Introduction
Though environmental rights have long been recognized globally, they have undergone particularly notable evolution over the past half-century. India, surprisingly to some, has one of the most sophisticated frameworks concerning State obligations and individual protections, including a robust system for guaranteeing the enjoyment of environment rights to individuals. The recent decision by the Indian Supreme Court (Supreme Court or Court) in Ranjitsinh v. Union of India (2024) is groundbreaking as it both recognizes environmental rights as absolute and fundamental, and offers a constitutional protection from the adverse effects of climate change under Articles 14 and 21 of the Constitution of India (Constitution). In effect, this protection is broader than most rights recognized by other courts, which have only gone as far as recognizing a constitutional right to a clean and healthy environment – something India did four decades ago.
Evolution of law in India
Environmental rights gained traction in India soon after independence in 1947. Much like other countries, a flurry of statutory legislation was introduced to address different aspects of the environment, including the Factories Act 1948, the Wildlife Protection Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Forest (Conservation) Act 1980, the Air (Prevention and Control of Pollution) Act 1981, and the Environment (Protection) Act 1986. Underpinned by the rationale that affirmative State participation is required to actualize the full enjoyment of individual rights, the notable 42nd amendment to the Constitution in 1976 introduced Article 48A. The Article provides, “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”. The rights of individuals vis-à-vis the environment were further fortified through the evolution of jurisprudence from the Supreme Court that recognized and reaffirmed fundamental constitutional rights to a clean and healthy environment.
The recognition of fundamental environmental rights under the Constitution elevated the sanctity and significance of these protections above other previously established rights. The Supreme Court first recognized the fundamental constitutional right to a clean environment in Francis Coralie Mullin (1981), where it held that the right to life and liberty under Article 21 of the Constitution encompasses “the right to health, clean environment, and basic necessities of life”. The Court’s approach was analogous to that adopted by the Montana trial court in Held v. Montana (2023), which is currently under consideration by the Montana Supreme Court, recognizing a “constitutional right to a clean and healthful environment”. The Supreme Court soon after recognized the right to live in a pollution-free environment in MC Mehta v. UOI (1985) and right to clean air and water in Vellore Citizens v. UOI (1996). These decisions were pronounced against the backdrop of balancing development needs with conservation efforts. The importance of these decisions lies in the distinct eminence of fundamental rights in the hierarchy of rights. Since fundamental rights cannot be waived by any person or citizen, they are accorded greater inviolability and provide stronger protection from encroachment than statutory rights.
Duties of individuals and horizontal application?
Interestingly, in response to the changing needs of the nation and society, the Supreme Court has increasingly expanded the scope and application of various fundamental constitutional rights to encompass State intermediaries and public sector undertakings. The courts have also been willing to identify constitutional duties for private parties. For example, in Virender Gaur v. State of Haryana (1994), the Supreme Court clarified that it is “not only the duty of the State but also the duty of every citizen” of India “to protect and improve the natural environment”, reconfirming the existence of private obligations in relation to certain fundamental environmental rights. Whilst this echoed duties as outlined in Article 51A(g) of the Constitution, which 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”, these provisions are – in themselves – not justiciable. These non-justiciable duties were reconciled as rights enforceable under the Constitution when the Court in M.C. Mehta v. Kamal Nath (2000) harmonized Article 48A (State obligation) and Article 51A(g) (individual duty) by confirming that “they must be interpreted in light of Article 21”. However, these rights remained with only vertical application.
Fortunately, more recently, the Supreme Court has construed certain fundamental rights – Article 15 (prohibition of discrimination), Article 17 (abolition of untouchability), and Article 21 (right to life and liberty) – as enforceable against private parties. This was a departure from previous jurisprudence that applied a more restrictive reading of “State” and consequently precluded private parties from the ambit of the Constitution. Whilst previously the courts had only been willing to hold businesses and industries accountable under secondary legislation, the Supreme Court has recently reclarified the ability to directly enforce against private entities certain fundamental rights under the Constitution. In Kaushal Kishor v. State of Uttar Pradesh, the Court observed that, “in so far as fundamental rights against non-State actors is concerned, the vertical approach is giving way to horizontal application” and consequently held that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”. Although there have previously been instances of similar reasoning, for example in Zee Telefilms the Court held that whilst the remedy typically available to aggrieved citizens is vis-à-vis the State, “but that does not mean that the violator of such [constitutional] right would go scot-free merely because it or he is not a State”, Kaushal Kishor has crystallized the position by reconciling prior contradictory jurisprudence.
