TaxTMI 
TaxTMI 
2024 (5) TMI 831
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....wal, Adv. Mr. Saurabh Rajpal, Adv. Ms. Shalini Singh, Adv. Mr. Sandeep Kumar Jha, AOR Mr. Shiv Mangal Sharma, A.A.G. Mr. Milind Kumar, AOR Mr. Saurabh Rajpal, Adv. Ms. Deepanwita Priyanka, AOR Mr. Mahfooz Ahsan Nazki, AOR 3 Mr. Rahul Chitnis, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv. Mr. Adarsh Dubey, Adv. Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. Mr. Saurabh Mishra, A.A.G. Mr. Sunny Choudhary, AOR Mr. Abhimanyu Singh Ga, Adv. Mr. Shashank Shekhar, Adv. Mr. Santosh Krishnan, AOR Mr. Girish Chowdhary, Adv. Ms. Sonam Anand, Adv. Mr. Shaik Mohammed Haneef, Adv. Ms. Deepshikha Sansanwal, Adv. Mr. Somesh Chandra Jha, AOR Mr. Shreay Saini, Adv. Mr. Tarun Sharma, Adv. Mr. Ezaj . M Qureshi, Adv. Mr. Animesh Rajoriya, Adv. Mr. M.g. Ramchandran, Sr. Adv. Ms. Hemantika Wahi, AOR Ms. Jesal Wahi, Adv. Ms. Ranjitha Ramchandran, Adv. Mr. Dr. Manish Singhvi, Sr. Adv. Mr. Rohit K. Singh, AOR Mr. Ranji Thomas, Sr. Adv. Mr. V. N. Raghupathy, AOR Mr. A. Karthik, AOR M/S. Vkc Law Offices, AOR Mr. Varun K Chopra, Adv. 4 Mr. Mehul Sharma, Adv. Ms. Arti Singh, AOR Mr. Aakas....
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....the GIB. As of 2018, the International Union for Conservation of Nature, or IUCN as it is popularly known, classified the GIB as a 'critically endangered' species. In IUCN's system of classification, only two categories indicate a graver threat to a particular species - 'extinct in the wild' and 'extinct'. The GIB has been classified as a critically endangered species from 2011 until the most recent assessment in 2018. From 1994 to 2008, it was classified as 'endangered' and in 1988, it was labelled 'threatened'. IUCN notes the justification for its classification of the GIB as a critically endangered species in the following terms:^2 "This species is listed as Critically Endangered because it has an extremely small population that has undergone an extremely rapid decline owing to a multitude of threats including habitat loss and degradation, hunting and direct disturbance. It now requires an urgent acceleration in targeted conservation actions in order to prevent it from becoming functionally extinct within a few decades." 3. The Rajasthan government estimated that only about 125 GIBs were present in the year 2013^3 while IUCN placed the number of mature GIBs between 5....
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....hibition on the encroachment of grasslands in and around critical and semi-critical habitats; b. Issue directions to the concerned respondents to submit a report on the status of the breeding centres at Jaisalmer, Sorsan, and Velavadar; c. Issue directions to the concerned respondents to take all measures necessary for the protection of grasslands including by ensuring that no remaining grasslands are classified as 'wastelands' and diverted to other uses, adopting a grasslands conservation policy, and adopting a national grazing policy; d. Issue directions to the Ministry of Defence (Respondent No. 2) to sensitise the armed forces about the need for conservation of the GIB and to collaborate with scientific bodies in conservation efforts; e. Appoint an Empowered Committee to oversee the implementation of the directions issued by the Court, to preserve and manage the endangered species and their habitats; and f. Issue a declaration that the two endangered birds constitute one meta population of the nation and that all state authorities are bound to cooperate and take all steps necessary to ensure their conservation and to implement the de....
