Climate Change: A Peril to Child Health & Food Security in Indian Sundarbans

Nupur Toshniwal

Symbiosis Law School, Pune, Symbiosis International (Deemed) University

Introduction

In the past five years, worldwide searches on “climate/eco-anxiety” have increased manyfold, starkly quoted the search engine giant “Google”.[1] This truly does reflect the alarming situation that humankind is facing today. These figures are constantly on the rise. From children to adults, ‘Human Rights’ and ‘Climate Change’ are topics no one is oblivious to. 

When we say ‘Human Rights’, it encompasses several rights, inter alia the right to food and water, education, medical care and shelter as significantly upheld by the Honourable Supreme Court of India in Chameli Singh v. The State of Uttar Pradesh.[2] But let’s talk about ‘Climate Justice’. This term may not be as prevalent as ‘Climate Change’. The latter is attributed to the increasing negative impact of human activity on the surrounding environment, leading to a gradual, but deep shift in the weather conditions and average temperatures of the Earth.[3] What we identify as ‘global warming’ today is a consequence of climate change.

On the other hand, ‘Climate Justice’ propounds that the effects of climate change, such as that of global warming, are experienced disproportionately.[4] Disinvested populations, historically marginalized or underserved communities are the first ones and the ones who face harmful socio-economic and public health impacts the most.[5] They are the most severely affected victims of climate change despite being the ones with the least contribution towards climate change.

From a bird’s eye view, youth and the population of developing countries contribute less to climate change and global warming, given that they produce fewer emissions per capita than major polluting countries. However, it is in these developing countries especially, that the low-income communities, indigenous population, people with disabilities, children and the elderly are impacted the most due to climate change leading to rising temperatures, low air quality, deprivation in access to food and water and waning shorelines, etc. Thus, we see that basic ‘Human Rights’ such as the right to food and water are infringed especially for those having fewer resources to handle the same.

Therefore, this article sheds light on the breaking topic of ‘Climate Justice’ and ‘Human Rights’, by analyzing how ‘Climate Change’ affects certain strata of society more than others, in terms of ‘deprivation of food security’, with special reference to a case study of the Sundarbans, in India. Furthermore, solutions that can be implemented to curb the same have also been proposed, emphasizing the State and the Judiciary’s role in this sphere.

The Case Study of the Indian Sundarbans Delta

The Sundarbans in India are mangrove forests prone to recurrent climatic shocks.[6] During the colonial period despite the climatic odds, people began settling in the Sundarbans.[7] However, the British Raj commenced deforestation in this zone opening the window for storms, cyclones and environmental extremities to hit one of the largest mangroves in the world.[8] The mangroves would act as a natural shield against such extremities, but with increased deforestation, this zone became vulnerable to environmental hazards.

Even today, as we speak of global warming and rising sea levels, the ecosystem of the Indian Sundarbans is being hampered and so is the human inhabitation in this region.[9] The livelihood of those especially run by mangrove-dependent activities is at stake.[10] Not only this but there is also a threat of a significant decline in blue carbon reserves.[11] Studies reveal that by 2050, almost  2,286 hectares of mangroves will be lost from the Indian Sundarbans Delta,[12] which in turn shall aggravate internal displacements and population migration from this region. Studies further reveal that by 2050 a substantial portion of the landmass of the Indian Sundarbans Delta will have submerged, uprooting a vast majority of the population.[13] This is a testament to the aggravating instability and disruption in the availability of food, ease of access and utilization.

The ghastly impact of Climate Change on food security, particularly in this region, is not hidden today. The majority of the population’s livelihood in this region is dependent on traditional agro-fishing.[14] But the uncertainty in sustaining a livelihood from the same, given the erratic climatic episodes has affected the population’s purchasing power, forcing them to switch to a less nutritional diet to survive.[15] It is worse for the population residing in the geographically remote regions in this delta, especially the socially marginalized population, who suffer more than their mainland counterparts, given that they are unable to efficiently act on the changes as they lack the necessary skills and resources for alternatives.

Amongst others, the children in this region are severely being affected, so much so that it has resulted in child stunting[16] therein.[17] Not only this, but the figures indicating underweight children and stunted children all over India are startling.[18] Even the urban population in Bihar, Madhya Pradesh, Karnataka, and Maharashtra have a proportionately high figure of children who are stunted.[19] If the urban population is itself suffering from the impacts of climate change, despite having proportionately more access to resources, it would be needless to state what would be the plight of the population in the Indian Sundarbans region.

