Intersectionality in climate change litigation in India

Intersectionality, which recognises the overlapping and intersecting social identities that can lead to discrimination, is a crucial lens for understanding the disproportionate impacts of climate change. However, its application within the legal system presents significant challenges.

This article analyses the Indian judiciary's approach to these issues, contrasting it with the European Court of Human Rights (ECHR), identifying potential pathways to enhance the operationalisation of intersectionality in climate justice.

The theory of intersectionality provides a very strong tool to discover how the superimposition of social identities forms unique ways of oppression and discrimination. In climate change cases, this perspective is vital for the acknowledgment of the fact that impacts are not evenly spread; rather, most of them occur because of previous inequalities among groups. The Indian Supreme Court, following judgments such as the MK Ranjitsinh case, has drawn upon this perspective, reading into Article 14 of Indian Constitution. The equality before the law provision takes into consideration various intersecting identities such as gender, place of living, whether urban or rural, education level and profession.

However, the application of intersectionality is not without its problems. In MK Ranjitsinh, the Indian Supreme Court considered the vulnerability of the people in the Lakshadweep Islands due to their dependence on land, their traditional lifestyle and their emotional connect to the land. However, the Court did not consider the large exposure of the urban population due to pollution, crop burning, factories-based pollution, migration and lack of substantive farming. This selective approach raises concerns about “cherry-picking” of victim groups, potentially overlooking other vulnerable populations. This is further complicated by the fact that climate change often impacts humans indirectly and disproportionately affects marginalised sections.

A comparison with the ECHR provides crucial insights into different legal approaches. In cases like Verein Klima Seniorinnen and Others v. Switzerland and Duarte Agostinho v. Portugal, the ECHR dismissed claims based on vulnerability tied to age and gender. The Court focused on the intensity of exposure and direct impact, requiring a higher burden of proof of direct medical conditions. In contrast, the Indian Supreme Court has taken a broader view by including intersectionality as a basis for inequality. This allows a more expansive set of vulnerabilities to be considered in climate litigation. However, while this seems progressive, this approach may result in inconsistent application of the law if a clear framework is not developed.

One of the core challenges is that an unstructured approach to intersectionality can lead to a wide range of competing claims of victim status. In the MK Ranjitsinh case, the Indian Supreme Court decided that solar energy was more important than the protection of the Great Indian Bustard (GIB), which was an economic development decision that also impacts low-income households and women. The Court acknowledged the intricate interface between conservation of endangered species and imperative of protecting against climate change.

However, the protection of the GIB would also have been in line with an intersectional approach because of the impact on grasslands which impact local communities who rely on them for livestock grazing. This shows how intersectionality could in fact set different public goods in opposition to each other and lead to inconsistent decision-making. This lack of clear contours may lead to a conflict situation among various social interests, such as environment protection versus animal welfare or environment protection versus technological development. This lack of clarity might lead to over-burdening the judiciary with litigation. Intersectionality becomes more complicated with sensitive identities like religion, caste and disability, where social dynamics play a significant role.

Effective application can be done only through a deep understanding of intersectionality. For this, we need to recognise that identities such as gender, race, class, age, disability and sexual orientation intersect and then create distinctive experiences of privilege, discrimination and oppression. We need to move ourselves from viewing these categories as separate or in isolation. Along with this, there is need to establish clear criteria for defining vulnerable groups according to their intersecting traits. For this, we should move from the traditional approach of single-axis analysis, which only focuses in single social category (e.g. gender or race). Such an approach fails to cover the complications of social inequalities. Along with these criteria we should also consider personal, cognitive, and behavioural traits that influence vulnerability and resilience. While defining vulnerability, it is very important to consider contextual equity, which means and includes pre-existing conditions that affect access to resources and decision-making.

For an effective framework, a tiered system of analysis is essential for understanding intersectional vulnerability and its disproportionate impacts. This involves a multi-layered approach which examines exposure to harm, sensitivity to harm and adaptive capacity through an intersectional lens. It will help us understand how different parts of a person’s identity affect the risks they face and how they can respond to them. Vulnerability is dynamic and influenced by structural compulsion at local, regional and global levels. Instead of simply ranking who is more vulnerable, we should focus on the reasons and the systems that create and maintain these differences.

The framework should adopt a systemic approach to assess combined inequalities and look beyond surface level disadvantages to understand how different struggles come together, interact and create unique and compounded vulnerabilities. By using an intersectional lens, courts can see the complete view of how climate change impacts human rights.

The judiciary should, therefore, look at alternative approaches that balance climate justice with other social and economic needs. Space must be given to participatory approaches that include marginalised communities and their knowledge. This may be done by involving local government like panchayats, SHGs (self-help groups) and NGOs in decision making. The committee set up by the Court in MK Ranjitsinh case includes mostly bureaucrats, except one NGO. The judiciary should also consider urban vulnerabilities that are not given as much attention.

An intersectional approach to climate justice will ensure that the most vulnerable populations receive adequate protection. However, without some structure and clearer framework, such implementation comes with the risk of inconsistent application and potential exceeding of proper jurisdiction.

Aniket Singh Tomar and Mohit Mishra are LLM students at National Law University, Delhi. Kajal Mishra is a Master's graduate of Delhi University.