[Umakanth Varottil is Professor of Corporate Law at the National University of Singapore.
This post is a part of the IndiaCorpLaw Blog Symposium on ‘Corporate Law and Climate Change: Indian and Comparative Perspectives’.]
At a global level, litigation has emerged at the forefront in combating the adverse effects of climate change. In one type, claimants assert “horizontal” rights against private actors, such as companies emitting greenhouse gases, based on private law, brought before civil courts invoking tort, property, contract, or corporate law. In another, claimants champion “vertical” rights premised on public law against the state, whose actions are found inadequate in curbing the ill-effects of climate change. From a normative perspective, the private-public law paradigm offers elegant conceptual clarity, but a positive account reveals constant boundary-blurring; my book chapter in Douglas Kysar and Ernest Lim (eds), The Oxford Handbook of Climate Change and Private Law (Oxford University Press, 2026) demonstrates the point using India as a case study.
The chapter finds significant challenges in parties’ ability to bring private law claims grounded in common law in India. Substantive barriers relating to causation and measure of damages, and procedural hurdles such as high litigation costs and inordinate delays in India’s ordinary civil courts, tend to stymie claimants’ efforts; therefore, no known private law claims have arisen in India yet in the realm of climate change.
At the same time, private law concepts and principles have guided India’s higher judiciary while dealing with public law claims relating to the environment, and by extension, climate change: the polluter pays principle, the precautionary principle, the rule of absolute liability in tort law, and notions of stakeholder rights and corporate social responsibility in corporate law. While private law has been inactive on a standalone basis, it has formed the bedrock of public law adjudication on the environment, performing a supporting role rather than playing the lead act.
This dominance of public law is attributable to claimants’ choice of invoking the writ jurisdiction of the higher judiciary, and to judicial elasticity in framing innovative solutions to intractable problems, an approach that has also permeated the specialist National Green Tribunal. This cross-over, while conceptually unsatisfying, holds promise in overcoming barriers to corporate climate litigation: courts have veered away from well-established principles—causation, measure of damages, directors’ duties—yet the reshaping of private law by India’s constitutional courts could lead to further advancements, and novel public law developments could infuse fresh life into private law concepts.
Climate Change and the Private-Public Law Divide in India
In 2024, the Supreme Court in MK Ranjitsinh v Union of India 2024 INSC 280 recognised a “right against the adverse effects of climate change” as a fundamental right under the Constitution, observing that “this right and the right to a clean environment are two sides of the same coin”. A key question is whether this climate right is exercisable only against the state, or also horizontally against private parties such as corporations. In an earlier ruling in Kaushal Kishor v State of Uttar Pradesh 2023 INSC 4, the Supreme Court held that a fundamental right under Article 21 “can be enforced even against persons other than the State or its instrumentalities”, leaving open the possibility that the climate right would be justiciable against errant corporations.
Through a longstanding tradition of public interest litigation, Indian courts have used tort law principles in cases involving the state, enabling courts to award compensation to victims of violations of fundamental rights, in a “merger of constitutional law and tort law”. Private law concepts are thus likely to play a greater role in enunciating horizontal constitutional claims against the state, to which corporations could be added as defendants; standalone private law actions on climate matters are likely to remain the exception rather than the norm.
Tort Law in India: Compensatory and Preventive Mechanisms
Tort law could play a crucial role in combating climate change, through a compensatory effect that allows victims to redress losses, and a preventive effect disincentivising greenhouse gas emitters. In India, tort law is replete with substantive and procedural impediments; its inadequacies came to the fore after the Bhopal gas tragedy. The Supreme Court converted these shortcomings into an opportunity by shifting the ground to public law, developing the standard of “absolute liability” in MC Mehta v Union of India 1986 INSC 281, departing from the narrower “strict liability” rule. Absolute liability applies “where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident”, with the “measure of compensation” “co-related to the magnitude and capacity of the enterprise”.
The Court later extended absolute liability in Indian Council for Enviro-Legal Action v Union of India 1996 INSC 237 to formulate the “polluter pays” principle, which “means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation”. A later case in the form of Vellore Citizens Welfare Forum v Union of India 1996 INSC 952 also enunciated the “precautionary principle”, requiring the state to “anticipate, prevent and attack the causes of environmental degradation”, both being declared “part of the environmental law of the country”. In subsequent cases, the Court adopted a flexible approach to compensation, assessing a company’s “magnitude, capacity and prosperity” and, on occasion, appropriating a share of sale proceeds towards a fund for sustainable development.
