1

The Delhi vehicular pollution case:

the Indian Supreme Court battling air pollution

INTRODUCTION
The story of the Delhi vehicular pollution case starts in 1985 with a petition to the Supreme
Court of India by public interest attorney Mahesh Chandra Metha concerning the extreme
air pollution in the city causing serious health problems and premature deaths. 1 It led in
1998 to a Court order to switch the total public transport sector of Delhi in 2001 from the
use of (mainly) diesel to compressed natural gas (CNG) on the basis of the right to life
enshrined in Article 21 of the Indian Constitution.

As will be shown hereafter, this PIL case is not only special because the life span of the case
lasts until today; but it is also special because the Court appointed amicus curiae and issued
scientific research to find out what was the best way to reduce air pollution caused by the
heavy traffic in this metropolis. Additionally, the Court developed different ways to monitor
compliance with court orders and even took measures to regulate the infrastructure
necessary for the transition from diesel to CNG. Hence, it is safe to say that the Indian
Supreme Court engaged in judicial lawmaking in a way that is unheard of in most Western
countries.

As the Delhi vehicular pollution case will illustrate, PIL in India is not without problems, but
might nevertheless still be instructive for Western legal systems, even though India has a
different perspective on the role of, especially, the Supreme Court in a democratic legal
order than, for instance, most European Member States or even the U.S. Due to its specific
characteristics, PIL for a long time allowed citizens in India to bypass local courts in order to
directly address the State’s highest courts or even the Supreme Court. Lately, the Supreme
Court is more apprehensive of Article 32 of the Constitution and directs that PILs should, in
principle, be filed at the local high court first as Article 226 facilitates,2 to ask for a remedy if
the government fails to protect basic human rights.

A BRIEF HISTORY OF THE RISE OF PUBLIC

INTEREST LITIGATION IN INDIA
The rise of PIL in the late 1970s and early 1980s in India can be seen as a reaction to the
emergency situation and constitutional upset under the Indira Gandhi regime between June
1 Writ Petition (Civil) 13029/1985 in the matter of M.C. Mehta v. Union of India.
2 See for a more recent example: https:// www .ndtv .com/ india -news/ supreme -court -refuses -to -entertain -plea
-challenging -constitutional -validity -of -epidemic -act -2326201.
 2

1975 and March 1977, which allowed the Prime Minister to suspend elections, rule by
decree and curb fundamental rights and civil liberties. During the emergency, she used
police force against protesters, put thousands of people opposing her regime under
preventive detention without a trial, and banned political opposition parties. Many people
expected the Supreme Court to intervene, but instead the Court, in a controversial landmark
case of A.D.M. Jabalpur v. Shivakant Shukla,3 ruled in a four-to-one decision that certain
fundamental rights, including the right to liberty, were not available to citizens. Moreover,
individuals were not eligible to move the High Court for a writ of Habeas Corpus if a
Presidential order would say so.

After Gandhi’s Congress party lost the elections in 1977, the Supreme Court tried to regain
the trust of the population by expanding its jurisdiction and deliberately siding with the poor
and the underprivileged by recapturing their rights and civil liberties. This should be seen in
light of the battle between the legislature and the Supreme Court during the emergency
period over who has the right to interpret and amend the constitution. Bhuwania called this
‘the battle of the populisms’: the populism of the political class versus the populism of the
Court.4 The starting point for the public interest jurisprudence of the Court was the case
Hussainara Khatoon v. State of Bihar,5 where a petition was filed under Article 32 of the
Constitution by Nirmal Hingorani, a Supreme Court lawyer and his wife Kapila Hingorani, in
response to the publication of two articles in the Indian Express. The articles told a story by
a member of the National Police Commission who had visited prisons in Bihar. Thousands of
people were there awaiting trial for sometimes minor offences, being kept in prison for
years under horrible conditions together with witnesses and victims who were kept in
‘protective custody’ to facilitate their presence during trial.6 Ruling on the petition, the Court
read into the right to life and liberty enshrined in Article 21 of the Constitution a right to a
speedy trial in combination with Article 39A obliging the State to secure a system of
providing free legal aid for people unable to afford a lawyer. One of the first things the
Supreme Court did hereafter in the Judges’ Transfer case was relaxing the requirements for
standing in order to further access to justice. Justice Bhagwati formulated it as follows:
of immense importance in a country like India where access to justice being restricted by social and economic
constraints, it is necessary to democratize judicial remedies, remove technical barriers against easy accessibility to
justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited
sections of humanity may be able to realize and enjoy the socio-economic rights granted to them and these rights may
become meaningful for them instead of remaining mere empty hopes.7

3A.D.M. Jabalpur v. Shivkant Shukla (1976) 2 SCC 521.

4 A. Bhuwania, Courting the People: Public Interest Litigation and Political Society in Post-emergency India
(Cambridge: Cambridge University Press 2017), p. 25.
5Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360, 1369, 1377.
6 A. Hingorani, ‘Indian Public Interest Litigation. Locating Justice in State Law’ (1995) Delhi Law Review XVII,
159–202 at 163–4.
7 S.P. Gupta v. President of India 30 December 1981, AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365,
para 13.
 3

The importance of the relaxation of standing requirements became clear in the case of Anil
Yadav v. State of Bihar,8 brought again before the Court by Kapila Hingorani in response to a
letter from another lawyer from the district of Bihar, who claimed that a number of
suspected criminals were blinded by the police through the use of acid. This acid turned out
to be sprayed into the eyes of the suspects after their arrest. The Court took the claim on
the basis of the letter and required the registrar to find out whether the letter was truthful,
which appeared to be the case. The registrar found out that at least 33 people were blinded
by the needless use of acid, which subsequently shook the Court because it was seen as a
crime against humanity by the police force. Via interim orders, the Supreme Court
intervened in the trial in the District of Bihar. It ordered for the blinded prisoners to be
brought to New Delhi, fund their medical treatment, ordered speedy prosecution of the
policemen involved in this horrific act, and mandated the State under Article 39A of the
Constitution to provide these and other prisoners, who cannot afford a lawyer, with free
legal aid.9

Unique in this case was not only that the Court provided the poor, illiterate and ignorant,
with free legal aid, because otherwise their fundamental rights would become illusory, but
also that it departed from the normal adversarial procedure in which the litigants needed to
provide the evidence and the Court acts as an independent arbiter. Instead, the Court took it
upon itself to investigate the facts and used its registrar in doing so. The success of this case,
led to a host of new cases concerning: the imprisonment of children, abuse of women,
violation of labour laws, inhuman conditions in children’s homes and mental hospitals,
citizen’s health problems due to the serious pollution of drinking water, etc. Gradually, the
High Courts and Supreme Court were also confronted with writ petitions concerning
broader policy issues, such as a lack of use of iodized salt in basic food resulting in millions
of people suffering from goitre. The Court also discovered widespread political and police
patronage in dowry cases where abuse was notified to the authorities but little was being
done to help the victims of the abuse. In cases such as these, the Court often provided
guidelines for the executive on how to handle the problems or suggested that action should
be taken by the legislature.10
During the 1980s, a gradual but fundamental shift can be seen in the development of Indian
public interest litigation. Where the first public interest cases in the 1970s were mainly
concerned with protection of the rights of the poor via judicial review, courts expanded their
role during the next decade. No longer were they falling back on a conservative concern of
common law judges for protecting life, liberty, property and religious freedom, but instead
they became increasingly concerned with distributive justice, social welfare, and civil and
political rights of democratic citizens who should be seen as more than just beneficiaries of
welfare.11 This whole shift in focus can be seen as part of a broader movement to free the
8 Anil Yadav v. State of Bihar, AIR 1982 SC 1008. See also Khatri v. State of Bihar, AIR 1981, SC 928, 1068.
9Khatri v. State of Bihar, AIR 1981, SC 928, 931.
10 Hingorani (n 6), p. 168.
11 D. Rajeev, ‘Means, Motives, and Opportunities: Reflecting on Legal Research in India’ (1987) Modern Law
Review 50 (6), 725–49 at 746.
 4

Indian judiciary from its colonial ties with its complicated and technical procedures, its focus
on the adversarial nature of the proceedings and its limited access to justice for ordinary
people.12
From the 1980s onwards, public interest litigation became an instrument for courts to
improve access to justice for the masses and to engage in judicial activism. This activism was
in a way a liberation from the traditional English view on the role of the judiciary in which
courts merely find the law and interpret it, make no law unless to fill in gaps left by the
legislature, and only when this is absolutely necessary for deciding the case at hand. In this
classic view, court rulings only bind the litigating parties and only a person whose rights have
been violated can initiate proceedings in cases where he has a legitimate cause of action,
has complied with all procedural requirement, and has locus standi before the court.

Public interest litigation set a new paradigm with a more affirmative and proactive role of
the High Courts and Supreme Court in facilitating access to justice for the poor and
underprivileged by relaxing the rules of locus standi, making court proceedings much more
informal, low-cost and efficient and focusing more on remedies aiming to accomplish social
justice for victimized sections of society.13

KEY FEATURES OF INDIAN PUBLIC INTEREST

LITIGATION
To explain this paradigm shift more deeply Vandenhole has summarized some of the key
features of Indian public interest litigation as compared to the U.S. variant, which served as
inspiration for India.14 According to him the more or less commonly accepted (procedural)
characteristics of Indian PIL are:
• Expansion of the rules of standing: when a specific legal injury is suffered by a person or a determinate class or
group of persons, but such person or determinate class of persons is by reason of poverty, helplessness or disability,
or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public
can maintain and application (representative standing). The same holds true when there is public injury (citizen
standing).
• Epistolary jurisdiction: a letter from a public-spirited individual can be treated as a writ petition and the Supreme
Court can even act suo moto and start a PIL by itself on the basis of, for example, newspaper articles.
• Investigative litigation: the Court takes an active role in investigating the facts. Evidence is gathered by commissions
of inquiry, appointed by the Court. The reports of the commissions furnish prima facie evidence of the facts and
data and are not tested by cross-examination.

• Collaborative litigation: social action litigation is (hoped to be) a collaborative effort on the part of the claimant, the
Court and the government to make fundamental rights meaningful for the poor.
• Remedies without rights: interim directions are issued to offer immediate relief. There is no preliminary finding of
probability of success on the merits. Moreover, relief is not always confined to the case and remedies are often
negotiated between the litigating parties.

