M.K. Ranjitsinh vs Union Of India

2024 INSC 280 Reportable

IN THE SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION

Writ Petition (Civil) No. 838 of 2019

M K Ranjitsinh & Ors. …Petitioners

Versus

Union of India & Ors. …Respondents

And with

Civil Appeal No. 3570 of 2022

Signature Not Verified Digitally signed by Sanjay Kumar Date: 2024.04.06 20:10:05 IST Reason: JUDGMENT

Dr Dhananjaya Y Chandrachud, CJI

Table of Contents

A. The Great Indian Bustard .......................................................................................................3

B. The judgment dated 19 April 2021 and subsequent developments .................................... 6

C. The mission to combat climate change...............................................................................12

I. India’s commitment under international conventions .................................................... 12

II. The right to a healthy environment and the right to be free from the adverse effects of

climate change ..........................................................................................................................17

III. Importance of solar power as a source of renewable energy ........................................ 26

IV. Climate change litigation in other jurisdictions .......................................................... 31

D. The reasons for the modification of the judgement dated 19 April 2021 .......................... 34

2|Page

1. The jurisdiction of this Court has been invoked for protecting the Great Indian

Bustard 1 and the Lesser Florican, both of whom are on the verge of extinction.

Given the importance of the issue at hand, a brief background of various aspects

which pertain to the matter are discussed below.

A. The Great Indian Bustard

2. The GIB (the scientific name of which is ardeotis nigriceps) is native to southern and

western India. It typically occupies grasslands or arid regions. The State of

Rajasthan is home to a majority of the current population. With time, the country has

seen a rapid and steady decline in the population of the GIB. As of 2018, the

International Union for Conservation of Nature, or IUCN as it is popularly known,

classified the GIB as a ‘critically endangered’ species. In IUCN’s system of

classification, only two categories indicate a graver threat to a particular species –

‘extinct in the wild’ and ‘extinct’. The GIB has been classified as a critically

endangered species from 2011 until the most recent assessment in 2018. From

1994 to 2008, it was classified as ‘endangered’ and in 1988, it was labelled

‘threatened’. IUCN notes the justification for its classification of the GIB as a critically

endangered species in the following terms: 2

“This species is listed as Critically Endangered because it has an extremely small population that has undergone an extremely rapid decline owing to a multitude of threats including habitat loss and degradation, hunting and direct disturbance. It now requires an urgent acceleration in targeted

1 “GIB” 2 IUCN Red List, ‘Great Indian Bustard’ <https://www.iucnredlist.org/species/22691932/134188105#population>

3|Page 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 humans

have expanded their settlements and economic activities into the grasslands, the

natural habitat of the GIB has diminished. The expansion of human population and

accompanying activities has also resulted in the fragmentation of the GIB’s habitat.

The expansion of infrastructure such as roads, mining and farming activities have

cumulatively contributed to the dangers faced by the avian species.

3 Government of Rajasthan, Forest Department, ‘Project Great Indian Bustard’ <https://forest.rajasthan.gov.in/content/raj/forest/en/footernav/department-wings/project-great-indian-bustard.html> 4 IUCN Red List (n 2).

4|Page

4. In the context of the dwindling population of GIBs and the existential threat looming

over them, a writ petition invoking the constitutional jurisdiction under Article 32 -

Writ Petition (Civil) No 838 of 2019 - was instituted for seeking directions relating to

the conservation of the species. The petitioner inter alia sought that this Court:

a. Issue 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, wind turbines, and solar panels in and around critical

habitats, installation of predator-proof enclosures in breeding habitats,

implementation of a population control program for dogs, provision of no-grazing

zones and restricted grazing zones in critical and semi-critical habitats, a

prohibition on the use of insecticides and pesticides within a radius of 5 km of

critical habitats and a prohibition on the encroachment of grasslands in and

around critical and semi-critical habitats;

b. Issue directions to the concerned respondents to submit a report on the status

of the breeding centres at Jaisalmer, Sorsan, and Velavadar;

c. Issue directions to the concerned respondents to take all measures necessary

for the protection of grasslands including by ensuring that no remaining

grasslands are classified as ‘wastelands’ and diverted to other uses, adopting a

grasslands conservation policy, and adopting a national grazing policy;

5|Page d. Issue directions to the Ministry of Defence (Respondent No. 2) to sensitise the

armed forces about the need for conservation of the GIB and to collaborate with

scientific bodies in conservation efforts;

e. Appoint an Empowered Committee to oversee the implementation of the

directions issued by the Court, to preserve and manage the endangered species

and their habitats; and

f. Issue 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 high­voltage though not impossible, would require technical evaluation on case­to­case 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 be laid

6|Page underground in future. In respect of low voltage overhead powerlines existing presently in the priority and potential habitats of GIB, the same shall be converted into underground powerlines. In respect of high­voltage powerlines in the priority and potential habitats of GIB, more particularly the powerlines referred in the prayer column of I.A. No.85618/2020 and indicated in the operative portion of this order shall be converted into underground power line.”

6. This Court appointed a committee for assessing the feasibility of laying high voltage

underground power lines. In paragraph 18 of its order, this Court directed that in all

cases where overhead power lines exist as on date in the priority and potential GIB

areas, steps shall be taken to install bird diverters pending consideration of the

conversion of overhead power lines into underground power lines. Moreover, the

court directed that in all cases, where it is found feasible to convert the overhead

lines to underground power lines, this shall be undertaken and completed within a

year.

