Clearing the Air: How Delhi Broke the Logham on Air Quality Reforms

Like many other cities straddlingthe divide between the devel-oped and developing world, the

capital city of Delhi—which includesNew and Old Delhi and its surroundingmetropolitan area—has suffered fordecades from declining air quality. Inthe early 1990s, despite a plethora of environmental laws and numerousgovernment-initiated policies to combatpollution, India’s capital gained thedubious distinction of being the fourth-most polluted city in the world.1

In recent years, however, there havebeen some significant changes. Inresponse to a public interest lawsuit filedin 1985, the Indian Supreme Courtissued a series of orders, the best knownof which required tens of thousands ofcommercial transport vehicles to switchto compressed natural gas (CNG) ratherthan use more highly polluting fuels.Under the Court’s supervision, Delhi hasbeen able to break through seeminglyimpervious bureaucratic and institution-al logjams to put in place a number ofmeasures to reduce harmful emissions.

The city’s apparent progress inimproving its air has been noted by itsneighbors in the developing world, many

of which face the same challenges: highlevels of pollution and disappointinglegal and policy implementation. Similarlawsuits have been filed in Pakistan andBangladesh, and Malaysia, Indonesia,Nepal, Sri Lanka, and the Philippines,among others, have identified the Delhiexperience as a model.2

A story that has been commonlyrepeated in India and around the regionis that M. C. Mehta, a lawyer and headof a local nongovernmental organization(NGO), filed a “public interest litiga-tion” before the Indian Supreme Courtinvoking fundamental constitutionalrights against the failure of the govern-ment to protect Delhi’s environment. Anactivist Supreme Court took chargewhen legislative and regulatory agencieswould not. One of several remediesimposed by the Court was the conver-sion to CNG. Often the impression is leftthat much of this happened in a veryshort time.

Is the story so straightforward? Whatspecifically was the role of the SupremeCourt in the effort to put the reins onenvironmental pollution in Delhi, anddid it act alone? Was it appropriate for ajudicial body to make environmentalregulatory decisions that are normallyreserved to legislators and specializedregulatory bodies in the executivebranch? If, as is commonly assumed, theIndian Supreme Court did play a centralrole, what are the long-term conse-quences when judicial bodies make andimplement regulatory policy? Whatimpact will this have over time on gov-ernance structures in India and on futureefforts to regulate pollution? Will theCourt’s efforts embolden regulatorybodies or relieve them of the charge todevelop their own competence?

The short answer to the first of thesequestions is that the Supreme Court didplay a central role, especially when itdirected the conversion to CNG. But the

Clearing the Air: How Delhi Broke the Logjam on Air Quality Reformsby Ruth Greenspan Bell, Kuldeep Mathur, Urvashi Narain,and David Simpson

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This article was published in the April 2004 issue of Environment.Volume 46, Number 3, pages 22-39. Posted with permission.© Heldref Publications, 2004. www.heldref.org/html/env.html

VOLUME 46 NUMBER 3 ENVIRONMENT 2524 ENVIRONMENT APRIL 2004

Court did not act alone, nor could it have.Most of the policies attributed to the Courtoriginated in the government, but the gov-ernment apparently lacked the politicalwill to undertake the bold action necessaryto carry out the programs it hadannounced. When the government did notfollow through, the Court forced it toimplement its announced policies and, insome cases, to develop new ones.

The Court’s authority to issue orders tothe government that would be obeyedderived from its unique status in Indianpublic life: It was widely viewed as anindependent, relatively uncorrupted pro-tector of fundamental rights in Indiansociety. But the Court also acted under thewatchful eye of an active NGO communi-

ty and a free press, whose actions in turnhelped create public awareness that putpressure on the government.

None of this deliberation or decision-making happened overnight. Issues werechewed over and worked through for along period of time. The 1998 CNGdecision illustrates this well: Com-pressed natural gas was being consideredas an alternative fuel for the transporta-tion sector as early as 1988. Suchlengthy decision processes seem toreflect the extraordinary difficulties ofintroducing a new technology, but theCNG case was further extended by a

continuing battle that raged even afterthe Court issued definitive orders.

Critics argued that the Court-drivendecision process led to outcomes that weremore costly and inefficient than Indiacould afford. Ideally, it may have beenmore cost-effective to set vehicular andfuel standards and leave the decision ofwhich technology to use to the consumers.But the Court had evidence that fuel adul-teration was rampant and politicallyimpossible to check. CNG’s gaseousnature made adulteration impracticable. Inview of the institutional realities in India,CNG thus became, by process of elimina-tion, the most efficient option.

Whether the Court’s actions constitutedgood government is a very difficult ques-tion to answer. Its actions cannot be under-stood outside the context of India’s history(see the box on page 25) or legal frame-work for managing environmental pollu-tion (see the box on page 26). However, itcan be said that the Court acted with rela-tive restraint. Its reliance upon independentcommittees was admirable and a goodmodel for future such deliberations that areplaced before a court of law. Perhaps themost difficult question is whether courts—rather than technical experts in the execu-tive branch—should be making thesekinds of decisions at all. In the case ofDelhi’s pollution, the Indian SupremeCourt apparently was the only authorita-tive body willing to take these hard deci-sions and make them stick. One can alsospeculate that perhaps something is at leastbetter than nothing. However, the jury isout on whether the Court’s pervasive pres-ence ultimately will encourage firmerfuture actions by environmental regulators.

Delhi’s Pollution Load

The proliferation of laws in the mid- tolate 1980s apparently had little impact onthe actual state of pollution in Delhi. Inparticular, air quality began to decline inthis same period. This is a common pat-tern: Practically every country in the worldtoday has environmental laws, but mosthave very poor compliance. A 1995 WorldBank study estimated that the annualhealth costs of ambient air pollution in

The Indian Supreme Court’s actionscannot be understood outside of thecontext of Indian history. India becameindependent in 1947. Its governmentstructure included a Supreme Court andthe British tradition of Parliamentarysupremacy. The constitutional draftershad to decide whether the constitutionwould contain a declaration of funda-mental rights to assure proper treatmentof minorities and safeguard againstarbitrary rule. The final product enu-merated fundamental rights and duties.1

The founders of India contemplated aSupreme Court best characterized as atechnocratic body rather than an arm ofthe government for social policy. Sincethat early period, the Indian judiciaryhas gone through a fascinating evolu-tion in which it has become a uniqueadjudicative body that considers a widerange of social issues under the rubricof protection of constitutional funda-mental rights.

Initially, Parliament could reverseany court decision with a constitutionalamendment. But in the mid-1960s, anarrow Supreme Court majority nar-rowed that Parliamentary right. Thelegislature could not take away orabridge fundamental rights to life andpersonal liberty as articulated in Article21 of the constitution.2 In 1975, inwhat would prove to be a watershedevent in the evolution of this doctrine,Prime Minister Indira Gandhi attempt-ed to suppress the political movementagainst her regime and to change theconstitution to whittle down checks onthe power of the executive. The Court’sSolomon-like response (limiting Parlia-ment’s ability to overrule the Court butupholding Gandhi’s election) remainscontroversial to this day.3

Eventually, the Court extended funda-mental rights to include the right to aclean environment. The doctrine ofCourt-protected fundamental rightsadvanced in a way that gave the Courtthe last say on the basic structure of theconstitution.4 Despite the huge powerinherent in this authority, the Court hasused these powers sparingly. In 25 years,it has struck down provisions of consti-tutional amendments in only five cases.

The Court also liberalized the rulesof standing (who can bring a case to

court) and justicability (what issues a court will determine). Thus, socialactivist organizations or individualscan litigate on behalf of the poor anddisadvantaged, and citizens can com-plain about bad governance or environ-mental degradation. The Court allowsfundamental rights issues to be broughtto it in unusual ways from a Westernperspective. For example, a letter froman ordinary citizen can start a case.The only restriction is that the peti-tioner “not be a busybody or meddle-some interloper.”

The distinguished Indian legal writerS. P. Sathe calls this a “counter-majori-tarian” check on democracy in supportof unpopular causes and politicallypowerless minorities. Social actiongroups use this type of litigationstrategically when political mobiliza-tion or direct agitation alone does notyield results.5

In many nations, the highest court is principally an appellate body thatreviews, affirms, or reverses the deci-sions of lower courts. When fundamen-tal rights are involved, however, theIndian Supreme Court sits as a court ofinitial jurisdiction, essentially a trialcourt. In this capacity, as in the Delhipollution issues, the Supreme Courtreceives factual affidavits from the par-ties and is deeply involved in thedetails of the matter before it.

In practical terms, the SupremeCourt’s “one-stop shopping” can reducethe time in which significant issues areadjudicated. On average, litigation inIndian lower courts—not includingtime for appeals—takes 15 years tocome to closure.6 The Supreme Courtand other high courts take relativelyless time, although a petition like M.C.Mehta’s, which asked for wide-rangingrelief, can take a long time to resolve.

