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Is Delhi’s Pollution The Supreme Court’s Problem?

Published on Sat, Jan 16,2016 | 16:24, Updated at Mon, Jan 18 at 17:31Source : CNBC-TV18 |   Watch Video :

Delhi is choking. The pollution levels in the city have crossed 600, that’s nearly 24 times higher than what is considered to be safe by the WHO. Should we then question any effort to curb pollution in Delhi? Maybe not. But we’re still going ask this – is the Supreme Court’s temporary ban on the registration and sale of new diesel cars in Delhi – constitutional? Aayush Ailawadi finds out.

Aayush Ailawadi, CNBC TV18
“It has gotten so bad that the Supreme Court decided to pull out a case filed back in 1985 and issue a host of directions to curb Delhi's pollution. Restrictions on the entry of trucks into Delhi, vacuum cleaning of the roads and a ban on the registration and hence sale of large diesel vehicles till April. Now restrictions and orders to the government may all be well and fine, but to ban one category of vehicle, this might be a temporary ban but the question is, is it constitutional?”

Menaka Guruswamy, Advocate, Supreme Court
“The apex court has crafted jurisprudence through the right to life which provides for a quality life, which includes health, clean air, clean water, housing, medical care. So, there is nothing jurisprudentially that prevents the court from following its own case law and in arriving at such an act.”

Siddharth Luthra, Senior Advocate, Supreme Court
“The question is can the court give directions when there are specific legislations on a subject when the law, when the statute does not restrict the registration of diesel vehicles can the court even while acting under Article 32, can it pass such a restriction? As I said there are serious questions to be asked about the scope and exercise of that jurisdiction because you are in fact going beyond the law, you are adding a rider which the law does not permit.

If you go back there is a 2002 decision of the Supreme Court in the case of P Ramachandra there is a 7 judge bench decision which said we are not lawmakers, we are interpreters of the law, 6 judges said that, while of course there are other cases where the Supreme Court has issued directions but that is where there is a legislative vacuum. As an interim measure whether in Prakash Singh or in Vishakha, as an interim measure till legislation comes in place directions have been issued. However where there is existing law, the court went back in 2002 and said we ought not to do that.”

Ritwick Dutta, Advocate, Supreme Court
“We have a legislation on air from 1981 onwards. The saddest part of it is the legislation says, the Air Prevention and Control of Pollution Act says that you must declare air pollution control areas  and no unit can operate unless they have a consent to establish and operate under the Air Act. If a unit operates in violation of it the owner of such an entity shall be punished with an imprisonment which shall be a minimum period one and half years. So, the magistrate cannot give an imprisonment of less than one and a half years.

Bulk of units small, big and all are actually operating left, right and centre without the valid consent. From 1981 till today not a single person has actually been punished for not having a valid consent to operate and establish under the Air Act. So, there is no other legislation that I am aware of that has not led to a single conviction since it has been enacted.”

This isn’t the first time that the Supreme Court has intervened in matters of pollution …A decade and a half ago, the Supreme Court directed all buses, three-wheelers and taxis in the capital city to convert to CNG in order to curb pollution levels. In 1997, the Supreme Court had directed industries in the Taj Trapezium Zone to switch to cleaner fuel. For nearly 3 decades, the Supreme Court has been hearing a petition to clean up the Ganga, and over the years it has passed several orders, regularly monitoring the cleaning of the river.

Menaka Guruswamy, Advocate, Supreme Court
“This is the most powerful apex court in the world. This is a court that has monitored distribution of food, that is monitoring investigation into all kinds of white collar cases, the coal scam, 2G spectrum, this is a court that has expanded the right to life jurisprudence to include education, healthcare, shelter, food, housing.

They crafted a right to education before the constitutional amendment. So, this has been the jurisprudential arch of this court over the last 3 decades culminating in the last decade being an extraordinary time for the Supreme Court where the court has emerged really as an arbiter if you will of the quality of life of Indian citizens. And an arbiter often certainly of issues which are conventionally thought of as policy issues which the executive should be playing a critical role in but I think there is a sense both in the country and certainly in the court that the executive is abdicating its rules.”

Ritwick Dutta, Advocate, Supreme Court
“If those 13 of the 20 most polluted cities of the world, if they are all in India it really puts a question mark on the governments performance. Therefore it is very sad that continuously government after government has actually kept quiet on this air pollution.”

