SUPREME COURT ON
CLIMATE CHANGE AND FUNDAMENTAL RIGHTS
Dr Akula Kishan
I.F.S.(Rtd)
It
is heartening to note that the Hon’ble Supreme Court of India has pronounced
two important judgements equating protection from climate Change as a
fundamental right, such as right to life and personal liberty.
In
M K Ranjitsinh & Ors. Vs Union of
India & Ors. (2024 INSC 280 = 2024
Live Law(SC) 286) Supreme Court,
through its judgment dated 21.03.2024, has recognized a right to be free from
the adverse effects of climate change as a distinct right. The Court said that
Articles 14 (equality before law and the equal protection of laws) and 21
(right to life and personal liberty) of the Indian Constitution are important
sources of this right. The case was
regarding measures to be taken for protection of Great Indian Bustard.
The
Court said that, “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.,”
It
was held that, “there is no single or umbrella legislation in India which
relates to climate change and the attendant concerns. However,
this does not mean that the people of India do not have a right against the
adverse effects of climate change….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…..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.”
Without
a clean environment which is stable and un-impacted 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 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.
The
Apex Court narrated the Climate Change Litigation in other Countries of the
World, such as Netherlands, Argentina and New Zealand. The impact of Climate
Change is being felt worldwide and Legal forums are prioritizing the
initiatives to be taken by respective Governments.
A
week after recognizing for the first time the fundamental right to be free from
the adverse effects of climate change, the Supreme Court has delivered another judgment
on 18.04.2024, highlighting the potential adverse impacts of climate change.
The Apex Court in the case of The State of Telangana & ors. Versus Mohd. Abdul Qasim (died) per Lrs
(2024 INSC 310 = 2024 Live Law (SC) 314) cited a report published by the
Reserve Bank of India titled “Report on Currency and Finance; Towards a Greener
Cleaner India” (2022-23), which, the Court said, presented a "very
disturbing scenario." Climate change manifested through rising temperature
and changing patterns of monsoon rainfall in India could cost the economy 2.8
per cent of its GDP and depress the living standards of nearly half of its
population by 2050. India could lose anywhere around 3 per cent to 10 per cent
of its GDP annually by 2100 due to climate change in the absence of adequate
mitigation policies. In this backdrop, the Court discussed
the importance of forest protection. "A difference of one and half degree
Celsius in temperature saves the global economy tens of trillions of
dollars," the Court said. The Court observed that a country with excess
forest cover would be in a position to sell its excess carbon credit to the one
in deficit”.
The
Apex Court in “Telangana case” (supra) underscored the significance of the
forest for the survival of diverse forms of life. “Human beings indulge
themselves in selective amnesia when it comes to fathom the significance of
forests. It is the forests which give life to the Earth by replacing carbon
dioxide with oxygen, thereby providing a hospitable environment for the steady
growth of diverse life forms. It's the spirit of the forest that moves the
Earth. History shall not be understood from the jaundiced eyes of humans but
through the prism of the environment, the forest in particular.”
The
court highlighted how the developmental activities of humans are inadvertently
destroying the humans themselves, where despite taking selfless motherly
service from the forest, the humans are continuing to destroy the forests. It
was held that, “Forests not only provide for and facilitate the sustenance of
life, but they also continue to protect and foster it. They continue to tackle
the ever-increasing carbon dioxide emissions produced by humans in the name of
development, while striving to sustain all species. Despite the unblemished,
selfless and motherly service rendered by forests, man in his folly continues
with their destruction, unmindful of the fact that he is inadvertently
destroying himself.”
It
was further observed that, “It is the vulnerable sections of the society who would
be most affected by the depletion of forests, considering the fact that the
more affluent sections of society have better access to resources as compared
to them. Therefore, the protection of forests is in the interest of mankind,
even assuming that the other factors can be ignored.”