How did a court come to decide mat-ters of social policy? Sathe posits thatthe Court increasingly came to be seenby the public as the defender of ordi-nary citizens against the abuse of pow-ers by ministers and administrativeofficials. This perception of indepen-dence is assisted by a relatively disin-terested appointment and tenureprocess.7 But Sathe also admits thatmany of the Court’s decisions are

essentially political, that “the Courtperforms the political function of legit-imizing or censuring the acts of theother organs of governments.”8

1. The discussion in this section relies heavilyon S. P. Sathe, Judicial Activism in India: Trans-gressing Borders and Enforcing Limits (Oxford,UK: Oxford University Press, Second Edition,2002).

2. Fundamental rights are contained in Part IIIof the Indian Constitution. Unlike, for example,the U.S. Constitution, India’s Constitution isdetailed and specific, which is why amendmentsare necessary. About 81 amendments have beenpassed in the past 50 years. See Sathe, note 1above, page 64. In comparison, the U.S. Constitu-tion is much more general and very difficult toamend (27 amendments in more than 200 years).

3. See Sathe, note 1 above, pages 8–9 and73–76. In 1975, the election of Indira Gandhi tothe Indian Parliament was set aside by a state highcourt on grounds that she had “taken recourse to a corrupt practice” under the election law. Sheappealed to the Supreme Court, which upheld thedecision allowing her to continue as prime minis-ter without voting rights. On 25 June 1975, Gandhideclared an emergency under article 352 of theConstitution and caused a constitutional amend-ment to be passed to prevent scrutiny of her elec-tion by the Court. The clause substituted a newlaw that made Gandhi free from liability with ret-rospective effect and also provided that her elec-tion would continue to be valid even if the Courtmade a contrary decision. In the subsequent litiga-tion, the Court upheld the election but struck downthe amendment.

4. See Sathe, note 1 above, page 18. Indeed, theCourt itself has characterized its role in this way.In Basheshar Nath v Commissioner, Income Tax,Justice Subba Rao “. . . held that persons could noteven voluntarily waive their fundamental rights.[‘it is the duty of this court to protect [the] rights[of the economically poor, educationally backwardand politically not conscious] against them-selves.’]”

5. See Sathe, note 1 above, page 18.

6. See S. Divan and A. Rosencranz, Environ-mental Law and Policy in India: Cases, Materialsand Statutes (Oxford, UK: Oxford UniversityPress, 2nd Edition, 2002), footnote 49 at 123.(“For example, in the Bombay High Court thedelay in a writ petition is 6 years compared to over 15 years for a suit.”)

7. Judges come from various regions and com-munities. Religion and gender are considered alongwith professional expertise. Once appointed, a jus-tice cannot be removed except for proven misbe-havior or incapacity and unless charges against him are found valid by a committee of judges andjurists. Removal requires a resolution passed ineach house of parliament by a majority of the totalmembership of that house, and by a majority of notless than two-thirds of members present and voting.

8. The “legitimacy of the Court depends upon[the public belief] that its decisions are principled,objective and just.” Sathe, note 1 above, page 22.

THE ROLE OF INDIA’S SUPREME COURT IN PUBLIC LIFE

Under pressure from India’s SupremeCourt, authorities in Delhi enacted a rulethat all buses must run on cleaner-burning compressed natural gas (CNG).

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dards that were generally considered inad-equate, easily manipulated, and often sim-ply fraudulent.

Other efforts to limit vehicular pollutionwere either slowed or watered down to thepoint of being ineffective. In 1993, theMinistry of Environment and Forests(MoEF) notified (announced) the first setof vehicular mass emissions standards forIndia. MoEF was working from recom-mendations made by a distinguished cen-tral government–appointed committee,established in April 1991 and headed by H. B. Mathur, a professor at the IndianInstitute of Technology Delhi. The MathurCommittee was given directions to recom-mend vehicular mass emissions norms thatwould be put into place in 1995 and 2000,but the emissions standards that wereeventually notified were a diluted versionof the committee’s recommendations andmore lenient than an initial proposal forconsideration put up by the Central Pollu-tion Control Board. Under pressure fromthe automobile industry, MoEF extendedthe deadline for the diluted standards for ayear, to April 1996. Press reports from thisperiod indicate that the automobile indus-try continued to lobby to further relax theemissions standards set for 2000.

When the Supreme Court began to pushthe government to act, however, it did notstart with vehicular pollution. The firstinterventions by the Court were to forcerelocation of hazardous, noxious, heavy,and large polluting industries, also called“category H,” from Delhi. The relocationpolicy came out of the second master planfor Delhi, a planning document that wasapproved by the central government inAugust of 1990.8 This plan identified cate-gory H industries for removal from Delhiwithin three years, by 1993. The deadlinepassed but the industries stayed put. Withthe Court’s persistence, category H firmswere finally moved by 1997.

With respect to vehicular pollution, theCourt managed three separate reformefforts in the time period 1994–1998, eachderived almost entirely from policies thathad originated in the government but haddied on the vine. These were the phaseoutof leaded gasoline, introduction of pre-mixed fuels for two-stroke engine vehi-

cles, and the phaseout of 15-year-old com-mercial vehicles. The policies regardingleaded gas and premixed fuels met withsome resistance, but were adopted withrelatively few problems.

The history of the phaseout of 15-year-old vehicles, however, was more troubledand was a good example of the complicat-ed back-and-forth between the Court andthe government. In October 1997, aftermuch prodding from the Supreme Court,the Delhi government announced that 15-year-old and older commercial vehicleswould be phased out by March 1998. Butonly four months after this announcement,facing parliamentary elections and pro-

tests, the Delhi government withdrew thispolicy initiative and said it would make an“objective” decision later. On 28 July1998, the Court ordered that the previous-ly announced policy be implemented by 2October 1998. In response to a plea fromthe Delhi government, the Court laterextended the deadline to 31 December1998—at which date these vehicles werein fact phased out.

The apparent perception of certainDelhi NGOs was that these amounted onlyto piecemeal actions and that pollution wascontinuing to rise. In 1996, the NGO Cen-

ter for Science and Environment (CSE)published the book-length report SlowMurder: The Deadly Story of VehicularPollution in India.9 CSE’s report made thecase that Delhi’s high pollution was caus-ing severe health impacts and argued thatthe fault lay in backward vehicular tech-nology and maintenance, poor fuel quality,and virtually nonexistent traffic planning.

Whatever the reason or motivation—two observers believed it was in directresponse to the CSE report, but a justicestated in an interview it was an indepen-dent decision10—on 18 November 1996,the Supreme Court issued a notice on itsown initiative. It told the Delhi govern-ment to submit an action plan to controlthe city’s air pollution. In response, theDelhi and central governments developedtheir first comprehensive plans (in 1996and 1997, respectively).

The Delhi government’s action plancalled for the construction of a Mass RapidTransport System (MRTS)11 and a high-way bypass around Delhi.12 MRTS woulddeal with the growing need for transporta-tion and help reduce the use of privatevehicles. The bypass would reduce expo-sure to out-of-state trucks and buses forcedto pass through Delhi. The plan also calledfor improved vehicular technology andfuel quality, increased use of CNG andpropane (and the financial incentives andconstruction of necessary infrastructure tomake CNG and propane viable), restric-tions on excessively polluting in-use vehi-cles, further landscape “greening” ofDelhi, and a program for public awareness.Once again, with one exception—a regula-tion for stricter vehicular emissionsnorms—good intentions faded into badpractices. In early 1997, the Delhi govern-ment announced that it would introducenew vehicular norms in the capital in 1998instead of 2000. The new norms were noti-fied by the central government in March1997. Aside from that, however, the Delhiplan was ineffectual. Little was done toimplement the rest of it.

On 3 December 1997, MoEF issued itsown pollution plan for Delhi. The WhitePaper on Pollution in Delhi with an ActionPlan outlined measures to deal with vehic-ular, industrial, water, and noise pollution,

26 ENVIRONMENT APRIL 2004

Delhi alone were on the order of 3.5–14billion Indian rupees (Rs.), or approxi-mately US$100–400 million.3

Industrial, residential, and transporta-tion sources all contribute to the problem.But in recent years the largest share of theresponsibility—60–70 percent of totalpollution—has been attributed to trans-portation, reflecting Delhi’s considerablepopulation growth.4

When India won independence fromGreat Britain in 1947, Delhi’s populationwas about two million. Transportationwas largely in the form of foot, bicycle, oranimal-drawn conveyance. Recent censusdata shows the population has swelled to14 million and is still growing. The num-ber of motorized vehicles has also sky-rocketed. In fact, from 1980 to 2000,motor vehicle registrations increasedthree times as rapidly as population.

