The seeds of climate justice that were sown a few years ago in several milestone judgments by the apex court (the precautionary principle, the principle of sustainable development, polluter pays principle which has been weaved into Article 21 of the Constitution of India), have now perhaps given rise to its first significant shoot in the form of the judgment delivered earlier this week in the now famous Great Indian Bustard (GIB) case (MK Ranjitsinh and Ors Vs Union of India-WPC No.838 of 2019).
The classical balancing between environment and development, slightly modified in the present context as green development, has given rise to a new jurisprudence by the Hon’ble Supreme Court of India. Article 21, the most potent fundamental right i.e. the right to life and the most important leg of the triumvirate of fundamental rights, has now been interpreted to mean, the “right to be free from the adverse impact of climate change”. The above judgment also needs to be seen in the context of the recent statement by the Reserve Bank of India where it significantly stated that climate change can stoke inflation and stunted growth.
While the apex court has to be lauded for fortifying and expanding the right to a healthy environment to include the right to be free from the adverse effects of climate change, the real challenge would be to work out the modalities of how such a right can be enforced within the current framework of environment and energy law and in the absence of a robust climate law for the country. The same has also been echoed in this judgment but perhaps needs to be more emphasized.
This particular case, where the cost of wildlife mitigation through undergrounding of electric cables to save the critically endangered GIB had to be balanced with the larger cleaner energy goals to meet the climate target which has been nationally committed to the global community. The immediate beneficiary of this significant order is of course the project proponent who are setting up renewable energy projects such as solar projects, who had not envisaged the extra mitigation cost in their initial project proposals.
But to look at this case merely with such a narrow lens of green energy development versus wildlife mitigation would be folly. There are larger systemic questions which need to be answered in the hearings to come that are still elusive in the larger environmental law discourse.
First, an administrative categorization albeit from the apex wildlife scientific body such as the Wildlife Institute of India, cannot be drafted into a legal category through court orders.
Second, in this case, the three categories being priority areas, potential areas and additional important areas as GIB habitats needs to be examined under the lens of the Wildlife Protection Act, 1972 and a due process ought to be followed before it impacts not only the critically endangered species such as GIB which is sought to be protected but also the communities and the other stakeholders who may be impacted by such declarations. In other words, the cure cannot be more harmful than the disease especially when we alienate communities and stakeholders who are integral to the ecosystem.
Third, it is true that an enormous area gets covered to the tune of approximately 99,000 sq km and is a huge area to be closed or prohibitively regulated for green energy development which perhaps weighed on the minds of the judges giving the latest Order on GIB by allowing overhead transmission lines instead of underground cables for wheeling of renewable energy power.
However, critical habitats for critically endangered species such as GIB also need to be prioritized and statutorily covered under the Wildlife Protection Act, 1972.
Fourth, the Forest Rights Act, 2006 initiated the concept of Critical Habitats where the rights of the communities could be modified, and the area could be secured for conservation in the future and could not be diverted for any other developmental purposes.
The ministry of environment, forest and climate change, which is the author of such Guidelines for Critical Habitats is often quiet on this provision which seriously needs to be invoked in cases such as this.
Fifth, the myth about renewable energy projects and their environmental impact needs to be examined with an open mind. The setting up of the infrastructure for renewable energy development could be as, if not more, harmful than any other establishment of an industrial project for manufacturing goods.
The output of an industrial establishment may be clean but the establishment itself may have equal or more environmental impacts and sometimes unintended impacts such as the present case of GIB. The courts therefore have to tread cautiously in looking at the larger climate targets when the road to such targets is not environmentally benign.
Sixth, the importance and potential of solar power as a source of renewable energy cannot be denied. However, the process of harnessing that energy, the current policy framework, the international alignments and its effectiveness nationally such as the International Solar Alliance, the pragmatic approach to ‘One Sun One World One Grid’, the Green Grids Initiative and all such alternatives to conventional fuel requires a huge effort nationally for it to see it in practice. While the judgment/order lauds these initiatives, it would be imperative for the apex court to seek the exact steps that have been taken to give effect to such initiatives.
In fact, an initiative since 1994 to formulate the Renewable Energy Act for India, which could actually give impetus to all the renewable energy projects in India is still to see the light of the day. The attempts by the then Ministry of Non-Conventional Energy Sources (MNES) in 1994, thereafter in 2009 by the Ministry of New and Renewable Energy (MNRE) and again in 2011 and then in 2016 need a fresh look in the light of this significant judgment.
One of the challenges of propounded principles by courts has always been the concomitant framework for implementation. This judgment again throws the door wide open to developing a pragmatic road map backed by strong legislation on renewable energy which could actually guide us to the climate targets that we so eloquently profess and communicate before the world community and truly ensure climate justice.
Sanjay Upadhyay is a senior advocate in the Supreme Court and has written a widely known paper on the top court's Godavarman judgement of 1995, titled The Godavarman Story. The views expressed are personal.
Climate litigation gets shot in the arm, climate justice is not far behind
5
0
10.04.2024
The seeds of climate justice that were sown a few years ago in several milestone judgments by the apex court (the precautionary principle, the principle of sustainable development, polluter pays principle which has been weaved into Article 21 of the Constitution of India), have now perhaps given rise to its first significant shoot in the form of the judgment delivered earlier this week in the now famous Great Indian Bustard (GIB) case (MK Ranjitsinh and Ors Vs Union of India-WPC No.838 of 2019).
The classical balancing between environment and development, slightly modified in the present context as green development, has given rise to a new jurisprudence by the Hon’ble Supreme Court of India. Article 21, the most potent fundamental right i.e. the right to life and the most important leg of the triumvirate of fundamental rights, has now been interpreted to mean, the “right to be free from the adverse impact of climate change”. The above judgment also needs to be seen in the context of the recent statement by the Reserve Bank of India where it significantly stated that climate change can stoke inflation and stunted growth.
While the apex court has to be lauded for fortifying and expanding the right to a healthy environment to include the right to be free from the adverse effects of climate change, the real challenge would be to work out the modalities of how such a right can be enforced within the current framework of environment and energy law and in the absence of a robust climate law for the country. The same has also been echoed in this judgment but perhaps needs to be more emphasized.
This particular case,........
© hindustantimes
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Rami G Khouri
Mort Laitner
Donald Low
Ali Fathollah-Nejad
Nikkei Editorial
Michael Kwet
