Breathing Life into the Right to Life: The Indian Supreme Court and the Right to be Free from the Adverse Effects of Climate Change

Aman Mehta

Central European University

Much ink has been spilt on the three ‘historic and unprecedented’ judgments handed down by the European Court of Human Rights on 9 April 2024 on mitigating climate change, and the subsequent positive obligation of member states that flows from them (see here, here and here). However, a judgment regarding climate change just as historic (although not unprecedented) was also handed down by the Supreme Court of India (‘SCI’) on 21 March 2024. The SCI judgment has largely gone unnoticed within the international legal community, especially among constitutional law scholars. In M.K. Ranjitsinh v. Union of India, a three-judge bench of the SCI recognised the ‘right to be free from adverse effects of climate change’ as a separate and distinct right flowing from Articles 21 (the right to life and personal liberty) and 14 (equality before law and the equal protection of laws) of the Indian Constitution. In this post, I demonstrate how the Court has once again breathed life into Art 21 through its conventional approach of implying rights into that provision that are otherwise not explicitly set out in the Constitution (‘the reservoir of rights’).

Brief Background

The SCI decision relates to the protection of two critically endangered species of birds - the Great Indian Bustard (‘GIB’) and the Lesser Florican - for which the Court’s constitutional jurisdiction under Article 32 was invoked by several environmentalists in the form of a ‘Public Interest Litigation’. By an order dated 19 April 2021, the SCI had, through a series of blanket directions, imposed several restrictions pertaining to setting up overhead transmission lines (a key reason for the decline in GIBs) in large areas of priority and potential GIB habitats. The Court had directed that those overhead powerlines be converted to low voltage underground powerlines and that, wherever feasible, other high voltage overhead powerlines be converted as well. The Court had set up an expert committee to determine the feasibility of this course of action. The Union Government of India sought modification of this order, stating that not only there was a need to balance the protection of endangered species with India’s international commitment to recourse to renewable sources of energy, but also that such blanket directions imposed by the Court were not practically feasible, hindered India’s commitment to international conventions and failed to achieve the stated goal of protecting GIB.

The Decision

In the Ranjitsinh decision, the SCI modified its 2021 order, engaging in a detailed discussion regarding India’s international commitments to combat climate change (paras 11-18) and the importance of renewable energy (with particular emphasis on solar energy) in sustainable development and mitigating climate change (paras 36-43). The Court stressed the importance of balancing the safeguarding of biodiversity with mitigating the impact of climate change, stating that there exists no ‘binary choice between conservation and development’ (para 53). The Court thus observed that the blanket directions in its earlier order needed recalibration, leaving the task of determining feasibility to a newly formed expert committee.

Reading Rights into the Reservoir of Rights – Article 21

The most crucial takeaway from the decision was the Court’s explicit recognition (at paras 19 and 24) that the people of India have a fundamental right to be free from the adverse effects of climate change. The Court first noted that although several governmental policies recognize the adverse effects of climate change, and there exist rules and regulations to combat it, there is no umbrella legislation on the matter. This did not necessarily mean that the Indian Constitution lacks a right to be free from the adverse effects of climate change. The Court read this right into the Constitution, taking as a starting point the Constitution’s recognition of the importance of the environment and the natural world under Art 48A (‘the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country’) and Art 51A(g) (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 a compassion for living creatures’), though both provisions are non-justiciable.

The Court relied on the 1996 landmark case of M.C. Mehta v. Kamal Nath, in which it was held that Arts. 48A and 51A(g) must be read in light of Art 21 of the Constitution. The Court also took note of several decisions which acknowledged the adverse effects of climate change and termed it as a ‘major threat’ to the environment. Citing the 1995 case of Virender Gaur v. State of Haryana, which recognized a ‘right to a clean environment’ (also flowing from Art 21), the Court in Ranjitsinh postulated that since the right to a clean environment and the right to be free from the adverse effects of climate change are effectively two sides of the same coin, the Court had not previously been able to articulate the latter as a distinct right. However, the Court felt that despite these past decisions, there was by 2024 a need to explicitly articulate a distinct right to be free from the adverse effects of climate change due to its growing menace. The Court noted how climate change can affect different communities differently and how acute food and water shortages would have a disproportionate impact on poorer communities, violating the right to equality under Art 14.

The Court has frequently implied what I will term ‘satellite’ rights into Art 21 of the Indian Constitution. For example, the right to livelihood (see here & here), right to health, right to education, right to shelter, right to food, right to water, right to medical care and right to environment (see here & here) have all been recognized by the Court as naturally flowing from the right to life under Art 21.

Locating Rights in the Penumbras – Creating ‘Satellite Rights’

This approach of the SCI resembles the way in which the Supreme Court of the United States (‘SCOTUS’), since the 1965 case of Griswold v. Connecticut, has located peripheral rights in the penumbras of the specific guarantees enshrined in the Bill of Rights. These penumbral rights, though not explicitly mentioned in the constitutional text, are certain complementary fundamental rights to which the specific guarantees that they are attached are fully realized. They have played an important role in constitutional adjudication in the United States by guiding the SCOTUS to read and interpret the Bill of Rights widely. Similarly, in India, the SCI has located ancillary rights in the shadows of Art 21. Just as Griswold formulated a right to privacy, the SCI decision in Govind, which first recognized a right to privacy, did the work of establishing the idea of penumbral rights in Art 21.

The approach of finding these satellite rights becomes extremely vital in climate change litigation. Climate change litigation demands that in order to tap into the transformative potential of the Constitution, the Courts must look beyond the bare constitutional text. The text of the Constitution itself may not be able to sufficiently tackle the threat posed by climate change due to an absence of an explicit obligation of the State to that effect. Therefore, the Court in climate cases would have to necessarily look outward to give the soul of unenumerated rights a body by way of reading in rights to the Constitution. Therefore, by making Art 21 a ‘reservoir of rights’, the SCI has given recognition to those rights which flow as a logical corollary to the right to life. The SCI’s decision in Ranjitsinh therefore does not come as a surprise but is merely a continuation of the SCI’s attitude towards liberally interpreting the right to life.

Aman Mehta is an LL.M. Candidate in Comparative Constitutional Law at the Central European University (Vienna). He is also an assistant editor at Review of Democracy.

Suggested Citation: Aman Mehta, ‘Breathing Life into the Right to Life: The Indian Supreme Court and the Right to be Free from the Adverse Effects of Climate Change’ IACL-AIDC Blog (30 April 2024) Breathing Life into the Right to Life: The Indian Supreme Court and the Right to be Free from the Adverse Effects of Climate Change — IACL-IADC Blog (blog-iacl-aidc.org)