Courts must protect environment while weighing development: CJI Surya Kant

Chief Justice of India Surya Kant on Friday said courts must search for solutions that protect the environment without losing sight of the legitimate needs of development.

Speaking at the high-level Commonwealth Policy Dialogue on Climate Justice organised by the Commonwealth of Nations and the Commonwealth Legal Education Association (CLEA) at the Commonwealth Secretariat in Marlborough House in London, CJI Kant said both environment and development need not always be cast as choices in which one must defeat the other.

CJI Kant is on a four-day official visit to Germany and the UK.

He said nowadays, the ripple effects of climate change spanning across continents are measured in gigatonnes of carbon rather than the rhythm of a monsoon and impact global supply chains in a manner no ancient king could have imagined.

 

"This, too, is a reminder that the climate crisis will test the boundaries of legal categories we have long taken for granted. Our task as judges and as institutions is to ensure that the law does not become most uncertain precisely where people are most vulnerable," he said.

CJI Kant pointed out that countries that are finally industrialising are being asked to move rapidly towards renewable power and are often made to bear the brunt of criticism when they cannot move fast enough.

Emphasising the need to develop a separate jurisprudential vocabulary in every country where a climate question reaches the courts, CJI Kant said the courts should be open to borrowing ideas, approaches and solutions that have proved useful elsewhere in the Commonwealth, while adapting them carefully to their own constitutional, social and environmental circumstances.

In that process of mutual learning lies a particular strength of the Commonwealth, he underscored.

"Additionally, courts must be willing to search for solutions that protect the environment without losing sight of the legitimate needs of development, and to recognise that the two need not always be cast as choices in which one must defeat the other," he said.

CJI further pointed out that the effects of climate change are often felt first and most acutely by those whose lives and livelihoods depend most directly on the natural environment.

"When a smallholder or a fisher-family loses land, water or a harvest to a crisis they did little to cause, the consequences extend far beyond environmental harm; they threaten the very foundations of livelihood, dignity and equality," he said.

He pointed out that these realities call for a recognition of the differing circumstances of various geographical regions, a fair distribution of their burdens and an assurance that the pursuit of a cleaner future does not create new forms of environmental hardship for the communities involved.

He added that the challenge, therefore, is to reconcile the urgency of the clean energy transition with the principles of fairness and shared responsibility that must underpin it.

Talking about the challenges faced by the judiciary when dealing with cases of environmental protection, the CJI said development and preservation do not always have to stand on opposite sides of the scales and sometimes, the task of a court is to find the third way to promote both routes through judicial creativity.

"This brings me to the second challenge, which impacts every Commonwealth judge directly. We are increasingly asked, often with no legislative map to follow, to draw the line between developmental necessity and ecological survival. Such a role has been placed at our door by citizens who perhaps found their legislatures too slow and their governments too constrained," he said.

He added that many of our Constitutions say nothing explicit about striking such a balance but we have, over time, come to interpret the same through an expanded understanding of the right to life, say for example, under Article 21 of the Indian Constitution.

"...The role of a judge is, therefore, changing; it is no longer enough to know what the law says; we must also understand the world to which that law is being applied," he said.

CJI Kant pointed out that where courts are called upon to fill such gaps, new doctrine alone will not be enough and subject-matter experts working alongside us will be needed - not called in once as witnesses and then dismissed, but available throughout the life of a case.

"India's own experience offers one model of this. Nearly three decades ago, in a long-running forest conservation matter before our court, we constituted a standing body of forestry, wildlife and environmental experts, which has since become known as the Central Empowered Committee (CEC)," he said.

Talking about the CEC, he said it was empowered to inspect sites, investigate violations of environmental norms and report directly to the court on technical questions no bench of judges could reasonably resolve alone.

"It remains active today, and has shaped the outcome of hundreds of forestry and environmental matters since," he said, adding that committees such as this and bodies such as India's National Green Tribunal, which brings judges and technical experts together on the very same bench, point towards a wider principle that environmental adjudication cannot remain the sole province of judges and counsel.