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MC Mehta v Union of India, AIR 2002 SC 1696 (CNG Vehicles Case), Case Note

Case Note
Background of the case:

Article 21 of the constitution provides the right to life which includes the right to a clean and healthy environment. The Supreme Court in many cases had come forward to protect this right. In this case, the court has assumed its activist role by mandating all the diesel buses to be converted to CNG.

The court's concern towards the state of air pollution in Delhi, the capital of India, grew due to a lack of effort on the enforcement agencies despite the adequate laws being in place. Articles 39, 47 and 48-A, cast a duty on the state to secure the health of the people, improve public health and protect and improve the environment.[1] A study conducted in Delhi estimated that 10,000 people die every year due to complications from air pollution, a staggering total of one person every hour.[2]

Agitated by the unchecked air pollution and its hazardous impact on the health of residents of Delhi, MC Mehta, an environment activist filed a Public Interest Litigation against the Union of India in the Supreme Court in 1985. He argued that pollution in Delhi has reached a level that is affecting people's health. The existing environmental laws required the government to take measures to control air pollution in the interest of public health.[3] In 1990, based on the opinion of the Ministry of Environment and Forests (MoEF), the Court acknowledged that heavy vehicles including trucks, buses, and defense vehicles were the main contributors to the air pollution problem.[4]

Due to the complexity of the issue, Justice K.N. Saikia Committee was set up in 1991. The committee suggested that low-cost alternative fuel was needed for vehicles in metro cities. However, the report of this committee was not considered by the court. In 1996, the court ruled that all vehicles in the city registered before 1995 to be converted into Compressed Natural Gas (CNG). [5]

The second phase of this PIL started, with the ‘Right to Clean Air Campaign' launched by the Centre of Science and Environment Delhi.[6] Also, in 1996, CSE introduced a provocatively titled monograph, ‘Slow Murder: The Deadly Story of Vehicular Pollution in India.'[7] It presented that 64% of the total pollution in Delhi was due to vehicular pollution.[8] The judiciary authorized Environment Protection ( Prevention and Control Authority) EPCA and charged it with the task of providing technical assistance.[9] The EPCA suggested various clean fuels and suggested CNG, which could not be adulterated as the best option for India.[10]

The use of compressed natural gas, (CNG) was suggested as it was economical, and it was difficult to adulterate CNG fuel. Adulteration of fuel was a common practice in India and since adulterating CNG was difficult, it was an ideal alternative fuel. The case took a significant turn in 1998 when the court gave the order that by 31st March 2001, all buses in Delhi whether public or private buses to be converted from diesel fuel to CNG.[11]

During this proceeding, Bhure Lal Committee was constituted under section 3 of the Environmental (Protection) Act, 1986. It recommended conversion to CNG mode and directed that non-CNG buses should be phased out. Based on the findings of this committee, the court has not considered the economic exaggeration made by the government concerning financial complications to implement the court's orders.[12]

The Government's indolence to implement the court's orders:
As the deadline approached, there was a huge transport crisis that forced the authorities to ask for a blanket extension from the court. The private bus operators said that they were not informed about the court's orders as the Delhi government issued its first public notification in October 1999, 15 months after the court order.[13] What proves the laxness of the government here is that they failed to inform the private bus operators on time who constituted 80% of the public transport in Delhi. The Delhi government also gave mixed signals as between July 1998 and October 1999, as it allowed the registration of 6000 diesel buses.[14]

Therefore, the government came in support of the private bus owners and requested the court for the extension of the deadline. The court refused the plea of the government and said that there would be no blanket extension in this case. The court refused to give the blanket extension but extended the deadline to September 2001, for the respite of those who have ordered the CNG buses but have not still received the order. On 1st April 2001, out of 12,000 buses in Delhi, less than 3000 could ply as others were in contempt of the Court Order. The media was flooded with images of stranded commuters and over crowed buses.[15]

In September 2001, the Mashelkar Committee headed by RA Mashelkar was formed. The committee proposed that we need to take economic incentive measures rather than command and control measures. When the report was submitted to the court, the court rejected the report on three grounds: (I) No consideration of the opinions of a public health expert. (ii) It did not address the issue of inadequate compliance with existing emission norms. (iii) The report also did not talk about the possibility of adulteration of fuel.[16] Incentive and economic measure is a voluntary measure and there is a possibility that the pollution level stays the same. The court rejected the report and extended the deadline for the buses from March 2001 to January 2002 and then till March 2002.