The mix of vehicles in recent yearsincludes buses, taxis, large numbers oftwo-stroke auto-rickshaws or three wheel-ers (small vehicles used as taxis or forlight hauling), two-stroke scooters, andprivately owned automobiles. Buses areused so heavily that Delhi was ranked in

the world’s top 20 of public transportationin 2002.5 But, as in the West, everyoneaspires to own his or her own vehicle, andincreasing affluence means that many canachieve this goal.

The air quality deterioration is usuallyattributed not just to the number of vehi-cles, but also to the way they have beenbuilt, maintained, and fueled. The vehi-cles propelled by two-stroke engines illus-trate the public policy challenge: Suchengines resemble those of highly ineffi-cient lawn mowers, regularly producingoily clouds smoke.6 Also, these vehiclesaccount for 70 percent of the total vehiclepopulation in Delhi.7

Forming Air Pollution Policy

Concerned with growing pollution froma variety of sources and a governmentapparently disinclined to deal with thisproblem, M. C. Mehta asked the SupremeCourt to protect fundamental constitution-al rights by, among other things, directinggovernment ministries and departments toimplement the 1981 Air Act in Delhi. Inresponse to Mehta’s petition (the portion

regarding air quality—Mehta also askedfor relief related to water pollution), theCourt began in 1986 to press Delhi’sadministration to explain what it wasdoing to reduce air pollution. Responses tothe Court’s questions were filed in theform of affidavits.

Sometime in the mid-1980s, quite pos-sibly in response to the Court’s pressurefor answers, or perhaps on their own ini-tiative, India’s central government (alsoknown as the Union government) and thegovernment of the National Capital Terri-tory of Delhi (the Delhi government)began to announce a number of new poli-cies. However, none of these had muchtangible impact. For example, in 1989, thecentral government said it would raise thepenalty on owners of polluting vehicles.This initiative failed because the Delhigovernment lacked emissions testingequipment to implement the new penal-ties. In 1990, the central government triedagain when it announced vehicularexhaust emissions standards for smoke,visible vapor, grit, sparks, ashes, and cin-ders. These failed for the same reasons:lack of testing equipment and testing stan-

It is clear that India has not lacked forenvironmental authority to attack its grow-ing pollution. The authority starts in theIndian constitution. Part XI establishes therelationship and relative authority of theparts of India’s government. Constitution-ally, the central, or Union government ofIndia has legislative authority over func-tions such as defense, foreign affairs,interstate transportation and other issuesthat are considered to transcend stateinterests. States have exclusive power tolegislate on local issues. A “ConcurrentList” enumerates matters for which centraland state legislatures have overlapping andshared jurisdiction. The city of Delhi is a“Union Territory,” one of seven territoriesadministered by the Union government. In1991, the 69th Constitutional amendmentgave Delhi a Legislative Assembly.1

India’s earliest air pollution legislation,the 1981 Air (Prevention and Control ofPollution) Act, is rooted in the central

government’s power to make laws imple-menting decisions taken at internationalconferences, in this case India’s participa-tion at the United Nations Conference onthe Human Environment held at Stock-holm in 1972.2 The 1981 Air Act createdcentral and state pollution control boardsand gave them authority over air pollution.The initial concept of a pollution controlboard was found in a 1974 act, but thecentral board set up in that act was limitedto water issues. The 1981 act broadenedthe discretion of the Central PollutionControl Board (CPCB) to “lay down stan-dards for the quality of air”; “advise theCentral Government on any matter con-cerning the improvement of the quality ofair and the prevention, control, or abate-ment of air pollution”; and “perform suchother functions as may be prescribed.”3

In the mid- to late 1980s, the IndianParliament enacted a number of other lawsthat gave the government further authority

to enact policies to curb air pollution.These included the Environmental (Pro-tection) Act of 1986, the 1987 Air Actamended, the 1988 Motor Vehicles Act,and the 1989 Central Motor VehicleRules. The 1988 Motor Vehicles Act andthe 1989 Central Motor Vehicle Rulesauthorized the government to set standardsfor vehicular emissions for manufacturersand users.

1. See “Delhi,” Discover India,http://meadev.nic.in/states/del/del.htm.

2. See S. Divan and A. Rosencranz, EnvironmentalLaw and Policy in India: Cases, Materials andStatutes (Oxford, UK: Oxford University Press, 2ndEdition, 2002), 244. The delegation of executive func-tions is permitted by Article 258(2) of the Constitu-tion. Article 258(3) requires the central government tocompensate the states for the cost of carrying out thesedelegated functions.

3. It is true that these provisions generally use theword “may” rather than “shall” with a fair inferencefrom this (at least from a U.S. legal point of view) thatthese powers are permitted, not mandated.

INDIA’S LEGAL FRAMEWORK FOR MANAGING ENVIRONMENTAL POLLUTION

Efforts to limit

vehicular pollution

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pointed out the limitation of the govern-ment’s proposals as they did not deal withold, in-use vehicles or the tremendousincrease in new vehicles. EPCA advisedthat more drastic measures were warrant-ed, namely that all taxis and autos switchto clean fuel, all 8-year-old (or older)buses except those on clean fuel bebanned, and, most dramatic, that the entirebus fleet be shifted to a single fuel—CNG—by 31 March 2001. Previous planswould only have encouraged the use ofclean fuels in public transportation. TheSupreme Court adopted EPCA’s recom-mendation as a mandate in its seminal 28July 1998 order.

For the most part, the Court stayedfaithful to the recommendations ofEPCA—on which it relied heavily fortechnical support—and closely tracked itsorders with existing government policy.16

Over the next few years, on EPCA’s sug-gestion, the Court ordered improvementsin emissions standards and fuel quality.But the shift to CNG proved to be the mostcontroversial change.

The Shift to CNG

A review of the record would appearto refute the popular belief that the ideaof using CNG for transportation origi-nated with the Supreme Court. The actu-al circumstances illustrate a complexprocess of vetting solutions and workingout agreements.

In fact, discussions about vehicularapplications of CNG started at least asearly as 1988, growing out of a WorldBank study. At that time, the state enter-prise Oil and Natural Gas Commissionintroduced CNG on an experimental basisin its own vehicles. In 1992, the GasAuthority of India Limited (GAIL) andthe Indo-Burma Petroleum CompanyLimited attempted to popularize the useof CNG in Mumbai, Baroda, and NewDelhi. GAIL floated long-term plans toconvert bus fleets to CNG in cities alongthe Hazira-Vijaypur-Jagishpur pipelines(which did not include Delhi). The Delhitransport authorities converted five busesto CNG in 1992 and, by 1994, claimedthe success of a pilot project for 40 vehi-

cles. In 1994, the Delhi government saidit would open more CNG outlets and pos-sibly subsidize the cost of CNG conver-sion kits.

In the early 1990s, the Saikia Commit-tee also suggested CNG as an alternativevehicular fuel on the basis that it was lesspolluting, cheaper, and more widely avail-able in the country than petrol or diesel. Inresponse, the Supreme Court ordered thatall government cars switch to CNG. Butthe Saikia Committee recommendationsillustrate process obstacles that becameapparent as ideas started to be translatedinto policy and then implemented. Theinitiative short-circuited when it became

clear that there were not enough CNGconversion kits or retail outlets. None ofthe early proposals took into account thesubstantial sequencing problems inherentin introducing new technology: Increaseddemand for CNG could only be satisfiedwith in-place CNG infrastructure in theform of pipelines and filling stations,which were difficult and expensive toinstall, and manufacturers were unlikelyto produce new CNG vehicles withoutdemonstration of increased demand.

Even the Court’s 1998 order did not turnthings around. Despite the clarity of theorder, response to it was not so crisp. In thefirst year following the order, the Delhigovernment gave verbal support to theCourt but little happened beyond a singleCNG bus trial.17 The experience gained inprevious CNG bus trials done in the early1990s was ignored. In part this could beattributed to a change in government: TheIndian National Congress party (the Con-gress party) defeated the incumbentBharatiya Janata Party (BJP) in November1998 to form a new government in Delhi.India’s central government also announcedits support for the Supreme Court directivebut did little to help implement it.18 Verylittle happened for the better part of twoyears, despite EPCA’s continued efforts tomonitor progress in the implementation ofthe Court’s order and coordinate amongdifferent government departments to try tomove the process along.

