It is a well-established fact that the Indian Himalayan Region (IHR) is both India’s water tower and also the critical provider of invaluable ecosystem goods and services. Despite this understanding, there has always been dissonance between the special development needs and the development model being pursued in the IHR. As the economy of the region is dependent on the health and the well-being of its natural resources, plundering the same in the name of development will inevitably and surely lead the IHR towards its economic ruin.
In view of some of the recent judgments of the Supreme Court of India, we seem to be headed towards a more robust rights-based regime where sustainable development would be a fundamental right. The tone and tenor of the Court’s judgments highlighting the competing rights of people and nature are a clear sign of the direction in which the development versus environment debate in India is headed. In State of Telangana and Others vs Mohd. Abdul Qasim (Died) Per Lrs, the Court had said that the need of the hour is to adopt an ecocentric view of the environment, where nature is at the core. The Court said, “Man being an enlightened species, is expected to act as a trustee of the Earth...The time has come for mankind to live sustainably and respect the rights of rivers, lakes, beaches, estuaries, ridges, trees, mountains, seas and air.... Man is bound by nature’s law.”
A model of destruction
According to this approach, nature is not an object of protection but a subject with fundamental rights, such as the right to exist, to survive, and to persist and regenerate vital cycles. The current development model being pursued in the IHR is in total contravention of this approach. We are witnessing a ‘bumper crop’ of hydroelectric power stations on the rivers and streams in the IHR, without any care for the rights of these rivers and streams. There is a reckless widening of existing hill roads to four lanes in the name of development — in any case, these roads are getting washed away in many places in the IHR every time a river is in spate.
A post-disaster need assessment report by the National Disaster Management Authority on the floods in 2023 in Himachal Pradesh identified, unsurprisingly, rampant construction in violation of norms, regulations (and even court orders in many cases) right on river beds and flood plains, on the steep slopes, in seismic zones, in landslide-prone areas and the loss of green cover as the reasons for the disaster. The Teesta dam breach in Sikkim and the monsoon floods and landslides in Himachal Pradesh — both events in 2023 — are a stark reminder of the havoc our development model is causing to the environment, ecology and communities, especially in the mountains. The mountains, climate, forests, rivers, air and land all are crying for their right to survive in the IHR. In whatever approach we choose to adopt, whether ecocentric or anthropocentric, there is a need to align aspirations for growth and development in the IHR with the science and the rights of both people and nature.
Intersectionality of rights
In another matter of public interest litigation (PIL) titled Ashok Kumar Raghav vs Union of India and Ors., the Supreme Court asked the central government and the petitioner to suggest a way forward so as to enable the Court to pass directions on the carrying capacity of the Himalayan States and towns. In the case of the Great Indian Bustard, the Court has recognised the right of the people of this country to be free from the adverse impacts of climate change. Unfortunately the Court’s verdict in the Great Indian Bustard case is being interpreted in a very narrow sense — as if the Court has given a clean chit to all renewable energy projects over and above the concerns for biodiversity or any other right that might get compromised. The Court is not only cognisant but also committed to the conservation of species and has underscored the importance of taking proactive measures “not reactive” to protect the Great Indian Bustard. The Court modified the previous order where a blanket ban was imposed on a very large area despite the report of the Wildlife Institute of India, which had identified 13,663 square kilometres as the “priority area”, and the rest as “potential areas” and as “additional important areas” for the Great Indian Bustard. The Court has explained in the judgement the non-viability of underground power transmission lines.
In fact, the Court has explained in detail, with examples of many international and national obligations, to explain the intersectionality between the fundamental rights enshrined in Articles 14 and 21, specifically, and human rights which include the right to development and the newly minted right to be able to adapt to climate change. The top court went on to say: “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised... 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. The right to equality under Article 14 and the right to life under Article 21 must be appreciated in the context of the decisions of this Court, the actions and commitments of the state on the national and international level, and scientific consensus on climate change and its adverse effects”.
It is a given that unless infrastructure is sustainable and dependable, it cannot become the foundation for people’s pursuit of their developmental goals. Sustainability of infrastructure necessarily means that it is resilient to the adverse impacts of climate change and consequent disasters. This is essential to ensure equality, equity and equal access to people, to various opportunities all across the country — as is the mandate of Articles 14 and 21 of the Constitution. Disasters are also known to amplify social inequality as the poor are the worst hit and the most inadequately equipped to deal with the consequences. To pursue a path of sustainable development can also be said to be a fundamental right, as a natural corollary or an integral part or a sub-set of the right to be free from the adverse impacts of climate change. The state must honour this. Hopefully, the Court’s judgment is a much-needed nudge and serves as the basis for a legal framework for necessary course correction for development in general and in the IHR in particular.
Development and disaster resilience
While there is no denying that as we are a lower-middle income country with a large and young population, rapid development is India’s destiny. The interconnection between disasters and unregulated development has become increasingly pronounced and visible. The only way forward is for disaster management to be incorporated in development planning, both from a perspective of prevention and resilience. Our actions in the name of development, in total disregard of nature in most cases, is to be blamed for these unnatural disasters resulting from natural hazards. The development plans, policies and laws that underpin them too play a pivotal role in the making of these disasters. There is an urgent need for planning stage convergence of different authorities so that when there is a plan for any development, all concerns about disaster and climate resilience are also factored in, and the project reaches implementation stage only after the green signal in these areas. We need both development and disaster resilience. We also need science, policy and action to be in conformity with each other, in an integrated approach with the involvement of all including policymakers, planners, the scientific fraternity and communities.
In view of these judgments of the Supreme Court and also the new fundamental right to be free from the adverse impacts of climate change, it is now a fundamental right for people in general and of IHR in particular to have a development model that is sustainable and in sync with the carrying capacity of the IHR.
Archana Vaidya is a natural resource management/environmental law consultant and a Governing Council member of the Sustainable Development Forum, Himachal Pradesh
