Thursday, May 30, 2024

Time to Nurture Nature

In a landmark verdict, the Court said that citizens’ right against adverse effects of climate change is part of the right to life and equality. But will the State be willing to crack down on unbridled development?

By Sanjay Raman Sinha

The meaning of right to life has been enlarged once again. In a far reaching judgment, the Supreme Court has said that the right against adverse effects of climate change is part of the right to life and the right to equality.

The issues of the case (MK Ranjitsinh & Ors. vs Union of India & Ors.) were complex and connected with environment conservation, sustainable renewable energy infrastructure and development policy. The Court stood strongly for the right to a healthy environment, shielding citizens from the adverse effects of climate change. 

The three-judge bench, led by Chief Justice DY Chandrachud and comprising Justices JB Pardiwala and Manoj Misra, said: “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.”

The decision came on a petition filed on March 21 by wildlife activist MK Ranjitsing Jhala and others for the conservation of the Great Indian Bustard, which is facing extinction. This bird is found only in Rajasthan and Gujarat. On April 19, 2021, a Supreme Court bench had ordered a ban on the installation of overhead transmission lines in an area of about 99,000 square kilometres and considered converting overhead low and high-voltage lines into underground power lines. This was to protect the bird from electrocution, as brought out by the petition. 

However, the Court also widened the canvas to include environmental protection, governmental policies related to climate change and its impact on the citizenry. The bench said: “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.” It further observed: “However, this does not mean that the people of India do not have a right against the adverse effects of climate change.”

How the environment and concomitant fundamental rights have developed as a jurisprudence is amply brought forth in the verdict, which said that the responsibility of the State is cogently delineated in the Constitution.

The Directive Principles of State Policy Article 48A of the Constitution provides that the State shall endeavour to protect and improve the environment and safeguard the forests and wildlife 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 wildlife, and to have compassion for living creatures. Although these are not justiciable provisions, they are indications that the Constitution recognises the importance of the natural world.  

This is not the first time that the apex court has redefined and expanded the scope of the right to life. If the Puttaswamy judgment defined right to life to include individual privacy, then in the Navtej Singh Johar case, the Supreme Court affirmed that sexual orientation was an inherent part of identity, dignity and autonomy of the LGBTQ+ community and formed an inalienable part of the right to life. This time, however, the Court affirmed the right against the adverse effects of climate change.

Environment jurisprudence has evolved with time in the country. Through various verdicts, the rights of citizens vis-a-vis the environment have been exposited by the Supreme Court.  

In MC Mehta vs Kamal Nath, the Supreme Court held that Articles 48A and 51A (g) must be interpreted in the light of Article 21: “…. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for ‘life’, would be hazardous to ‘life’ within the mea­ning of Article 21 of the Constitution.”

In Virender Gaur vs State of Haryana, the Court recognised the right to a clean environment: “Environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.”

In Karnataka Industrial Areas Development Board vs C. Kenchappa, the Supreme Court took note of the adverse effects of rising sea levels and global temperatures. In Bombay Dyeing & Mfg. Co. Ltd. vs Bombay Environmental Action Group, the apex court recognised that climate change posed a “major threat” to the environment.

Climate change is a worldwide phenomenon and India is among the many countries bearing its brunt. Climate change and environmental degradation lead to food and water shortages and monsoon vagaries impact agriculture. All this is affecting poorer communities more than the richer ones. 

NASA website states: “While Earth’s climate has changed throughout its history, the current warming is happening at a rate not seen in the past 10,000 years. The planet’s average surface temperature has risen about 2 degrees Fahrenheit since the late 19th century, a change driven largely by increased carbon dioxide emissions into the atmosphere and other human activities. All this is changing global climate for the worse.”

To make matters worse, industrial pollution remains unbridled. While global pacts try to rein in pollution and carbon emissions by nations, issues of funds and technology stymie the mission.

Kalyan Singh Rawat, an award-winning environmentalist, told India Legal: “The biggest reason for climate change is man’s extremely materialistic development activities. Excessive use of bio-energy resources is giving rise to air pollution which is the main cause of global warming. These lead to glaciers melting rapidly. Irregular monsoons are causing floods. Plus, incidents of cloud bursts have increased manifold. All these cause huge loss of life and property.”

He added that due to over-exploitation of forests, natural water sources have started drying up. Many animal species have reached the verge of extinction due to climate change. “This makes it necessary to reduce carbon emissions and greenhouse gases like methane. The participation of every person has to be ensured in stopping climate change,” he said.

He suggested that environment friendly lifestyles will have to be adopted. Governments should prepare plans to save nature’s biodiversity. Unnecessary construction work has to be reduced. Measures should be taken to control human activities in the Himalayan region. Agricultural land should be used minimally for construction purposes. Before setting up any big project, it must be ensured that a committee of experts/scientists constituted by the Supreme Court investigates the environmental fallouts of the proposed project, he said.

Climate change litigation is an important way to promote energy justice as linked with human rights principles. Internationally, courts have been confronted with the challenging task of adjudicating cases where significant issues related to climate change are at stake. The topics of environmental degradation, pollution, industries, and infrastructure projects have been dealt with courts the world over. Lately, however, an increasing number of cases are to do with climate change. 

It is pertinent to mention that the European Court of Human Rights recently given an important verdict in Strasbourg, France, where the crucial question was: Does government inaction on climate change violate human rights? Europe’s highest human rights court ruled that countries must better protect their people from the consequences of climate change. The verdict is seen as a landmark one with implications for future legal battles concerning the impact of climate change on people’s fundamental rights.

In the Indian scenario, the tug of war between development and environment has been playing out for long and the judiciary has done a commendable job in making a case for sustainable development. The right of every generation to get benefits from natural resources forms the crux of the Inter-Generational Equity Principle. It is also the cardinal theme of the Public Trust doctrine which enjoins on the State the duty to conserve and maintain public natural resources for the benefit of present and future generations.  

Furthermore, the Inter-Generational Equity Principle is based on non discrimination. Hence, the poor and the disadvantaged have as much right to a clean and safe environment as the well off. In many cases, the legal battle is not strong enough to tackle unbridled environment unfriendly development. A case for future generations has a strong moral and motive power and can foster on the State the obligation to protect life.


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