As the CNG conversion deadlinesapproached and the Supreme Court madeclear the seriousness of its orders, a furiousdebate and blame-game ensued. Some keystakeholders became active for the firsttime. Private bus operators claimed ininterviews that they had not previouslyknown about the litigation or the Court’sorders. In January 2001, almost two-and-a-half years after the Supreme Court judg-ment, they asked the government torequest from the Supreme Court an exten-sion for bus conversion.19 The operatorspointed out that CNG bus technology wasuntested and that CNG filling stationswere not available in adequate numbers.20

The Supreme Court demanded addi-tional affidavits from the parties and askedspecifically what efforts had been made todate to carry out its orders. It told the Delhigovernment to file a status report detailingwhat it had done to implement the conver-sion order; ordered bus manufacturersTelco and Ashok Leyland to report on theirability to manufacture CNG buses; anddirected gas supplier GAIL to report on thenumber of available CNG outlets.21 As itbecame clear that few private operatorshad converted their buses to CNG mode,22

the Supreme Court mandated the Delhigovernment to register only CNG buses


but its main focus was on transporta-tion. Some of its proposals were verysimilar to ideas in the Delhi govern-ment’s action plan: a phasing out of oldvehicles; a possible phaseout of two-stroke vehicles, including two and threewheelers; improved traffic flow; abypass around Delhi; a mass rapid tran-sit system; improved fuel quality; andthe introduction of CNG-fueled buses.In addition, MoEF offered a timetablefor achieving the proposals.

The Court used the release of theMoEF white paper to step up its pressureon India’s central government. Mostimportantly, it directed MoEF to use itsauthority under Section 3(3) of the Envi-ronment Protection Act to establish a

committee to monitor the implementationof the white paper and to suggest otherpolicies to control pollution. This com-mittee was the Environment Pollution(Prevention and Control) Authority(EPCA). This was not the first time thatthe Court had called for a statutory com-mittee: The Saikia Committee, namedafter its chair, retired Supreme Court Jus-tice K. N. Saikia, had been constituted inMarch 1991 to devise a solution for vehic-ular pollution in Delhi.13

However, the emergence of EPCAmarked a major turning point. While theSaikia Committee is widely regarded ashaving been ineffectual, EPCA proved tobe a major powerhouse. It was helped inthis because it had a clear mandate fromthe Supreme Court. The Court neededEPCA because the issues before it werehighly technical and because it was con-cerned that the adversarial nature of thehearings before it rendered them less use-ful. Indeed, one view expressed by aninsider to the process was that EPCA wasestablished directly in response to govern-ment complaints that the Supreme Courtwas overstepping its bounds and makingpolicy decisions in place of the govern-ment.14 Not only was EPCA empoweredto consider policy and provide specific rec-ommendations, but its composition pro-vided a limited forum to feed in the pointsof view of at least some of the relevantstakeholders. While EPCA was admittedlynot broad based, its members includedgovernment officials; a representative ofMaruti, an automobile manufacturer thatwas at the time government owned; and apublic member from the Center for Sci-ence and Environment (CSE).

One of its defining characteristics wasits leadership under Bhure Lal, a well-respected, long-time senior civil servantwho could hold his ground but was also atalented consensus builder. Indeed, EPCAis widely known in India as the Bhure LalCommittee. One source characterized himas a “steam engine” and another from theautomobile industry as a “great man.”15

Perhaps because of Bhure Lal’s leader-ship—and despite the disparate points ofview that committee members represent-ed—EPCA almost always acted unani-mously. EPCA met once a week andreported back to the Court at regular inter-vals. In many meetings, the committeeheard from stakeholders who came to pre-sent data and information or argue for oneposition or another.

From the start, EPCA monitored theimplementation of the Delhi governmentaction plans and MoEF’s white paper. Italso went on to suggest additional policiesand act as a fact-finding body for theCourt. In its first progress report, EPCA

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Motorized rickshaws in Delhi, such asthe one depicted here, often have highlypolluting engines. A move has been madeto phase out these engines.

For the most part,

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tracked its orders

with existing

government policy.


Slow Murder. Thereafter, CSE monitoredthe Court proceedings, brought the issuesinto the public domain, and provided dataand information at critical points. Forexample, during the debate about possibleadulteration of low- and ultralow-sulfurdiesel, CSE deliberately adulterated dieseland sent the sample to labs that weretasked to monitor fuel quality. When thelabs reported no adulteration, the technicaldifficulties of assuring that clean fuelwould stay clean had been clearly demon-strated. But CSE also played an insiderole; the head of CSE at that time, AnilAgarwal, was the “public” member ofEPCA and participated in its deliberativeprocess. (Agarwal died in early 2002; hissuccessor at CSE, Sunita Narain, also tookup his position on EPCA.)

The press covered each step of thisprocess extensively. India has a large num-ber of newspapers, published in English,Hindi, and other local languages. Fromtime to time, newspapers identified pollu-tion problems and criticized the authori-ties for failing to act decisively on them.But in the heat of the CNG battle—whenbus operators went on strike or the numberof available buses was reduced—the presslambasted authorities for inconveniencingcommuters and school-going children.

Some in private industry understoodthe importance of the case and moni-tored it from its relatively early stages.Some retained legal counsel throughoutthe proceedings. Other stakeholders,particularly the private bus operators,were late in joining the battle; theyargued that they did not know earlierabout the litigation or its potentialimpact. When they did engage, they feltfrustrated by their lack of access toEPCA and the amicus curiae—a lawyerappointed by the Court to speak for thepeople. They also felt strongly that theCourt did not appreciate their plight.Eventually, the bus operators hired coun-sel and appeared before the Court, butthey continued to believe that they hadbeen made scapegoats for a wider prob-lem. They argued that the contribution ofprivate buses to pollution was not signif-icant compared to the sheer number ofother vehicles on the roads of Delhi.34

A case can be made that the public atlarge did not have a very strong role in theCourt proceedings or the decision process.To some extent, Mehta and CSE repre-sented the interests of some parts of thewider public, and CSE made efforts tobring the issues into the public domain.However, both were self-appointed, andthey did not engage in public consultationsas they formulated their positions. Noorganized group represented other pointsof view, such as the interests of the bus-riding public. At various points, EPCAtried to inform the public through mediaadvertisements (for example), but none ofthis could be truly characterized as two-way communication. The amicus curiae’sresponsibility was to speak for unrepre-

sented views before the Court and toreview the many affidavits filed with theCourt.35 But there was never a systematiceffort to keep the public at large abreast ofjudicial developments or encourage com-ment on the various options considered,except as reported in the press. However, itshould be said that the Indian Parliamentdoes not have a good track record for pub-lic outreach.

Finally, many of these issues gotcaught up in electoral politics, as the two


(whether old or new) and ordered the pri-vate bus operators to place orders for CNGparts and buses.23 The Court apparentlyfound the availability arguments persua-sive and granted a limited extension to the31 March 2001 deadline. Only groups thathad ordered CNG buses and were awaitingdelivery, especially those that suppliedschool buses, were granted an extensionuntil the end of September 2001.24

But the Court also clearly placed theresponsibility for making the extension asuccess on the Delhi Transport Depart-ment. On 31 March 2001, the governmentreported back that as of 30 March, ordershad been placed for 2,800 new buses andthe conversion of 350 buses.25 Only theseoperators—who amounted to about 25percent of Delhi’s bus force—wereallowed on the roads after 31 March 2001.

As the number of buses on the streetdeclined, frustrated commuters set fire tobuses and threw stones.26 The Delhi andcentral governments again sought to dis-suade the Court from its CNG decision.This time, they asked the Court to define“clean fuel” more precisely. The centralgovernment argued that low sulfur diesel(LSD) should be placed in this category.The Court sent this to EPCA for examina-tion.27 EPCA’s response—that only CNG,liquefied propane gas (LPG), and propanewere environmentally acceptable fuels forDelhi—was highly influenced by evi-dence of rampant and uncontrollable fueladulteration, largely from government-subsidized kerosene.28

Despite EPCA’s recommendation, on13 September 2001 India’s central gov-ernment appointed a committee headedby R. A. Mashelkar, the Director Generalof the Council for Scientific and Industri-al Research (CSIR). The Mashelkar Com-mittee’s assignment was to recommendan appropriate auto fuel policy for thecountry. It was tasked to find a cost-effective, practical, realistic, and achiev-able way to reduce pollution.29 TheMashelkar Committee’s interim reportrecommended that the central governmentshould only decide the vehicular emis-sions standard and not the type of fuel ora particular technology. However, theSupreme Court rejected the Mashelkar

Committee’s recommendations. From theCourt’s point of view, this was too little,too late, and it failed to grapple adequate-ly with the persistent problem of adulter-ation. Nevertheless, the Court agreed toextend the deadline to 31 March 2002,expressing concern about the adequacy ofCNG supplies for the transportation sec-tor and the impacts on commuters.