7. The order of this Court has been implemented by the Committee by granting case-

specific sanctions to projects where undergrounding was found not to be possible.

Respondent Nos 1, 3, and 4 (the Ministry of Environment, Forests, and Climate

Change, the Ministry of Power, and the Ministry of New and Renewable Energy

respectively) filed IA No 149293 of 2021 on 17 November 2021 for modification of

the directions issued by the judgment of this Court dated 19 April 2021. The grounds

on which modification was sought are indicated below in brief:

a. The judgment has vast adverse implications for the power sector in India

7|Page and energy transition away from fossil fuels;

b. Respondent No. 4 was not heard before passing the judgment;

c. India has made International commitments including under the agreement

signed in Paris in 2015 under the United Nations Framework Convention on

Climate Change 5 for transition to non-fossil fuels and for the reduction of

emissions. The area in respect of which the directions were issued is much

larger than the actual area in which the GIBs dwell. Moreover, that area

contains a very large proportion of the solar and wind energy potential of the

country;

d. Undergrounding high voltage power lines is technically not possible; and

e. The coal fired power which would be used to replace the untapped 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...

5 “UNFCCC”

8|Page 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

dwindling population include a low birth rate, poaching, habitat

destruction and predation. The use of insecticides and pesticides has

resulted in the reduction of locusts and grasshoppers, which form an

essential part of the prey of GIBs. The livestock population has also

increased due to which there has been overgrazing in the pastures;

b. The direction by this Court for laying high voltage, or as the case may

be, low voltage lines underground is practically impossible to

implement;

c. The Union Government has a commitment at the international level to

reduce India’s carbon footprint and recourse to renewable sources of

energy including solar installations provides the key to the

9|Page implementation of these commitments;

d. The Union of India as well as the concerned state governments are

taking comprehensive steps for the conservation and protection of the

endangered species of the GIB. They are:

i. The GIB is listed in Part III of Schedule I of the Wild Life (Protection)

Act 1972. The species listed in Schedule I are granted the highest

level of protection from hunting, in terms of this statute;

ii. Under the centrally sponsored scheme titled ‘Development of Wildlife

Habitats’, financial and technical assistance is being provided to the

state governments for the conservation of the habitat of the GIB;

iii. The Forest departments of the states of Rajasthan, Maharashtra, and

Gujarat, in collaboration with the Wildlife Institute of India, 6 Dehradun,

are carrying out conservation breeding with the aim of building a

captive population of the species for release in the wild and

promoting in-situ conservation of the species;

iv. The Government of India has launched a program called the ‘Habitat

Improvement and Conservation Breeding of Great Indian Bustard’ in

2016 for in-situ conservation of the GIB. It is being implemented in

6 “WII”

10 | P a g e collaboration with the Government of Rajasthan;

v. At present, conservation breeding facilities are operational at Sam

and Ramdeora in Jaisalmer. A partial founder population of the GIB

consisting of twenty-one individuals and seven chicks has been

secured. The chicks were artificially hatched from eggs collected from

the wild. Captive breeding has been commenced;

vi. The conservation project is being supervised by a team of three

scientists, three veterinarians, eighteen project associates, and forty

local support staff;

vii. The WII has entered into 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

11 | P a g e 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 towards preventing climate change and tackling its adverse

effects. This will assist the Court to take a decision based upon a holistic view of

competing considerations.

C. The mission to combat climate change

I. India’s commitment under international conventions

11. India has made significant international commitments in its pursuit of global

environmental conservation goals. India was a participant in the Kyoto Protocol,

which came into force on February 16, 2005. This international agreement, linked

to the UNFCCC, obligates its Parties to establish binding emission reduction targets.

The Protocol allows countries to meet these targets through national measures and

offers additional mechanisms such as International Emissions Trading, Clean

Development Mechanism, and Joint Implementation.

12. The UNFCCC is founded on the recognition that climate change is a global issue

12 | P a g e demanding a collective global response. 7 As greenhouse gas emissions originate

from the territories of all nations and also impact all nations, it is imperative that all

countries undertake measures to address this challenge. This fundamental premise

is articulated in the preamble of the UNFCCC:

“Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions,

…

Recalling also that States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

13. The primary objective of the UNFCCC is to stabilize greenhouse gas concentrations

in the atmosphere to prevent dangerous human-induced interference with the

climate system, as articulated in Article 2. 8 Article 3 elaborates on the principles

guiding this objective. Notably, Article 3(1) underscores the responsibility of parties

to protect the climate system for the benefit of present and future generations, based

on equity and in line with their capabilities. 9 Article 3(3) emphasizes the importance

of precautionary measures to anticipate, prevent, or minimize the causes and

7 United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly (Adopted 20

January 1994).

8 Ibid, art 2.

9 Ibid, art 3(1).

13 | P a g e adverse effects of climate change. 10

14. At the 18th Conference of the Parties 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 2015, for the period up to 2030. India's

10 Ibid, art 3(3).

11 “The Doha Climate Gateway” 12 Conference of the Parties, Adoption of the Paris Agreement (Adopted 12 December 2015). U.N. Doc. FCCC/CP/2015/L.9/Rev/1.

