The fundamental right to life of Indian citizens has been extended to the right to be protected against harm caused by climate change, thanks to a landmark judgement of the Supreme Court on April 5, 2024. This has been hailed by almost everyone who has faced the impacts of climate change – more frequent and more severe floods, storms and droughts; ever-worsening heatwaves; coastal lands and water going saline due to sea level rise; more flash floods in mountain areas and others. But there are two worries.

The three-judge Supreme Court bench headed by Chief Justice of India D.Y. Chandrachud extended the fundamental right enshrined in the Constitution after hearing a petition to save the critically endangered great Indian bustard (GIB), including by moving underground electricity transmission lines from solar and wind power generation plants in Rajasthan and Gujarat. In the judgement they reached after hearing from an expert committee they had appointed, they rejected the possibility of moving transmission lines underground on grounds of feasibility and cost.

It is clear from the judgement that the Supreme Court was very aware of the need to protect the GIB. Only a little over 100 birds remain in their native semi-desert scrubland home through which overhead power lines pass. This is the only GIB population in the world and there have been cases of the largely ground-dwelling birds dying after flying into power lines. The judges had to tread a fine line between protecting the GIB and encouraging renewable energy, the only way to mitigate the emission of greenhouse gases that are warming the atmosphere.

The judgement has a whole slew of measures to protect the GIB. It reads, “It is imperative to recognise 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 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.”

“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 dilemma such as the present one does not permit the foregrounding of one of these as a priority, at the cost of the other.”

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Conserving biodiversity amid renewable energy push

The worry is that this part of the judgement has been largely overshadowed in the media, which has focused on the extension of the fundamental right to life. From the editorial point of view, the right to life was the big news and it was natural for that to capture the headlines. The problem is that the need for balance between renewable energy and biodiversity conservation has been largely ignored in the media coverage of the judgement. This has potentially dire consequences.

There is little doubt that solar and wind power are the ways to move towards clean energy and the need to make that move cannot be overstated. India is committed to generating 500 gigawatts through non-fossil fuel sources by 2030. The current installed capacity of solar is 82 GW and wind 46 GW, which adds up to 128 GW. So, there is a long way to go. The problem is that in many cases all over the country, this move is being made at the cost of local communities and of biodiversity.

Solar and wind farms are coming up on plots earlier used as the common grazing land of villages and residents are being fenced out, not to talk of their livestock. Usage rights over common properties are anyway vague under law and lack of documentary evidence makes it difficult for communities to get their grievances redressed. Plus, there is the provision that solar and wind farms do not need mandatory environmental impact assessments before they are set up. This makes it even more difficult for residents to get their voices heard. There is widespread resentment against wind farms because cattle do not like the whoosh of the blades and do not want to graze anywhere nearby. Wind project developers routinely dismiss this as unscientific superstition, but people find it almost impossible to change the minds of their livestock. The developers need to find a solution, just as solar farm developers need to find a way to grow crops below their photovoltaic panels. There is not enough spare land in India to take it away from agriculture in a large scale. And this is not all. There was a case in Maharashtra where a solar farm encroached into a forest area supposedly under official protection before this was reported in the local media and the farm was partially shut down.

Essentially, renewable energy must also become responsible energy. For large parts of the nineteenth and twentieth centuries, coal mining and oil wells have ruined farmland and biodiversity. There is no reason why renewable energy should duplicate that despoilation. The Supreme Court was clearly very aware of this and has tried its best in the case of the great Indian bustard. It has even set up a monitoring committee to ensure the balance between renewable energy and biodiversity conservation is maintained in this case.

But this is not the only case – there is much more widespread avoidable destruction going on as part of the renewable energy rollout. It need not be so. Technical solutions exist. Developers are unwilling to use them because they raise project cost, though rarely more than five percent. This is where regulators have to step in.

One problem with the renewable energy market in India is that rooftop solar is not really taking off, definitely not at the individual household level. The main reason is that electricity distribution companies (discoms) do not want it to take off, though they cannot say so. Most discoms are already bankrupt, and they do not want their revenues affected further, as they will be if consumers start producing energy on their own at scale. There are other obstacles such as antiquated municipal laws. Sorting out these problems will take away a big factor in biodiversity destruction, because decentralised energy generation at almost every rooftop will mean the country will not need as many transmission and distribution lines. And India will find it very difficult to reach the 500 GW capacity figure by 2030 without a huge fillip to solar rooftops.

Uncertainty about practical implementation

There is a second issue with the Supreme Court judgement that has not received much attention – what will be the practical effect of this extension of the right to life? How will an Indian impacted by climate change be able to exercise this right? If residents of a coastal area find the tubewell water is too salty to drink, will they be able to go to court and expect redress? What sort of redress can they expect? What sort of redress can the government actually provide? The authorities will tell the court they are already moving villagers away from the coast, digging deeper tubewells, piping water from areas further inland and so on. Given today’s techno-economic scenario, it is unlikely that the central or any state government will be able to install desalination plants all along India’s 7,500-km-long coast and connect the plant to every home. So, what will the courts order?

This remains to be seen, but we have already seen that the Uttarakhand High Court judgement on the rights of rivers has had little practical impact so far. Perhaps that is because the officials appointed legal parents of the rivers have not gone to court. In this case, the affected people can go to court themselves. It will be interesting to see what happens if they do.

Joydeep Gupta is a veteran environment journalist and India Manager of Earth Journalism Network.

Banner image: The critically endangered great Indian bustard. Photo by Saurabh Sawant/Wikimedia Commons.

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Kundan Pandey Editor

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BiodiversityClimate Change MitigationRenewable EnergyIndia

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