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TMI Blog2024 (5) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... itigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment. India's commitment to promoting renewable energy sources, particularly in regions like Gujarat and Rajasthan, aligns with its broader sustainable development objectives. By transitioning towards solar power and other renewable energy sources, India aims to not only reduce carbon emissions but also improve energy access, foster economic growth, and create employment opportunities - India s commitment to sustainable development is also underpinned by its international obligations and commitments. As a signatory to various international conventions and agreements, including the UNFCCC and the Convention on Biological Diversity, India has pledged to uphold principles of environmental stewardship, biodiversity conservation, and climate action on the global stage. Through partnerships, knowledge sharing, and collaborative action, India seeks to amplify the impact of its sustainable development efforts, contributing to collective efforts aimed at addressing global challenges. The Union of India and the concerned ministries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . M Qureshi, Adv. Mr. Animesh Rajoriya, Adv. Mr. M.g. Ramchandran, Sr. Adv. Ms. Hemantika Wahi, AOR Ms. Jesal Wahi, Adv. Ms. Ranjitha Ramchandran, Adv. Mr. Dr. Manish Singhvi, Sr. Adv. Mr. Rohit K. Singh, AOR Mr. Ranji Thomas, Sr. Adv. Mr. V. N. Raghupathy, AOR Mr. A. Karthik, AOR M/S. Vkc Law Offices, AOR Mr. Varun K Chopra, Adv. 4 Mr. Mehul Sharma, Adv. Ms. Arti Singh, AOR Mr. Aakashdeep Singh Roda, Adv. Ms. Pooja Singh, Adv. Mr. B P Singh, Adv. Mr. Devendra Singh, AOR Mrs. Priya Puri, AOR Mrs. Arundhati Katju, Adv. Mrs. Smriti Sinha, Adv. Mr. Sharad Kumar Puri, Adv. Mr. Vishwa Deepak Singh, Adv. Mrs. Pinki Aggarwal, Adv. Ms. Parul Shrama, Adv. Mr. Ankur Sood, AOR Mr. Gaurav Singh, Adv. Mr. Varun Agarwal, Adv. Mr. Vishrov Mukerjee, Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Girik Bhalla, Adv. Mr. Damodar Solanki, Adv. Mr. Karun Sharma, Adv. Ms. Rajkumari Divyasana, Adv. Mr. S. S. Shroff, AOR Mr. Mahesh Agarwal, Adv. Mr. Arshit Anand, Adv. Ms. Kamakshi Sehgal, Adv. Mr. E. C. Agrawala, AOR JUDGMENT Dr Dhananjaya Y Chandrachud, CJI Table of Contents A. The Great Indian Bustard .......................................................................................................3 B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an urgent acceleration in targeted conservation actions in order to prevent it from becoming functionally extinct within a few decades. 3. The Rajasthan government estimated that only about 125 GIBs were present in the year 2013 3 while IUCN placed the number of mature GIBs between 50 and 249. 4 There are significant factors bearing upon the dwindling numbers and low rate of reproduction of the existing population of these species. Pollution, climate change, predators and competition with invasive species are among the many threats that exacerbate the challenges faced by these vulnerable species. The attrition of the existing population of these endangered birds has been partly attributed to overhead transmission lines. GIBs usually lay a single egg which has an incubation period of approximately one month. The GIBs nest on open ground or in cavities in the soil. Consequently, their eggs are also laid and incubated on the ground. The eggs are therefore at risk of being preyed upon by local predators including mongooses, monitor lizards, and other birds. Cows may also trample on or crush the eggs while grazing in the grasslands. The loss of habitat is also a serious concern. As hum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a declaration that the two endangered birds constitute one meta population of the nation and that all state authorities are bound to cooperate and take all steps necessary to ensure their conservation and to implement the decisions of the Empowered Committee. B. The judgment dated 19 April 2021 and subsequent developments 5. 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. These directions were in IA No 85618 of 2020 in Writ Petition (Civil) No 838 of 2019. In the operative directions, this Court, observed : 14. In the light of the contentions urged on this aspect of the matter, we are conscious that the laying of the underground power line more particularly of high-voltage though not impossible, would require technical evaluation on case-to-case basis and an omnibus conclusion cannot be reached laying down a uniform method and directions cannot be issued unmindful of the fact situation. Though that be the position the consensus shall be that all low voltage powerlines to be laid in the priority and potential habitats of GIB shall in all cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d energy from renewable sources in the concerned area would cause pollution. 