13 “Paris Agreement”

14 | P a g e commitment under the Paris Agreement includes the following key features14:

a. To achieve approximately 50 per cent cumulative electric power installed

capacity from non-fossil fuel-based energy resources by 2030, with support from

the transfer of technology and low-cost international finance, including from the

Green Climate Fund;

b. To enhance investments in development programs in sectors vulnerable to

climate change, particularly agriculture, water resources, the Himalayan region,

coastal areas, health, and disaster management, to better adapt to climate

change impacts; and

c. To establish domestic frameworks and international architectures for the rapid

dissemination of cutting-edge climate technology in India and to engage in joint

collaborative research and development for future climate technologies.

As part of its pledge, India has committed to transitioning to non-fossil fuel sources

and reducing emissions.

16. One of the key strategies in India's efforts towards sustainability is the ambitious

target for renewable energy capacity installation. By 2022, India aimed to achieve

an installed renewable energy capacity (excluding large hydro) of 175 GW

(Gigawatts), a goal that signifies the country's commitment to clean energy adoption.

14 See UNFCCC, India’s Updated First Nationally Determined Contribution Under Paris Agreement (2021-2030).

https://unfccc.int/sites/default/files/NDC/202208/India%20Updated%20First%20Nationally%20Determined%20Contrib.pdf

15 | P a g e Looking ahead, India has set an even more ambitious target for 2030, aiming to

ramp up its installed renewable energy capacity to 450 GW. This long-term goal

underscores India's recognition of the urgent need to accelerate the transition

towards renewable energy to mitigate the impacts of climate change and achieve

sustainable development.

17. To achieve these targets, India has implemented various policy measures and

initiatives to promote renewable energy investment, innovation, and adoption. As

highlighted in the Union's additional affidavit, India's commitment to transitioning to

non-fossil fuels is not just a strategic energy goal but a fundamental necessity for

environmental preservation. Investing in renewable energy not only addresses

these urgent environmental concerns but also yields a plethora of socio-economic

benefits. By shifting towards renewable energy sources, India enhances its energy

security, reducing reliance on volatile fossil fuel markets and mitigating the risks

associated with energy scarcity. Additionally, the adoption of renewable 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

16 | P a g e 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 trading scheme.15 The Electricity

(Promoting Renewable Energy Through Green Energy Open Access) Rules 2022

were made in exercise of the powers under the Electricity Act 2003 to ensure access

to and incentivise green energy. The executive wing of the government has

implemented a host of projects over the years including the National Solar Mission

(discussed in greater detail in the subsequent segment), the National Mission for

Enhanced Energy Efficiency, the National Mission for a Green India, and the

National Mission on Strategic Knowledge for Climate Change, amongst others.

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.

15 Energy Conservation Act 2001, Section 14(w).

17 | P a g e However, this does not mean that the people of India do not have a right against the

adverse effects of climate change.

20. Article 48A of the Constitution provides that the State shall endeavour to protect and

improve the environment and to safeguard the forests and wild life 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

wild life, and to have compassion for living creatures. Although these are not

justiciable provisions of the Constitution, they are indications that the Constitution

recognises the importance of the natural world. 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.

21. In M.C. Mehta v. Kamal Nath,16 this Court held that Articles 48A and 51A(g) must

be interpreted in light of Article 21:

“8. …. 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.”

16 (2000) 6 SCC 213.

18 | P a g e

22. In Virender Gaur v. State of Haryana, 17 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 environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment.”

23. In Karnataka Industrial Areas Development Board v. C. Kenchappa,18 this Court

took note of the adverse effects of rising sea levels and rising global temperatures. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action

17 (1995) 2 SCC 577.

18 (2006) 6 SCC 371.

19 | P a g e Group, 19 this Court recognised that climate change posed a “major threat” to the

environment.

24. Despite a plethora of decisions on the right to a clean environment, some decisions

which recognise climate change as a serious threat, and national policies which

seek to combat climate change, it is yet to be articulated that the people have a right

against the adverse effects of climate change. This is perhaps because this right

and the right to a clean environment are two sides of the same coin. As the havoc

caused by climate change increases year by year, it becomes necessary to

articulate this as a distinct right. It is recognised by Articles 14 and 21.

25. Without a clean environment which is stable and unimpacted by the vagaries of

climate change, the right to life is not fully realised. The right to health (which is a

part of the right to life under Article 21) is impacted due to factors such as air

pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages

in food supplies due to crop failure, storms, and flooding. The inability of

underserved communities to adapt to climate change or cope with its effects violates

the right to life as well as the right to equality. This is better understood with the help

of an example. If climate change and environmental degradation lead to acute food

and water shortages in a particular area, poorer communities will suffer more than

richer ones. The right to equality would undoubtedly be impacted in each of these

instances.

19 (2006) 3 SCC 434.

20 | P a g e

26. The right to equality may also be violated in ways that are more difficult to remedy.

For example, a person living in say, the Lakshadweep Islands, will be in a

disadvantageous position compared to person living in say, 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 under Article 21 must be

appreciated in the context of the decisions of this Court, the actions and

commitments of the state on the national and international level, and scientific

consensus on climate change and its adverse effects. From these, it emerges that

there is a right to be free from the adverse effects of climate change. It is important

21 | P a g e to note that while giving effect to this right, courts must be alive to other rights of

affected communities such as the right against displacement and allied rights.

Different constitutional rights must be carefully considered before a decision is

reached in a particular case.