These principles also received statutory recognition. In 2010, Parliament enacted the National Green Tribunal Act to establish a tribunal, free from the delays of ordinary courts, which must “apply the principles of sustainable development, the precautionary principle and the polluter pays principle” (section 20) and may “provide compensation or relief to the claimants and for restitution of the damaged property or environment”. (section 15(4))
Questions arise about the credibility of this judicial innovation, which may have muddied the doctrinal waters of tort law, but it might also represent a unique window of opportunity in the fight against climate change. Globally, challenges confront tort law: identifying causes of action, proving causation, and determining compensation. The precautionary, polluter pays, and absolute liability principles already constitute causes of action asserting climate duties, so Indian courts need not carve out a new tort. Causation remains difficult, as loss may be attributable to several factors besides a single enterprise’s conduct. On quantification, the Indian Supreme Court has used a “deep pockets” theory, pegged compensation to sale proceeds or project cost, or delegated it to expert committees—an approach critics say often lacks scientific analysis, resulting in “hypothesizing or guess work”.
Procedurally, tort actions before regular civil courts face overburdened dockets and significant delays, whereas litigants before the High Courts or Supreme Court face lower delays and costs, relaxed standing requirements, and less stringent evidentiary rules, a gulf that gives litigants more reason to access public law remedies for climate-related torts than to rely on private law.
Corporate Law in India: Stakeholder Responsibility
Another tool lies in corporate law, particularly directors’ duties. Section 166(2) of the Companies Act, 2013 requires a director to “act in good faith… in the best interests of the company, its employees, the shareholders, the community and for the protection of environment”, treating climate change as an end in itself rather than merely a financial risk. Section 135 further requires large companies to spend a stipulated share of net profits on corporate social responsibility (CSR), including “ensuring environmental sustainability, ecological balance, protection of flora and fauna”, making Indian corporate law stakeholder-oriented.
In MK Ranjitsinh v Union of India 2021 INSC 258, the Supreme Court invoked CSR obligations and directors’ duties, holding that a decision financially favourable but environmentally detrimental may transgress section 166. In a later high-profile private dispute in Tata Consultancy Services Limited v Cyrus Investments Pvt. Ltd. 2021 INSC 217, the Court likewise noted that section 166(2) ordains “a combination of private interest and public interest”.
Contractual Arrangements: Regulatory Nudges
Contract law can address climate change in two ways: climate events may affect existing contracts through force majeure or “change in law” clauses, or contractual mechanisms, often via government regulation, may facilitate a net-zero transition. The Supreme Court has upheld regulations requiring purchase of renewable energy, holding that “larger public interest must prevail over the interest of the industry”, and has relied on the push towards “solar and other renewables” in denying modifications to a power purchase agreement.
The Future of Climate Change and Private Law in India
It is difficult to be entirely sanguine about corporate climate litigation alone fostering India’s net-zero transition, given these constraints and a strong culture of using public law remedies to stimulate social change. Yet private law principles will have an important role in conjunction with public law rather than standalone: private law has supplied intellectual foundations for public law remedies, while public law mechanisms are likely to propel a wider, more flexible interpretation of private law concepts.
The Supreme Court has painstakingly developed environmental jurisprudence by adopting and expanding private law principles in public law cases, which was then statutorily codified in the National Green Tribunal Act, 2010. Given this track record, advancements in climate litigation are likely to emanate more effectively in public law than private law, especially since the Court has recognised horizontal litigation against private actors, offering claimants more opportunity to initiate constitutional claims against greenhouse gas emitters. Private law actions would nonetheless continue to hold some limited sway, drawing heavily on public law jurisprudence that has already stretched the narrow common law of breach of duty, causation, and quantification.
Private law is receiving greater recognition as a tool against climate change. In India, however, it is likely to play a rather unconventional role in corporate climate litigation, given that most advancements in environmental law have occurred in public law, albeit by borrowing heavily from private law concepts. It would nonetheless be imprudent to forsake the utility of private law on its own; it would likely play a greater role in moderating the behaviour of private actors, like corporations, to address ex ante the challenges of climate change. The concepts in tort, contract, property, and corporate law in India have to be re-engineered to be deployed in the mitigation and adaptation of climate risks.
– Umakanth Varottil