ALTHOUGH environmental rights have long been recognised globally, they have undergone particularly notable evolution over the past half-century. India, surprisingly to some, has one of the most sophisticated frameworks concerning State obligations and individual protections, including a robust system for guaranteeing the enjoyment of environmental rights to individuals.
The recent decision by the Indian Supreme Court in Ranjitsinh versus Union of India is groundbreaking as it both recognises environmental rights as absolute and fundamental and offers constitutional protection from the adverse effects of climate change under Articles 14 and 21 of the Constitution of India.
In effect, this protection is broader than most rights recognised by other courts, which have only gone as far as recognising a constitutional right to a clean and healthy environment— something India did four decades ago.
Evolution of law in India
Environmental rights gained traction in India soon after independence in 1947. Much like other countries, a flurry of statutory legislation was introduced to address different aspects of the environment, including the Factories Act 1948, the Wildlife Protection Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Forest (Conservation) Act 1980, the Air (Prevention and Control of Pollution) Act 1981, and the Environment (Protection) Act 1986.
Underpinned by the rationale that affirmative State participation is required to actualise the full enjoyment of individual rights, the notable 42nd Amendment to the Constitution in 1976 introduced Article 48A. The Article provides, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
The rights of individuals vis-à-vis the environment were further fortified through the evolution of jurisprudence from the Supreme Court that recognised and reaffirmed fundamental constitutional rights to a clean and healthy environment.
The recognition of fundamental environmental rights under the Constitution elevated the sanctity and significance of these protections above other previously established rights.
The Supreme Court first recognised the fundamental constitutional right to a clean environment in Francis Coralie Mullin, where it held that the right to life and liberty under Article 21 of the Constitution encompasses “the right to health, clean environment, and basic necessities of life”.
The court’s approach was analogous to that adopted by the Montana trial court in Held versus Montana, which is currently under consideration by the Montana Supreme Court, recognising a “constitutional right to a clean and healthful environment”.
The Supreme Court soon after recognised the right to live in a pollution-free environment in M.C. Mehta versus Union of India and the right to clean air and water in Vellore Citizens versus Union of India. These decisions were pronounced against the backdrop of balancing development needs with conservation efforts.
The importance of these decisions lies in the distinct eminence of fundamental rights in the hierarchy of rights. Since fundamental rights cannot be waived by any person or citizen, they are accorded greater inviolability and provide stronger protection from encroachment than statutory rights.
Duties of individuals and horizontal application
Interestingly, in response to the changing needs of the nation and society, the Supreme Court has increasingly expanded the scope and application of various fundamental constitutional rights to encompass State intermediaries and public sector undertakings.
The courts have also been willing to identify constitutional duties for private parties. For example, in Virender Gaur versus State of Haryana, the Supreme Court clarified that it is “not only the duty of the State but also the duty of every citizen” of India “to protect and improve the natural environment”, reconfirming the existence of private obligations in relation to certain fundamental environmental rights.
Whilst this echoed duties as outlined in Article 51A(g) of the Constitution, which stipulates that “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife”, these provisions are— in themselves— not justiciable.
These non-justiciable duties were reconciled as rights enforceable under the Constitution when the court in M.C. Mehta versus Kamal Nath harmonised Article 48A (State obligation) and Article 51A(g) (individual duty) by confirming that “they must be interpreted in light of Article 21”. However, these rights remained with only vertical application.
Fortunately, more recently, the Supreme Court has construed certain fundamental rights— Article 15 (prohibition of discrimination), Article 17 (abolition of Untouchability), and Article 21 (right to life and liberty)— as enforceable against private parties.
This was a departure from previous jurisprudence that applied a more restrictive reading of ‘State’ and consequently precluded private parties from the ambit of the Constitution. Whilst previously the courts had only been willing to hold businesses and industries accountable under secondary legislation, the Supreme Court has recently reclarified the ability to directly enforce against private entities certain fundamental rights under the Constitution.
In Kaushal Kishor versus State of Uttar Pradesh, the court observed, “[I]n so far as fundamental rights against non-State actors is concerned, the vertical approach is giving way to horizontal application.” Consequently, it held that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”.
Although there have previously been instances of similar reasoning, for example in Zee Telefilms, the court held that whilst the remedy typically available to aggrieved citizens is vis-à-vis the State, “[B]ut that does not mean that the violator of such [constitutional] right would go scot-free merely because it or he is not a State.” Kaushal Kishor has crystallised the position by reconciling prior contradictory jurisprudence.
Given the harmonisation of environmental duties with fundamental constitutional rights in Kamal Nath, the court’s extension of Article 21 as enforceable against private entities has confirmed a justiciable right with horizontal application.
Underpinned by such jurisprudence, the recent decision in Ranjitsinh has further expanded environmental rights by according to individuals a constitutional guarantee of a “right to be free from the adverse effects of climate change” and therein a fundamental protection from such adverse effects.
