UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

A Project Work On Judicial Interpretation of Article 21 for Environment

Under The Guidance Of Professor Shraddha Bharanwal Associate Professor

SUBMITTED BY: NAME: Vivek Jain CLASS: B.A LL.B., (HONS) 7TH SEM ROLL NO.: R450210134
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INDEX

I.

Introduction

II.

PIL, Human Rights and Environmental Protection

III.

Substantive Feature

IV.

Procedural Feature

V.

Case Studies

o The Delhi Vehicular Pollution Case - A Critique

Introduction

The issues relating to the linkages between international environmental law principles and their applications in domestic law by the state courts in India. Global Environmentalcrisis has questioned the modernity and its values. The very existence and survival of man and other forms of life have become a matter of deep concern. The global concerns for environmental crisis have led the evolution and remarkable growth of international environmental law. Like international human rights law, discipline of international environmental law is one of the most important phenomena in post Stockholm Conference (1972) period.

PIL, HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION

Some of the environmental problems faced by a changing India are the consequences of population growth, economic development, modernisation, urbanisation, and a rising energy consumption driven by a growing culture of consumerism. However, poverty remains a core problem, which in turn, generates challenges for the environment1. Governance is failing as the government and its agencies adopt short-term, populist measures, which disregard their long-term environmental impact. In addition, widespread non-compliance with statutory obligations by polluters has increased the pace of environmental degradation, which in turn, impacts upon the quality of life. In this context, PIL is considered a wheel of transformation providing access to justice to the victims of environmental degradation. In the past two decades the Courts have locked together human rights and the environment and entertained PIL petitions from various quarters seeking remedies, including guidelines and directions in the absence of legislation. The proactive judiciary acting as amicus environment has developed a new environmental jurisprudence. This has been built on innovative substantive and procedural features, often contrary to the traditional judicial process in human rights and the environment.27Substantive changes include the extension of fundamental rights, particularly the right to life, the derivative application of principles of international environmental law and strict compliance with the regulations and standards. Associated procedural expansion has provided a platform for the implementation of these substantive rights. They include a broader understanding of locus standi, interpreting letters written to the court as petitions, appointing fact-finding commissions and implementing directions as being continuous mandamus2.

1
2

National Environmental Policy 2006

G. Sahu, Implication of Indian Supreme Courts Innovation for Environmental Jurisprudence, Environmental and Development Journal,2008

SUBSTANTIVE FEATURES
Article 21 of the Constitution of India states: No person shall be deprived of his life or personal liberty except according to procedure established by law. This Article is the foundation on which the judiciary has built its case law for human rights and environmental protection. The Supreme Court has provided an expansive interpretation of the term life that includes not only simply physical existence but also quality of life. In Francis Coralie v Delhi,3 Justice Bhagwati stated: We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing, and expressing oneself in diverse forms.4 Subsequently, the Court recognised in Virender Gaurv State of Haryana, that a healthy environment is one free from environmental pollution.5 The Court observed: Article 21 protects the right to life as a fundamental right. Enjoyment of life including the right to live with human dignity encompasses within its ambit, the protection and preservation of the environment, ecological balance free from pollution of air and water, sanitation, without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air and water pollution, etc., should be regarded as amounting to a violation of Article 21. Therefore, a hygienic environment is an integral facet of the right to a healthy life and it would be impossible to live with human dignity without a human and healthy environment. There is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard a proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man made and the natural environment.6 Within the urban environment extremely unhygienic and unsanitary conditions resulting from non-performance of statutory duties by the municipality falls within the meaning of right to life. Maintenance of health, preservation of sanitation and the environment falls within the purview of Article 21 as it adversely affects the life of the citizen because of the hazards
3

AIR 1981 SC 746. Ibid. at 753. 1995 2 SCC 577. Ibid. at 580-581.