28. In 2019, the Committee on the Elimination of Discrimination Against Women, the

Committee on Economic, Social and Cultural Rights, the Committee on the

Protection of the Rights of All Migrant Workers and Members of their Families, the

Committee on the Rights of the Child, and the Committee on the Rights of Persons

with Disabilities jointly issued a statement in which they recognised that “…State

parties have obligations, including extra-territorial obligations, to respect, protect

and fulfil all human rights of all peoples. Failure to take measures to prevent

foreseeable human rights harm caused by climate change, or to regulate activities

contributing to such harm, could constitute a violation of States’ human rights

obligations.” 20

29. Of late, the intersection between climate change and human rights has been put in

sharp focus, underscoring the imperative for states to address climate impacts

through the lens of rights. For instance, the contribution of the UN High

Commissioner for Human Rights to the 2015 Climate Conference in Paris

emphasized that climate change directly and indirectly affects a broad spectrum of

20 UN Office of the High Commissioner, Five UN human rights treaty bodies issue a joint statement on human rights and

climate change, 16 September 2019. <https://www.ohchr.org/en/statements/2019/09/five-un-human-rights-treaty-bodies- issue-joint-statement-human-rights-and>.

22 | P a g e internationally guaranteed human rights. 21 States owe a duty of care to citizens to

prevent harm and to ensure overall well-being. The right to a healthy and clean

environment is undoubtedly a part of this duty of care. States are compelled to take

effective measures to mitigate climate change and ensure that all individuals have

the necessary capacity to adapt to the climate crisis.

30. This acknowledgement of human rights in the context of climate change is

underscored in the preamble of the Paris Agreement, which recognizes the

interconnection between climate change and various human rights, including the

right to health, 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. 22 In 2018, the UN Special Rapporteur on Human Rights and the Environment

emphasized that human rights necessitate states to establish effective laws and

21 UN Human Rights Office, Understanding Human Rights and Climate Change. Submission of the Office of the High

Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, 26 November 2015.

22 M. Burger and J. Wentz (eds.), Climate Change and Human Rights, UNEP: December 2015, p.11, 19.

<wedocs.unep.org/handle/20.500.11822/9934>

23 | P a g e policies to reduce greenhouse gas emissions, aligning with the framework principles

on human rights and the environment.23

32. The Inter-American Court of Human Rights 24 issued an advisory opinion in 2017

affirming the right to a healthy environment as a fundamental human right. The

IACtHR delineated state obligations regarding significant environmental harm,

including cross-border impacts, recognizing the inherent relationship between

environmental protection and the enjoyment of various human rights. Violations of

the right to a healthy environment can reverberate across numerous rights domains,

including the right to life, personal integrity, health, water, and housing, as well as

procedural rights such as information, expression, association, and participation.

33. In her comprehensive study exploring climate obligations under international law,

Wewerinke-Singh underscores the imperative for states to both adapt to and

mitigate the impacts of climate change in alignment with human rights principles.25

This resonates deeply with the burgeoning recognition of the right to a healthy

environment as a fundamental human right within the global discourse on

environmental protection and sustainability. When discussing the right to a healthy

environment, it is crucial to address access to clean and sustainable energy. Clean

energy aligns with the human right to a healthy environment, as first recognized by

23 J.H. Knox, Report of 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 <undocs.org/A/HRC/37/59>; 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. 24 “IACtHR” 25 M. Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law, Oxford etc.: Hart

2019, pp. 108-109 and 130.

24 | P a g e the UN Special Rapporteur on Human Rights and the Environment in 1994.26

34. Unequal energy access disproportionately affects women and girls due to their

gender roles and responsibilities such as through time spent on domestic chores

and unpaid care work. Women in many developing countries spend on average 1.4

hours a day collecting fuelwood and four hours cooking, in addition to other

household tasks that could be supported by energy access.27 The importance of

prioritizing clean energy initiatives to ensure environmental sustainability and uphold

human rights obligations cannot be understated.

35. India faces a number of pressing near-term challenges that directly impact the right

to a healthy environment, particularly for vulnerable and indigenous communities

including forest dwellers. The lack of reliable electricity supply for many citizens not

only hinders economic development but also disproportionately affects

communities, including women and low-income households, further perpetuating

inequalities. Therefore, the right to a healthy environment encapsulates the principle

that every individual has the entitlement to live in an environment that is clean, safe,

and conducive to their well-being. By recognizing the right to a healthy environment

and the right to be free from the adverse effects of climate change, states are

compelled to prioritize environmental protection and sustainable development,

26 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.

27 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>

25 | P a g e thereby addressing the root causes of climate change and safeguarding the well-

being 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 to the rights and needs of vulnerable

communities. Therefore, while speaking about climate change, the importance of

solar power cannot be overstated. In addition to being sustainable and renewable,

solar energy stands out as a pivotal solution in the global transition towards cleaner

energy sources. Its significance lies in its capacity to significantly reduce reliance on

fossil fuels, thereby curbing greenhouse gas emissions responsible for global

warming and climate change.

37. India is endowed with vast solar energy potential and receives about 5,000 trillion

kWh per year of solar energy, with most regions receiving 4-7 kWh per sqm per

26 | P a g e day. 28 Solar photovoltaic power offers immense scalability in India, allowing for

effective harnessing of solar energy. Moreover, solar energy facilitates distributed

power generation, allowing for rapid capacity addition with short lead times. The

impact of solar energy on India's energy landscape has been tangible in recent

years. Decentralized and distributed solar applications have brought substantial

benefits to millions of people in Indian villages, addressing their cooking, lighting,

and other energy needs in an environmentally friendly manner. These initiatives

have led to social and economic benefits, including reducing drudgery among rural

women and girls, minimizing health risks associated with indoor air pollution,

generating employment at the village level, and ultimately improving living standards

and fostering economic activities. Additionally, the solar energy sector in India has

emerged as a significant contributor to grid-connected power generation capacity. It

aligns with India’s agenda of sustainable growth and plays a crucial role in meeting

the nation's energy needs while enhancing energy security.

