Applying the brakes

In a significant ruling on April 29, 1999, the Supreme Court of India ordered the automobile industry to adhere to stringent emission standards or get off the road. Besides restricting the sale of cars that comply to Euro i norms to 1,500 (1,250 petrol and 250 diesel) per month in the National Capital Region (ncr), the Court has also advanced the dates of enforcement of Euro i standards for both petrol and diesel cars to June 1999, earlier scheduled for April 2000. However, cars that comply to Euro ii norms will not be touched by this order and will not be affected by any quota. While the Euro i norms have been advanced by nine months, the Euro ii norms have been brought forward by five years, to April 2000.

This is probably the first time the apex court order requires industrial giants to take the business of air emissions seriously. This order has come as an unexpected bonus to environmentalists as the original hearing on April 29 was to take a decision on a proposed ban on diesel cars only (and not petrol) following the recommendations of the Environment Pollution (prevention and control) Authority (epca).

In late 1998, Anil Agarwal, a member of the epca, raised the issue of the risks posed to public health by the dieselisation of private vehicles at a meeting of the epca. Agarwal had made a presentation to the epca on the scientific evidence of the carcinogenic nature of diesel particulate matter (pm) and limits of diesel technology. The epca referred the matter to the Central Pollution Control Board (cpcb) which was asked to file a report.

The cpcb submitted a report in favour of preventing the dieselisation of the private vehicle fleet. Following months of debate and deliberations with representatives of the automobile manufacturers, the epca was informed that it would not be possible for car makers to advance emission norms. Taking all this into consideration the epca submitted its report on April 1, 1999, recommending a ban on the registration of private diesel vehicles in the ncr. The epca stated, "It would appear logical to firmly and immediately discourage the trend to dieselise private vehicles, and to encourage this category also to resort to use of cng/clean fuel. The sooner the ban is imposed, the earlier the industry will be alerted to stop further investment."
Countdown to the hearing On April 16, the Supreme Court considered this report and said in its order, "It is estimated that more than 90 per cent of the Nitrogen Oxide (nox) and respirable particulate matter (rspm) from vehicular exhaust over Delhi is due to diesel emission."

Tata Engineering and Locomotive Company's (telco's) counsel F S Nariman left no doubt that telco would try hard to get the proposal to ban diesel cars stalled. According to the Supreme Court order of April 16, he had submitted that "without further improvement in the quality of diesel it may not be possible to fully control the harmful emissions, but he would have it examined."

Moreover, telco's statement that the number of diesel cars on the roads is small led the Court to direct the additional solicitor general to inform the court before the next hearing on April 29, the number of diesel and petrol-driven private vehicles registered in ncr in 1997 and 1998; and disclose the number of registered private vehicles for both petrol and diesel separately from January 1, 1999 to March 31, 1999.

The epca submitted a draft report to the Amicus Curiae Harish Salve before the next hearing on April 29 to re-emphasise the need for restricting private diesel cars in the ncr. epca pointed out that diesel car sales have only begun in Delhi's market, and the expected trend in its growth is not likely to show up yet in the registration figures. The entire effort to restrict the number of diesel cars was a precautionary measure.

Meanwhile, sensing the industry's mood, campaigners from the Centre for Science and Environment (cse) played a proactive role to brief Salve just before the court hearing on April 29. They pointed out several scientific evidences on how even better emission standards and improved fuel quality would not help to solve the problem of toxic particulate emissions from diesel cars (See analysis: Fatal attraction on pg 34). Moreover, any move to let diesel car manufacturers to continue to cash in on the cheap diesel prices would negate the spirit of the earlier order of the Supreme Court requiring a large part of public transport vehicles in Delhi to run on compressed natural gas (cng) or other cleaner fuel.

On April 29, 1999, the courtroom was filled with not mere onlookers but a defence line of the automobile industry to contest any possible decision in the court that might hurt their multi-crore business interest. The case was being heard by a three-judge bench headed by Justice A S Anand.

The automobile industry had turned out in large numbers along with a virtual who's who in the legal profession. Among them were F S Nariman and Arun Jaitley for telco, P Chidambaram for fiat, Kapil Sibal for Maruti Udyog Limited (mul) and Anil Divan for Mahindra and Mahindra. Rajeev Dhawan was present on behalf of cse, which has brought the problem of dieselisation of the private vehicle fleet to the forefront.

The tension was palpable when Harish Salve began summing up the reasons why the diesel cars should be banned and read out the relevant portion from the draft report sent by the epca just before the hearing. The drama unfolded as soon as Salve recommended that all applications filed by the diesel car manufacturers be referred back to the epca for a final position on this matter and diesel car sale be frozen at the current rate of 250 cars as an interim measure.

Threatened by the proposed ban on diesel cars which could decimate telco's diesel Indica market, Nariman tried to fight back. Instead of taking up the case of diesel, he shifted his target on petrol. In the court, with great fanfare, this masterly lawyer admitted that "diesel is a pollutant, it is a carcinogen, but, My Lord, so is petrol a carcinogen." The telco counsel contended that 93 per cent of the vehicles in Delhi were petrol-driven and benzene emissions from petrol were as carcinogenic as particulate matter from diesel.