8. By an order dated 19 January 2024, this Court directed as follows: 1 (The) Attorney General for India states that a comprehensive status report will be filed before this Court indicating the way forward as proposed by the Union Government which would take into account both the need for preservation of the Great Indian Bustard which faces a danger of extinction and need to ensure the development of solar power keeping in mind India s commitments at the international level. 2 The Union of India shall place its status report on the record... 3 In the meantime, we direct (i) the Chief Secretaries of the States of Gujarat and Rajasthan; and (ii) the Committee appointed by this Court, to file updated status reports. 9. In pursuance of this order, the Union of India has filed an additional affidavit and an updated, comprehensive status report. In the course of its affidavit, the Union of India has submitted that: a. The reduction in the population of GIBs began in the 1960s, much before the electrification of the area and the construction of transmission lines. Research indicates that the reasons for the dwind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Memorandum of Understanding with the International Fund for Houbara Conservation which is dedicated to the conservation of the Houbara Bustard. The MoU outlines various areas of collaboration including training of staff, technical support and advice, and the supply of bird cages and food pellets in the initial stages of the conservation program; and viii. A study of international efforts to conserve other species of bustards as well as other birds indicates that large swathes of land have not been closed off as a strategy of conservation. Instead, artificial insemination techniques have been used in concert with constructing enclosures in which chicks are nurtured until they are less vulnerable to predators. Such chicks are then released into the wild. This strategy has proved successful and the Government of India is replicating it with respect to the GIB. e. A blanket direction of the nature that has been imposed by this Court, besides not being feasible to implement, would also not result in achieving its stated purpose, i.e., the conservation of the GIB. 10. Prior to adjudicating the application for modification, it is necessary to briefly advert to India s obligations towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Doha, Qatar in December 2012 11 , States reaffirmed their commitment to addressing climate change and laid the groundwork for greater ambition and action. Among various decisions, they set a timetable to adopt a Universal Climate Agreement by 2015. The objective was to build consensus on a binding and universal agreement which would limit greenhouse gas emissions to levels that would prevent global temperatures from increasing more than 2 degrees Celsius (3.6 degrees F) above the temperature benchmark set before the Industrial revolution. The COP 21 meeting was convened in Paris in December 2015, where 196 countries, including India signed a new Climate Change Agreement on 12 December 2015. 12 This is termed as the Paris Agreement. 13 15. In the build-up to the Paris meeting, the UN had called upon parties to submit their plans on how they intended to reduce their greenhouse emissions. India submitted its Intended Nationally Determined Contribution (NDC) to the UNFCCC on October 2, 2015. The Paris Agreement mandates that each Party communicate a nationally determined contribution every five years. India communicated an update to its first NDC submitted earlier on 2 October 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... energy technologies helps in curbing air pollution, thereby improving public health and reducing healthcare costs. 18. The promotion of renewable energy sources plays a crucial role in promoting social equity by ensuring access to clean and affordable energy for all segments of society, especially in rural and underserved areas. This contributes to poverty alleviation, enhances quality of life, and fosters inclusive growth and development across the nation. Therefore, transitioning to renewable energy is not just an environmental imperative but also a strategic investment in India's future prosperity, resilience, and sustainability. II. The right to a healthy environment and the right to be free from the adverse effects of climate change 19. India s efforts to combat climate change are manifold. Parliament has enacted 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, amongst others. In 2022, the Energy Conservation Act 2001 was amended to empower the Central Government to provide for a carbon credit trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be hazardous to life within the meaning of Article 21 of the Constitution. 22. In Virender Gaur v. State of Haryana, (1995) 2 SCC 577 this Court recognised the right to a clean environment in the following terms: 7. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. 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. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Madhya Pradesh when sea levels rise and oceanic problems ensue. Similarly, forest dwellers or tribal and indigenous communities are at a high risk of losing not only their homes but also their culture, which is inextricably intertwined with the places they live in and the resources of that place. In India, the tribal population in the Nicobar islands continues to lead a traditional life which is unconnected to and separate from any other part of the country or world. Indigenous communities often lead traditional lives, whose dependence on the land is of a different character from the dependence which urban populations have on the land. Traditional activities such as fishing and hunting may be impacted by climate change, affecting the source of sustenance for such people. Further, the relationship that indigenous communities have with nature may be tied to their culture or religion. The destruction of their lands and forests or their displacement from their homes may result in a permanent loss of their unique culture. In these ways too, climate change may impact the constitutional guarantee of the right to equality. 27. The right to equality under Article 14 and the right to life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indigenous rights, gender equality, and the right to development: Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity. 31. The 2015 United Nations Environment Programme report also outlined five human rights obligations related to climate change, including both mitigation and adaptation efforts. 18 In 2018, the UN Special Rapporteur on Human Rights and the Environment emphasized that human rights necessitate states to establish effective laws and policies to reduce greenhouse gas emissions, aligning with the framework principles on human rights and the environment. 19 32. The Inter-American Court of Human Rights 20 issued an advisory opinion in 2017 affirming the right to a healthy environment as a fundamental human right. The IACtHR delineated state obligations regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the wellbeing of present and future generations. It is imperative for states like India, to uphold their obligations under international law, including their responsibilities to mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment. III. Importance of solar power as a source of renewable energy 36. There are many sources of air pollution which harm public health and infringe upon the right to a healthy environment. High levels of pollution caused by industries and vehicular pollution has left Indian cities amongst those with the poorest air quality in the world, posing significant health risks to citizens. Addressing these challenges requires prioritizing the transition to clean and sustainable energy sources, ensuring a healthier environment for all individuals in India, and safeguarding the well-being of future generations, with particular attention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts GDP by 45 per cent from 2005 levels by 2030. India's goal to achieve 500 GW of non-fossil-based electricity generation capacity by 2030 aligns with its efforts to be Net Zero by 2070. In 2023-24, out of the total generation capacity of 9,943 MW added, 8,269 is from non-fossil fuel sources. According to the Renewable Energy Statistics 2023 released by the International Renewable Energy Agency (IRENA), India has the 4th largest installed capacity of renewable energy. 26 39. The International Solar Alliance 27 was formed at the COP21 held in Paris in 2015, as a joint effort by India and France. It is an international platform with 94 member countries. 28 It works with governments to improve energy access and security worldwide and promote solar power as a sustainable way to transition to a carbonneutral future. ISA's mission is to unlock USD 1 trillion of investments in solar energy by 2030 while reducing the cost of the technology and its financing. It is partnering with multilateral development banks, development financial institutions, private and public sector organisations, civil society, and other international institutions to deploy cost-effective and transformationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ensures minimal cloud cover and precipitation, resulting in uninterrupted exposure to sunlight for prolonged durations throughout the year. The consistent and intense sunlight creates ideal conditions for photovoltaic (PV) solar panels to efficiently convert solar radiation into electricity. Additionally, the relatively flat topography of these areas facilitates the installation and operation of large-scale solar energy projects, further enhancing their suitability for solar power generation. By harnessing this natural advantage, India can significantly reduce its reliance on fossil fuels and transition towards cleaner energy sources. Solar power not only meets the country's growing energy demands but also helps mitigate the adverse effects of climate change by reducing greenhouse gas emissions. IV. Climate change litigation in other jurisdictions 44. Climate change litigation serves as a pivotal tool in advancing rights-based energy transitions and promoting energy justice, intertwined with human rights principles. 