38. Solar energy holds a central place in India's National Action Plan on Climate

Change, with the National Solar Mission 29 being one of its key initiatives. Launched

on 11 January 2010, NSM aims to establish India as a global leader in solar energy

by creating favourable policy conditions for the diffusion of solar technology across

the country. This mission is in line with India's Nationally Determined Contributions

28 Ministry of New and Renewable Energy, Solar Overview (2023). See also, Ref. REN21’s Global Status Report 2023 &

IRENA’s Renewable Capacity Statistics 2023.

29 “NSM”

27 | P a g e target, which aims to achieve about 50 per cent cumulative electric power installed

capacity from non-fossil fuel-based energy resources and reduce the emission

intensity of its 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. 30

39. The International Solar Alliance 31 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. 32 It works with governments to improve energy access and security

worldwide and promote solar power as a sustainable way to transition to a carbon-

neutral 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 transformational energy solutions powered by the sun, especially

in the least Developed Countries 33 and the Small Island Developing States 34

30 IRENA, ‘Renewable capacity statistics 2023’. International Renewable Energy Agency, Abu Dhabi.

< https://www.irena.org/Publications/2023/Mar/Renewable-capacity-statistics-2023> 31 “ISA” 32 See International Solar Alliance, ‘Background’ <https://isolaralliance.org/about/background> 33 “LDCs” 34 “SIDS”

28 | P a g e

40. The idea for the One Sun One World One Grid 35initiative was put forth by India at

the First Assembly of the ISA in October 2018. 36 The vision behind the OSOWOG

initiative is the mantra that "the sun never sets". This initiative aims to connect

different regional grids through a common grid that will be used to transfer

renewable energy power and, thus, realize the potential of renewable energy

sources, especially solar energy.

41. In 2021, the Green Grids Initiative 37 was launched in partnership with OSOWOG

during the COP26 World Leaders' Summit. The UK and India jointly adopted the

One Sun Declaration which was endorsed by 92 countries. 38 This represented a

flagship area for climate collaboration and established the partnership between the

two initiatives to tackle arguably the greatest global challenge to a clean powered

future: how to build and operate electricity grids capable of absorbing ever greater

shares of renewable energy while meeting growing power demands sustainably,

securely, reliably, and affordably.

42. It is imperative for India to not only find alternatives to coal-based fuels but also

secure its energy demands in a sustainable manner. India urgently needs to shift

to solar power due to three impending issues. 39 Firstly, India is likely to account for

25% of global energy demand growth over the next two decades, necessitating a

35 “OSOWOG” 36 International Solar Alliance, ‘Annual Report 2020’, pp. 4. <https://isolaralliance.org/uploads/docs/20469ea05e2b897ca9ffec8a17273f.pdf > 37 “GGI” 38 Ministry of New Renewable Energy, Green Grids Initiative-One Sun One World One Grid Northwest Europe Cooperative

Event, (2022) <https://pib.gov.in/PressReleasePage.aspx?PRID=1763712> 39 See Invest India, ‘One Sun, One World, One Grid: Empowering Sustainability’, 10 January 2024.

< https://www.investindia.gov.in/team-india-blogs/one-sun-one-world-one-grid-empowering-sustainability>

29 | P a g e move towards solar for enhanced energy security and self-sufficiency while

mitigating environmental impacts. Failure to do so may increase dependence on

coal and oil, leading to economic and environmental costs. Secondly, rampant air

pollution emphasizes the need for cleaner energy sources like solar to combat

pollution caused by fossil fuels. Lastly, declining groundwater levels and decreasing

annual rainfall underscore the importance of diversifying energy sources. Solar

power, unlike coal, does not strain groundwater supplies. The extensive use of solar

power plants is a crucial step towards cleaner, cheaper, and sustainable energy

43. The geographical landscape of Gujarat and Rajasthan, characterized by vast

expanses of arid desert terrain and an abundance of sunlight, positions these

regions as prime areas for solar power generation. The arid climate of these desert

regions 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.

30 | P a g e 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. 40

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, grounded in

equity and is reflective of their differentiated responsibilities and capabilities. This

obligation places a particular onus on developed countries to take the lead in

addressing climate change and its adverse impacts. Moreover, the mechanisms

established under international climate change law contribute to a more

comprehensive and cohesive approach to monitoring and implementing Sustainable

Development Goal 7 (SDG7) (i.e., ensuring access to affordable, reliable,

sustainable and modern energy for all) and related international obligations.41

45. 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 long formed the corpus of cases before courts across countries. Of

late, however, an increasing number of cases are to do with climate change, in one

way or another. It is necessary to advert to the judgments from other jurisdictions,

not because they have precedential value in the adjudication of this case but to

40 J Setzer and R Byrnes, ‘Global Trends in Climate Change Litigation: 2023 Snapshot’, London School of Economics and

Political Science, (2023). < https://www.lse.ac.uk/granthaminstitute/wp- content/uploads/2023/06/Global_trends_in_climate_change_litigation_2023_snapshot.pdf> 41 D Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’ (2016) 110 American Journal of International Law,

288.