12 See about this development: M. Mate, ‘Public Interest Litigation and the Transformation of the Supreme Court
of India’, in D. Kapiszewski, G. Silverstein and R. Kagan (eds), Consequential Courts: Judicial Roles in Global
Perspective (Cambridge: Cambridge University Press 2013), pp. 262–88.
13 See the excellent description of this transition by S.P. Sathe, ‘Judicial Activism: The Indian Experience’ (2001)
Journal of Law and Policy 6 (1/3), 29–109.
14 Vandenhole leans for the comparison with the US on the work of C.D. Cunningham, ‘Public Interest Litigation
in Indian Supreme Court: A Study in Light of American Experience’ (1987) Journal of the Indian Law Institute 29
(4), 494–523.
 5

• Monitoring of the implementation: the Court monitors the implementation of its orders either by keeping the case
on record or by appointing a monitoring committee.15

Hereafter, some of these features, will be explained more in-depth, such as, the role of
relaxed standing requirement and epistolary jurisdiction (§ 3.1), the collaborative,
investigative and remedial nature of PIL (§ 3.2), the use of court appointed
(investigative/scientific) committees (§ 3.3)

Standing and Epistolary Jurisdiction

As far as standing and epistolary jurisdiction are concerned, Article 32(1) of the Indian
Constitution provides that: ‘The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is guaranteed.’ The
Supreme Court read into this provision that ‘appropriate proceedings’ does not refer to the
process or the form of the proceedings but to the purpose of enforcement of rights. This
purpose should not be endangered via rigid standing requirements or other procedural
thresholds that could hinder ordinary citizens from invoking their fundamental rights. In
light of this, the Court converted letters, postcards, telexes and other references that judicial
intervention might be needed into writ petitions to enable the Court to investigate the
infringement of rights.16 It sometimes even acted on its own motion deciding to take on a
case.

Between 1990 and 2021, the Indian Supreme Court took on 46 suo moto cases. 17 Initially
suo moto cases were mainly concerned with contempt of court violations. Hence the Court
starts a case on its own motion simply because, for example, a certain government official
refused to comply with court orders. Especially after the millennium change, the suo moto
jurisdiction was broadened by the Court to different sorts of disputes. On 24 January 2014, 18
for instance, the Supreme Court responded to a newspaper article describing the gang rape
of a young woman in West Bengal. The Court’s suo motu intervention led to a judgment
delivered two months later. Suo motu intervention is also partly an offshoot of the
development of the PIL system, according to Galanter and Ram.19 Sometimes the Supreme
Court has even appointed an amicus curiae and shut out other parties in order to steer the
focus of the case.

Suo moto jurisdiction for PIL cases was formalized in 2014 by Rule 12(1)(a) in the Supreme
Court Rules of procedure, 2013, stating that a PIL may commence following a suo motu
petition in pursuance of the orders of the Chief Justice or any other judge. During the Covid

15 Mate (n 12), pp. 262–88. W. Vandenhole, ‘Book Review of People, Law and Justice: A Casebook on Public-
Interest Litigation, II Volumes by Sangeeta Ahuja; Supreme Court on Public Interest Litigation: Cases and Materials,
the Debate over Original Intent, I by; Supreme Court on Public Interest Litigation: Cases and Materials, the Debate
over Original Intent I, New Delhi: LIPS, Jagga Kapur, (ed) (Nov. 2000)’ Human Rights Quarterly 22 (4), 1111–12.
Cunningham (n 14), 494–523. B. Upendra, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme
Court of India’ (1985) Third World Legal Studies 4, Art 6, 107–32.
(Available at: http://s cholar .valpo .edu/ twls/ vol4/ iss1/ 6).
16 One can file a writ petition in the High Court (Art 226) or the Supreme Court (Art 32) of India when any of your
fundamental rights are violated. Art 32(2) of the
 6

pandemic there was a rise in suo moto cases in order to monitor the government’s Covid
response.20

Collaborative, Investigative and Remedial Litigation

It is important to realize that public interest litigation cases differ from traditional Indian
class actions as can be filed under Order 1, rule 8, of the Code of Civil Procedure or, more
recently, Article 245 of the Indian Companies Act 2013. PIL cases transcend the function of
adjudication in a regular civil suit because they seek to provide remedies for constitutional
wrongs (e.g., violations of fundamental rights of victims due to government measures).
Hence, a PIL case can be maintained even if the plaintiff no longer has a personal stake in
the matter21 or if he is an ordinary member of the public acting in good

Indian Constitution mentions the writs it may use to enforce fundamental rights: habeas corpus, mandamus,
prohibition, quo warranto and certiorari.
17
https:// www .scobserver .in/ journal/ 46 -suo -moto -cases -in -the -supreme -court -from -1990 -2021/ .
18
The Rules came into force on 19 August 2014, as notified by Circular No. 1/ SG./SC Rules/2014.
19
M. Galanter and V. Ram, ‘Suo Motu Intervention and the Indian Judiciary’, Chapter 4 in Rosenberg et al
(eds), A Qualified Hope (Cambridge: Cambridge University Press 2019), p. 92–122 at 99.
20
See: https:// www .scobserver .in/ journal/ the -supreme -courts -suo -moto -power -drives -the -covid -
litigation/.
21
Sheela Barse vs. Union of India, (1988) Supp. 2 S.C.R. 643, para 13. The idea, according to the Court is that
‘the ‘rights’ of those who bring the action on
faith and without the power of attorney as long as a public injury is challenged or the
enforcement of a public duty is at stake.22 Moreover, PIL cases are not adversarial, but
remedial, in nature. They allow judges to play an active role in the proceedings and even
take on legal issues that were not directly brought up by,23 for example the petitioner, in the
original action.24 The collaborative and remedial nature of these cases lies in the fact that
the Court is enabled to engage in an effort to assist the executive to secure the fundamental
(social and economic) rights of people and assist the State to enforce the laws as enacted by
the legislature. In P.U.D.R. v. Union of India, this is formulated as:
Public interest litigation, as we conceive it is essentially a cooperative or collaborative effort on the part of the
petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits
and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State
or public authority against whom public interest litigation is brought should be as much interested in ensuring basic
human rights, constitutional as well as legal, to those who are in a socially and economically disadvantaged position, as
the petitioner who brings the public interest litigation before the court.25

One of the founding fathers of PIL in India, Justice Bhagwati, argued that a modern judiciary
can no longer hide behind formal legal justice and pleading incapacity to address important
social wrongs because they owe a duty to do justice. He added that courts cannot obtain
social and political legitimacy without making a substantial contribution to issues of social
justice.26
 7

behalf of others must necessarily be subordinate to the ‘interest’ of those for whose benefit the action is brought.’
22
H. Bansh Tripathi, ‘Public Interest Litigation in Comparative Perspective’ (2007), NJA LJ, 49–71.
23
A good example is the case Azad Riksha Pullers Union v. Punjab, A.I.R. 1981, S.C. 14, concerning the
Punjab Regulation of Rickshaws Act of 1975 which provided that licenses to ply rickshaws could only be given to
owners of rickshaws. This threatened the business of numerous poor rickshaw pullers who could not afford their
own rickshaw. The Act was challenged because it would affect the right to free trade, business and occupation
enshrined in Art 19(1)g of the Constitution. Instead of striking down the Act, however, the Court ordered that
rickshaw pullers should be enabled to obtain loans from the national bank of Punjab to acquire their own rickshaws
under the obligation to repay the loans over a considerable amount of time. 24 Hingorani (n 6) at p.179.
25
P.U.D.R. v. Union of India, A.I.R. 1982 S.C. at 1477–8.
26
P.N Bhagwati, ‘Judicial Activism and Public Interest Litigation’ (1985)
Columbia Journal of Transnational Law 23, 561–77 at 566.
According to judges, like Bhagwati, courts would not need to wait for the petitioner to prove
the alleged infringement of rights but should engage in proactive inquiry, order
investigations by court-appointed officials or committees and employ inquisitorial methods
for finding the truth. An illustrative example can be found in the case T.N. Godavarman v.
Union of India:17
In this case, a writ petition was filed with the Supreme Court of India to protect the Nilgiris forestland from
deforestation by illegal timber operations. The Court determined that the threats to the protection of the rainforests
required further investigation, while in the meanwhile it would be necessary to monitor the compliance with the Forest
Conservation Act 1980 (FCA) and freeze certain wood and timber-related industrial activities. Moreover, the Court
issued detailed directions for the sustainable use of forests and created its own monitoring and implementation system
via state and regional communities to preserve the rainforests. An interesting element of the case is the interpretation
of the term ‘forest’ in the FCA, which according to the Court – in absence of a definition in the Act – should be
interpreted in its everyday (dictionary) meaning, irrespective of the nature of the ownership of the land. Therefore, no
local government or other authority was allowed to de-reserve forestland for commercial purposes without prior
permission from the central government as required by section 2 of the FCA. The Court heard over 800 interlocutory
applications from 1995 onwards and issued numerous orders and directions, including the suspending of all logging
activities without a working plan approved by the central government and a prohibition to transport timber out of the
seven northern states either by road and rail or by waterway. Finally, a High Power Committee (HPC) was created by the
Court to oversee the implementation of and compliance with the judgment and to assist the Court in making further
orders. The HPC was, among other things, empowered to permit the use and sale of timber products if considered
appropriate by the State Forest Corporation.18

The Supreme Court has kept this case open for many years now using the doctrine of
‘continuing mandamus’ in order to be able to hear and decide matters related to the
implementation of the FCA. This led to numerous interim court orders in response to
recommendations by the HPC, which in fact created a parallel executive apparatus for forest
management without an explicit constitutional basis. The case became increasingly
complex, though, because of conflicting interests. On the one hand, there were the logging
companies, saw mills, and other local industries, while on the other hand, there were the
interests of environmental protection and socio-economic conditions for indigenous people
living off the forest land. These conflicting interests soon made the case grow out of hand
for the Court.