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....d IA No 149293 of 2021 on 17 November 2021 for modification of the directions issued by the judgment of this Court dated 19 April 2021. The grounds on which modification was sought are indicated below in brief: a. The judgment has vast adverse implications for the power sector in India and energy transition away from fossil fuels; b. Respondent No. 4 was not heard before passing the judgment; c. India has made International commitments including under the agreement signed in Paris in 2015 under the United Nations Framework Convention on Climate Change^5 for transition to non-fossil fuels and for the reduction of emissions. The area in respect of which the directions were issued is much larger than the actual area in which the GIBs dwell. Moreover, that area contains a very large proportion of the solar and wind energy potential of the country; d. Undergrounding high voltage power lines is technically not possible; and e. The coal fired power which would be used to replace the untapped energy from renewable sources in the concerned area would cause pollution. 8. By an order dated 19 January 2024, this Court directed as follows: ....
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....e governments for the conservation of the habitat of the GIB; iii. The Forest departments of the states of Rajasthan, Maharashtra, and Gujarat, in collaboration with the Wildlife Institute of India,^6 Dehradun, are carrying out conservation breeding with the aim of building a captive population of the species for release in the wild and promoting in-situ conservation of the species; iv. The Government of India has launched a program called the 'Habitat Improvement and Conservation Breeding of Great Indian Bustard' in 2016 for in-situ conservation of the GIB. It is being implemented in collaboration with the Government of Rajasthan; v. At present, conservation breeding facilities are operational at Sam and Ramdeora in Jaisalmer. A partial founder population of the GIB consisting of twenty-one individuals and seven chicks has been secured. The chicks were artificially hatched from eggs collected from the wild. Captive breeding has been commenced; vi. The conservation project is being supervised by a team of three scientists, three veterinarians, eighteen project associates, and forty local support staff; vii. The WII has entered into a Mem....
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....CC: "Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions, ... Recalling also that States have ... the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." 13. The primary objective of the UNFCCC is to stabilize greenhouse gas concentrations in the atmosphere to prevent dangerous human-induced interference with the climate system, as articulated in Article 2.^8 Article 3 elaborates on the principles guiding this objective. Notably, Article 3(1) underscores the responsibility of parties to protect the climate system for the benefit of present and future generations, based on equity and in line with their capabilities.^9 Article 3(3) emphasizes the importance of precautionary measures to anticipate, prevent, or minimize the causes and adverse effe....
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....ergy capacity installation. By 2022, India aimed to achieve an installed renewable energy capacity (excluding large hydro) of 175 GW (Gigawatts), a goal that signifies the country's commitment to clean energy adoption. Looking ahead, India has set an even more ambitious target for 2030, aiming to ramp up its installed renewable energy capacity to 450 GW. This long-term goal underscores India's recognition of the urgent need to accelerate the transition towards renewable energy to mitigate the impacts of climate change and achieve sustainable development. 17. To achieve these targets, India has implemented various policy measures and initiatives to promote renewable energy investment, innovation, and adoption. As highlighted in the Union's additional affidavit, India's commitment to transitioning to non-fossil fuels is not just a strategic energy goal but a fundamental necessity for environmental preservation. Investing in renewable energy not only addresses these urgent environmental concerns but also yields a plethora of socio-economic benefits. By shifting towards renewable energy sources, India enhances its energy security, reducing reliance on volatile fossil....
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....rd the forests and wild life of the country. Clause (g) of Article 51A stipulates that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Although these are not justiciable provisions of the Constitution, they are indications that the Constitution recognises the importance of the natural world. The importance of the environment, as indicated by these provisions, becomes a right in other parts of the Constitution. Article 21 recognises the right to life and personal liberty while Article 14 indicates that all persons shall have equality before law and the equal protection of laws. These articles are important sources of the right to a clean environment and the right against the adverse effects of climate change. 21. In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213 this Court held that Articles 48A and 51A(g) must be interpreted in light of Article 21: "8. .... These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance wi....
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....the adverse effects of climate change. This is perhaps because this right and the right to a clean environment are two sides of the same coin. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21. 25. Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. The right to health (which is a part of the right to life under Article 21) is impacted due to factors such as air pollution, shifts in vector-borne diseases, rising temperatures, droughts, shortages in food supplies due to crop failure, storms, and flooding. The inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality. This is better understood with the help of an example. If climate change and environmental degradation lead to acute food and water shortages in a particular area, poorer communities will suffer more than richer ones. The right to equality would undoubtedly be impacted in each of these instances. 26. The right to equality may also be....
