I n a historic judgment in a writ petition – M.K. Ranjitsinh & Ors. Vs Union of India – filed regarding the conservation of two critically endangered species of birds, the Great Indian Bustard (GIB) and the lessor Florican, the Supreme Court has expanded the umbrella of Articles 14 and 21 of the Constitution and acknowledged that people have a ‘right to be free from the adverse effects of climate change’.

The Court observed that “despite governmental policy and rules and regulations recognizing 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. However, this does not mean that the people of India do not have a right against the adverse effects of climate change.” Background: Article 48A inserted by the 42nd Constitution Amendment Act, 1976 directed the State to protect and improve the environment and to safeguard the forests and the wildlife of the country. Article 51A (g) enumerates a fundamental duty of every citizen to protect and improve the natural environment including forests, rivers and wildlife and to have compassion for living creatures. This Amendment also made certain changes to the 7th Schedule of the Constitution. This Schedule contains three lists namely Union, State and Concurrent to enumerate matters on which the Centre, the State and both can make laws.

Entry 17 A – forests, 17B – Protection of wild animals and birds, 20 A – Population control and family planning have been added to the concurrent list, empowering both Centre and State to make laws and policy on these matters. In 1992, in the principal majority opinion of a Bench of nine judges, Justice Jeevan Reddy said in Indira Sawhney vs. Union of India, that those who wrote the Constitution and finalised it “did not rest content with evolving the framework of the State. They also pointed out the goal and the methodology for reaching the goal; in the preamble, they spelt out the goal and in Parts III and IV, they elaborated the methodology to be followed for reaching that goal.”

In 1996, in M.C. Mehta v. Kamal Nath, the Supreme Court observed that any disturbance of basic environmental elements namely, air, water and soil which are necessary for life would be hazardous to life and can’t be polluted. In this context, Article 14, Right to Equality, and Article 21, Right to life and liberty, and their innovative interpretation by the activist Supreme Court have played a crucial role in enhancing the quality of life of citizens. Article 21 is the fountainhead of rights and the Apex Court has also invented emerging new rights from its scope and implications and also in the context of norms developed by United Nations and other International forums .

Now, on 21 March, for the first time, the Supreme Court has expanded the Scope of Article 14 and 21 to include categorically the ‘right against adverse effects of climate change.’ A three judge-bench presided by Chief Justice of India D.Y. Chandrachud observed, “Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and equal protection of law. These Articles are important sources of the right to a clean environment and the right against the adverse effects of climate change.” The Supreme Court has acknowledged Article 21 as the heart of fundamental rights in the Constitution and noted that the intersection of climate change and human rights has been put into sharp focus in recent years, underscoring the imperative for States to address climate impacts through the lens of rights.

The Court also observed that there are certain sections of society that become all the more vulnerable to climate change and these groups include the poorer communities, tribal and indigenous communities. In this case, the Court in its order dated 19 April 2021, imposed restrictions on the setting up of overhead transmission lines in a vast area of about of about 99,000sq km in the habitat of the Great Indian Bustard in Rajasthan and Gujarat. The Ministry of Power, the Ministry of Environment, Forest and Climate Change and the Ministry of New and Renewable Energy had applied for modification of the order. While considering an appeal for the modification of its order, the Court while acknowledging that its earlier order was not feasible to implement has directed experts to assess the feasibility of underground power lines in specific areas after considering factors such as terrain, population density and infrastructure requirements.

Referring to environment-related aspects of the Directive Principles of State Policy, the Court observed that these have to be read together with the right to live and personal liberty under Article 21. While emphasizing the global transition towards cleaner energy sources, the Court said, “it is essential to harness power from sources of renewable energy in Rajasthan and Gujarat to meet the rising power demand in the country in an expeditious and sustainable manner.

This is also necessitated by India’s international commitments with respect to climate change.” Our Parliament has already enacted a plethora of laws like Water (Prevention and Control of Pollution) Act, 1974, amended last in February 2024; Air ( Prevention and Control of Pollution) Act, 1981, amended last in 1987; the Environment ( Protection ) Act 1986; the Wild Life (Protection) Act, 1972, amended last in 2022 and the India Forest Act, 1927, amended last in 2019. But none of these legislations addressed the right against adverse effects of climate change.

Implementation of these laws is also a challenge for the administration. Rationalization and simplification of laws is the need of the hour. The Supreme Court has mandated for an umbrella legislation to ensure better protection of the environment and a healthy life for citizens. Climate change is among the most difficult challenges facing the world today. The United Nations Conference on the Human Environment held in Stockholm, Sweden is the first comprehensive attempt to lead the world community to environmental awareness and the utmost need for specific national and international actions to ensure that economic growth is planned in full appreciation of the long-term value of environmental protection and conservation of natural resources. The development must be sustainable in terms of the entire human community and environment at large.

After the Stockholm Declaration, the Earth Summit, 1992 in Rio De Janeiro is a further development towards conservation and emphasizes on two aspects to ensure better environment:

(i) Conservation and sustainable use of biological diversities, and

(ii) Protection of climate system for the benefit of present and future generations of mankind.

The year 2015 witnessed two landmark international events, the historic climate change agreement under the United Nations Frame Work Convention on Climate Change (UNFCCC) successfully conducted in Paris in December and the adoption of the Sustainable Development Goals in September. The Paris Agreement sets a roadmap for all nations in the world to take actions against climate change in the post 2020 period. The Millennium Development Goals (SDGs) guide the international community and national governments on a pathway towards sustainable development for the next fifteen years. In October, 2021, the United Nations Human Rights Council adopted a resolution recognizing ‘the right to a clean, healthy and sustainable environment’ as a ‘human right that is important for the enjoyment of human rights’.

In July 2022, the UN General Assembly also adopted a resolution recognizing the same right. These resolutions are the culmination of a lengthy diplomatic process to recognize the ‘greening’ of existing human rights. Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. To sum up, can we say that the Supreme Court has impliedly recognized the right of nature and all other living beings around us to be protected from aggression in the name of development and the entire human community has to work together to ensure a sustainable development to ensure their own rights to live a meaningful life? The most viable answer is ‘yes’.

The judgment of the Court has rightly acknowledged and captured the developments in the international forums and fortified environmental jurisprudence in the light of our Constitution. India with a dream of a $5 trillion economy and Viksit Bharat has to reconcile its much-needed development with the spirit enunciated in this judgment. In the public domain, this judgment would facilitate debate and discussion. At the same time, it will enhance our integration with nature. Parliament may also consider a comprehensive umbrella legislation to implement the spirit of this judgment.

(The writer is a lawyer, author and social activist.)