The clock is ticking and the population of the Indian Sundarbans is at a higher risk, especially the children. Without implementing active measures today, to mitigate the adversities, this heritage region of India will face irreparable losses.

The need for ‘Climate Justice’ and enforcement of the basic human right, i.e., the ‘right to food’, and not only the right to food, but the ‘right to nutritious food’ is felt more today, than ever.  It must be understood that the right to food also encompasses access to nutritious food.

Therefore, in the following part of this literature, we shall delve into the role of the State in ensuring access to nutritious food.

The Obligation of the State to Ensure Access to Nutritious Food

Renowned professor Henry Shue, of The University of Oxford, in his insightful research work, in the “Judicial Review, Socio-Economic Rights and the Human Rights Act” emphasized the “tripartite duties model” for enforcement of all human rights.[20] He states that primarily three obligations ensue upon the State, from human rights breaches. The primary obligation is ‘to respect’. This means that the State shall not take any measures preventing access to adequate food. The secondary obligation is ‘to protect’. This signifies the responsibility of the State to prevent any encroachment by others on the right to adequate food. Lastly, the tertiary obligation is ‘to provide’. This signifies the State’s responsibility to facilitate and strengthen access and utilization of resources to ensure a livelihood, including food security, provided directly to an individual, including the victims of natural calamities and other disasters.

Whereas it is realized that the State party can only fulfill its obligations, subject to the availability of resources however; the minimum core obligations of the State ought to be fulfilled in a way that ensures at least a significant number of the population has access to food security State.

Now; when the State falters in performing its obligations, it opens the gate for judicialization. This refers to the process of individuals seeking relief from appropriate adjudicatory bodies, to remedy their violated right.[21]

Therefore, in the following part of this literature, we shall discuss the role of the Judiciary in remedying the infringement of the right to nutritious food.

The Role of the Judiciary in Granting Access to the Right to Nutritious Food

The Honourable Supreme Court of India, in its landmark decision, vide Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others,[22] held that the ‘right to life’ as guaranteed under Article 21 of The Constitution of India, 1950 not only, includes the right to live with human dignity but also, includes the right to bare necessities inter alia the right to adequate nutrition. This reflects the adjudicatory leadership of the Courts of Law and their creative jurisprudence.

Furthermore, in People’s Union for Civil Society (PUCL) v. Union of India,[23] the Hon’ble Supreme Court of India addressed ‘food security’ and explicitly established it as a constitutional human right. This case stands as a historic one in the books, whereby through continuing mandamus, the Honourable Court retained its jurisdiction over the implementation of its Orders, till the final disposal of the case. In fact, this case displays a one-of-a-kind procedural innovation, where the continuing writ of mandamus, the framework for implementation of the Orders, within a specified time frame, the Commissioner appointments and the policy regime prove how the Courts can be innovative in crafting remedies for the enforcement of the right to food.[24] This case further also paved the way for the enactment of the National Food Security Act of 2013.[25] 

Thus, the belief of the public in litigation as a recourse to enforcing and implementing rights is reinstatedre-instated.

This leads us further to discuss the developments in Litigating Climate Justice and Human Rights to provide a solution to the impediments faced by the population in the Indian Sundarbans Delta.

Way Forward to Safeguard the Population in the Indian Sundarbans Delta

In drawing reference to the ‘tripartite duties model’ for enforcement of all human rights, it is clear that the minimum core obligations on the part of the State have somewhat not been fulfilled, given the statistics and reports of child stunting and loss of access to nutritious food and food security in this region. Therefore, the plight of such individuals, who are at the helm of loss of livelihood and food security must be brought to the notice of the State. Having said that; it is also realized that litigating such issues is not a viable solution in the first instance. However, to draw the attention of the State inspiration can be drawn from ground movements and campaigns initiated by students and local communities.

For instance, #I AM A CLIMATE WARRIOR CAMPAIGN is one such initiative of the forest-dwelling communities, projecting their struggle to control their land and conserve forests and its resources, which are at risk owing to climate change.[26] An initiative as this opens the gate for legal mobilization in the future. Prima facie, the strategic potential of intervention beyond the doors of the Court must not be underestimated. In fact, this presents a new opportunity for undertaking a litigation impact assessment.[27] This process helps in gauging the strategic potential of a particular case.