The government argued that CNG was short in supply and therefore, it was not possible to supply it in an adequate quantity. [17] It was argued that CNG was not properly tested as a technology and was not cost-effective. It was also difficult to meet the court's deadline as there was a shortage of CNG and the required infrastructure.[18]

The court's reasoning:
The court's order revealed its frustration with the implementing authorities, and it attempted to disregard all that was pleaded by the Government for CNG conversion. The court rejected this argument and the Mashelkar committee's report of shortage of CNG as it was found that there was an increase in the supply of CNG to the industries. Even if there is a shortage of supply of an essential commodity, priority must be given to public health, as opposed to the health of a balance sheet of a private company.[19] To allow industries to benefit at the expense of public health is also a violation of article 39(e), 47, and 48 -A. The court also applied the precautionary principle in this case.

Use of the Precautionary Principle:
In this case, the court mentioned that the Precautionary principle is enshrined in the concept of sustainable development. The principle required government and health authorities to take appropriate action and prevent air pollution. According to this principle, if there is a threat of serious or irreversible damages, then, lack of full scientific certainty shall not be used as a measure of postponing cost-effective measures to prevent environmental degradation.[20]

The court said that even if there is a shortage of CNG as contended by the Government if crude oil can be provided to refineries for the manufacture of petrol and diesel, there is no reason why CNG cannot be imported to ensure less pollution. There was also an increase in respiratory diseases in children. The court pointed out that a responsible government should be concerned about the increased respiratory diseases in children. However, the government appeared to be interested in protecting the financial interests of the polluters, including oil industries which as per the international standards is producing low-standard petrol and diesel at the cost of public health.[21]

It was found that the health impacts of air pollution were disastrous than the infamous Bhopal Gas Tragedy. In that case, the nation, including the Union of India was agitated and sought compensation from the responsible multinational company. However, in the present, it is due to the lack of action taken by the government to control air pollution and supply CNG or any other unadulterated fuel that people are suffering from respiratory and other diseases.[22] Under these alarming circumstances, it is the responsibility of the court to step up and make decisions to control air pollution so that the coming generation does not suffer.

Court's order in 2002:
For the allocation of CNG, priority should be given to transport sectors including private vehicles all over India. The court discredited all the CNGs that were focused on the industries and directed them to be given to the transport sectors. After this allocation, if any CNG is available then it can be given to the industries, preference to be given to public sector undertakings, and power plants.[23]

This appeared to do the trick because, at the end of 2002, all diesel city buses were converted into CNG buses.[24] In early 2002, the diesel buses were ordered by the court to pay Rs 500 per day and to increase it to Rs 1000 per day after 30 days of the operation of the buses. The court made it clear that the directions issued by this court cannot be modified or nullified. It cannot be altered by administrative decisions of the Central or the State Government.

The administrative decision to ply diesel buses violated the court's orders. Those persons who have placed orders with the bus manufacturers but should within two weeks from the passing of the judgment, failing to which their orders would stand canceled. 800 diesel buses shall be phased out by NCT Delhi per month starting from 1st May 2002.

The issue of inclusivity:
Lavanya Rajamani argues that even in Public Interest Cases, the opinion of the judge or approach towards the parties has a bearing on the case. The court has liberalized locus standi to address the problems of the poor in the late 1970s. But, even after three decades, the court seems to sympathize more with middle-class problems and issues that affect them. In the CNG case, the court dealt with issues directly related to the urban poor i.e., those who rely on it and those who provide it.

