This article has been written by Gouri Shrivastava pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

“We don’t own the planet Earth. We belong to it. And we must share it with our wildlife.”                                                                                                  

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 -Steve Irwin

The above quote aptly fits in the context of the latest Supreme Court judgement, which holds a great deal of significance for climate action litigation in India. The Apex Court finds itself at a critical juncture as it grapples between reconciling the country’s climate change objectives with the conservation of wildlife. In 2011, the Great Indian Bustard (GIB) was designated as “Critically Endangered” by the International Union for Conservation of Nature (IUCN). Overhead power lines provide the greatest threat to the GIB, as many collisions result in fatalities. In response, on March 21, 2024, the Supreme Court established a seven-member committee whose job it is to reconcile efforts to produce renewable energy in the same areas with conservation measures for the GIB. This development came to light during the ongoing hearing of the case M.K. Ranjitsinh and Ors. vs. Union of India and Ors. in 2019. 

Even though the Supreme Court had previously rendered a judgement in this case in 2021, it has kept an eye on how the decision is being carried out to make sure that conservation measures are successful. Furthermore, the Apex Court has upheld that the right to be immune from the negative consequences of climate change is protected by fundamental rights, as stated in Articles 14 and Article 21 of the Indian Constitution. The right to equality and the right to life and personal liberty are guaranteed under these articles, which are the basic tenets of our Constitution. The Court has affirmed the right to a clean environment in a plethora of judgements, widening the ambit of the right to life. M.K. Ranjith Sinh and Ors. Vs. UOI and Ors. demonstrates the Supreme Court’s commitment to protecting wildlife and recognises the urgent need to combat climate change.

Key law provisions invoked in the case

Facts of the case

In this case, the Hon’ble Supreme Court’s jurisdiction has been invoked by filing a writ petition to protect the GIB and Lesser Florican, the two ‘Critically Endangered’ avian species as per the International Union for Conservation of Nature (IUCN). Ardeotis Nigriceps which is the scientific name of the GIB, is native to the southern and western parts of India. The GIB ‘arc’ envelops the habitats between the Pokhran Field Firing Range and the northern region of Desert National Park situated near Jaisalmer.

Initially, the environmentalist petitioners had approached the Apex Court invoking its constitutional jurisdiction under Article 32 via a writ petition in 2019 to issue directions to protect these rare bird species, which are tapering off in number, especially to prohibit the use of overhead transmission lines due to which these birds were killed in large numbers by collision. Back then, the Supreme Court had imposed restrictions on the installation of overhead transmission lines in a large swath of land and ordered the conversion of these lines into underground power lines in one year. Bearing in mind that the laying of high-voltage power lines would require expert advice, a committee was constituted by the court to check the feasibility of the same. Additionally, bird diverters were to be installed for overhead power lines while the expediency of underground power lines was being checked by the committee. Sanctions were granted on a case-by-case basis by the committee when undergrounding of such high-voltage power lines was impossible. Nonetheless, the Ministry of Environment, Forests and Climate Change, the Ministry of Power and Ministry of New and Renewable Energy sought modification in the 2021 directions as per the judgement.

Issues involved in the case

  • Striking a balance between India’s clean energy goals, which depend on overhead power lines for transmission, and the need to conserve GIB and Lesser Florican.
  • Is it feasible to replace the existing overhead power lines with underground transmission lines in the habitat area of the birds in question?

Observations of the court

The court’s observation can be broadly divided into two categories, namely, the climate change approach and the conservationist approach. Let us first look at the climate change approach that centred the court’s findings in this case:

Here, the court drew attention to India’s unwavering commitment towards attaining its climate action objectives, such as the clean energy mission, by deploying green hydrogen technology and reducing carbon emissions by 2030. Further, the court went on to observe India’s active participation in international efforts to combat climate change. The Kyoto Protocol which is an agreement under the UNFCCC puts a binding obligation on the member countries for achieving its carbon reduction targets. In order to meet the target, this protocol provides flexibility to countries in gaining their objectives through national measures and also offers additional mechanisms such as international emissions trading, clean development mechanisms, and joint implementation.

What’s more to add on to this is the court’s emphasis on the right to a healthy environment and the right to be free from the adverse effects of climate change. Article 48A of the Constitution states that “the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A (g) makes the citizens responsible to safeguard and enhance the natural environment and treat all living creatures with empathy. While not directly actionable in the court of law, these provisions signify that the Constitution of India recognises the significance of a natural world. 

The court placed reliance on the case of M.C. Mehta vs. Kamal Nath, wherein it was held that Article 48A and 51A(g) of the Constitution must be understood within the meaning of Article 21. Even though the Indian Constitution does not directly have any right to a clean environment, Article 21 (right to life and personal liberty) and Article 14 (right to equality) can be attributed to supporting the right to be protected from climate change impacts and the right to a clean environment. 