Given the harmonization of environmental duties with fundamental constitutional rights in Kamal Nath, the Court’s extension of Article 21 as enforceable against private entities has confirmed a justiciable right with horizontal application. Underpinned by such jurisprudence, the recent decision in Ranjitsinh has further expanded environmental rights by according to individuals a constitutional guarantee of a “right to be free from the adverse effects of climate change” and therein a fundamental protection from such adverse effects. Whilst the Court in Ranjitsinh did not expressly confirm the application of this newly recognized right against private parties, such enforcement may be implied from the precedent for horizontal application of such fundamental rights, coupled with the need for such enforcement to give full realization to this right.
MK Ranjitsinh v. Union of India
Brief facts
Interestingly, whilst Ranjitsinh established a new constitutional environmental right, it was notably done in obiter as the case actually related to the endangerment and protection of two bird species, the Great Indian Bustard (GIB) and the Lesser Florican, both of which are currently on the verge of extinction. The Court’s jurisdiction was invoked pursuant to Article 32 of the Constitution through a Writ Petition urging the Court to seek from the Government (the Respondents herein) “an emergency response plan for the protection and recovery” of the GIB in 2019. The petitioners outlined the horrific statistics reflecting the dwindling population of the GIBs that resulted in their classification as a “critically endangered” species. The petition outlined a series of factors contributing to the rapid decline in the number of GIBs in the State of Rajasthan (their natural habitat), including pollution, climate change, predators, loss of habitat and “overhead transmission lines”. The prayer sought an immediate embargo on new projects with overhead transmission lines, a prohibition on the renewal of pre-exiting projects, and the dismantling of overhead lines. It also sought other relief including the establishment of protected grazing zones, installation of predator-proof breeding enclosures, and the prohibition on the use of pesticides. However, the case developed on the issue of overhead transmission lines.
The Supreme Court’s order (Order) broadly (a) imposed restrictions on the setting up of overhead lines across a large area (~ 99,000 square kilometres); (b) directed the Ministry of Power to constitute a committee to assess the feasibility of underground power lines (including the conversion of overhead lines into underground ones); and (c) directed the installation of bird divertors. The Government (including the Ministry of Power and the Ministry of Environment, Forests and Climate Change) unsurprisingly sought modification of this Order, given the transmission lines were admittingly only partially responsible for the attrition. Their application claimed the Order has “vast adverse implications for the power sector in India and energy transition away from fossil fuels”, including a potential for pollution as a result of coal fired power required to capture untapped energy and the high-risk and inefficiency of laying high voltage lines underground. The Government also argued that the Order created obstacles to meeting India’s commitments under the Paris Agreement. Subsequently, the Government filed additional documents to reiterate the partial, arguably minimal contribution, overhead transmission lines actually have on the decline in the GIB population, underscoring the significantly greater involvement of other factors including “a low birth rate, poaching, habitat destruction and predation”. In reemphasising their commitments under the Paris Agreement, the Government alleged that such directions would seriously impede their mission to combat climate change. Whilst this case has witnessed a colorful evolution with a series of interim applications filed, the matter was finally revisited by a new three-judge bench of the Supreme Court, with the Chief Justice of India presiding.
The Court-mandated committee issued an official report that found that the laying of underground lines was not feasible. The report also confirmed that underground power lines were unable, in any event, to carry the required power. Consequently, the embargo was lifted and the direction for converting overhead lines modified. The Court held, “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 the previously defined area. However, the decision reasserted the value of other measures, including bird divertors, and emphasised the need to combat climate change. The Supreme Court, in conducting a balancing exercise, found that “this is 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”. Despite the factual matrix of this case, the Court extensively engaged with, and passed opinion on, the issue of climate change. Moreover, while doing so the Court expressly created a new justiciable fundamental right enshrined within Article 21 of the Constitution.
Significance of Ranjitsinh
Alongside the reaffirmation of the “right to a healthy environment”, the unprecedented decision in Ranjitsinh recognizes the “right to be free from the adverse effects of climate change” as fundamental. Today there is a growing acceptance on the global impacts of climate change but India is notable for according a constitutional protection to individuals suffering from the adverse effects of this phenomenon. There is a marked difference between conferring a constitutional right to a healthy environment or clean water and offering distinct protection from climate change, the latter of which imposes a positive obligation on the State and, perhaps, even private parties. The decision states:
“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” (emphasis added).
