Current General Studies Magazine: "Environmental Governance" March 2016

Current General Studies Magazine (March 2016)

General Studies - II "Polity Based Article" (Environmental Governance)

The Supreme Court’s attempt to orchestrate environmental governance in a case relating to diesel taxis in Delhi hurtles it towards a new frontier, and one for which it is wholly unprepared

Alexander Hamilton, one of the authors of The Federalist Papers , foundational documents for the U.S. Constitution, presciently wrote that the judiciary “has no influence over either the sword or the purse”. Instead it only has its power of judgment, using which it must earn the respect of the people. Few courts have demonstrated the truth of this proposition more amply than the Supreme Court of India. At its inception in 1950, its greatness lay in the erudition of its judges, the majesty of the legal profession and the sheer breadth of power invested in it by the framers of the Constitution. As India evolved, so did the reasons for the Supreme Court’s greatness — it was a court that spoke truth to power, with judges who were both erudite and conscious of their constitutional and social responsibilities. Popular respect for it was always undergirded by an unquestioned faith in judicial competence to do the right thing.

Recent actions of the Supreme Court, however, present a worrying portend of how the court in its current avatar is likely to be perceived. Three factors have precipitated such a worry — first, its expansionist role attempting to orchestrate environmental governance in the case relating to vehicular pollution in Delhi; second, the intuitively incorrect legal bases for several such orders; third, an inadequate appreciation of its own institutional limitations. Taken together, this expansionism means it is hurtling towards a new frontier of accountability, one for which it is wholly unprepared.

The diesel taxi flip-flop

In a surprisingly bold move, the Supreme Court ordered all diesel taxis to cease operations in Delhi because the deadline for their conversion to CNG had expired. However after two days of continued protests and a fresh hearing, the court agreed to modify its order and allowed already registered taxis to ply, while at the same time preventing fresh registrations. Two aspects of the court order are particularly troubling — first, that repeated persuasion could force the court to change its mind. Nothing could be more antithetical to the dignity of a court of law than an insinuation that it is amenable to entreaty. This is especially so since traditionally courts have placed significant emphasis on finality.

Second, the order of the court to ban diesel taxis in Delhi in the first place was contrary to law, common sense and practical reality. In pure legal terms, taxi owners had legitimate expectations that once a commercial licence was issued on particular terms, those terms would be respected. For the court, without finding those terms themselves faulty, to have modified them to the detriment of the taxi owners would upset their legally protected expectations.

Moreover, while the right to a pollution-free environment can be traced to Article 21 of the Constitution, it is neither a problem unique to Delhi nor the exceptional responsibility of taxi drivers to redress. In a recent survey, Delhi was found to be behind Gwalior, Allahabad, Patna and Raipur in the list of polluted cities. At the same time, while diesel taxis most certainly pollute, so do small diesel private vehicles, petrol cars, desert dust and a range of other sources, to varying degrees. For the court to justify special restrictions on taxis that requires their banning as well as treating Delhi as a special case, it would have to demonstrate that pollution by diesel taxis in Delhi was somehow of a distinct type warranting particularly stringent intervention. Needless to say, this is a futile exercise.

A question of competence

The futility of such an exercise also underlines the fact that managing Delhi’s pollution is simply not a task that is within the managerial competence of the judiciary. In Gerry Rosenberg’s seminal book The Hollow Hope , he highlights the inability of the American Supreme Court to effectuate ground-level social change. This, according to him was owing to three constraints — a lack of independence, the limited text of constitutional rights and the inability to conceptualise and enforce holistic reform. While the Indian Supreme Court may have successfully overcome the first two, it is intrinsic to the judicial function that it is unable to enforce meaningful reform. An example will illustrate — the order (passed by an earlier Bench) to convert all diesel taxis with national permits but operating in Delhi to CNG failed to take into account the abject lack of CNG filling stations in States contiguous to the National Capital Region where such taxis most often travel. The States of Uttar Pradesh and Haryana (sans the National Capital Region) have 32 and three filling stations, respectively, Rajasthan has three (all in Kota), whereas Punjab, Himachal Pradesh and Uttarakhand have none.

The combination of an openness to entreaty, a simplistic consideration of legal principles, and not taking its institutional limitations seriously has meant that the Supreme Court is increasingly seen as a court that runs government rather than one that dispenses justice. This is not per se objectionable — as the Supreme Court itself often points out, when other organs of government are recalcitrant, it cannot simply sit back and watch the Constitution being violated. However, the concern arises not from the fact that the court plays such a role, but how it does so.

Recent episodes demonstrate that the court has rushed headlong into this task, determined to correct wrongs and uphold rights. It is important to note the incipient costs. Playing such a core governance function means that it is only a matter of time before people expect it to be accountable as government is — to provide in times of need, and to criticise it, perhaps even defy it when needs are not met. The protest by diesel taxi drivers is a warning sign in this regard. It is imperative that the court picks up on it and introspects on carving out a role in national governance that doesn’t jeopardise its institutional credibility.

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