Anoop Khajuria
For the first time, the Apex Court of India in its judgment on 21 March 2024, has distinctly recognized the Right of Citizen to be free from the adverse effects of climate change by Article 14 and Article 21 in the Constitution.
It all started with the petition seeking the protection of the Great Indian Bustard (GIB) in SC. The GIB is listed in Schedule 1 of the Wild Life (Protection) Act, 1972 thereby requiring the highest degree of legal protection from hunting. Important habitats of GIB are designated as National Parks or sanctuaries for their better protection. GIB has its habitats mainly spread in the states of Rajasthan and Gujarat. On November 30, while hearing the petitions highlighting the deaths of GIB due to overhead transmission lines coming out from solar power grids, the apex court asked the Government, whether a focused approach, something like Project Tiger could be taken up for saving the critically endangered Great Indian Bustard (GIB).
The directions of the Apex Court to the chief secretaries of Gujarat and Rajasthan were to undertake a complete and comprehensive exercise to find out the length of transmission lines in question and the number of bird diverters required. The Great Indian Bustard during its flight frequently collides because of their poor frontal vision. Installing bird flight diverters on the power transmission lines will increase the visibility among avian species thereby decreasing mortality of this highly endangered species.
The Supreme Court of India has always been concerned with the protection of GIB. In an earlier order in April 2021, the SC had directed the concerned authorities to convert the overhead cables into underground power lines, which is feasible within one year, and that till such time diverters would have to be hung on the existing power lines.
With this background, the SC reserved its judgment of March 21 which has been uploaded recently revealing the maiden judgment. The right to equality before the law and the equal protection of laws under Article 14 and the right to life and personal liberty under Article 21 has been upheld in the decision of SC, putting liability on the actions and the commitments of the state at the National and International level to achieve a scientific consensus on climate change and its adverse effects. Article 14 and Article 21 enunciate there to a Citizen’s right to be free from the adverse effects of climate change. It is important to note that while giving effect to the rights, courts must be well versed with the other rights of the affected communities such as the right against displacement and its allied rights. The judgment has been authored by the Chief Justice of India D Y Chandrachud.
The bench included Justices J B Pardiwala and Manoj Misra who modified the Apex court’s previous order dated 19 April 2021, which had ordered binding directions for undergrounding of high-voltage and low-voltage power lines. However, the Union of India solicited modification of this order, citing the need to balance the issue of protection of GIB with India’s commitment to reduce its carbon footprint. The Union stated that installing solar panels is crucial for India to meet the nationally determined contributions that matter as international commitments. The Apex Court observed that it was best to leave the issue to the domain experts and constitute a committee that would submit a report on 31 July 2024. The Supreme Court also noted that the absence of legislation in India regarding climate change would not mean that,” the people of India do not have a right against the adverse effects of climate change.”
Earlier, it may be recalled that our own Jammu-born renowned environment lawyer and Magsaysay awardee MC Mehta had fought for the right to a clean environment as part of Article 21 of the Constitution which has now been granted.
The court concluded the arguments with the observation to adopt a balanced approach that a blanket direction for undergrounding high-voltage and low-voltage power lines directed by the court earlier would need recalibration. While balancing the 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 becomes necessary to adopt a holistic approach that does not sacrifice either of the two goals at the altar of the other.
(The author is a member of the Asia-Pacific Group of Journalists and Broadcasters on Climate Change.)
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