maybe the laws that protect their practices and that are designed to protect private property have to be suspended, or ignored, or overcome at some point, because of the severity of the [climate] crisis.” If there existed a particular “climate necessity defence,” it may be used in cases where people or organisations took steps to save the environment or lessen the effects of climate change—even if they did so in violation of the law on paper. Through this defence, activists can effectively put the government on trial ensuring greater transparency and accountability. If such a case is persuasive, it would give impetus to the discussions surrounding climate change and convey a strong message on the worth of an individual initiative.
The authors are students at National University of Study and Research in Law, Ranchi and National Law University, Delhi.
NUALS Law Journal 