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....cognised that "...State parties have obligations, including extra-territorial obligations, to respect, protect and fulfil all human rights of all peoples. Failure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States' human rights obligations."^16 29. Of late, the intersection between climate change and human rights has been put in sharp focus, underscoring the imperative for states to address climate impacts through the lens of rights. For instance, the contribution of the UN High Commissioner for Human Rights to the 2015 Climate Conference in Paris emphasized that climate change directly and indirectly affects a broad spectrum of internationally guaranteed human rights.^17 States owe a duty of care to citizens to prevent harm and to ensure overall well-being. The right to a healthy and clean environment is undoubtedly a part of this duty of care. States are compelled to take effective measures to mitigate climate change and ensure that all individuals have the necessary capacity to adapt to the climate crisis. 30. This acknowledgement of human rights in ....
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....lean and sustainable energy. Clean energy aligns with the human right to a healthy environment, as first recognized by 2019, pp. 108-109 and 130. the UN Special Rapporteur on Human Rights and the Environment in 1994.^22 34. Unequal energy access disproportionately affects women and girls due to their gender roles and responsibilities such as through time spent on domestic chores and unpaid care work. Women in many developing countries spend on average 1.4 hours a day collecting fuelwood and four hours cooking, in addition to other household tasks that could be supported by energy access.^23 The importance of prioritizing clean energy initiatives to ensure environmental sustainability and uphold human rights obligations cannot be understated. 35. India faces a number of pressing near-term challenges that directly impact the right to a healthy environment, particularly for vulnerable and indigenous communities including forest dwellers. The lack of reliable electricity supply for many citizens not only hinders economic development but also disproportionately affects communities, including women and low-income households, further perpetuating inequalities. Therefore, the right t....
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....ngible in recent years. Decentralized and distributed solar applications have brought substantial benefits to millions of people in Indian villages, addressing their cooking, lighting, and other energy needs in an environmentally friendly manner. These initiatives have led to social and economic benefits, including reducing drudgery among rural women and girls, minimizing health risks associated with indoor air pollution, generating employment at the village level, and ultimately improving living standards and fostering economic activities. Additionally, the solar energy sector in India has emerged as a significant contributor to grid-connected power generation capacity. It aligns with India's agenda of sustainable growth and plays a crucial role in meeting the nation's energy needs while enhancing energy security. 38. Solar energy holds a central place in India's National Action Plan on Climate Change, with the National Solar Mission ^25 being one of its key initiatives. Launched on 11 January 2010, NSM aims to establish India as a global leader in solar energy by creating favourable policy conditions for the diffusion of solar technology across the country. This missio....
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....challenge to a clean powered future: how to build and operate electricity grids capable of absorbing ever greater shares of renewable energy while meeting growing power demands sustainably, securely, reliably, and affordably. 42. It is imperative for India to not only find alternatives to coal-based fuels but also secure its energy demands in a sustainable manner. India urgently needs to shift to solar power due to three impending issues.^35 Firstly, India is likely to account for 25% of global energy demand growth over the next two decades, necessitating a move towards solar for enhanced energy security and self-sufficiency while mitigating environmental impacts. Failure to do so may increase dependence on coal and oil, leading to economic and environmental costs. Secondly, rampant air pollution emphasizes the need for cleaner energy sources like solar to combat pollution caused by fossil fuels. Lastly, declining groundwater levels and decreasing annual rainfall underscore the importance of diversifying energy sources. Solar power, unlike coal, does not strain groundwater supplies. The extensive use of solar power plants is a crucial step towards cleaner, cheaper, and sustainable ....
