Protection of heaviest flying bird, the Great Indian Bustard: SC emphasizes on need to adopt ecocentric approach; issues directions

Supreme Court: The 3-Judge Bench comprising of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., addressed the instant PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction. The Bench remarked,

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Earlier the application in I.A. No.85618 of 2020 was filed seeking interim directions to direct the State of Rajasthan and State of Gujarat to ensure predator proof fencing, controlled grazing in the enclosure development and to direct the said respondents not to permit installation of overhead power lines and also not permit further construction of windmills and installation of solar infrastructure in priority and potential habitat as identified by the Wildlife Institute of India.

The petitioners being environmentalists, were seeking to protect the rare birds which are dwindling in number. It was contended that GIB is one of the heaviest flying birds in the world, about a meter in height and wing span of around seven feet. It had disappeared from 90 per cent of habitat except parts of Rajasthan and Gujarat. The existence of overhead power lines was stated to have become a hazard due to which the said species of birds on collision are getting killed.

It had been submitted by the state that the underground highvoltage line is not technically feasible due to several factors such as (i) high cost (ii) high downtime to repair any failed cable (iii) non­availability of cables at 765 Kv level and (iv) increase in the number of joints with length of run.

The Wildlife Institute of India (WII) in its Report “Power Line Mitigation, 2018” had stated that every year 1 lakh birds die due to collision with power lines. The Report concluded that unless power line mortality is mitigated urgently, extinction of GIBs is certain. The study estimated 3 bird mortalities/km/month for low ­tension lines, 6 bird mortalities/km/month for high ­tension lines, and about 1 lakh birds/per year within a 4200 sq.km area in/around Desert National Park, Rajasthan. In terms of GIB, 6 mortalities had been recorded in Thar during 2017­-2020, all due to high­tension transmission lines – some of them connected to wind turbine. Ministry of Power, Union of India, in its affidavit had admitted that,

“The Great Indian Bustard lacks frontal vision. Due to this, they cannot detect powerlines ahead of them, from far. As they are heavy birds, they are unable to manoeuvre across power lines within close distances. Thus, they are vulnerable to collision with power lines. In case of low voltage lines, electrocution is often the cause of death due to smaller phase to phase separation distance. High voltage lines do not cause death due to electrocution but cause death due to collision.”

In T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277, it had been observed that,

“Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric…ecocentrism is nature­centred where humans are part of nature and non­humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non­humans independently of human interest. Ecocentrism is therefore life­centred, nature­centred where nature includes both humans and non­humans.”

On the respondents’ contention regarding lack of funds, the Bench observed that there was Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 which provides for financial sharing between Centre and State. Further, there are schemes that provide for 100% central assistance in respect of GIB. Citing the decision of M.C Mehta v. Kamal Nath,(1997) 1 SCC 388, the Bench opined, the State as well as the Central Government have a duty to preserve the endangered species. Pursuant to which following directions were pronounced:

Directions

1. The government shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables as exist on today in the priority and potential GIB area into underground powerlines.
2. In all such cases where it is found feasible to convert the overhead cables
   into underground powerlines the same shall be undertaken and completed within a period of one year and till such time the divertors shall be hung from the existing
3. Irrespective of the cost factor the priority shall be to save the near extinct
   
4. One of the options that could be explored, is to invite the attention of each electricity utility engaged in the generation of power, to Section 135 of the Companies Act, 2013, which imposes corporate social responsibility upon companies having a specified net worth or turnover or net profit.
5. Under Compensatory Afforestation Fund Act, 2016 (CAF, 2016), substantial funds are available with the National and State Authorities. The State of Rajasthan has already set up a Compensatory Afforestation Fund Management and Planning Authority. Rule 5(2)(i) of these Rules permit the use of the State Fund for the improvement of wildlife habitat. (According to the petitioner a sum of Rs.47,436 crores, out of a
   total of Rs.54,685 crores CAMPA Fund have been transferred by the Union Environment Ministry to the States for afforestation projects.)
6. For conservation of the habitat to secure the safety of the eggs laid by the birds, the area earmarked shall be fenced and protected from invasion by predators so that the eggs laid in these areas are protected. The power supply line regarding which underground passage is to be made should also avoid these areas.
7. Since the laying of highvoltage underground power line would require expertise to assess the feasibility of the same. For the purpose of assessing the feasibility the Bench constituted a committee consisting of Dr. Rahul Rawat (Scientist), Dr. Sutirtha Dutta (Scientist) and Dr. Devesh Gadhavi, Deputy Director (The Corbett Foundation).
8. The above committee was granted liberty to obtain technical reports if need be, from experts in the field of electricity and the respondents were directed to refer the matter to the committee with all the relevant material and particulars if there is any issue relating to feasibility.

[M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326, decided on 19-04-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

For the Petitioner: Sr. Adv. Shyam Divan

For the Respondents: ASG Aishwarya Bhati and Sr. Adv. Manish Singhvi