Editor’s Note:
Article 51-A(g) of the Indian Constitution goes on to state that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.” Similarly, Article 21 also emphasizes upon the Right to Clean and safe environment as has been enunciated in a catena of judgments and the development of environmental jurisprudence in India. This was the central theme which finally encapsulated in the form of a judgment delivered by the Apex Court marking a way forward- towards sustainability coupled with an anxious yet pragmatic approach towards conserving our ever changing environment.
INTRODUCTION
On 21st March 2024, the Supreme Court of India declared the right against adverse effect of climate change to be a fundamental right under Article 21[1] and Article 14 of the Constitution of India.[2] This is a landmark judgment which indicates the Court’s positive stance on protection of environment and the importance of mitigating effects of global warming. The main point of contention in this case was how to balance protection of a critically endangered bird species (the Great Indian Bustard and Lesser Florican) with development of renewable and eco-friendly sources of energy. It was a conflict between two important causes and it was up to the judges to ensure due consideration was given to both.
FACTS OF THE CASE
A writ petition was filed before the Supreme Court under Article 32 of the Constitution of India,[3] for taking action to protect the Great Indian Bustard and Lesser Florican, both of whom were facing the threat of extinction. The Court noted that the Great Indian Bustard had been classified as ‘critically endangered’ by the International Union for Conservation of Nature (IUCN), the only higher classifications being ‘extinct in the wild’ and ‘extinct’. It was thus essential to take steps for their protection. The Bustard is found majorly in Rajasthan, and has recently faced a rapid decline in its already diminishing population. One of the causal factors for this decline was identified as overhead transmission lines. The bird’s poor vision and big size lead to their collision with transmission lines.
The petitioner sought implementation of an emergency plan for the protection and recovery of the Bustard, and suggested measures, which included dismantling of power lines, wind turbines, and solar panels in and around critical habitats as well as a stop on the sanction of new projects and the renewal of leases of existing projects in these areas. It was prayed that an Empowered Committee be set up to oversee the implementation of the Court’s orders.
PREVIOUS JUDGMENT AND ITS IMPACT
Vide its order dated 19th April 2021, the Court imposed restrictions on the setting up of overhead transmission lines in territory identified as critical habits, stretching around 99,000 square kilometers. These overhead lines were sought to be replaced by underground power lines on a case-to-case basis. The court directed that in cases where found feasible, the overhead lines shall be converted to underground power lines within a year. However, on 17 November 2023, the Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy, who had been respondents in the case, prayed for modification of the directions issued in 2021.
They cited India’s international commitments for switching to renewable sources of energy, such as UNFCC, and contended that the Court’s judgment adversely affected these commitments. The area which had been identified contained a large proportion of the solar and wind energy potential of the country, and using other sources of energy, such as fossil fuels, would lead to pollution. Moreover, the Bustard actually dwelled in a small part of the area. It was also contended that high voltage power lines could not technically be shifted underground.
After hearing the parties, the Court directed the Union to place before it a comprehensive status report proposing a plan considering both the need for preservation of the Bustard and the need to ensure the development of solar power keeping in mind India’s commitments at the international level. In pursuance of this order, a report was filed. It gave other causes for the decline in population of Bustards and submitted that the decline began in the 1960s, before power lines existed in the area. It reaffirmed that the Court’s order of voltage lines underground was not practical, and highlighted the importance of solar installations in meeting international commitments of reduced carbon footprints.
THE JUDGMENT
The Court, while pronouncing its judgment, referred to India’s commitment under international conventions such as the Kyoto Protocol, UNFCCC, COP 21 and others. It emphasized the importance of increasing reliance on renewable energy sources, and the effect of such reliance on curbing air pollution and improving public health. Transitioning to renewable energy was held to be a strategic investment in India’s future prosperity, resilience, and sustainability. The impact of the changing climate was also discussed, along with India’s commitments and efforts to control it. It was observed that promotion of renewable energy sources is essential for promoting social equity by ensuring access to clean and affordable energy for all segments of society and thus fostering inclusive growth and development across the nation.
