We need judicial balancing of climate rights and bio-diversity conservation
By Prakhar Pandey
A recent Supreme Court judgment affirming the “right to be free from adverse effects of climate change” as a fundamental Constitutional right has sparked a noteworthy debate. This landmark decision sits at the intersections of the urgent imperatives of biodiversity conservation, human rights and climate action. Central to the controversy is the conservation of the Great Indian Bustard habitat, which has been compromised by overhead power transmission lines.
This analysis will delve into the complexities of this ruling, its implications for environmental law, and its potential to shape future climate litigation in India, emphasising the intricate relationship between conservation efforts, sustainable development and the protection of marginalised communities.
The Supreme Court judgment in M.K. Ranjitsinh & Ors. versus Union of India & Ors. originated from a 2019 writ petition seeking the preservation of two critically endangered bird species— the Great Indian Bustard and the Lesser Florican— both of which face severe threats of extinction due to various anthropogenic factors.
Despite numerous conservation efforts, the populations of the Great Indian Bustard and Lesser Florican have continued to decline, remaining a significant cause for concern. Although both species are afforded the highest degree of legal protection and included in many conservation programmes, there has been no significant positive impact on their dwindling numbers.
In its Order dated April 19, 2021, the Supreme Court gave directions restricting the deployment of overhead power transmission lines in an area of 99,000 square kilometres and undergrounding of the overhead transmission lines in areas relevant to the Great Indian Bustard.
Solar and wind energy companies highlighted that it may not be technically and economically feasible to underground transmission lines in the entire area. The court then mandated that all low-voltage power lines in critical Great Indian Bustard habitats must be laid underground and existing ones converted, while high-voltage power lines were to be technically evaluated on a case-by-case basis for possible underground conversion.
On November 17, 2021, the Ministry of Environment, Forests and Climate Change (MoEF&CC), the Ministry of Power (MoP), and the Ministry of New and Renewable Energy (MNRE) filed an application (IA No 149,293 of 2021) seeking modifications to the abovementioned Order on the grounds that the implementation of this Order would be detrimental to the power sector.
The three ministries jointly argued that this would hamper various energy transition initiatives being undertaken to move away from fossil fuels, thereby also affecting India's international commitments under the Paris Agreement.
It was in this context that the Supreme Court decided to reflect upon and modify its 2021 Order. In doing so, it attempted to take a balanced approach between human rights, sustainable development and ecological preservation. However, this decision to reevaluate the feasibility of undergrounding power lines in Great Indian Bustard habitats deviates from previous directives of the court.
The Supreme Court's latest modifications have been critiqued on the grounds that the ruling lacks empirical evidence and disregards the precautionary principle, potentially setting a troubling precedent in environmental jurisprudence. The judgment's emphasis on balancing conservation and development appears flawed, as it conflicts with established policies and evidence regarding the risks associated with overhead power cables and the resulting biodiversity loss.
Moreover, framing the issue as a binary choice between renewable energy and biodiversity preservation oversimplifies the complex environmental challenge. Despite the judgment's emphasis on the necessity of renewable energy and the importance of balance, the judgment may inadvertently end up prioritising human rights over biodiversity conservation.
In a recent discussion on the judgment, environmental lawyer Ritwick Dutta pointed out that it was also perhaps one of those rare occasions where three ministries, all with such distinct objectives and functions, came together and were in consensus that this case should not only be explored from the lens of conservation of the Great Indian Bustard but from the larger climate goals of the country.
Relying on this, the Bench led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud drew attention to the ambitious climate targets India has set for itself and how energy transition is a key strategy in the country fulfilling its climate obligations.
Firstly, while adjudicating the collective plea for modification of the previous Order, the Supreme Court stepped away from the core issues raised in the case and recognised the “right to be free from adverse impacts of climate change” as a fundamental right by interpreting it under the constitutional provisions of Article 21 (Right to Life and Personal Liberty) and Article 14 (Right to Equality).Secondly, the court also emphasised the duties of the State and its citizens by citing Articles 48A and 51A (g) and through this linkage opined that the adverse impacts of climate change have a direct bearing on the quality of life of the citizens and the State's responsibility to protect them.
