Spatiality, Climate Rights, And Uprooted Homes

*Shashank Tripathi & Manasi Dubey

Introduction

Environmental rights are often invoked within the constitutional frameworks to establish rights against environmental pollution and effects of climate change. However, these frameworks fail to equitably account for fragile ecologies and communities bearing the greater burden of climate change due to their closely-knit relationship with the local environment. Sonam Wangchuk, during his ‘climate fast’ for securing constitutional protections for Himalayan region, highlighted this concern saying, “What people fear is that without these (constitutional) protections our culture and our way of life — which has been finely tuned over thousands of years to survive in these mountains, in balance with the resources and the environment — we won’t be able to sustain it.” He effectively highlighted the disparate impacts of extractive ecological governance on sensitively placed people: a phenomenon that alters landscapes that are an element of their lives, livelihood, culture, and dignity throughout India.

While the Supreme Court (“SC”) interpreted the Right to Life under Article 21 expansively to include the ‘right against adverse effects of climate change’ (“Climate Right”) in M.K. Ranjitsinh and Others v. Union of India (“Ranjitsinh”), the normative climate change discourse is dominated by narratives that lack the lived experience and specific vulnerabilities of the Adivasis and Forest-Dwelling Communities (“FDCs”). Scholars have constantly highlighted how FDCs’ space-associated identity has led to the creation of a socio-cultural identity highly co-dependent on ecological actors. However, environmental constitutionalism has continuously given birth to rights as silos devoid of a framework responsive to these space-associated relations between people and the environment. 

In an attempt to conceptualize the ‘Climate Right’, this essay firstly, traces the disparate adverse effects resulting from the existing environmental framework’s unresponsiveness to the geographical underpinnings of climate change and lack of regulation based on the limits, norms, and values reflected in the lived-in experiences. Secondly, to corroborate the lack of a spatial normative framework, it relies on both precautionary (environmental impacts assessments), and compensatory (mitigation regulation and compensatory afforestation) laws and elucidates their impact to make a case for identifying spatial justice as an inseparable element in complete realization of the Climate Right. It also analyzes the displacement of FDCs as an outcome of the non-spatial understanding of their forest rights and argues how the Ranjitsinh judgment has provided for an ecocentric approach that necessitates a spatial justice approach to environmental regulations to achieve its objectives.

Climate Change as a Spatial Challenge

Edward Soja conceptualized ‘spatial justice’ as an intentional and focused emphasis on the spatial or geographical aspects of justice and injustice involving fair and equitable distribution of socially valued resources (like land) and the opportunities to use them in space. He held it to be a product of a critical approach to ‘social justice’ from a spatial perspective which holds that there is always a relevant spatial dimension to justice. For instance, Soja relies on the urban restructuring of Los Angeles as a case study of interdependence between the spatial positioning of the marginalized class and perpetuated inequality. He argues that geographical placement of a community is both an outcome and a cause of its access to various resources and thus, affects its interaction with social justice. Therefore, socially marginalised communities are prone to be geographically placed in spaces that have lower access to resources and vice versa.  

How then might spatial justice approach climate change when it appears to be an entirely different problem? Approaching climate change as consequential damage arising from extractive activities limits its conceptualization to outcomes including disasters, extreme weather, sea level rise, etc. However, this approach fails to account for displacement, cultural erosion, and othering that is usually determined by local spatial factors. Conversely, when assessing the causes of climate change in the absence of a spatially responsive framework, the damages caused to biodiversity (and forests) are dealt with in silos overlooking their impact on locally placed communities, and their role in conservation. Thus, both causes and outcomes of climate change manifest within geographies that have distinct identities, and require spatially responsive constitutional framework for effective climate justice. 

While the communities’ socio-cultural formation depends largely on their geographical placement (social spatiality), the geography that informs them has its distinct ecological features (ecological spatiality). Therefore, the introduction of spatiality within the climate change discourse helps reframe the issues of climate justice involved in environmental governance and provides a more nuanced direction to new-age climate frameworks in identifying vulnerable subjects in society and ecology. 

