At the ‘International Council for Bird Preservation’ conference held in Tokyo in 1960, it was decided that each country should designate a ‘National Bird’. Dr Salim Ali, the ‘Birdman of India’, recommended the Great Indian Bustard (Ardeotis nigriceps or GIB) as the ‘National Bird’ of India. Ali’s fervent hope was that such recognition would lead to urgent nationwide effort to save the endangered bird from impending doom. This sound advice was not taken; some said that it’s name could be misconstrued. The peacock (Pavo cristatus) was declared as the National Bird in 1963. The graceful GIB lost to the more numerous and colourful peafowl.
On March 21, 2024, this critically endangered bird – numbering less than 150 individuals – has provoked the Supreme Court to expand citizens’ constitutional right to life and equality to include the right to be free from the adverse impact of climate change. The public interest litigation filed by eminent conservationist Dr M.K. Ranjitsinh sought a series of directions to protect the GIB from extinction. In 2021, the Supreme Court passed directions restricting and regulating power lines and renewable energy projects in an area of 99,000 sq km in the states of Rajasthan and Gujarat, in order to protect the GIB.
The Supreme Court’s latest ruling on the protection and conservation of the GIB (M.K Ranjitsinh Versus Union of India), while modifying directions passed in the earlier judgment, has implications beyond the facts of the case. Chief Justice D.Y. Chandrachud – writing for a three-judge bench comprising Justices J.B. Pardiwala and Manoj Mishra – in his characteristic eloquent style, has expanded the contours of environmental jurisprudence: from the oft-repeated polluter pay principle–precautionary principle–public trust doctrine to the larger arena of climate justice, environmental inequity and gender justice.
For long, environmental disputes have been looked at from the narrow prism of an ‘environment versus development’ debate; in the latest judgment, the court went beyond this binary and sought to address some of the contentious issues from both constitutional and international legal perspective and principles. While there are concerns about the over-emphasis on the benefits of renewable energy in the judgment, in many ways it is precedent setting – nationally as well as globally – and is likely to an effective tool for securing environmental justice in a world that is becoming increasingly hotter and drier. Some of the key elements of the judgment require a deeper analysis.
Climate change and human rights
One of the important aspect of the judgment is the acknowledgement that there is a need to address the issue of climate change from a human rights perspective. Climate change discourse in India – both at the governmental level and civil society – tend to focus disproportionately on technology, statistics and techno-legal jargon and rarely on rights. The key stakeholders in this discourse have been the industry, bureaucracy, think-tanks and financial institutions. Impacted and ‘at risk’ communities, grassroots groups, forest dwellers, fisherfolk, panchayats and local bodies rarely figure as ‘stakeholders’ in these ‘high level’ policy discussions. The judgment highlights that given the the “intersection between climate change and human rights, it is imperative for states to address climate impacts through the lens of rights”. In addressing the issue of rights, Justice Chandrachud, highlights the close relationship between Article 14 (Right to Equality) and Article 21 (Right to Life):
“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.”
The example quoted is important given that it focuses on those suffering due to the changing climate: It is the poor who suffer most because of their inability to afford coping mechanisms. In citing this example, the court in a way highlights (without actually stating it) that climate change is not only about the semantics of international relations, the North versus Global South distinction/disparity or complex calculation about carbon space, but one that has an impact on the daily existence of people. This humanising aspect has generally been absent in climate discourse.
Need to move away from coal-fired power plant
It is significant to note that a joint application was filed by the environment ministry, power ministry and the renewable energy ministry to modify the earlier direction contained in the judgment of the Supreme Court (April 19, 2021) on significant restriction on renewable energy projects in GIB habitats in Rajasthan and Gujarat. One on the principal grounds on which the modification was sought was that there is a need to encourage renewable energy, otherwise the alternative source of energy – coal-fired power plants – could cause pollution. The application of the Union government reads:
“The coal fired power which would be used to replace the untapped energy from renewable sources in the concerned area would cause pollution.”
The court, taking into account the submissions of the Union government, highlighted the main reason for the need to shift from coal to solar:
“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.
It is imperative for India to not only find alternatives to coal-based fuels but also secure its energy demands in a sustainable.
rampant air pollution emphasizes the need for cleaner energy sources like solar to combat pollution caused by fossil fuels.
declining groundwater levels and decreasing annual rainfall underscore the importance of diversifying energy sources. Solar power, unlike coal, does not strain groundwater supplies. [Para 42]
Thermal power plants would also adversely impact the health of the local populace. [Para 52]”
It is significant that court has taken judicial notice of the government’s stand that coal-fired power plants have an adverse impact on public health and the environment, and impact the economic security of the nation. This marks a fundamental shift in the government’s approach towards coal as fuel for energising the nation.
Climate legislation and climate litigation
The judgment takes note of the lack of specific domestic legislation to deal with climate change. India’s response in addressing climate change issues has been confined to the policy sphere and lacks legal backing. The court notes :
“India’s international obligations and commitments in the present case (detailed in the preceding segments of this judgment) have not been enacted in domestic law. Regardless, the Court must be alive to these obligations while adjudicating writ petitions which seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India’s international commitments as well as the right to be free from the adverse effects of climate change.”