17 T.N. Godavarman v. Union of India 4SCC 362, (2012), 1 SCR 923.

18 See A. Rosencranz, E. Boenig and B Dutta, ‘The Godavarman Case: The Indian Supreme Court’s Breach of
Constitutional Boundaries in Managing India’s Forests’ (2007) Environmental Law Reporter 37 (1), 1032 ff.
 8

Court-appointed (Investigative/Scientific) Committees

Another feature of the role of courts in Indian PIL concerns the courts’ use of investigative
powers to address legal problems and their underlying policy issues via court-appointed
experts, amicus curiae, and investigative (scientific) committees. This role of courts gaining
their own evidence runs against the traditional common law tradition in which the litigating
parties are responsible for fact-finding and evidence-gathering. In PIL cases, though, Indian
courts have proven to be very creative in collecting facts, empirical data, and scientific
evidence, especially where the official government bureaucracy is unreliable, slow or biased.
Sometimes courts have used public officials to supply comprehensive affidavits to gather
facts or data, while in other cases they have used the courts registrar or appointed ad hoc
committees to provide the evidence. Normally, the parties would receive copies of the
affidavits and committee reports with the chance to dispute these, but the court decides
which evidence it finds relevant and credible.

Divan has provided many examples of how this fact-finding works.19 In the above-mentioned
Godavarman case, for example, the Central Empowered Committee (CEC) played an
important role in informing the Court,20 among other things, about the effects of
deforestation on biodiversity. In a number of the 1990s environmental pollution cases, the
National Environment Engineering Research Institute (NEERI) performed a key role in
informing the Supreme Court, such as in the case of the water pollution of the River Ganges
due to the tannery industry in Calcutta and the contamination of drinking water due to
oleum spills from chemical plant in the Bichri village in Rajasthan.21 In other cases, ad hoc
scientific committees were established, for instance, to help determine whether imported
milk and dairy products were safe for consumption due to the nuclear fallout in the
aftermath of the Chernobyl disaster.22

THE COURT’S ACTIVE REGULATORY AND

MANAGERIAL ROLE IN PIL CASES
The distinct features of Indian PIL, as summarized by Vandenhole, ultimately result in a very
activist, quasi-legislative and managerial role for the highest courts dealing with PIL cases
than can be found in most Western legal systems.

It is clear that the High Courts and Supreme Court in India use their extensive powers to
issue orders and directions capable of amending and replacing legislative acts and executive

19 S. Divan, ‘Public Interest Litigation’ in: S. Choudhry, M. Khosla and P. Bhanu Metha (eds), The Oxford
Handbook on the Indian Constitution (Oxford:
Oxford University Press 2017), p. 673–5.
20 The CEC was established by the Supreme Court in 2002 followed by a statutory notification under the
Environmental Protection Act, but when its five-year term expired, the Court continued the CEC via its own orders in
Samaj Parivartana Samudaya v. State of Karnataka (2013) 8 SCC 154.
21 M.C. Metha v. Union of India (1997) 2 SCC 411 and Indian Council for Enviro-Legal Action v. Union of India
(1996) 3 SCC 212.
22 Shivarao Shantaram Wagle (II) v. Union of India (1988) 2 SCC 115.
 9

decisions. An illustrative example is the case of Vishakha and others v. State of Rajasthan,23 in
which the Supreme Court in 1997 laid down the rules for sexual harassment at the
workplace after a violent rape of a woman who tried to prevent a forced child marriage. In
this case the Court not only decided that the consideration of ‘International Conventions
and norms are significant for the purpose of interpretation of the guarantee of gender
equality, right to work with human dignity in Articles 14, 15, 19(1) (g) and 21 of the
Constitution and the safeguards against sexual harassment implicit therein.’ It also
formulated a set of rules that became popularly known as the Vishaka Guidelines. These
judicial rules defined what constitutes sexual harassment and ultimately led to the ‘Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act’, 2013.

As Abeyratne and Misri have argued, the reason why the courts have managed to often take
on a quasi-legislative and managerial role is that many Indians have grown sceptical about
the role of the legislature and the executive branch in solving certain major governance
issues. They sketch a number of factors that have compelled courts to intervene, such as
partisan interests in parliament, a lack of will and resources to address certain problems
(e.g., government corruption), misplaced priorities, and bureaucratic sloth made, especially
the Supreme Court, to use its broad powers under Articles 141 and 142 of the Indian
Constitution.24 These articles provide the Court with the power to pass any decree or order
necessary for doing complete justice in any cause or matter pending before it. Even Kapadia,
former Chief Justice of the Supreme Court, has argued that:
In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to
legislation. Such exercises have little judicial function in them. […] Its (courts) justification is that the other branches of
government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the
courts should be circumspect in understanding the thin line between law and governance.25

Notwithstanding this warning, the High Courts and the Supreme Court have continued to
take decisions that either overrule existing legislation or introduce new law. Regarding the
former, a five-judge Constitution Bench of the Supreme Court in 2018 decriminalized
homosexuality by partially striking down the colonial era provisions of Section 377 of the
Indian Penal Code. In a combined judgment, the Supreme Court ruled that the section
would no longer apply to consensual same-sex acts between homosexuals, heterosexuals,
lesbians and other sexual minorities, but would continue to apply to bestiality and sexual
acts without prior consent.26 Regarding the latter, the Court has recognized rights to food,2728
education,29 and government information.30 In addition, it helped pressure the government
23 Vishaka and Ors v. State of Rajasthan, Air 1997 SC 3011.
24 R. Abeyratne and D. Misri, ‘Separation of Powers and the Potential for Constitutional Dialogue in India’ (2018)
Journal of International and Comparative Law 5, 363–85 at 371.
25 Hindustan Times April 16 2011. See: www .hindustantimes. com/ delhi/j udges -should -not -sit -as -super -
legislature- cji/story -wd 0GjOVjD88I MY06HyPp7J .html .
26 Navtej Singh Johar v. Union of India (2018) AIR 2016 SC 76.
27 E.g., People’s Union for Civil Liberties v. Union of India (2007) 1 S.C.C.
28 .
29 E.g., Mohini Jain v. State of Karnataka (1992) 3 S.C.C. 666.
30 E.g., State of Uttar Pradesh v. Raj Narain (1975) 3 S.C.R. 333 (India); Sec’y, Ministry of Info. & Broad., Govt.
of India and others v. Cricket Ass’n of Bengal and others (1995) 2 S.C.C. 16; Sheela Barse v. State Of Maharashtra
 10

to enact new legislation and implement administrative and regulatory frameworks in order
to effectuate these rights.31
The way courts have used their investigative powers in combination with the providing of
specific quasi-legislative orders and guidelines have also led to debate among legal scholars,
both in India and abroad on the legitimacy of judicial decisions in PIL cases. Certain scholars
suggest that the judiciary has disregarded the constitutional separation of powers by taking
over a role that belongs to the executive and legislative branch without being equipped to
do so and also lacking democratic legitimacy. Other scholars, however, defend that the
Western division of competences between different co-equal branches of government does
not apply to India in the same way. This would be the result of large-scale corruption and
bureaucracy in the executive branch that frequently leads to apathy, and the strong political,
ethnical, and religious divisiveness in Parliament, which frequently paralyzes decision-
making.

How far this regulatory and managerial role of the courts in PIL cases may go will be
illustrated by a detailed description of the Delhi vehicular pollution case.

DELHI VEHICULAR POLLUTION CASE

In December 1985, M.C. Metha, an environmental lawyer working at the Supreme Court bar
filed writ petitions to draw the Court’s attention to the rising level of air pollution in Delhi. 32
Metha asked the Court to take steps to reduce Delhi’s air pollution in the interest of public
health and implement existing environmental regulations, including the Air Act of 1981, and
relocate certain polluting industries operating within the National Capitol Territory (NCT). At
the time, Delhi was one of the world’s most polluted cities and air pollution caused
approximately 10,000 early deaths a year, while the government was showing little interest
in this problem.

The First Steps

In reaction to Metha’s writ petition, the Supreme Court in 1986 expressed its desire to
‘protect the health of the present and future generations’ and directed the Delhi
administration to file an affidavit specifying steps it had so far taken for controlling emissions
of smoke, dust, and noise from vehicles plying in Delhi.33 The Court also directed the
Ministry of Environment and Forests (MoEF) in 1991 to set up a committee chaired by

(1987) 4 S.C.C. 373; Union Of India v. Ass’n For Democratic Reforms and Another (2002) 5 S.C.C. 294; People’s
Union For Civil Liberties (PUCL) and Another, Petitioner v. Union of India and Another (2003) 1 S.C.C. 2353; S.P.
Gupta v. Union of India (1981) 4 S.C.C. 87. See also: S. Routh, ‘Independence Sans Accountability: A Case for Right
to Information Against the Indian Judiciary’ (2014) Wash. U. Global Stud. L. Rev. 13, 321.
31 M. Mate, ‘The Rise of Judicial Governance in The Supreme Court of India’ (2015) Boston University
International Law Journal 33, 169–224 at 172.
32 S.C. Writ Pet. (Civil), M.C. Mehta v. Union of India (1985) (No. 13029/1985). M.C. Mehta v. Union of India
(Delhi Industrial Relocation Case) Writ Petition Number 4677 of 1985.
33 R. Armin and M. Jackson. ‘The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial
Power’ (2993) Columbia Journal of Environmental Law 28 (2), 223–54 at 232.
 11

retired Justice K.N. Saikia to assess technologies worldwide and recommend low cost
alternatives for the operation of motor vehicles at reduced pollution levels in the
metropolitan cities of India. The committee members were petitioner M.C. Metha, then-
chairmen of the Central Pollution Control Board (CPCB) N.S. Tiwana, and a representative of
the Indian Automobile Manufacturers S. Girdharlal. The Supreme Court assigned the
committee:
(i) To make an assessment of the technologies available for vehicular pollution control in the world; (ii) To make an
assessment of the current status of technology available in India for controlling vehicular pollution; (iii) To look at the
low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cities of India. (iv) To examine
the feasibility of measures to reduce/eliminate pollution from motor vehicles both on short term and long term basis
and make appropriate recommendations in this regard; (v) To make specific recommendations on the
administrative/legal regulations required for implementing the recommendations in (iii) above.34

For the next couple of years, new environmental laws saw the light, including the
Environment Act 1986, an amendment to the 1987, the Motor Vehicles Act 1988 and the
Central Motor Vehicle Rules of 1989. The last two Acts provided the authorities with the
power to set standards for vehicular emissions for both manufacturers and end-users. This
actually happened in 1990 when maximum exhaust emission norms were set.
Simultaneously, ambient air quality standards were prescribed for Delhi by MoEF. In 1991,
the Mathur Committee was established, led by a professor from the Indian Institute of
Technology in Delhi, to recommend vehicular mass emissions standards for 1995 and 2000,
which should replace existing voluntary emission reduction schemes that enabled
manufacturers to self-certify the vehicles they produced.35 The Mathur Committee found
that, although the traffic police significantly increased the number of fines for non-
compliance with emission standards, the level of pollution kept exceeding the existing safety
limits. When in 1989 the central government raised the penalties for not complying with
emission standards, the State transport authority for Delhi was unable to enforce these
because there was a lack of service stations with measuring equipment.36 As a consequence,
pollution levels continued to rise.