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....o with climate change, in one way or another. It is necessary to advert to the judgments from other jurisdictions, not because they have precedential value in the adjudication of this case but to highlight global trends in climate change litigation and to assess the manner in which courts have understood their own role in such litigation. 46. In State of the Netherlands v. Urgenda Foundation,^38 the respondent sought directions to the State of the Netherlands directing it to reduce the emission of greenhouse gases. The District Court and the Court of Appeal ruled in favour of the respondent. On appeal, the Dutch Supreme Court affirmed the decisions of the lower courts. It acknowledged the obligations under Articles 2 (right to life)^39 and 8 (right to private and family life)^40 of the European Convention on Human Rights,^41 compelling the State to adopt more ambitious climate policies. The case addressed whether the Dutch government was obligated to reduce greenhouse gas emissions originating from its territory by at least 25% compared to 1990 levels by the end of 2020, and whether a judicial intervention was warranted. 47. The Supreme Court of the Netherlands recognized the....
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....to protect its citizens from the effects of environmental degradation." Significantly, it also held that its decision in this case would not rule out the possibility of a similar application succeeding in an appropriate case in the future. 50. These cases, all instituted and decided in the past decade, indicate the type of concerns which will travel to the courts in the next few years. D. The reasons for the modification of the judgement dated 19 April 2021 51. During the course of the hearing, reference has been made to several reports which were prepared by the Wild Life Institute of India, identifying 13,663 square kilometres as the "priority area"; 80,680 square kilometres as "potential areas"; and 6,654 square kilometres as "additional important areas" for the GIB. These areas are distributed between the States of Rajasthan and Gujarat. The tabulation is reproduced below: AREAS State of Rajasthan State of Gujarat Total Priority Areas 13,163 sq. kms. 500 sq. kms. 13,663 sq. kms Potential Areas 78,580 sq. kms 2,100 sq. kms. 80,680 sq. kms Additionally Important Areas 5977 sq. kms. 677 sq. kms. 6654 sq. kms. 52. During t....
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....und cables. If there is a delay in attending to and repairing problems with such cables, the rise in the temperature of the cable may result in it bursting. This would endanger the safety of GIBs; f. The Electricity Act does not contemplate the acquisition of land. However land may be required to be acquired if cables are to be undergrounded. In contrast, overhead transmission lines require only the right of way; g. Underground cables may give rise to environmental issues for many vulnerable species. They may also result in forest fires or other fires; h. The cost of laying underground cables is prohibitive. It is about four to five times higher than laying overhead transmission lines. The cost is estimated to run into thousands of crores. If the cables are undergrounded in their entirety, the cost of harnessing renewable energy would be prohibitive; i. Cables are not generally used for the evacuation of power from a generating station; j. The report prepared by the technical expert committee constituted by the Ministry of Power indicates that the undergrounding of transmission lines of 60kV and above is not technically feasible because ....
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....obligations and commitments. As a signatory to various international conventions and agreements, including the UNFCCC and the Convention on Biological Diversity, India has pledged to uphold principles of environmental stewardship, biodiversity conservation, and climate action on the global stage. Through partnerships, knowledge sharing, and collaborative action, India seeks to amplify the impact of its sustainable development efforts, contributing to collective efforts aimed at addressing global challenges. 56. Needless to say, it is the duty of the Court to give effect to international agreements and treaties to which India is a party. In Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30 this Court observed that it has relied on international law extensively including for the purpose of fulfilling the spirit of international obligations which India has entered into, when they are not in conflict with the existing domestic law.^48 It also rightly observed: "80. Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts ....
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....ng of future generations. It acknowledges that solutions to today's challenges must not only address pressing issues but also lay the groundwork for a resilient and equitable future. 60. While balancing two equally crucial goals - the conservation of the GIB on one hand, with the conservation of the environment as a whole on the other hand - it is necessary to adopt a holistic approach which does not sacrifice either of the two goals at the altar of the other. The delicate balance between the two aims must not be disturbed. Rather, care must be taken by all actors including the state and the courts to ensure that both goals are met without compromising on either. Unlike other competing considerations, these do not exist in disjunctive silos. Therefore, a dilemma such as the present one does not permit the foregrounding of one of these as a priority, at the cost of the other. If this Court were to direct that the power transmission lines be undergrounded in the entire area delineated above, many other parts of the environment would be adversely impacted. Other endangered species may suffer due to the emission of harmful gases from fossil fuels. Rising temperatures and the att....