Clearly, the Supreme Court felt it necessary to emphasise that courts cannot be mute spectators in the absence of specific national climate legislations in providing relief to those impacted by climate change. In providing relief to those affected by climate change, Justice Chandrachud identifies the crucial role that litigation can play in securing climate justice:
“Climate change litigation serves as a pivotal tool in advancing rights-based energy transitions and promoting energy justice, intertwined with human rights principles.” [Para 44]
The court took note of the varied litigations globally around climate change, specifically, the decision of the Dutch Supreme Court in State of the Netherlands v. Urgenda Foundation, which recognised that climate change not only impacts the right to life but also the right to private and family life. The decision of the Committee on Rights of Child (Sacchi, et al. v. Argentina, et al) where it observed that “while climate change necessitates a global response, individual states retain accountability for their actions or inactions concerning climate change and their contribution to its effects”. The Supreme Court foresees similar cases coming up before the courts in India:
“These cases, all instituted and decided in the past decade, indicate the type of concerns which will travel to the courts in the next few years.” [Para 50]
The court’s recognition of the role of litigation in addressing climate change is crucial given the recent approach of the government in viewing environmental litigation as an hindrance in the path of economic development and energy security. In many instances, the government has viewed environmental litigation as nothing short of a criminal act. The judgment should serve as a wake-up call since there can be no climate justice unless there is access to judicial remedies. At the same time, courts and tribunals have to reorient themselves and move away from the straitjacketed approach to viewing environmental issues from the narrow confines of existing environmental statutes to one based on the constitutional right to be free from the adverse effects of climate change.
The future of the GIB: The environment versus conservation conundrum
The judgment has met with some criticism from those who see it as a watering down of the previous directions with respect to protection of the GIB. The main concern is the over emphasis in the judgment of the benefits of renewable energy without considering the social and environmental concerns arising out of large-scale aggressive promotion of renewable energy. There is no doubt that renewable energy is not totally free from its share of environmental and social problems. For one, large scale renewables include acquisition of land, restriction of traditional community access to land and consumption of water. The full life cycle analysis will also show that there are critical issues of extraction (of lithium) as well as disposal of solar panels.
Above all, renewable energy projects involving hundreds of acres still do not require any environmental and social impact assessment and are generally outside the purview of environmental laws. Though some states do require consent under the Air and Water Act, it remains inadequate, ad-hoc and fragmented. This has led to public opposition against unregulated and unrestricted growth of renewal energy. It is imperative to therefore keep in mind that everything is not green with green energy.
However, the judgment does dwell at length about the reason for the reviewing the blanket prohibition.
With respect to the removing the general prohibition on new overhead transmission in ‘priority’, potential’ and ‘additionally important’ areas, the court was of the opinion that ‘there is no basis a general prohibition in regard to the installation of transmission lines for the distribution of solar power in an area about 99,000 square kilometre’. Yet, while agreeing with the reasons for not having a general prohibition, the Supreme Court for the first time had to move away from the usual ‘environment versus development’ debate to the ‘environment versus conservation’ conundrum. In addressing this issue, the court adroitly navigates the slippery path of ‘balancing’ by making it clear, in a departure of a sort, that it does not intend to disturb the balance:
“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.”
Despite the enormous powers under Writ Jurisdiction, Justice Chandrachud adds a word of caution so far as judicial decisions on technical issues are concerned:
“Those who are equipped and trained to assess the various facets of a problem which is litigated before the Court must be consulted before a decision is taken. If this is not done, the Court may be in danger of passing directions without a full understanding of the issue in question. Consequently, in the absence of evidence which forms a certain basis for the directions sought, this Court must be circumspect in issuing sweeping directions.”
This cautious approach is imperative, given that in the petition filed before the Supreme Court by the petitioner, the first prayer itself sought an extensive list of directions which ought to be issued by the court to deal with the declining population of GIB:
“A. Issue directions to the respondents to urgently frame and implement an emergency response plan for the protection and recovery of the GIB, including directions for the installation of bird diverters, an immediate embargo on the sanction of new projects and the renewal of leases of existing projects, dismantling power lines, wind turbines, and solar panels in and around critical habitats, installation of predator-proof enclosures in breeding habitats, implementation of a population control program for dogs, provision of no-grazing zones and restricted grazing zones in critical and semi-critical habitats, a prohibition on the use of insecticides and pesticides within a radius of 5 km of critical habitats and a prohibition on the encroachment of grasslands in and around critical and semi-critical habitats;”
Clearly, restriction on power lines and renewable projects are just one of the various directions sought in the petition for protection of the GIB. Justice Chandrachud rightly observes that the directions sought may very well be within the domain of policy and the “court must be circumspect in issuing sweeping directions”. The court therefore felt that a blanket prohibition on overhead transmission lines needs to be recalled and an expert committee should be appointed to ensure that conservation efforts are grounded in evidence and inclusive of diverse perspectives. The expert committee has to determine the scope, feasibility and extent of overhead and underground electric lines in the area identified as priority areas. Further, it has been granted liberty to recommend any further measures that are required to enhance the protection of the GIB. This may include identifying and adding suitable areas beyond the designated priority zones if deemed crucial for the conservation of the species.
Conclusion
In his seminal work Development as Freedom (1996), Professor Amartya Sen states that freedom should be the primary element of development: “the only acceptable evaluation of human progress is primarily and ultimately enhancement of freedom”. In his words, the main purpose of development is to spread freedom and its ‘thousand charms’ to the unfree citizens.
In his subsequent work The Idea of Justice (2009), Sen argues that a theory of justice must include ways of ‘reducing injustice and advancing justice’. Justice Chandrachud, in a way, amalgamates the two ideas and recognises that citizens will remain unfree unless they are ‘free from the adverse impact of climate change’ and climate specific legislation, litigations focused on climate change and a shift from coal to cleaner energy are crucial, not only from the environmental perspective, but also in furthering human rights and reducing inequality.
One can hope that the judgment will help shape law, policy and action in way that ensures that not only are citizens free from the adverse impact of climate change, but even the last remaining GIB can fly free without being entangled in power lines.
Ritwick Dutta is an environmental lawyer and founder of Legal Initiative for Forest and Environment -LIFE.