In 1991, The Saikia Committee issued a report recommending, among other things, the
introduction of low lead and unleaded fuel combined with catalytic converters. It also
suggested Compressed Natural Gas (CNG) as an alternative vehicular fuel on the basis that it
was less polluting, cheaper and more widely available in the country than petrol or diesel. 37
The MoEF, however, argued against phasing out of the lead-holding fuels, even though it
had previously announced a plan to introduce unleaded petrol throughout the entire
country and despite the fact that a World Bank study had urged the Indian government to
switch public transportation to CNG and the Oil and Natural Gas Commission had already
experimented with CNG for its own vehicles.

34 M.C. Mehta v. Union of India And Ors, 14 March, 1991, SCR (1) 866, 1991 SCC (2) 353.
35 U. Narain and R. Greenspan Bell, ‘Who Changed Delhi’s Air?’ (2006) Economic and Political Weekly 41 (16),
1584–8 at 1585.
36 The Sentinel, 31 May 1989.
37 Saikia Committee, 4th Bi-Monthly Report, 1991.
 12

Court Orders Building up the Pressure

Because little progress was made by the government, the Supreme Court from 1990
onwards, increasingly engaged with the government’s policy via court orders to improve the
air quality in Delhi by invoking the right to health for citizens and the need to protect the
environment that was previously read into Article 21 of the Constitution.38
In 1990, on the basis of a report by MoEF, the Court declared that heavy diesel-run vehicles,
such as buses and trucks were the main contributors to air pollution in the city of Delhi, 39 at
that time a city with a population of 13 million people of which 5 million passengers were
travelling by public transport.40 The next step was that the Court mandated the phasing out
of lead-holding fuel in India’s four largest cities, Delhi, Bombay, Calcutta and Madras by April
1995 and for the entire country by April 2000, the introduction of premixed fuels for two-
stroke engine vehicles, and the phase out of 15-year-old commercial vehicles. This was
followed in 1996 by a court order that all government vehicles in the city should be
converted to CNG and that an action plan should be submitted by the Delhi government. 41
The major blow came in 1998 when the Supreme Court on its own motion and because the
Delhi government remained inactive, decided that all buses, taxis and auto rickshaws in the
city of Delhi – around 100,000 vehicles51 – had to be converted to CNG by March 31 2001. In
harsh language, the Court now ordered the government to take immediate action because:
Realising the urgency and importance of protection and improvement of the environment, this Court has given direction
from time to time and impressed upon the authorities to take urgent steps to tackle the acute problem to vehicular
pollution in Delhi. Assurances have been held out to the Court through various affidavits filed by the competent officers
that effective steps shall be taken in a phased manner within a specified time span. In spite of the matter having
engaged the attention of this Court for a long time and lengthy debates on each hearing, precious little appears to have
been done by the State Administration to check and control the vehicular pollution. We are rather distressed at this
apathy of the State Administration, when according to the White Paper published by the Government of India, the
vehicular pollution contributes 70% of the air pollution as compared to 20% in 1970. In the White Paper published by
the Government of India, a dead line of 1st April, 1998 had been proposed for implementation of major actions. No
concrete steps have however, been taken till date in spite of the assurances held out in the affidavit dated November
18, 1996.52

This 1998 court order was for the Delhi government a sign that the Supreme Court was
taking things seriously. Especially when the Court initially refused to extend the deadline
while 31 March 2001 was approaching and it became clear that the city was not ready for
the conversion,53 a blame game started among politicians and government officials. It also

38 L. Rajamani, ‘Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation,
Equity, Effectiveness and Sustainability’ (2007) Journal of Environmental Law 19 (3), 293–321 at 294.
39 M.C. Mehta v. Union of India and Others on 14 November, 1990, AIR 1991 SC 1132, (1991) 2 SCC 353.
40 R. Metha, ‘History, Politics and Technology of CNG-Diesel Switch in Delhi’ in Land Use, Transportation and
the Environment, The Transport Asia Project Workshop, December 2001, Pune, India available at:
www .seas .harvard .edu/ TransportAsia/w orkshop _papers/ Mehta .pdf.
41 This suo moto court order was probably – at least partly – a response to the monograph ‘Slow murder: The
Deadly Story of Vehicular pollution in India’, published in November 1996 by the Centre for Science and
Environment Delhi, which was used statistics from a World Bank study estimating that the costs of ambient air
pollution in Delhi alone run up to around US$100–400 million. It presented estimates that 2,000 metric tons of
pollutants were released into the atmosphere every day, with vehicular pollution accounting for 64 per cent of the
total pollution
 13

triggered the launch of a campaign to discredit the scientific evidence the Court used to
defend the transition from diesel to CNG.

load of Delhi. See: A. Agarwal et al, ‘Slow Murder: The Deadly Story of Vehicular Pollution in India’, Centre for Science
and Environment, New Delhi 1996.
51
A. Trust, On the Road to Nowhere? Autorickshaws in Delhi: The System, Problems and Recommendations
(New Delhi: AMAN Public Charitable Trust, February 2018), p. 12. (http:// amanpanchayat .org/ wp -content/
uploads/ 2018/ 01/ Auto _ -rickshaws _Delhi .pdf).
52
M.C. Mehta v. Union of India & Others, order of 28 July 1998 (available at: https://i ndiankanoon.org/ doc/
1351218/ ).
53
Ibid., order of 26 March 2001 (available at: https:// indiankanoon .org/ doc/ 92613/ ). The Court declared,
among other things:
After hearing learned counsel for the parties seeking extension of the March 31, 2001 deadline, we are of the
opinion that a blanket extension of deadline cannot be given as that would amount to putting premium on the
lapses and inaction of the administration and the private transport operators. Orders of this Court cannot be treated
lightly. They are meant to be complied with in letter and in spirit.

The Role of Science in the Blame Game Between

Government and the Supreme Court
After the deadline of 31March 2001 expired, chaos erupted in the capital. Less than a
quarter of the 12,000 buses in Delhi were allowed on the road because they had not been
converted to drive on CNG in time and the bus companies were afraid to be held in
contempt of court. As the media were flooded with images of heavily overcrowded buses,
loads of stranded commuters and numerous buses waiting for hours in line of the scarce
CNG fuelling stations, a flood of objections was launched against the too ‘abrupt’ transition
of Delhi’s public transportation system from Diesel to CNG.

Next, Minister of Health Vardhan claimed that air pollution would not increase the risk of
heart and lung diseases. Transport Minister Hashmi denied the reliability of CNG as fuel
source because it would be irresponsible to spend a large amount of money for the
conversion of diesel engines to CNG, while the latter would be ‘an unproven technology’. 42
Since the Court was serious and determined to tackle the problem of air pollution due to
traffic, new arguments were brought to the fore by the Delhi government, such as the fact
that the transition to CNG would not be cost-effective and the infrastructure to distribute
CNG would not be up to the task. In addition, private bus operators claimed they had not
been given previous notice about the litigation or the Court’s orders. In January 2001, they
asked the government to request from the Supreme Court an extension for bus conversion.43
After Delhi’s Chief Minister Sheila Dixit declared in Parliament that she would rather face
contempt of court than allow citizens to suffer, the Court extended the deadline several
times to ultimately 31 March 2002.
42 A. Sebastian and S. Thangiah, ‘Compressed Natural Gas in India: Contemporizing the Delhi Pollution Case’
(2013) Universal Journal of Environmental Research and Technology 3 (3), 393–400, at 395.
43 R. Greenspan Bell, K. Mathur, Urvashi Narain and D. Simpson, ‘Clearing the Air: How Delhi Broke the Logjam
on Air Quality Reforms’ (2004) Environment: Science and Policy for Sustainable Development 46 (3), 22–39 at 29.
 14

In the meanwhile, the government-appointed a committee, headed by the Director General

of the Council for Scientific and Industrial Research (CSIR), R.A. Mashelkar, to come up with
an ‘Auto fuel policy for India’. In short, the committee embraced economic incentives and
emission targets that would leave the choice of fuel to consumers instead of opting for
command-and-control regulations because that would stifle technological innovation and
discourage future scientific research to stimulate further improvement. Moreover, the
committee claimed there would not be enough CNG available for the conversion of the bus
fleet.44 Opponents of the conversion also referred to a Harvard University study, which they
claimed would prove that ultra-low sulphur diesel could be a good alternative for CNG
because it would reduce nitrogen oxides and particulate matter (PM10) emissions to levels
comparable to CNG.

