No matter how one looks at the Supreme Court's April 5 ruling on air pollution in Delhi, it is undoubtedly a milestone in Indian judicial history. After extensive hearing on all the nitty-gritty, the court used significant innovations of the law, such as health as a part of right to life and use of the polluter pays principle to penalise a polluting technology, to chart an exact course of action for a vacillating, evasive government. Legal experts share their opinions
CNG Verdict: A Legal Debate
A seminal judgment
The bold principles enunciated by the government are backed by a study of the practicalities involved
The Supreme Court has delivered a seminal judgment, banishing diesel buses off the streets of Delhi, albeit in a phased manner. The judgmentunambiguously demonstrates that where the executive fails in its duty, the court cannot merely sit and watch. There is no doubt that increasing pollution levelsin Delhi are taking a very heavy toll on those living here.The court, appropriately moved, had to assume responsibility for protecting the citizens' right to health in the face of environmental pollution and an executive that was merely dragging its feet.
The right to a clean and healthy environment is part of the right to life enshrined in the Indian Constitution. There have been numerous occasions in the past when the Supreme Court has, by adopting a highly activist attitude, enforced the citizen's right to a clean and healthy environment. It has, in the process, directed the state and its officials to take positive steps to put an end to environmental pollution and ecological imbalance.
The Supreme Court has, through judicial activism,fashioned the strategy of public interest litigation, and then used this strategy effectively towards ensuring environ-mental protection. The Supreme Court has rightly assumed the role of protector of the environment, so vital for human existence.
Cases involving environmental pollution and other social issues require considerable material to be placed before the Supreme Court, in order to enable the court to come to acorrect decision, not only legally but also socially. The application and enforcement of the law cannot be made inthe abstract. Law has to deal with and resolve social andeconomic conditions and issues. It has to, therefore, deal with causes and effects, facts and figures, the needs of the peo-ple and the implications and consequences of the decisionthat the court is to make. In the present case, for example,the court would need to have certain facts laid down beforeit: an assessment of how much compressed natural gas (cng) is available in Delhi, production levels, whether thereare enough outlets spread out over different parts of the city, and whether vehicles will have to form long queues for hours to obtain cng.
I am happy to note that the Supreme Court has taken these practical considerations into account in its historic judgment. The court must be congratulated for taking a decision that, I am sure, will go a long way towards making Delhi relatively free from vehicular pollution, and a safer place for the teeming population of the city.
The author is former chief justice of India.
Food first
Ever since the Supreme Court ordered non-cng (compressed natural gas) public vehicles off the road, Delhi commuters have been in the grip of a crisis. The Bhure Lal Committee's preference for cng won the day over the earlier Mashelkar Committee report, which recommended multiple fuels, including diesel, for Delhi. The latter finding also had support from Tata Energy Research Institute director, Rajendra K Pachauri. That Pachauri's bid for chairpersonship of the Intergovernmental Panel on Climate Change was backed by the Bush administration, against the incumbent us chairperson, speaks volumes for his credibility.
In the choice between cleaner air and the alleged heavy burden on industry, the us government had no option but to heed to practical problems. The Indian Supreme Court, however, is in a luckier position. It is not answerable to public sentiment, even if both the Central and state governments are tearing their hair out, faced by the wrath of millions of daily commuters.
I do not wish to comment on the comparative merits of cng and low-sulphur content diesel buses. But I do believe that the court, in attempting to lay down Euro environmental standards, is losing sight of ground realities, which is that it is the developed countries that have benefited from environmentally offensive trade in the last hundred years, and are principal offenders to this day. It is also important to note that since 1989, more than 500 attempts have been made to export toxic waste from Organisation for Economic Cooperation and Development (oecd) countries, which generate 98 per cent of all hazardous waste to non- oecd countries.
Even principle 11 of the 1992 Rio Declaration on Envir-onment and Development says, "Standards applied by some countries may be of unwarranted economic and social cost to other countries, in particular, developing countries."
Though recognising the effects of pollution and consequential global warming, we must not forget that it has to be co-related to the development needs of each country. This is emphasised by Jagdish Bhagwati, un economist, who says that the setting of 'international standards' for all ignores the fact that there are legitimate reasons for diversity in environmental regulation across countries.
I am not suggesting that the role of government officials and politicians, who deliberately ignored the directive since 1996, ought to be condoned. They may justifiably be accused of colluding with the industry or acting out of political considerations. But notwithstanding that, the courts have to maintain balance and to keep in view the question of prioritisation between environmental considerations and 'right to livelihood' guaranteed by Article 21 of the Constitution.
