When public institutions in Delhi, such as the Pollution Control Board, failed to ensure clean air for its citizens, the National Green Tribunal (NGT) emerged as one of the crucial actors in the city’s efforts to combat its deathly air quality.
The NGT has been criticised in the past for placing excessive reliance on technocratic and market solutions for environmental problems.
It is important to note that the NGT’s combination of judicial and expert members expedited proceedings and relatively relaxed rules of procedure and evidence resulting in practically-viable environmental legal decisions – such as its order on 11 November, which came down heavily on illegal crop burning and polluting construction activities in the National Capital Territory (NCT).
The odd-even scheme directed as part of this order has gained considerable public attention.
After the NGT’s order on Saturday, the Delhi government declared that it would not comply with the order requiring the implementation of the odd-even scheme for vehicles in NCT– though they are expected to file details of a new plan in court on Tuesday, 14 November.
The NGT had ordered that the odd-even scheme be implemented, saying “when the PM10 and PM2.5 crosses values of 500 µg/m3 and 300 µg/m3 respectively, it shall be mandatory for NCT Delhi and all its government departments to implement odd and even without default”.
An exception would be made in the case of CNG vehicles, emergency service vehicles, public service vehicles, and government vehicles for exempted dignitaries.
Clean Air or Women’s Safety? Your Choice!
The Delhi government has decided against implementing the scheme citing that the NGT’s lack of exception for two-wheelers and women, puts additional strain on public transport machinery and jeopardises women’s safety, and are planning on arguing the same before the tribunal next week.
It is important to note that the NCT of Delhi was the party that argued for the imposition of the odd-even scheme before the NGT. The NGT’s acceptance of this suggestion, albeit in a more extreme form than was intended by the Delhi government, has led to this apparent see-sawing of the scheme.
The NGT, although not the exclusive forum to adjudicate environmental matters, has gained prominence for being an effective avenue for environmental justice due to its relatively faster timelines, and the presence of expert members with advanced technical expertise on environmental issues.
A Case for Air Pollution
In its orders over the past week in the Vardhaman Kaushik Vs Union of India & Others case on air pollution, the tribunal itself has repeatedly emphasised the negligible compliance by the various pollution control boards on ensuring the prescribed air quality for citizens, and it recognised that the odd-even scheme was being used as an emergency, retrospective measure, as opposed to being preventive.
In its order on 13 November, the NGT stated that the NCT has argued that under the Graded Response Action Plan (GRAP), the odd-even scheme “should be implemented automatically whenever PM10 and PM2.5 increases 500 µg/m3 and 300 µg/m3 respectively for 48 hours”.
For reference, the maximum permissible air quality index for PM10 and PM2.5 are 100 and 60 respectively according to the Air Quality Index for India.
The NGT Act (2010) gives the tribunal the power to determine its own rules of procedure and evidence, not bound by the Code of Civil Procedure but shall be bound by the principles of natural justice, and specifically states that the NGT shall apply the principles of sustainable development, polluter pays principle and the precautionary principle while passing its decisions.
These principles originated as part of international environmental law, and were eventually codified into domestic law through the enactment of the NGT Act.
This freedom under the law, is what allows the NGT to take decisions regarding environmental issues, while interpreting statutes regarding the same, but guided by these overarching principles.
The decision by the NGT to direct that the Delhi government implement the odd-even scheme is in accordance with these principles.
Its decision to not exempt two-wheelers was owed to their 46 percent contribution to air pollution levels, and can be classified under the application of the principle of ‘sustainable development’ as understood under Indian case law.
Lack of ‘Women-Friendly’ Public Transport
While the NGT, with its power to adjudicate upon environmental questions, directs a plethora of solutions, including more intensive implementation of the GRAP, ban on construction and industrial activity causing emissions, and ban on crop burning with continual compliance of these directions, it can result on compromising certain social interests as in the case of women’s safety, despite making exceptions for emergency services.
However, the fact that the Delhi government, or any public body cites its inability to effectively tackle crimes against women as a reason for non-compliance with environmental orders is a pitiful state of affairs.
However, the Delhi government’s refusal to implement the scheme in the interest of women’s safety, despite arguing for the odd-even scheme to be put in place, is merited.
The Thomas Reuters Foundation in 2014, in its study of 16 global world capital cities, ranked Delhi the 4th most dangerous transport system for women commuters.
Caught Between the Devil and the Deep Blue Sea
A Report by the World Resources Institute in 2015, reiterated a study by Jagori, that 51.4 percent of women surveyed in Delhi, reported that they were sexually harassed while using public transport. Therefore, due to an institutional and societal failure of epic proportions, Delhi is caught in a catch-22 situation, where ensuring the use of public transport to improve air quality is the trade-off for women’s safety in public spaces.
Moreover, the odd-even scheme itself has questionable potential for being a long-term solution, because drivers tend to circumvent such arbitrariness by buying multiple, less expensive and often less efficient vehicles with both number plates, leading to a possible increase in pollution levels.
Offering to make public transportation free, like the DTC did last week, is a more efficient option to positively incentivise its use, albeit significantly expensive.
However, if the push towards public transportation is to truly succeed, the Delhi government must be granted the necessary funding to invest in a modern and robust transportation fleet. An affidavit reveals that there is a requirement for 11,000 new buses to supplement its current fleet of 3,951, of which over 20 percent are obsolete and may be contributing to pollution.
What Delhi Needs – A Breath of Fresh Air
Therefore, it is crucial to have effective crime prevention mechanisms such as hiring more female employees in the transport system and eventually designing the city in way that prioritises the rights of pedestrians, cyclists, public transport and private vehicles.
As our capital struggles to breathe, any and every solution to this crisis deserves to be explored, this cannot continue to be an infinite loop when we clutch at straws only when the smog seeps in through our glass houses.
The wealthiest individuals must invest heavily in utilising public transport systems, because air is a public good, and its worst victims are often those who contribute relatively the least to its pollution.
It is crucial to continuously question and protest against permits being granted to polluting industries in the first place. We must also question the lack of official action against complaints to truly ensure that we shift from a panic-induced regulatory regime to a truly precautionary one.
(The author is Research Assistant, Chair of US American Law, Universität zu Köln, Candidate for International Masters in Environment Science and is an advocate (Bar Council of Maharashtra and Goa). The author tweets @mrinshin. The views expressed here are the author’s own. The Quint neither endorses nor is responsible for the same.)
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