Judicial Policymaking: Case Of Cng Implementation In New Delhi

JUDICIAL POLICYMAKING: CASE OF CNG IMPLEMENTATION IN NEW DELHI

Introduction

On 4th September, 1990 Rajya Sabha was informed that Delhi has been named the fourth most polluted city in the world by WHO. This was just a confirmation of the fact that was exercising the minds of people, policy makers, political players, Civil society and Judiciary. By then a chain of Judicial, executive and legislative chain was already in motion which was to result in a situation in 2005 where analysis data collected by the Central Pollution Control Board (CPCB) suggested that quality of air in Delhi has stabilized and even started to improve. Many have claimed credit for this visible and much appreciated change but role of Judiciary in bringing about is generally accented. There is a strong school of thought that is of the opinion that Supreme Court has been adopting the role of policy maker in a variety of field which is at divergence with its mandated role of adjudicator and reviewer. Experts have noted 'extreme activism' with regard to adopting extremely generous standing rules, inquisitorial role, a very broad view of judiciability, active involvement of implementation process without having the expertise and resources, championing the cause of poor. Some critics of the CNG case argue that Supreme Court's activism was not only a violation of its constitutional limits but resulted in efficient policies by closing the doors of future innovations in the fuel technologies. Anant and Singh wrote :

"CNG by all vehicles is not necessarily the most efficient way to bring down emission levels. Other options could have been considered such as changing the composition of diesel or eliminating fuel price distortions that flow from the system of administered prices and so on. The decision on the appropriate technology should have ideally been made by the executive using a body of experts, which would be in a position to take into account all relevant scientific and statistical data, and such decisions need to be flexible to changes in technology and external conditions. Since a court is structured to make an assessment on competing claims, where contesting parties provide relevant information, it is difficult for the court to make such decisions or alter them expeditiously."

This paper will steer clear of the technological debate on CNG, however it will examine the theory and state of separation of power in Indian legal constitutional scheme. In part two the paper aims to give the events of the CNG conversion process and finally it will Examine on the scope of judicial review as exercised by the Supreme Court in that matter.

CNG Conundrum: How it all unfolded:

Air quality of Delhi came for judicial scrutiny with the filing of a Public Interest litigation by M.C. Mehta on December 17,1985. Mehta petitioned the court to direct various government ministries and departments to implement the Air Act of 1981 in Delhi. The Air Act provides for CPCB to 'lay down standards for the quality of air', to 'advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control, or abatement of air pollution', and to 'perform such other functions as may be prescribed'. In 1986, in response to Mehta's petition, the Supreme Court directed the Delhi administration to file an affidavit specifying the steps it had taken to reduce air pollution.

A spate of new legislation ensued in the wake of Supreme Court's interest such as the 1986 Environment (Protection) Act, an amendment to the Air Act in 1987, the Motor Vehicles Act of 1988, and the Central Motor Vehicle Rules of 1989. In 1990 vehicular exhaust emissions standards were set, imposing some obligations on owners to keep their vehicle in environmentally sound health. Self certification of the vehicle by the manufacturers proposed to be changed by the standard to be developed by a Committee headed by Prof H B Mathur of IIT Delhi. The committee was to set norms to be implemented by 1995 and 2000. Ministry of Environment and Forest (MoEF) came out with air standard for Delhi. Other measures included educating the public, increased surveillance and strict fines.

From 1991 onwards the Court deepened its role and asked MoEF to set up committees Under Section 3(3) of the Environment Protection Act, for formulating policies to curb pollution. Saikia Committee under the Chairmanship of Justice K.N. Saikia (retd) was formed with M.C. Mehta, N.S. Tiwana (then-chairman, CPCB), and S. Girdharlal

(representative of the Association of Indian Automobile Manufacturers) as members. The

committee was mandated to

(i) Assess technologies available for vehicular pollution control elsewhere in the world and in India;

(ii) Assess low-cost alternatives for operating vehicles at reduced pollution levels in Indian metropolitan areas and make specific recommendations on the administrative

and legal regulations required for implementing these alternatives; and

(iii) Make recommendations on how vehicular pollution could be reduced in both the near term and the long run.

The Saikia Committee recommended phase out of leaded petrol in Delhi by April 1, 1992. The committee also recommended the use of CNG as an alternative vehicular fuel for three reasons: it polluted less, cost less, and was more widely available in the country than petrol or diesel. This brought CNG to the center stage which was being discussed since late 80s in scientific and policy circles. The CNG conversion process got push from GAIL and various Pilot projects of DTC.

In September 1994, Parliament passed the Motor Vehicles Amendment Act to promote the use of alternative fuels, such as batteries, solar power, and CNG. In February 1995 the Supreme Court ordered that all government cars switch to CNG or install catalytic converters and use unleaded fuel. Main lacuna of all these activity was neglect of developing infrastructure for CNG distribution.

In 1995 installation of catalytic converter became mandatory in Delhi. Deadline for supplying unleaded fuel was also met. Automobile industry kept the pressure on for diluting the standards suggested by Mathur Committee and Saikia Committee. However one worrisome trend could be seen in the flurry of measures being adopted by various government agencies. Most of these measures were either being ignored or abandoned. These included policies to relocate industry, to improve fuel standards and to encourage the use