Rewriting India's Green Mantra
The Supreme Court's flip-flop on safeguarding the Great Indian Bustard, has redrawn the playbook on development versus environment. EPISODE #172
Dear Reader,
A very happy Monday to you.
Last week the Supreme Court did a rare thing. It walked back its previous order placing a blanket ban on overhead power transmission cables in the habitat of the Great Indian Bustard—an endangered bird species numbering less than one hundred in the wild—in Rajasthan to evacuate solar power.
While activists are outraged it is clear that the Supreme Court, recognizing the contemporary challenge of climate change, redrew the conventional playbook dealing with the trade-off between environment and development.
So this week I try and unpack this precedent setting judgement of the Supreme Court of India.
The cover picture of the Great Indian Bustard is a screen grab from a YouTube video posted by HCL Enterprise.
Happy reading.
The Flip-Flop
Last week the Supreme Court did something unexpected. It walked back its order of April 2021 pertaining to the blanket ban on overhead power transmission cables in the habitat of the Great Indian Bustard in Rajasthan. The Bustard is an endangered species with less than 100 alive in the wild.
In doing so, the apex court has reworked the playbook for dealing with the vexing choice between development and environment. This trade-off is occurring frequently, especially as India seeks to rapidly grow its economy.
Consequently, the Supreme Court’s decision has created a very important precedent—something that will guide future disputes in this regard. Click this link if you wish to read the judgement.
The Logic
It is apparent that this was not an easy decision for the apex court. Not just because it meant reversing an order delivered previously by the court and thereby implicitly admitting it had erred.
Previously, the dilemma had been framed as a binary choice—protect the Great Indian Bustard by preserving their habitat or give its go ahead for the setting up of overhead transmission cables to evacuate the solar power from upcoming projects. The latter is a key to fighting climate change by reducing dependence on fossil-fuel generated power. Consequently, it led to restrictions being imposed on overhead power transmission cables spread over 99,000 square km.
The union government sought a modification of this order issued in 2021. The Supreme Court agreed to revisit the decision. And this time it changed the entire paradigm of the debate. Instead of viewing as a simple either/or, the apex court recommended a more “holistic” approach.
Explaining its logic, the Supreme Court said:
“It is imperative to recognize the intricate interface between the conservation of an endangered species, such at the Great Indian Bustard, and the imperative of protecting against climate change.”
And then added (the highlight is my doing):
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.”
Climate Change
The review has led to the Supreme Court formally acknowledging the damage being caused by climate change and India’s fight—both internally and multilaterally—against it.
It also noted that the Constitution implicitly acknowledged the importance of environment as a fundamental right.
“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.”
And then added (the highlight is my doing):
“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.”
The Supreme Court noted that despite a plethora of decisions on the right to a clean environment, this had not been articulated as a right against the adverse effects of climate change.
Having established it as a fundamental right, the Supreme Court then said: (the highlighting is my doing) :
“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.”
To explain its logic the Supreme Court pointed out that the lack of access to energy—something that is only just being overcome in India—hurts those at the bottom of the pyramid. Especially the cohort of women who spend on an average “1.40 hours a day collecting fuelwood and four hours cooking, in addition to other household tasks that could be addressed by energy access”.
The New Playbook
While putting on record that the Great Indian Bustard was an endangered species, the Supreme Court held that there was no logic of a blanket ban on overhead power transmission cables over an area of 99,000 km to distribute solar power.
As discussed earlier it came to this conclusion by recasting the debate as the “complex interplay” between:
Environmental conservation;
Social equity;
Economic prosperity;
Climate change.
Check out the pull quote below:
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.
Accordingly, it argued that there was a need to balance various objectives. In this instance, protecting the Great Indian Bustard on the one hand and protecting the overall environment on the other (by permitting the evacuation of solar power) to mitigate climate change.
Explicitly acknowledging that the Court does not posses the domain expertise, it has now delegated the task of drawing up a new plan to an expert group.
Going forward it is clear that this judgement of the Supreme Court has inserted a very important precedent and is likely to serve as the template for ruling on similar disputes in the future.
To be sure though, it is still not going to be an easy decision. This is because the choice is based on several factors and hence more complex. Worse, any choice will always be imperfect. But that is why it is called a trade-off.
Recommended Viewing/Reading
Sharing the latest post of Capital Calculus on StratNews Global.
As discussed in detail above, the Supreme Court’s flip flop on its order on protecting the Great Indian Bustard has reset the playbook on dealing with the trade-off between environment and development.
To help unpack this precedent setting judgement I spoke to Debadityo Sinha, Lead of the Climate and Ecosystems team at Vidhi Centre for Legal Policy. (There is one correction. The order was first issued in 2021 and not 2019. The error is regretted.)
Sharing the link below. Do watch and share your thoughts.
Till we meet again next week, stay safe.
Thank You!
Finally, a big shoutout to Shiv, Premasundaran, Shashwathi and Ranjini for your informed responses, kind appreciation and amplification of last week’s column. Once again, grateful for the conversation initiated by all you readers. Gratitude also to all those who responded on Twitter and Linkedin.
Unfortunately, Twitter has disabled amplification of Substack links—perils of social media monopolies operating in a walled garden framework. I would be grateful therefore if you could spread the word. Nothing to beat the word of mouth.
Reader participation and amplification is key to growing this newsletter community. And, many thanks to readers who hit the like button😊.
Protecting the environment through legislation is already delayed by a decade, in India. Too much irreversible damage has happened and the future generations will suffer untold miseries due to the thoughtless deforestation, destruction of mountainous regions, pollution of water bodies and rivers, building concrete jungles in catchment areas of rivers, lowering ground water levels for shallow commercial projects and sanctioning mining projects to satisfy the greed of certain groups in power but with far reaching consequences for the health and livelihoods of the native population. Some of these projects were actually not required, but were pushed through in the name of modernization and development of infrastructure for the economic well-being of the local population; the crumbling of Joshimath and surrounding areas of Uttarkashi are a case in point. The government could have done better by refraining from drilling tunnels into the hills of Uttarakhand and instead aided the small state in horticulture projects, fruit plantations; as the area is important for securing North India from the ravages of climate change. Similarly Kerala, Chennai and Bengaluru could have been spared of devastating flooding if permissions for building concrete structures were given prudently. The list is endless and perhaps we will always play catch up to survive in the harsh reality of climatic change, that lies ahead. Human nature is such, that we like to read what we want and sometimes it is not the reality. Hence, when conscientious people write articles like this, it may help in shaping public opinion. Keep us posted Anil. Very well written. Thank you. 😊
Hi Anil, an insightful article! Thank you!