Judicial Policymaking: Case of Cng Implementation in New Delhi

Topics: Separation of powers, Judicial review, Supreme Court of the United States Pages: 12 (4025 words) Published: March 15, 2008

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...

References: Agarwal, Anil, Anju Sharma, and Anumita RoyChowdhury (1996): Slow Murder: The Deadly Story of Vehicular Pollution in India, Centre for Science and the Environment, New Delhi.
Anant T C & Singh Jaivir (2003) "The Constitutional and Legal Framework for Governance" in 3iNetwork (2003): India Infrastructure Report 2003, Oxford University Press, New Delhi.
Bell, Ruth & Narain, Urvashi, 2005. "Who Changed Delhi 's Air? The Roles of the Court and the Executive in Environmental Decisionmaking," Discussion Papers dp-05-48, Resources For the Future.
Bhatia K.L., ( 1997) Judicial Review and Judicial Activism: A Comparative Study of India and Germany from an Indian Perspective, Deep and Deep Publications, New Delhi, 1997, p. 116.
Cane Peter (2004) ‘Understanding Judicial Review and its Impact ' in Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives , eds Marc Hertogh and Simon Halliday, Cambridge Studies in Law and Society,
Ministry of Environment and Forestry (1997): ‘White Paper on Pollution Plan, ' http://envfor.nic.in/divisions/cpoll/delpolln.html. Last accessed 11 September 2007.
Sathe S. P.( 2002) , Judicial Activism in India: Transgressing Borders and Enforcing Limits , Oxford University Press, Second Edition, Oxford, UK.
World Bank and Central Pollution Control Board (2005): For a Breath of Fresh Air: Ten Years of Progress and Challenges in Urban Air Quality Management in India (1993–2002), June, World Bank, New Delhi. URL http://www.cleanairnet.org/caiasia/1412/articles-70141_india.pdf (last accessed on 11 September, 2007)
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