Supreme Court order on climate change not a recipe to rewrite laws

The Supreme Court of India has always advocated a balance between development and environmental goals, say experts

Experts agree that India will need to enact comprehensive environmental protection law to guide the current mining regulations for industrial promotion, but without disregarding the development concerns to comply with last week’s Supreme Court judgment, which declared climate concerns a Fundamental Right.

The Supreme Court ruled that people have the right to be free from the adverse effects of climate change. These rights should be included in Article 14 and 21 of the Indian Constitution, the three-judge bench led by Chief Justice DY Chandrachud noted. 

Most significantly, the judgment comes just as the European Court of Human Rights also handed out a similar order in a petition filed by 2,000 Swiss women. The petitioners said the Swiss government had violated their human rights “by failing to take sufficient action on climate change”.

The Indian Supreme Court order came on March 21 in a case relating to the conservation of the critically endangered Great Indian Bustard, but was made public last week.

Changes in which laws? 

But there is no need for panic, said Deepto Roy, partner at Shardul Amarchand Mangaldas who specialises in infrastructure, energy and project finance. “In a sense, the top court follows a similar approach to several prior decisions. The Supreme Court of India has always advocated a balance between development and environmental goals (hence ‘sustainable development’). Given the rampant unplanned developments, the Court has usually had to side with protection of environmental goals, and the present decision is no different. In fact, the consequences of the Court’s decision, in terms of allowing overground transmission lines in the critical habitat of a highly endangered species, are yet unclear,” said Roy.  

Arun Kumar, partner at IndusLaw agrees with Roy and said that the laws in India which govern land acquisition, mining and minerals have to be read “harmoniously with the extant environmental laws in India”. So, in light of the Supreme Court order, “these legislations will be required to be further strengthened to ensure implementation and assessment of any damages to the environment which currently falls through the cracks,” Kumar.

For more than two decades, laws which allow the government to expand industrial activities including mining have become one of contention in the courts. But those contests were about the extent of compensation the government, at the centre or the states would offer to those displaced by the industrial activities. 

The trend was most dramatic in the case of areas acquired for coal mining. India allows possession of land under the Coal Bearing Act to extend coal mining. To make the process simpler the central government tried to bring in the Coal Bearing Areas (Acquisition and Development) Bill last year but the Jharkhand government has opposed the clauses using environmental concerns. 

The lawyers agreed that any such opposition would now have far greater strength in the courts with the Supreme Court order. 

“The Supreme Court has rightly pointed out that despite the presence of a multitude of environmental protection laws in India, there is no umbrella legislation which recognizes climate change, its effects, mitigation and provides relief to the citizens,” Kumar said. Roy added that in addition to the umbrella legislation being enacted for the EU, “the members of the EU have enacted laws and regulations at a country level to regulate the impact of climate change in their countries and to effect change at a grass root level”. 

Focus on sustainability

For the new government this will be a tough call. An umbrella legislation could help the government argue it has incorporated climate concerns as a fundamental right. However, this can pose risks. Re-evaluating environmental considerations in development projects in such a law could “potentially result in stricter regulations and a heightened focus on sustainability as well as the inclusion of the same to be recognised by the Constitution of India”, said Sanjay Notani, Partner, Economic Laws Practice.

A former secretary in the Ministry of Coal said that potentially every law will now need to satisfy this new requirement. He raised concerns about potential backlash against Greenfield Manufacturing projects. Moreover, the construction of new roads and railway lines in recent times adds to the complexity. The recent tunnel collapse at Silkyara in Uttarakhand, a segment of the Char Dham road project, has intensified this debate. These arguments could now be difficult for the government to negotiate through. 

For instance penalties under these legislations may have to be rewritten, including cleanup of pollution caused by such activities. “The clear articulation of every Indian’s fundamental right against adverse effects of climate change creates a pathway for having legal accountability for actions (whether by government departments or private entities) that undermine India’s commitments under international treaties to meet its climate targets,” said Roy. 

Highlighting the contradiction inherent in these debates is the flak directed at the Ministry of Road Transport and Highways for a slowdown in the pace of construction in FY23. To address this, the ministry is implementing various measures to accelerate the awarding of road contracts. The Centre has also approved policies to expand sea mining for critical minerals. These minerals are paradoxically essential for industries aiming to reduce reliance on fossil fuels.

The Supreme Court order indicates the need for a holistic approach to develop solar power, particularly in Gujarat and Rajasthan. It is in line with India’s climate change objectives and does not sacrifice or further endanger the Great Indian Bustard. “With courts worldwide becoming more proactive on climate matters, increasing judicial scrutiny on environmental issues are expected,” said Notani. 

A way out could be for the Union government to argue that it has already made several commitments under the Paris Convention of the UNFCCC. These include policies to combat greenhouse gas emissions, and to achieve net zero in energy usage by 2070 as clear policies to battle climate change. 

Still, there is no doubt that “it is time to re-evaluate the practical implementation of the environment protection laws and the lacunae therein to accommodate necessary updates to the same and implement new climate regulations”, said Kumar.