created.7 The right to information and community participation for the protection of the environment and human health is also based upon Article 21.8 Principles underpinning international environmental law have been absorbed into the right to a healthy environment. In Intellectual Forum, Tirupathi v State of AP, 9 the Supreme Court accepted that all human beings have a fundamental right to a healthy environment commensurate with their well-being ensuring that natural resources are conserved and preserved in such a way that present as well as the future generation are aware of them equally.10 This ruling fortifies both the public trust doctrine and intergenerational equity which are derivatives of Article 21. Similarly, the precautionary and polluter pays principles are considered to be an essential part of the reach of Article 21.11 A review of these judgments indicates the judicial creation of a right fashioned out of the Constitution. The Supreme Court has recognised and acted upon the link between life and a healthy environment through a liberal interpretation of Article 21. It has formulated this relationship from an anthropocentric position. However, identifying the right to a safe environment is not without its problems. It is complicated both in terms of content and justiciability. 12 For instance, the right involves being free from environmental pollution but a pollution-free environment is unrealistic. It can be reduced, but not eliminated, which in turn, raises the issue of the establishment of standards. What are the appropriate levels of air emissions? Should the levels be based upon relative experience or absolute targets? Should the figures reflect those of western industrial societies or Indian emission levels or anticipated growth levels? Another issue is that of the conservation of nature based on current needs as opposed to those of future generations.13 This tension between now and then is not unique to India,
7

Chhetriya Pradushan Mukti Sangharsh Samiti v State of Uttar Pradesh AIR 1990 SC 2060; Subhash Kumar vState of Bihar AIR 1991 SC 420; MC Mehta v Kamal Nath 2006 SCC 213; In re Noise Pollution v AIR 2005 SC 3136; Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers 2011 8 SCC 574; State of Uttranchal v Balwant Singh Chaufal 2010 3 SCC 402.
8

M C Mehta v Kamal Nath AIR 2002 SC 1515; Susetha v State of Tamil Nadu AIR 2006 SC 2893; Tripura Dying Factory Owners Association v Noyyal River Ayacutdars Protection Association 2009 9 SCC 737.
9

AIR 2006 SC 1350. Ibid. at para. 84.

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11

Vellore Citizen Welfare Forum v Union of India AIR 1996 SC 2715; AP Pollution Control Board v Prof M.V. Nayudu AIR 1999 SC 812; Narmada Bachao Andolan v Union of India AIR 2000 SC 3751.
12

See Alexandre and Dinah, above n. 1; R. Lavanya, The Increasing Currency and Relevance of Rights -based Perspective in the International Negotiations on Climate Change (2010) 22(3) Journal of Environmental Law,409
13

See Boyd, above n. 1.

but it nevertheless remains a problem which is yet to be resolved. The implementation of international environmental principles has also met with limited success. For example, polluters abuse the court system by repeatedly filing applications to avoid compliance with the court's order or judgment. Although the polluter pays principle is applied in the courts, delays are common as illustrated by the Indian Council for Enviro-Legal Action case.14 The result is that compliance is disappointingly low and environmental pollution is both common and growing. For instance, reports indicate that unsafe water supplies, sanitation and hygiene as a result of pollution account for 87 per cent of deaths in India, which is 40.5 times higher than in OECD countries and 2.8 higher than in the BRICS countries.15

14

AIR 1996 SC 1446. See www.oecd.org/dataoecd/38/18/40396531.

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PROCEDURAL FEATURES
The Court has devised new procedures applicable to PIL to provide access to environmental justice to people and causes who otherwise would be denied their day in court. In Mumbai Kamgar Sabha v Abdulbhai Faizullabhai,16 the Court, while making a conscious effort to improve judicial access, observed procedural prescriptions are handmaidens, not mistresses, of justice and failure of fair play is the spirit in which courts must view (procession) deviances. The relaxation of the rule of locus standi is a major procedural innovation. Justice Krishna Iyer, one of the most socially aware and concerned judges in independent India, stated: the truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us. We must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of standing of the BritishIndia vintage. If the centre of gravity of justice is to shift, as the Preamble of the Constitution mandate, from the traditional individualism of locus standi to the community orientation of public interest litigation, these interests must be considered.17 Traditional locus standi was modified in two ways, namely through representative and citizen standing.18 Representative standing allows any member of the public, acting bona fide, to advance claims against violations of human rights of victims who because of their poverty, disability or socially or economically disadvantaged position could not approach the Court for judicial enforcement of their fundamental rights. NGOs and environmental activists working on behalf of poor and tribal people have entered the courts through the exercise of this procedure. The citizen standing provides a platform to seek redress for a public grievance; this affects society as a whole rather than an individual grievance. The Judges Transfer case lays out the scope of citizen standing: [I]n public interest litigation undertaken for the purpose of redressing public injury, diffused rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest: to give standing
16

AIR 1976 SC 1455. Municipal Council Ratlam v Vardhichand AIR 1980 SC 1622.

