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In Ranjitsinh, the Supreme Court broke new ground, but how practical is it? | The Leaflet

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In Ranjitsinh, the Supreme Court broke new ground, but how practical is it?

Maya Nirula examines how much the recognition by the Supreme Court of India of the right to protection against the adverse effects of climate change as a fundamental right is enforceable and what are the likely outcomes.

Maya Nirula

Published on: 29 January 2025, 02:08 pm

In Ranjitsinh, the Supreme Court broke new ground, but how practical is it?

ALTHOUGH environmental rights have long been recognised globally, they have undergone particularly notable evolution over the past half-century. India, surprisingly to some, has one of the most sophisticated frameworks concerning State obligations and individual protections, including a robust system for guaranteeing the enjoyment of environmental rights to individuals.

The recent decision by the Indian Supreme Court in Ranjitsinh versus Union of India is groundbreaking as it both recognises environmental rights as absolute and fundamental and offers constitutional protection from the adverse effects of climate change under Articles 14 and 21 of the Constitution of India.

In effect, this protection is broader than most rights recognised by other courts, which have only gone as far as recognising a constitutional right to a clean and healthy environment— something India did four decades ago.

Environmental rights gained traction in India soon after independence in 1947.

Evolution of law in India

Environmental rights gained traction in India soon after independence in 1947. Much like other countries, a flurry of statutory legislation was introduced to address different aspects of the environment, including the Factories Act 1948, the Wildlife Protection Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Forest (Conservation) Act 1980, the Air (Prevention and Control of Pollution) Act 1981, and the Environment (Protection) Act 1986.

Underpinned by the rationale that affirmative State participation is required to actualise the full enjoyment of individual rights, the notable 42nd Amendment to the Constitution in 1976 introduced Article 48A. The Article provides, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”

The rights of individuals vis-à-vis the environment were further fortified through the evolution of jurisprudence from the Supreme Court that recognised and reaffirmed fundamental constitutional rights to a clean and healthy environment.

These non-justiciable duties were reconciled as rights enforceable under the Constitution when the court in M.C. Mehta versus Kamal Nath harmonised Article 48A (State obligation) and Article 51A(g) (individual duty) by confirming that “they must be interpreted in light of Article 21”. However, these rights remained with only vertical application.

Fortunately, more recently, the Supreme Court has construed certain fundamental rights— Article 15 (prohibition of discrimination), Article 17 (abolition of Untouchability), and Article 21 (right to life and liberty)— as enforceable against private parties.

This was a departure from previous jurisprudence that applied a more restrictive reading of ‘State’ and consequently precluded private parties from the ambit of the Constitution. Whilst previously the courts had only been willing to hold businesses and industries accountable under secondary legislation, the Supreme Court has recently reclarified the ability to directly enforce against private entities certain fundamental rights under the Constitution.

In Kaushal Kishor versus State of Uttar Pradesh, the court observed, “[I]n so far as fundamental rights against non-State actors is concerned, the vertical approach is giving way to horizontal application.” Consequently, it held that “a fundamental right under Article 19/21 can be enforced even against persons other than the State or its instrumentalities”.

Although there have previously been instances of similar reasoning, for example in Zee Telefilms, the court held that whilst the remedy typically available to aggrieved citizens is vis-à-vis the State, “[B]ut that does not mean that the violator of such [constitutional] right would go scot-free merely because it or he is not a State.” Kaushal Kishor has crystallised the position by reconciling prior contradictory jurisprudence.

This was a departure from previous jurisprudence that applied a more restrictive reading of ‘State’ and consequently precluded private parties from the ambit of the Constitution.

This is distinct from the traditional approach of using resultant harm as a measure, where courts assess the residual harm or damage instead of efforts taken to reduce such harm. It is likely that the Indian courts will, in clarifying this decision, delimit it in such a way that it may appear ‘watered down’.

Whilst this may be necessary for the actual implementation and administration of this right, it would bring Indian jurisprudence more in line with the mitigation approach of other courts.

In reviewing the decision, it is plain that the court did, in fact, intend for mitigation to be the measure to assess the administration of this distinct right. The court held that: “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.”

This approach is analogous to the one adopted by the Dutch courts in Urgenda Foundation, a case cited in Ranjitsinh. Similar to that case, the court in recognising India’s obligations under international law observed that the “intersection between climate change and human rights has been put into sharp focus, underscoring the imperative for States to address climate impacts through the lens of rights” where it is their responsibility to “mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment”.

This approach is also reminiscent of the approach adopted by the European Court of Human Rights (ECtHR) in KlimaSeniorinnen, a decision pronounced contemporaneously to Ranjitsinh.

Conclusion

It is likely that the Supreme Court will have to clearly identify the scope of this new right to be free from the adverse effects of climate change, especially with respect to its administration and practical enforceability. India may nevertheless become a front-runner by offering more extensive protections than are accorded in many other jurisdictions. However, this remains to be seen.

A version of this piece first appeared in Columbia Law School's "Climate Law" blog.