Spatial Blindspots in Impact Assessment

Way back in 2002, CocaCola faced protests against its bottling plant in Plachimada, Kerala which was alleged to be polluting and diminishing a water source that the local Adivasis depended on. While the plant discontinued its operations in 2005 due to the continued struggle of the Adivasis, the expert committee constituted to examine the impacts of the operations in its report revealed that 80% of the Adivasis were landless and relied on common ownership of water resources for their daily and agricultural requirements. As a result of the unsustainable extraction of water by the company (0.8-1.5 Million Litres/Day), the area became arid and uncultivable leaving long-term effects on the local ecology and lifestyle. While climate change has emerged as a global phenomenon, the birth of its disparate impacts on FDCs is an outcome of similar large-scale long-term landscape disturbances manifesting locally. The Environmental Impact Assessment (“EIA”) admittedly has been the sole mechanism for the prevention of such projects that cause environmental damage, and deciding compensatory restoration/mitigation liability, and accordingly requires examination.

The process of EIA statutorily encompasses both ecological considerations and public consultations and prima facie suffers no spatial setback. Nonetheless, as Christina Woods aptly describes the problem of incongruous impact assessments, “The majority of agencies spend nearly all of their resources to permit, rather than prohibit, environmental destruction.” It manifests as dual failures; first, as a failure to adequately account for the affected biodiversity leading to unaccounted damage to migration routes and native species, and second, as the ineffective inclusion of affected stakeholders from marginalized populations leading to an accumulation of land by the company while overlooking due award of rights in common spaces to FDCs. While the former posits an implementational challenge concerning due procedure, the latter is usually an outcome of conflicting provisions of environmental statutes. 

A 2012 research case study to assess the inclusion of biodiversity within the EIAs revealed that “in most cases, biodiversity-related information is either missing or described in a superficial way.” The Report of the Comptroller and Auditor General of India (“CAG Report”) on Environmental Clearance and Post Clearance Monitoring revealed that out of 352 clearances awarded to various projects (between 2011 to 2015), only 18 of them abided by the plans required for the conservation of flora and fauna post-clearance. Moreover, issues of sectoral misclassification, incorrect depiction of the location of projects, unauthorized felling of trees, and post-facto permits were rampant disregarding due procedure. This is aggravated by EIA’s monolithic framework that has historically acted blind to spatially exclusive warnings about sensitive ecologies like the Western Ghats and the Himalayas which therefore, fails to demarcate areas that are non-suited to intrusion. While isolated studies of failures reveal implementational challenges, they omit to account for its effect on FDCs who lose their homelands to such extractions.

Vulnerability Embedded in Conflicting Rights

The FDCs are primarily dependent on forest produce for their daily employment, livelihood, and income. While EIAs and other mechanisms are usually assessed for their effectiveness and due procedure individually, their structured and repetitive conflicts have caused severe climate-associated damages in the most sensitive landscapes in the country. Displacement induced by climate change and environmental damage is not new for these communities, and their spatial precarity may be traced within a lack of their ‘legitimate’ claim to common ownership of lands in law, and extractive takeover of their spaces marring their cultural associations with the forest landscapes. The Environmental Protection Index 2024, which assesses countries on indicators including climate change mitigation, pollution, and biodiversity protection, ranked India at 176 out of 180 countries revealing a cumulative failure of the framework in scoring considerable mitigation. When coupled with the vulnerability assessment of these communities, this reveals how spatiality makes FDCs more vulnerable than others.

The Intergovernmental Panel on Climate Change defines vulnerability as the net effect of adaptive capacity (socio-economic) and sensitivity/exposure (biophysical) of a community. Communities with greater adaptive capacity and lesser sensitivity are less vulnerable to climate-change-induced effects. Thus, the inference is that the greater the dependence on natural resources for basic amenities and livelihood, the greater would be the risk in case of climate change. The vulnerability manifests in various forms that include loss of access to economic resources (for fishing communities), loss of shelter and shared resilience against extreme weather events, corporate encroachment of commonly owned forest spaces, etc. A part of this is attributable to conflicting awards of rights under different statutes of environmental regulation.