Until now, environmental jurisprudence in India had always relied on the bedrock of Article 21 which has led to the recognition of several environmental rights as part of the right to life. This judgment, however, has departed from existing precedents by extending this recognition to Article 14. This is an essential development because Article 14 is not just about equality— it is also concerned with protection from arbitrary action by the State.
Until now, the courts have also not recognised the unequal distribution of climate impacts. They neither focused on differential vulnerabilities and adaptive capacities existing within the country nor did they interlink it with constitutionally guaranteed fundamental rights, especially under the framework of the right to equality. Thus, this judgment marks a significant development in the environmental and climate jurisprudence of the country and has stirred positive anticipation with regard to the potential of rights-based climate litigation.
While the judgment is an extraordinary development for the advancement of climate litigation in India and across the world, it is equally necessary to recognise that several limitations exist in current systems and structures. Only a few climate cases have reached the judiciary in India, and in almost all these cases, climate has been a peripheral issue in relation to other mainstream environmental concerns such as air and water pollution, forest protection, and so on. Many of the concerns highlighted in the judgment, particularly with regard to disproportionate impacts of the climate crisis such as extreme weather events, water shortages, health impacts and food security, are superficial add-ons to the climate mitigation projects that have historically received approvals.
Based on the larger technocratic understanding and narrative of climate change, the early solutions that have been designed and implemented have also been mostly technical and have not focused on social systems. They were lauded when they were proposed but have resulted in several unintended consequences. This judgment is a significant opportunity to navigate these limitations and adapt to create better frameworks. The golden triangle of the Constitution of India (Articles 14, 19 and 21) has served as an important tool to envision an inclusive and just society and to bridge the gap between ideals and reality. It would also be pivotal in climate litigation, but a lot will depend on how the courts address rights-based claims against the direct and indirect impacts of climate change.
A quick scan of the Land Conflict Watch Database shows 93 ongoing conflicts arising out of renewable energy projects and 105 conflicts arising out of forestry and conservation projects. The Global Atlas for Environmental Justice (EJ Atlas) also documents several instances where projects initiated in the name of environmental protection have led to social injustices and exacerbated conflicts. So far, 356 such cases have been reported in India, of which several fall under the category of “Biodiversity Conservation Conflicts”.
The other kind of conflict exacerbated by climate change is human–wildlife conflict. The Supreme Court's anthropocentric view in this judgment, as opposed to the plethora of times it encourages ecocentrism, might set a precedent where animal rights are constantly trampled over for furthering human concerns. In light of the anticipated increase in climate litigation following the Supreme Court's recognition that climate change impacts the constitutional right to equality, there is emphasis on the need to enhance data and modelling for attribution science, which assesses the likelihood of extreme weather events due to climate change.
In this context, legal experts advocate for a comprehensive climate change act to integrate laws, set binding targets, and hold corporations accountable, with robust attribution science being essential for effective litigation and policy-making. Kanchi Kohli, a researcher with decades of experience in the sector, said that one definite positive contribution of this judgment has been to rekindle a public discussion on topics such as climate justice. While these discussions are much needed, advocate Shibani Ghosh has pointed out that judgments and judicial outcomes take a while to bring about major changes in India. Even though it is a landmark judgment, it does not mean that these rights will start getting enforced right away.
The judgment has underscored the intrinsic connection between human rights and ecological preservation and emphasised the State's duty to protect its citizens from climate change. However, it has also highlighted complex trade-offs between climate action and conservation efforts. Overall, this judgment has the potential to reshape India's approach to climate governance, reinforcing the constitutional mandate to protect the environment while balancing development and conservation imperatives.
Courtesy: The Leaflet
