judicial interpretation of art 21 for environment

8/13/2019 Judicial Interpretation of Art 21 for Environment

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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 Studieso The Delhi Vehicular Pollution Case

- A Critique


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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.


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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 energyconsumption 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 tojusticeto

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 principlesof 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

National Environmental Policy 20062G. Sahu, Implication of Indian Supreme Courts Innovation for Environmental Jurisprudence, Environmental and

Development Journal,2008


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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 thefoundation 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

CoralievDelhi,3JusticeBhagwati 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.4Subsequently, the Court recognised

in Virender Gaurv State of Haryana,that a healthy environment is one free from

environmental pollution.5The 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 naturalenvironment.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

3AIR 1981 SC 746.

4Ibid. at 753.

51995 2 SCC 577.

6Ibid. at 580-581.


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created.7The right to information and community participation for the protection of the

environment and human health is also based upon Article 21.8

Principlesunderpinning international environmental law have been absorbed into the right to

a healthy environment. InIntellectual Forum, Tirupathiv State of AP,9the Supreme Court

accepted that all human beings have a fundamental right to a healthy environment

commensurate with their well-being ensuring thatnatural 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 doctrineand intergenerational equity

which are derivatives of Article 21. Similarly, the precautionary and polluter

paysprinciples are considered to be an essential part of the reach of Article 21. 11A 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. 12For

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.13This tension between now and then is not unique to India,

7Chhetriya Pradushan Mukti Sangharsh Samitiv State of Uttar PradeshAIR 1990 SC 2060; Subhash KumarvState of BiharAIR 1991 SC

420;MC MehtavKamal Nath2006 SCC 213;In re Noise Pollutionv AIR 2005 SC 3136;Delhi Jal BoardvNational Campaign for

Dignity and Rights of Sewerage and Allied Workers2011 8 SCC 574; State of UttranchalvBalwant Singh Chaufal2010 3 SCC 402.

8M C MehtavKamal NathAIR 2002 SC 1515; Susethav State of Tamil NaduAIR 2006 SC 2893; Tripura Dying Factory Owners

AssociationvNoyyal River Ayacutdars Protection Association2009 9 SCC 737.

9AIR 2006 SC 1350.

10Ibid. at para. 84.

11Vellore Citizen Welfare Forumv Union of IndiaAIR 1996 SC 2715;AP Pollution Control BoardvProf M.V. NayuduAIR 1999 SC

812;Narmada Bachao Andolanv Union of IndiaAIR 2000 SC 3751.

12See 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

13See Boyd, above n. 1.


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but it nevertheless remains a problem which is yet to be resolved. The implementation of

international environmental principleshas 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 paysprincipleis applied in the courts,

delays are common as illustrated by theIndian Council for Enviro-Legal Actioncase.14The

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

14AIR 1996 SC 1446.

15See 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. InMumbai

Kamgar SabhavAbdulbhai Faizullabhai,16 the Court, while making a conscious effort to

improve judicial access, observed procedural prescriptions are handmaidens, not

mistresses, ofjusticeand failure of fair play is the spirit in which courts must view

(procession) deviances. The relaxation of the rule oflocus 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 tojusticefor the people beyond the blinkered rules of standing of the British-

India vintage. If the centre of gravity ofjusticeis 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 standiwas modified in two ways, namely through representative and citizen

standing.18 Representative standing allows any member of the public, acting bonafide,toadvance 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. TheJudges

Transfercase 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

16AIR 1976 SC 1455.

17Municipal Council Ratlamv VardhichandAIR 1980 SC 1622.

18

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


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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 Managementand The Taj Mahalwere 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 standihas been criticised because it is promotes litigation

within an already litigious society.21Cases 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 theDelhi Vehicular Pollutioncase, the

original writ was filed in 1985. The case remains active to this day, although many interim

orders and directions have been passed.22PIL 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, wherebyjusticeaccording 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

facieevidence 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

19AIR 1982 SC 149, 192

20Almrita Patelv Union of IndiaWrit Petition No. 888 of 1996;M C Mehtav Union of IndiaAIR 1997 SC 734.

