Council on Energy, Environment and Water Integrated | International | Independent

The Great Indian Judgment: What Supreme Court’s Discussion on Climate Change Means
In its Great Indian Bustard ruling, the SC highlighted the need to balance clean energy access & conservation.

Tulika Gupta, Ushashi Datta, Aishwarya Jain, Aishwarya Tiwari
23 May 2024

What do the women's association ‘KlimaSeniorinnen’ in Switzerland and the Great Indian Bustard (GIB) have in common? Both have become unlikely champions for climate justice.

The European Court of Human Rights (ECHR) in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland recently ruled that Switzerland’s inaction to comply with its climate commitments violated its citizens' right to life and well-being. Meanwhile, in India, the Supreme Court (SC) in April historically discussed if constitutional protections under Articles 14 and 21 (Right to Equality and Right to Life respectively) include a right against the adverse effects of climate change. As this tripartite dilemma between conservation, human rights, and sustainable development unfolded in M.K. Ranjitsinh v. Union of India, we consider its implications for climate jurisprudence.

The great Indian trade-off?

The GIB is a critically endangered species whose numbers are dwindling in India, owing to multiple threats, one of which is its collision with high-tension power lines in their habitats in Rajasthan and Gujarat. To protect the GIB, the SC ordered in 2021 that all high-tension cables in these areas be laid underground.

However, laying high-tension cables underground could make solar power projects unviable for companies, slowing India's efforts to cut global emissions in the fight against climate change. The government, therefore, sought a modification of the 2021 ruling to support power projects in solar-rich Gujarat and Rajasthan — resulting in the current judgement.

Factoring the trade-off between India’s climate obligations and responsibility to protect the GIB, a three-judge bench of the Supreme Court withdrew its blanket order demanding that all high-tension cables be laid underground. Instead, it appointed an Expert Committee to determine how to protect the Great Indian Bustard the best. In doing so, the court effectively chose to leave the environmental policy to the experts.

In the judgement, the Supreme Court also highlighted:

  • India’s long-standing international obligation to reduce emissions requires the deployment of renewable energy as a “fundamental necessity”
  • The lack of single umbrella legislation on climate change in India could curtail the right against the adverse impacts of climate change (an extension of the right to a clean and healthy environment) read into Articles 14 and 21
  • The inequality stemming from asymmetrical and unpredictable climate impacts and the lack of access to clean energy are central to the right to a clean environment.
  • Conservation and sustainable development cannot be pitted against each other; the benefits of the blanket ruling would also not avert the existential threat of climate change.

What does this SC judgment mean?

Some have hailed this judgement as a positive progression of environmental jurisprudence, while others have critiqued it for not going far enough to protect the GIB. The big question is, what does this judgment mean for 1.4 billion Indians?

First, the Supreme Court recognised sustainable development as part of India’s global climate goals, balancing clean and affordable energy with conservation efforts. The Court has a long history of harmonising environmental considerations with development imperatives, as seen in Samaj Parivartana and Essar Oil. However, environmental protections existed even before the climate crisis. For the first time, this judgment introduces a crucial new link between climate change and sustainable development to India’s jurisprudence.

Second, the judgment only discusses and does not enshrine a right against the adverse effects of climate change. An “inversion test” checks whether the operative portion of a judgment – ratio decidendi – would remain the same even if the obiter dicta – passing observations in the judgment – were removed. A plain reading of the GIB judgment shows that the decision to modify the earlier order to underground all power cables would stand regardless of the discussion on a new right against the adverse impacts of climate change. Essentially, not everything said in a judgment operates as legal precedent. However, viewpoints on this diverge: some experts agree that the Court has recognised a new right, while others argue it has not.

Third, regardless of the outcome, the judgment is a powerful nudge to the Executive to bring forth a comprehensive climate law for India. Several Private Member Bills have recently been introduced to address emissions mitigation and energy efficiency, establish a national committee on climate change, and enshrine net-zero goals. Yet, a unified climate change law remains elusive. A climate law could resolve uncertainties and inconsistencies in addressing climate change considerations when confronted with developmental imperatives.

Global action to legislate against climate inaction

There is a growing global trend towards the use of legal tools to drive climate action. In Sacchi, et al. v. Argentina, a group of children petitioned the United Nations Committee on the Rights of the Child (UNCRC) in 2019, arguing that insufficient action on emissions reduction violated their human rights. Even though the case was rejected on procedural grounds, UNCRC acknowledged that children’s rights to life, health, and culture are affected by climate change. Climate-vulnerable island nations like Vanuatu have also sought an intervention from the International Court of Justice (ICJ) to establish a clear legal obligation for all states to protect the climate system for present and future generations.

Beyond court rulings, a wave of climate legislation is sweeping the globe. Out of 148 countries with net-zero targets, 35 have either achieved or enshrined their net-zero goals in law. Uganda and Chile have enacted comprehensive climate laws outlining their adaptation and mitigation plans and rights and duties for individuals and corporations. The United Kingdom and Australia have established independent statutory bodies to advise their governments on climate action. From establishing government accountability to fostering innovative solutions, each example highlights the targeted use of legal frameworks for climate action, providing a blueprint for India.

An Indian climate law: Enshrining a vision & mission for sustainable development

The latest SC judgment is a clarion call for India to enact a comprehensive climate change law to lay out its unique vision for climate-compatible development. A climate law for India could:

  • Define India’s vision for a Viksit Bharat in 2047 by articulating its pathway to sustainable development, where climate commitments are inextricably linked to its common but differentiated responsibility.
  • Strengthen cooperative federalism by creating frameworks for inter-departmental coordination, collaboration and convergence among central, state and local governments.  
  • Lay out legally binding protocols for measurement, reporting and verification (MRV) of India’s climate actions across sectors
  • Create a more predictable and stable investment environment for industries by unlocking finance for clean technologies and climate-resilient infrastructure.

The momentum provided by the judiciary is the perfect opportunity for India to develop a comprehensive climate law for a cleaner and healthier planet for all.

Tulika Gupta is a Research Analyst, Ushashi Datta is a Global South Fellow, Aishwarya Jain and Aishwarya Tiwari are Research Analysts at the Council on Energy, Environment and Water (CEEW). Views are personal. Send your comments to [email protected] 

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