However, it was doubtful whether the court proceedings provided avenues for their participation. When the court created the respective committees, it did not set guidelines for its functioning because of which public participation depended on the discretion of its members. All the stakeholders were not considered and there were no avenues of wider public participation. Also, the private bus owners were frustrated as they did not have proper access to EPCA.[25]

The committees formed should be more inclusive of those whose lives were directly being affected by this case. There should have been a proper representation of these people in various consultations of the order. It should have been kept in mind that these urban poor due to lack of socio-economic privileges should not have been excluded.

Equity and fairness:
According to R Mehta, erstwhile chairman and managing director of Delhi Transport Corporation, conversion to CNG was a "legally driven process which badly affected the common man." Fearing contempt, DTC took of the diesel buses from the road. CNG buses could ply but due to the scarcity of CNG in those days, bus drivers had to travel 40 km and wait in a queue for long hours in front of CNG dispensing stations to get CNG. As a result of this only a few buses were available for passengers to travel.

The DTC was required to buy 2000 buses in 14 months to comply with the court's orders. However, the cost of CNG buses was 1.6 times more than diesel buses. Also, setting up CNG stations was quite expensive. Efforts to balance the costs by increasing the bus fare was a highly controversial and politicized move as daily wage earners i.e., common people were worst affected. The common people who were dependent on public transport were highly affected.

Another issue of equity was that the private bus owners were forced to make huge investments to convert to CNG. They argued that the contribution to air pollution to Delhi by other vehicles was much more than the private buses. The contribution of 70,000 private commercial vehicles to air quality in Delhi, even though significant, was nothing when compared to 8,52,000 private cars and jeeps, yet only the former was targeted.

This led to challenging the principle based on which the distinction was made between vehicles for private use and commercial use. The judgment of the court failed to achieve its motive to curb air pollution in Delhi, as the gains from the court-ordered conversion to CNG were being balanced by an increase in the number of private vehicles in Delhi and dieselization of private cars. It led to a steady rise in the emission of nitrogen dioxide in the city.[26]

The issue with the effectiveness of the court's order:
The policy scientists have argued that the solution to air pollution must be economically viable, environment friendly, and easily implementable. Although, CNG was an environment-friendly fuel, there were issues with it being economically viable and easily implementable. Also, CNG was not the one complete solution to the issue of air pollution in Delhi. Even after the introduction of the CNG program, there had been a 21.3 % increase in lung diseases and more than 20% in asthma attacks.

The air quality data reveals that there had been a 15% increase in NO2. The reason for the spike of NO2 can be traced to an increase in private diesel vehicles and disturbing dieselization of private cars as discussed above. Another issue of the effective solution was the maintenance of institutionalized inspection and maintenance facilities during the early years of CNG conversion which also led to a spike in NO2. [27]

Political Economy Principle:
The concept of Political An economy which talks about political and economic aspects of environmental disputes can also be understood by this case. Political disputes will look at the stakeholders who will be benefited and who would lose because of the court's orders. In this case, the economic impact was on the urban poor such as bus owners who fall on the demographic of the urban poor. The political impact was unfolding where there was a wide-spread disaffection towards the government which not only failed the transport commission but also its people.

Conclusion:
The Supreme Court in this case and in numerous cases has adopted a highly activist attitude to uphold the citizen's right to a clean and healthy environment. The court had stated that the economic concerns should not outweigh the public interest. The court had taken a very firm stand in this case and made it clear that Indian courts are gradually employing a realist approach in disposing of cases. The court also indicated the concern of the courts to protect the environment and with it the health of the citizens. [28]

However, cases involving environmental pollution and other social issues require specific materials to be placed before the court to enable it to reach a correct decision. The application of enforcement of law cannot be made abstractly. Social and economic factors need also to be kept in mind. There is a need to deal with cause and effects, facts and figures, implementation, and consequences of the decision on people's lives. In the present case, various factors such as availability of CNG in Delhi, production levels, whether there has been enough outlet spread out in the different part of the city were to be considered.[29]

