TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 831
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..... 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. Aakashdeep Singh Roda, Adv. Ms. Pooja Sing....
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....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 20133 while IUCN placed the number of mature GIBs between 50 and 249.4 There are significant factors bearing upon the dwindling numbers and low r....
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....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 decisions of the Empowered Committee. B. The judgment dated 19 April 2021 and subsequent developments 5. In the order of this Cour....
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....nds 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 Change5 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: "1 (The) Attorney General for India states that a comprehensive status report will be filed before this Court indicating the way forward as proposed by the Union Government which would ta....
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....eeding 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 Memorandum of Understanding with the International Fund for Houbara Conservation which is dedicated to the conservation of the Houbara Bustard. The MoU outlines various areas of collaboration including training of staff, technical support and advice, and the supply of bird cages....
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.... 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 effects of climate change.10 14. At the 18th Conference of the Parties in Doha, Qatar in December 201211, States reaffirmed their commitment to addressing climate change and laid the groundwork for greater ambition and action. Among various decisions, they set a timetable to adopt a Universal Climate Agreement by 2015. ....
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....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 fuel markets and mitigating the risks associated with energy scarcity. Additionally, the adoption of renewable energy technologies helps in curbing air pollution, thereby improving public health and reducing healthcare costs. 18. The promotion of renewable energy sources plays a crucial role in promoting social equity by ensuring access to clean and a....
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....he 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 with the procedure established by law. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for "life", would be hazardous to "life" within the meaning of Article 21 of the Constitution." 22. In Virender Gaur v. State of Haryana, (1995) 2 SCC 577 this Court recognised the right to a clean environment in the following terms: "7.....
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.... 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 violated in ways that are more difficult to remedy. For example, a person living in say, the Lakshadweep Islands, will be in a disadvantageous position compared to person living in say, Madhya Pradesh when sea levels rise and oceanic problems ensue. Similarly, forest dwellers or tribal and indigenous communities are at a high risk of losing not only their homes but also their culture, whi....
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....ion 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 the context of climate change is underscored in the preamble of the Paris Agreement, which recognizes the interconnection between climate change and various human rights, including the right to health, indigenous rights, gender equality, and the right to development: "Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, r....
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....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 to a healthy environment encapsulates the principle that every individual has the entitlement to live in an environment that is clean, safe, and conducive to their well-being. By recognizing the right to a healthy environment and the right to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of cli....
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....rating 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 mission is in line with India's Nationally Determined Contributions target, which aims to achieve about 50 per cent cumulative electric power installed capacity from non-fossil fuel-based energy resources and reduce the emission intensity of its GDP by 45 per cent from 2005 levels by 2030. India's goal to achieve 500 GW of non-fossil-based electricity generation capacity by 2030 aligns with its efforts to be Net Zero by 2070. I....
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....stly, 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 energy 43. The geographical landscape of Gujarat and Rajasthan, characterized by vast expanses of arid desert terrain and an abundance of sunlight, positions these regions as prime areas for solar power generation. The arid climate of these desert regions ensures minimal cloud cover and precipitation, resulting in uninterrupted exposure to sunlight for prolonged durations throughout the year. The consistent and intense sunlight creates ideal co....
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....lands 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 direct correlation between anthropogenic greenhouse gas emissions and global warming, emphasizing the potentially severe consequences of exceeding a 2°C temperature rise, which could threaten the right to life and disrupt family life.42 Additionally, it observed that the right to private and family life applies to environmental matters where pollution directly impacts these rights, requiring States to implement "reasonable and appropriate measures" to safeg....
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....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 the course of the hearing and by its previous orders, this Court has underscored the importance of taking proactive measures to protect the GIB. The GIB is seriously endangered as a species. At the same time, it has emerged in the course of the hearing that there is no basis to impose a general prohibition in regard to the installation of transmission lines for the distribution of solar power in an area about 99,000 square kilometres. There are several reasons due to which it is not feasible to convert all trans....