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....ctives are met in a sustainable manner. 63. During the course of the hearing, we had requested Mr Shyam Divan, senior counsel appearing on behalf of the petitioners, Mr R Venkataramani, Attorney General for India, Mr. Tushar Mehta, Solicitor General of India, and Ms Aishwarya Bhati, Additional Solicitor General to propose names of experts for the constitution of a Committee to perform the task which the Court will assign to it. 64. Having received their suggestions and upon evaluating them, we constitute an Expert Committee, the composition of which will be as follows: (i) Director, Wildlife Institute of India, Dehradun; (ii) Dr Hari Shankar Singh, Member, National Board for Wildlife; (iii) Dr Niranjan Kumar Vasu, Former Principal Chief Conservator of Forest; (iv) Mr B Majumdar, former Chief Wildlife Warden and Principal Chief Conservator of Forest, Maharashtra; (v) Dr Devesh Gadhavi, Deputy Director, The Corbett Foundation. (vi) Shri Lalit Bohra, Joint Secretary (Green Energy Corridor), Ministry of New and Renewable Energy; and (vii) Joint Secretary, Ministry of Environment, Forests and Climate Change. 65. Sin....
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.... h. Implementing a robust monitoring and research program to track GIB populations, habitat dynamics, and the effectiveness of conservation measures over time. This may include employing techniques such as satellite tracking, camera trapping, and ecological surveys to gather essential data for informed decision-making; and i. Adopting any additional measures both in regard to the priority and potential areas, as the Committee considers appropriate including considering the efficacy and suitability of installing bird diverters on existing and future power lines on the basis of a scientific study. The installation of sub-standard bird diverters which are of a poor quality would give the impression that conservation efforts are underway even as such efforts are destined for failure. Hence, it is of utmost importance to ensure that any direction by the Committee to install bird diverters by any party whose activities concern the GIB (including private operators) is implemented by installing bird diverters of a requisite standard and quality. Accordingly, if the Committee is of the view that the installation of bird diverters would subserve the conservation of the GIB species,....
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....d in the order dated 19 April 2021 in respect of the area described as the priority and potential areas shall accordingly stand recalled subject to the condition that the Expert Committee appointed by this Court may lay down suitable parameters covering both the priority and potential areas. 69. In the event that the Committee considers it appropriate and necessary to do so, it would be at liberty to recommend to this Court any further measures that are required to enhance the protection of the GIB. This may include identifying and adding suitable areas beyond the designated priority zones outlined above, if deemed crucial for the conservation of the species. Such additional areas could serve as vital habitats, corridors, or breeding grounds for the GIB, contributing significantly to its long-term survival. 70. We request the Committee to complete its task and submit a report to this Court through the Union Government on or before 31 July 2024. 71. In its affidavit, the Union of India has detailed the steps it has taken thus far and has also undertaken to implement a host of measures in the future, which are aimed at conserving the critically endangered GIB. They include: ....
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....ntinue implementing the measures detailed in paragraph 8(d) of this judgment. The directions contained in the order dated 19 April 2021 shall accordingly stand substituted by those contained in the present judgment. The project clearances which have been granted pursuant to the recommendations of the earlier committee appointed in terms of the order dated 19 April 2021 shall not be affected by the present judgment. 73. This Court records its appreciation to the work which was done by the Committee which was appointed in terms of the order dated 19 April 2021. 74. List in the second week of August 2024 for consideration of the report of the expert committee appointed in terms of the present judgment. NOTE:- 1 "GIB" 2 IUCN Red List, 'Great Indian Bustard' 3 Government of Rajasthan, Forest Department, 'Project Great Indian Bustard' 4 IUCN Red List (n 2). 5 "UNFCCC" 6 "WII" 7 United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly (Adopted 20 January 1994). 8 Ibid, art 2. 9 Ibid, art 3(1). 10 Ibid, art 3(3). 11 "The Doha Climate Gateway" 12 Conference of the Parties, Adoption of the Paris....