Aayush Ailawadi, CNBC TV18
“The jurisdiction question may have been answered but what about how the Supreme Court has chosen to intervene to ban one category of vehicles and just to protect one city, that is what makes this an even more unique decision especially since the Delhi government is already taking steps to curb Delhi's pollution.”

The Delhi State government has tried to innovate with an ‘odd even’ rule that has been in place since the start of the year. The rule permits vehicles with odd and even-numbered license plates to ply only on alternate days and has received a mixed response. Even before the Supreme Court order asked it to do so, The Delhi State government had already decided to vacuum the streets & shut down nearby polluting power plants. But Delhi is not the only Indian city in trouble. The WHO says India is home to 13 of the world’s top 20 most polluted cities. So, if banning certain diesel cars is the solution, why then did the Supreme Court not consider extending this ban to other Indian cities as well?

Ritwick Dutta, Advocate, Supreme Court
“The Delhi government Arvind Kejriwal is fine because he has the mandate to clean up Delhi's air. However the central government has the mandate to clean-up the whole of the air of India. There we find a lack of initiative and this amount of judicial activism unfortunately is not going to clean up.

You look at the case of Firozabad, we have put in what is called the Taj Trapezium Zone, TTZ was declared. They moved from coal to gas based and today after almost 20 years of putting regulation there of moving from coal to gas, today Firozabad is 11th in the list of those 13 Indian cities.”

Menaka Guruswamy, Advocate, Supreme Court
“It is a fair point to say that why is all of this attention being paid to Delhi and not to the other cities many of whom are on the worst polluting cities list and it is a dishonour call so to speak. However equally the court can address the petition that is listed before it and arguments that are being made about the petition that are before it. So, it is really a question of are the state governments taking a cue either from some of the initiatives in Delhi or from the Supreme Court and their orders by saying let us try and take steps to clean up the air in Raipur, Patna or in Lucknow. Unfortunately I don't think we are seeing that.”

Then there’s the issue of arbitrarily banning just one category of vehicles. The affected manufacturers – Mercedes, Toyota and Mahindra & Mahindra have petitioned the apex court to reconsider its ban. They argue that their diesel cars only contribute 0.2% of the total pollution in the region. They also contend that nowhere else in the world has there been a ban on only one particular category or type of vehicle.

Siddharth Luthra, Senior Advocate, Supreme Court
“It is not just diesel vehicles of a certain category which would be polluting, in fact the current technology of polluting of diesel vehicles and the larger diesel vehicles is very superior. We also have to look at the nature of fuel that goes into vehicles, can we really say that two wheelers are not polluting? Can we really say that smaller vehicles, diesel vehicles are not polluting? I think that distinction that is sought to be drawn and the distinction that is being placed before the Supreme Court based on which they passed the interim order perhaps needs serious reconsideration.”

The Supreme Court may not be faulted for the expanded jurisdiction. But it is facing criticism for a selective ban. Especially because such judicial intervention might only be a stop gap measure…that in the end will do little to fight pollution.

Ritwick Dutta, Advocate, Supreme Court
“If the entire drive ends only in banning diesel, it only ends up in Delhi then we are not going to solve the issue of air pollution. The interest of the judiciary unfortunately to say does not last very long in these matters. We have seen it in case of Ganga, we have seen it even in case of air pollution, we have seen it in the case of Yamuna. It picks up when the level of pollution goes up, it goes down the moment the pollution level goes down and we are back to square one. This knee jerk reaction is something that has to be avoided. It is bad in every way, it has to be consistent approach both of the government and court. Also I think manufacturers will also have to see the reality that somewhere these kind of regulations will come in.”

Siddharth Luthra, Senior Advocate, Supreme Court
“We need comprehensive solution, adequate man power, adequate enforcement of existing laws, a review of the existing laws and regulations to understand what we can do better. No such review can be without a scientific basis. A gut feel that diesel is bad, large diesel vehicles are bad is not enough for any administrator or anybody to place these facts before the Supreme Court and invite an interim order as they have in this case.”

Aayush Ailawadi, CNBC TV18
“The NGT says that all diesel cars that are older than 10 years should be junked. The Supreme Court places a temporary ban on a certain category of diesel vehicles. The Delhi High Court questions the odd-even formula on the basis of citizen convenience. Every court in this country seems to have a view when it comes to tackling Delhi's pollution problem. But the question is, shouldn't the government be doing all the talking instead?”


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