Embracing a Holistic Perspective to Environmental Conservation

Sustainable practices for environmental protection

Reference Date \| Version	October 30, 2024 \| 1.0
Jurisdiction	Republic of India

Reference Date | Version

October 30, 2024 | 1.0

Keywords

Fundamental Right, Responsible Consumption, Sustainable Development Goals (SDGs), Sustainability, Right to Clean Environment, UNFCCC, Climate Change.

Legislation(s)/Policies

(i) United Nations Agenda 2030 for Sustainable Development 2015
(ii) United Nations Framework Convention on Climate Change

(iii) National Solar Mission

Jurisdiction

Republic of India

When planning projects including in the renewable energy space, it is essential to adopt a holistic approach that considers the dynamic legal landscape, including aspects of corporate governance, fiduciary duties of directors. The evolving legal framework can significantly influence both the timeline and budget of a project. Therefore, seeking expert legal advice from seasoned Energy and Sustainability lawyers is highly beneficial.

INTRODUCTION

The Constitution of India (‘Constitution’) guarantees every person certain fundamental rights. Among them are the Right to life or personal liberty except according to procedure established by law and the Right to equality before the law or the equal protection of the laws within the territory of India. Over time, these fundamental rights have been interpreted in various ways, leading to several other aspects of life becoming inextricably linked to them.

This article examines how the Supreme Court of India (‘the Court’) has interpreted these fundamental rights to include the Right to a Clean Environment and the Right Against the Adverse Effects of Climate Change, aiming to fulfill India’s international obligations and commitments.

ISSUE BEFORE THE HON’BLE SUPREME COURT OF INDIA

The jurisdiction of the Court was invoked for protecting the Great Indian Bustard and the Lesser Florican, in M K Ranjitsinh & Ors. (being Petitioners) v. Union of India & Ors.(being Respondents), MANU/SC/0274/2024.

SEQUENCE OF EVENTS

A Writ Petition invoking the constitutional jurisdiction under Article 32 was instituted for seeking directions relating to the conservation of the Great Indian Bustard (GIB).

The Court passed an order dated 19 April 2021 whereunder restrictions were imposed on the setting up of overhead transmission lines in a large swath of territory of about 99,000 square kilometres. These directions were in IA No 85618 of 2020 in Writ Petition (Civil) No 838 of 2019. In the operative directions, the Court, observed :

“ 14. In the light of the contentions urged on this aspect of the matter, we are conscious that the laying of the underground power line more particularly of high-voltage though not impossible, would require technical evaluation on case-to-case basis and an omnibus conclusion cannot be reached laying down a uniform method and directions cannot be issued unmindful of the fact situation. Though that be the position the consensus shall be that all low voltage powerlines to be laid in the priority and potential habitats of GIB shall in all cases be laid underground in future. In respect of low voltage overhead powerlines existing presently in the priority and potential habitats of GIB, the same shall be converted into underground powerlines. In respect of high-voltage powerlines in the priority and potential habitats of GIB, more particularly the powerlines referred in the prayer column of I.A. No.85618/2020 and indicated in the operative portion of this order shall be converted into underground power line.”

The Court appointed a Committee for assessing the feasibility of laying high voltage underground power lines and directed that in all cases, where:

overhead power lines exist as on date in the priority and potential GIB areas, steps shall be taken to install bird diverters pending consideration of the conversion of overhead power lines into underground power lines.
it is found feasible to convert the overhead lines to underground power lines, this shall be undertaken and completed within a year.

The order of the Court was implemented by said Committee by granting case- specific sanctions to projects where undergrounding was found not to be possible.

Respondent Nos. 1, 3, and 4 (the Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy respectively) filed IA No 149293 of 2021 on 17 November 2021 for modification of the directions issued by the judgment of the Court dated 19 April 2021. The grounds for modifications included the following:

The judgment has vast adverse implications for the power sector in India and energy transition away from fossil fuels;
India has made International commitments including under the agreement signed in Paris in 2015 under the United Nations Framework Convention on Climate Change for transition to non-fossil fuels and for the reduction of emissions. The area in respect of which the directions were issued is much larger than the actual area in which the GIBs dwell. Moreover, that area contains a very large proportion of the solar and wind energy potential of the country;
Undergrounding high voltage power lines is technically not possible; and
The coal fired power which would be used to replace the untapped energy from renewable sources in the concerned area would cause pollution.

