Analysis: What does the new Supreme Court judgment mean for climate action in India?

The Supreme Court of India has held that the people have a right to be free from the adverse effects of climate change within the ambit of fundamental rights, according to a judgement uploaded on April 6, 2024. Articles 14 and 21 of the Constitution of India guarantee the fundamental rights to equality and life respectively. The right to a clean environment has earlier been recognised as a fundamental right within the ambit of the right to life by the Court in a plethora of decisions. 

The Apex Court passed its judgment in a case titled M K Ranjitsinh & Ors versus Union of India & Ors regarding the protection of two critically endangered bird species on the IUCN Red List – the great Indian bustard (GIB) and the lesser florican. Both are scheduled species listed under Part III of Schedule I of the Wild Life (Protection) Act, 1972. 

These vulnerable species face several challenges because of pollution, climate change, predators and invasive species. The Court also attributed the decline of the species’ population to overhead transmission lines. The western states of Gujarat and Rajasthan, home to the GIB, hold enormous solar and wind energy potential. High voltage power lines crisscross their flying path and lead to high rates of GIB mortality in both these States. 

The GIB ‘arc’ is a swathe of habitats between the Pokhran Field Firing Range and the northern portion of the Desert National Park near Jaisalmer. The exact coordinates of the GIB arc and its legal sanctity are yet to be determined. This specific issue has been the subject matter of a case before the National Green Tribunal titled Mahendra Singh Borawat & Ors vs Union of India & Ors.

In its earlier Order in 2021, the Court placed restrictions on setting up of overhead transmission lines. It appointed a committee to evaluate the laying of underground high-voltage lines on a case-to-case basis. All low voltage powerlines were directed to be laid underground in the “priority” and “potential” habitats of GIB in the future. 

As far as existing power lines were concerned, bird diverters were to be installed pending the conversion of overhead power lines into underground power lines

The Court in its April 6 judgment placed its reliance on several reports by the Wildlife Institute of India identifying 13,663 square kilometres as the “priority area”; 80,680 square kilometres as “potential areas”; and 6,654 square kilometres as “additional important areas” for the GIB. 

In its recent judgment, the Court modified its earlier order to the effect that there is no basis to place a blanket direction for undergrounding high voltage and low voltage power lines in a vast area of about 99,000 square kilometres. It recalled the injunction that it imposed earlier. It found that it was not feasible to convert all overhead transmission lines into underground transmission lines due to:

• Not making a difference in the conservation efforts for the species in light of other factors such as low fecundity, fragmentation, habitat loss, predators, and loss of prey causing a decline in the GIB population;
• Technical issues with transmitting electricity over long distances;
• Safety risks due to shifting desert sands rendering flag markings for underground high voltage cable ineffective;
• Higher transmission loss;
• Difficulty in detecting faults and carrying out repair work;
• Requirement of acquiring land for underground lines as opposed to right of way for overhead lines. Land acquisition is not covered under the Electricity Act;
• Environmental issues including increased incidences of forest fires;
• Cost-prohibitive nature;
• Cables generally not being used for the evacuation of power from a generating station;
• Technical infeasibility of undergrounding transmission lines of 60kV and any outage causing large generation losses;
• Prioritizing the need to harness power from renewable sources of energy;
• Too large an area to attempt undergrounding of cables; and 
• Area in which undergrounding has been directed contains the lion’s share of the potential areas from which wind and solar can be harnessed.

As part of its international climate change commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, India has committed to scale up non-fossil-based power capacity. However, this may in some cases be at odds with conservation efforts for endangered species. In an evolution of its stance, the Court has now observed that solar power is required to meet the country’s growing energy demands. 

India is likely to account for 25 per cent of the global energy demand growth over the next two decades. It goes on to further observe that “it is not a binary choice between conservation and economic growth or development but rather a dynamic interplay between protecting a critically endangered species and addressing the pressing global challenge of climate change”. 

This makes this a landmark judgement wherein climate change is centered, and the need to take actions to avert the worst of the crisis is brought within the legal parlance. The Court emphasised that States owe a duty of care to citizens to prevent harm and to ensure overall well-being and 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.

The Court has also constituted an Expert Committee whose remit is to:

• Determine the scope, feasibility, and extent of overhead and underground electric lines in the area identified as priority areas;
• Facilitate conservation and protection measures for GIB as well as other fauna specific to the topography;
• Identify measures such as habitat restoration, anti-poaching initiatives, and community engagement programs in the priority areas,
• Evaluate potential consequences of climate change on GIB habitats, considering factors such as shifting precipitation patterns, extreme temperatures, habitat degradation, and developing adaptive management strategies to enhance their resilience; 
• Ascertain suitable ways to lay down power lines; 
• Engage with relevant stakeholders, including government agencies, environmental organizations, wildlife biologists, local communities, and energy industry representatives;
• Review international best practices for conservation of similar species such as the Houbara Bustard in the Middle East or the Black Stilt in New Zealand; 
• Implement a robust monitoring and research program to track GIB populations, habitat dynamics, and the effectiveness of conservation measures over time; and 
• Adopt any additional measures including the installation of high-quality bird diverters in accordance with the parameters laid down by the Central Electricity Authority.

While India has several environmental legislations that have a bearing on climate action, India does not have an umbrella legislation governing climate change. However, climate ‘framework legislations’ have been enacted across the world, including in countries such as Philippines, Papua New Guinea, Finland and South Korea, among others. According to the Grantham Research Institute on Climate Change and the Environment, framework climate laws set out the strategic direction for national climate change policy and contain legally binding targets and pathways to combat climate change. 

Another important legal tool is climate change litigation. In this judgement, SC acknowledged  climate change litigation happening in other jurisdictions, including the Global South. A few examples of landmark climate cases include the State of the Netherlands vs Urgenda Foundation; Sacchi, et al vs Argentina, et al; and Ioane Teitiota vs The Chief Executive of the Ministry of Business, Innovation and Employment. These are among the numerous other cases that have dealt with issues of greenhouse gases emissions reductions, rights of children, and climate refugees. 

Recognition by the Supreme Court of India of the right to be free from the adverse effects of climate change within the purview of constitutional fundamental rights paves the way for legal accountability of actions that undermine meeting climate targets. This case significantly influences jurisprudence on climate governance in India. 

However, depending upon the findings of the court-constituted committee, it is yet to be seen what the implications will be for the conservation efforts of GIB and lesser florican if there is less undergrounding of powerlines, which are a major cause of bird deaths due to collisions and electrocution.