17

18

See Shyam and Armin, above n. 28 at 139; P. Ruma and P. Samaraditya, Indian Constitutional Law (Lexis Nexis Butterworths: Wadhwa Nagpur, 2011) 1449.

to a member of public would have to be determined by the Court in each individual case. It is not possible for the Court to lay down any hard and fast rule or any straight jacket formula for the purposes of defining or delimiting sufficient interest.19 The cases of Urban and Solid Waste Management and The Taj Mahal were heard as a result of an application through citizen standing, whereby public-spirited citizens sought to make the state accountable for its inaction or wrongdoing.20 This liberal interpretation of locus standi has been criticised because it is promotes litigation within an already litigious society.21 Cases are lodged within a system that is already groaning under the weight of its case load. Bleak House has a senior counterpart in India! What commenced as cost effective and expeditious litigation has become, at times, both expensive and time consuming. For example, in the Delhi Vehicular Pollution case, the original writ was filed in 1985. The case remains active to this day, although many interim orders and directions have been passed.22 PIL has also been exploited by the usage of bogus litigation that is collusive, profiteering or speculative. Manipulative litigants may seek to damage rivals or competitors through this procedure.23 The relaxation of the standing rule has opened up the Court to the possibility of forum shopping, whereby justice according to law is more personality driven than being institutionalised adjudication. Some judges have become known as green judges, pro poor or progressive thereby promoting the cult of individualism that, in turn, reduces the certainty factor in judicial decisions. Precedent is neither based upon the whim of the individual nor the randomness of the trial courtroom.24 Another novel procedural feature is the Court's power to appoint fact-finding commissions usually comprised of environmental experts. The commission's report is treated as prima facie evidence of facts and collected data. Environmental decision making has been affected by the introduction of such evidence from independent and impartial experts. One problem is
19

AIR 1982 SC 149, 192 Almrita Patel v Union of India Writ Petition No. 888 of 1996; M C Mehta v Union of India AIR 1997 SC 734. See Sathe, above n. 23, 232. M C Mehta v Union of India Writ Petition Civil No. 13029 of 1985.

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21

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23

G. Sahu, Implementation of Environmental Judgments in Context: A Comparative Analysis of Dah anu Thermal Power Plant Pollution Case in Maharashtra and Vellore Leather Industrial Pollution Case in Tamil Nadu (2010) 6/3 Law, Environment and Development Journal 335.
24

B.N. Srikrishna, Judicial Activism - Judges as Social Engineers, Skinning a Cat 2005 8 SCC J 3.

contradictory or divided findings, which place further evidential burdens on the judiciary.25 Continuing mandamus is another procedural process used by the Court to implement and monitor its PIL directions.26 In environmental cases, judgments are relatively few as compared with interim directions that have a broad-based, ongoing impact. Through such processes, the Court has moved from being exclusively an adjudicator to embracing the role of policy maker and, thereafter, superior administrator. The Court can respond specifically to each situation and can exert pressure on inefficient state agencies backed by the power of contempt proceedings and penalties. This judicial activism is not without its critics who see the courts adopting responsibilities traditionally exercised by Parliament and the executive. The hoary jurisprudential chestnut of the appropriateness of judicial law making is no better illustrated than in India where the Supreme Court through PIL has been accused of being a hyper active law-making body.27 The Court has weighed theoretical objections against pragmatic considerations particularly when basic human rights are underrated or ignored due to legislative or executive inaction. Consequently, the innovative role of the Supreme Court is to be approved. In Chameli Singhv State of UP,28 the Court stated: In any organised society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself as freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to life guaranteed in any civil society implies the right to food, water, decent environment, education, medical care. These are basic human rights known to any civilised society.