On 5 April 2002, frustrated by delays,the Supreme Court scolded the Delhiadministration for stalling and issuedanother important order. It directed theimmediate installation of 1,500 CNGbuses and the replacement of 800 dieselbuses per month beginning 1 May 2002. It

did so after confirming with the two mainmanufacturers of CNG-equipped buses,Ashok Leyland and Telco, that this sched-ule was feasible. Furthermore, the courtordered that the transport sector shouldhave priority access to CNG supplies incase of a shortage. Any diesel bus thatignored the order was to be subject to aheavy, daily fine (500 Rs. (about US$12)per day for the first 30 days and 1,000 Rs.(about US$24) after) until compliance.The Supreme Court also fined the central

government 20,000 Rs. (about US$476)for repeatedly delaying the process.30 (Theconverted figures above might be consid-erably larger when calculated at purchas-ing power parity: Experts often calculatethe purchasing power of the rupee to bebetween two and five times higher than itsexchange rate value.31)

On 6 April 2002, nearly 7,000 dieselbuses, about half of Delhi’s bus fleet, wentoff the road because of the SupremeCourt’s decision. However, in the follow-ing month, Delhi received an increasedsupply of CNG, and by December 2002 alldiesel city buses converted to CNG.

It is unclear why the government even-tually got behind the Supreme Courtorders and ensured their implementation.One high-ranking government official saidthe government did so once it realized thatthe Court was serious and was not going tochange its order.32 At this point the govern-ment had the option to implement theorder or face contempt of court proceed-ings. Another reason may be that overallpublic awareness and the public’s supportfor the Court kept the government fromtaking the unpopular step of defying theCourt. The fines imposed (and collected)on public and private operators also helpedto hasten the conversion.

The Role of Stakeholders and the General Public

The entire population of Delhi wasaffected by the Court’s decisions, but a rel-atively small number of stakeholders actu-ally played a role in the deliberations.These included representatives of theNGO community who asserted themselvesinto the debate, some persons and industrygroups affected in one way or another bythe Court’s orders, and opposition politicalparties. But formal consultation with thepublic was not evident from the record,although the need to do so was remarkedon at various times by members of EPCAand by the Court.33

Two NGOs were prominent players.Mehta, the public interest lawyer whostarted this process, played an active role inthe litigation for at least 10 years. CSEentered the fray with the publication of

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Most taxis in Delhi were also convertedto run on CNG.

It is unclear why

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behind the

Supreme Court

orders and ensured

their implementation.

drivers went on strike, backed by BJPparty member Madan Lal Khurana. Theydemanded that the central governmentissue a law declaring existing diesel aclean fuel.36 Taxi and auto-rickshaw own-ers also went on strike.37 Despite intense

lobbying and the threat of civil disruption,the government decided against thiscourse of action. The second examplecame during a very heated debate aboutthe CNG policy. Prime Minister AtalBihari Vajpayee decided not to back the

passage of a law that would allow existingdiesel vehicles to operate on Delhistreets.38 The central government wasunder substantial pressure and could haveargued that it was legal to override theCourt. But in both instances, the govern-

major Indian parties repositioned them-selves at various times. For example, BJP,the opposition political party in Delhi,became spokespeople for transporterunions that were against the introductionof CNG. However, the Congress party,

which was the ruling party at the time,also saw and tried to exploit opportunities,particularly when the bus operators wenton strike and angry commuters burnedbuses and stalled traffic.

None of that should be surprising. The

issues were controversial and the debateheated. What should be noted is the appar-ent tension between political motivationsand an underlying commitment to thesanctity of the Court process. Two exam-ples illustrate this: In one, the diesel bus


many stages of the supply chain: at therefinery gates, during transport to retailoutlets, at retail outlets, and by operators ofdiesel vehicles. Bus operators siphon offsignificant amounts of diesel—which theysell—and substitute kerosene to make upthe difference.46 The evidence before theCourt and EPCA was that kerosene causesrelatively little damage to diesel vehicles,and as a result, owners have no incentivenot to use it (and every incentive to savemoney), even though it is harmful to theenvironment. EPCA also heard allegationsthat even worse adulterants such as wastesolvents had been introduced into trans-port fuels.47

The proponents of the more efficientmultiple-fuel policy were never able toprovide a cogent response to the adulter-ation question. This is ultimately why theCourt chose CNG, a gaseous fuel that can-not be adulterated.

In the end, the experience with PUCand other attempts to regulate pollutingvehicles demonstrated the shortcomingsof policies that might have been moreefficient under more ideal circumstances.It might have been more efficient to iden-tify vehicles that were the worst pollutersthan to make a blanket judgment and banall older models—but it is far easier tofake an emissions test than a vehicle’sage. If increasingly clean fuels were puton the market, they might be a more effi-cient way of reducing particulate emis-sions—but there is simply no way toassure they would not be adulterated withkerosene, so long as kerosene subsidiesremain in place.

Long-Term Impacts on Governance and Regulation

What are the long-term consequenceswhen a court assumes the responsibility tosort out environmental protection optionsand force the government to implement itsexisting policies? On the one hand, it is notunusual for courts in Western democraciesto hold government bodies accountable.Much of the U.S. Environmental Protec-tion Agency’s (EPA) regulatory agenda isset by mandatory duty lawsuits in whichthe federal courts put the government on a

schedule to achieve deadlines set in envi-ronmental laws. Like the Delhi litigation,these cases are generally brought by self-appointed public interest groups.

On the other hand, the Indian SupremeCourt in this case did not merely take thegovernment to task for its failures. Gov-ernment experts essentially became advi-sors to the Court as it drove policy imple-mentation forward. In contrast, the initialrole of U.S. courts is to determine whethermandatory deadlines established in thelaw have been violated and to establishand oversee a schedule in which a federalagency makes progress toward meetingthose deadlines. In the U.S. system, thecourt’s next opportunity to examine theregulations comes after they have been

fully promulgated and, even then, the stan-dard of review is generally whether EPAhas been arbitrary and capricious in itsimplementation of the relevant law.

In the Indian case, if society increasing-ly looks to the Court rather than to thegovernment to make environmental policydecisions, it is necessary to ask if this is agood outcome. The reality in India seemsto be that the bodies charged with envi-ronmental regulation lack the political willto effectively implement policies, no mat-


ment chose not to confront the SupremeCourt and let the policies in questionstand, possibly because public awarenesson this issue made such a confrontationunpopular. This may provide insights intothe larger framework within which all ofthese institutions work in India, includinga basic respect for rule of law and a disin-clination to cause damage to the very gov-ernmental fabric.

Judging the Efficiency of the Policies

One of the strongest attacks on the CNGdecision is that it is not economically effi-cient to force all commercial vehicles touse a single technology. The MashelkarCommittee and critics such as RanjanBose, senior fellow at The EnergyResearch Institute (TERI), and DineshMohan, Henry Ford Professor for Biome-chanics and Transportation Safety at theIndian Institute of Technology Delhi,argued for a multiple fuel policy in whichprivate vehicle operators would decidewhich technology to use as the most cost-effective way to come into compliancewith government requirements. In theirview, the government’s role would be con-fined to enforcement. They expressed pub-licly and in interviews that the Court hadmade a substantial mistake on this issue.

But criticism of the choice of a singletechnology was not confined to Indianexperts.39 The Indian press reported thatWorld Bank experts expressed skepticismabout the CNG decisions. A World Bankstudy warned about the importance offavorable fuel-pricing policies, the devel-opment of suitable infrastructure, and thedangers of retrofitting older vehicles.40

And still another argued that the solutionto vehicular pollution problems is “sectorreform” by eliminating subsidies thatmotivate adulteration of clean fuels withcheaper ones, for example.41

However, the evidence shows that fun-damental reforms like removing subsidiesfor kerosene were not politically feasible,certainly not in a predictable timeframe. Inany case, conditions in Delhi were far fromideal and not conducive to solutions thatmight have worked in more developed

countries. Research has demonstrated thatIndian environmental regulators were fullyaware of the many approaches that couldhave been taken to control vehicular pollu-tion and had, in fact, tried a number ofthem. However, few of these efforts borefruit. India had a particularly hard timemounting effective enforcement. In theend, it was this experience that pushedEPCA and the Court to the CNG solution.

Efforts to crack down on heavily pollut-ing vehicles using inspections were under-taken sporadically for at least 15 years.There have been tough fines on the bookssince 1988, and at various times evenstiffer penalties were threatened, including

impoundment and permanent confisca-tions of vehicles (following multipleoffenses).