31 | P a g e highlight global trends in climate change litigation and to assess the manner in which

courts have understood their own role in such litigation.

46. In State of the Netherlands v. Urgenda Foundation, 42 the respondent sought

directions to the State of the Netherlands directing it to reduce the emission of

greenhouse gases. The District Court and the Court of Appeal ruled in favour of the

respondent. On appeal, the Dutch Supreme Court affirmed the decisions of the

lower courts. It acknowledged the obligations under Articles 2 (right to life)43 and 8

(right to private and family life) 44 of the European Convention on Human Rights, 45

compelling the State to adopt more ambitious climate policies. The case addressed

whether the Dutch government was obligated to reduce greenhouse gas emissions

originating from its territory by at least 25% compared to 1990 levels by the end of

2020, and whether a judicial intervention was warranted.

47. The Supreme Court of the Netherlands recognized the direct correlation between

anthropogenic greenhouse gas emissions and global warming, emphasizing the

potentially severe consequences of exceeding a 2°C temperature rise, which could

threaten the right to life and disrupt family life. 46 Additionally, it observed that the

right to private and family life applies to environmental matters where pollution

directly impacts these rights, requiring States to implement "reasonable and

42 The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda Foundation, HR 20 December

2019, ECLI:NL:HR:2019:2006, para 2.1 43 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as

amended), art 2.

44 Ibid, art 8.

45 “ECHR” 46 Ibid.

32 | P a g e appropriate measures" to safeguard individuals from significant environmental

harm. 47

48. In Sacchi, et al. v. Argentina, et al 48 sixteen children from different countries sent

a communication to the Committee on the Rights of the Child 49 alleging violations of

their rights under the UN Convention on the Rights of the Child50 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. The Chief Executive of the Ministry of Business, Innovation

and Employment, 51 the appellant travelled to New Zealand from Kiribati, a small

island country in the Pacific Ocean, and remained there after his permit expired. He

later applied for refugee status and / or protected person status on the ground that

sea levels in Kiribati were rising due to climate change. He anticipated being forced

47 Ibid. Para 5.2.3.

48 Committee on the Rights of the Child, Sacchi et al. v. Argentina (dec.), 22 September 2021, CRC/C/88/D/104/2019. 49 “CRC” 50 “UNCRC” 51 [2015] NZSC 107.

33 | P a g e to leave Kiribati in the future due to this. The relevant authorities rejected his

application and the concerned tribunal dismissed the appeal. The appellant sought

leave to appeal the decision of the tribunal, which was rejected by two appellate

courts. Finally, the Supreme Court of New Zealand dismissed his application for

leave to appeal. It held that the appellant would not face serious harm if he returned

to Kiribati and that there was “no evidence that the Government of Kiribati [was]

failing to take steps to protect its citizens from the effects of environmental

degradation.” Significantly, it also held that its decision in this case would not rule

out the possibility of a similar application succeeding in an appropriate case in the

future.

50. These cases, all instituted and decided in the past decade, indicate the type of

concerns which will travel to the courts in the next few years.

D. The reasons for the modification of the judgement dated 19 April 2021

51. During the course of the hearing, reference has been made to several reports which

were prepared by the Wild Life Institute of India, identifying 13,663 square

kilometres as the “priority area”; 80,680 square kilometres as “potential areas”; and

6,654 square kilometres as “additional important areas” for the GIB. These areas

are distributed between the States of Rajasthan and Gujarat. The tabulation is

reproduced below:

AREAS State of State of Total Rajasthan Gujarat

34 | P a g e Priority Areas 13,163 sq. kms. 500 sq. kms. 13,663 sq. kms Potential Areas 78,580 sq. kms 2,100 sq. kms. 80,680 sq. kms Additionally 5977 sq. kms. 677 sq. kms. 6654 sq. kms. Important Areas

52. During the course of the hearing and by its previous orders, this Court has

underscored the importance of taking proactive measures to protect the GIB. The

GIB is seriously endangered as a species. At the same time, it has emerged in the

course of the hearing that there is no basis to impose a general prohibition in regard

to the installation of transmission 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

35 | P a g e 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 be laid for a maximum of 5 to

8 km;

c. 220 kV lines have been laid underground in some areas. In those

places where they have been laid underground, flag marks were

placed to trace the route of the cable and to avoid accidents while

digging around the cable. However, such marks do not serve their

intended purpose in desert regions because of strong winds which

blow and carry sand. The effect is that the landscape and sand dunes

change. This may cover or otherwise impact the flag markings. In the

absence of functional markings, it is unsafe and impractical to

underground high voltage cables in deserts;

d. Underground cables do not efficiently transmit AC power. The

transmission loss in such cables is higher by about five times;

e. It is difficult and time-consuming to detect faults with underground

cables. If there is a delay in attending to and repairing problems with

such cables, the rise in the temperature of the cable may result in it

bursting. This would endanger the safety of GIBs;

f. The Electricity Act does not contemplate the acquisition of land.