Also, considering new reports that the promised supply of cng buses may not be possible to keep up with, a relook at this problem is called for. More so in the light of the fact that the us has categorically refused to be bound by Kyoto Protocol.
In their misplaced though well-meaning enthusiasm, courts, goaded by environmental-cum-business lobbies insist on applying Euro-II standards in an India that has an annual per capita income of us $350. When the same was introduced in Europe hardly a decade back, the per capita annual income stood at roughly us $15,000. These rigid standards have resulted in mass unemployment and also the present crisis of public transport, thus seriously jeopardising the livelihood of hundreds of thousands, and consequently violating their human right of living and working.
I must confess that I am bitter that these so-called clean air enthusiasts invoke the language of the first world, and seek to apply the same, most certainly inapposite, tests in developing countries. I may sound reactionary to environmental faddists, but if ever a choice were to be made between preserving the human right to livelihood and shelter, and the so-called environmental standards laid down by the first world, I would unhesitatingly opt for the former. To me, nothing takes precedence over the right to food.
Justice Rajindar Sachar is retired chief justice of the DelhiHigh Court.
The Sherlock principle
On april 5, the Supreme Court finalised its order on the use of compressed natural gas (cng) buses in Delhi, ensured that an adequate supply of cng would be available to the transport sector, imposed fines on diesel bus operators who continued to flout the apex court's order and scheduled the supply of buses on a realistic basis to convert Delhi's fleet of buses to cng. The diesel lobby and some commuters are furious. Should the Supreme Court be doing these things? Are courts taking over government? Every citizen has a right to health and clean environment. A huge amount of literature persuaded the court that Delhi's citizens lived at their own peril. There was little dispute, on the basis of studies -- Indian or otherwise -- that where the levels of respirable suspended particulate matter (rspm) were exceeded, people, especially children, were placed at asthmatic and cancer risk of frightening proportions. A World Bank study of 1992 estimated that the annual health costs due to lack of ambient air quality was Rs 5,550 crore. This is an underestimated number. If the government did nothing, it is surely the business of the Supreme Court to ensure that it did. On July 28, 1998, a composite order was passed, where all concerned agreed on cng for buses and Euro II diesel for cars. This was on the basis of the expert Bhure Lal Committee, where automobile manufacturers were represented. For four years, the authorities dragged their feet. The court kept granting more time. Meanwhile, the Mashelkar Committee (2002) suggested a setting of standards, leaving implementation details to the bus and car people. The Supreme Court rightly called this solution nave. The truth was simpler. The alternative of a safe diesel of five ppm (possibly comparable to cng ) is simply not available in India. No less, the Bhure Lal Committee found proof of adulteration of both kerosene and diesel. Under the influence of which lobby was the government operating? Meanwhile, tata, having got approval for its Euro II cars realised that, along with Ashok Leyland, they were in an oligopolistic position to make money on cng buses. So, the lobbies to which the government was responding were the diesel lobby, the diesel bus people and the so-called commuters, who were artfully pushed into newspaper and media hysteria. In order to make matters worse, an artificial shortage of cng was created by deliberately diverting cng to the industrial sector. Only a fraction of the vast 'gas' resources are required for transport. What the Supreme Court did was really quite simple. Applying the 'precautionary' and 'polluter pays' principle, the court gave constitutional priority to the right to health and environment, which were in dire peril. It exposed the attempts of governments in Delhi and the Union to show that diesel was not a financially or otherwise viable alternative. The government had dragged its feet and created an artificial crisis. The Mashelkar Committee report was a crafty ploy to duck the problem rather than resolve it. The cng solution had been accepted by all on the basis of expert advice in July 1998. Neither the nation, nor the court, nor the people of Delhi -- which continues to rank amongst the most polluted cities in the world -- could be kept waiting. cng is less about judicial activism and more about thegovernment's deliberate hoodwinking of the court and the people, with the claim that they can provide a healthy and environmentally safe Delhi by some other means. Health and environment are very precious rights. The court simply followed one version of the Sherlock Holmes dictum: when all other solutions fail, the one left is surely the right answer. Sometimes, a little bit of temporary inconvenience to some could result in securing enormous benefits for all. Schematic reliefs of this nature are germane to the law and a gift to the nation. In this case, where others failed and the rest was subterfuge manipulated, the Supreme Court did not falter. What has been done in Delhi should be replicated in Calcutta and Bombay, as it is in Beijing and Korea. The Supreme Court is not always infallible. This time it has proved its supremacy.