25

AP Pollution Control Board v Prof. M.V. Nayadu AIR 1999 SC 812. See Sahu, above n. 49. See Upendra, above n. 25. AIR 1984 SC 802 842.

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27

28

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CASE STUDIES
Case study is selected to illustrate the use and effectiveness of PIL. This is a important case which addresses and link human rights and environmental problems. The case is the Delhi Vehicular Pollution Case 29. This is the example of grass-root initiative, being taken through citizen standing. The Delhi Vehicle Pollution case involves concerned citizens living in India's capital, Delhi, who were affected by vehicular air pollution. The cases highlight both the strengths and weaknesses of PIL.

THE DELHI VEHICULAR POLLUTION CASE The Delhi Vehicular Pollution case (DVP) is one of the most high-profile cases in India's environmental jurisprudence. This case reflects the strong emotions and opinions of the parties to the action. It demonstrates the frustration, confrontation, despair, collaboration and delaying tactics so commonly seen in PIL cases. The Supreme Court set out its jurisprudential stall early in the case when it stated: When this court gave directions, it treated it as a legal issue and proceeded to examine the impact of the right flowing from Article 21 of the Constitution of India vis--vis decline in the environmental quality. Law casts an obligation on the state to improve public health and protect and improve the environment.30 The PIL was filed by M.C. Mehta, an established environmental activist and lawyer, in 1985. It is a citizen standing case. Mehta expressed his concern about the alarming rise in the levels of air pollutants and suspended particulate matters in the atmosphere over the city of New Delhi and the surrounding region. At that time more than 80,000 motor vehicles were in Delhi with some 7,000 vehicles from neighbouring states entering the city. 4,500 public buses, belonging to Delhi Transport Corporation, were in daily use and 84 per cent of these buses were emitting smoke density that reached dangerous levels. The result was pollutionrelated illnesses that included tuberculosis, asthma, bronchitis and lung cancer. Mehta argued that the respondents, the Union of India and Delhi Administration and the DTC had acted against the common law of India and the environmental legislation. He claimed that he and Delhi residents had a right to live in a clean environment and this right had been breached by
29

See Mehta above n. 48. The author completed her PhD on The Problems of Vehicular Pollution in Delhi, 2002. She was motivated as a Delhi resident with a young child who suffered as a result of poor air quality.
30

1998 3 SCALE 602.

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the respondents. He prayed that the Court would make an order against the respondents to take action to stop those vehicles that were emitting noxious gases.31 The case was filed in 1985 but no action was taken until 1990. Thereafter, a series of directions were passed as continuing mandamus. Failure to comply results in judicial strictures, contempt of court or fines.32 There was progress, albeit slow. The Court again reiterated its guiding principle the Court is monitoring the case only to ensure strict protection of Article 21 - the right to life - and to make the authorities realise their obligations under various statutes so that the intention of the legislature is not frustrated.33 From 1990 to 1992 the Court ordered periodic vehicle emission checks, particularly focusing on public buses, with the power to cancel the registration certificates of faulty vehicles. 34 The Court became dissatisfied with the cautious approach of the public authorities whilst recognising its own limitations. The Chief Justice Ranganath Mishra observed law alone cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a clear perception and imaginative planning. It also requires sustained efforts and result orientated strategic action.35 It was stated that public environmental awareness should be promoted, as people were unaware of the harmful effects on human life caused by vehicular pollution. Because of the complex and technical nature of this environmental problem, the Court also directed the Union of India, through the Ministry of the Environment, to establish an expert committee under the chairmanship of Justice K.N. Saikia. Its terms of reference were to review the global and local technologies available to resolve this problem as well as to look into low-cost alternatives and to make recommendations both of a legal and administrative nature to curb pollution. Some 30 reports were submitted by the Saikia committee between 1991 and 1997.36 As the litigation progressed, the Court responded by directing the authorities to introduce and use unleaded fuel in a three-phased manner, starting in Delhi and encompassing all India by

31

Original writ petition. T N Godavaraman Thirumulkpad v Union of India AIR 1997 SC 1228, 1231. Order dated 23 March 2001, unreported. 1991 2 SCALE 741. 1991 1 SCALE 427, 429. Above n. 28 at 277. They noted that the Supreme Court hardly relied on these reports and references to the court's orders are rare.