Article 21 (right to life and liberty)
In relation to life and liberty, the Court held that “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised”. The Court cited the decision in Virender Gaur, writing that “environmental, ecological, air, water, pollution, etc. should be regarded as amounting to a violation of Article 21” and “therefore, there is a constitutional imperative on the State Government, 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”. The Supreme Court thus reaffirmed both the fundamental sanctity of individual environmental rights along with the State’s absolute obligation to protect and promote such rights. What is interesting about the Court’s reliance on Virender Gaur alongside Kamal Nath is that, as discussed above, the earlier decision emphasized the unenforceable duty of citizens in protecting the environment and the latter recognized this as a justiciable obligation under Article 21 of the Constitution. Thus, by citing the decision in Virender Gaur in conjunction with Kamal Nath, the Court in Ranjitsinh possibly intended for its horizontal enforceability, that is for this protection to encompass both State parties and private entities.
The Court also recognized that the right to life encompasses the right to health and acknowledged the serious impact to such rights resulting from “air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding”. The Court noted that “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” such that “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” by “addressing the root causes of climate change and safeguarding the well-being of present and future generations”. Consequently, the Court found that the two rights – right to life and right to health – are inextricably interlinked in relation to climate impacts and must be considered together.
Article 14 (right to equality)
In relation to the right to equality, the Court observed that “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”. The Court, in recognizing the “disproportionate” impact on various groups including women, low-economic households and tribal communities, stated “if climate change and environmental degradation lead to acute food and water shortages, poorer communities will suffer more than richer ones and the right to equality would undoubtedly be impacted in each of these instances”. The Court further appreciated instances – for example in the case of indigenous communities – where the right to equality is violated “in ways that are more difficult to remedy”. In emphasizing the “constitutional guarantee of the right to equality”, the Court drew upon other State obligations, including international conventions (CEDAW, ICESCR etc.). The Court even cited a joint statement from the CRC and RPD for the proposition that the “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”.
Critique
As is often the case with most honorable thoughts, in theory, such thoughts are marvelous, yet in practice they are often impracticable and difficult to administer. Given that climate change is a global phenomenon, it is extremely difficult – if not impossible – for a State to actually ensure that all individuals are free from the adverse effects of climate change. This is especially true if de minimis impacts are considered, as arguably every member of Indian society is – at least to a certain extent – impacted by the adverse effects of climate change.
There is currently a clear disparity between the realms of theory and practice for the newfound right to be free from the adverse effects of climate change. It is a known fact that Indian cities, and now outskirts, suffer from hazardous levels of air pollution. It is also accepted that many regions in India are afflicted by extreme droughts, or, often, floods. These are only two of numerous examples of the adverse effects of climate change experienced in India. The decision of the Supreme Court as it currently stands – unqualified and absolute – suggests that there is a violation of the fundamental right of every citizen of India who experiences any such adverse effect. This is unworkable. Administratively, it is impossible for the Court to be able to consider every application of every citizen, should such an event arise. Effectively, the Court or State will be unable to provide the necessary relief to the affected person(s). Consequently, the overall sanctity of this newly recognised fundamental right will be undermined and deemed unenforceable. This would regress what is otherwise significant progress, innovation, and trendsetting by the Supreme Court.
A common measure adopted by other courts the world over has been to assess mitigation by the State, where, as outlined in the UNFCCC, the State has a responsibility to ensure that activities under its control do not damage the environment, and to take “precautionary measures to anticipate, prevent, or minimize the causes and adverse effects of climate change”. This is distinct from the traditional approach of using resultant harm as a measure, where courts assess the residual harm or damage instead of efforts taken to reduce such harm. It is likely that the Indian courts will, in clarifying this decision, delimit it in such a way that it may appear ‘watered down’. Whilst this may be necessary for the actual implementation and administration of this right, it would bring Indian jurisprudence more in line with the mitigation approach of other courts.
In reviewing the decision, it is plain that the Court did, in fact, intend for mitigation to be the measure to assess the administration of this distinct right. The Court held that:
“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” (emphasis added).
This approach is analogous to the one adopted by the Dutch courts in Urgenda Foundation, a case cited in Ranjitsinh. Similar to that case, the Court in recognizing India’s obligations under international law observed that the “intersection between climate change and human rights has been put into sharp focus, underscoring the imperative for states to address climate impacts through the lens of rights” where it is their responsibility 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”. This approach is also reminiscent of the approach adopted by the ECtHR in KlimaSeniorinnen, a decision pronounced contemporaneously to Ranjitsinh.
Conclusion
It is likely that the Supreme Court will have to clearly identify the scope of this new right to be free from the adverse effects of climate change, especially in respect to its administration and practical enforceability. India may nevertheless become a front-runner by offering more extensive protections than are accorded in many other jurisdictions. However, this remains to be seen.
Maya Nirula
Maya Nirula is an international lawyer with multi-jurisdictional experience working on cross-border issues relating to sustainability, business and human rights, and environmental law.
