Delhi pollution ruling shows it’s time for courts to retreat in order to truly uphold a citizen’s right to clean air.

The Supreme Court’s judgment allowing only the use of “green crackers” during Diwali while refusing a complete ban on firecrackers is a terrible ruling, but not for the reasons most commentators have called out.

The ruling is indeed populist, but not a clamp down on Hindu festivities as everyone is claiming. But what is really astounding is that the court arrives at this verdict in the absence of any hard evidence. One would have thought that data and detailed peer-reviewed studies would drive such a major policy decision to curb festivities, but the court simply says ban first and bring facts later.

“But, from the material before us, it cannot be said with any great degree of certainty that the extremely poor quality of air in Delhi in November and December 2016 was the result only of bursting fireworks around Diwali. Certainly, there were other causes as well, but even so, the contribution of the bursting of fireworks cannot be glossed over. Unfortunately, neither is it possible to give an accurate or relative assessment of the contribution of the other identified factors nor the contribution of bursting fireworks to the poor air quality in Delhi and in the NCR,” the court said while banning firecrackers anyway.

Also read: Is partial firecracker ban enforceable to fix Delhi air or will it fail like last Diwali?

Legal scholar Anuj Bhuwania, in Courting the People: Public Interest Litigation in Post-Emergency India, a book-length critique of PILs throws light on how the courts have governed Delhi, replacing municipalities through PILs.

From the use of CNG to tree felling, diesel ban, shifting of entire colonies, cleaning of the Yamuna, sewage management in the city, deciding on the number of auto rickshaw permits to be granted, to even the ambitious sealing drive in Delhi are all byproducts of one 1985 PIL— MC Mehta vs Union of India – that was filed to clean Delhi’s air.

SC as air pollution-curbing agency

The firecracker ban case, which was a PIL filed on behalf of three infants in Delhi who sought to exercise their right to clean air. This right was also recognised by the court in 1991 in the PIL filed by environmentalist-lawyer-activist M.C. Mehta.

Once the courts took over the task of cleaning Delhi’s air in 1985, there was no looking back. While the 1985 PIL is still pending, a series of PILs, many taken suo motu (taken by the court on its own), have changed Delhi’s landscape.

The court, in such cases, is assisted by amicus curiae (Latin for a friend of the court) to deal with the implementation of court orders. One such amicus— senior advocate Harish Salve, who now spends more time in London than in India, is in charge of curbing air pollution in the national capital.

In the court’s verdict on 11 November 2016 when the ban on firecrackers was first imposed, the court had acknowledged the inadequacy of its process.

Also read: Apex court’s judgment on Diwali firecrackers is not the first case of judicial overreach

“We are aware that we are only issuing interim directions, and much is left to be heard, discussed and said about the rival claims and contentions. What is however indisputable is that the harmful effects of fireworks on the ambient air and the lungs, eyes, and ears of people. What is also obvious is the extreme nuisance, noise the fireworks cause to citizens particularly the ailing and the aged. Therefore, though much can be argued as always about the significance and even joy of bursting fireworks, but at the same time (sic), prima facie, a just constitutional balance must overwhelmingly prioritize the harmful effects of this hazardous air on present and future generations, irreversible and imperceptible as they are, over the immediate commercial constraints of the manufacturers and suppliers of fireworks…”

A ‘constitutional balance’ is struck by the Supreme Court with arguments that are usually dinner time conversations for citizens of Delhi. It was only after a preliminary ruling that the Central Pollution Control Board (CPCB) was directed to prepare a report within three months on the harmful effects of fireworks. Though the case was heard at least a dozen times after that, it was only days before Diwali that another order would be given.

In environmental cases, policy makers often deem it better to err on the side of caution and prevent environmental harm, which may indeed become irreversible. But for the court to do that, year after year, is troubling because policy decisions can be challenged but orders of the Supreme Court are final and binding.

Dilution of evidence for PIL

That the Supreme Court will take a major policy decision without weighing competing interests is no surprise in post-PIL India.

PIL, with its disdain for procedures, has also diluted the need for evidence. As Bhuwania points out, in PILs, “the court can initiate a case on any public issue on its own, appoint its own lawyer, introduce its own machinery to investigate the issue and order its own solutions to the issue at the level of the entire state”.

The sealing drive that began in the 1990s to move factories and industrial units away from residential spaces in Delhi is now driving out even small local traders who are part of neighbourhoods. A two-judge bench in a weekly hearing of over an hour cannot possibly look into whether thousands of commercial establishments that a “court-appointed committee” has sealed are indeed violating the law.

In 1997, in a famous ruling delivered by Justice Bhagwati in a PIL, the Supreme Court had exempted PILs from Supreme Court rules, a set of civil procedure rules, applicable to all Supreme Court cases. This effectually meant that reports submitted to the court by the amicus cannot be cross-examined and contested.

Also read: Supreme Court goes headline-hunting again with firecracker restrictions

A constitutional court which is supposed to rule on questions of law is now a fact-deciding body.

It is nobody’s case that air pollution is a non-issue but a constitutional court is woefully ill-suited to tackle it. Take the M.C. Mehta case, which has been heard by over 17 successive chief justices and countless orders have been passed. Yet, Delhi’s air quality is the worst in the world. It is perhaps time for the courts to retreat in order to truly uphold a citizen’s right to clean air.

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