Rike Krämer Hoppe: How to tackle air pollution? – The differences between law and facts in India

Air pollution has become an international concern. The World Health Organization (WHO) claimed in 2016 that air pollution represents the biggest environmental risk to health. For 2012 the WHO assessed that one out of every nine deaths was the result of air pollution-related conditions. Air pollution affects all regions. However, the problem differs in various areas. The air in India is of alarmingly poor quality, especially in Delhi air pollution is immense, leading even to the shutdown of 4000 schools for nearly a week in November 2017, as the New York Times reported. The issue of air pollution in Delhi is not a recent phenomenon. Since 1985 the Supreme Court of India has been involved in fighting air pollution in Delhi.

The involvement of the Supreme Court of India began in 1985 with a public interest litigation brought to the court by MC Mehta. In a writ petition (No 13029), MC Mehta plead at the Supreme Court to direct government ministries and departments to implement the Air Act of 1981 in Delhi. He argued that the failure to implement the act would infringe citizens fundamental rights. Mehta filed his complained under Article 32 of the Constitution of India. This petition is still ongoing. The Supreme Court of India has the right to keep a case open until it is satisfied with the result. In this case, the court has not given a final judgement. Instead the case is still pending. As Pokharel notes: “By keeping the case open and issuing interim orders, the Court has been continuously involved.” At the 25th of January 2018 the Supreme Court for example dealt with a new report regarding air quality.

During the whole period of over 30 years the court has gathered information, set up fact-finding commissions, committees to develop solutions and has banned diesel fuels in buses in Delhi. On several occasions it has stated the narrow possibility of law to tackle the problem of air pollution. For example, in its order on March 14, 1991 the Supreme Court of India stated:

Law alone also cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a clear perception and imaginative planning.

The Supreme Court of India even took matters into its own hands when after some time of inaction by the government, the court in 1996, frustrated with the situation, ruled that all government vehicles in the city be converted to CNG. In addition, on July the 28th in 1998 on its own motion it mandated, besides other things, that the entire city bus fleet (DTC & private) to be steadily converted to singly fuel mode on CNG by 31.3.2001. In April 2002, the court was done waiting for the implementation. During the transition period, the Union government had tried to discredit the decision of the court and had set up its own committee, which recommended that emission norms should be laid down, and that the choice of the fuel should be left to the users. Regarding this recommendation, the court argued:

The Committee seemed to have overlooked the fact that such norms had been in place for a long time with hardly any compliance thereof. For instance, the emission norms with regard to the quality of air and water have been statutorily provided for but despite this, prior to 1996, Delhi was the third most polluted city in the world. It will not be out of place to mention that there are various emission and other norms and regulations which are in place, but are invariably breached. The existence of building regulations have not been able to control rampant unauthorised and illegal construction, just as the existence of norms relating to effluents have not prevented pollution.

The court had stated its views about emission norms and concluded: “Therefore, it is naive of the Mashelkar Committee to expect that merely laying down fresh emission norms will be effective or sufficient to check or control vehicular pollution.” Again the Supreme Court made clear that the enactment of laws on its own won´t solve the problem or air pollution. Instead of waiting any longer, its orders now became more specific:

4. As owners of diesel buses have continued to ply diesel buses beyond 31 st January, 2002, contrary to this Court’s orders, for the disobedience of the said orders, the Director of Transport, Delhi, will collect from them costs at the rate of Rs 500 per bus per day increasing to Rs. l, 000 per day after 30 days of operation of the diesel buses with effect from tomorrow and the same shall be deposited in this Court by the Director of Transport by the 10th day of every month.

5. The NCT of Delhi shall phase out 800 diesel buses per month starting from 1st May, 2002. Till all the diesel buses are replaced the bus owners who continue to ply the diesel buses shall pay as per direction No. 4 hereinabove.

This decision by the court led to the fact that by December 2002 all diesel city buses and commercial vehicles had been converted to CNG, as Pokharel noted.

As lawyers we tend to focus on the law. The law itself is our subject and object of inquiry and analysis. As the example shows, new and better regulations might not be sufficient to tackle air pollution or environmental pollution in general – change especially behavioural change is essential

Dr. Rike Krämer Hoppe is a senior research fellow the Ruhr University Bochum at the chair of public law, legal philosophy, and law and economics.

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