The Pollution Under Control (PUC)program illustrates the limitations of anapproach designed for better in-use per-formance. The Central Pollution ControlBoard and the Ministry of Road Transportand Highways set up this program to iden-tify the most heavily polluting vehicles,then require that they be repaired orretired. The difficulty is that PUC tests are

easily manipulated.42 And, it is arguablyeven easier and more straightforward sim-ply to bribe the tester.43

The Court and its advisors could turn toother fuel-policy experience to informtheir policy deliberations. The experienceremoving lead from petrol and the intro-duction of premixed fuels demonstratedthe need for simplicity in regulatorychange. In both cases, while the technicalchallenges of making the change were eas-ier to overcome than the decision to shiftcommercial vehicles to CNG technology,the effort to achieve them was neverthelessconsiderable. Lead was removed fromgasoline by early 2000 under Court order.This was a success story but some prob-lems were encountered that foreshadoweddifficulties in introducing CNG into Delhi.At some stages, there were not enough fill-ing stations pumping unleaded petrol tomeet the growing consumer demand. Thisencouraged some motorists to disable theircatalytic converters.44

The second experience was the require-ment that two-stroke engines use premixedfuel (petrol mixed with the proper 2 per-cent lubrication oil). The purpose of thiswas to reduce the problem of excess lubri-cant, which is highly polluting. Many two-stroke vehicle owners were adding asmuch as 5 percent oil—two-and-a-halftimes the appropriate amount—whichcaused significant pollution. Because two-stroke engines powered about two-thirdsof Delhi’s vehicle fleet in the mid-1990’s,premix was an important reform.45 Thiswas not only a much easier change tomake than the switch to CNG, it actuallybenefited vehicle owners: Excess use of oilcauses deterioration of vehicle perform-ance. Because the economics of introduc-ing new technology were largely favorableand compliance with the program did notrequire vehicle owners to make a substan-tial investment, the change could be madewithout much friction.

The sticking point for the SupremeCourt in the debate on clean fuels was per-vasive fuel adulteration. As early as 1994,a survey concluded that highly subsidizedand therefore cheaper kerosene was beingused as a substitute for diesel. Adulterationis very hard to fight. It can take place at

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Vehicle emissions inspections in Delhiwere found to be easily manipulated andtherefore an unreliable means to reducepollution.

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issues that are really beyond its technicalcompetence. And this is not a situation inwhich relying on the competence of theEPCA will necessarily remedy the basicinappropriateness of diverting these sub-stantive decisions into a judicial body.

Lessons for NeighboringCountries

Much of the international attention tothe Delhi experience has focused on thelitigation and its outcome. Little, howev-er, has been said about the surroundinginstitutions or the role of the governmentin its various facets, including commit-tees such as EPCA. As a result, there aresimilar lawsuits in Bangladesh, Pakistan,Sri Lanka, and Nepal asking the courts toact where the government has not. Often,the Indian case is cited as legal precedent.In some of these cases, the country’shighest court has issued orders, but suchorders have been entirely or selectivelyignored by the government or the public.When this has happened, lawyers andpublic interest organizations that havebrought such cases are understandablyfrustrated and now seek alternatives. TheLahore High Court in Pakistan has estab-lished a quasi-judicual, EPCA-like com-mittee to try to develop consensus on theoutstanding issues.

Based on the evidence in India and inother counties, several factors are highlyrelevant to observers and would beextremely helpful to those who seek toemulate the Delhi experience.

First, a dependable decisionmakermust exist—a body that commandsrespect and has the requisite indepen-dence to order the necessary environmen-tal reforms. In India, this was theSupreme Court. The Court enjoyed aunique status in Indian society, such thateven very high-ranking political officialswould think twice about resisting oncethe Court had clearly acted. The IndianSupreme Court was able to navigate Indi-an tradition and its legal and political cul-ture and knew where the boundaries of itsauthority lay. Do analogous bodies existin the other societies that are looking tothe Indian experience? Many countries

around the world have a high court thatenjoys this status. But not every countryhas independent courts: Judges in somenations are subservient to the politicalprocess and some even receive politicaltraining to assure that their results will bein line with official doctrine. In particu-lar, some Asian countries have little expe-rience functioning under a law-basedsociety. In those places, some other bodywith the social and moral authority to actmay need to take the lead.

It is also important to consider the gen-eral milieu in which the decision bodyworks. India’s government was unwilling

to defy the Supreme Court at criticaljunctures. Perhaps officials recognizedthat to do so could damage the fragilefoundations on which its democracyrests. Events that unfolded in the UnitedStates in the mid-1970s, during the finaldays of the Watergate crisis, may illus-trate this point. On 24 July 1974, Presi-dent Richard Nixon chose to turn overincriminating tapes rather than defy aunanimous Supreme Court order, despite

the fact that he commanded the armedforces and the Court had only a few, gen-erally unarmed marshals. The issue atstake was not relative power but the basicfoundations on which the society rested.

Perhaps in the Indian context, theimportance of an independent judiciarywas heightened by a strong sense of his-tory. Indira Gandhi’s emergency period,in which she tried to rein in the Courtsand limit personal freedoms, is remem-bered many years later with bitterness.Indians take great pride in having theworld’s largest democracy. Where thereis no similar tradition of an independentjudiciary or a law-based society, a singlecase is unlikely to reverse history. Part ofthe challenge in such countries may benot only to bring these kinds of cases butalso to educate judges and the public.

Second, countries should only consid-er environmental tools that are consistentwith their prevailing technical and insti-tutional realities. These realities includethe strength and performance of existingenforcement procedures and whetherthere exists a culture of compliance. Forexample, it is possible to set performancestandards in the United States wherethere is relatively consistent enforcement,transparency of emissions information,and many “eyes” to watch for potentialoffenders—including the prospect of cit-izen enforcement suits.

In India, an on-the-ground, realisticappraisal of the situation led EPCA andthe Court to conclude that fuel adulter-ation was almost unavoidable. India hasnot had dependable environmentalenforcement, in part because there are notmany people assigned to such issues, andbecause the lower courts, to which mostcases would be brought, are extremelyslow to act.48 Faced with this kind of per-vasive temptation to cheat, it was reason-able to conclude that a performance stan-dard was doomed to failure. EPCA andthe Supreme Court took a realisticresponse to the facts.

Third, no court in any country acts inan institutional or political vacuum. Anycountry that seeks to replicate the Delhiprocess must understand how its judicialbranch’s actions fit into the larger milieu


ter how well they have been thought out. They seem to lack regulatory self-confidence—or even much practice inthe actual act of regulating.

One possible outcome is that the appro-priate agencies of the Indian governmentwill gain confidence from the SupremeCourt’s successes. In the fall 2003 Indianelections, numerous politicians, many ofwhom at various points fought the CNGdecision, took public credit for Delhi’scleaner air. The entire experience could bea lesson that bold action to manage diffi-cult pollution problems will be rewarded.

The existing environmental authorities inIndia might be encouraged not only toannounce standards but also to enforcethem. Today, India is considering whetherto consolidate various EPCA-like commit-tees and to form them into an EPA-likeregulatory body. If this happens, and thenew body is empowered to make andenforce real decisions, the SupremeCourt’s role will have been beneficial forIndia’s long-term environmental regula-tion prospects.

The other, less optimistic possibility isanalogous to using a crutch and letting

muscles atrophy. The regulatory musclesof the Delhi and central authorities havenot been exercised directly. At each criticalpoint, the Court stepped in and relieved theauthorities of the burden of moving for-ward on their own steam. While the gov-ernment did, at two important points,demonstrate its backbone by choosing notto overrule the Supreme Court in responseto political pressure, it did not take affir-mative actions to move events toward asuccessful regulatory conclusion.

Many believe that the Court acted withrelative restraint even in its most dramaticand controversial decision, the order toshift public vehicles to a single fuel. It didnot act precipitously, and it mostly reliedon experts. Much of its effort involvedpushing the government to implementalready-announced policies that had laindormant or had been deferred. Optionswere vetted by EPCA (and before that bythe Saikia Committee). In this respect, theCourt may have provided a model for amore conventional regulatory process. Inaddition, the success of the CNG programcould invigorate regulatory bodies andgive them confidence that the policies theydeveloped were worth implementing. Ifthis is the case, the net effects of theCourt’s actions will prove beneficial to theevolution of more mature regulatory insti-tutions and processes.

However, although the Court reliedlargely on government analysis and exist-ing policies as it made its CNG decision,it is not clear that this same discipline hascontinued into the most recent activitiesof the Court—including instances inwhich the Court has focused on verysmall details of policy implementation.Many such instances seem increasinglyfar afield of the original set of issues. Forexample, the Court seems ready to adjudi-cate issues such as CNG pricing and inter-city transport. While these matters areindirectly related to the core issues beforethe Court, it can be argued that the leg-islative branch would more properlydecide them. In fact, many Indians—including NGO advocates—have ex-pressed such concerns. It is not hard to seehow the Court could become a victim ofits own success and push too hard on

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Advocates hope that the actions of the Supreme Court will help to clean up the pollutedair in Delhi—seen here obscuring a sunset over the city—and begin a new approach toenvironmental issues in India.

Countries should

only consider

environmental tools

that are consistent

with their prevailing

technical and

institutional

realities.


Chief Justice, in discussion with the authors, NewDelhi, 7 July 2003.