The Supreme Court rebutted both studies. Regarding the Mashelkar Report, the Court even
suggested there was malicious intent since the government had apparently not thought of
setting up such a Committee between M.C. Metha’s petition in 1986 and 2001, when an
order was passed in which the apathy on the part of the government in carrying out the
orders of the court was addressed. This left the Court with no doubt that its intention is: ‘to
frustrate the orders passed by this Court with regard to conversion of commercial vehicles to
CNG. The manner in which it has sought to achieve this object is to try and discredit CNG as
the proper fuel and, secondly, to represent to this Court that CNG is in short supply and,
thirdly, delay the setting up of adequate dispensing stations’.45
Regarding content, the Court argued that, although the Mashelkar Committee claimed to be
concerned with the health effects of the use of diesel engines, there was no doctor or other
public health experts appointed to the committee. The Court also considered that the
committee, while advocating new stricter emission norms was disregarding that existing
(more lenient) emission norms were already violated on a massive scale. Moreover, the
committee would not have taken fuel adulteration into account, although there was clear
evidence of rampant and uncontrollable fuel adulteration, largely from government-
subsidized kerosene.46
In its rebuttal of the Mashelkar Report, the Court leaned heavily on the Environment
Pollution (Prevention and Control) Authority (EPCA) – also known as the Bhure Lal
Committee – established in 1998 under the orders of the Court, to study the problems of
vehicular air pollution, conduct fact-finding, and present practical and effective solutions.
This committee had proposed the conversion to CNG. EPCA was composed of a
representative from the Central Pollution Control Board, the Automobile Manufacturers
Association of India, the Centre for Science and Environment (an environmental NGO) and
the Transport Department of Delhi, and the Central Vigilance Commission.47 The strength of
this committee was that it directly heard stakeholders, monitored the compliance of
44 R.A. Mashelkar a.o, ‘Report of the Expert Committee on Auto Fuel Policy’ Delhi 2002.
45 M.C. Mehta v. Union of India and Others on 5 April, 2002 (2) SCR 963.
46 ‘Manufactured Chaos’. Down to Earth, 30 April 2001.
47 M. Jackson and A. Rosenkrancz, ‘The Delhi Pollution Case: Can the Supreme Court Manage the Environment?’
(2003) Environmental Policy & Law 33 (2), 88–91 at 89.
 15

government policies with court orders, and conducted fact-finding missions to falsify claims
about, for example, the shortage of CNG that would be available for the conversion of
buses. Due to the authority of its chairman, the committee usually succeeded in providing
unanimous reports.48 The Court was also lucky that it had the support of the larger public
and the mainstream media because around this time the air quality in Delhi was so poor and
caused so many health problems that it was clear to most people that swift action was
required and that it would most likely not come from the (local) government.49

Another study that was brought to the fore by the government to oppose the Supreme
Court’s orders requiring a transfer from diesel to CNG for vehicles used for public
transportation, was a study by the Harvard Centre for Risk Analysis.50 This study contended
that CNG vehicles would emit even more ultra-fine particles than diesel vehicles and had
mysteriously made its way to the top officials in the Delhi government and to the TATA
Energy Research Institute (TERI). Luckily for the Court, the Harvard study was soon
debunked by the Centre for Science and Environment in Delhi.51 The study that was invoked
by the Lieutenant Governor of Delhi in the local media arguing that the conversion of buses
to CNG would be problematic due to the alleged emission of nanoparticles, turned out to be
a six-page pamphlet without any references to scientific literature. Not only was the study
funded by Navistar – one of the world’s largest truck manufacturers – but an expert from
the U.S. Environmental Protection Agency who was consulted to review the study argued:
‘Any undergraduate who turned such a report in to his professor would surely get a very
poor grade.’64 Moreover, the Harvard paper was also falsified by a study issued by the U.S.
Department of Energy to the National Renewable Energy Laboratory (NREL). In a paper
called ‘Separating myth from fact’

NREL showed that emission testing of buses in Boulder Colorado running on CNG were
emitting >97% less ultra-fine particles (PM 10) and 58 per cent less nitrogen oxide (NOx)
compared to similar sized diesel buses.52

Supreme Court Decision: Conversion to CNG Should Go

Ahead
On 5 April 2002,53 the Indian Supreme Court provided a blistering ruling that the CNG
conversion of the Delhi public transportation sector should go ahead without further
48 Greenspan Bell et al. (n 55) at 28.
49 See for more about this and a deeper explanation of the (relative) success of the Court in monitoring and
enforcing its orders: R. Moog, ‘Implementation in the Delhi Pollution Case: Lessons for the Future’ in G. Rosenberg,
S. Krishnaswamy, and S. Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive
Social Change (Cambridge: Cambridge University Press 2019), pp. 269–92 at p. 284 ff.
50 E. Toy et al, ‘Fueling Heavy-duty Trucks: Diesel or Natural Gas? Risk in Perspective’, Harvard Centre for Risk
Analysis, Volume 8, Issue 1, January 2000.
51 See: http:// www .rainwaterharvesting .org/ cse/ campaign/ apc/ myths _facts/ myth3 .htm. 64 Ibid.
52 National Renewable Energy Laboratory (NREL), Natural gas buses: Separating myth from fact, United States
Department of Energy, April 2000
(https://w ww .nrel .gov/ docs/ fy00osti/ 28377 .pdf).
53 M.C. Mehta v. Union of India and Others on 5 April 2002 (2) SCR 963.
 16

defiance of court orders by the executive. The Court starts with a reminder that its objective
since 1986 has always been to persuade governmental authorities to take the necessary
steps to reduce the air pollution for the citizens of Delhi, which has so far resulted in:

• Lowering the sulphur content in diesel, first to 0.50 per cent and then to
0.05 per cent;

• ensuring the supply of only lead-free petrol;

• requiring the fitting of catalytic converters;
• directing the supply of pre-mix 2T oil for lubrication of engines of two-wheelers and
three-wheelers;
• directing the phasing out of grossly polluting old vehicles;
• directing the lowering of the benzene content in petrol; and
• ensuring that new vehicles, petrol and diesel, meet Euro-II standards by September 2000.
Next, the Court reminds the government that it was the Environment Pollution Prevention
and Control Authority, established under Section 3 of the Environment Act 1986, directing
the conversion to CNG and the phasing out of non-CNG buses. The Court only set time limits
in 1998, which were undisputed by the government at the time. Concerning the need to find
possible cleaner alternative fuels, the Court reiterates that the government itself had as
early as in 1994 – long before the establishment of EPCA – suggested that equipping
government vehicles with CNG cylinders would be a good idea to reduce air pollution. In the
meanwhile, however, the government would have undertaken hardly any action to convert
commercial vehicles to CNG. Moreover, the government would have repeatedly requested
the extension of deadlines set by the Court arguing that a disruption of the public
transportation system should be prevented.

Subsequently, the Court dismissed the central objections made by the government, such as
that the conversion to CNG would be impossible, both technically and economically.
According to the Court, the shortage of CNG would be imaginary because the amount
needed for commercial transportation would only be a small fraction of the CNG supply to
industry. In case of a sudden shortage, priority should be given to public transport. The
Court also refuted the argument that it would be impossible to convert to CNG due to a
shortage of CNG-operated buses. After consulting the two main manufacturers of CNG
buses, Ashok Leyland and Tata, the Court ordered the immediate installation of 1,500 CNG
buses and demanded the replacement of 800 diesel buses a month starting 1 May 2002
until the entire fleet was converted.

The Court further debunked the claim by the government that no other city in the world has
introduced CNG buses on the scale ordered by the Court. It referred to several documented
examples where the number of CNG buses outnumber the proposed situation in Delhi.
Interestingly, the Court also referred to amicus briefs presenting various scientific studies
concerning the health effects of emissions from diesel engines. These amicus briefs showed
that the annual emission levels of, for instance, ultra-fine particles in Delhi exceeded the
 17

emissions levels in other major cities by far, while a World Bank study simultaneously
revealed the tremendous health costs to the Indian government due to air pollution. 54
Statistics would furthermore show that the vehicular air pollution has had far more
devastating effects on public health than, for example,55 the Bhopal gas tragedy, while
compared to that disaster little action had been undertaken by the Union of India to remedy
the degradation of public health. Under these circumstances, the Supreme Court saw it as
its constitutional duty to direct the necessary steps for cleaning the air so that the future
generations do not suffer from ill health. This constitutional duty was shortly after the
Bhopal tragedy confirmed in M.C. Mehta v. Union of India, where the court stated:
[i]f this Court finds that the authorities had not taken action required of the by law and that their inaction is
jeopardizing the right to life (Article 21) of the citizens of this country or any section thereof, it is the duty of this Court
to intervene. If it is found that the respondents [state agencies] are flouting the provisions of law and the directions and
orders issued by the lawful authorities, this Court can certainly make appropriate directions to ensure compliance with
law and lawful directions made thereunder.56

In response to suggestions to allow for alternative fuels, such as low-sulphur diesel, the
Court points to the fact that, LPG had been permitted to be used by the Union of India as
fuel by the transport sector. However, concerning other fuels, the Court points to the danger
of fuel adulteration, such as the mixing of diesel with cheaper, but more polluting, kerosene.
Merely lowering the sulphur and benzene content in diesel and petrol would therefore
probably have little effect unless oil companies can guarantee that the fuel they sell from
the dispensing stations is pure and unadulterated. This would, for the most part, not be the
case. The Court acknowledges that even while the deadline for the phasing out of diesel
buses is expired and the government has not fully complied with the Court’s orders, a
different formula for the conversion needs to be worked out in order to cause as little
inconvenience to the travelling public as possible, while simultaneously punishing the
wrongdoers who have disregarded the directions of the Court. This is why the Court issued a
permit system temporarily allowing a quota of diesel run buses, which would be gradually
phased out, while the permits would cost Rs 500 per bus per day and after expiration of the
(new) phase-out deadline Rs 1000 per bus per day.

The Court concludes with a number of directions: (a) the Union of India should give priority
to the transport sector in case of a shortage of allocation of CNG; (b) the government would
need to pay a Rs 20,000 fine for disobeying court orders; (c) the National Capitol Territory of
Delhi needs to phase out 800 diesel buses per month from 1 May 2002 onward. Till all the
diesel buses are replaced, the bus owners who continue to ply diesel buses have to pay a
tariff as mentioned above; (d) those who have placed orders for CNG buses but have not
54 In this case, the successor of M.C. Metha, Harish Salve, who functioned as amicus curiae appointed by the
Supreme Court was, according to some, a combination of special master and advisor to the justices’. He collected
facts and empirical data and distilled from the numerous affidavits and other representations submitted to the Court
what was relevant. At several instances, Salve did factual research to debunk what he described as ‘extravagant
claims’ made by either the government or the industry/transport sector. See: Greenspan Bell et al. (n 55) at 39.
55 According to the Court, a study undertaken by a Swedish Consultancy Agency Ecotraffic in 1999 would show
that the cancer potency of diesel vehicles is more than two times than that of petrol vehicles in India. The
carcinogenic effect of one new diesel car would be equivalent to 24 petrol cars and 84 new CNG cars on the road.
56 M.C. Mehta v. Union of India 8 (2004) 6 SCC 588 (616).
 18

taken delivery, must do so within two weeks; (e) owners that continue to ply diesel buses
beyond 31 January 2002 need to pay a Rs 500 fine per bus per day, increasing to Rs1000 a
day after 30 days.

