Oct 07, 2024 08:57 PM IST
India needs to make strides in clean energy, but utter precaution is needed when it comes to endangered species, and there has to be continued emphasis on the principle of Common but Differentiated Responsibilities and Respective Capabilities.
In March this year, the Supreme Court, adjudicating on the issue of protection of two critically endangered bird species (the Great Indian Bustard, or GIB, and the Lesser Florican), faced the dilemma of choosing between safeguarding biodiversity and mitigating climate crisis impacts. It recognised people’s right to protection against the adverse effects of the climate crisis under Articles 14 and 21 and recalled its earlier direction of a blanket prohibition on overhead transmission lines in identified priority areas of Rajasthan and Gujarat. The top court set up an expert committee to understand the viability of converting overhead transmission lines to underground lines. We think that recalling the prohibition even before the committee’s findings are examined amounts to letting anthropocentric concerns trump biodiversity conservation, which seems to be against the precautionary principle.
The apex court, in the 2004 MC Mehta judgment, noted the need for balancing between development and protection of the environment and emphasised the precautionary principle (Principle 15) of the Rio Conference of 1992. This holds that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” It is also required to be kept in view… “If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of the environment would have precedence over the economic interest… It is not always necessary that there should be direct evidence of harm to the environment.” In 2022, in Pragnesh Shah vs Arun Kumar Sharma and Others, the apex court added that the country must take preventive measures if even some evidence suggests environmental degradation exists.
The March 2024 judgment mentions factors rendering the GIB vulnerable to loss and fragmentation of habitats due to the laying down of overhead transmission lines and the expansion of economic activity and settlement by humans. However, the judgment doesn’t prescribe preventive measures to protect the bird’s habitat. In this, it seems to shift away from its earlier stance on the precautionary principle to protect biodiversity that was upheld as recently as in 2020, when the court emphasised the state government’s role in determining the extent of commercial activities permissible in areas lying in elephant corridors in Hospitality Association ofMudumalai vs In Defence of Environment and Animals and Others. The March judgment, on the other hand, showcases the importance placed on human rights over the rights of critically endangered species.
While international climate conventions and initiatives have been cited to prioritise India’s climate commitments, biodiversity-related conventions are not mentioned in the judgment. In the 2020 judgment, the court recognised the precautionary principle as the nation’s responsibility and the duty of every Indian citizen, as mentioned under Articles 21, 47, 48-A, and 51-A(g) of the Constitution. However, the 2024 judgment, while mentioning some of these Articles, focuses more on the citizens’ right to protection against the adverse climate effects. Given the GIB’s vulnerability, concrete steps are necessary to protect them and take an eco-centric approach to this issue.
The National Environment Policy of 2006 introduces “Entities with Incomparable Values” (EIVs) that include unique natural species such as the GIB. The population of this species has been reduced to a mere 50-249 mature individuals, according to an estimate by BirdLife International. According to the policy, a conventional economic cost-benefit calculus would not apply to EIVs, and such entities would “have priority in the allocation of societal resources for their conservation without consideration of direct or immediate economic benefit.” If an environmental goal involves an EIV, the precautionary principle should have been applied.
The problem of the climate crisis is due to cumulative greenhouse gas emissions, along with which comes the historical responsibility of developed countries. India needs to make strides in clean energy, but utter precaution is needed when it comes to endangered species, and there has to be continued emphasis on the principle of Common but Differentiated Responsibilities and Respective Capabilities. Against this backdrop, the prohibition on overhead transmission lines should not have been lifted by the apex court till the committee submitted its findings.
Ishita Srivastava is research associate,and Shailly Kedia is senior fellow, TERI.The views expressed are personal
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