32

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34

35

36

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2001;37 converting government vehicles to compressed natural gas;38 ensuring two- and three-wheeler vehicles had catalytic converters and compressed gas or unleaded fuel;39 and that a body be established to oversee the implementation of the Court's orders.40 In 1996, an NGO entitled the Centre for Science and Environment joined as a party to the PIL41 and produced an alarming report entitled Slow Murder: The deadly story of vehicular pollution in India . This supported the World Bank study of 1995 which documented the health impact of air pollution. It estimated from data gathered between 1991 -1992 that there had been some 40,351 premature deaths due to air pollution in 36 Indian cities. Both the evidence and the judicial commitment were present, but political support was limited. Consequently, the Court issued a suo moto notice to the Delhi government to submit an action plan to control air pollution in the city. This resulted in a White Paper on Pollution in Delhi and an action plan,42 but implementation remained a separate issue. In January 1998, the Supreme Court endorsed the central government's proposal to create an expert authority, to be known as the Environment Pollution (Prevention and Control) Authority EPCA. 43 Its establishment has resulted, over time, in major changes including a series of studies, changes to public transport, clean fuel, no traffic zones, eco ratings of fuel pumps, and increased public awareness of the dangers of air pollution. However, in July 1998, the Court passed an historic order which became the public battleground for the various stakeholders over an issue which claims more victims than the terrorists' guns.44 The order is of such importance that the terms are listed. It included the phasing out of all commercial vehicles and taxis which were more than 15 years old as of October 1998; a ban on the supply of 2T oils at petrol stations by December 1998; the increase of public transport to 10,000 buses by April 2001, the stoppage of leaded petrol
37

Orders dated 12 August 1994, 21 October 1994 and 14 February 1996. Order dated 28 March 1995. Order dated 7 October 1996. Order dated 27 April 1997. Order dated 1 November 1997. Available at: http://envfor.nic.in/divisions/cpoll/delpolln.html. Order dated 7 January 1998. Order dated 28 July 1998.

38

39

40

41

42

43

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within NCT Delhi by September 1998; replacement of all pre-1990 auto rickshaws and taxis to new vehicles on clean fuel by 31 March 2000; no eight-year-old buses to ply except on CNG or other clean fuel by 1 April 2000; entire city bus fleet (DTC and private) be steadily converted to single fuel mode on CNG by 31 March 2001. The Court further stressed and directed that the authorities must take effective and adequate steps to bring to the notice of the public, both through print and electronic media, the directions issued by the judiciary from time to time. The July 1998 order provided time lines to be adhered to for bringing the change in the city. The judges, while delivering the order, stated: This timeframe, as given by EPCA and today by this Court, in consultation with the learned counsel for the parties, shall be strictly adhered by all the authorities. We administer a strong caution to all the concerned that failure to abide by any of the direction would invite action under the Contempt of Court Act against the defaulters. The next target of the Supreme Court was diesel vehicles, accounting for 90 per cent of the nitrogen oxide and respiratory suspended particulate matter. The diesel particulate is toxic and chronic exposure to such toxic air would lead to 300 cases of lung cancer per million.45 The Court expressed its concern saying the very right to life of the citizens is at stake. Considering the gravity of the situation and taking note of the effect of diesel exhaust fumes on the health of the citizens, the Court asked for the information about the number of diesel and petrol driven vehicles registered in NCR Delhi in three years: 1997, 1998 and 1999. The matter was adjourned to 29 April 1999. On 29 April 1999, the Supreme Court imposed emission norms for vehicles registered in NCR Delhi. All private vehicles registered after 1 June 1999 were to conform to Bharat I norms and those registered after 1 April 2000 to conform to Bharat II norms.46 Restrictions were imposed on the monthly registration of diesel driven vehicles. Also, diesel taxis were prohibited in NCR Delhi unless they conformed to Euro II norms with immediate effect. The tone of the order demonstrated the court's commitment to tackle pollution by taking judicial responsibility due to the failure of the authorities to perform their duties. From 2000-2003, the focus of the Supreme Court was on the implementation of its orders, in particular, July 1998 and April 1999. As the deadline of 2001 arrived, interim applications by interested parties were filed for the extension of time lines. For instance, the Delhi

45

The court relied on the findings of EPCA and the California Air Resource Board.