Section 5 of the Forest Rights Act, 2006 (“FRA”) awards the Forest Gram Sabhas with the autonomy to regulate access to community forest resources seemingly ensuring FDCs protection from illegitimate dispossession. However, several backdoor rules such as the 2015 notification in Maharashtra and Madhya Pradesh have enabled private players to override FDCs’ forest rights under FRA and use forest land for commercial purposes without clearances. Similarly, the Forest Conservation Rules, 2022 empower the Union Government to permit the clearing of forest lands for ‘compensatory afforestation’ without necessarily consulting with the inhabitants. This has had a dual effect; first, the retrogression of FDCs’ forest rights under the FRA, and second, the plantation of commercial trees that are usually non-native to the ecosystem and damage landscapes for both local biodiversity and FDCs that depend on natively available resources. Reduced and constrained access to forest resources and land results in greater sensitivity to unnatural weather events and pushes FDCs to a position of heightened vulnerability to climate. They thus are rendered a community dismissed within space by law and constrained to displace within the country due to forced change in their land usage practices, access to resources and aggravated climate vulnerability.

Displacement as Anthropocentrism

The global constitutional jurisprudence is seeing a shift towards recognizing elements of nature as bearers of certain rights. For instance, the Peruvian Supreme Court in its landmark ruling identified adverse effects of climate change on indigenous populations and employed measures to protect nature itself, irrespective of direct human benefit by identifying the symbiotic relation between the two. The Court, through such an approach, expanded the scope of human rights and thus, brought protection of nature for its intrinsic value within the fold of rights, implanting a positive obligation upon the state. Applying this reasoning to the Indian Constitution, Article 48A (state’s duty to protect the environment, forests, and wildlife), which forms part of the non-justiciable Directive Principles, may in effect be made justiciable. 

This shift in the approach of environmental constitutionalism may be seen as one from anthropocentrism to ecocentrism. While anthropocentrism follows the Kantian conceptualization of rights and holds that nature is incapable of holding rights due to its intrinsic inferiority to humans, ecocentrism acknowledges the rights of natural elements and considers human rights as symbiotically related to environmental protection. Accordingly, the Climate Right may be categorized as an ecocentric right that implants an obligation upon the state to prevent adverse effects of climate change and makes Article 48A justiciable, especially in case of negligence by the state leading to damages that aggravate the vulnerability of affected communities.

Place Integrity and Displaced Individuals

Adequate formalization of the climate-change framework requires an intersectional understanding of climate change impacts on FDCs. Their migration is usually shrugged off as the community’s lookout for alternative sources of income and rise in the vertical ladder. This approach, however, undermines the impacts of the lack of landscape protection for FDCs that pushes them to urban spaces where classist and casteist epistemologies dictate their lifestyles. This perpetuates a cycle of vulnerability where an anthropocentric decimation of natural landscapes compels migration/displacement of people who do not necessarily want, or intend to leave and places them in a society where components of their socio-cultural experiences do not exist.

Spatiality in that context, may be seen not strictly as a geographical concept, but one that transcends it. FDCs, despite migration, remain embedded in the space they possess due to their socio-cultural identity. As a global phenomenon, indigenous and tribal populations associate their ‘self’ with specific landscapes and their complex yet intricate relationships with nature. In such a setting, displacement, development, and conservation practices repeatedly delegitimize FDC epistemologies and trample down their liberty to exercise cultural and land rights.

Conclusion

Climate change manifests locally. Its causes have geographical underpinnings. However, the legislation of environmental frameworks from conservation to renewable energy is unaligned with the complexities of social and natural boundaries associated with a place. While the Human-Rights regime associated with Adivasis explores their integration with society, it often takes an individualistic approach that undermines the cultural and social dimensions of their existence. This essay did not attempt to provide a framework but rather attempted to lay down how the Climate Right, as recognized in Ranjitsinh, would require an alternative approach to climate justice. 

Responsiveness to place and socio-cultural dimensions associated with land and climate change is a necessary obligation for attaining substantive equality. The spatial justice framework dismisses the universality of environmental frameworks and pushes for the decentralized understanding of nature, interdependence, and FDCs’ association with it. A spatial framework ensures that, as opposed to being seen as adversaries that need to be displaced, they are seen as necessary participants in attaining conservation. Therefore, the Climate Right as recognized by the SC in Ranjitsinh, for FDCs, translates to right against erosion of their climate-dependent cultural and social norms. It would entail a spatially just assessment of damage, compensation, and liability determination to cater to these communities. As long as the state attempts to address climate change vulnerability through climate financing and other laissez-faire driven frameworks, the law will continue to retrograde FDCs’ rights making them more vulnerable than others.

*Shashank Tripathi is a law undergraduate at the Rajiv Gandhi National University of Law, Punjab and Manasi Dubey is a law undergraduate at the University of Mumbai, Mumbai.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.