21See Sathe, above n. 23, 232.

22M C Mehtav Union of IndiaWrit Petition Civil No. 13029 of 1985.

23G. Sahu, Implementation of Environmental Judgments in Context: A Comparative Analysis of Dahanu Thermal Power Plant Pollution

Case in Maharashtra and Vellore Leather Industrial Pollution Case in Tamil Nadu (2010) 6/3Law, Environment and Development

Journal335.

24B.N. Srikrishna, Judicial Activism - Judges as Social Engineers, Skinning a Cat2005 8 SCC J 3.


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contradictory or divided findings, which place further evidential burdens on the

judiciary.25Continuing mandamusis another procedural process used by the Court to

implement and monitor its PIL directions.26In 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,28the 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.

25AP Pollution Control BoardvProf. M.V. NayaduAIR 1999 SC 812.

26See Sahu, above n. 49.

27See Upendra, above n. 25.

28AIR 1984 SC 802 842.


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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 DelhiVehicular Pollution Case29. This is the example of grass-root initiative, being taken through

citizen standing. TheDelhi Vehicle Pollutioncase 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

TheDelhi 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 pollution-

related 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

29SeeMehtaabove 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.

301998 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 principlethe 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. 33From 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.34The Court

became dissatisfied with the cautious approach of the public authorities whilst recognising its

own limitations. The Chief JusticeRanganath 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.35It 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 JusticeK.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 1997.36As 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

31Original writ petition.

32T N Godavaraman Thirumulkpadv Union of IndiaAIR 1997 SC 1228, 1231.

33Order dated 23 March 2001, unreported.

341991 2 SCALE 741.

351991 1 SCALE 427, 429.

36Above n. 28 at 277. They noted that the Supreme Court hardly relied on these reports and references to the court's orders are rare.


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2001;37converting government vehicles to compressed naturalgas;38ensuring two- and

three-wheeler vehicles had catalytic converters and compressedgas or unleaded fuel;39andthat 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

PIL41and 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 asuo motonotice to the Delhi government to submit

an action plan to control air pollution in the city. This resulted in a White Paper onPollution

in Delhiand an action plan,42but 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. 43Its

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.44The 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

37Orders dated 12 August 1994, 21 October 1994 and 14 February 1996.

38Order dated 28 March 1995.

39Order dated 7 October 1996.

40Order dated 27 April 1997.

41Order dated 1 November 1997.

42Available at: http://envfor.nic.in/divisions/cpoll/delpolln.html.

43Order dated 7 January 1998.

44Order dated 28 July 1998.


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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. 46Restrictions

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

45The court relied on the findings of EPCA and the California Air Resource Board.

46Bharat 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 NaturalGas 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 aredistressed by reports in47A. Roychowdhary et al., The Leapfrog Factor Clearing the Air in Asian Cities(Centre for Science and Environment: New Delhi, 2006)

17 -20.

48Order dated 26 March 2001.

49Ibid.

50Anon, Delhi Government defies SC order on CNG issueThe Hindu,New Delhi 4 April 2001.


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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.51The 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 theDelhicase with the Bhopal

Gas tragedy.53The Bhopal Gas tragedy was a one-time disaster, but the Delhicase 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 theDelhicase 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 principleto the auto fuel policy.55The 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


52See Roychowdhary, above n. 74 at 21.

53Above n. 48.


55See above n. 80.


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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 mitigationpolicies.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 offerjustice is in itself an assurance that it will

56Government 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. JusticeBhagwati

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

TheDelhicase 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.58The 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

57JusticeP.N. Bhagwati, Judiciary holding the scalesThe Hindu,New Delhi, 15 August 1997.

58See above n. 62.

59A. Agarwal et al., The State of India's Environment: Part 1 - The Citizen Fifth Report(1999) Centre for Science and Environment, 192.

judicial interpretation of art 21 for environment

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