46

Bharat I and II norms were equivalent to Euro I and II norms.

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Government and private transporters argued that conversion of the entire city bus fleet (DTC and Private) to single fuel mode was difficult due to the non-availability of CNG kit and unreasonable modification costs. The inadequate number of fuel stations supplying CNG was cited as another reason for postponement as it would produce chaos on Delhi roads. The Ministry of Petroleum and Natural Gas pleaded its inability to supply improved quality fuel, particularly diesel within the stated time frame as it involved huge financial investment. The Union of India and the automobile sector also asked for an extension of the deadline for implementing stricter emission norms. This amounted to a sudden switch over of technology, for which parties were not adequately equipped and involved significant investment.47 However, the Court was opposed to an extension. Short of reprimanding the authorities, the Court stated a blanket extension to the deadline would amount to putting a premium on the lapses and inaction of the administration. An order of the court cannot be taken lightly.48 However, to ensure that the commuters did not suffer, the Supreme Court relaxed the deadline for a limited period until 30 September 2001. This applied only to school buses and all the transport operators who had placed orders for CNG buses and were awaiting delivery.49 On 1 April 2001, the Delhi Case became overtly political with the Delhi government playing with the emotions of the citizens to cover up its failures and weakness. People were stranded on the streets without adequate means of transportation, which led to public disorder on the streets of Delhi. On 3 April 2001, violence erupted when buses were set on fire and people starting throwing bricks. The Delhi Chief Minister declared that her government was ready to face the punishment of contempt of court but would not allow its citizens to suffer.50 Interestingly, the controversy about CNG being a viable option was packaged in terms of availability, cost and safety. During this time, the Supreme Court was presented by opposition groups as anti-people and dogmatic in its approach. However, the Court, taking note of this situation, commented that Delhi government is making an attempt to hood wink the public by making a statement like they would face contempt for the cause of commuters. We are distressed by reports in
47

A. Roychowdhary et al., The Leapfrog Factor Clearing the Air in Asian Cities (Centre for Science and Environment: New Delhi, 2006) 17 -20.
48

Order dated 26 March 2001. Ibid. Anon, Delhi Government defies SC order on CNG issue The Hindu, New Delhi 4 April 2001.

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50

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newspapers and on electronic media about the defiant attitude of the Delhi government. The attitude reflected in the media is wholly objectionable.51 The Supreme Court's response led to the filling of an apologetic affidavit by the Delhi Government and the commitment to implement the direction of the court.52 From a state of inaction, the orders of the Supreme Court produced a state of sluggish action. At every stage, there was a new controversy. Defining clean fuel, discrediting CNG as a proper fuel, the drafting of auto fuel policy and the unavailability of CNG were some of the issues used to challenge the implementation of Court orders. The Supreme Court, however, refused to bend to the uncooperative administration. It is interesting to note that the Court made a comparison of the Delhi case with the Bhopal Gas tragedy.53 The Bhopal Gas tragedy was a one-time disaster, but the Delhi case is a far greater tragedy in the form of daily degradation of public health. Again, in the Bhopal Gas tragedy, the government was rightly asking for compensation from a multinational corporation. In the Delhi case there was role reversal in that it was the government that was delaying the move towards clean air, the supply of CNG and unadulterated fuel. Lack of action on the part of the government was making people suffer. As a protector and the guardian of the citizens, the Supreme Court applied both the polluter pay and precautionary principles. The Court came down heavily on diesel bus operators by imposing a fine of Rs.500/per day with effect from 1 February 2002 increasing to Rs.100/per day with effect from 6 April 2002. It also imposed a penalty of Rs.2000/- on the Union of India for not converting commercial vehicles to cleaner fuels. The money was to be deposited with Director of Transport, Delhi.54 The Court applied the precautionary principle to the auto fuel policy.55 The auto fuel policy focused upon the measures to anticipate, prevent and attack the cause of environmental degradation. These efforts eventually meant that all buses now run on CNG. The transport sector, including private vehicles, was given priority over the industrial sector with regard to the allocation of CNG. Thus, the mission embarked upon by the Supreme Court was
51

