Right against climate change part of right to life, equality: Read the Supreme Court’s exact arguments

The Supreme Court of India on April 5, 2024, for the first time, recognised the right against the adverse impacts of climate change, saying it is intertwined with the right to life and equality that are embedded in the Indian constitution. The arguments were a part of a verdict by a three-judge bench headed by the Chief Justice of India DY Chandrachud hearing a case on the conservation of the great India bustard and the lesser florican.

The bench reversed a 2021 had introduced a blanket ban against overhead powerlines over an area of 99,000 square kilometres covering parts of Gujarat and Rajasthan to protect the birds. The court said that only allowing underground power transmission cables in such a large area, which also has an incredible potential for clean energy such as wind and solar, will severely impact the country's clean energy shift that is necessary to attain its climate goals. By doing so, it will impede global efforts against climate change, thereby threatening fundamental rights of Indians, such as the right to life, equality, access to energy, among others.

This is a landmark verdict in the sense that it delineates the role of climate mitigation as independent from ecological conservation. Read the arguments made by Chandrachud and justices JB Pardiwala and Manoj Misra:

India’s efforts to combat climate change are manifold. Parliament has enacted the Wild Life (Protection)Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, the Environment (Protection) Act 1986, the National Green Tribunal Act 2010, amongst others. In 2022, the Energy Conservation Act 2001 was amended to empower the Central Government to provide for a carbon credit trading scheme. The Electricity (Promoting Renewable Energy Through Green Energy Open Access) Rules 2022 were made in exercise of the powers under the Electricity Act 2003 to ensure access to and incentivise green energy. The executive wing of the government has implemented a host of projects over the years including the National Solar Mission (discussed in greater detail in the subsequent segment), the National Mission for Enhanced Energy Efficiency, the National Mission for a Green India, and the National Mission on Strategic Knowledge for Climate Change, amongst others. 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.

However, this does not mean that the people of India do not have a 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 wild life 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 wild life, 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. 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.

In MC Mehta vs Kamal Nath, 2000, this Court held that Articles 48A and 51A(g) must be interpreted in light of Article 21:

“8. …. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for “life”, would be hazardous to “life” within the meaning of Article 21 of the Constitution.”

In Virender Gaur vs State of Haryana, 1995 this Court recognised the right to a clean environment in the following terms:

“7. … The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment.”

In Karnataka Industrial Areas Development Board vs C Kenchappa, 2006, this Court took note of the adverse effects of rising sea levels and rising global temperatures. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, 2006, this Court recognised that climate change posed a “major threat” to the environment.

Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change. This is perhaps because this right and the right to a clean environment are two sides of the same coin. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21.

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 as well as the right to equality. This is better understood with the help of an example. If climate change and environmental degradation lead to acute food and water shortages in a particular area, poorer communities will suffer more than richer ones. The right to equality would undoubtedly be impacted in each of these instances.

The right to equality may also be violated in ways that are more difficult to remedy.

For example, a person living in say, the Lakshadweep Islands, will be in a disadvantageous position compared to person living in say, Madhya Pradesh when sea levels rise and oceanic problems ensue. Similarly, forest dwellers or tribal and indigenous communities are at a high risk of losing not only their homes but also their culture, which is inextricably intertwined with the places they live in and the resources of that place. In India, the tribal population in the Nicobar islands continues to lead a traditional life which is unconnected to and separate from any other part of the country or world. Indigenous communities often lead traditional lives, whose dependence on the land is of a different character from the dependence which urban populations have on the land. Traditional activities such as fishing and hunting may be impacted by climate change, affecting the source of sustenance for such people. Further, the relationship that indigenous communities have with nature may be tied to their culture or religion. The destruction of their lands and forests or their displacement from their homes may result in a permanent loss of their unique culture. In these ways too, climate change may impact the constitutional guarantee of the right to equality.

The right to equality under Article 14 and the right to life under Article 21 must be appreciated in the context of the decisions of this Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects. From these, it emerges that there is a right to be free from the adverse effects of climate change. It is important to note that while giving effect to this right, 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.

In 2019, the Committee on the Elimination of Discrimination Against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, the Committee on the Rights of the Child, and the Committee on the Rights of Persons with Disabilities jointly issued a statement in which they recognised that “…State parties have obligations, including extra-territorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.”

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. For instance, the contribution of the UN High Commissioner for Human Rights to the 2015 Climate Conference in Paris emphasized that climate change directly and indirectly affects a broad spectrum of internationally guaranteed human rights.21 States owe a duty of care to citizens to prevent harm and to ensure overall well-being. 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.

This acknowledgement of human rights in the context of climate change is underscored in the preamble of the Paris Agreement, which recognizes the interconnection between climate change and various human rights, including the right to health, indigenous rights, gender equality, and the right to development:

“Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.”

The 2015 United Nations Environment Programme report also outlined five human rights obligations related to climate change, including both mitigation and adaptation efforts.22 In 2018, the UN Special Rapporteur on Human Rights and the Environment emphasized that human rights necessitate states to establish effective laws and policies to reduce greenhouse gas emissions, aligning with the framework principles on human rights and the environment.

The Inter-American Court of Human Rights24 issued an advisory opinion in 2017 affirming the right to a healthy environment as a fundamental human right. The IACtHR delineated state obligations regarding significant environmental harm, including cross-border impacts, recognizing the inherent relationship between environmental protection and the enjoyment of various human rights. Violations of the right to a healthy environment can reverberate across numerous rights domains, including the right to life, personal integrity, health, water, and housing, as well as procedural rights such as information, expression, association, and participation.

In her comprehensive study exploring climate obligations under international law, Wewerinke-Singh underscores the imperative for states to both adapt to and mitigate the impacts of climate change in alignment with human rights principles. (State Responsibility, Climate Change and Human Rights under International Law, Margaretha Wewerinke-Singh)

This resonates deeply with the burgeoning recognition of the right to a healthy environment as a fundamental human right within the global discourse on environmental protection and sustainability. When discussing the right to a healthy environment, it is crucial to address access to clean and sustainable energy. Clean energy aligns with the human right to a healthy environment, as first recognized by the UN Special Rapporteur on Human Rights and the Environment in 1994.

Unequal energy access disproportionately affects women and girls due to their gender roles and responsibilities such as through time spent on domestic chores and unpaid care work. Women in many developing countries spend on average 1.4 hours a day collecting fuelwood and four hours cooking, in addition to other household tasks that could be supported by energy access. The importance of prioritizing clean energy initiatives to ensure environmental sustainability and uphold human rights obligations cannot be understated.

India faces a number of pressing near-term challenges that directly impact the right to a healthy environment, particularly for vulnerable and indigenous communities including forest dwellers. The lack of reliable electricity supply for many citizens not only hinders economic development but also disproportionately affects communities, including women and low-income households, further perpetuating inequalities. Therefore, the right to a healthy environment encapsulates the principle that every individual has the entitlement to live in an environment that is clean, safe, and conducive to their well-being. By recognizing the right to a healthy environment and the right to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the well- being of present and future generations. It is imperative for states like India, to uphold their obligations under international law, including their responsibilities to mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment.

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