36 Article 3(1) of the UNFCCC underscores the imperative for parties to safeguard the climate system for the well-being of present and future generations, grounde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right to private and family life applies to environmental matters where pollution directly impacts these rights, requiring States to implement reasonable and appropriate measures to safeguard individuals from significant environmental harm. 43 48. In Sacchi, et al. v. Argentina, et al 44 sixteen children from different countries sent a communication to the Committee on the Rights of the Child 45 alleging violations of their rights under the UN Convention on the Rights of the Child 46 by Argentina, Brazil, France, Germany, and Turkey. The communication asserted that these nations had not reduced their greenhouse gas emissions to an adequate level and that they had failed to curb carbon pollution. Although the CRC found that the communication was inadmissible for failure to exhaust domestic remedies, it affirmed that States exercise effective control over carbon emissions and bear responsibility for transboundary harm arising from such emissions. Notably, it observed that while climate change necessitates a global response, individual states retain accountability for their actions or inactions concerning climate change and their contribution to its effects. 49. In Ioane Teitiota v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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: a. In view of the diverse factors responsible for the reduction in the population of the GIB as discussed in the preceding paragraphs, the conversion of overhead into underground transmission lines is not likely to lead to the conservation of the species. Other factors such as low fecundity, fragmentation, habitat loss, predators, and loss of prey must be addressed; b. Underground power transmission cables are available only in 400 kV. The drum size for such cables is 250 m. These cables have a greater number of joints. The current is more likely to leak from joints. For a 1 km stretch, about 4 to 5 joints will be present. When laid for longer distances spanning thousands of kilometres, the number of joints will increase proportionately. As the number of joints increases, there is a corresponding rise in the risk to safety, especially to farmers under whose land the cables are laid. The downtime of electricity plants will also increase. Further, 400 kV lines can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than many states in India. Even globally, undergrounding of cables in such a large area has not been attempted; and m. The same area in which undergrounding has been directed to be implemented contains the lion s share of the potential areas from which wind and solar energy may be harnessed. Until now, only 3% of this potential has been tapped. If the remaining potential remains untapped, an additional 93,000 MW of coal would be required in the future. An estimated 623 billion kg of carbon dioxide would be released from coal fired power generation. This would significantly damage the environment and hinder global efforts to combat climate change. Thermal power plants would also adversely impact the health of the local populace. 53. In addition to the reasons listed above, 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 mitigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815 : AIR 1980 SC 1535] ; Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa [(1987) 2 SCC 469 : 1987 SCC (L S) 100 : JT (1987) 2 SC 34] ; Sheela Barse v. Secy., Children's Aid Society [(1987) 3 SCC 50, 54 : 1987 SCC (Cri) 458] SCC at p. 54; Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932 : JT (1997) 7 SC 384] ; People's Union for Civil Liberties v. Union of India [(1997) 3 SCC 433 : 1997 SCC (Cri) 434 : JT (1997) 2 SC 311] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416, 438 : 1997 SCC (Cri) 92] SCC at p. 438.) 58. India s international obligations and commitments in the present case (detailed in the preceding segments of this judgment) have not been enacted in domestic law. Regardless, the Court must be alive to these obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Those who are equipped and trained to assess the various facets of a problem which is litigated before the Court must be consulted before a decision is taken. If this is not done, the Court may be in danger of passing directions without a full understanding of the issue in question. Consequently, in the absence of evidence which forms a certain basis for the directions sought, this Court must be circumspect in issuing sweeping directions. In view of the implications of the direction issuing a blanket prohibition on overhead transmission lines, we are of the view that the direction needs to be recalled and it will be appropriate if an expert committee is appointed. The committee may balance the need for the preservation of the GIB which is nonnegotiable, on one hand, with the need for sustainable development, especially in the context of meeting the international commitments of the country towards promoting renewable sources of energy, on the other hand. By leveraging scientific expertise and engaging stakeholders in meaningful consultations, this approach ensures that conservation efforts are grounded in evidence and inclusive of diverse perspectives. 