The trend in climate change jurisprudence | Explained

What is the backdrop to the Supreme Court ruling that citizens have a right against the adverse effects of climate change? Why has a link been drawn between climate change and human rights? Is this happening in litigation in other countries too?

Updated - April 14, 2024 09:21 am IST

Published - April 14, 2024 04:40 am IST

Representational image of a farmer in his field under the sun

Representational image of a farmer in his field under the sun | Photo Credit: AP

The story so far: In a recent judgment, the Supreme Court ruled that citizens have a “right against the adverse effects of climate change”. The Court was giving its verdict in a case that raised concerns over multiple deaths of the Great Indian Bustard due to solar power transmission lines against India’s obligation to meet its emission reduction and increase its energy capacity through non-fossil fuel sources.

What is the context?

In recent years, one of the factors linked to the decline in the population of the Great Indian Bustard, an endangered species, are power lines in Rajasthan and Gujarat, which host several, large solar parks. The concern was that the birds collided against the overhead transmission lines. Environmentalists petitioned the Supreme Court in 2019, pleading that all overhead lines, existing and prospective, be shifted underground. Private and public power companies, supported by the Centre’s Ministry of New and Renewable Energy (MNRE), contended that shifting all overhead lines underground would be expensive and impractical, and would significantly hike the cost of solar power, undermining India’s commitment to green growth. The Court had constituted a committee of experts in April 2021 to determine which transmission lines ought to go underground and which ones could remain overground. In its latest judgment, the Court has continued to task an expert committee with overseeing the electrification but quite emphatically stressed that underground electrification — as the government and power-developers have argued — would hinder India’s road to solar electrification.

What does the judgment say on human rights and climate change?

The Court notes that the Indian government has taken multiple steps through legislation as well mission-led programmes to address climate change. The Wild Life (Protection) Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, the Environment (Protection) Act 1986, the National Green Tribunal Act 2010, were among those referenced in the judgment; the National Solar Mission, the National Mission for Enhanced Energy Efficiency and, the National Mission for a Green India were also mentioned. “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 Court noted.

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Despite constitutional guarantees that give citizens equality before the law and right to life and personal liberty, it was now necessary, in the Court’s view, to explicitly link the impact of climate change as something which impedes these rights of liberty, life and equality. “This is perhaps because this right (against climate change) and the right to a clean environment are two sides of the same coin. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21,” the judgment notes. The Court also said that if vulnerable communities were affected, say by coastal erosion, land degradation, or if people were made additionally vulnerable to disease, agricultural losses, storms and flooding — all indirectly linked to climate change — then rights under these Articles (14 and 21) would be violated, further necessitating an explicit link between climate change and rights.

Are their international precedents?

The link between climate change and human rights has grown stronger since the Paris Agreement of 2015. The preamble of the Agreement had references to “human rights.”

In a 2023 research paper, Doreen Lustig and Ilil Gabison of Tel Aviv University highlighted that there was a growing convergence between the fields of international human rights law (IHRL) and climate change. Several reports of UN human rights bodies and Human Rights Council resolutions are now drawing a link between rights and climate change. In 2005, Sheila Watt-Cloutier, a Canadian-Inuk activist, in her capacity as chair of the Inuit Circumpolar Conference (now known as the Inuit Circumpolar Council), petitioned the Inter-American Commission on Human Rights (IACHR) to get relief for human rights violations resulting from the impacts of climate change. This was among the first explicit links translating the impact of the climate crisis into human rights language. Scholars also argue that the framing of climate change as affecting future generations and endangering their right to a liveable planet follows from the link to human rights. That is how the climate activism, for instance, of Greta Thunberg and her ‘school strikes for climate’, must be understood.

What are the implications of such a ruling?

Supreme Court judgments on environmental matters have often significantly altered public discourse and governmental action. For instance, decisions in the M.C. Mehta verus Union of India, the Godavarman Thirumulpad cases have been the foundation of subsequent environmental action. In the current case of the Great Indian Bustard too, the ruling has come with the Court underlining the necessity for expanding electricity production for solar energy sources. While this is state-backed, India has also underlined its right at international fora to continue to rely on coal plants and fossil fuels. Whether this will be seen by Indians as the government failing to protect them against the effects of climate change remains to be seen.

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