The recent judgement of the Supreme Court of India in M.K. Ranjitsinh and Ors. vs Union of India & Ors., provides an intriguing opportunity to think and enact much more systematic governance around climate change.
On Climate Right In India, Background and Evolution of the Judgment
The Supreme Court passed its judgement 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.
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- Both are scheduled species listed under Part III of Schedule I of the Wild Life (Protection) Act, 1972.
- Petition: The judgement came on a long pending petition by wildlife activist MK Ranjitsinh and others to protect the Great Indian Bustard (GIB) (Ardeotis nigriceps).
- Earlier Judgment: In April 2021, the Court placed restrictions on the setting up of overhead transmission lines.
- Setting of Expert Committee: A committee was appointed to evaluate the laying of underground high-voltage lines on a case-to-case basis.
- On Powerlines: All low-voltage power lines were directed to be laid underground in the “priority” and “potential” habitats of GIB in the future.
- For existing power lines, bird diverters were to be installed that were pending for the conversion of overhead power lines into underground power lines.
- The Union Government’s Position: Since the major solar and wind energy-producing installations of India are in Rajasthan and Gujarat area, the Centre claimed the court’s directions will harm India’s global commitments to reduce the carbon footprint by increasing dependence on renewable energy sources.
- Supreme Court’s Action: The court recalled an earlier order requiring the undergrounding of overhead transmission lines across an area of over 80,000 sq. km. in the two states.
- Recent Judgement: In April 2024, the Court placed its reliance on several reports by the Wildlife Institute of India, identifying 13,663 square km as the “priority area”; 80,680 square km as “potential areas”; and 6,654 square km as “additional important areas” for the GIB.
- Formation of an Expert Committee: The bench formed an expert committee comprising independent experts, members of the National Board of Wildlife, representatives of power companies, and former and serving bureaucrats drawn from departments of environment and forests and ministry of new and renewable energy (MNRE).
- Aim: The Committee is formed to suggest ways to balance two objectives – the conservation of the bird and India’s sustainable development goals.
- The committee’s first report is expected by July 31.
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Implications of the Judgment for Environmental Jurisprudence
It historically stated that people have a right to be free from the adverse effects of climate change recognised by Articles 14 and 21 of the Indian Constitution.
- Strengthening Environmental & Climate Justice: The judgement puts the focus on strengthening environmental and climate justice by highlighting the multiple impacts of climate change on a range of communities.
- Expansion of Article 14 & Article 21: These have been expanded by the apex court to include a right to clean environment.
- The judgement not only looks to curb environmental pollution, but also proactively outlines environmental and climate justice issues, keeping our international commitments in mind.
- Establishment of Legal Precedent: As per experts, the judgement will set an important legal precedent, and will influence the broader public discourse on environmental matters, and has the potential to shape future government policies.
Arising Issues with the Judgment
This judgement opens the door to climate litigation, empowering citizens to demand from the government that this right be protected. But, also leaves following challenges:
- Unresolved Questions: The judgement leaves unresolved questions regarding the court’s emphasis on large-scale clean energy agenda as the main pathway to avoiding climate harms and correspondingly, understate climate adaptation and local environmental resilience.
- Unclarity: The court also did not clarify how this right against the adverse effects of climate change will be protected.
- No Umbrella Legislation: The judgement itself states that there is no ‘umbrella legislation’ in India that relates to climate change.
Potential Approaches to Realise the Right Against the Adverse Effects of Climate Change
Following two approaches can be followed to realise this right against the adverse effects of climate change:
- Court-based Action: The proliferation of court-based action through enhanced litigation around climate claims, will likely lead, slowly and over time, to an incomplete patchwork of (judiciary-led) protections.
- Moreover, a patchwork approach is less likely to chart an overarching framework to guide future policy.
- Climate Legislation: A preferred approach, the enactment of climate legislation can provide an overarching, framework legislation to guide future policy.
- Drawing from the experience of other countries, framework legislation can bring several advantages.
- It can set the vision for engaging with climate change across sectors and regions, create necessary institutions and endow them with powers, and put in place processes for structured and deliberative governance in anticipation of and reaction to climate change.
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Need for Climate Legislation in India
These are important advantages, and good reasons for India to consider climate legislation. But at the same time, it is essential that Indian climate legislation not blindly copy other countries, and is tailored to the Indian context.
- Transition to a Low-Carbon Energy Future: In the Ranjitsinh judgement, it is highlighted that India needs to transition to a low-carbon energy future to enforce a right against the adverse effects of climate change.
- For Supportive Regulatory Environment: Climate legislation should also create a supportive regulatory environment for more sustainable cities, buildings, and transport networks.
- Mainstreaming and Internalising Climate Change Considerations: It should provide a way of mainstreaming and internalising climate change considerations into how India develops.
