Chaos in Delhi

By Rajeev Dhavan

WHO IS to blame for the chaos in Delhi? Is it the fault of the Supreme Court? Or the Government of Delhi? The facts might illumine the indictment. The Supreme Court is simply trying to enforce its order of July 28, 1998. The date is important. Almost three years ago, a virtually consensus order was passed by the Court giving four directions relating to 15-year-old commercial vehicles (including taxis), strict enforcement of goods vehicles during daytime and the sale of particular oils for two-stroke `scooter' engines. So far so good. But the Court also adopted the recommendations of the statutory Bhure Lal Committee appointed under the Environment Protection Act 1986 and issued Directions A to M setting a time schedule for various measures, including the conversion of the ``entire city bus fleet (DTC and private) to single fuel mode on CNG'' by March 31, 2001. This order was passed without demur. There was plenty of time to implement it. But nothing was done. In February 2001, the Delhi administration woke up and moved the Court for a deferment of the March 2001 deadline. Many hearings followed. Recognising that no one has taken the deadline seriously, on March 26, 2001 the Court relaxed it in favour of those who had made some effort of effect the conversion, to September 30, 2001. The administration wants to blame the Court for the former's default. But, as soon as the Pandora's box of criticism opened up, everything was hurled at the Court - ranging from the sublime to the ridiculous. Charges have spilled into hyperbole: judicial activism, government by judiciary, half-baked judicial insights, perverse decision making and the creation of a law and order situation.

The charge of ``judicial activism' and `government by judiciary' has become both stale and strident. Before we attack the Court, we have to recognise that India's Constitution is unique. Unlike its English counterpart, it does not simply provide rules of cricket for politicians. The Constitution itself is a goal- oriented one directed to social and economic change for all. If the Indian Constitution was unique in its socio-economic aims, the South African Constitution goes even further. Not surprising, a South African court's latest decision on the right to housing has been applauded the world over. An activist Constitution requires an activist administration and an activist judiciary - more so when the administration fails to discharge its statutory duties.

In the ``Vehicular Pollution'' case, the key question relates to the right to health and environment, according to law. Delhi's children are getting asthma and the adults bronchial conditions, inter alia, due to diesel emissions. Unlike the Delhi Industries case, in this case the solution was not invented by the Supreme Court. Section 3 of the Environment Protection Act 1986 envisages the Government appointing special authorities to protect the environment. The Bhure Lal Committee was appointed under Section 3 (5) of the Act and includes automobile manufacturers, representatives as well as environmentalists. It is the Bhure Lal Committee's statutory recommendations that were accepted by the Court on July 28, 1998. Statutory recommendations are meant to be enforced unless there are cogent reasons for not doing so. Both in July 1998 and from 1998-2001, no cogent reasons were offered for rejecting these recommendations both in terms of the conversion to CNG or the deadline of March 2001. Casting aspersions on these recommendations now is self- evidently an afterthought by the Delhi and Union Governments, the diesel vehicle manufacturers and the bus operators.

But this situation arose due to the gross negligence and wilful default of the Governments and the operators. There are three ways in which the conversion to CNG can be made: (i) a kit to alter the fuel injection (ii) the retrofit of a new engine in an old body or (iii) a new bus. Obviously each one of these had to be tested. That is precisely why three years had been given for implementation. But this is where business interest moved in. A provisional licence for kits for one company (Rare Technology) lapsed. In time, the only company that had complete licences for `kits' was `Nugas', which acquired a monopoly. However, it allegedly declared on March 17, 2001 some unwillingness to work with the Delhi Transport Corporation (DTC). No other avenue was explored. This left the two more expensive options of new engines or new buses. Telco's interest in lesser solutions or ever new engines wavered. Prices were jacked up. Why sell engines when you can sell a new vehicle? Big business - in the form of Telco and Ashok Leyland - had entered the fray and upped the stakes. Each time a Court hearing took place, they picked up orders. This is what I jokingly told one of their lawyers after each hearing. Out of a total fleet of 10,000 t0 12,000, the DTC reluctantly placed orders. The private operators began to place orders only when they realised that the Court was serious about implementing the statutory recommendations of the Bhure Lal Committee. The Court simply relaxed those recommendations for those who had shown credibility by booking the conversions or replacements to CNG. The only mistake arising out of the Court's judgment was the conversion of the Supreme Court's registry into a Regional Transport Office to certify that applications for conversion had been made.

Then, another development took place. The `diesel' lobby has never been happy with the CNG solution. The administration was sympathetic to the diesel lobby. So a new campaign started against CNG. The auto companies began public relations in June 1999. In February 2000, the Tata Energy Research Institute (TERI) is reported to have espoused that the conversion from diesel to CNG could, inter alia, result in global warming! By July 2000, the attack on CNG was voiced by Lt. Governor Mr. Vijai Kapoor and the Transport Minister, Mr. Parvez Hashmi. The former cited a Harvard study funded by a global truck manufacturer, Navistar. Then, the administration counsel in the Court in March 2001 spoke of the Argentine solution of using diesel for starting and CNG for combusting the engine. On March 23, 2001, Telco's counsel suggested in Court that a new study of 1998 had shown diesel to be the better option. TERI followed suit a few days later espousing the case for low sulphur diesel. But, according to the Centre for Science and Environment - whom I represent - the study it appears to have relied on was a 1998 study of one London bus and has been superseded by a more comprehensive study from Australia of the year 2000 which is pro-CNG and not diesel.

Where does all this `dis' and `mis' information leave us? It is not just a smokescreen but a powerful fight by corporate diesel interests to belatedly protect their present and future markets.

This controversy has everything in it, including a biased administration, recalcitrant politicians, powerful automobile interests, media hype, courts, politicians and lawyers. It has all the making of a movie.

The Supreme Court is wrongly, but sadly, held up to public obloquy. All that the Supreme Court has done is to follow and enforce the recommendations of an Expert Statutory Committee which were accepted by all after giving three years latitude to effect this enforcement. The Court is being dragged into a political fight and a greedy corporate hunt for markets under the guise of public interest on behalf of what one lawyer in Court called the ``silent majority''. The silent majority consists of children and adults breathing deadly polluted air. The rest is subterfuge. This subterfuge may result in the deliberate sabotage of the CNG project.

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