ESG As Soft Law: Can Voluntary Sustainability Norms Be Judicially Enforced In India?
- IJLLR Journal
- May 20
- 2 min read
Sakshi Soni & Vansh Chouhan, Government New Law College, Indore.
ABSTRACT
The Environmental, Social, and Governance (ESG) framework in India has traversed a remarkable arc from purely voluntary guidance to a quasi-mandatory disclosure regime. This paper suggests that, despite the quasi-mandatory characteristics of the current ESG regime in India, there persists an underlying tension between the ability of the legal regime to enforce legally binding disclosures and the inherently voluntary and non-binding nature of the content of the ESG regime. In this context, the research aims to address the following core questions: (i) Does voluntariness provide a sufficient defence for companies against the legal liabilities that may arise from their sustainability commitments? (ii) To what extent and how do the Indian courts turn non- binding ESG principles into justiciable obligations without the guidance of legislators? (iii) What measures lead to the transformation of non-legally binding sustainability principles into legally binding obligations? Based on the analysis of constitutional law, corporate law, environmental law, and case law, especially the landmark judgement in M.K. Ranjitsinh & Ors. v. Union of India & Ors. (2024) and the contemporaneous judgement in Vanashakti v. Union of India (2025), this article concludes that voluntariness is a porous shield. Furthermore, the research concludes that Indian courts have gradually and incrementally transformed adjacent ESG principles into legally binding obligations through four cumulative approaches: legislative adoption and regulation, constitutionalising, and judicial doctrines. The article identifies three primary doctrinal approaches and highlights the gaps in the existing literature on these approaches, especially regarding the lack of a systematic analysis of the judicial doctrine approach in transforming non-binding ESG principles into justiciable obligations. Lastly, this article develops an incremental model of judicial enforceability. The article concludes that, regardless of the existence of a statutory regime concerning climate and an ESG code of conduct and its enforcement mechanism (which is available and increasingly being applied by the courts), there are sufficient statutory and constitutional approaches to making voluntary sustainability commitments legally binding.
Keywords: ESG, Soft Law, Judicial Enforcement, BRSR, Corporate Governance, Climate Change, India, Directors' Duties, Greenwashing, Fundamental Rights, SEBI.