36 | P a g e However land may be required to be acquired if cables are to be

undergrounded. In contrast, overhead transmission lines require only

the right of way;

g. Underground cables may give rise to environmental issues for many

vulnerable species. They may also result in forest fires or other fires;

h. The cost of laying underground cables is prohibitive. It is about four to

five times higher than laying overhead transmission lines. The cost is

estimated to run into thousands of crores. If the cables are

undergrounded in their entirety, the cost of harnessing renewable

energy would be prohibitive;

i. Cables are not generally used for the evacuation of power from a

generating station;

j. The report prepared by the technical expert committee constituted by

the Ministry of Power indicates that the undergrounding of

transmission lines of 60kV and above is not technically feasible

because any outage would result in large generation losses;

k. 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;

37 | P a g e l. The area in which undergrounding has been directed to be

implemented is about 80,688 sq km, which is larger 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 mitigating the impact of climate change. It is

38 | P a g e not a binary choice between conservation and development but rather a dynamic

interplay between protecting a critically endangered species and addressing the

pressing global challenge of climate change.

54. 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.

55. 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.

56. Needless to say, it is the duty of the Court to give effect to international agreements

and treaties to which India is a party. In Entertainment Network (India) Ltd. v.

Super Cassette Industries Ltd., 52 this Court observed that it has relied on

international law extensively including for the purpose of fulfilling the spirit of

52 (2008) 13 SCC 30.

39 | P a g e international obligations which India has entered into, when they are not in conflict

with the existing domestic law. 53 It also rightly observed:

“80. Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the international conventions.”

57. In Apparel Export Promotion Council v. A.K. Chopra, 54 this Court cited numerous

cases which constituted precedent for the proposition that this Court must give effect

to international instruments which India is party to:

“This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions 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.)”

53 This position has been reiterated by various other decisions of this Court. See, for instance, National Legal Services

Authority v. Union of India, (2014) 5 SCC 438. 54 (1999) 1 SCC 759.

40 | P a g e

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 obligations while adjudicating writ

petitions which seek reliefs that may hinder these obligations from being fulfilled or

otherwise interfere with India’s international commitments as well as the right to be

free from the adverse effects of climate change.

59. Beyond mere adherence to international agreements, India's pursuit of sustainable

development reflects the complex interplay between environmental conservation,

social equity, economic prosperity and climate change. Its national goals in this

regard require a holistic understanding of sustainable development that balances

immediate needs with long-term sustainability, ensuring that present actions do not

compromise the well-being of future generations. It acknowledges that solutions to

today's challenges must not only address pressing issues but also lay the

groundwork for a resilient and equitable future.

60. While balancing two equally crucial goals - the conservation of the GIB on one hand,

with the conservation of the environment as a whole on the other hand - it is

necessary to adopt a holistic approach which does not sacrifice either of the two

goals at the altar of the other. The delicate balance between the two aims must not

be disturbed. Rather, care must be taken by all actors including the state and the

courts to ensure that both goals are met without compromising on either. Unlike

other competing considerations, these do not exist in disjunctive silos. Therefore, a

41 | P a g e dilemma such as the present one does not permit the foregrounding of one of these

as a priority, at the cost of the other. If this Court were to direct that the power

transmission lines be undergrounded in the entire area delineated above, many

other parts of the environment would be adversely impacted. Other endangered

species may suffer due to the emission of harmful gases from fossil fuels. Rising

temperatures and the attendant evils of climate change may not be halted in a timely

fashion, leading to disastrous consequences for humankind and civilisation as a

whole. The existential threat may not be averted.

61. Moreover, the decision on whether to convert the overhead power transmission lines

into underground lines is a matter of environmental policy. While adjudicating writ

petitions which seek reliefs which are of the nature sought in the present case, this

Court must conduct judicial review while relying on domain experts. 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 non-

negotiable, on one hand, with the need for sustainable development, especially in

42 | P a g e 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 view that the order passed by this Court on 19 April 2021

needs to be suitably modified. A blanket direction for undergrounding high voltage

and low voltage power lines of the nature that was directed by this Court would need

recalibration for the reasons discussed above. This task is best left to domain

experts instead of an a priori adjudication by the Court. Experts can assess the

feasibility of undergrounding power lines in specific areas, considering factors such

as terrain, population density, and infrastructure requirements. This approach allows

for more nuanced decision-making tailored to the unique circumstances of each

location, ensuring that conservation objectives are met in a sustainable manner.

63. During the course of the hearing, we had requested Mr Shyam Divan, senior counsel

appearing on behalf of the petitioners, Mr R Venkataramani, Attorney General for

India, Mr. Tushar Mehta, Solicitor General of India, and Ms Aishwarya Bhati,

Additional Solicitor General to propose names of experts for the constitution of a

Committee to perform the task which the Court will assign to it.

64. Having received their suggestions and upon evaluating them, we constitute an

Expert Committee, the composition of which will be as follows:

43 | P a g e

(i) Director, Wildlife Institute of India, Dehradun;

(ii) Dr Hari Shankar Singh, Member, National Board for Wildlife;

(iii) Dr Niranjan Kumar Vasu, Former Principal Chief Conservator of Forest;

(iv) Mr B Majumdar, former Chief Wildlife Warden and Principal Chief

Conservator of Forest, Maharashtra;

(v) Dr Devesh Gadhavi, Deputy Director, The Corbett Foundation.

(vi) Shri Lalit Bohra, Joint Secretary (Green Energy Corridor), Ministry of New

and Renewable Energy; and

(vii) Joint Secretary, Ministry of Environment, Forests and Climate Change.