The Court emphasized on the State’s duty and the fundamental duty of citizens under Article 48A[4] and Article 51A respectively,[5] to ensure protection of natural world. Relating these duties to Articles 21 and 14 of the Indian Constitution, the Court declared that the right to clean environment and right against the adverse effects of climate change has its source in Articles 21 and 14. Here, the Court relied on M.C. Mehta v. Kamal Nath[6], wherein it was held that Articles 48A and 51A (g)[7] must be interpreted with respect to Article 21. In Virender Gaur v. State of Haryana,[8] the right to a clean environment was recognized under Article 21. The judgment cited the case of Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group[9] in which the Court acknowledged that climate change posed a “major threat” to the environment.
The Court relied on previous rulings in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd[10] and Apparel Export Promotion Council v. A.K. Chopra[11] to highlight the importance of fulfilling international obligations and giving due regard to international conventions, respectively. The Court also relied on climate change rulings in other jurisdictions such as Netherlands[12] Argentina[13] and New Zealand[14] emphasizing importance of combating global warming and the State’s duty to protect its citizens from the effects of climate change.
In its decision, the Court directed the Union and concerned ministries to implement the measures listed by it, which had been mentioned by the Union in its affidavit. These include predator-proof enclosures for the birds, creation of a friendly habitat by restoring grasslands and eliminating unwanted species, collaboration with scientific organisations and others. The directions from the previous judgment were substituted with the new ones which focused on preservation of the Bustards without affecting the development of renewable energy sources.
ANALYSIS OF JUDGMENT
In the past, as recently as a decade ago, climate change was a vague concept and global warming was a distant consequence of industrialization. But now, it is a very real and imminent threat. We are facing shorter winters and longer heats as the temperature of the Earth increases due to global warming. Rains and thunderstorms have increased in intensity, to the extent that roads cave and roofs of airports collapse. There are predictions of coastal cities such as Mumbai being completely submerged in the near future. In light of these circumstances, the Supreme Court’s judgment is a welcome one.
In a time when effects of climate change can be extreme and even life-threatening, protection of citizens against these effects puts a burden on the State to take serious action on the matter. However, there are two sides to every coin. Extending Article 21 to such an extent raises the question of how it can be enforced in practice. What is the ambit of such a right? How severe and direct must the effects of climate change be upon the citizen for him to be able to file a writ petition to enforce his right? Can a person who is unable to go to the office because of heavy rains (caused due to global warming) enforce this right? Can the kin of a citizen who died due to a roof collapse in heavy rains sue the State for infringement of Article 21? These are questions that must be considered before expanding the scope of fundamental rights, especially a right as essential as Article 21, which forms part of the Golden Triangle introduced in Maneka Gandhi v Union of India.[15]
CONCLUSION
The Court’s decision to bring the right against adverse effects of climate change under the ambit of fundamental rights is a welcome decision, though not without its complexities. Regardless, it is the need of the hour that global warming be brought under control and climate change reversed by decreasing carbon emissions and instead increasing trees in the ecosystem. Many treaties and conventions have been signed at the international level in this direction, but it is judgments and legislations at local level that ensure domestic enforcement of the obligations assigned in these agreements. The ambit of Article 21 being extended is a positive step to ensure such enforcement.
[1] India Const. art. 21, amended by The Constitution (Eighty-Sixth Amendment) Act, 2002.
[2] India Const. art. 14, amended by The Constitution (Forty-Fourth Amendment) Act, 1978.
[3] India Const. art. 32, amended by The Constitution (Forty-Fourth Amendment) Act, 1978.
[4] India Const. art. 48A, amended by The Constitution (Forty-Second Amendment) Act, 1976.
[5] India Const. art. 51A, amended by The Constitution (Eighty-Sixth Amendment) Act, 2002.
[6] (2000) 6 SCC 213.
[7] India Const. art. 51A (g), amended by The Constitution (Eighty-Sixth Amendment) Act, 2002.
[8] (1995) 2 SCC 577.
[9] (2006) 3 SCC 434.
[10] (2008) 13 SCC 30.
[11] (1999) 1 SCC 759.
[12] The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Urgenda Foundation, HR 20 December 2019, ECLI : NL : HR : 2019 : 2006, para 2.1
[13] Committee on the Rights of the Child, Sacchi et al. v. Argentina (dec.), 22 September 2021, CRC/C/88/D/104/2019.
[14] Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, [2015] NZSC 107.
[15] AIR 1978 SC 597.
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