By an order dated 19 January 2024, the Court directed as follows:

“1 (The) Attorney General for India states that a comprehensive status report will be filed before the Court indicating the way forward as proposed by the Union Government which would take into account both the need for preservation of the Great Indian Bustard which faces a danger of extinction and need to ensure the development of solar power keeping in mind India’s commitments at the international level.

2 The Union of India shall place its status report on the record…

3 In the meantime, (i) the Chief Secretaries of the States of Gujarat and Rajasthan; and (ii) the Committee appointed by the Court, to file updated status reports.

…”

In pursuance of the order dated 19 January 2024, the Union of India filed an additional affidavit and an updated, comprehensive status report. In the course of its affidavit, the Union of India, among other things, submitted that:

The reduction in the population of GIBs began in the 1960s, much before the electrification of the area and the construction of transmission lines.
The direction by the Court for laying high voltage, or as the case may be, low voltage lines underground is practically impossible to implement.
The Union Government has a commitment at the international level to reduce India’s carbon footprint and recourse to renewable sources of energy including solar installations provides the key to the implementation of these commitments.
The Union of India as well as the concerned state governments are taking comprehensive steps for the conservation and protection of the endangered species of the GIB.
A blanket direction of the nature imposed by the Court, besides not being feasible to implement, would also not result in achieving its stated purpose, i.e., the conservation of the GIB.

JUDICIAL DELIBERATION

India’s commitment under international conventions: Attention has been drawn to the significant international commitments made by India in its pursuit of global environmental conservation goals, namely;

Pursuant to its participation in the Kyoto Protocol, which came into force on February 16, 2005. This international agreement, which is linked to the United Nations Framework Convention on Climate Change (UNFCCC), obligates its Parties to establish binding emission reduction targets.

The UNFCCC is founded on the recognition that climate change is a global issue which is articulated in the preamble of the UNFCCC:

“Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions,
…
Recalling also that States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

States reaffirmed their commitments at the 18th Conference of the Parties in Doha, Qatar in December 2012, to address climate change which laid the groundwork for greater ambition and action. Among various decisions, Parties set a timetable to adopt a Universal Climate Agreement by 2015. The objective was to build consensus on a binding and universal agreement which would limit greenhouse gas emissions to levels that would prevent global temperatures from increasing more than 2 degrees Celsius (3.6 degrees F) above the temperature benchmark set before the Industrial revolution.

The COP 21 meeting was convened in Paris in December 2015, where 196 countries, including India signed a new Climate Change Agreement on 12 December 2015.

Leading up to the meeting in Paris, the UN had called upon the Parties to submit their plans on how they intended to reduce their greenhouse emissions. India submitted its Intended Nationally Determined Contribution (NDC) to the UNFCCC on October 2, 2015. The Paris Agreement mandates that each Party communicate a nationally determined contribution every five years. India communicated an update to its first NDC submitted earlier on 2 October 2015, for the period up to 2030. India’s commitment under the Paris Agreement includes, to achieve approximately 50 percent cumulative electric power installed capacity from non-fossil fuel-based energy resources by 2030, with support from the transfer of technology and low-cost international finance, including from the Green Climate Fund.
One of the key strategies in India’s efforts towards sustainability is the ambitious target for renewable energy capacity installation. By 2022, India aimed to achieve an installed renewable energy capacity (excluding large hydro) of 175 GW (Gigawatts), a goal that signifies the country’s commitment to clean energy adoption.

Looking ahead, India has set an even more ambitious target for 2030, aiming to ramp up its installed renewable energy capacity to 450 GW.

The right to a healthy environment and the right to be free from the adverse effects of climate change

India’s efforts to combat climate change are manifold. There are several legislative and policy efforts. 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.
The Right to Life and Personal Liberty under Article 21 of the Constitution and Right to Equality before Law and Equal Protection of Laws under Article 14 of the Constitution are important sources of the right to a clean environment and the 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 wildlife of the country, and Clause (g) of Article 51A of the Constitution stipulates 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. Although these are not justiciable provisions of the Constitution, they are indications that the Constitution recognises the importance of the natural world.
As the havoc caused by climate change increases year by year, it becomes necessary to articulate the right to a clean environment and the right against the adverse effects of climate change as a distinct right. It is recognised by Articles 14 and 21 of the Constitution.
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. 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 under Article 14 and the right to life under Article 21 of the Constitution must be appreciated in the context of the decisions of the Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects.
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.