The Immediate Aftermath

Immediately after the Supreme Court’s decision, there was popular resistance and
widespread protest, especially from commuters, because of the immense chaos and
congestion due to the court orders. When the diesel buses went off the roads, people were
outraged, burnt buses and stoned police officers since it caused a huge shortage of public
transportation, which even threatened to affect the possibility for children to travel to
school.57 In an attempt to get the support of the public, the Chief Minister declared that she
would be willing to face punishment for contempt of court in the interests of the people of
Delhi. However, no reference was made to the fact that the government had done very little
so far to comply with previous court orders.

Interestingly, though, Delhi residents soon after the court ruling of 2002 approved of the
results. A survey prior to the 2003 state elections noted that the improvement in air quality
in Delhi was seen by most citizens as one of the main achievements that contributed to the
re-election of the incumbent government.58 During the election campaign, several politicians
who were previously against the court rulings ordering the transition to CNG suddenly tried
to take credit for the improved air quality in the city.59 Different views are possible with
regard to the role of the Supreme Court in the ‘battle of the sciences’ over the use of
cleaner fuels. On a positive note, one may conclude that the policies ordered by the Court
were primarily based on recommendations from EPCA, which is a representative advisory
government body that often build part of its recommendations on policies formulated – but
often not implemented – by the Delhi local government and the MoEF. Often the Court
forced the government to carry out these announced policies. Narain and Bell found little
evidence that the Court itself devised environmental policies.60
From a more critical perspective, one might say that the legal basis for many specific and far-
reaching court orders was rather vague based on constitutional provisions, such as the right
to life, in combination with Directive Principles of State Policy contained in part IV, Articles
36–50, of the Indian Constitution.

57 K. Mathur, ‘Battling for Clean Environment Supreme Court, Technocrats and Populist Politics in Delhi’,
Working paper series, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
CSLG/WP/01, New Delhi August 2004 [Reprint 2012], pp. 21–23.
58 Anon., ‘Poll Posturing,’ Down to Earth, 15 November 2003, Society for Environmental Communications, New
Delhi.
59 Greenspan Bell et al (n 55) at 36.
60 U. Narain and R. Greenspan Bell, ‘Who Changed Delhi’s Air? The Roles of the Court and the Executive in
Environmental Policymaking’, Working paper Resources for the Future, Washington, December 2005, RFF DP 05-
48, p. 18.
 19

However, one could also argue that the activism of the Supreme Court reflects the growing
insensitivity of the government to the problems of those without a strong political voice,
such as the citizens of Delhi who suffered from increasing air pollution.

Regarding the latter, Mathur argued that citizens and NGOs have increasingly sought
recourse from the Court because they have far more faith in the neutrality and transparency
of the judicial process, than in partisan politics that have often failed to address policy gaps
and stepping in where powerful groups, such as polluting industries or the transport lobby,
try to block necessary government interventions.61 He warned, though, that the activism of
the Supreme Court may in some ways also affect the credibility of political institutions
because people increasingly seem to look to the judiciary to solve problems that in principle
belong to the domain of the executive or the legislative branch. According to Mathur, this
brings a serious risk for the Court that administrators and legislators will try to use the Court
as a scapegoat to hide behind when things go wrong, to which he adds: ‘Ironically, de-
politicization of an issue by the Court may lead to its own politicization.’62

Longer Term (Adverse) Effects: The Case of the

Rickshaw Drivers
As mentioned above, the Indian Supreme Court on 28 July 1998, issued that all public
transport in Delhi would be converted to run on CNG, which included buses, taxis and auto-
rickshaws – better known as TSRs: ‘Three-wheeled scooter rickshaws’ –, some 100,000
vehicles in total. This decision undoubtedly had a positive effect on the air quality in Delhi at
the start of the twenty-first century.63 However, especially the conversion of rickshaws to
CNG in combination with a 1997 court order to freeze the number of TSRs and to only grant
fresh permits by way of replacement of existing TSRs also proved to have adverse long-term
effects.64

A first effect of these measures was that the number of registered TSRs decreased from
72,429 in 1997 to 55,236 in 2010. Not only did the cap on TSRs lead to a black market for
rickshaw permits, which drove up the price, the conversion to CNG also required an
investment in expensive CNG conversion kits for TSRs to a level that most private owners
could not afford. Secondly, because the Delhi population continued to grow this also
increased the demand for (public) transport. EPCA noted that by 2010 Delhi was registering
1,000 new private vehicles every day! Hence, while TSRs were cheaper, transported on
average more people than private cars, and were generally less polluting than private cars,
61 Mathur (n 70), p. 27.
62 Ibid., p. 28.
63 U. Narain and A. Krupnick, ‘The Impact of Delhi’s CNG Program on Air Quality’, Washington: Resources for
the Future, February 2007 (https:// media .rff .org/ archive/ files/ sharepoint/ WorkImages/ Download/ RFF -DP -07 -
06 .pdf). See also: C. Reynolds and M. Kandlikar, ‘Climate Impacts of Air Quality Policy: Switching to a Natural
Gas-Fueled Public Transportation System in New Delhi’ (2008) Environmental Science & Technology 42 (16), 5860–
65.
64 See for the history of these measures: S. Harding and A. Hussain, On the Road to Nowhere? Autor ickshaws in
Delhi: The System, Problems and
 20

the court orders led to a decline in the number of TSRs and a spectacular rise in the number
of private cars until the Supreme Court in 2011 finally allowed 45,000 new auto-rickshaw
licenses to be granted.78 Thirdly, the initial permit freeze by a court order for TSRs made that
almost the entire fleet of auto-rickshaws came under the control of financiers,79 which drove
the previously privately owned TSR-drivers into wage labour because the bulk of the TSRs
came in the hands of a limited number of people who rented the vehicles at often
outrageous charges to taxi drivers.

According to Bhuwania, the Supreme Court was largely to blame for this, because it would
have acted on purely environmental grounds in an attempt to reduce the air pollution
caused by commercial vehicles, without adequately considering the impact its decisions
might have on the vulnerable group of private rickshaw drivers who depended on their
vehicles to make a living.80 Bhuwania even accused the Court of ‘bourgeois
environmentalism’ because it would have held tens of thousands poor rickshaw drivers
responsible for bearing the cost of a temporary reduction of air pollution in Delhi. This
without ever hearing representatives of this group in court when it came to the effects of
the court orders. All in all, the Supreme Court rulings would have: ‘significantly worsened
the livelihood of thousands of poor informal-sector transport workers in the name of
environmental problems and the need for clean fuel, while stimulating the demand and
supply of private automobiles, just when

Recommendations (AMAN Public Charitable Trust, New Delhi 2010) (http:// amanpanchayat. org/ wp -content/u
ploads/ 2018/ 01/ Auto _ -rickshaws _Delhi .pdf).
78
EPCA, Review of Existing Cap on the Number of Three-wheelers in Delhi and its Implications for Pollution
and Congestion. EPCA Report Number 2010-34, Delhi: January 2010, p. 2. (www .in diaenvironm entportal.org .in/
files/e pc a _0 .doc).
79
See M.C. Mehta v. Union Of India and Ors on 16 December, 1997 (https:// indiankanoon. org/ doc/
534459/ ).
80
A. Bhuwania, ‘The Case that Felled a City: Examining the Politics of Indian Public Interest Litigation through
One Case’ (2018) South Asia Multidisciplinary
Academic Journal 17, 1–25 at 7. See: (http:// journals .openedition .org/ samaj/ 4469).
this sector was opening up in a post-liberalization Indian economy’.65 Finally, the positive
effects of the Court orders on Delhi’s air quality would have lasted less than a decade
because of the exponential growth of private transportation.

SUPREME COURT DRAGGED INTO THE DEEP

WATERS OF POLICYMAKING
Interesting in the Delhi case is the interchange between the Court and the executive branch
with expert committees as intermediaries. This started with the Supreme Court’s directive to
the MoEF in 1991 to establish a committee charged with the task to study technologies
worldwide and recommend low-cost alternatives for the operation of motor vehicles at
reduced pollution levels. The order was meant to push the Delhi government to take steps
65 Ibid., p. 6.
 21

to reduce the increasing air pollution in the city. As mentioned above, the committee came
up with the plan to phase out lead fuel, diesel engines and convert public transport to CNG.

The latter is how the Supreme Court often operates in cases where it is ill equipped to make
policy recommendations or order a specific kind of regulatory measure. It will usually ask
the government to present a plan on how to address the constitutional problem identified
by the Court. Such a plan then becomes the subject of negotiations between the litigants.
The case also reveals that, as soon as the executive branch failed to live up to its promises to
deliver on policy plan to reduce air pollution, the Court got drawn deeper and deeper into
(environmental) management problems. Moreover, the Court became part of a scientific
battle over the – previously agreed upon – conversion to CNG, versus alternatives like ultra-
low-sulphur diesel and other allegedly less polluting fuels. What the case also shows is that
the government initially seemed to go along with the Supreme Court 1998 ruling, in which
the Court by its own motion decided that all buses, taxis and auto rickshaws in the city of
Delhi – around 100,000 vehicles – had to be converted to CNG, but by 31 March 2001,
things had become heated.

On the one hand, the government tried to delay the court’s orders by arguing that the
implementation was unfeasible. On the other hand, the government attempted to spur
scientific doubt by appointing its own scientific committee (the Mashelkar Committee) to
broaden the problem by developing an auto fuel policy for India as a whole. This committee
tried to sell emission targets and economic incentives as an alternative for the conversion to
CNG because this would be less likely to stifle innovation. The Supreme Court basically
followed a two-way approach to counter these arguments.

Firstly, the Court relied heavily on recommendations of the EPCA also known as Bhure Lal
Committee, which came to light as a consequence of court orders, but was basically a
representative advisory government body that build most of its recommendations on
policies formulated – but often not implemented – by the Delhi local government and the
MoEF. In other words, often the Court simply forced the government to carry out these
previously announced policies. Secondly, the Court to some extent succeeded in avoiding
being caught up in a battle of the sciences by pointing to certain practical disadvantages of
the policy alternatives presented by the government that would leave more freedom of
choice and room for technological innovation. In this regard, the Court pointed to the lack of
inspection and enforcement capacity and to the real and present risk of fuel-adulteration.

