Indian courts must increasingly rely on foreign jurisprudence when dealing with climate-linked commercial disputes, Supreme Court judge Justice KV Viswanathan said on Saturday.
The theory that foreign jurisprudence is not welcome is over, he said.
He was speaking at the 6th Full Meeting of the Standing International Forum of Commercial Courts (SIFoCC) in New Delhi during a hybrid session connected with a panel in Rio de Janeiro.
"What’s really emerging is that this problem has to be addressed collectively… it’s time now to say that light and knowledge should be welcomed from all sources.” he said, citing observations made in the Hamilton Law Lectures by Lord Hope.
Justice Viswanathan said the climate crisis presents shared challenges that require judicial systems across jurisdictions to draw from each other rather than operate in isolation.
He said climate related litigation was increasingly reshaping boundaries between private and public law. What were once conventional commercial disputes have begun to implicate constitutional principles and rights.
“We have the fundamental rights. Courts cannot shy away from this. They will have to take the bull by the horn,” he opined.
Justice Viswanathan explained that India has already moved toward recognising environmental concerns as part of fiduciary duties of company directors. Enhanced sustainability reporting and stricter audit obligations imposed on large companies pointed to a shift in statutory expectations.
He noted that claims of breach of fiduciary duty have long been evaluated with deference to managerial decision making. Courts typically accept that directors acted within a reasonable range of choices.
“Hitherto, inquiry was skewed in favour of directors… Courts would not second guess decision making. But now, with the dispute acquiring a larger dimension, the thresholds will be higher and scrutiny deeper,” he said
International climate jurisprudence will carry more than persuasive value and domestic courts will not hesitate to examine or invalidate municipal law that conflicts with constitutional protections or global obligations, he stated.
He noted that the Supreme Court has recognised the right to be free from the adverse effects of climate change under Article 21. The Court has also stepped in on multiple occasions to impose positive obligations in the absence of legislation.
Singapore Chief Justice Sundaresh Menon, who also attended the event, said that domestic courts cannot ignore international and supranational climate related developments.
He noted that even in dualist systems, courts are expected to interpret domestic law in harmony with international norms. He also referred to developments in Singapore and the United Kingdom showing that fiduciary duties of directors may extend to considering the interests of stakeholders beyond shareholders where their actions cause climate related harm.
Brazilian judges Justice Ricardo Villas Boas Cueva and Judge Cesar Cury, and academics Professor Diana Setzer and Professor Patrícia Perroni, discussed the influence of regional and international environmental decisions including those of the Inter American Court of Human Rights and the International Court of Justice on domestic climate adjudication.