The author is senior advocate, Supreme Court of India, and director, pilsarc.
phulbani
Access to poverty
Rabindra Nath Mishra, an additional block development officer, is a bit worried. He thought calculating Phulbani's poor, as directed by the Supreme Court, would be easy. The expenditure limit of Rs 250 per month (as the decisive line between poverty and prosperity) seemed a ridiculous amount. But when the final count came, he was shocked: 65 per cent of the district's population was below the poverty line. "I can't explain why there is so much poverty," he asks.
The answer to Mishra's question waits outside his office. Meet Biswambar Kanwar, a resident of Gochapada village. He sells fuelwood. "The more the distance of forest from my village, the less prosperous I become," says Kanwar. His village survived on forests -- fruits for food and fuelwood to sell made up for the lean four monsoon months. Two years ago, the government declared it a reserve forest and banned their entry. "We lost our food supply and were forced to pay an illegal tax on fuelwood." The forest has shrunk to a thin patch of greenery. Now residents travel to forests some 18 km away. It takes them three days to earn Rs 30 from selling fuelwood. Kunwar has just slipped below the poverty line.
But there is no reason why Phulbani should be classified as one of the poorest districts in India. Rich forests cover 60 per cent of the district area. The government controls 85 per cent of the district's areas and most of its resources. According to the working plan of the forest department, harvesting even a small part of its sal forest could fetch close to Rs 30,000 crore. And the non-timber forest produce is valued to fetch Rs 100 crore each year. But the forest department does not allow people access to even sal leaves. Violent clashes over access to resources have led to the killing of 15 people in the past two years.
It was not always like this. Till 1956, tribal residents had occupational and management rights over forests. Over the years, forestlands have been brought under government control. And local people have been classified as illegal occupants. Sixty per cent people in the district are illegal settlers, says the government. Going by the recent amendments to the Orissa Forest Act, they would have to be evicted.
The bureaucratisation of forests extends even to minor forest produce (mfp). For example, the government is not only the sole buyer of sal seeds, but also decides its support price. Delays in procurement wastes people's collection of sal seeds leading to distress sale. Residents sometimes spend more than a month to collect seeds but manage to earn just Rs 500. One estimate by Nipidit, an ngo, shows that just plucking sal leaves (for making leaf plates) can fetch enough money for sustenance. "One or two sal trees can sustain a family for the whole year," says Trilochan Kaunar of the Kui Samaj Sewa Samiti. But the forest department says plucking will kill the trees.
On the contrary, it is the forest department that is responsible for large-scale logging. A nexus with timber traders saw the district losing around 40 per cent of its dense forest within three decades. "Forest loss has affected the yield of mfp," says Kumuda Chander Mallik, a tribal activist. The impact of dwindling mfp is so severe that local people call the four monsoon months Saki Danju (starvation months). During these months, mango or jackfruit are the two major survival fruits. This year its flowering has been very poor. Warns Ramchandra Das, director, Nipidit, "Starvation deaths are imminent."
dungarpur
A 'common' death
when Bhuna Bhil of Pathara village in Dungarpur ran away from the communal carnage in Gujarat, he faced a dilemma: what would he do back in his village? It had already exhausted all his sources of livelihood.
Known as the 20th century desert, Dungarpur's 68 per cent population has been classified as marginal and unemployed by the District Statistical Profile 2000 of the state government. Every traditional source of livelihood in the village has either degraded or is kept out of people's reach. For example, forests that used to form 60 per cent of the district in 1943 has been reduced to just 12.5 per cent in 1999, according to the State of Forest Report. Local people say this is due to a nexus between timber traders and forest officials. In the early 1990s, a massive tribal uprising against large-scale deforestation forced the government to check commercial felling. With forests unable to sustain livelihoods, villagers began depending more on agriculture and livestock to supplement their income using the common property grazing lands.
The story of Bhuna illustrates the district's swirl of poverty caused by the wind of ecological change. Villagers have been migrating to Gujarat for the last five years as their own land is unsuitable for a second crop. Their second line of defence, livestock, has also fallen prey to the government. There is just not enough grazing land to feed the animals.
Till a few years ago, vast grasslands in the village supported the livestock of this village. The village had clearly defined rules about the use of this common resources. With a rainfed nala flowing nearby, the village was 'reasonably prosperous'. But with the construction of a canal, for which the government took over the commons, the equations changed. The government restricted grazing. "This broke the ecological and socio-economic dynamics of the area," says Devilal Vyas, director of the Mada-based Peoples Education and Development Organisation, a non-governmental organisation working in this area since 1979.