The Delhi vehicular pollution case also reveals that success and failure in judicial lawmaking
in PIL cases lie closer together than may appear at first glance. Telling in this respect is that
soon after the 2002 decision that forced the CNG conversion of the Delhi public
transportation sector should go ahead without further defiance of court orders by the
executive, which was heavily contested by the public, a survey showed that most citizens
were positive about the improvement of the air quality in the city. In the 2003 State
elections, the incumbent government that opposed a number of the Court’s orders
 22

concerning the conversion of the public transportation system to CNG tried to take credit for
the improved air quality.

The latter might be seen as the executive branch ‘stealing legitimacy’ by adopting the
positive consequences of the Court decision for the improved air quality. At the same time,
though, the decision by the Court to freeze the permits for motorized rickshaw’s and
simultaneously ordering them to converge to CNG has had major adverse effects. Last but
not least, studies have in the meanwhile shown that the air quality improvement in Delhi
was temporary. Although the Court has continued to monitor the air pollution and urging
the government to take measures, it seems to have shied away from the type of far-reaching
measures, we saw in the Delhi vehicular pollution case before.66 This raises an important
question regarding the consistency and willingness from the side of the Supreme Court to
uphold, for example, the right to health that was previously used to legitimize judicial
lawmaking.

The latter is important because as Moog has rightly argued, pollution levels began to rise
again within five or six years after the implementation of the court order to convert public
transportation to CNG. There are two main reasons for this. The first one is the steep
increase in private cars and two-wheelers (e.g., mopeds, motorcycles) which were excluded
from the court ordered CNG switch. The second reason is the sharp increase of air pollution
from sources other than vehicles, such as the manufacturing industry; power plants; brick
kilns; waste burning facilities, etc. Most of the problems regarding air pollution have to do
with fine particles. A 2014 EPCA report revealed that after the early improvement in Delhi’s
air quality between 2002 and 2007, there was a 75 per cent increase in PM 10 emissions
between 2007 and 2012 and a 30 per cent increase in nitrogen oxide levels. The EPCA report
also pointed to the strong increase in private vehicles as one of the main causes together
with the price difference between CNG and (cheaper) diesel together with a flawed public
transportation system.67

TOWARDS A SPECIALIZED ENVIRONMENTAL

TRIBUNAL
The Delhi vehicular pollution case and similar environmental cases over the years
stimulated the Indian Supreme Court to call for the establishment of more specialized
environmental tribunal that could better incorporate judicial and scientific inputs. In A.P.
Pollution Control Board v. M.V. Nayudu, the Supreme Court, after an elaborate discussion of
the views of jurists of various countries and previous judicial decisions, suggested setting up
specialized environmental courts which would benefit from the incorporation of
environmental experts in the judicial process.68 An additional reason was that the Supreme

66 See: https:// www .nytimes .com/ 2021/ 11/ 18/ world/ asia/ india -new -delhi -pollution. html.
67 Moog (n 61), p. 280.
68 A.P. Pollution Control Board v. M.V. Nayudu, 1999 (2) SCC 718).
 23

Court and High Courts were flooded by with complex environmental cases, often requiring
scientific expertise.69
The signal by the Supreme Court was picked up by the Indian Law Commission, which in a
2003 report,86 advised repealing the existing National Environmental Appellate Authority
and another tribunal set up in accordance with the National Environmental Tribunal Act
1995, which was also deemed ineffective, and replace it with environmental courts with
judicial members and technical experts. The Law Commission stressed the lack of knowledge
on the side of judges on the scientific and technical aspects of environmental issues and the
need to provide, not only expert advice from the Bar but also independent expert advice to
the Bench itself.70
The signals from the Supreme Court in combination with the report from the Indian Law
Commission resulted in the National Green Tribunal Act of 2010 (NGT Act). 71 The tribunal
has ‘jurisdiction’ over all civil cases where a substantial question relating to environment
(including enforcement of any legal right relating to environment) is involved and such
question arises out of the implementation of the environmental law specified in an annex
(Schedule I) to the Act. The NGT is functional in five locations with New Delhi as its principal
seat. By establishing zonal and circuit benches the legislature aimed to ensure that poor
people and tribal populations from different parts of the country would have a low
threshold access to the tribunal. The NGT comprises a chairperson (a sitting or retired
Supreme Court Justice or Chief Justice of a High Court), between ten and 20 judicial
members and a minimum of ten and maximum of 20 expert members drawn from academia
and from administrative bodies working on environmental policy.

The NGT has original, appellate and special jurisdiction. As far as the original jurisdiction,
which can be found in Articles 14 and 15 of the NGT Act, is concerned the NGT has
jurisdiction over all civil cases where a substantial question relating to environment
(including enforcement of any legal right relating to environment), is involved and disputes
that arise out of the implementation of the enactments specified in Schedule I. The subject
matter of an original application is therefore a civil case and relates to a substantial question
concerning the environment. The appellate jurisdiction is determined by Article 16 of the
NGT Act, which holds that the NGT is the appellate authority competent to decide questions
of law and fact against orders and decisions passed by authorities under the enactments
specified in Schedule I. In terms of access to justice, ‘aggrieved persons’ have the right to
approach the Tribunal under its original or appellate jurisdiction, which has been interpreted
very flexibly. An aggrieved person means: any person – whether a resident of that area or
not and whether personally, directly or otherwise aggrieved – may approach the Tribunal.
Article 15 provides the NGT with special jurisdiction to order relief and compensation to
victims of pollution and other environmental damage arising under the acts specified in

69 T.N. Subramanian and R. Vakil, ‘The Mechanisms of the National Green Tribunal’ (2018) National Law School
of India Review 30 )1, 75–85 at 76. 86 See: https://l awcommissionofindia .nic .in/ report _seventeenth/.
70 G. Nain Gill, Environmental Justice in India: The National Green Tribunal (New York: Routledge 2017), p. 60.
71 See: https:// greentribunal .gov .in/ sites/ default/ files/ act _rules/ National _Green _Tribunal_ Act , _2010 .pdf.
 24

Schedule I, for restitution of damaged property and for restitution of the environment in
such areas as the NGT may think fit.72 Civil courts have to abstain from settling disputes
related to claims that fall under the purview of the NGT.73 Persons aggrieved by decisions of
the NGT may file an appeal to the Supreme Court.74

The NGT remains a ‘quasi-judicial body’ with limited power that has the authority to enforce
laws on administrative agencies. The NGT was created to ease the burden of the normal
courts. Its actions may be appealed, for example, in cases of crime and other offences and it
may only issue recommendations for criminal punishment. However, such punishment can
be challenged in a court.75 The NGT was clearly meant to deal expeditiously with cases that
were previously often brought before the High Courts and the Supreme Court. In order to
facilitate the flexibility and speedy decisions, the NGT was made free from the rules laid
down in the Indian Evidence Act, 1872 and the rules of procedure of the Code of Civil
Procedure and allowed to come up with its own rules of procedure and was granted vast
powers to issue a wide variety of remedies in order to offer appropriate relief as long as
these are justified by the facts and circumstances of the particular case.

Around 2020, ten years after its enactment, some scholars have evaluated the NGT. On the
positive side is has been noted that the NGT, in general, has been a very active. Between
October 2010 and October 2021, 35,963 cases have been filed, while at the end of 2021
only 2,344 cases were still pending. It is clear that environmental regulatory authorities, and
especially pollution control boards have become more active due to the intervention of the
NGT and that industries have become more cautious in, for example, submitting (flawed)
environmental impact assessments.76 Particularly during the chair of Justice Kumar between
2012 and 2017 the NGT became very active and broke through all kinds of procedural
hurdles concerning locus standi, laws of limitations, and rules concerning timely application
of grievances. During Kumar’s chairmanship the NGT also developed a far more offensive
approach towards huge investment projects and infrastructural development plans, where
the Supreme Court in the past showed far more deference to government policy and was
less likely to challenge irregularities in environmental clearances.77
Under the new chairperson, Justice Gloe, things seem to have changed. Far more appeals
have been dismissed on procedural grounds than before, such as: violation of the rules of
limitation, delay and lack of locus standi.78 Certainly, the change of the chairperson is not the
only reason for the NGT’s deteriorating effectiveness. In recent years, the NGT has also

72 See more in-depth: D. Shyam, and A. Rosencranz, Environmental Law and Policy in India: Cases and
Materials (Oxford: Oxford University Press, 3rd edn, 2022), p. 119–21.
73 Arts 29 and 30 of the NGT Act 2010.
74 Ibid., Art. 22.
75 S. Rengarajan, D. Palaniyappan, P. Ramachandran1 and R. Ramachandran, ‘National Green Tribunal of India—
an Observation from Environmental Judgements’ (2018) Environmental Science and Pollution Research 25, 11313–
18 at 11314.
76 S. Geetanjoy and D. Ritwick, ‘The Green Tribunal in India After 10 Years:
From Ascendancy to Crisis’ Economic and Political Weekly, 25 December 2021, p. 1.
77 Ibid., pp. 5–6.
78 Ibid., p. 6.
 25

suffered from a lack of funding, lack of appointments of members, and dilution of its
independence by the central government. To illustrate this with a couple of examples:
although initially the tribunal expert members were scientists and academics, recently more
and more bureaucrats have taken their place while, additionally, regarding both the
appointment of the chairperson and the other (expert) members of the NGT, the central
government has strengthened its grip on the selection and appointment process and
thereby on the independence of the NGT. Unfortunately, the increasing grip of the
government over the NGT has also resulted in diminished access to justice for people in
remote areas of the country because 13,000 local courts that previously dealt with
environmental issues have been replaced by the NGT, but the zonal and circuit benches of
the NGT have remained largely inoperative due to lack of funding and staffing.79
The NGT has further been accused of not effectively penalizing government authorities,
while simultaneously failing to provide a methodologically sound analysis of the true extent
of environmental damages in cases were compensation was rewarded, because it would be
too time-consuming and expensive. Consequently, the tribunal has often estimated a too
low percentage for environmental compensation in cases brought against polluters. This
could also be one of the reasons why decisions of the NGT have been appealed more than
initially expected. Finally, there would be a serious lack of implementation of the tribunal’s
decisions and the NGT itself would not sufficiently monitor whether government agencies
comply with the tribunal’s rulings.80

