SC Order On Great Indian Bustard Gives New Twist To Battle Against Climate Change

The judgment was delivered on a plea by three central government ministries that had sought modifications to a 2021 order by the same court on a matter related to conservation of the Great Indian Bustard, an endangered species.

In its 2021 ruling, the Supreme Court had ordered a blanket ban on overhead high-voltage and low-voltage power lines over a large swathe of land cutting through the states of Rajasthan and Gujarat that activists claimed were to deaths of the Great Indian Bustards, an endangered species.

In its latest judgement, which was passed on March 21 but its details were uploaded over the weekend, lifted the ban and set up a committee to explore ways to strike a balance between India's energy needs and the preservation of the Great Indian Bustard. In doing so, however, the court also went into the wider issue of climate change and whether its adverse effects impinged on the individual’s right to life or right to equality.

A First Of Its Kind

In several earlier cases, Courts have recognised the right to clean air, clean water or the right to clean environment. They have also acknowledged the threats from climate change. At different times, courts have heard and adjudicated on matters like whether cutting of trees for widening roads affects sustainable development, whether states have been implementing climate action plans, whether forest fires contribute to climate change, or whether the use of chemicals like HFC-23 that contribute to global warming should be regulated.

Never before, however, have the courts recognised the vulnerabilities of citizens from climate change in general and moved to protect them through a rights-based approach. The Supreme Court, in its judgment said, that the right to be free from adverse impacts of climate change, and the other rights on clean air or clean environment were probably just the two sides of the same coin.

But that might not be strictly true. The implications of the right to be free against adverse impacts of climate change can be much more far-reaching, though also much more difficult to enforce. For example, can an individual seek legal recourse to protect himself or herself from heatwaves? Can the state, or the courts, do anything to provide relief in such an eventuality?

Authorities can certainly be directed to prepare and implement a heat action plan, for example, but that does not take the heatwave away. Questions like these would become more clear when the courts are faced with such specific issues and begin to apply the framework that has been put forward by the Supreme Court.

May be this is not the manner in which the newly-granted right will be dealt with. Possibly, it is just a recognition that since people’s basic rights to life and equality are at risk because of the impacts of climate change, governments must work to minimise these impacts.

The Supreme Court itself said in the judgment that by recognising the right to be free from the adverse effects of climate change, it hopes that the “states are compelled to prioritise environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the well-being of the present and future generations”.

There are other ways in which the right to be free from adverse effects of climate change is fundamentally different from the right to clean air or clean environment. Ensuring that the air or water is clean, and free from pollution, is largely a local issue, to which solutions can be found and implemented by local, regional or central governments. Climate change is not a local issue.

No matter what the authorities do at local, regional or even national level, the impacts of climate change cannot be wished away. These are inextricably linked with actions of other countries and stakeholders.

A Global Trend

The Supreme Court judgment is in line with the recent trend of courts worldwide intervening to force governments or companies become more sensitive, and responsive, to the problems people face because of climate change. In many cases, the inaction of governments or companies has aggravated the suffering, and courts have been moving in to provide relief, and penalise the defaulters.

A 2021 report by the UN Environment Programme on climate litigation had documented 1,550 climate change cases filed in different courts in at least 38 countries till July 2020, many of them linking it to human rights. The report showed how these increasing number of cases were compelling states and companies to do more on climate change.

A court in the Netherlands for example, told Royal Dutch Shell to cut its emissions by 45 per cent by 2030 on 2019 levels. Another court in Australia ruled that the Environment Ministry owed a duty to take care of children who suffer harm from climate events.

Last year, a court in the US state of Montana ruled that the government was violating the people’s constitutional right to clean and healthful environment by permitting fossil fuel development disregarding its impacts on climate change. There are also cases pending where people have sued governments or companies for compensation because they did not do enough on climate action.

The actual impact of the Supreme Court judgment would become evident only when the courts start adjudicating on specific matters relating to climate change and applying the new rights-based approach. The judgment is certainly going to energise environmental and climate lawyers, and also courts like the National Green Tribunal whose specific mandate is to provide justice in environmental issues.

The Supreme Court acknowledged that there were trade-offs involved in decision-making process with regard to climate change, and stressed that while giving effect to the right to be free from adverse impacts of climate change, “courts must be alive to other rights of affected communities such as the right against displacement and allied rights. Different constitutional rights must be carefully considered before a decision is reached in a particular case”.