By How to Save a Bustard
29 April 2022
Authors: Ria Singh Sawhney, Secretary, LAWASIA Human Rights Committee & Sugandha Yadav, Publications Officer, LAWASIA Human Rights Committee
An unlikely creature is being painted as the enemy of India’s climate change goals: the Great Indian Bustard. This prehistoric bird is the largest flying bird, with a wingspan of 7 feet. It is a mild-mannered, grasshopper-eating bird with no natural predators, and yet is critically endangered, with less than 100 individuals left, all of which are found in two states of Rajasthan and Gujarat, in India.
While its disappearance stems from a larger crisis of the disappearance of grasslands, it faces a more urgent threat: powerlines. The birds’ poor frontal vision, which is adapted to the open grasslands they are accustomed to, means they do not see objects directly in front of them – and frequently collide with power transmission wires, falling to their death.
Power lines are fatal not just for the Great Indian Bustard but Bustards in South Africa, Spain and six other Bustard species around the world. According to a 2018 report by the Wildlife Institute of India, more than 1 lakhs birds died annually due to collisions with wires. Sixteen of these were Bustards.
In 2019, five wildlife conservationists filed a petition in the Indian Supreme Court asking for immediate measures to protect the last surviving individuals of the species. On 19th April 2021, a three-judge bench of the Supreme Court passed interim orders directing power lines to be put underground in areas identified by experts in the states of Rajasthan and Gujarat as critical to the survival of the Bustard. Despite these orders, a year later no lines have been put underground – as the Supreme Court noted in April 2022, when it heard interim applications filed the Respondents.
In these interim applications, the Respondents, which include the Union government and the state government of Rajasthan, are asking the Supreme Court to withdraw its direction to underground power lines in areas critical to the Bustard. These applications will be finally decided by the Supreme Court in the coming months.
With the last individuals of the species on the brink of extinction, the question before the Indian Supreme Court is simple, and terrifying: does the Great Indian Bustard have a right to live, and the right to equality?
This is not the first time this question is before the Supreme Court. Three distinct waves can be discerned in the development of international laws governing the environment and wildlife: the first, from the early 1900s, came out of human self-interest: the Declaration of the Protection of Birds Useful to Agriculture (1875), the Convention Designed to Ensure the Protection of Various Species of Wild Animals which are Useful to Man or Inoffensive (1900), the Convention for the Regulation of Whaling (1931). All these laws were aimed at ensuring the health of the whaling industry, rather than conserving or protecting the whale species. The second set of laws arose out of a sense of intergenerational equity, or respect for the rights of future humans – 1946 Whaling Convention and the Stockholm Declaration. Finally, came the era of ecocentrism as seen in the UNEP Biodiversity Convention (1992) and the World Charter for Nature.
Several jurisdictions across the world and at least 14 countries recognise the rights of nature – in their Constitutions, in legislations or through declarations in judgements delivered by their courts. In Ecuador, the rights of nature are enshrined in the constitution. In New Zealand the Whanganui River was granted rights through legislation in 2017; and in 2019 the Bangladeshi Supreme Court declared that all rivers had the legal status of living entities. In Pakistan the Islamabad High Court declared that animals have natural and legal rights as sentient beings.
In India, two judgements from the High Court of Uttarakhand in 2017, recognized rivers and other natural entities as legal entities, granted locus standi and conferred on them fundamental human rights under the Constitution of India. The Court gave a long list of natural entities in the judgements, including the rivers Ganga and Yamuna, all their tributaries, ‘glaciers, rivers, lakes, jungles, forests, grasslands, and waterfalls’ etc. The operation of the judgements was stayed by interim orders of the Supreme Court in an appeal by the state of Uttarakhand. The case is yet to be heard finally by the Supreme Court. Whether natural entities such as rivers have rights, may yet to be confirmed by a final hearing of the Supreme Court in these cases. However wildllife’s “right” to life was confirmed by the Court in earlier judgements – in the Asiatic Lions case (Centre for Environmental Law, World Wide Fund-India v Union of India) the Supreme Court carved out the ‘species best interest standard’, requiring that animals have an equal right to live, and that interest of the species must be paramount.
Drawing on the concept of ecocentrism, this rights paradigm was applied in a case under the 1960 Act for the “Prevention of Cruelty to Animals”. This statute seeks to ensure the well-being of animals and prevention of ‘unnecessary pain’. Adjudicating under the Act in the Jallikattu case, where the constitutionality of traditional bullock cart races in the southern state of Tamil Nadu came under challenged, the Supreme Courtapplied the ‘species best interest standard’ (Animal Welfare Board of India v A. Nagaraja). In doing so, the Court expanded the scope of its approach toward wildlife and situated the right to life for all species under Article 21 of the Constitution of India and expanded the scope of the ‘species best interest standard’ as introduced in the Asiatic Lions case—expanding the right of species to merely exist, to include their right to security, privacy, intrinsic worth, honour and dignity. While expanding the standard, the Court declared that the concerned authorities were obligated to protect five distinct freedoms under the Act: freedom from hunger, thirst and malnutrition; from fear and distress; from physical and thermal discomfort; from pain, injury and disease; and the freedom to express normal patterns of behaviour.
Today, we’re in the iron vice of two crises brought on by a relentless push to extract the most from nature: climate change, and a serious threat to biodiversity, which some refer to as the ‘Sixth Extinction’. The question is, do we import the same extractive logic that brought us here, to meet our climate change goals? How do we meet these goals while ensuring that power transmission wires do not kill the last surviving individuals of a species? How will humans learn to co-exist with animals? These answers are key to our future. How the Supreme Court answers this question in the Great Indian Bustard case, will determine the path India takes in tackling the biodiversity crisis and climate change.
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