CONCLUSION
Indian PIL cases, such as the Delhi vehicular pollution case, are viewed by some as a
welcome or even necessary example of judicial activism and as an important driver behind
the improvement of public services. Others see them as a clear sign of courts overstepping,
disregarding the separation of powers and paralyzing the implementation of legislation by
executive agencies. More broadly, the rise of public interest litigation in India has led to
concerns that courts stress a particular type of public issues, while annihilating other issues
that are just as important. Critics argue that the Supreme Court has over the past decades
shifted its attention from protecting the poor and vulnerable (e.g., prisoners, slum-dwellers,
disabled people) against abuse of their human rights towards issues of environmental
protection (e.g., air and water pollution), nature conservation (e.g., protection of forests)
and preservation of historical buildings, ultimately ending up with maintaining the probity,
transparency and integrity of public governance.81
79 For example, via an amendment in the Finance Act 2017, a new Art 10A was introduced in the NGT Act 2010,
which basically determines that the chairperson of the NGT is no longer appointed through approval by the Supreme
Court, which has curtailed the independence of the NGT.
80 See: R. Nath Dixit and A. Rosencranz, ‘Evaluating the National Green Tribunal after nearly a Decade: Ten
Challenges to Overcome’ (2019) NLIU Law Review IX (I), 1–39.
81 H. Sato, ‘Commonalities in the Law and Development Movement and the Indian Public Interest Litigation:
Reconsidering the Roots of Their Current Difficulties’ in M.P Singh (ed) Indian Yearbook of Comparative Law 2018
(Singapore: Springer 2019), pp. 175–89 at 176. See also Indian Supreme Court, State of Uttaranchal v. Balwant
Singh Chaufal and Ors Civil Appeal Nos.1134-1135, 18 January (2010) 3 SCC 402 (para 45). 99 See: https://w ww
.cvc .gov .in/ .
 26

Although only one case was discussed above in more depth, it is safe to say that the Indian
Supreme Court and High Courts have played an important role in: relaxing the rules for
standing and broadening the scope of PIL cases. The Court has gone as far as developing suo
moto powers, which enables it to attract PIL cases without a claim from a litigating party.
However, as we have seen in the Delhi vehicular pollution case, suo moto jurisdiction may
also have certain disadvantages, such as the expanding scope of a case in which one thing
(e.g., the conversion from diesel to CNG) may lead to another (e.g., the lack of an
infrastructure for making CNG available). In terms of judicial activism, the Delhi vehicular
pollution case stands out for the way in which the Supreme Court leaned heavily on expert
advice from the Bhure Lal Committee, which proposed the conversion of public
transportation to CNG. It allowed the Court not to bend to attempts to discredit the
scientific evidence in favour of the conversion to CNG. Because of the composition of the
advisory committee, it not only had scientific credibility, but also represented important
stakeholders, including the automobile industry.99 In addition, the committee directly heard
stakeholders, and conducted fact-finding missions to falsify important claims about, the
negative effects of the conversion to CNG, while the chairman usually succeeded in coming
up with unanimous advisory reports.

With the help of the Bhure Lal Committee, the Court could debunk, for example, that the
conversion to CNG would be impossible because of a CNG shortage and that there were not
enough CNG operated buses available. Using the data provided by the committee, the Court
managed to show that the amount of CNG needed for public transport was only a fraction of
the supply necessary for the industry in the region and that manufacturers of CNG buses,
such as Tata, claimed that it was indeed possible to deliver enough vehicles in time. On top
of this, the Court could refer to several documented examples of cities where the number of
CNG buses outnumbered the proposed situation in Delhi and was able to point to several
amicus briefs presenting scientific studies concerning the health effects of emissions from
diesel engines, also showing that in many other major cities around the world the level of air
pollution due to traffic was much lower than in Delhi. As far as the objection that stricter
emissions standards would provide more leeway for technological innovation than a court
order to convert diesel-run vehicles to CNG, the Court was able to respond with practical
counter-arguments, such as, that stricter emission standards would not solve the problem of
fuel adulteration but instead probably create a compliance issue. Taken together, this
probably explains why scientific evidence and expert advice could play such an important
role in this case to legitimize far-reaching judicial interventions.

Perhaps even more important for the legitimacy of judicial decision-making in this case has
been, though, that the Court could rely on public support. Citizens living in and around Delhi
experienced on a daily basis that the air quality in the metropolitan area was deteriorating
rapidly and were therefore glad that the Court was showing decisiveness. Furthermore, the
Court could remind the government of the fact that it had as early as 1994 – long before the
establishment of the Bhure Lal committee – suggested that equipping government vehicles
 27

with CNG cylinders would be a good idea to reduce air pollution. In the meanwhile,
however, the government had hardly undertaken any action for years to convert commercial
vehicles to CNG. In other words, not only did the Court lean on the popular will in society to
demand action, but it could also confront the government with it of its own previous policy
plans and commitments. Interesting from a comparative perspective is also how the Court
used the writ of continuing mandamus in order to be able to monitor the government’s
compliance with a series of interim orders that guided the process of the conversion to CNG.
By keeping the case open and by issuing compliance reports, the Court kept a finger on the
pulse.

The Delhi vehicular pollution case is also an interesting example of the problems that courts
in PIL cases may face if they have insufficient attention for the macro-consequences of their
own decisions. This becomes the most visible in this case by looking at the mandatory
conversion of rickshaws to CNG in combination with the court order in 1997 to freeze the
number of TSRs and to only grant fresh permits by way of replacement of existing TSRs,
which in combination proved to have adverse long-term effects. Not only did it negatively
affect the availability of cheap public transport, but is also created a black market for
rickshaw permits and drove many rickshaw drivers into the hands of loan sharks because
they did not have the money to convert their privately owned vehicle to CNG. More
importantly, perhaps the environmental success of Delhi vehicular pollution case seems to
have been temporary. Bhuwania has even argued that the Court made the problem worse
because: ‘the Supreme Court displayed a stark preference for imposing disproportionate
environmental costs on public transport while allowing private transport to thrive, even
though the latter was the cause of most of the vehicular pollution in Delhi’. 82
As Moog has rightfully argued, pollution levels began to rise again within five or six years
after the implementation of the court order to convert public transportation to CNG. There
were two overarching reasons for this, namely: the increase in private cars which were
excluded from the court ordered CNG switch, and the growing air pollution from sources
other than vehicles, such as the manufacturing industry; power plants; waste burning
facilities, etc. Therefore, depending on one’s perspective, the Delhi vehicular pollution case
can either be viewed as an example of the creativity, commitment, and determination of the
Indian Supreme Court without which the situation would probably have been worse yet, or
as an undemocratic power grab by a court that was ill-equipped to manage such a complex
policy problem which is proven by

the fact that the positive effects on Delhi’s air quality were temporary.83
Mathur has claimed that those who are unable to influence political decision-making are
increasingly looking to the Court to get their grievances redressed, which could affect the
neutrality of the Court and ultimately lead to disappointment about the role of the Court
from the side of the people. In his view, the Delhi case shows that the political branches of

82 Bhuwania (n 80) at 6.
83 Moog (n 61), p. 269. 102 Mathur (n 70).
 28

government would sometimes be more than happy to leave complex policy issues to the
Court so that in cases of failure, they could blame the judiciary. Mathur believes that
attempts by the Court to depoliticize issues by relying on experts and scientific evidence
runs the risk of a politicization of the Court and attempts to escape responsibility by the
executive branch.102 Interestingly, Supreme Court judges also appear to have different views
on this.

In the case of the State of U.P. and Ors v. Jeet S. Bisht and Another,84 for example, Justice
Katju, argued that the judiciary must exercise self-restraint and not encroach upon the
domain of the legislature or the executive. If a law clearly violates the Constitution it should
be struck down, but otherwise the Court should not attempt to amend the law. 85 In the
same case, though, Justice Sinha, replied by arguing that if the Court would not be allowed
to make law, it would not have been able to create new rights or act as a necessary
countervailing power.86
All in all, it may be difficult to understand the role of the Indian Supreme Court in PIL cases
from a Western liberal democratic perspective because of its usurpation of policy functions
and the willingness to act as an occasional legislature in PIL cases. In order to assess the role
of the Supreme Court, one has to understand, though, that PIL has developed after the
emergency regime as a means to give a voice to the disadvantaged and to serve as a
counterweight to legislative inertia, administrative mismanagement and corruption.87
Simultaneously, the Delhi vehicular pollution case, is also a good example how this can drag
courts into deep managerial waters in which they can easily drown. Therefore, it is no
wonder that the Supreme Court has called for the setting-up of more specialized
environmental courts.

This has resulted in the establishment of the National Green Tribunal. The NGT has in the
meanwhile taken several decisions to improve the air quality in Delhi next to the ongoing
orders of the Supreme Court.88 The first evaluations of the NGT, after being in operation for
little over a decade, however, reveals the tribunal is starting to suffer from many of the same
issues that kept the Court occupied. After a relatively successful period during the
chairmanship of justice Kumar, the government has become more and more unwilling to
support the NGT with sufficient resources and scientific experts. Apart from that, most of
the current experts have a history in the field of environmental policy and sometimes even
have to decide over environmental clearances for projects they were involved in as
policymakers, which affects their independency. Because of their temporary appointments
the member of the NGT also need rely heavily on amicus curiae, like Harish Salve, who
served as amicus in the Delhi vehicular pollution case for more than two decades, which
84 (2007) 6 SCC 586, [2007] 7 SCR 705.
85 Ibid., para 47.
86 Ibid., paras 77–78.
87 Z. Holladay, ‘Public Interest Litigation in India as a Paradigm for Developing Nations’ (2012) Indiana Journal
of Global Legal Studies 19 (2), 555–73 at 557.
88 See for an overview to 2018: https:// theprint .in/ india/ governance/ all -the
-legal -attempts -made -to -combat -delhis -air -pollution -in -the -last -2 -decades/ 149623/ .
 29

runs the risk that amici curiae are better informed about ongoing cases than any judge or
NGT member. Last but not least the NGT’s decisions increasingly seem to suffer from a lack
of effective implementation and enforcement of its rulings.