While most dilemmas before judges are about choosing between good and bad, there are certain times when the choice is between two good causes and the Court’s preference for a particular cause.

On March 21, 2024, a progressive judgment related to climate change was delivered by the Supreme Court in the case of MK Ranjitsinh & ors v. Union of India & ors. The choice was between promotion of solar power generation and protection of an endangered species. On the face of it, both are virtuous causes and the Court was tasked with the responsibility of deciding which one should be given primacy over the other.

The Great Indian Bustard (GIB) is a large bird found in arid regions, particularly Rajasthan. It is a critically endangered species due to various reasons including pollution, climate change, low rate of reproduction etc. One of the contributing factors for the dwindling numbers of GIB has been overhead transmission lines. The GIBs' relatively poor vision and large size lead to their collision with transmission lines.

The present writ petition before the Supreme Court was filed for directions to the respondents to urgently frame and implement an emergency response plan for the protection and recovery of the GIB, including directions for the installation of bird diverters, an immediate embargo on the sanction of new projects and the renewal of leases of existing projects, dismantling power lines etc.

On April 19, 2021, the Court delivered an interim order in this matter which imposed restrictions on the setting up of overhead transmission lines in a large territory amounting to around 99,000 sq. km. It was mandated by the Court that all low voltage powerlines in the area where the birds were concentrated, would be laid underground in the future. With respect to existing low voltage and high voltage powerlines in the potential and priority areas, the same shall be converted into underground powerlines, the Court said. Additionally, it was directed that steps shall be taken to install bird diverters. This order clearly reflected the Court’s preference for the cause of protection of endangered species at the cost of facilitating solar power generation.

Decision of the Supreme Court

The Supreme Court delivered its decision based on the following considerations:

1. India’s commitment under international conventions: The Court acknowledged that in order to combat climate change on the global level, India has made international commitments founded in the Kyoto Protocol, Paris Agreement etc. to reduce greenhouse gas emissions and promote renewable energy. One of these commitments is to achieve approximately 50 per cent cumulative electric power installed capacity from non-fossil fuel-based energy resources by 2030. The promotion of renewable energy shall also play a crucial role in promoting social equity in terms of access to clean and affordable energy.

2. The right to a healthy environment and the right to be free from the adverse effects of climate change: The Court noted in light of its various decisions in MC Mehta v. Kamal Nath, Karnataka Industrial Areas Development Board v. C Kenchappa, Bombay Dyeing & Co Ltd v. Bombay Environmental Action Group etc. that the right to a clean environment which comes within the ambit of Article 21 (Right to Life) of the Constitution is threatened by climate change. Additionally, it was noted that Article 14 (Right to Equality) would also be violated as climate change will affect some people more than others. Thereafter, the Supreme Court for the first time recognized the right to a healthy environment and the right to be free from the adverse effects of climate change.

3. Importance of solar power as a source of renewable energy: In its discussion on climate change, the Court reiterated promotion of solar energy as a crucial step in the global transition towards cleaner fuels.

4. Climate change litigation in other jurisdictions: The Court also discussed various international cases on greenhouse emissions and apprehensions about rising sea levels.

Therefore, the Court recalled its injunction order dated April 18, 2021 and stated that there is no basis to impose a general prohibition on the installation of transmission lines for the distribution of solar power in an area of about 99,000 sq. km. Additionally, it was held that this move would not serve the cause of conservation of the GIB and that there are many technical hurdles in undergrounding of these lines. It was admitted that the dilemma here involves a nuanced interplay between safeguarding biodiversity and mitigating the impact of climate change. An expert committee has been directed to be constituted to assess the feasibility of undergrounding power lines, efficacy of bird diverters and identify the number of bird diverters required for the successful implementation of conservation efforts. The Court has requested the committee to complete its task and submit a report to them on or before July 31, 2024.

Conclusion and analysis

This is a crucial stance taken by the Supreme Court owing to the recognition of the right to be free from the adverse effects of climate change for the first time in domestic jurisprudence. In addition to this, the recall of the interim order was completely justified because it would have had no impact on the conservation of the GIB. The endangered status of the GIB is owing to various factors including the fragmentation of their population, laying of mostly a single egg with a short incubation period of one month, crushing of the eggs by wild animals etc. The more appropriate remedies to preserve them, as rightly noted by the Court, would be establishment of insulation breeding centers, predator-proof enclosures, local grass seed dissemination etc. The undergrounding of the transmission lines would have been a technical and financial burden for the solar power developers working towards the transition to clean and affordable energy alternatives, it said.

The Court adopted a balanced approach between conservation of endangered species and the fight against climate change.

The jurisprudence around climate change all over the world has become very progressive. The Paris Agreement signed in April 2016 not only holds governments accountable for climate change, but also acknowledges that non-state actors should realize their responsibility in addressing and responding to climate change.

Article 2, Clause 3 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change states that:

“3. The Parties included in Annex I shall strive to implement policies and measures under this Article in such a way as to minimize adverse effects, including the adverse effects of climate change, effects on international trade, and social, environmental and economic impacts on other Parties, especially developing country Parties and in particular those identified in Article 4, paragraphs 8 and 9, of the Convention, taking into account Article 3 of the Convention.”

The phrase “adverse effects of climate change” has already been a part of the international jurisprudence and with this judgment of the Court, it has now entered the realm of our domestic law.

Another development worth noting in the realm of climate change litigation is the case of Milieudefensie v. Royal Dutch Shell (2021) which is considered to be the first major ruling against a corporation. The Hague District Court acknowledged that the current sustainability policy of the company, Royal Dutch Shell was inadequate and directed the Shell Group to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at the end of 2030, relative to 2019 levels.

Such progressive steps towards climate change litigation with due regard for sustainable development goals and targets in the future evokes hope that these shall pave the way for more nuanced jurisprudence on this subject and the possible realisation of the sustainable development goals.

Shreshtha Mathur is an advocate practicing before the Rajasthan High Court.