The Supreme Court of India recently banned the sale and stocking of firecrackers in the National Capital Region until November 1, barely 10 days before Diwali. While many are sure to breathe easier this Diwali because of the order, some might still find it hard to thank the Supreme Court. Apar Gupta explains why.
Coming close on the heels of Richard Thaler being awarded the Nobel Prize for Economics, the residents of Delhi-NCR have also been given a nudge. News tickers announced a smoke-free Diwali thanks, to the Supreme Court banning the sale of fireworks in all of NCR till the end of the month. This ban came in the midst of a hearing of a two-year-old public interest petition that has sought various directions to tackle the problem of air pollution in the National Capital Region. While most welcomed this ban, some disquiet has arisen on the proper role of the Supreme Court in what is viewed as an activity best left to the multitude of environmental agencies. Such concern centres on the phrase, “judicial legislation”; often used to describe an activist court that blurs the boundaries between adjudication, enforcement and policy formation. Is such a technical critique sustainable as one of India’s most populous and affluent cities suffers a health crisis?
To answer this question, we first need to look at the nature and scope of the litigation. Of the many maladies which have accompanied a high rate of development none has impacted its population of Delhi more acutely than air pollution. The scale of the problem is illustrated by various international agencies declaring it the most polluted city in the world. More than a statistic, this public health crisis that peaks in the winters, last year saw schools close down and many people, especially elders being made prisoners --- confined indoors to save them from the particulate-laden air. To redress this, a public interest litigation came to be filed seeking wide-ranging reliefs on vehicular pollution, crop burning, dumping of construction waste and the sale and use of fireworks. Of particular concern during the festival of Diwali are fireworks where the particulate matter in the air has been reported to be more than twenty-six times the permissible limits for human safety.
While this petition was pending, a series of orders were passed by the Supreme Court which has given rise to the present controversy. About a year ago - shortly after Diwali - noticing the increase in pollution the Court directed the suspension of licenses that permitted the sale of fireworks in Delhi. This order continued for close to a year, but shortly after that on September 12, 2017, a series of directions came to be passed which provided for some relaxation for the sale of fireworks. Along with this, a set of directions were issued including a scheme to phase out firework licenses to a fixed quantity, define the permissible chemical compounds for their use, require a public awareness campaign on air pollution especially for school children and even commission a specific study on the impact of fireworks during Dussehra and Diwali. This order came to be modified on October 9, 2017, with the Supreme Court deferring the relaxation for sale till November 1, 2017. This was tantamount to an absolute ban on the sale of fireworks in Delhi effective immediately.
Even though many have focused criticism on the issue of judicial overreach, it is undeniable that the right to clean air is a fundamental right under the Constitution of India. Many here would defend the Supreme Court's reasoning that fundamental rights are not only a negative component to limit state power, but also a positive authority in which directions can be issued for the fulfilment of the right. Such arguments seem premised on a thin analysis of the institutional impact of Supreme Court's interventions. The Supreme Court has often remarked in a variety of public interest litigations that it cannot let the technicalities of its jurisdiction become a barrier to the acute hardship faced by citizens. In these claims, there lurks an acknowledgement that in the view of the court, executive bodies are not performing their functions with proper diligence or in public interest. But is the Supreme Court stepping-in to play such a role any better?
The most obvious answer to this is a judicial overreach. But why should it matter? While this undoubtedly harms the legislative and the executive, such action may even undermine the authority of the Supreme Court itself. On this Alexander Bickel’s legal classic, Least Dangerous Branch makes a convincing argument for, “passive virtues” of a court that by limiting itself to action in critical situations safeguards its authority. Given that the Courts are by their very nature dependent on the political executive to comply with their directions such a delicate balance strengthens the judiciary over time, giving it the power to safeguard the Constitution. While such objections may seem academic, they have practical, long-term consequences.
When such self-restraint is exercised, it brings greater accountability to the political executive and the various authorities tasked with delivering civic services. While apathy, corruption and inefficiency of Government departments are widely acknowledged, a Court by stepping into their roles, or by supervising them, can at best provide a reprieve. There are few alternatives to institutional capacity, and public interest petitions that aim for the resolution of civic problem often do not deliver on their promise. Many such litigations have also had the unintended effect of building citizen expectations from Courts to devise and sanction policy and then to administer them. Take for instances of challenges against the BRT corridor in Delhi, the use of film screens in cars, hiking of traffic fines and sometimes even the width and placement of traffic dividers and speed breakers. These instances present an ad-hoc, petri dish of vehicular regulation which not only takes on the colour of policy formation but even undercut the authority of local bodies. Such court litigations may also prevent citizen organisation to demand accountability from government departments.
A more fundamental objection rests on judicial populism and adjudicatory bias concerning the larger canvas of PILs as eloquently stated by Anuj Bhuwania in his book, Courting the People. Bhuwania documents how in the Delhi Vehicular Pollution Case under which directions for the use of CNG were issued only to public transport. Further directions failed to consider the economic hardship on autorickshaw drivers. Ideological blinkers are expected in a courtroom which even in public interest cases finds it difficult to shed the adversarial form ill-suited to the formation of policy. Many of these strands link to the present ban on the sale of fireworks. While many will breathe easier this Diwali, some may still find it hard to thank the Supreme Court.
The author is a lawyer practising in Delhi. He tweets as @aparatbar