Nariman went on to point at Jagdish Khattar, joint managing director of mul, and a member who represents the automobile association in the epca, by saying that his interests lay in "petrol". Implying that the epca was biased, Nariman even alleged that the larger interest of the industry was not adequately represented in the epca as its recommendations had been largely focused on diesel vehicles while overlooking that mul, the largest manufacturer of petrol vehicles in India, were not even meeting Euro i norms.

Maruti's lawyer, Kapil Sibal, clearly unprepared for this assault, was unable to reply. This opened the floor to other prominent lawyers. Harish Salve mentioned that epca was working on diesel.

P Chidambaram, the former finance minister, present in the court to defend fiat argued for more time to meet tighter norms. "The Indian car industry was in any case going to be Euro i compliant by April next year, and it would be impossible for the car companies to change technologies overnight." The bench retorted that fiat sells Euro ii compliant cars in Europe, so why were they not conforming to these norms in India.

The judges were in no mood to relent to Chidambaram's concern for how the new norms might hurt the Indian economy and the industry. The bench cut him short, "If we have to choose between economy and public health -- we will choose public health."

Ironically, Chidambaram as a finance minister during 1996-1997 had initially showed keen interest in a proposal from the cse to provide fiscal incentive to encourage industry to speed up the phasing-in of tighter norms, but backed out at the last moment from including it in the Union budget. "Clearly, there is a lesson for them in this. If industry and the government had then taken this matter more seriously and developed a strategy to speed up implementation of tighter emission norms, this sudden jolt could have been avoided," says Anumita Roychowdhury, a cse campaigner.

What stuck out as most incongruous was the way the additional solicitor general, K N Rawal, present in the court to represent the government, jumped to industry's defence demanding time to consider the feasibility of the Court's order. Rawal pleaded that the matter be referred to all the ministries such as the ministry of surface transport, industry and finance to consider the feasibility of the order. "Why not ministry of health?" asked Justice B N Kirpal, visibly annoyed by Rawal's contention.

But the seriousness of the bench came out loud and clear when Justice B N Kirpal asked why the government was asking for more time when the air pollution problem has continued to grow worse despite the Environment Protection Act which was enacted way back in 1986.

The industry threw another spanner in the works of petrol that could delay matters. The court was in no mood for this. In pin drop silence, the judges pronounced their order. They not only restricted diesel cars, but also petrol and advanced norms. The issue of the ban on diesel cars has been referred back to the epca. The court has given epca eight weeks to file its report after meeting with industry representatives.
Worst-hit MUL was the worst-hit by the Court orders. It appears that telco had decided that if it were to face serious constraints, then it will also take its arch competitor, Maruti, down with it. Since Maruti does not comply with the Euro i standards, its registration has already been stopped in the ncr. According to Arun Arora, deputy manager, public relations, mul, about 30 per cent of the sales of Maruti is in ncr.

Ironically, all car manufacturers are now claiming that they can meet the advanced norms by the year end. For the first time, the automobile industry is going to compete on the basis of the emission levels of their product.

Speculation and reactions abound in the automobile industry and the market regarding the court orders. telco's Indica and Daewoo's Matiz comply with Euro i norms. An official in telco's Nehru Place office, on condition of anonymity, said that not only Indica, but other telco vehicles like the Sumo, Sierra and Safari also meet Euro i standards. "We will meet the Euro December 1999," he said.

Even though the harmful effects of diesel are well-known, he still insisted that telco is a green company. Officials of Premier Automobiles Limited (pal) in Delhi refused to comment while Daewoo is reportedly planning to triple its production.

"The government must ensure that more stringent emission standards are enforced to push the automobile industry to firm up a proactive agenda to speed up production of clean vehicles," says Roychowdury. "If emission standards are lax and governance is weak, then not only Indian car manufacturers like telco will be encouraged to produce polluting vehicles, but even multinational car manufacturers like us-based ford, who otherwise meet more stringent emission standards back home, will take advantage of lax norms in India and dump polluting diesel technology on us," she adds. "Even multinationals cannot be trusted to produce clean technology unless we have laws in place."

In the event of quota restrictions on cars, market watchers fear an increase in two-wheeler population. Says Shrikant Gupta of Delhi University: "To avoid the trouble of getting a car registered in Delhi, people might opt for two-wheelers, which are more polluting than the four-wheelers."

The other fear is of trans-migration of vehicles. "This is the reason why these orders should be implemented all over the country. It is not that other places are not suffering from air pollution," says Sunita Narain, deputy director, cse (see box: Legal battle). "We do not have that kind of resources and personnel to check all vehicles. Even if this happens, it will stop as soon as all the automobile manufacturers start complying with the orders," says M P Tyagi, special commissioner, transport, Delhi government.

Tyagi says the process for implementation of the court directives are already underway. "The implementation has to be coordinated in all the four states that the ncr covers -- Haryana, Uttar Pradesh, Rajasthan and Delhi. A method has been worked out for implementation of the orders," says Tyagi.

"We are thrilled by the court ruling. But the issue of stopping dieselisation of private vehicle fleet to control emission of toxic small particulate matter still remains unresolved. We will continue our campaign for a complete ban on diesel cars," says Roychowdury.

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