The one institution which has more or less a torchbearer regarding the discussion on environment is the Judiciary in India though this has been often limited to sometimes if not often failing to see the links between the rights of indigenous peoples and their strong bonds with the environment and its protection. The Supreme Court has largely taken a view of pro-conservation and protection of the environment, and against the damage to the environment.
For instance, the case of Godavarman Thirumulpad vs. Union of India[1]– the order stopping non-forestry activity in forests to the case of Orissa Mining Corporation vs. Ministry of Environment and Forests[2] (as it was called then) that has often been deliberately mis-interpreted by the infamous Forest department officials to the more enlightened order declaring Gram Sabha as a body having a role in safeguarding customary and religious rights of the STs and other traditional forest dwellers, judiciary has been taking a sometimes conflicting, often proactive in taking a progressive view. At a time when the climate change crisis is showing its effects on the most marginalised sections- from heat waves to irregular rainfall-it becomes important to understand how one of the most important institutions of the country is viewing climate change, and its effects on people.
In Virender Gaur v. State of Haryana[3], the Supreme Court had recognised the right to a clean environment. And recently, a three-judge bench of the Supreme Court, led by Chief Justice, D.Y. Chandrachud, in the case of MK Ranjitsinh vs. Union of India has delivered a judgement that will have significant implications for environmental law jurisprudence in the Country, in the decades to come.[4] The court declared that the right to be free from adverse effects of climate change is a fundamental right. In both Virender Gaur and MK Ranjitsinh, the opposing party was the government, wanting to do an act that petitioners opposed due to its effect on the environment. In this article, we will discuss the significance of MK Ranjitsinh v. Union of India, and its implications for environmental jurisprudence in India.
In Virender Gaur, a public space belonging to the municipality was handed over for construction to a third party, by the government. The public opposed the government’s move claiming that the public space was left for the purpose of sanitation and maintenance of hygiene and to allot it to a third party would defeat the purpose for which it was demarcated. The Supreme Court stated as follows:
“Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.”
At the heart of this matter is land-a limited resource that the government wants to be used and the competing public interest which wants the land to be in status quo-as it is in the current state. In a way, the case of MK Ranjitsinh also stems from the same issue.
Facts in MK Ranjitsinh
Great Indian Bustard-the state bird of Rajasthan is on the verge of extinction. In a prior order by the Supreme Court in April 2021, directions were passed restricting the laying of overhead power transmission lines in about 99,000 square kilometres by solar power companies in the states of Rajasthan and Gujarat.[5] The court appointed a committee for assessing the feasibility of laying high voltage underground power lines, and stated that where the conversion of overhead power lines to underground power lines is feasible, such conversion be undertaken and completed within a year. While the court appointed committee implemented the directions of the court, various ministries of the government- Ministries of Environment, Forests and Climate Change; Power; New and Renewable Energy- approached the court to modify the order since the judgement covered more land than what is required for the protection of GIB and the technical impossibility of laying underground high voltage power lines.
In 2024, the court asked the government to file a comprehensive status report on the issue. The government in its updated affidavit stated that the reduction in population of GIBs is not related to power lines, that Union’s international commitments to reduce India’s Carbon footprint is tied to making sure that solar and renewable projects are carried on; transmission lines laid. The government also listed the conservation projects that are in place for the protection of the Great Indian Bustard.
What were the issues?
Simply put, on one side is the issue of conservation of the critically endangered Great Indian Bustard and on the other side is the need to lay overhead power transmission lines as a part of realising the goals to mitigate climate change crisis.
In the April 2021 order, the court ordered a blanket restriction on the overhead transmission lines. The government pleaded for modification of this blanket restriction.
What did the Court say?
The court relied on Virender Gaur vs State of Haryana and on MC Mehta vs Kamal Nath[6] to arrive at articulating a right to be free from adverse effects of climate change. In MC Mehta vs. Kamalnath, the court said that Article 48A[a directive principle stating that the State shall endeavour to protect environment and to safeguard the forests and wildlife of the country] and Article 51-A(g)[A fundamental duty stating that it shall be duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures] have to be considered in the light of Article 21 of the Constitution. It had stated that any disturbance of the basic environment elements like air, water and soil would be hazardous to life within the meaning of Article 21 since those elements are necessary for life.
The court in MK Ranjitsinh stated that the right to equality under Article 14 and Right to Life under Article 21 must be appreciated in the context of decisions of the Supreme Court, the actions and commitments of the state on national and international level, the scientific consensus on climate change and its adverse effects. The court stated as follows in Para 24 of the judgement, recognising the right to be free from 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.”
Having said this, the court also tried to arrive at a balance between two sustainable interests i.e., conservation of a species and renewable power generation and distribution. The court opined that it is necessary to adopt a holistic approach which does not sacrifice either of the two goals “at the altar of the other.”
