Business Standard

Judicial activism in the air


As temperatur­es in the National Capital Region soared to 38 degrees centigrade, an early warning of the summer to come, two landmark judicial verdicts offer new perspectiv­es on climate change.

In India, the Supreme Court uploaded the detailed judgment of a dictated order of March 21 that delineated for the first time the right to be free from the adverse effect of climate change as a distinct right. Articles 14 (equality before the law and equal protection of laws) and 21 (right to life and personal liberty), a three-judge Bench headed by the Chief Justice D Y Chandrachu­d said, are important sources of this right.

Over 6,000 km away in picturesqu­e Strasbourg, the European Court of Human Rights passed a ruling on a petition filed by a group of over 2,000 Swiss women, all senior citizens, that appears to have set a global precedent linking the impact of climate change to human rights. The court ruled that the Swiss government had violated the human rights of its citizens by failing to do enough to combat climate change. This first ever climate action ruling is non-appealable.

The two rulings appear to have a commonalit­y but the similarity is superficia­l. The Supreme Court’s verdict addresses a commercial dimension. The case concerns the rights of solar power developers to install overhead transmissi­on lines versus the preservati­on of the Great Indian Bustard (GIB) in Rajasthan and Gujarat. The latest verdict, which underlines the citizens’ right to clean power rather than polluting fossil fuel, overturns a 2021 Supreme Court verdict that mandated that all overhead high- and low-voltage power lines be taken undergroun­d so that the dwindling population of GIBS in the area did not fly into them.

On appeal by the government, the Supreme Court appointed an expert committee to decide. The real story is that moving cables undergroun­d would have raised solar developers’ costs significan­tly. Last year, this expert committee issued tech specs for bird diverters or Led-based warning discs to be installed by developers in GIB habitats. Though this is considered a lower-cost solution, there are problems in getting clearances for installati­ons and a paucity of competent vendors for these gadgets. In November last year, the ministry of new and renewable energy filed an applicatio­n stating that the compulsory undergroun­ding of solar power lines would impact India’s carbon footprint.

This is a persuasive argument but what about the GIB, a protected species? It may be argued that with just 200 left in the wild, preserving them isn’t worth the effort. Imagine if this argument had been deployed about the tiger population of less than 2,000 before Project Tiger. Set against the larger question of global warming, the extinction of any species upsets the environmen­t’s intricate balance with unforeseen deleteriou­s consequenc­es. Witness the rise in malaria-, chikunguny­a- and dengue-causing mosquito population­s as the lizard and bird population­s, which feed on them, decline. That forces us to spray (and inhale) more harmful chemical repellents, adding to the global warming budget.

No environmen­tal solution can be perfect, but government­s can balance the risks. We take pride in Project Tiger’s achievemen­ts but overlook the displaceme­nt of population­s that it entailed. Some parks, such as Kanha and Corbett, found solutions in training local land losers as guides and trackers. The solar power developers’ dilemma could have attracted a different solution, with the government sharing expenses and fulfilling both public-interest objectives — clean energy and conservati­on.

How far will the Supreme Court’s latest judgment, which locates a developmen­t issue with the framework of constituti­onal values, enhance citizens’ access to climate justice? The decision builds on a body of jurisprude­nce from the 1980s, including famously M C Mehta versus Union of India that treated the right to live in a pollution-free environmen­t as an Article 21 fundamenta­l right. Yet India consistent­ly enjoys primacy in annual rankings of the world’s most polluted cities. The judgment also raises questions about how government­s will address deaths caused by rising heatwaves and Glacial Lake Outburst Floods, the most potent sign of global warming.

Melting glaciers have been the proximate cause of the case at the human rights court brought by a women’s group that said the Swiss government had failed to do enough to cut greenhouse gas emissions. The Swiss government has pledged to cut emissions by 50 per cent from 1990 levels by 2030 but stronger measures had been rejected by a referendum as too burdensome. The suit was the result of a “climate lockdown” last year owing to a heat wave that kept many elderly women house-bound for weeks.

The practical impact of this verdict is unclear — some commentato­rs suggest that litigation in national courts plus financial penalties could follow. The suit is also seen as a precursor to others — in Australia, Brazil, Peru and South Korea. One lawsuit in Norway on oil and gas exploratio­n rights in the Barents Sea is underway.

Interestin­gly, the Strasbourg court rejected a case brought by six Portuguese youngsters against 32 European government­s on grounds that a state’s greenhouse gas emissions might impact people beyond its borders but that did not justify prosecutin­g a case across multiple jurisdicti­ons, Reuters reported. The court may be right on a point of order but it’s the youngsters who have understood the issue better. Climate-change action cannot be solely a national concern; it demands global cooperatio­n and action, not tit-for-tat unenforcea­ble national commitment­s that let the world’s historical polluters off the hook and impose costs on the poorest. As these judgments highlight, it’s the young, the elderly, women and the voiceless, voteless animal kingdom that pay the highest price for climate-change inaction.

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