In another case of Virender Gaur vs. State of Haryana, the court emphasised that it is the duty of the state to shed its extravagant sovereign power and forge in its policy to maintain a hygienic environment and keep up with ecological balance. The protection of life and personal liberty under Article 21 has a wide scope. It entails all other rights necessary to enjoy a dignified life and protection of a clean environment. This means any pollution caused in the environment, be it air pollution, water pollution, or noise pollution, hinders enjoyment of a dignified life and therefore violates Article 21 of the Constitution. It can be thus said that a hygienic environment is an indispensable element of the right to a healthy life, and it is not possible to lead a life with dignity without a clean environment. 

The court pressed upon the importance of solar power as a source of renewable energy and that air pollution, particularly vehicular pollution, has left many Indian cities with the lowest air quality index. Therefore, when we talk about climate change, the imperative of shifting to solar power cannot be overstated. The roots of this lie in drastically reducing the reliance on fossil fuels, which would in turn mitigate greenhouse gas emissions and combat climate change. 

Now, looking at the conservationist approach, the court opined that mere adherence to international conventions for achieving climate change goals would not suffice. There is a dire need to responsibly balance two equally essential objectives—the conservation of GIB on the one hand and the protection of the environment on the other. It is imperative to take up a holistic approach that does not sacrifice either of the two objectives. The court explained this with the help of an example that if it were to direct that all the power lines of transmission be made into underground power lines, many other parts of the environment would be adversely impacted. The importance of domain experts was highlighted as the decision of converting overhead transmission lines into underground power lines is a matter of environmental policy, which would require judicial review alongside expert opinion. In the absence of evidence for sweeping directions, the court cannot put a blanket prohibition on the installation of overhead power lines. The expert committee constituted by the court must strive for preservation of GIB on one hand, which must be non-negotiable with the need for sustainable development for meeting India’s international commitments. 

Judgement of the court

In its endeavour to strike a balance between wildlife conservation and achieving India’s clean energy goals, the court recalled its earlier injunction order on the installation of overhead power lines. The court granted the Expert Committee the liberty to lay suitable parameters covering both the priority and potential areas. Further, the court issued the following directions:

  • Considering the impact on GIB population, the committee shall figure out the scope, feasibility, and extent to which overhead transmission lines can be laid in priority areas.
  • Promote protection and conservation measures for GIB and other such endangered species.
  • Recognise and implement measures like anti-poaching regulations and community awareness programs in priority areas.
  • Consult the relevant stakeholders, such as government agencies, wildlife biologists, representatives of the energy industry, and the local community, for gathering more information.
  • Identify potential harms of climate change on the GIB population while bearing in mind the effect of rising global temperatures, habitat degradation, and shifting precipitation patterns to formulate adaptive measures to enhance the resilience of GIBs.
  • Evaluate the world’s best practices in bird conservation for implementing innovative approaches such as the Houbara Bustard in the Middle East or the Black Stilt in New Zealand.
  • Put in place a sturdy monitoring and research program to track the number of GIBs over time and check the efficacy of conservation measures. This can be achieved through satellite tracking, camera tapping, and ecological surveys to collate essential data.
  • Prescribe any additional measures, both in priority and potential areas. For this, the effectiveness of bird diverters may be studied for future power lines if it can be backed by scientific study. 

Comment

The Great Indian Bustard (GIB), which was once a commonly seen bird in and around the state of Rajasthan, has now fallen to the place of a ‘critically endangered’ bird with only about 150 in number as per the 2018 study. This ostrich-like avian species is one of the heaviest birds in the world, and the dwindling population of it calls for more proactive conservation measures. In my opinion, the Supreme Court has struck a commendable balance between conservation of wildlife and developmental goals of the country. It took a pragmatic approach in prioritising the conservation of the critically endangered species while also recognising the existing challenges in making overhead transmission lines into underground power lines. Further, appointing a committee of experts to look into the potential threats, feasibility, and scope of replacing all the overhead transmission lines with underground power lines is a welcome move. The skills and experience possessed by the domain experts would be helpful in reaching an appropriate solution. The court also directed that a National Bustard Day be celebrated to underscore the need for conservation of these species. The emphasis that the court put on capacity-building programs and collaboration with scientific organisations is to be applauded as it showcases the court’s commitment towards achieving long-term goals and immediate action. 

As humankind progresses, we should strive towards attaining harmony between conservation and development. The case of M.K. Ranjit Sinh and Ors. sets forth a positive precedent for future environmental law cases as it spotlights the importance of finding expedient solutions that cater to both economic and ecological problems.

References

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