Curbing Delhi pollution is govts’ job. Supreme Court must not burn its hand in stubble fire

Supreme Court needs to wake up and see its orders banning stubble burning in Haryana and Punjab don’t do anything on the ground.

Representational image | A farmer burns stubble of the rice crop on his farm in a village around Patiala, Punjab, India | Photo: Prashanth Vishwanathan | Bloomberg

M.C. Mehta versus Union of India was decided on 20 December 1986, laying down the principle of ‘absolute liability’.

Mehta, a lawyer known for his crusades on issues concerning the protection of the environment, received worldwide fame and awards for playing the lead role in trying to make Delhi and its surroundings more liveable and pollution-free.

More than three decades later, why are we still talking about the 73-year-old lawyer’s case? Because every time the Supreme Court of India decides to try its hands at saving Delhi from pollution, the case file is dusted, taken out of the record room so that a bench of judges can pass a slew of strongly worded orders, which may or may not have much impact on Delhi’s pollution levels. And, in most hearings, the person who filed the original case is missing.

Days after the Supreme Court came down heavily on state governments and passed fresh directives, news reports deflate all hopes of seeing decisive actions. Despite the ban on stubble burning, there were at least 1,565 incidents of farmers burning stubble in various parts of Punjab in just one weekend. As a result, pollution levels rose in Delhi again.

So, what will the Supreme Court do now? More importantly, what can it really do, since the state governments in Punjab and Haryana seem disinclined to make farmers follow the order?

SC should stay out of it

In the last three months alone, there have been several hearings in ‘Writ Petition (Civil) Number 13029 of 1985’ — the M.C. Mehta vs Union of India case. What began as a petition seeking the closure of a company’s (Shriram Food and Fertilisers Ltd) factories on the ground that they were “hazardous to the community” in Delhi has now metamorphosed into a case that wants to ensure the annual rise in pollution levels in the National Capital Region (NCR) due to burning of stubble by farmers in Punjab and Haryana is kept in check. It is a battle that the Supreme Court can’t win — which is why it shouldn’t have ventured into it in the first place.

The Supreme Court of India should keep out of matters like pollution. Every five years, Indian citizens elect governments – at the Centre and in the states – precisely for jobs like this. Indian courts, especially the top constitutional court, have to realise and accept that it is not their job to govern the country – either through well-meaning but ineffective orders or through obiter dictum. Providing clean air to Indians is the job of the government. By entering into the domain of the government, the courts run the risk of inviting people’s ire in times of failure while allowing the elected people to get away without being held accountable.

But, even as Delhi and its surroundings, not unlike many other cities elsewhere, become more and more unliveable, the Supreme Court continues to pass orders, which haven’t actually translated into any substantial change on the ground. Pollution levels in the NCR simply refuse to go down. Much of this is due to the casual manner in which state governments have handled the situation after the Supreme Court passed the directives.

SC wakes up when situation becomes untenable

Year after year, we see a Supreme Court bench suddenly deciding to do something about the pollution in Delhi-NCR. Not only does the court begin to look more like the Supreme Court of NCT of Delhi, but it also comes across as one that is refusing to see that its orders have little to no effect on the ground.

On 29 January 2018, the bench of Justices Madan B. Lokur and Deepak Gupta ordered the central government to make people aware of the actions taken on the recommendations made by the sub-committee of the high level task force on prevention of stubble burning in Punjab, Haryana and Western Uttar Pradesh. The order passed by the bench of justices Arun Mishra and Deepak Gupta on 6 November again referred to it, lamenting: “We find that in advance, no serious groundwork was made by the concerned States where the stubble burning is taking place.”

But what the judges fail to realise is that if there’s anyone to blame for inaction by the state governments, it is the Supreme Court itself. The court has to wake up to the harsh reality that its verbal – and, in some cases, written – warnings have had little impact on our dyed-in-the-wool politicians and bureaucrats.

Governments give the impression that they don’t have any money to spare to make farmers stop burning their stubble. But without money being spent, these fires won’t stop. And therein lies the answer to the conundrum: Let the governments act and when they fail, let them face the adverse reaction from the masses suffering due to air pollution.

The onus is on the governments to handle the issue. If the Supreme Court tries to sort it out and fails in the process, the blame will come knocking its doors. But if by any chance, the plan succeeds, it will be the politicians who will ultimately get the credit.

Whatever be the outcome of its decision, the Supreme Court will only lose. Because without strong measures, which may not be palatable to some sections of society, like farmers in this case, the situation of stubble burning won’t change much. And guess who will be the fall guy – indeed, the Supreme Court, which passed the tough order.

Now that the Supreme Court has decided to take it upon itself to check the air pollution in Delhi-NCR, it doesn’t have the option of backing out mid-way. But what it can do is ensure that M.C. Mehta’s file isn’t taken out only when pollution levels rise alarmingly. The court has to be creative and find a lasting solution, and then leave it at that with hopes that the governments will be able to handle the issue thereon.

The author is a senior journalist. Views are personal.