Supreme Court: Net Zero Polestar

By Ritwika Nanda and Tannishtha Chatterjee

“Dharma exists for the welfare of all beings. Hence, that by which the welfare of all living beings is sustained, that for sure is dharma.” Mahabharata (Shanti Parva 109.10) 

In a landmark decision in April 2024, the Supreme Court of India, acting as the dharmarakshaka (custodian of justice and morality), has made a commendable move by addressing the conservation of the Great Indian Bustard (GIB). It highlights the complexity of balancing noble efforts such as protecting endangered species with the imperatives of sustainable development—a delicate equilibrium known as "good against good."

In the vast, windswept plains of India, there exists a creature of unparalleled grace and majesty the Great Indian Bustard. Once poised to be the national bird, it now teeters on the edge of oblivion, its future hanging by a thread.

Recognizing the urgency of its conservation, a writ petition filed in the year 2019 under Article 32 of the Indian Constitution drew attention to the plight of the GIB due to the electrical transmission lines and highlighted the need for concerted efforts to ensure its survival. Finally, the Supreme Court after a series of hearings appreciated the efforts that were needed to protect the Great Indian bustard and it passed restrictions in erecting transmission lines going through Rajasthan and Gujrat the core area of the last surviving pack of GIB.

In 2021, the Supreme Court of India further imposed restrictions on overhead transmission lines spanning 99,000 square kilometers in Rajasthan, a major habitat of the Great Indian Bustard (GIB).

The order passed by the Hon’ble Supreme Court in 2021 protected the Great Indian Bustard but it created a challenge for transmission lines which was equally necessary for the infrastructure development and addition of solar power to the grid as per the commitments under various International climate protocols. Once the 2021 judgment was passed the Union of India through its Ministry of Power and Ministry of New and Renewable Energy filed a further application for modification of the order dated 19th April 2021 before the Supreme Court of India. In this application, the central government had specifically explained that India, under the Paris Agreement, committed to transitioning to non-fossil fuels and reducing emissions. However, the area earmarked for conservation directives given by the Supreme Court extends beyond Great Indian Bustard habitats, encompassing and impacting the significant solar and wind energy potential of India.

In March 2024, further to the 2021 order, the Supreme Court of India made several significant modifications. It emphasized India's commitments under the Paris Agreement to achieve 50% nonfossil fuel-based electric power by 2030, which couldn’t be achieved if there were restrictions in the setting up of solar power plants or the setting up of solar power transmission lines. The Court stressed the importance of a clean environment for the right to life, especially for vulnerable groups. It also recognized the fundamental right to be free from the impacts of climate change. This move showcased the Court's recognition of environmental rights as intrinsic to human rights. By linking environmental protection to human rights, the Court not only valued the well-being of individuals but also acknowledged the interconnectedness of environmental sustainability and social justice. This approach created a new dimension wherein environmental concerns were no longer viewed as separate from human rights but rather integral to them.

Championing solar energy, the Court emphasized its potential to curtail carbon emissions, combat climate change, and foster energy independence. The installed solar energy capacity has surged by 30 times in the past nine years, reaching 75.57 GW as of February 2024. India's solar energy potential, estimated at 748 GWp by the National Institute of Solar Energy (NISE), presents a significant opportunity for clean energy expansion. Moreover, the substantial increase in power generation from solar PV in 2022, with a record 270 TWh generated, accounted for 4.5% of total global electricity generation.

From a business perspective, India’s regulatory misgovernance, and environmental bottlenecks got an image correction with this significant supreme court order which may potentially help our ranking in ease of doing business in India.

This judgment will clear bottlenecks for the positioning of infrastructure development, enhancement, and amplification of renewable energy and will lead to regulatory and legal certainties in investments made in the energy sector. When we talk about the 17 Sustainable Development Goals (SDGs), it is of prime importance to move towards a multifaceted development that doesn’t leave behind any aspect. After all, the sustainability targets act as catalysts for business activities, shaping policy implications across various levels of governance in India. The Supreme Court judgment for balancing climate rights with energy security is futuristic in this respect.

When both environmental sustainability and infrastructural development are considered in the Ease of Doing Business Index, it reflects a comprehensive positive approach to business operations. Improved infrastructure enhances logistical efficiency and reduces operational costs, while environmental considerations ensure long-term viability and resilience, attracting sustainable investments and fostering business confidence.

The Supreme Court has accomplished a difficult balancing act. Not only they were dealing with India’s first climate change litigation they were also faced with a conundrum. As the sun set over India's plains, a monumental dilemma unfolded: the promise of solar energy clashing with the survival issue of the Great Indian Bustard. But amidst this stark choice, the Supreme Court of India has dared to be hopeful, and not only did they pass a futuristic judgment they highlighted India's quest for clean air and net zero obligations. This landmark judgment not only charts a course for the future of India where environment and development will not be seen as poles apart but complement each other and the court also establishes a legal precedent, ensuring the right to be free from the impacts of climate change including a fundamental right to be free.

The judgment showcases India's sense of responsibility toward managing carbon emissions and creating a harmonious balance between environmental conservation and economic progress. By relying on global precedents and multiple litigations being initiated for the enforcement of climate rights, the Apex Court reaffirms India's commitment to environmental stewardship on the world stage. Following the footsteps of the Indian Supreme Court, the European Courts have also taken a decision in this regard. It's a beacon of resilience, reminding us that even in the darkest times, there's hope for harmony and innovation. For in this struggle lies not just the fate of a magnificent species or a clean energy source, but it also showcases that the Indian Supreme Court is a polestar that has set a global precedent on climate laws and has enriched environmental jurisprudence.

Ritwika Nanda, Partner, Trust Legal Advocates & Consultants

Tannishtha Chatterjee, Associate Trainee, Trust Legal Advocates & Consultants