The
Apex Court mentioned the case of Sachidanand Pandey v. State of W.B., (1987)
2 SCC 295, that, “ Whenever a problem of ecology is brought before the
court, the court is bound to bear in mind Article 48-A of the Constitution, the
Directive Principle which enjoins that “the State shall endeavor to protect and
improve the environment and to safeguard the forests and wild life of the
country”, and Article 51-A(g) which proclaims it to be the fundamental 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”.
In
the case of M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213 , the Apex Court
held that, “ In the matter of enforcement of rights under Article 21 of the
Constitution, this Court, besides enforcing the provisions of the Acts referred
to above, has also given effect to fundamental rights under Articles 14 and 21
of the Constitution and has held that if those rights are violated by
disturbing the environment, it can award damages not only for the restoration
of the ecological balance, but also for the victims who have suffered due to
that disturbance. In order to protect “life”, in order to protect “environment”
and in order to protect “air, water and soil” from pollution, this Court,
through its various judgments has given effect to the rights available, to the
citizens and persons alike, under Article 21 of the Constitution.”
In
Pradeep Krishen v. Union of India, (1996) 8 SCC 599, it was held that,
“Even
Articles 48-A and 51-A(g) inserted in the Constitution by the 42nd Amendment
oblige the State and the citizen, respectively, to protect and improve the
natural environment and to safeguard the forest and wildlife of the country.
The statutory as well as the constitutional message is therefore loud and clear
and it is this message which we must constantly keep in focus while dealing
with issues and matters concerning the environment and the forest area as well
as wildlife within those forests. This objective must guide us in interpreting
the laws dealing with these matters and our interpretation must, unless the
expression or the context conveys otherwise, subserve and advance the
aforementioned constitutional objectives”.
The Apex Court, in the Telangana case (supra)
observed as follows:
“ 30. Consequent to the advent of agriculture,
man has destroyed a significant portion of forests at his own peril. Forests
serve the Earth in a myriad of ways ranging from regulating carbon emissions,
aiding in soil conservation and 29 regulating the water cycle. Water being a
life source, its availability for all life forms is heavily dependent upon the
aquifers created by forests. Forests also play a pivotal role in controlling
pollution, which significantly affects the underprivileged, violating their
right to equality under Article 14 of the Constitution of India, 1950. It is
the vulnerable sections of the society who would be most affected by the
depletion of forests, considering the fact that the more affluent sections of
society have better access to resources as compared to them. Therefore, the
protection of forests is in the interest of mankind, even assuming that the
other factors can be ignored.”
The Telangana case was regarding
deletion from forest land an area106.34 Acres,
in Kompally Village, Warangal district, wherein the order of the Revenue
Authority and the Revisional Authority were passed much after the declaration
under Section 15 of the A.P. Forest Act, vesting the lands in the State by
giving them the status of a reserved forest. The Reserve Forest lands were given to a
private individual; the orders were reversed. The Apex Court strongly viewed
the matter and imposed cost of Rs. 5,00,000/- each on appellants and
respondents to be paid to the National Legal Services Authority (NALSA) within
a period of two months from the date of this judgment. The appellant State is free to enquire into
the lapses committed by the officers in filing collusive affidavits before the
competent court, and recover the same from those officers who are responsible
for facilitating and filing incorrect affidavits in the ongoing proceeding.
In conclusion, the Apex Court observed that the
approach required to be adopted by the courts where the onus is on the violator
to prove that there is no environmental degradation. There is a constitutional duty enjoined upon
every court to protect and preserve the environment. Courts will have to apply the principle of parens
patriae (means "parent of the
nation," is a legal principle that grants the State the inherent power and
authority to act as the guardian for those who are unable to care for
themselves) in light of
the constitutional mandate enshrined in Articles 48A, 51A, 21, 14 and 19 of the
Constitution of India, 1950. Therefore, the burden of proof lies on a developer
or industrialist and also on the State in a given case to prove that there is
no such degradation.
The principles laid down by the Apex
Court are to be emulated by other Court to protect Forests, Wildlife and the encompassing
Environment, so the effects of Climate Change are minimized.
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