Indian Supreme Court Rules on Historic Climate Case
On 21 March 2024 the Chief Justice of India, Dr Dhanajaya Y Chandrachud and India’s Supreme Court handed down a truly historic judgement in a climate case, M.K. Ranjitsinh & Others v Union of India (2024 INSC 280).
The Supreme Court considered
the duties to protect critically endangered species, and biodiversity – in this case the critically endangered Great Indian Bustard and its smaller cousin the Lesser Florican ;
the urgent demands of the energy transition, and India’s international commitments to move to renewable energy; and
the rights enjoyed by citizens of India, under the Indian Constitution and more widely.
The Supreme Court held that the protection of critically endangered biodiversity and the energy transition and moves to renewable energy were both essential. It was not a binary choice between them and the government and relevant stakeholders had to balance their demands and apply both principles. It mandated the establishment of a Committee to address this.
The Supreme Court also ruled that Article 21 of the Indian Constitution, the right to life, was to be read as extended to include “protection against the adverse effects of climate change”.
Great Indian Bustard Prajwalkm
The Context
The Great Indian Bustard and its smaller cousin the Lesser Florican are exceptionally rare and critically endangered bird species, on the verge of extinction, in the deserts of Rajasthan and neighbouring Indian states.
Almost everything seems to be against them. Their habitats are affected by pollution, roads, mining, farming, climate change. Insecticides and pesticides affect their insect foods, overgrazing from cattle threatens the nests where they lay a single egg. Predators include mongooses, monitor lizards and dogs. And to cap it all, there is now evidence of bird mortality from the overhead power lines which criss-cross their rangelands.
In April 2021 this led to an application to the Supreme Court of India which resulted in restrictions being placed on the construction of overhead power lines, and orders to deliver the underground burial of power lines, across an area of over 99,000 square kilometres.
The area affected by this order of 2021 was the desert area which is the main focus of India’s efforts to address the energy transition, by the construction of vast new renewable energy facilities. For example, the Adani Group is reported to have plans to construct the largest renewable energy facilities in the world, five times the size of Paris, at Khavda in the desert in Gujerat. Clearly, the concentration of so much renewable energy generation in one place implies a massive expansion of power lines to the places where the power is needed.
The Indian government therefore applied to the Indian Supreme Court for a modification of its 2021 order, arguing that India’s effective energy transition to renewable energy was essential for international efforts to address climate change, and mandated by a range of international agreements to which India was a party.
It also argued that the original order was technically impossible to meet, would have wide implications for other biodiversity, would stifle development of renewable energy in the key areas such as Rajasthan, Maharashtra and Gujerat, and would be unreasonably expensive.
The Supreme Court took careful note of these representations, and in the end agreed to modify the far-reaching order of 2021. However, after taking specific account of its past decisions on the environment, of international cases citing human rights in the context of climate change, and international climate litigation more generally, the Supreme Court revisited the interpretation of key provisions in the Indian Constitution.
The judgement unequivocally expressed the right to life as including the right to be protected against the effects of climate change. The judgement stated:
“Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Although these are not justiciable provisions of the Constitution, they are indications that the Constitution recognises the importance of the natural world. The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change.
…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.
…Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. The right to health (which is a part of the right to life under Article 21) is impacted due to factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. This is better understood with the help of an example. If climate change and environmental degradation lead to acute food and water shortages in a particular area, poorer communities will suffer more than richer ones. The right to equality would undoubtedly be impacted in each of these instances.”
In compelling terms, the judgement recognised the necessity, and the urgency, of India meeting its national and international commitments to the energy transition and its moves towards promotion of renewable energy:
“It is imperative for India to not only find alternatives to coal-based fuels but also secure its energy demands in a sustainable manner. India urgently needs to shift to solar power due to three impending issues. Firstly, India is likely to account for 25% of global energy demand growth over the next two decades, necessitating a move towards solar for enhanced energy security and self-sufficiency while mitigating environmental impacts. Failure to do so may increase dependence on coal and oil, leading to economic and environmental costs.
Secondly, rampant air pollution emphasizes the need for cleaner energy sources like solar to combat pollution caused by fossil fuels. Lastly, declining groundwater levels and decreasing annual rainfall underscore the importance of diversifying energy sources. Solar power, unlike coal, does not strain groundwater supplies. The extensive use of solar power plants is a crucial step towards cleaner, cheaper, and sustainable energy .”
…The geographical landscape of Gujarat and Rajasthan, characterized by vast expanses of arid desert terrain and an abundance of sunlight, positions these regions as prime areas for solar power generation. The arid climate of these desert regions ensures minimal cloud cover and precipitation, resulting in uninterrupted exposure to sunlight for prolonged durations throughout the year. The consistent and intense sunlight creates ideal conditions for photovoltaic (PV) solar panels to efficiently convert solar radiation into electricity. Additionally, the relatively flat topography of these areas facilitates the installation and operation of large-scale solar energy projects, further enhancing their suitability for solar power generation.
By harnessing this natural advantage, India can significantly reduce its reliance on fossil fuels and transition towards cleaner energy sources. Solar power not only meets the country's growing energy demands but also helps mitigate the adverse effects of climate change by reducing greenhouse gas emissions. “
In a section of the judgement which ought to be widely studied internationally, the Supreme Court declined to ‘choose’ between biodiversity and species protection on the one hand and the need for renewable energy on the other, arguing that both were essential:
“…In addition to the reasons listed above, it is imperative to recognize the intricate interface between the conservation of an endangered species, such as the Great Indian Bustard, and the imperative of protecting against climate change. Unlike the conventional notion of sustainable development, which often pits economic growth against environmental conservation, the dilemma here involves a nuanced interplay between safeguarding biodiversity and mitigating the impact of climate change. It 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.
…While balancing two equally crucial goals - the conservation of the GIB on one hand, with the conservation of the environment as a whole on the other hand - it is necessary to adopt a holistic approach which does not sacrifice either of the two goals at the altar of the other. The delicate balance between the two aims must not be disturbed. Rather, care must be taken by all actors including the state and the courts to ensure that both goals are met without compromising on either. Unlike other competing considerations, these do not exist in disjunctive silos.
Therefore, a dilemma such as the present one does not permit the foregrounding of one of these as a priority, at the cost of the other. If this Court were to direct that the power transmission lines be undergrounded in the entire area delineated above, many other parts of the environment would be adversely impacted. Other endangered species may suffer due to the emission of harmful gases from fossil fuels. Rising temperatures and the attendant evils of climate change may not be halted in a timely fashion, leading to disastrous consequences for humankind and civilisation as a whole. The existential threat may not be averted.”
It is for that reason that the Court mandated the establishment of a committee, drawing on federal and State governments, wildlife protection and conservation bodies and charged it with developing practical solutions which attempted to deliver protection and enhancement of the populations of the Great Indian Bustard while not imposing blanket prohibitions on the use of power lines across whole areas which were not priority areas for habitats.
Conclusions
In this pragmatic balancing act, the Supreme Court of India has set an example for other courts worldwide. The judgement acknowledges the profound importance of biodiversity and action taken to avoid species extinctions. It underlines the urgency of achieving a national and international contribution by India towards the development of renewable energy and the energy transition. It requires conservationists and governments to work together to balance the competing demands of these goals. And it re-interprets the Indian Constitution so as to express the right to life as including the right to be free of the adverse effects of climate change.