Case Brief: Re, the Right to be Free from the Adverse Effects of Climate Change

Re, the Right to a Healthy Environment and the Right to be Free from the Adverse Effects of Climate Change

Visual Description [Alt Text]:
Image 1: There are the following texts — Case Brief of M K Ranjitsinh & Ors. vs. Union of India & Ors. [Writ Petition (Civil) №838 of 2019 | 2024 INSC 280] concerning the “Right to a Clean Environment and the Right against the Adverse Effects of Climate Change”, prepared by Adv. Abhishek Kumar of The Sangyan. On the top of the cover is the picture of Great Indian Bustards by ©Radheshyam Bishnoi. Along with that is the QR code with the subtitle “Scan for The Judgment” and the logo of The Sangyan on a background with shades of orange, green, and black colour.

Contextual background

In a recent crucial judgment of the Supreme Court of India, Chief Justice of India, Dr Dhananjaya Y Chandrachud authored the judgment for the bench comprising of Justice J B Pardiwala and Justice Manoj Misra, linked the right against adverse effects of climate change to Articles 14 and 21, and held that the right to life and equality cannot be fully realised without a clean and healthy environment and that “Right Against Adverse Effects of Climate Change” is a distinct Fundamental Human Right recognised by Articles 14 and 21 of the Indian Constitution.

The case brief disseminates this crucial judgment and provides a summary using important paragraphs and excerpts from the M K Ranjitsinh & Ors. vs. Union of India & Ors., wherein the Supreme Court of India, upheld the Right Against Adverse Effects of Climate Change as a distinct Fundamental and Human Right.

Visual Description [Alt Text]:
Image 2: There are the following texts — Overview: “In the context of the dwindling population of GIBs and the existential threat looming over them, a writ petition invoking the constitutional jurisdiction under Article 32 — Writ Petition (Civil) No 838 of 2019 — was instituted for seeking directions relating to the conservation of the species. [Para 4]” and Background — “In the order of this Court dated 19 April 2021, restrictions were imposed on the setting up of overhead transmission lines in a large swath of territory of about 99,000 square kilometres. [Para 5] This Court appointed a committee for assessing the feasibility of laying high voltage underground power lines. In paragraph 18 of its order, this Court 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. Moreover, the court directed that in all cases, where it is found feasible to convert the overhead lines to underground power lines, this shall be undertaken and completed within a year. [Para 6]; and Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy filed IA No 149293 of 2021 on 17 November 2021 for modification of the directions issued by the judgment of this Court dated 19 April 2021. [Para 7]”. At the bottom is — “M K Ranjitsinh & Ors. vs. Union of India & Ors. [Writ Petition (Civil) №838 of 2019 | 2024 INSC 280] and the logo of The Sangyan on a background with shades of orange, green, and black colour.

The Apex Court while holding stated that: “Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Clause (g) of Article 51A stipulates that every citizen of India shall be responsible for protecting and improving the natural environment including forests, lakes, rivers and wild life, and having 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. The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change.” [Paragraph 20]

Visual Description [Alt Text]:
Image 3: There are the following texts — “Re, The Right to a Healthy Environment and the Right to be Free from the Adverse Effects of Climate Change” [Title]; “Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, 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. The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change. [Para 20]” and “Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change. This is perhaps because this right 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. [Para 24] 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. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. This is better understood with the help of an example. 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. [Para 25] The right to equality under Article 14 and the right to life under Article 21 must be appreciated in the context of the decisions of this Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects. From these, it emerges that there is a right to be free from the adverse effects of climate change. [Para 27] In 2019, the Committee on the Elimination of Discrimination Against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, the Committee on the Rights of the Child, and the Committee on the Rights of Persons with Disabilities jointly issued a statement in which they recognised that “…State parties have obligations, including extra-territorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.” [Para 28]”. At the bottom is — “M K Ranjitsinh & Ors. vs. Union of India & Ors. [Writ Petition (Civil) №838 of 2019 | 2024 INSC 280] and the logo of The Sangyan on a background with shades of orange, green, and black colour.