This is to say that, tomorrow if a case is filed before a Court of competent jurisdiction, pertaining to the Indian Sundarbans Delta and the lack of food security and the increase in child stunting in this region, this sort of litigation impact assessment will help in understanding the impact of the trial on the local population, indigenous and marginalized communities residing in this region and its consequential effects, for tackling which, alternatives can be devised. For instance, the ban on deforestation in this region or efforts to prevent its degradation may certainly increase blue carbon reserves and improve the livelihood of those dependent on traditional agro-fishing, which in turn shall improve their purchasing power, enabling them to switch to a nutritious diet. However, the consequential effect would entail loss of trade and development and potential widespread unemployment, amongst other effects. Therefore, keeping in mind the consequential effects, the judiciary is bestowed with the responsibility of balancing the interests of all stakeholders, to ensure climate justice.

Yet another innovative approach in this sphere would be to pass Quia Timet Action injunctions. To explain the same, just as the judiciary is empowered to take suo moto cognizance of such impending cases, a recent example of which is the case of the waste disposal along the Mumbai shoreline,[28] similarly, the judiciary may also take suo moto cognizance of the Indian Sundarbans Delta case and pass an injunction against any future harm that is apprehended. This in essence is a “Quia Timet Action injunction” which is passed to prevent any further imminent and substantial damage apprehended, from ecologically threatening acts, such as deforestation, at the hands of the State or any other party.[29]

Interestingly, going beyond the tenets of civil liability, a new legislation in Belgium and the proposed European Union Directives may further change the game for future climate litigation worldwide, whereby the concept of ‘ecocide’ is gaining traction, under criminal law.[30] This has certainly opened the room for debates in the context of climate litigation, on environmental protection and criminal law.

However, on the flip side, the adjudication of socio-economic rights, by Courts of Law, is also subject to criticism under the garb of ‘judicial overreach’. One may argue that Courts may soon enter the policy domain, infringing the power of the Legislative wing, as against the doctrine of separation of power. Nevertheless, it is pertinent to understand that ‘food security’ and protection of the ‘right to food’ is guaranteed by the Constitution of India, 1950 and falls within the ambit of judicial review. Therefore, the more pressing question would be to address the extent of such judicial review exercised by Courts of Law.

Conclusion and Suggestions 

A comprehensive list of strategies to safeguard the population of the Indian Sundarbans Delta, especially in their fight against loss of livelihood and food security, leading to various issues such as child stunting, has been discussed at length. Although it is difficult to predict the viability of these strategies as yetyet, however, it certainly does pave the way for the State and the Judiciary to address such pressing issues and take prompt action with the help of these strategies, further contributing to the development of a more nuanced jurisprudence.

It is strongly suggested that the State must prima facie fulfill its obligations as per the tripartite duties model, as propounded by the renowned professor Henry Shue, of The University of Oxford. Furthermore, a litigation impact study must be undertaken, in light of various climate change and climate justice campaigns and movements. Furthermore, the Courts may take suo moto cognizance of such issues, exercising creative remedies, such as that of Quia Timet Action injunction. It is also suggested that such escalating issues be viewed from a lens of criminal liability.

A new form of adjudicatory leadership may be formed with interaction between Courts, local bodies and citizens to effectively implement human rights, such as that of ‘food security’ and achieve climate justice.

[1] Lucy Gilder, Climate change: Rise in Google searches around ‘anxiety’, BBC (Nov. 22, 2023), https://www.bbc.com/news/science-environment-67473829https://www.bbc.com/news/science-environment-67473829. 

[2] Chamoli Singh v. The State of Uttar Pradesh, 1996 2 SCC 549.

[3] BBC News, https://www.bbc.com/news/science-environment-24021772https://www.bbc.com/news/science-environment-24021772  (last visited Oct. 11, 2024).

[4] Daisy Simmons, What is ‘climate justice’?, Yale Climate Connections (Oct. 11, 2022, 2:23 PM), https://yaleclimateconnections.org/2020/07/what-is-climate-justice/https://yaleclimateconnections.org/2020/07/what-is-climate-justice/.  

“Yale Climate Connections” is a news service initiative of the Yale School of the Environment, to help one understand the reality of climate change and what one can do about it.

[5] Id. at 1.

[6] Upasona Ghosh and Shibani Bose, Climate change: a threat to child food security in the Indian Sundarbans, Future Health Systems Issue Brief 1, Institute of Development Studies (2018), https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081.

[7] Moitrayee Sengupta, A Triple Crisis in the Indian Sundarbans, Sylff Association (Oct. 11, 2024, 7:23 PM), https://www.sylff.org/news_voices/28796/https://www.sylff.org/news_voices/28796/.

[8] Id. at 2.