11. The Mass Rapid Transport System was eventual-ly built and opened on 25 December 2002.

12. As of the writing of this paper, no bypass has yetbeen constructed.

13. The Saikia and Bhure Lal Committees were notthe only way that the Court reached out for technicalhelp. In 1995, the Court appointed Harish Salve theamicus curiae—a court-designated position that pro-vides legal representation in Supreme Court cases toindividuals and groups who don’t otherwise havecounsel. In this case, the amicus curiae was a combi-nation of special master and advisor to the justices.He collected and sorted out factual material and dis-tilled from the numerous affidavits and other repre-sentations submitted to the Court a précis of their per-spectives. At several critical junctions, Salve didfactual research to debunk extravagant claims andotherwise played a central role in moving the caseforward.

14. Harish Salve, amicus curiae, in discussion withthe authors, New Delhi, 6 July 2003.

15. K. K. Gandhi, executive director of technologyat Society of Indian Automobile Manufacturers(SIAM), in discussion with the authors, New Delhi, 3July 2003.

16. The most prominent example in which the jus-tices did not was the registration of diesel-fueled pri-vate vehicles. The Environment Pollution (Preventionand Control) Authority (EPCA) recommended thatprivate diesel cars should not be registered and thatthe Supreme Court should freeze sales of diesel cars.Lawyers for the auto industry strenuously opposedthis. Instead of following EPCA recommendation, theCourt ordered that all private cars must conform toengine standards by new, tighter deadlines. Both sidesdeclared victory.

17. On 2 June 1999, the Delhi government’s chiefsecretary, Naresh Saigal, announced that his govern-ment would meet the deadlines set by the SupremeCourt. He announced that all Delhi Transport Corpo-ration (DTC) buses plying in the capital would be con-verted to compressed natural gas (CNG) by 31 March2001 and that the Delhi government was planning toallow 2,500 new CNG buses owned by big transportoperators to ply in Delhi. He also said that only CNGthree-wheelers would be allowed to ply in Delhi after31 March 2000, but added that new three-wheelerswould be given an additional year for the changeover.“DTC Buses to Be CNG-Driven by 2001,” TheObserver of Business and Politics, 2 June 1999.

18. In a written reply to Lok Sabha, the Minister ofState for Environment and Forests said that by 31March 2001—as directed by the Supreme Court—DTC and private buses would be converted to CNGand all pre-1990 autos and taxis in Delhi would bereplaced with new vehicles using clean fuels. Headded that buses over 8 years old would only ply onCNG or “other clean fuels” by April 2000. “DTC, Pri-vate Buses Will Run on CNG by March 31, 2001,”Asian Age, 9 March 1999.

19. Private bus operators urged the Delhi govern-ment to “apprise” the Supreme Court about its failureto find “durable and authenticated CNG conversiontechnology.” Delhi government leader Sheila Dixitsupported this assertion: “The conversion of the exist-ing diesel buses was not possible as the technology toconvert was neither authenticated nor fully certifiedby competent authorities.” There were also complaintsthat CNG buses were almost double the price of dieselbuses and that there were not enough CNG filling sta-tions in the capital. “Operators Plead Helplessness inMeeting CNG Deadline,” The Hindu—Delhi, 19 Janu-ary 2001.

20. “‘CNG Technology Is neither Tested nor Trust-ed,’” Times of India—Delhi, 26 February 2001.

21. “Supreme Court Seeks Status Report on CNG

Issue,” The Hindu—Delhi, 1 February 2001.

22. In March 2001, Indraprasth Gas, Ltd. (IGL)assured the Supreme Court and the Delhi governmentthat there was enough gas to meet the growingdemand of the transport sector. See Telestam, note 10above.

23. The order was on 16 February 2001. See “Man-ufactured Chaos,” Down To Earth, 30 April 2001.

24. Writ Petition order dated 26 March 2001. Forexample, because DTC had placed orders for 1,880new CNG buses, it was allowed to operate that manydiesel buses until either the orders were filled or 30September, whichever came first. See “Key Points ofthe March 26 Ruling,” Down To Earth, 30 April 2001.

25. Additional Solicitor General Kirit Rawal madethese representations.

26. Down To Earth, note 23 above.

27. “Sabotage,” Down To Earth, 30 September 2001In response to pleas for a more precise definition of“clean fuel” (mostly from the Ministry of Petroleumand Natural Gas (MoPNG); see Down To Earth, thisnote), the Supreme Court asked EPCA to collect vari-ous opinions and determine whether other fuels, par-ticularly low (0.05 percent) and ultralow (0.001 per-cent) sulfur diesel, could be considered in addition toCNG for vehicles (Writ Petition order dated 26 March2001).


29. K. Mathur, “Battling for a Clean Environment:Supreme Court, Think Tanks and Populist Politics inDelhi,” draft paper, 2002 (on file with authors).

30. “Dead End for Diesel Buses,” Down To Earth,30 April 2002.

31. According to the Penn World Table, theexchange rate in 1998 (last year of data in this itera-tion) was around 42 rupees per U.S. dollar, but pur-chasing power parity–adjusted, it was about half that.See A. Heston, R. Summers and B. Aten, Penn WorldTable Version 6.1 (Center for International Compar-isons at the University of Pennsylvania, October2002), http://www.bized.ac.uk/cgi-bin/penndatadb/pennchart.pl.

32. Sindhushree Khullar, Delhi Transport’s principalsecretary and commissioner of transport, in discussionwith authors, Delhi, 4 July 2003.

33. For example, the ninth progress report of theEnvironment Pollution (Prevention and Control)Authority (EPCA), covering July–September 2000,indicates that Anil Agarwal from CSE suggested thatEPCA hold a meeting with various nongovernmentalorganizations to elicit their comments and sugges-tions on how to improve environmental quality inDelhi. A representative from The Energy ResearchInstitute (TERI), and Dinesh Mohan, the transporta-tion expert from Delhi’s Indian Institute of Technolo-gy, attended this meeting, which was held on 30 Sep-tember 2000.

34. There is some merit to the bus operator’s con-tentions. They were forced to make a big investment,and the scrap value of their buses declined when theymoved to CNG technology. (They sell old buses inother parts of India that are not currently required touse CNG.) On the other hand, now that the changeshave been made, they are strong advocates for stayingthe course.

35. See note 13 above.


37. “Delhi Suffers as Transporters Strike Work,” Red-iff on the Net, 28 August 2001, http://www.rediff.com/news/2001/aug/28del.htm (accessed 6 February2004).

38. Resources for the Future, Timeline, 30 August2001, http://www.rff.org. See Times News Network,“Panel Planned to Frame Auto Fuels Policy,” Times ofIndia—New Delhi, 31 August 2001.

39. M. Kojima, “Leapfrogging Technology,” World

Bank Private Sector and Infrastructure Network, Pub-lic Policy for the Private Sector series, Note Number254, February 2003. “. . . many policymakers andenvironmental groups . . . conclude that the technicalsolutions are the best way to get around the culture ofnoncompliance. But the same problems that have ledto heavy pollution by conventional gasoline- anddiesel-fueled vehicles would probably also condemnstate-of-the-art control technology to failure.” Similarsentiments seem to have been expressed by WorldBank experts in a December 2001 meeting in Delhi onCNG adoption; see Lalit K. Jha, “CNG ExperimentBound to Fail: World Bank,” The Hindu—Delhi, 13December 2001.

40. “International Experience with CNG Vehicles,”World Bank South Asia Urban Air Quality Manage-ment Briefing Note no. 2, October 2001, accessible viahttp://www.worldbank.org/sarurbanair.

41. Kojima, note 39 above, page 4.

42. R. Tharby, “Making Vehicle Emissions Inspec-tion Effective—Learning from Experience in India,”World Bank South Asia Urban Air Quality Manage-ment Briefing Note no. 9, July 2002, accessible viahttp://www.worldbank.org/sarurbanair. Petrol-fueledvehicles can be tuned to pass the test by firing “leanand late”, and then returned to their previous settingsfor regular use. Diesel vehicles are more likely to passthe test if the simulated conditions of accelerationunder which they are performed are reduced. See R.Tharby, “Catching Gasoline and Diesel Adulteration,”World Bank South Asia Urban Air Quality Manage-ment Briefing Note no. 7, July 2002, accessible viahttp://www.worldbank.org/sarurbanair.

43. Writing for the World Bank, technology consul-tant Ronald Tharby reported that “Technicians can . .. record numbers . . . without turning the analyzer on.For the small percentage of vehicles that have a cur-rent PUC certificate, this is believed to be one of theprincipal means of obtaining it.” It is difficult to dis-agree with Delhi Administration Transport MinisterRajendra Gupta’s characterization that the programhas failed “miserably.” Ibid; and “Now Laser to Mea-sure Pollution Emission,” Statesman—New Delhi, 28April 1998.

44. “Motorists Get Stuck as Green Pumps Run Dry,”Indian Express—New Delhi, 13 October 1995.

