The Great Indian Bustard and climate action verdict

 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

fundamental right to be free from the adverse impacts of climate change 

 judgment, 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 Right

Great Indian Bustard , solara and wind plant and conservation 

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

 

1 filed a public interest litigation, seeking conservation of the bustard.

 2 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.

 3 They argued that these power lines were a hazard, causing the bustards to die due to frequent collisions with the lines.

4  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.

5 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, held a major proportion of the country’s wind and solar energy potential. 
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• Further, it argued that undergrounding power lines was practically impossible.
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•  Lastly, it attributed the decline in the bustard population to other factors such as poaching, habitat destruction, and predation.

expert committee 

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  recognise the existence of a right against the adverse impacts of climate change

 1 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. 

2 Thereafter, it highlighted that disproportionate / not equal vulnerability to these impacts threatens the affected persons’ right to equality. 

 3 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. 

4 Court’s recognition of the right does not appear in the operative part of the judgment. Therefore, it is not binding per se / अपने आप से . 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  was limiting the adverse impacts of renewable energy projects on the bustard

As 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.

alternative approach 

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 / अन्य बातों के अलावा" , workers, vulnerable communities, and small and medium-sized enterprises. 

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.

source the hindu