- To enable adaptation measures such as heat action plans sensitive to local context.
- To provide mechanisms for shifting to more climate-resilient crops.
- To protect key ecosystems such as mangroves that act as a buffer against extreme weather events.
- To actively consider questions of social equity in how it achieves these tasks.
Challenge that Need to Be Considered and Tackled
Having a single, omnibus law that covers all these areas is not feasible, particularly in the face of an existing legal framework that legislates on most of these issues.
Way Forward
The following points provide a set of principles for a climate law tailored to India, one that provides a basis for taking forward and fulfilling the promise of the Ranjitsinh judgement.
- Legislation as per Indian Federalism: As many areas relevant to climate action such as urban policy, agriculture and water fall under the authority of sub-national governments — States or local levels, and electricity also is a concurrent subject.
- An Indian climate law must simultaneously set a framework for coherent national action while decentralising sufficiently to empower States and local governments, and enable them with information and finance to take effective action.
- Learn from International Experience: India is still developing, is highly vulnerable, and yet to build much of its infrastructure, what the country needs is a law that enables progress toward both low-carbon and climate resilient development. To achieve the desired targets, India can learn from other countries.
- Regulatory Law: It focuses narrowly on regulating carbon emissions, for example, by setting regular five yearly national carbon budgets and then putting in place mechanisms to meet them.
- An Enabling Law: It can be written to stimulate development-focused decisions in a range of sectors across the economy by systematically asking whether each decision moves the country closer to or further from low-carbon growth and climate resilience.
- Importantly, this approach emphasises adaptation as much as mitigation.
- An enabling law is likely to be a more procedurally-oriented law, one that systematically creates the institutions, processes and standards for mainstreaming climate change.
- Such a law would build in procedures to support knowledge-sharing, ensuring transparency and avenues for public participation and expert consultation, prompting meaningful setting (and revision) of targets and timelines and reporting against these.
- Example: Kenya
- Enabling Participation in Decision Making: The enabling role should ideally also extend beyond government. Business, civil society and communities, particularly those on the frontlines of climate impacts, have essential knowledge to bring to energy transition and resilience.
- Finding ways of enabling participation in decision making would enable all these sections of society to bring their knowledge to the table in addressing climate change.
- An effective Indian climate law based on enabling procedures would also provide opportunities for voice to diverse segments of society.
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Climate Change and Human Rights in India
- Right to Health: Article 21 and Article 14 are important sources of the right to a clean environment and the right against the adverse effects of climate change.
- Without a clean environment, which is stable and non impacted by the impacts of climate change, the right to life is not fully realised.
- Article 21 recognises the right to life and personal liberty and the right to health is its important part.
- Article 14 indicates that all persons shall have equality before law and the equal protection of laws.
- Article 48A: It states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. It was added by the 42nd Amendment, 1976 and places an obligation on the State to protect the environment and wildlife.
- Article 51-A (g): It states 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.
- Right to be free from the Adverse Effects of Climate Change: The right to health is impacted due to various factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding.
- Hence, a right to be free from the adverse effects of climate change is desirable.
- Judicial Intervention:
- M C Mehta v Union of India (1987): The Supreme Court treated the right to live in a pollution-free environment as a part of the Right to Life.
- Since then, several SC verdicts have underlined that people have a right to breathe unpolluted air, drink clean water and live a healthy life.
Measures Taken to Protect Human Rights Against Climate Change
- On National Level:
- Implementation of the National Action Plan on Climate Change (NAPCC): It includes various missions targeting climate change mitigation and adaptation.
- Focus on Renewable Energy Initiatives: Such as the National Solar Mission and promotion of clean energy sources.
- Sustainable Agriculture Practices: It is focused to enhance resilience to climate change impacts.
- Afforestation & Restoration Programs: There is a focus on implementation of the Afforestation and Reforestation programs to combat deforestation and enhance carbon sequestration.
- On International Level:
- United Nations: The United Nations, through a resolution in 2022, declared access to a clean, healthy environment as a universal human right.
- Frameworks for Climate Finance: Such as the Green Climate Fund to support developing countries in their climate change adaptation and mitigation efforts.
- Climate-resilient Infrastructures: To enhance resilience to extreme weather events and sea-level rise.
- Support for Capacity-building Initiatives: To enhance the ability of vulnerable communities to adapt to climate change impacts.
- Recommendations by the United Nations Environment Program:
- International Cooperation: To recognize the link between climate change and human rights in the Paris Agreement.
- Ensure climate funds’ safeguards fully consider human rights.
- Increase financial assistance to developing countries.
- Incorporate human rights norms into domestic legal frameworks, including climate change laws.
- Collaborative Approach: Local governments should reduce greenhouse gases emissions in collaboration with the private actors in line with the UN Guiding Principles on Business and Human Rights.
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July 2, 2024