The Sherlock principle

When there is only one option left, it is the right answer: this was the Supreme Court's logic in the CNG order

 
By Rajeev Dhavan
Published: Sunday 28 June 2015

The Sherlock principle

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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.

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