The Great Indian Bustard and climate action verdict

With the final decision of India’s top court still pending, this is an ideal chance for the judiciary to pursue the just transition framework and enable inclusive and equitable climate action

April 18, 2024 12:16 am | Updated 01:54 am IST

‘There is now space for initiating a discourse on the content of the right’

‘There is now space for initiating a discourse on the content of the right’ | Photo Credit: Getty Images/iStockphoto

In a recent judgment, the Supreme Court of India has recognised the existence of a fundamental right to be free from the adverse impacts of climate change (hereinafter ‘the right’). The judgment has garnered significant attention from environmentalists, mostly focusing only on its impacts on the protection of the Great Indian Bustard. Taking a more comprehensive view, this article analyses the judgment from the lens of inclusive climate action. It argues that first, by limiting itself to only recognising the right, the Court has allowed time and space for a productive discourse on the right’s content. Accordingly, this could enable a more informed articulation of the right in the future. Second, given the nature of the core issue in this case, using the just transition framework is an excellent approach forward. It can facilitate equitable climate action, including, articulation of a more reflexive and inclusive right.

The Right

The States of Rajasthan and Gujarat are home to the critically endangered Great Indian Bustard. At the same time, both States also hold significant potential for the development of solar and wind power. In 2019, certain public-spirited individuals (petitioners), filed a public interest litigation, seeking conservation of the bustard. In the interim, they sought an order seeking a ban on further construction of solar and wind energy infrastructure, and the laying of overhead power transmission lines linked to these. They argued that these power lines were a hazard, causing the bustards to die due to frequent collisions with the lines. In its decision the Supreme Court imposed a blanket ban on the laying of overhead power lines in an area of 99,000 square kilometres; this included areas identified as priority and potential areas for bustard conservation. The Court also passed an order for undergrounding existing power lines, both high and low voltage.

The government challenged this order citing India’s international climate commitments on transitioning to non-fossil fuels and reducing carbon emissions. It argued that the blanket ban was issued for an area much larger than the actual area in which the bustard dwells. This area, it reiterated, held a major proportion of the country’s wind and solar energy potential. Further, it argued that undergrounding power lines was practically impossible. Lastly, it attributed the decline in the bustard population to other factors such as poaching, habitat destruction, and predation.

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In its decision on March 21, 2024, the Court modified the earlier order, recalling the blanket prohibition on transmission lines. It left the recalibration of the order to scientific experts. To that end, it set up an expert committee to, inter alia, assess the feasibility of undergrounding power lines, and identifying measures for bustard conservation. This committee is required to submit its report by July 2024, after which the Court will pronounce its final judgment.

In a first, the Court used this opportunity to recognise the existence of a right against the adverse impacts of climate change. It noted that the right is recognised by the right to equality (Article 14) and the right to life (Article 21) enshrined under the Constitution of India. The Court began by explaining the threat posed by the impacts of climate change to the enjoyment of the right to life. Thereafter, it highlighted that disproportionate vulnerability to these impacts threatens the affected persons’ right to equality. Concluding this discussion, the Court found that the source of the right is in a conjunctive reading of judicial jurisprudence on Articles 21 and 14; India’s climate change action and international commitments, and, the scientific consensus on the adverse impacts of climate change.

Notably, the Court recognised the existence of the right, but did not articulate it any further. Additionally, it also underlined the need for articulation. However, it steered clear of undertaking that task. Arguably, the conscious choice of not articulating the right and only recognising it departs from the Court’s usual practice in environmental cases. Much of Indian environmental law has developed through the Court’s judicial decisions in public interest cases. In several cases, it has transplanted, recognised, and articulated environmental rights and legal principles. While appreciated for being proactive, this practice has been critiqued for judicial overreach and the creation of imprecise rights. Contrastingly, in this decision, the Court’s approach has been that of restraint. Arguably, this is an optimal approach at this early stage of the recognition of the right — in that, it catalyses the discourse on climate rights, simultaneously providing time and space for articulating a more informed right.

However, it must be noted that the Court’s recognition of the right does not appear in the operative part of the judgment. Therefore, it is not binding per se. While it will be instrumental in shaping future climate action, the extent to which it can do so remains to be seen.

Just transition framework

The central issue at stake was limiting the adverse impacts of renewable energy projects on the bustard. As rightly noted by conservationist Debadityo Sinha, the judgment approaches the central issue as presenting two competing choices, i.e., either protecting biodiversity or allowing mitigative climate action. In other words, it projects biodiversity protection and climate action as adversarial choices. Furthermore, the recognition of the right is also contextualised in this approach which juxtaposed biodiversity protection and mitigative climate action. Accordingly, the right so recognised only relates to protecting humans’ interests against climate change.

Going forward, adopting an alternative approach could preclude this conundrum. This approach is: utilising the just transition framework. Currently being used in climate cases around the world, it aims to make transitions to a low carbon economy more equitable and inclusive. It particularly serves the interests of those most affected by such transitions. This includes, inter alia, workers, vulnerable communities, and small and medium-sized enterprises. Where the core issue is similar to the one in the present case, using the just transitions framework is an excellent approach. In that it allows protecting underrepresented interests (in the instant case, of the bustard) being threatened by slow carbon transition projects (in this case, solar energy).

This approach is advantageous in three ways. First, it will preclude climate action and protection of biodiversity from being pitted as adversarial choices. Instead, it can create a case for inclusive climate action, i.e., climate action alive to varied rights and interests. Second, it can enable the articulation of more reflexive and inclusive climate rights. To that end, utilising it in climate litigation can ensure that articulation and enforcement of climate rights are sensitive to the interests of the non-human nature and furthers ecological justice. Third, if the framework is used in the final decision of the Court, this case will be one of the first just transition litigations to consider a non-human interest. Of the existing just transition litigations globally, only one other case concerns protecting the interests of the non-human environment. Thus, the present case will be a frontrunner in such litigation. Theoretically, it will contribute to expanding the concept of a just transition to considering more than human interests.

A ‘shared burden’

Given that the final decision of the Court is still pending, this is an excellent opportunity for the judiciary to use the just transition framework and facilitate inclusive and equitable climate action. A right against climate change has been recognised and is yet to be articulated. This provides a productive space for initiating a discourse on the content of the right — an opportunity to make it inclusive and effective. However, this burden is a shared one. It falls not only on the state but also on activists, litigants, and academics — who provide content to rights by participating (indirectly or directly) in the process of their recognition, articulation, and enforcement.

Kanika Jamwal is a doctoral candidate in environmental law at the Faculty of Law, National University of Singapore, Singapore

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