65. Since the work of the Committee, as assigned below, would also traverse the area

of the setting up of transmission lines to facilitate solar power generation, we direct

that the Committee shall consist of the following two special invitees:

(i) Shri Ashok Kumar Rajpur, Member Power Systems, Central Electricity

Authority; and

(ii) Mr. PC Garg, Chief Operating Officer, Central Transmission Utility of India

Ltd.

66. The remit of the Committee which has been appointed by the Court shall encompass

the following:

44 | P a g e a. Determining the scope, feasibility and extent of overhead and underground electric

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 long-

term 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 relevant stakeholders, including government agencies,

environmental organizations, wildlife biologists, local communities, and energy

45 | P a g e industry representatives, to solicit inputs, build consensus, and promote

collaborative efforts towards achieving conservation and sustainable development

goals;

g. Conducting a thorough review of conservation efforts and innovative approaches

in similar contexts globally, such as the Houbara Bustard in the Middle East or the

Black Stilt in New Zealand, to inform best practices;

h. Implementing a robust monitoring and research program to track GIB populations,

habitat dynamics, and the effectiveness of conservation measures over time. This

may include employing techniques such as satellite tracking, camera trapping, and

ecological surveys to gather essential data for informed decision-making; and

i. Adopting any additional measures both in regard to the priority and potential areas,

as the Committee considers appropriate including considering the efficacy and

suitability of installing bird diverters on existing and future power lines on the basis

of a scientific study. The installation of sub-standard bird diverters which are of a

poor quality would give the impression that conservation efforts are underway even

as such efforts are destined for failure. Hence, it is of utmost importance to ensure

that any direction by the Committee to install bird diverters by any party whose

activities concern the GIB (including private operators) is implemented by installing

bird diverters of a requisite standard and quality. Accordingly, if the Committee is

of the view that the installation of bird diverters would subserve the conservation

of the GIB species, it shall identify the indicators of high-quality bird diverters and

46 | P a g e specify the parameters that they must meet before they are installed. The Central

Electricity Authority, Ministry of Power has released a document titled ‘Technical

Specification for Bird Flight Diverter’. These specifications concern the GIB in

particular. By its undated letter to various power transmission companies and other

concerned parties, the Central Electricity Authority noted that it had received

complaints stating that the quality of the bird diverters being installed was

unsatisfactory. It also requested the addressees to install diverters which are of a

high quality. The relevant portion of the letter is extracted 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 efficacy, to lay down specifications for bird diverters with due

47 | P a g e regard to the parameters specified by the Central Electricity Authority. It shall also

identify the number of bird diverters required for the successful implementation of

conservation efforts. In this regard, the Committee may also consider the

recommendations of the technical expert committee constituted by the Ministry of

Power by OM No 25–7/42/2019 – PG dated 27 May 2022.

68. The injunction which has been imposed in the order dated 19 April 2021 in respect

of the area described as the priority and potential areas shall accordingly stand

recalled subject to the condition that the Expert Committee appointed by this Court

may lay down suitable parameters covering both the priority and potential areas.

69. In the event that the Committee considers it appropriate and necessary to do so, it

would be at liberty to recommend to this Court any further measures that are

required to enhance the protection of the GIB. This may include identifying and

adding suitable areas beyond the designated priority zones outlined above, if

deemed crucial for the conservation of the species. Such additional areas could

serve as vital habitats, corridors, or breeding grounds for the GIB, contributing

significantly to its long-term survival.

70. We request the Committee to complete its task and submit a report to this Court

through the Union Government on or before 31 July 2024.

71. In its affidavit, the Union of India has detailed the steps it has taken thus far and has

also undertaken to implement a host of measures in the future, which are aimed at

conserving the critically endangered GIB. They include:

48 | P a g e a. The Ministry of Environment, Forest and Climate Change has implemented

the national GIB Project which undertakes ex-situ conservation measures to

provide and conserve habitats into which captive bred birds may be released.

Insulation breeding centres will be established in range states other than

Rajasthan where they do not currently exist. In-situ operations will be

implemented in the desert National Park Sanctuary, Rajasthan, Kachch

Bustard Sanctuary, Gujarat, Great Indian Bustard Sanctuary, Maharashtra,

Rollapadu Sanctuary, Andhra Pradesh, Ranebennur Sanctuary, Karnataka

and Ghatigao Sanctuary, Madhya Pradesh;

b. Predator-proof enclosures will be developed to prevent the entry of predators

including foxes, mongooses, hedgehogs, 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;

49 | P a g e 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 implemented; and

j. The conservation activities detailed above will be upscaled from the financial

year commencing on 1 April 2024 and will continue for at least ten years.

72. The Union of India and the concerned ministries are directed to implement the

measures described in the preceding paragraph, which it has undertaken to

implement. Further, they are directed to continue implementing the measures

detailed in paragraph 8(d) of this judgment. The directions contained in the order

dated 19 April 2021 shall accordingly stand substituted by those contained in the

present judgment. The project clearances which have been granted pursuant to the

recommendations of the earlier committee appointed in terms of the order dated 19

April 2021 shall not be affected by the present judgment.

50 | P a g e

73. This Court records its appreciation to the work which was done by the Committee

which was appointed in terms of the order dated 19 April 2021.

74. List in the second week of August 2024 for consideration of the report of the expert

committee appointed in terms of the present judgment.

……………………………………………CJI [Dr Dhananjaya Y Chandrachud]

……………………………………………J [J B Pardiwala]

……………………………………………J [Manoj Misra] New Delhi March 21, 2024

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