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Why judiciary steps in to solve India’s air pollution crisis every time & why it’s not enough

Approach taken by India’s courts & tribunals should be questioned, but it is also necessary to acknowledge that courts act in response to state failures.

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New Delhi has gained notoriety as the world’s most polluted capital city. For the last few days, the air quality level has swung between severe and hazardous, eliciting a furore of responses. The Supreme Court on 4 November passed an extremely stringent order holding government officials at all levels accountable for halting polluting activities such as stubble burning, open burning of waste, in four states.

Earlier this week, the Environment Pollution (Prevention and Control) Authority or EPCA declared a ‘public health emergency’ in a letter to the chief secretaries of Haryana, Uttar Pradesh, and Delhi.

Hazardous Air Quality in Delhi is almost a yearly event. In the past, the Ministry of Environment, Forest, and Climate Change has responded to the deteriorating air quality in the Delhi-NCR by notifying the ‘Graded Response Action Plan’ or GRAP. The EPCA was made responsible for the implementation of the GRAP, which was first rolled out on 15 October this year.

Interestingly, both the EPCA and the GRAP are results of various orders of the Supreme Court. Judicial action has been instrumental in driving action on air pollution in India. The Supreme Court addressed vehicular pollution, industrial pollution and more recently, delved into Diwali firecracker pollution.  The Delhi High Court has also taken suo motu cognisance of air pollution in Delhi-NCR.

Questions are regularly asked about the effectiveness of these judicial interventions. These must be looked at critically in light of recent developments, and the significant position that courts occupy in arresting air pollution.

Also read: Hold government accountable for Delhi air pollution but also punish selfish behaviour

Courts on trial

Three major criticisms are common: against how courts and tribunals adjudicate PILs and other proceedings involving issues of environmental protection, and air pollution. Questions are asked about the petitioners’ background and also about the subject expertise of the court itself.

The first kind of criticism is about the identity of the petitioners. Amita Baviskar, in her article ‘The Politics of the City‘, discussed how the ideology of ‘bourgeois environmentalism’ took shape in Delhi. She explained how this ideology puts the interests and aesthetics of the bourgeois over the rights and livelihoods of the working class. The PIL in the industrial pollution case is an example of this.

Anuj Bhuwania in his article ‘The Case that Felled a City is more direct in ascribing an ideology preferring the ‘middle-class-elite’ to the courts. Bhuwania discusses the various factors that underpin a PIL – the petitioner’s interests, the role played by amicus curiae, the voices and opinions that reach the court, and by extension, the ones that don’t. Bhuwania gives the example of the vehicular pollution case, where the Supreme Court mandated that auto-rickshaws be converted to CNG on the same day it refused to regulate private diesel vehicles.

The second and third criticisms of judicial action in environmental issues are interconnected. Do the courts have the technical know-how to adjudicate on complex environmental matters? Do the courts have the capacity to manage issues such as air pollution effectively? Considering that the passage of the National Green Tribunal Act, 2010 has to some extent dealt with the former (by enabling the appointment of technically qualified experts on the bench), our focus will be on the latter criticism.

Michael Jackson and Armin Rosencranz, in their paper ‘Can the Supreme Court manage the environment?’ have examined the Supreme Court’s managerial role in the vehicular pollution case. They argue that such a position, while being prima-facie environment-friendly, may be detrimental to capacity-building among institutions. The courts’ lack of technical expertise adds onto its managerial profile, as the courts end up managing expert committees and findings to reach valid conclusions. Additionally, whether the fundamentally adversarial court procedures are useful in creating outcomes for issues that need consensus-building amongst various stakeholders, for instance, crop-burning, is doubtful and must be examined further.

Also read: No one safe even in their homes: SC slams Punjab, Haryana, Delhi, UP over pollution levels

Implementation without capacity

Let us look at the monitoring and enforcement capacities of the court.

Courts and tribunals, either appoint special monitoring committees, which adds to their managerial workload, or put in charge already existing institutions and overburden them.

For instance, South Delhi Municipal Corporation officials, when questioned about the implementation of court orders in Vardhaman Kaushik versus Union of India, speak of the lack of capacity to impose a fine against local sources of pollution such as waste-burning. Police officials in south Delhi gave a similar response about the implementation of orders in firecrackers case wherein SHOs were made responsible for regulating firecrackers.

In some cases, court-appointed expert committees have also been converted into institutional authorities. An example of this is the EPCA, which was initially the Bhure Lal Committee formed under the vehicular pollution case.

The EPCA has been given overarching powers under the Environment (Protection) Act, 1986, in relation to prevention of air pollution in the National Capital Region. The EPCA is a central government authority and its powers overlap with the central as well as the state pollution control boards. While the EPCA is extremely active currently in the area of air pollution, the capacities and powers of the pollution control boards must not be neglected.

Also read: How Delhi’s air crisis can be resolved by curbing paddy cultivation in Punjab, Haryana

Treating symptoms not causes

The approach taken by courts and tribunals should be questioned, but it is also necessary to acknowledge that the courts have always acted in response to significant state-failures. For instance, the EPCA would not have come into existence had the pollution control boards performed well. What happens often in a court-driven narrative on air pollution is that we deal with disjoint causes and we treat symptoms only, not structural problems.

Vidhi Centre for Legal Policy published a report that addresses the need for structural legal reform in the area of air pollution. The only arm of the government that may undertake structural reform is the executive, and that it must, given the status of Delhi’s air. It is only when we tie in the various issues addressed in various cases such as vehicular pollution, industrial pollution, crop burning to various institutions at the local, state and central level that we may hope to fight the choking cloud of air pollution.

The author is a Project Fellow at Vidhi Aid, Vidhi Centre for Legal Policy, New Delhi. Views are personal.

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  1. First the Editor Cuts the Clutter. Then the apex court – God bless its heart, which is generally in the right place – says, Cut the crap. It mandated the switch to LNG for buses in Delhi several years ago. It steps in when water has begun to swirl at chin level. No good reason why the executive should do what in Hindi is called, Haath pe haath rakh ke baithna. NCR should have been much further down the road to less lethal air by now. That was one of Minister Nitin Gadkari’s promises before the 2014 general election as well.

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