While it relied on cases like MC Mehta and Virender Gaur to arrive at articulation of Right to be free from adverse effects of climate change, it relied on India’s international commitments such as the Paris Agreement related Nationally Determined Commitments to support the modification of the order, as requested by various minisries. One of India’s NDC is to achieve 50% of cumulative electric power installed capacity from non-fossil fuel-based energy resources by 2030. The court noted the importance of solar power as a renewable energy source.
The court therefore constituted a committee which will have the power to determine the scope, feasibility and extent of overhead and underground electric lines, in the areas identified by the Wildlife Institute of India in Rajasthan and Gujarat, Identification of conservation methods for GIBs in priority areas, Monitoring and Review the implementation etc.
Implications for environment related jurisprudence
The one major difference between Fundamental Rights and the Directive Principles of State Policy is that the former are enforceable, and the latter are not. Although the subject of the environment had only featured in the DPSP and Fundamental Duties, Indian people took the option of Public Interest Litigation to challenge any of the governments’ actions that would have a devastating impact on the environment. With the declaration that the right to be free from adverse effects of climate change is a fundamental right, individual climate change litigation could grow in High Courts and the Supreme Court. The court also acknowledged the climate change related litigation in other countries and stated that those cases indicate the type of cases that will travel to courts in the next few years.
The court also took the route of Articles 14 and 21 to spell out the right to be free from adverse effects of climate change. The court stated that right to equality may also be violated in ways that are more difficult to remedy. It stated as follows, in this context:
“For example, a person living in say, the Lakshadweep Islands, will be in a disadvantageous position compared to person living in say, Madhya Pradesh when sea levels rise and oceanic problems ensue. Similarly, forest dwellers or tribal and indigenous communities are at a high risk of losing not only their homes but also their culture, which is inextricably intertwined with the places they live in and the resources of that place. In India, the tribal population in the Nicobar islands continues to lead a traditional life which is unconnected to and separate from any other part of the country or world. Indigenous communities often lead traditional lives, whose dependence on the land is of a different character from the dependence which urban populations have on the land. Traditional activities such as fishing and hunting may be impacted by climate change, affecting the source of sustenance for such people. Further, the relationship that indigenous communities have with nature may be tied to their culture or religion. The destruction of their lands and forests or their displacement from their homes may result in a permanent loss of their unique culture. In these ways too, climate change may impact the constitutional guarantee of the right to equality”
Interestingly, both Lakshadweep and Nicobar islands have been points of discussion over government’s announcements of reforms and faced criticism over the environmental damage these projects could pose.
Coming back to the judgement, the court’s choice to read the right from both Articles 14 and 21 is a significant development from the last time a right like this was identified. In Virender Gaur, the Supreme Court identified the right to clean environment from Article 21 which guaranteed that no person shall be deprived of his life or personal liberty except according to procedure established by law. In MC Mehta too, the emphasis was on how damage to environment is a violation of Article 21. The court in MK Ranjitsinh also emphasised on the fact that marginalised communities’ right to life and personal liberty is affected more due to climate change related health issues. Thus, this is an additional intersection that the court tried to do, between Environment and Article 14.
Conclusion
While the jurisprudence over this right to yet to develop, the court also noted the lack of a holistic climate change legislation in the country. The court stated, in this context, that a lack of law does not mean that people do not have a right to be free from adverse effects of climate change. This indicates the activist role played by the Supreme Court in one of the most pressing matters of the 21st century.
The court was cautious to state that courts should be alive to other rights of affected communities such as the right to be free from displacement and allied rights while giving effect to the right to be free from adverse effects of climate change.
This caution indicates the type of cases that the court sees coming to it. Right to be Free from adverse effects of climate change is a universal right, and when juxtaposed against say, a person’s right to stay at their traditional dwelling place without having to relocate to make way for a solar park or to want compensation- the courts will have to take a balanced approach rather than siding with the climate change right.
The judgement also faced some criticism for its blanket acceptance of governments’ claims on energy transition, and for ignoring the jurisprudence on rights of nature and climate action led by indigenous peoples and other local communities. While the implications of this approach taken by the court deserves a separate examination and analysis, one thing is clear- climate change is now very much part of the emerging jurisprudence on environment and more accountability seeking petitions could emerge out of this fundamental right.
(The author is part of CJP’s legal research team)
[1] (1997) 2 SCC 267
[2] [2013] 6 SCR 881
[3] 1995 (2) SCC 577
[4] 2024 INSC 280
[5] I.A. NO.85618 OF 2020 in WRIT PETITION (CIVIL) NO.838 OF 2019
[6] (1997) 1 SCC 388
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