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Fog of Legal War

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Even though, the Supreme Court recently slammed the Delhi and Punjab governments for their lackadaisical approach to pollution control, unrestrained foul air threatens the life of the capital’s citizenry

By Sanjay Raman Sinha

Amidst the smog laden clouds of Delhi yet another series of hearings on pollution unfolded at the Supreme Court. A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia sternly ordered the Punjab and Delhi governments to take corrective action against the burning of agricultural waste which significantly contributes to pollution in the National Capital Region. In the line of fire was mainly the Punjab government under whose territory stubble burning is unrestrained.

Punjab has reported 634 farm fires with farmers across the state continuing to burn paddy straw despite police alert. In one of its earlier hearings, the Supreme Court had instructed the state government to make the station house officer responsible at the ground level for farm fires in their respective jurisdiction. The overall charge to supervise stubble burning was given to the police chief of the state. 

The Punjab Police said it has registered 1,084 FIRs against erring farmers and imposed penalties worth Rs 1.87 crore in 7,990 cases since November 8. However with fresh cases, the total number of farm fires recorded from September 15 till November 20 rose to 35,093. Clearly, the matter is still out of control. The top court batted for an incentive-based system to curb farm fires. The Court suggested that minimum support price be not given to those who burn stubble. “The state of Punjab should also take a cue from the state of Haryana in the manner in which financial incentives are given,” said the Supreme Court.

Paddy farming was an area of concern, as not only its cultivation alarmingly depletes groundwater, but also the remains are prone to be burnt, contributing to air pollution. However, in the same vein, the Court underlined the fact that stubble burning contributed a mere 10% to air pollution and that 75% is due to industry, dust and transport. It is noteworthy that the Union government has spent over Rs 2,000 crore to curb stubble burning over the last four years, but farmers are yet to switch to a viable alternative.

Significantly, the bench objected to the framing of the farmer as a “villain” who is responsible for the pollution in the national capital. The bench observed that farmers are being made a villain as they are not being heard in the Court. 

This piece of observation harks back to the days when Justice NV Ramana was the chief justice. The three-judge bench headed by the then CJI and including Justice Chandrachud was hearing the plea on pollution.  Justice Chandrachud had said to state governments: “You say 76% of the pollution is caused by industry, dust, vehicles and construction and not due to stubble burning. Now the cat is out of the bag. You are now trying to target pollution that is insignificant?” It was that bench which had for the first time taken up the cudgels for the farmers and had objected to them being branded as main culprits of pollution. 

This time too, the bench reiterated its stand. It also castigated both the governments for playing politics over pollution. The Aam Aadmi Party government was in for a hefty rap on the knuckles for its irresponsible behaviour over pollution. 

In another hearing, the Supreme Court took to task the Kejriwal government for its miscalculated and misthought policy on smog towers. The Court summoned Delhi Pollution Control Committee (DPCC) Chairman Ashwani Kumar for reportedly shutting down the two smog towers in the national capital and directed that the towers be made operational immediately.

Significantly, the DPCC had recently suggested that the smog tower be shut down as it was found to be ineffective in tackling air pollution. DPCC has told the National Green Tribunal (NGT) that at least 47,000 smog towers will be required to clean Delhi’s air. Because a tower can clean only an area of 100 metres around itself, whereas the area of Delhi is 1,483 square kilometres. So much for the reliance on smog towers and spending taxpayers money on it.

In another set of hearing, the Supreme Court lambasted the Delhi government over the Rs 30,000 crore Delhi-Ghaziabad-Meerut Regional Rapid Transit System (RRTS) project. The high-speed rail link aims at providing an alternative to road transport and reduce vehicular pollution. The Delhi government had not released its part of the fund for the project, but had significantly spent on advertisements to showcase its achievements. In July, the Delhi government had pledged before the Supreme Court that it would make budgetary provisions for the RRTS project.

The bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia strongly objected to this. The bench said that there can be no question of partial compliance, there should be complete compliance. The bench had then said that Rs 1,100 crore spent on advertising in the last three financial years could also be contributed to infrastructure projects. Despite this no funding was made to the project.

The Kejriwal government has been making headlines over its pollution control measures. It had kicked off the much hyped odd-even scheme where odd and even number bearing vehicles were to ply on the streets of Delhi on alternate days. The odd-even scheme also came for a beating during the Supreme Court hearing. The Court had termed the scheme as “optics” and questioned its efficacy and success in combating high pollution levels.

Pollution in Delhi has been always been high on the agenda of the Supreme Court. The apex court first began hearing cases on Delhi pollution in 1984, when environmentalist MC Mehta filed petitions on three main issues—rising vehicular pollution in Delhi, the impact of pollution on the iconic Taj Mahal, and the pollution of Ganga and Yamuna rivers. The hearings in some form or another are still continuing. The apex court had consistently issued instructions to curb pollution and had kept the government on its toes. In 1998, in a major move, the Supreme Court had ordered that the entire one lakh fleet of public transport vehicles which ran on diesel must switch to compressed natural gas, or CNG, by  2001. Though the ban on diesel vehicles did clean up the Delhi air, it was counteracted by increase in private vehicles.

In 2017, the then chief justice TS Thakur had proposed the graded response action plan to curb pollution and this plan was adopted by the centre for the NCR region. Justice Thakur was quite proactive in dealing with the pollution menace and had even adopted car pooling for Supreme Court judges to set an example. In fact, Justice Thakur and Justice AK Sikri had decided to car pool to court everyday for at least 15 days. This move came despite the fact that judges were exempt from the government’s odd-even scheme as they held constitutional posts.

Banning of firecrackers was also a measure which the apex court had resorted to. It had stopped the use of barium and banned chemicals in firecrackers and its subsequent sale. However, the Court had clarified that “there is no total ban on use of firecrackers” and only those firecrackers are banned which are found to be injurious to health. In fact during his tenure, the then CJI Justice Ramana had said that firecrackers were not a major factor in Delhi’s air pollution, but were a temporary phase, according to a study conducted by IIT Kanpur. The findings of the study were submitted to the Court by the Delhi government.

Control of pollution is not only legal or administrative matter. It has technical aspects as well. Recognising this, the Supreme Court has solicited technical expertise and guidance to understand and handle pollution issues. In 2020, on the orders of the Court, the government and IIT experts formed a committee to look into pollution management technology. Many matters of air and water pollution had been technically vetted by experts.

Earlier in 1986, in MC Mehta vs Union of India, the Supreme Court had observed that environmental cases involve assessment of scientific data. Setting up of environmental courts would require professional judges and experts. Since then, the rigorous demands of cases have institutionalised the mechanism of expert committees. Around 1995, the appointment of an amicus curiae in environment cases has also became a standard practise in courts. Thus the courts gained from the technical advice and inputs from experts and formulated instructions accordingly.

Today, as things stand on the pollution front, one thing stands out—the lackadaisical approach of governments in handling this life threatening menace. The courts prod the governments to fulfil their constitutional obligation of assuring right to life to citizens, and in the process, are often accused of judicial overreach.

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