Whilst the court in Ranjitsinh did not expressly confirm the application of this newly recognised right against private parties, such enforcement may be implied from the precedent for horizontal application of such fundamental rights, coupled with the need for such enforcement to give full realisation to this right.
M.K. Ranjitsinh versus Union of India
Brief facts
Interestingly, whilst Ranjitsinh established a new constitutional environmental right, it was notably done in obiter as the case actually related to the endangerment and protection of two bird species, the Great Indian Bustard (GIB) and the Lesser Florican, both of which are currently on the verge of extinction.
The court’s jurisdiction was invoked pursuant to Article 32 of the Constitution through a writ petition urging the court to seek from the government (the respondents herein) “an emergency response plan for the protection and recovery” of the GIB in 2019. The petitioners outlined the horrific statistics reflecting the dwindling population of the GIBs that resulted in their classification as a “critically endangered” species.
The petition outlined a series of factors contributing to the rapid decline in the number of GIBs in Rajasthan (their natural habitat), including pollution, climate change, predators, loss of habitat and “overhead transmission lines”. The prayer sought an immediate embargo on new projects with overhead transmission lines, a prohibition on the renewal of pre-existing projects, and the dismantling of overhead lines.
It also sought other relief including the establishment of protected grazing zones, installation of predator-proof breeding enclosures, and the prohibition on the use of pesticides. However, the case developed on the issue of overhead transmission lines.
The Supreme Court’s Order broadly (a) imposed restrictions on the setting up of overhead lines across a large area (~ 99,000 square kilometres); (b) directed the Ministry of Power to constitute a committee to assess the feasibility of underground power lines (including the conversion of overhead lines into underground ones); and (c) directed the installation of bird divertors.
The government (including the Ministry of Power and the Ministry of Environment, Forests and Climate Change) unsurprisingly sought modification of this Order, given the transmission lines were admittingly only partially responsible for the attrition.
Their application claimed the Order has “vast adverse implications for the power sector in India and energy transition away from fossil fuels”, including a potential for pollution as a result of coal fired power required to capture untapped energy and the high-risk and inefficiency of laying high voltage lines underground.
The government also argued that the Order created obstacles to meeting India’s commitments under the Paris Agreement. Subsequently, the government filed additional documents to reiterate the partial, arguably minimal contribution, overhead transmission lines actually have on the decline in the GIB population, underscoring the significantly greater involvement of other factors including “a low birth rate, poaching, habitat destruction and predation”.
In reemphasising their commitments under the Paris Agreement, the government alleged that such directions would seriously impede their mission to combat climate change. Whilst this case has witnessed a colourful evolution with a series of interim applications filed, the matter was finally revisited by a new three-judge Bench of the Supreme Court, with the Chief Justice of India presiding.
The court-mandated committee issued an official report that found that the laying of underground lines was not feasible. The report also confirmed that underground power lines were unable, in any event, to carry the required power. Consequently, the embargo was lifted and the direction for converting overhead lines modified.
The court held that “it has emerged in the course of the hearing that there is no basis to impose a general prohibition in regard to the installation of transmission lines for the distribution of solar power” in the previously defined area.
However, the decision reasserted the value of other measures, including bird divertors, and emphasised the need to combat climate change. The Supreme Court, in conducting a balancing exercise, found that “this is not a binary choice between conservation and development but rather a dynamic interplay between protecting a critically endangered species and addressing the pressing global challenge of climate change”.
Despite the factual matrix of this case, the court extensively engaged with, and passed opinion on, the issue of climate change. Moreover, while doing so, the court expressly created a new justiciable fundamental right enshrined within Article 21 of the Constitution.
Significance of Ranjitsinh
Alongside the reaffirmation of the “right to a healthy environment”, the unprecedented decision in Ranjitsinh recognises the “right to be free from the adverse effects of climate change” as fundamental. Today there is a growing acceptance on the global impacts of climate change but India is notable for according a constitutional protection to individuals suffering from the adverse effects of this phenomenon.
There is a marked difference between conferring a constitutional right to a healthy environment or clean water and offering distinct protection from climate change, the latter of which imposes a positive obligation on the State and, perhaps, even private parties. The decision states: “Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change.
“This is perhaps because this right and the right to a clean environment are two sides of the same coin. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21.”
Article 21 (right to life and liberty)
In relation to life and liberty, the court held that “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised”. The court cited the decision in Virender Gaur, writing that “environmental, ecological, air, water, pollution, etc. should be regarded as amounting to a violation of Article 21” and “therefore, there is a constitutional imperative on the state government not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment”.
The Supreme Court thus reaffirmed both the fundamental sanctity of individual environmental rights along with the State’s absolute obligation to protect and promote such rights. What is interesting about the court’s reliance on Virender Gaur alongside Kamal Nath is that, as discussed above, the earlier decision emphasised the unenforceable duty of citizens to protect the environment and the latter recognised this as a justiciable obligation under Article 21 of the Constitution.