45. The Ministry of Environment and Forests(MoEF) white paper reported that “ . . . in someinstances the levels [of pollutants emitted by two-stroke engines] are so high they go beyond the mea-surable scale of test instruments.” Ibid, page 7. Alsosee EPCA, Third Report on Monitoring and PriorityMeasures Proposed by the Authority for Air PollutionControl (New Delhi: EPCA, 1998), 1–7.

46. A. Roychowdhury and C. Shah, “Overhaul!”Down to Earth, 15 November 2003, 30–40.

47. S. Sinha, “Capital Gasps as Impurities are Addedto Fuel,” Times of India—Delhi, 10 December 2001;M. Kumar, “Petrol Adulteration Thrives in Capital,”Hindustan Times—Delhi, 8 February 1999; and Thar-by, note 42 above.

48. Salve, note 14 above.


of people and institutions. Are there otherparts of government or society in generalthat support its activities or act as “watch-dogs” against official inaction or evenintentional failure to implement the laws?Is there some level of transparency so thatdecisions cannot be sabotaged outside ofpublic view? India has the advantage of avery open press and an independent NGOcommunity. The Court’s decisions werereported in the press, and the govern-ment’s failures were also subject to livelycomment. CSE could generate indepen-dent research and disseminate it, and itsreports reached a wide audience. Indeed,CSE very adroitly fed its findings to thepress, to assure that they would receiveattention. Not all of India’s geopoliticalneighbors enjoy all these factors.

Conclusion

Much as one would like to believe itpossible, an expansive and far-reachingchange in society—such as cleaning theair of Delhi or even the more limited butstill daunting task of shifting commercialvehicles to CNG—cannot originate froma single body acting alone. Too manyparts of society must play a role in thechange and must acquiesce and changetheir own practices and habits.

The Supreme Court’s orders were suc-cessful at least in part because the Courtseemed to be at the same time reflectingand driving a wider agreement withinsociety that the air quality in Delhi wasunacceptable. India had been through thesearing experience of the 1984 Bhopalgas tragedy—in which an accidentalrelease of toxic gas killed more than8,000 people and may continue to affectpeople in the area today—which nopolitician could ignore. And India’s pol-lution was coming to the attention of theinternational community. Perhaps the

time was right for the Court to act. Thequestion we cannot answer is why thetime was not right for the government toact without Court interference. Neverthe-less, Indians may hope that the experi-ences of recent years will embolden theirelected government to fulfill its rightfulrole in protecting their environmentalwell being.

Ruth Greenspan Bell is a resident scholar at Resourcesfor the Future in Washington, DC. Her work focuses onpractical aspects of environmental institutions and toolsfor environmental compliance in the developing worldand countries in transition, public participation as ameans of facilitating or accelerating the process of envi-ronmental compliance, and the implementation of inter-national environmental agreements. She may bereached at [email protected]. Kuldeep Mathur is academicdirector at Jawaharal Nehru University’s Centre for theStudy of Law and Governance, where he recentlyretired as professor at the Centre for Political Studies.He has been rector at the university and director ofIndia’s National Institute of Education Planning andAdministration. His research interests lie in the broadarea of public policy analysis and the role of state in development. He may be reached at [email protected]. Urvashi Narain is a fellow atResources for the Future. Her research focuses on theinteraction between environment and development,including poverty and environment, air quality manage-ment, and global climate change. She may be reachedat [email protected]. David Simpson is a senior fellow atResources for the Future, and for the 2003–2004 aca-demic year, visiting professor in the Department ofEconomics, University College London. His researchfocuses on the economics of biological resources,industrial and environmental policy, and technologicalinnovation. He recently coedited Scarcity and Growthin the New Millennium (Resources for the Future,2004), which explores the prospects for improved tech-nologies to offset emerging environmental challenges.He may be reached at [email protected].

The authors are very grateful for the extraordinaryresearch support they received from Aaron Severn andNicholas Burger. The project received critical supportfrom Ford Foundation Delhi and the United StatesAgency for International Development, and the authorswould particularly like to thank John Smith-Sreen andTodd Harding. Mary Louise Vitelli at Advanced Engi-neering Associates International in Washington, DC,has been a steady supporter. Melinda Kimble of theBetter World Foundation provided support for dissemi-nation of the project’s results. Many people in Indiatook time out of their busy lives to speak with us andprovided invaluable information; these include DilipBiswas, Ranjan K. Bose, A. K. Dey, K. K. Gandhi,Prem Gehlot, M. M. Pal Singh Goldi, A. K. Gumber,H. S. Kalra, Sindhushree Khullar, B. N. Kirpal, Bhure Lal, Dinesh Mohan, Sunita Narain, Vijay Panjwani,Anumita Roychowdhury, Harish Salve, AparajitaSingh, and S. Sundar. Finally, the authors thank UshaNarain for providing a place to work in Delhi, wonder-ful food, and psychic support.

NOTES

1. S-Y. Tang, V. Prakash, and C-P. Tang, “LocalEnforcement of Pollution Control in Developing Coun-tries: A Comparison of Guangzhou, Delhi, and Taipei,”Journal of Public Policy 18, no. 3 (1998): 272.

2. For Bangladesh, see Farooque v. Government ofBangladesh WP 300 of 1995 (1995.02); and for Pak-istan, see Dr. Amjad H. Bokhari v. Federation of Pak-istan (Constitutional Petition 45/2003).

3. C. Brandon and K. Homman, The Cost of Inac-tion: Valuing the Economy-wide Cost of EnvironmentalDegradation in India (World Bank, 1995).

4. B. Sengupta, “Air Quality Improvement inNational Capital Region Delhi, India—A Case Study,”presented at International Seminar, Better Air Quali-ty—2003, held at Manila, Philippines, 17–19 Decem-ber 2003.

5. Wendell Cox Consultancy, Urban Transport FactBook, http://www.publicpurpose.com/ut-intlut98.htm(accessed 9 February 2004).

6. Each time a new charge of air plus fuel is loadedinto the combustion chamber, part of it leaks outthrough the exhaust port. Smoke results from the com-bination of leaking hydrocarbons from the fresh fueland leaking oil.

7. Sengupta, note 4 above.

8. The “Delhi Master Plan is part and parcel of theAct by which Delhi Development Authority [DDA] wascreated and land acquired compulsorily in Delhi over40 years only for development according to Plan. Mostaccurately described as a document of citizens’ entitle-ments in benefits of balanced equitable and sustainabledevelopment, the Plan came into force in 1962, wasrevised in the ‘80s for 2001 and is now being revised for2021. Plan revision modifies entitlements and the lawprotects them from being downsized in this process.”Master Plan Implementation Support Group, DelhiMaster Plan 2021 Minder, http://www.delhiscienceforum.org/dmp2021/main.htm (accessed 4 January 2004).DDA has called the first Delhi Master Plan of 1962 the“first step toward modern planning in India.” The planwas designed as a twenty-year plan and was preparedwith assistance from the Ford Foundation. The goal ofthe plan was the “integrated development of Delhi” andwas developed per the Delhi Development Act of 1957.Delhi Development Authority, Making of the Plan,http://ddadelhi.com/planning/mpd-2021.htm (accessed4 January 2004).

9. Center for Science and Environment (CSE) is aprominent Delhi environmental advocacy group. It hasthe advantage of size and a good funding base thatallows it to do independent research. CSE also now hasa lab for testing, which gives it an advantage in the pol-icy debate. CSE is not a membership organization but itdoes significant public outreach through publicationsand its web site. It is adroit in how it provides informa-tion to the press.

10. Anumita Roychowdhury of CSE suggested thatthis report motivated the Court to act, and one observ-er, Anna Telestam, reported that Chief Justice KuldipSingh promptly issued a suo moto order (an orderissued on its own initiative rather than in response to apleading or request) demanding that the Delhi govern-ment take action directly in response to the CSE reportSlow Murder. A. Roychowdhury, CSE’s associatedirector for research and advocacy, in discussion withauthors, New Delhi, 1 July 2003; and A. Telestam,“Environmental Politics in India—A Case Study ofAir Pollution Policy in Delhi” (master’s thesis, Uni-versity of Gothenburg, Department of Political Sci-ence, 18 January 2002). But in an interview, retiredChief Justice B. N Kirpal (Kirpal was on the court atthe time of the order but not yet chief justice) stated abelief that the suo moto order was entirely the Court’sinitiative. B. N. Kirpal, retired Indian Supreme Court

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Correction

Jill Jäger should have been identified asthe author of the Books of Note notice ofTaking Sustainable Cities Seriouslyon page 45 of the March 2004 issue,rather than Sylvia Karlsson. Environmentregrets the error.

Documents

Clearing the Air: How Delhi Broke the Logham on Air Quality Reforms