62. We are accordingly of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic lines in the area identified as priority areas in the reports of the Wild Life Institute of India in the States of Rajasthan and Gujarat; b. The need for adopting conservation and protection measures for the GIB as well as other fauna specific to the topography; c. Identification of the measures to be adopted in the priority areas to ensure the longterm survival of the GIB and facilitating an increase in its population. Such measures may include habitat restoration, anti-poaching initiatives, and community engagement programs; d. Evaluating the potential consequences of climate change on GIB habitats, considering factors such as shifting precipitation patterns, temperature extremes, habitat degradation and developing adaptive management strategies to enhance their resilience; e. Identification of suitable options in the context of sustainable development in the matter of laying power lines in the future. The alternatives identified should balance the conservation and protection of the GIB with the arrangement of power lines in a manner that would facilitate the fulfilment of the international commitments made by India for developing renewable sources of energy. f. Engaging with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted below: We are in receipt of complaint/representation that poor quality bird flight diverters are being installed on the lines and sometimes disc of bird diverter is found strewn in the farm and land below transmission lines that may be due to poor quality of the product, inadequate designe by manufacturer, not installed properly due to lack of experienced manpower etc. CEA s Technical Specifications for Bird Flight Diverter were prepared after consultation with utilities and manufacturers. The document specifies that the minimum expected service life of the bird flight diverter should be at least 15 years and to ensure that the supplied bird diverter is of good quality, various tests have also been specified. To safeguard the Great Indian Bustard which is on the verge of extinction and other birds, you are requested to take necessary action so that good quality bird flight diverters are installed which shall be durable and effective for whole life and to be installed by experienced professionals so that these diverters can serve their designated purpose. 67. The Committee shall be at liberty to assess the efficacy of bird diverters and subject to its own findings on efficac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgehogs, and monitor lizards. Anthropogenic activities will not take place in these enclosures; c. Local grass seed dissemination will be used to restore degraded grasslands. Water will be supplied to these grasslands; d. Undesirable and invasive species will be eliminated to make the grasslands more friendly to GIBs released from captivity; e. GIB movement shall be monitored using satellite telemetry; f. Ongoing administration and maintenance will include the repair and restoration of water points and historic watch towers as well as the maintenance of existing fences and fire lines; g. National Bustard Day will be celebrated to highlight the need for conservation; h. Capacity building programmes will be conducted and collaboration with scientific organisations will be fostered. Further, local stakeholders will be involved in initiatives aimed at conserving the GIB and awareness programs will be implemented in the relevant areas; i. As the majority of villages and settlements in the concerned region depend on grasslands for the supply of fodder, the pastures in these lands are in need of revival. These lands will be revived and innovative strategies of fodder management will be im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Human Rights Council, A/HRC/37/59 of 24 January 2018 (available at ; See also D.R. Boyd, Statement on the human rights obligations related to climate change, with a particular focus on the right to life, 25 October 2018, p. 2 -8. 20 IACtHR 21 M. Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law, Oxford etc.: Hart 22 UN Special Rapporteur on Human Rights and the Environment (1994). Draft Declaration of Principles on Human Rights and the Environment. Report to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1994/9, Appendix. 23 UN Sustainable Development Goals, Accelerating SDG 7, Achievement Policy Brief- 12 Global Progress of SDG 7 Energy and Gender, UN High-Level Political Forum. 2018. https://sustainabledevelopment.un.org/content/documents/17489PB12.pdf 24 Ministry of New and Renewable Energy, Solar Overview (2023). See also, Ref. REN21 s Global Status Report 2023 IRENA s Renewable Capacity Statistics 2023. 25 NSM 26 IRENA, Renewable cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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