Importance of solar power as a source of renewable energy

Solar energy holds a central place in India’s National Action Plan on Climate Change, with the National Solar Mission (‘NSM’) being one of its key initiatives. Launched on 11 January 2010, NSM aims to establish India as a global leader in solar energy by creating favourable policy conditions for the diffusion of solar technology across the country. This mission is in line with India’s Nationally Determined Contributions target, which aims to achieve about 50 percent cumulative electric power installed capacity from non-fossil fuel-based energy resources and reduce the emission intensity of its GDP by 45 per cent from 2005 levels by 2030. India’s goal to achieve 500 GW of non-fossil-based electricity generation capacity by 2030 aligns with its efforts to be Net Zero by 2070.
The International Solar Alliance (‘ISA’) was formed at the COP21 held in Paris in 2015, as a joint effort by India and France. It is an international platform with 94 member countries. It works with governments to improve energy access and security worldwide and promote solar power as a sustainable way to transition to a carbon- neutral future.
The idea for the One Sun One World One Grid (‘OSOWOG’) initiative was put forth by India at the First Assembly of the ISA in October 2018. The vision behind the OSOWOG initiative is the mantra that “the sun never sets”. This initiative aims to connect different regional grids through a common grid that will be used to transfer renewable energy power and, thus, realize the potential of renewable energy sources, especially solar energy.
In 2021, the Green Grids Initiative was launched in partnership with OSOWOG during the COP26 World Leaders’ Summit. The UK and India jointly adopted the One Sun Declaration which was endorsed by 92 countries.
It is imperative for India to not only find alternatives to coal-based fuels but also secure its energy demands in a sustainable manner. India urgently needs to shift to solar power due to three impending issues.
The geographical landscape of Gujarat and Rajasthan, characterized by vast expanses of arid desert terrain and an abundance of sunlight, positions these regions as prime areas for solar power generation.

Climate change litigation in other jurisdictions

Climate change litigation serves as a pivotal tool in advancing rights-based energy transitions and promoting energy justice, intertwined with human rights principles. Article 3(1) of the UNFCCC underscores the imperative for parties to safeguard the climate system for the well-being of present and future generations, grounded in equity and is reflective of their differentiated responsibilities and capabilities.
The topics of environmental degradation, pollution, industries, and infrastructure projects have long formed the corpus of cases before courts across countries. Of late, however, an increasing number of cases are to do with climate change, in one way or another. It is necessary to advert to the judgments from other jurisdictions, not because they have precedential value in the adjudication of this case but to highlight global trends in climate change litigation and to assess the manner in which courts have understood their own role in such litigation.

REASONS FOR MODIFICATION OF THE 19 APRIL 2021 JUDGMENT

There is no basis to impose a general prohibition in regard to the installation of transmission lines for the distribution of solar power in an area about 99,000 square kilometres. There are several reasons due to which it is not feasible to convert all transmission lines into underground power transmission lines.

It is imperative to recognize the intricate interface between the conservation of an endangered species, such as the Great Indian Bustard, and the imperative of protecting against climate change.

India’s commitment to promoting renewable energy sources, particularly in regions like Gujarat and Rajasthan, aligns with its broader sustainable development objectives.

India’s commitment to sustainable development is also underpinned by its international obligations and commitments. As a signatory to various international conventions and agreements, including the UNFCCC and the Convention on Biological Diversity, India has pledged to uphold principles of environmental stewardship, biodiversity conservation, and climate action on the global stage.
It is the duty of the Court to give effect to international agreements and treaties to which India is a party.

India’s international obligations and commitments in the present case have not been enacted in domestic law. Regardless, the Court must be alive to these obligations while adjudicating writ petitions which seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India’s international commitments as well as the right to be free from the adverse effects of climate change.

While balancing two equally crucial goals – the conservation of the GIB on one hand, with the conservation of the environment as a whole on the other hand – it is necessary to adopt a holistic approach which does not sacrifice either of the two goals at the altar of the other.

The decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy. While adjudicating writ petitions which seek reliefs which are of the nature sought in the present case, the Court must conduct judicial review while relying on domain experts.

DECISION OF THE COURT

The Court constituted an Expert Committee for among other things:

Determining the scope, feasibility and extent of overhead and underground electric lines in the area identified as priority areas in the reports of the Wildlife Institute of India in the States of Rajasthan and Gujarat.
Identifying the need for adopting conservation and protection measures for the GIB as well as other fauna specific to the topography.
Identification of the measures to be adopted in the priority areas to ensure the long- term survival of the GIB and facilitating an increase in its population.
Evaluating the potential consequences of climate change on GIB habitats, considering factors such as shifting precipitation patterns, temperature extremes, habitat degradation and developing adaptive management strategies to enhance their resilience;
Identification of suitable options in the context of sustainable development in the matter of laying power lines in the future. The alternatives identified should balance the conservation and protection of the GIB with the arrangement of power lines in a manner that would facilitate the fulfilment of the international commitments made by India for developing renewable sources of energy.

The injunction imposed in the order dated 19 April 2021 in respect of the area described as the priority and potential areas was recalled subject to the condition that the Expert Committee appointed by the Court may lay down suitable parameters covering both the priority and potential areas.

The Committee was requested to complete its task and submit a report to the Court through the Union Government on or before 31 July 2024.

This date of 31 July 2024 was upon request of the Committee extended to 15 August 2024. There is no further update in this regard in the public domain.

VIEWPOINT

It is noteworthy that the Right to life or personal liberty except according to procedure established by law under Article 21 of the Constitution and the Right to equality before the law or the equal protection of the laws within the territory of India under Article 14 of the Constitution are seen as important sources of the Right to a Clean Environment and the Right Against the Adverse Effects of Climate Change. While interpreting the two fundamental rights enshrined under Article 21 read with Article 14 of the Constitution, the Court has sought to give effect to the international agreements and treaties to which India is a party, even in the absence of specific domestic law.

The United Nations General Assembly has taken the resolution, for adopting 17 Sustainable Development Goals (SDGs), with 169 targets and 304 indicators, on 25th September, 2015 under the official agenda “Transforming our world: the 2030 Agenda for Sustainable Development”. India is a party to the said Resolution and has strongly affirmed its commitment to Agenda 2030 at the Sustainable Development Summit in New York on September 25, 2015. The list of 17 SDGs adopted by the United Nations include among other things, ensure access to affordable, reliable, sustainable and modern energy for all, ensure sustainable consumption and production patterns
Arguably, there is a good case to read the foregoing goals into the said Article 21 and Article 14 as well.

The Court in this matter has opined that;
“It is the duty of the Court to give effect to international agreements and treaties to which India is a party.

…

India’s international obligations and commitments in the present case have not been enacted in domestic law. Regardless, the Court must be alive to these obligations while adjudicating writ petitions which seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India’s international commitments as well as the right to be free from the adverse effects of climate change.”

In this regard, reference to Article 253 read with Entry 13 and 14 of List 1 under the Seventh Schedule of the Constitution is inescapable.

Article 253 read with Entry 13 and 14 of List 1 under the Seventh Schedule of the Constitution provides power to the Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body, entered into by the Government of India.
The above Article reflects that the Constitution has adopted the principle of ‘dualism’. This implies that international law is not directly applicable domestically; it must be implemented through a law made by the Parliament.

The Court has on certain occasions and rulings digressed from the principle of ‘dualism’ on the logic that Customary International Law, unless there exists a domestic law which contradicts the same, may be accepted.

In the matter of Vishaka & Ors. v. State of Rajasthan & Ors., MANU/SC/0786/1997, the Court held that international conventions and laws can be considered for construing domestic laws if they are not inconsistent with the domestic laws.

However, in the present case, the Court has stated that ‘It is the duty of the Court to give effect to international agreements and treaties to which India is a party.’

It is not in question that climate change concerns are real, and so are India’s international commitments towards achieving net-zero emission by 2070 and interim goals to achieve the foregoing. While the courts certainly have a crucial role in protection of the environment and holding the government accountable as well, arguably this judgment of the Court may be seen as encroaching the domain of the legislature. These concerns should under ideal circumstances be addressed by appropriate domestic legislation.

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