[9] United Nations Environment Programme (UNEP) and Convention on the Conservation of Migratory Species of Wild Animals (CMS), Fact Sheet on the Sundarbans and Climate Change, UNEP/CMS Secretariat (Oct. 13, 2024, 12:52 PM), https://www.cms.int/en/publication/fact-sheet-sundarbans-and-climate-changehttps://www.cms.int/en/publication/fact-sheet-sundarbans-and-climate-change. 

[10] Pritha Datta, Bhagirath Behera and Dil Bahadur Rahut, Climate change and water-related threats in the Indian Sundarbans: food security and management implications, 40 Int. J. Water Resour. Dev. 323, 334 (2024).

[11] ‘Blue Carbon Reserves’ is a term used for sequestration, i.e., atmospheric carbon absorption, done naturally by coastal and marine ecosystems.

[12] Jayanthi Marappan, Duraisamy Muthusamy, Kabiraj Sabyasachi, Selvasekar Thirumurthy, Samynathan Muthusamy, Akshaya Panigrahi and Moturi Muralidhar, Are the Sundarbans, the World's largest mangroves region under threat? — An ecosystem‐based geospatial approach to assess changes past, present, and future in relation to natural and human‐induced factors, 34 Land Degrad. Dev. 125-141 (2023).

[13] Pritha Datta, Bhagirath Behera and Dil Bahadur Rahut, Climate change and water-related threats in the Indian Sundarbans: food security and management implications, 40 Int. J. Water Resour. Dev. 323, 334 (2024).

[14] Upasona Ghosh and Shibani Bose, Climate change: a threat to child food security in the Indian Sundarbans, Future Health Systems Issue Brief 1, Institute of Development Studies (2018), https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081.

[15] Id. at 3.

[16] ‘Child stunting’ is a terminology used to refer to a substandard ratio of weight-to-height.

[17] Upasona Ghosh and Shibani Bose, Climate change: a threat to child food security in the Indian Sundarbans, Future Health Systems Issue Brief 1, Institute of Development Studies (2018), https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081https://opendocs.ids.ac.uk/articles/report/Climate_Change_a_Threat_to_Child_Food_Security_in_the_Indian_Sundarbans/26483956?file=48259081.  

[18] Susmita Dasgupta, David Wheeler, Md. Istiak Sobhan, Sunando Bandyopadhyay, Ainun Nishat, and Tapas Paul, Coping with Climate Change in the Sundarbans: Lessons from Multidisciplinary Studies 27 (World Bank Publications 2020).

[19] Malancha Chakrabarty, Climate change and Food Security in India, Issue Brief No. 157 Observer Research Foundation (ORF): New Delhi, India (2016),

https://www.orfonline.org/public/uploads/posts/pdf/20230523125345.pdfhttps://www.orfonline.org/public/uploads/posts/pdf/20230523125345.pdf.  

[20] Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Hart Publishing, 2007).

[21] Hiranmayee Mishra, ‘The Food Must Reach the Hungry’: Lessons from Judicial Enforcement of Right to Food in India Global Jurist (2024).

[22] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Others, AIR 1981 SC 746.

[23] People’s Union for Civil Society v. Union of India, Civil Writ Petition No. 196 of 2001.

[24] Supra note 21 at 5.

[25] Id. at 5.

[26] Arpitha Kodaveri, Climate Change Litigation in India: Its Potential and Challenges. Chapter 20 In C. Rodríguez-Garavito (Ed.), Litigating the Climate Emergency: How Human Rights, Courts, and Legal Mobilization Can Bolster Climate Action 374 (Cambridge University Press 2022).

[27] Id. at 6.

[28] Bar and Bench, https://www.barandbench.com/news/bombay-high-court-suo-moto-cognizance-garbage-dumping-mumbai-shorelinehttps://www.barandbench.com/news/bombay-high-court-suo-moto-cognizance-garbage-dumping-mumbai-shoreline (last visited Oct. 15, 2024, 10:17 PM)

[29] Elizabeth Spencer and Chris McGrath, Currents of Change in Climate Litigation in Australia, 47 Wm. & Mary Env’t L. & Pol'y Rev. 121, 122 – 144 (2022). This relief was sought in an Australian case of Sharma v. Minister for the Environment (2021) FCA 560 and it initially succeeded at trial but was subsequently overturned on appeal in appeal.

[30] Joana Setzer and Catherine Higham, Policy Report on Global trends in climate change litigation: 2024 snapshot, Grantham Research Institute on Climate Change and the Environment, LSE 1, 50 (2023), https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2024/06/Global-trends-in-climate-change-litigation-2024-snapshot.pdfhttps://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2024/06/Global-trends-in-climate-change-litigation-2024-snapshot.pdf.