References:
  1. M C Mehta v Union of India, AIR 2002 SC 1696 (CNG Vehicles Case)
  2. Alwyn Sebastian & Shonali Thangiah, Compressed Natural Gas in India: Contemporizing the Delhi Pollution Case , 3, https://www.environmentaljournal.org/3-3/ujert-3-3-7.pdf.
  3. A. Agarwal, Slow Murder. The Deadly Story of Vehicular Pollution in India (CSE, New Delhi, 1996).
  4. Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law, https://jguelibrary.informaticsglobal.com:2075/stable/pdf/44248613.pdf?refreqid=excelsior:ef2b988726fa6f1da22a5830e4a9089a.
  5. Delhi Pollution Case, supra n.1 (1998)
  6. CNG Verdict: A Legal Debate, Down To Earth, https://www.downtoearth.org.in/coverage/cng-verdict-a-legal-debate-14525 (last visited Oct 31, 2020).
End-Notes:
  1. M C Mehta v Union of India, AIR 2002 SC 1696
  2. Alwyn Sebastian & Shonali Thangiah, Compressed Natural Gas in India: Contemporizing the Delhi Pollution Case ,3, https://www.environmentaljournal.org/3-3/ujert-3-3-7.pdf.
  3. MC Mehta V Union of India, Writ Petition (Civil) No. 13029 of 1985
  4. MC Mehta V Union of India, order dated 14 November 1990.
  5. MC Mehta V Union of India, order dated 26 April 1996.
  6. CSE advertisements issued in public interest as part of the 'Right to Clean Air Campaign',
  7. A. Agarwal, Slow Murder. The Deadly Story of Vehicular Pollution in India (CSE, New Delhi, 1996).
  8. Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law, https://jguelibrary.informaticsglobal.com:2075/stable/pdf/44248613.pdf?refreqid=excelsior:ef2b988726fa6f1da22a5830e4a9089a
  9. Ibid
  10. Ibid
  11. Delhi Pollution Case, supra n.1 (1998)
  12. Alwyn Sebastian & Shonali Thangiah, Compressed Natural Gas in India: Contemporizing the Delhi Pollution Case , 3, https://www.environmentaljournal.org/3-3/ujert-3-3-7.pdf.
  13. Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law, https://jguelibrary.informaticsglobal.com:2075/stable/pdf/44248613.pdf?refreqid=excelsior:ef2b988726fa6f1da22a5830e4a9089a
  14. ibid
  15. ibid
  16. ibid
  17. M C Mehta v Union of India, AIR 2002 SC 1696
  18. Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law, https://jguelibrary.informaticsglobal.com:2075/stable/pdf/44248613.pdf?refreqid=excelsior:ef2b988726fa6f1da22a5830e4a9089a.
  19. M C Mehta v Union of India, AIR 2002 SC 1696
  20. Polluter Pays Principle & Precautionary Principle, , https://www.amu.ac.in/emp/studym/100009302.pdf.
  21. M C Mehta v Union of India, AIR 2002 SC 1696
  22. ibid
  23. ibid
  24. Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 Journal of Environmental Law, https://jguelibrary.informaticsglobal.com:2075/stable/pdf/44248613.pdf?refreqid=excelsior:ef2b988726fa6f1da22a5830e4a9089a.
  25. ibid
  26. ibid
  27. ibid
  28. Alwyn Sebastian & Shonali Thangiah, Compressed Natural Gas in India: Contemporizing the Delhi Pollution Case , 3, https://www.environmentaljournal.org/3-3/ujert-3-3-7.pdf.
  29. CNG Verdict: A Legal Debate, Down To Earth, https://www.downtoearth.org.in/coverage/cng-verdict-a-legal-debate-14525 (last visited Oct 31, 2020).

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