Link to the Complete Judgment

https://main.sci.gov.in/supremecourt/2019/20754/20754_2019_1_25_51677_Judgement_21-Mar-2024.pdf

Visual Description [Alt Text]:
Image 4: There are the following texts — “The Modified Judgement” [Title]. “This Court has underscored the importance of taking proactive measures to protect the GIB. The GIB is seriously endangered as a species. At the same time, it has emerged in the course of the hearing that 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. [Para 52] In addition to the reasons listed, 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. Unlike the conventional notion of sustainable development, which often pits economic growth against environmental conservation, the dilemma here involves a nuanced interplay between safeguarding biodiversity and mitigating the impact of climate change. It is not a binary choice between conservation and development but rather a dynamic interplay between protecting a critically endangered species and addressing the pressing global challenge of climate change. [Para 53] 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 delicate balance between the two aims must not be disturbed. Rather, care must be taken by all actors including the state and the courts to ensure that both goals are met without compromising on either. Unlike other competing considerations, these do not exist in disjunctive silos. Therefore, a dilemma such as the present one does not permit the foregrounding of one of these as a priority, at the cost of the other. If this Court were to direct that the power transmission lines be undergrounded in the entire area delineated above, many other parts of the environment would be adversely impacted. Other endangered species may suffer due to the emission of harmful gases from fossil fuels. Rising temperatures and the attendant evils of climate change may not be halted in a timely fashion, leading to disastrous consequences for humankind and civilisation as a whole. The existential threat may not be averted. [Para 60]” At the bottom is — “M K Ranjitsinh & Ors. vs. Union of India & Ors. [Writ Petition (Civil) №838 of 2019 | 2024 INSC 280] and “Adv. Abhishek Kumar,
The Sangyan”. Above it is the logo and QR code of The Sangyan and Build Forward Better Campaign on a background with shades of orange, green, and black colour.

Important Excerpts from the Judgment

1. In the context of the dwindling population of GIBs and the existential threat looming over them, a writ petition invoking the constitutional jurisdiction under Article 32 — Writ Petition (Civil) No 838 of 2019 — was instituted for seeking directions relating to the conservation of the species. [Para 4]
2. In the order of this Court dated 19 April 2021, restrictions were imposed on the setting up of overhead transmission lines in a large swath of territory of about 99,000 square kilometres. [Para 5]
3. This Court appointed a committee for assessing the feasibility of laying high voltage underground power lines. In paragraph 18 of its order, this Court 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. Moreover, the court directed that in all cases, where it is found feasible to convert the overhead lines to underground power lines, this shall be undertaken and completed within a year. [Para 6]
4. Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy filed IA No 149293 of 2021 on 17 November 2021 for modification of the directions issued by the judgment of this Court dated 19 April 2021. [Para 7]
5. Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, 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. The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change. [Para 20]
6. Despite a plethora of decisions on the right to a clean environment, some decisions which recognise climate change as a serious threat, and national policies which seek to combat climate change, it is yet to be articulated that the people have a right against the adverse effects of climate change. This is perhaps because this right 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. [Para 24]
7. 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. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. This is better understood with the help of an example. 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. [Para 25]
8. The right to equality under Article 14 and the right to life under Article 21 must be appreciated in the context of the decisions of this Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects. From these, it emerges that there is a right to be free from the adverse effects of climate change. [Para 27]
9. In 2019, the Committee on the Elimination of Discrimination Against Women, the Committee on Economic, Social and Cultural Rights, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, the Committee on the Rights of the Child, and the Committee on the Rights of Persons with Disabilities jointly issued a statement in which they recognised that “…State parties have obligations, including extra-territorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.” [Para 28]
10. This Court has underscored the importance of taking proactive measures to protect the GIB. The GIB is seriously endangered as a species. At the same time, it has emerged in the course of the hearing that 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. [Para 52]
11. In addition to the reasons listed, 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. Unlike the conventional notion of sustainable development, which often pits economic growth against environmental conservation, the dilemma here involves a nuanced interplay between safeguarding biodiversity and mitigating the impact of climate change. It is not a binary choice between conservation and development but rather a dynamic interplay between protecting a critically endangered species and addressing the pressing global challenge of climate change. [Para 53]
12. 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 delicate balance between the two aims must not be disturbed. Rather, care must be taken by all actors including the state and the courts to ensure that both goals are met without compromising on either. Unlike other competing considerations, these do not exist in disjunctive silos. Therefore, a dilemma such as the present one does not permit the foregrounding of one of these as a priority, at the cost of the other. If this Court were to direct that the power transmission lines be undergrounded in the entire area delineated above, many other parts of the environment would be adversely impacted. Other endangered species may suffer due to the emission of harmful gases from fossil fuels. Rising temperatures and the attendant evils of climate change may not be halted in a timely fashion, leading to disastrous consequences for humankind and civilisation as a whole. The existential threat may not be averted. [Para 60]”

Prepared by —

Adv. Abhishek Kumar, Founder and Curator — The Sangyan

NCPEDP-Javed Abidi Fellow on Disability [2021–24]

linktr.ee/sangyan | thesangyan.in | abhishek.ncpedp@gmail.com