Traditionally, Rajasthan has a large livestock support system: 84 per cent of households in Rajasthan have livestock. And up to 52 per cent depend on the common grazing land. Comparatively, the grazing land available in district is only nine per cent. "This provides the only resource base for animal husbandry holdings which has traditionally characterised the region," says Vyas. Deforestation and loss of common property resources are responsible for Dungarpur's slip into the perpetual cycle of poverty.
Alienation of tribals from forests and indiscriminate cutting of trees by the Vyapar Mandal, formed by the government to 'sustainably' exploit forests, have reduced the total forest cover area to a thin strip of 35 km in south Dungarpur. This is all Dungarpur has today in the name of natural forests.
With poor irrigation facility and an average rainfall of around 700 mm, villagers in Dungarpur now hardly manage a crop a year. This is in stark contrast to the situation more than a century ago when irrigation through traditional methods was practiced on a large-scale. The primary source of irrigation has always been wells (Chahi), though tanks (talabi) have also been a vital component in the system. These water systems still support irrigation albeit in a small way.
During 1995-96, two thirds of the 21.65 per cent of irrigated area were from wells and tanks. The district gazetteer notes the district's rich watershed practices of the past. Talabi or tank had an important role to play in the tribal settings. During the monsoon, the tank would serve to recharge the wells and in bad years, the tank beds would be cultivated (called the Rohan cultivation in Dungarpur). The takeover of these tanks combined with erratic rainfall proved to be the last nail in the coffin of the village economy.
sarguja
Losing battle
Poverty in Sarguja district has taken epic proportions. Unlike in the Mahabharat, the descendants of Pandavas and Kauravas have come together to fight a common enemy in Sarguja: poverty. And their fight is as heroic as the Mahabharat. Pandos, the local tribals and descendants of the Pandavas, are fighting for survival. For the descendant of the Kauravas, Korwas, it is a losing battle for water. Their adversary is the forest department.
Surguja was thickly forested till the 1960s -- 60 per cent forest cover, says the Forest Survey of India. The district has also witnessed many tribal uprising over rights on forest and its produce. Till now the victors have been the forest department.
Ironically, India's first President, Rajendra Prasad, adopted the district for tribal development. Pando colonies were set up in the district, but without any legal rights. Now, the forest department calls them encroachers and their access to forests is at the mercy of the officials.
"The land given to us is burra (uncultivable)," says Guduku, a resident. Agriculture is dependent on rain. There are no other irrigation facilities. As a result, the Pando population switched to forest produce. Tendu leaf was the primary source of survival. Mahua, Harra, Gond were other sources. With large-scale deforestation, the Pandos are threatened once again.
The situation of Korwas is no better. Of the few thousands Korwas in the country, the largest population is in Surguja. Budhram Korwa of Amadarha village owns two hectares of land, which hardly gives him 300 kg of rice every year. Pointing to the nearby nala, his wife Nanbai says, "We depend on the nala for all our irrigation purposes. But during summers, it dries up." In the scorching summer, women walk close to 20 kilometres to fetch just two buckets of water leaving less time for collection of forest produce.
Water scarcity is also hitting agriculture. Though Surguja is blessed with high rainfall (1,500-1,600 mm annually), it is also the bane for tribal farmers. With its hilly topography, most agricultural lands are on or near the slopes. Heavy rain washes off the top soil. "Our agricultural produce has gone down drastically over the years," says the Korwa. As a survival strategy, residents now sell firewood from the government forest to supplement their earning.
The huge spending on poverty alleviation has rather become a stark joke. Ram Kishore Shukla, a retired government official, has a simple imagery to audit the development expenditure in Surguja district. "Convert the amount into coins and spread it, this huge district will fall short of land. Or deposit the money and the interest money will take care of Korwas forever."
mandla
Brimful of thirst
Irrigation is a luxury that only a few can afford in Mandla, a water-rich district in Madhya Pradesh. The district receives an annual rainfall of 1,300 mm, which can easily sustain three crops a year. But Mandla residents can barely manage one.
The district is surrounded by the mighty Narmada from three sides and crisscrossed by many rivers and streams. Ironically, residents of this district are dying of starvation, primarily caused by water scarcity. In 1999, three persons, belonging to the Baiga community, died in Kudwari village of Dindori block.
Baigas are traditionally known as "friends of forests" -- forests are a part of lives, their traditions, culture and religion. For the past few decades, the government has evicted these traditional forest dwellers from the forest and rehabilitated them in the government-owned van grams (forest villages), where they were awarded certificates to practice agriculture.