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....ther 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 any outage would result in large generation losses; k. It is essential to harness power from sources of renewable energy in Rajasthan and Gujarat to meet the rising power demand in the country in an expeditious and sustainable manner. This is also necessitated by India's international commitments with respect to climate change; l. The area in which undergrounding has been directed to be implemented is about 80,688 sq km, which is larger than many states in India. Even globally, undergrounding of cables in such a large area has not been attempted; and m. The same area in whi....
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....aties 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 should not be loathe to refer to the international conventions." 57. In Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 this Court cited numerous cases which constituted precedent for the proposition that this Court must give effect to international instruments which India is party to: "This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The c....
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....ls 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 attendant evils of climate change may not be halted in a timely fashion, leading to disastrous consequences for humankind and civilisation as a whole. The existential threat may not be averted. 61. Moreover, the decision on whether to convert the overhead power transmission lines into underground lines is a matter of environmental policy. While adjudicating writ petitions which seek reliefs which are of the nature sought in the present case, this Court must conduct judicial review while relying on domain experts. Those who are equipped and trained to assess the various facets of a problem which is litigated before the Court must b....
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....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. Since the work of the Committee, as assigned below, would also traverse the area of the setting up of transmission lines to facilitate solar power generation, we direct that the Committee shall consist of the following two special invitees: (i) Shri Ashok Kumar Rajpur, Member Power Systems, Central Electricity Authority; and (ii) Mr. PC Garg, Chief Operating Officer, Central Transmission Utility of India Ltd. 66. The remit of the Committee which has been appointed by the Court shall encompass the following: a. Determining the scope, feasibility and extent of overhead and underground electric lines in the area identified as priority areas in the reports of the Wild Life Institute of ....
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.... 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, it shall identify the indicators of high-quality bird diverters and specify the parameters that they must meet before they are installed. The Central Electricity Authority, Ministry of Power has released a document titled 'Technical Specification for Bird Flight Diverter'. These specifications concern the GIB in particular. By its undated letter to various power transmission companies and other concerned parties, the Central Electricity Authority noted that it had received complaints stating that the quality of the bird diverters being installed was unsatisfactory. It also requested the addressees to install diverters which are of a high quality. The relevant portion of the letter is extracted below: "We are in receipt of complaint/representation that poor qual....
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....ly 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: a. The Ministry of Environment, Forest and Climate Change has implemented the national GIB Project which undertakes ex-situ conservation measures to provide and conserve habitats into which captive bred birds may be released. Insulation breeding centres will be established in range states other than Rajasthan where they do not currently exist. In-situ operations will be implemented in the desert National Park Sanctuary, Rajasthan, Kachch Bustard Sanctuary, Gujarat, Great Indian Bustard Sanctuary, Maharashtra, Rollapadu Sanctuary, Andhra Pradesh, Ranebennur Sanctuary, Karnataka and Ghatigao Sanctuary, Madhya Pradesh; b. Predator-proof enclosures will be developed to prevent the entry of predators including foxes, mongooses, hedgehogs, and monitor lizards. Anthropogenic activities wi....
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....ist (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 Agreement (Adopted 12 December 2015). U.N. Doc. FCCC/CP/2015/L.9/Rev/1. 13 "Paris Agreement" 14 See UNFCCC, India's Updated First Nationally Determined Contribution Under Paris Agreement (2021-2030). https://unfccc.int/sites/default/files/NDC/202208/India%20Updated%20First%20Nationally%20Determined%20Contrib.pdf 15 Energy Conservation Act 2001, Section 14(w). 16 UN Office of the High Commissioner, Five UN human rights treaty bodies issue a joint statement on human rights and climate change, 16 September 2019. . 17 UN Human Rights Office, Understanding Human Rights and Climate Change. Submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, 26 November 2015. 18 M. Burger and J. Wentz (eds.), Climate Change and Human Rights, UNEP: December 2015, p.11, 19. 19 J.H. Knox, Rep....