In a significant ruling, the Supreme Court has expanded the scope of Articles 14 and 21 to include the “right against the adverse effects of climate change”.
“Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife 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 wildlife, 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,” a three-judge bench presided by Chief Justice of India D Y Chandrachud has said.
“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,” it said.
The Supreme Court has, from time to time, expanded the fundamental rights chapter to include various facets of a dignified existence. However, this is the first time that it has included the “right against the adverse effects of climate change”. Although the bench, which included Justices J B Pardiwala and Manoj Misra, issued the ruling on March 21st, the comprehensive order was only posted online on Saturday evening.
“Despite governmental policy and rules and regulations recognising the adverse effects of climate change and seeking to combat it, there is no single or umbrella legislation in India which relates to climate change and the attendant concerns,” the court noted. “However, this does not mean that the people of India do not have a right against the adverse effects of climate change,” it added.
On the right to a clean environment, the court said: “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 (Article 21) as well as the right to equality (Article 14).”
The Conflict between Protection of Great Indian Bustard vs Transitioning to Clean Energy
The bench presided over a case concerning the protection of the Great Indian Bustard (GIB) habitat from the encroachment of power transmission lines.
On April 19, 2021, the Supreme Court directed restrictions on the establishment of overhead transmission lines spanning approximately 99,000 square kilometers. Additionally, it proposed the conversion of overhead low and high voltage lines to underground power lines.
Following this, the Ministry of Environment, Forests, and Climate Change, along with the Ministry of Power and the Ministry of New and Renewable Energy, petitioned the Supreme Court for a modification of its directives. They argued that India had made international commitments regarding the shift to non-fossil fuels and emission reduction. Furthermore, they emphasized the substantial solar and wind energy potential within the specified area. The feasibility of burying high voltage power lines underground was also questioned.
Acknowledging these concerns, the bench granted the request, citing various practical challenges such as technical complexities, land acquisition hurdles, and exorbitant expenses associated with implementing the initial order. Writing on behalf of the bench, the Chief Justice also underscored the significance of climate change jurisprudence and emphasized the imperative to harness renewable energy sources, particularly solar power. Moreover, he emphasized the necessity to strike a balance between conserving the GIB and safeguarding the environment as a whole.
“A blanket direction for undergrounding high voltage and low voltage power lines of the nature that was directed by this Court would need recalibration,” the court said. It set up a nine-member committee of experts to “assess the feasibility of undergrounding power lines in specific areas, considering factors such as terrain, population density and infrastructure requirements”. It also asked the committee “to complete its task and submit a report to this court through the Union Government on or before July 31, 2024”.
The court pointed out that India aimed to achieve an installed renewable energy capacity (excluding large hydro) of 175 GW (Gigawatts) by 2022, a goal that signified the country’s commitment to clean energy adoption, and the future goal is 450 GW installed capacity by 2030.
“To achieve these targets, India has implemented various policy measures and initiatives to promote renewable energy investment, innovation and adoption,” it said, adding that the Centre’s affidavit in the case highlighted how India’s commitment to transition to non-fossil fuels is not just a strategic energy goal but a fundamental necessity for environmental preservation. “Investing in renewable energy not only addresses these urgent environmental concerns but also yields a plethora of socio-economic benefits,” it said.
“The promotion of renewable energy sources plays a crucial role in promoting social equity by ensuring access to clean and affordable energy for all segments of society, especially in rural and underserved areas. This contributes to poverty alleviation, enhances quality of life, and fosters inclusive growth and development across the nation. Therefore, transitioning to renewable energy is not just an environmental imperative but also a strategic investment in India’s future prosperity, resilience and sustainability,” the bench said.
Spotlight on Relationship between Climate Change and Human Rights
“Of late, the intersection between climate change and human rights has been put in sharp focus, underscoring the imperative for states to address climate impacts through the lens of rights,” the bench said. Stating that “states owe a duty of care to citizens to prevent harm and to ensure overall well-being”, it added: “The right to a healthy and clean environment is undoubtedly a part of this duty of care. States are compelled to take effective measures to mitigate climate change and ensure that all individuals have the necessary capacity to adapt to the climate crisis”.
Importance of Harnessing Solar Energy
“It is essential to harness power from sources of renewable energy in Rajasthan and Gujarat to meet the rising power demand in the country in an expeditious and sustainable manner. This is also necessitated by India’s international commitments with respect to climate change,” it said.
Discussing the importance of solar energy “as a pivotal solution in the global transition towards cleaner energy sources”, the bench said that “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,” it said.
“Secondly, rampant air pollution emphasises 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 bench said.
Pointing to technical challenges in implementing the April 2021 order, the SC said that underground power transmission cables are available only in 400 KV with lengths of 250 metre, which would mean more joints leading to leaks. The transmission loss in such cables is about five times higher as they don’t efficiently transmit AC power, it said.
Also, the Electricity Act does not contemplate the acquisition of land for laying underground cables, while overhead transmission lines require only the right of way, the bench said, adding that it may also lead to environmental issues for many vulnerable species and result in forest fires etc.