But agriculture is alien to the Baigas. Though there is abundant rainfall, there is hardly any catchment area. Water available for irrigation is a meagre two per cent of the gross cropped area in the district. Without any irrigation facility, the plots of land have turned out to be a curse. They now work as farm labourers. The three persons who died in 1999, represent 63 per cent of the rural population of the district that lives below the poverty line -- 50 per cent of which earns just about Rs 300 per month, according to government estimates.
Since agriculture in Mandla largely depends on rain, a monsoon failure can be disastrous. "It's all linked," says Akali Singh who gets his name after surviving the severe famine of 1940s. "Our fields are not levelled and just a metre below the surface you will find rocks," he says. "Every year, the rain washes off the top soil even before the seeds can be sown. There is no way erosion can be checked. Our forests have lost their capacity to hold soil." Agriculture in the district hardly provides six months of employment both to the landed as well as the landless labourers. "All we get is one crop. That too if it rains," says Shankar Singh of Kudwari.
They were better off earlier when the forests of the district played a crucial role in ensuring livelihood throughout the year -- each species of tree took care of a specific survival need. Earnings from mahua collection was the main source of livelihood for the Baigas, particularly during the lean period between June to September. " Mahua was the survival strategy of the tribals," says Anand Sinh, a worker of Jabalpur Diocese Social Service Society (jdsss), a voluntary organisation based in Mandla. But gradually, the collection of mahua went into the hands of traders. And Baigas lost their prime 'survival kit'.
Now migration is in full swing. It is hard to spot young people in the villages. In the village of Sinkuhi, the youth have migrated to places like Bhusaval in Maharashtra, where they work as labourers in the railways. They manage to earn Rs 40-50 per day. "As the youth have deserted our villages, there is no one to look after our lands," says Dumar Singh of Sinkuhi.
Poverty alleviation programmes have made some inroads in Mandla. They provide employment opportunities on a daily wage basis. But this is only an interim relief for the poor. The Rajiv Gandhi Watershed Development Mission, for example, is designed for only four years -- too short to show up any changes. "Programmes of the Integrated Rural Development Agency and other tribal development schemes have also failed because of the target approach and project mindset of the officials," says Antony Roki of jdsss. It is time to restore Mandla's village economy.
A natural secret
While the Union government is bothered about the high cost of storing surplus foodgrain, groundnut farmers in Anantapur commit suicide. Clearly, measures of poverty need changing. Policymakers must now take into account the time spent by women to collect firewood or water. This distance needs to be shortened as this distance keeps them away from their gross nature product (gnp).
The approach paper of the Tenth Plan -- approved by the National Development Council -- has warned: "We cannot take it for granted that economic development will alleviate poverty." The Planning Commission's assessment of poorest states (including those reported in this story) reports a decline in the growth rate. A candid admission of five decade-old aberration. As examples suggest, villages' prosperity revolves around a few trees and a few water tanks. Poverty is thus a result of environmental degradation, contrary to what policymakers think.
A participatory poverty assessment done in Balangir district in Orissa shatters this myth. Residents, according to this survey, feel that over dependence on forest is an indicator of poverty. They suggested that survival on selling fuelwood is a sign of poverty (see box: Who wants to be a millionaire?).
In a dramatic turnaround, the approach paper of the Tenth Plan has suggested changes in the definition of poverty for the rural people. It says gross nature product will be the measure of prosperity.
But the admission of guilt doesn't ensure that the mistakes will not be repeated. The current legal and institutional framework -- not to mention the fossilised mindsets -- will have to change to give people access and control over their immediate environment. Necessary governance infrastructure like area-specific planning, decentralised development and the right over the crucial resources will have to be ensured. Starting from the budget to the prime minister's cry to use the surplus foodgrain as a blank cheque to rural prosperity may be repeating such mistakes. It will just fund the same employment generating programmes, which have failed in creating the necessary assets in rural areas for ecological security.
The latest India Development Report of the Indira Gandhi Institute of Development Research, Mumbai, points out that by raising the populist minimum support price of wheat and rice -- 91 per cent of which comes from Punjab, Haryana and Andhra Pradesh -- the government is curtailing its expenditure heavily on crucial sector like agriculture leading to lower gdp. "A 10 per cent increase in procurement prices of wheat and rice leads to 15 metric tones of additional stocks, 100,000 hectares of less irrigation and a lower gdp by 0.33 per cent in the third year. And it is adversely affecting 80 per cent of the rural population."
The message is clear: create ecological capital at the village. Otherwise, the prime minister's wish of a 'hunger free' country may be as elusive as the holy grail.
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