Order dated 4 April 2001. See Roychowdhary, above n. 74 at 21. Above n. 48. Order dated 5 April 2002. See above n. 80.

52

53

54

55

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successfully accomplished but not without pain, hardship, criticism and backlash. The streets in Delhi were chaotic and long queues for fuel were commonplace throughout the city. As the foundation of the right to clean air was laid, the subsequent fears from 2003 witnessed the introduction of Bharat Stage III norms, pricing of CNG, looking into viable clean fuel options that were confined to the territorial jurisdiction of Delhi. The ramifications of this case spread to other States of India. The High Courts of Mumbai, Karnataka, Kerala, Gujarat were monitoring the action plan to curtail vehicular pollution in their respective states. There was a dramatic shift in the government's attitude towards tackling the vehicular pollution. India, as a large democracy, stands committed to climate change negotiations. While engaged with the international community to collectively and cooperatively deal with climate change, India at the national level is adopting both adaption and mitigation policies. Vehicular pollution is one such area committing India to focus on clean air initiative for present and future generations.56

A CRITIQUE A perusal of the Delhi vehicular pollution case is a classic example of Mahatma Gandhi's aphorism We must be the change we want to see in the world. Change does not take place overnight. Change is always debatable. Change is hopefully for the better. These statements aptly apply to the facts of Delhi case. The Indian Supreme Court aimed to bring about change by introducing measures for clean air so that the present and future generations would not suffer from ill health through ambient pollution. The persistent flouting of the right to clean air, as defined and supported by Article 21, by the authorities' tardy response produced a public stand-off between the judiciary, politicians and elements of the private sector. The Court committed itself publicly by passing orders and directions and assumed powers traditionally exercised by the legislature and executive. The judicial system crossed into the realm of policy making and implementation. The phenomenon of creeping jurisdiction or judicial activism to achieve the ends without the presumed means is evident in this case. Once again, the case raised the controversial activism v restraints debate. It is suggested that the legitimacy of PIL through judicial activism is based upon the changing needs of society, which cannot be tackled by existing law or executive involvement. The fact that the Supreme Court has been vested with the power to offer justice is in itself an assurance that it will
56

Government of India, National Action Plan on Climate Change 2008.

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improve governance and enhance accountability of administrative authorities. The Court's strength lies in the respect, confidence and support offered by the public. Justice Bhagwati stated: A judge is not a mimic. The greatness of the bench lies in its creativity. when a matter comes before the judge, he has to invest it with meaning and content and in the process of interpretation he makes the law. It is, therefore to my mind, essential that a judge must be in tune with social needs and requirements57 The Delhi case is not without its weaknesses, despite the fact that the court played a catalytic role. One of its weaknesses is that the Court failed to push the executive to develop a composite planning approach towards air quality planning and management.58 The failure was a result of a fragmented governance structure both at federal and state level. There was a confused structure making coordination impossible. Each authority worked according to its individual mandate. Consultation and negotiation links between authorities were weak, leading to bureaucratic indifference and conflicts of interest. For instance, while drafting the action plan the establishment of goals and targets was difficult as it involved bringing together a number of ministries, namely environmental and forest, petroleum, road transport, and the Delhi government. Ministerial internecine warfare ensured that debate and disagreement was the dominant characteristic of these meetings.59

57

Justice P.N. Bhagwati, Judiciary holding the scales The Hindu, New Delhi, 15 August 1997. See above n. 62. A. Agarwal et al. , The State of India's Environment: Part 1 - The Citizen Fifth Report (1999) Centre for Science and Environment, 192.

58

59

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