In fighting the good fight against the adverse effects of climate change, the Supreme Court needs to ensure that other species are not sacrificed at the altar of anthropocentrism, writes Prakhar Pandey.
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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.
A quagmire of competing claims
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.
Framing the issue as a binary choice between renewable energy and biodiversity preservation oversimplifies the complex environmental challenge.
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’s 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.
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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’s 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.
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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.
What makes this a landmark judgment?
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.
The judgment may inadvertently end up prioritising human rights over biodiversity conservation.
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.
Potential of climate litigation in India
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.
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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.
For example, how will the courts now adjudicate the issue of equality and climate justice for people most affected by impacts such as heatwaves, sea-level rise, crop loss and so on?
In a petition filed in 2018 seeking heatwaves to be considered on a par with other disasters as per Article 14, the Supreme Court opined that the petitioner should “submit a representation to the competent authority, which shall contain suggestions” to combat the heatwave. Other petitions that have sought the inclusion of climate claims in the environmental decision-making processes have faced similar fates.
Advocate Ritwick Dutta has pointed out that this judgment’s recognition of coal as a problematic fuel rather than a sacrosanct energy source is crucial for advancing India’s energy policy in alignment with global climate commitments.
However, the true test of this judgment will be whether the government maintains this stance when faced with decisions regarding coal-fired power plants. If it does, this judgment will have significant implications, potentially binding not only on the Supreme Court but also high courts, the National Green Tribunal, and other relevant authorities.
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The consistent rulings of various Indian courts in the environmental domain are supported by constitutional principles that have enabled them to assume a creative and proactive role through innovative jurisprudence. And this is precisely where the opportunity to augment environmental and climate jurisprudence lies— in using imaginative over evidence-based legal approaches.
Until now, the courts have not recognised the unequal distribution of climate impacts.
Apprehensions remain about what kind of cases can be brought before the courts using the rights-based framework under Articles 14 and 21. Climate Change Litigation Databases prepared by the Sabin Centre for Climate Change Law, Columbia Law School show the range of climate litigation across the globe, which includes access to information, environmental crimes and false green advertising, among others.
The potential of this judgment will depend on the kind of claims that will be allowed before Indian courts by invoking the existing environmental laws and regulations. It would also be interesting to see if this new framework can support claims under other legal and regulatory frameworks covering aspects such as consumer protection, green buildings, energy conservation, corporate responsibility and so on.
Lack of an umbrella regulation governing climate change
A major roadblock that remains, as also pointed out by the Supreme Court in this case, is that there is no umbrella legislation regulating climate action and safeguarding protection of rights against adverse impacts of climate change.
However, as Ritwick Dutta has also said, it is important to understand that even though this judgment has articulated a fundamental right, it cannot be read as a piece of legislation. While the recognition of this fundamental right can go a long way in enabling a new legal framework from which to view the climate crisis, the judgment cannot be expected to become the guiding force behind the development of renewable energy and other climate action in India.
A significant part of the judgment is simply a reiteration of the submissions that were made by the government in their affidavit and, therefore, must not be read as the opinion of the court.
Despite being envisaged under Article 253 of the Constitution and being part of India’s binding obligations, the harmonisation of international climate agreements and treaties into the domestic legal framework has not been done.
Currently, India’s climate action relies on the eight core missions of the National Action Plan on Climate Change (NAPCC), the State Action Plans on Climate Change (SAPCCs), and other intermittent policy instruments.
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These instruments, however, lack enforceability and are often discretionary, leading to inconsistent implementation across states. NGT has also held that these action plans are policy matters and cannot be enforced. Therefore, it is important to make climate action plans enforceable, akin to the National Clean Air Action Plan, which is backed by the Air (Prevention and Control of Pollution) Act, 1981.
Many critical areas of intervention lie within the purview of state governments, encompassing sectors such as electricity distribution, urban transport, agriculture and building regulations. Without a legal mechanism to ensure alignment between state and national goals, these interventions remain malleable and lack enforceability.
This marks a significant development in the country’s environmental and climate jurisprudence and has stirred positive anticipation with regard to the potential of rights-based climate litigation.
Moreover, several market-based schemes such as carbon credits and green credits, which aim to reduce carbon consumption through offsetting mechanisms, have been implemented, but they do not focus on achieving systemic change. There have been several instances of greenwashing where such credits have been found to be fake and have brought about no positive impact.
Thus, there is a pressing need for the development of a comprehensive framework on climate change to transform policy into enforceable laws for both mitigation and adaptation. It is the only way of ensuring a robust and cohesive approach to climate action in India.
The side-effects of good deeds
While this judgment captures various ways in which climate concerns disproportionately impact vulnerable populations and ecosystems, it fails to recognise the numerous ways in which renewable energy projects can also perpetuate environmental and social injustices.
Moving forward, we need to question whether future climate justice pathways are limited to carbon reduction through the use of renewable energy. Will all social justice considerations need to be accommodated within the ambit of such renewable energy projects?
Experts contend that India has turned to an old colonial policy to find land that can be converted to renewable energy parks. There are several databases that have documented injustices caused by ‘green’ projects which are superficially environmentally conscious and aim to accelerate climate targets as per our Nationally Determined Commitments (NDCs).
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.
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The Global Atlas for Environmental Justice (EJAtlas) 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.
The long-standing problem of attribution
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.
Attribution is crucial for substantiating legal cases. Experts have stressed the importance of scientific evidence for climate-related claims, noting recent European rulings on government accountability. The World Meteorological Organization has also reported that Asia was the most disaster-hit region in 2023, underscoring the urgency of reliable attribution data.
The potential of this judgment will depend on the kind of claims that will be allowed before Indian courts by invoking the existing environmental laws and regulations.
The complexities in attributing certain events to climate change call for improved historical data and modeling infrastructure. The Supreme Court’s ruling empowers citizens to address climate-related rights violations, though it may lead to unsuccessful cases if attribution is not done properly.
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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 policymaking.
Where do we go from here?
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.
Moving forward, we need to question whether future climate justice pathways are limited to carbon reduction through the use of renewable energy.
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.
