Public interest environmental litigation in India: Exploring issues of access, participation, equity, effectiveness and sustainability

Journal of Environmental Law

Volumn 19, Issue 3, 2007, Pages 293-321

  Rajamani, Lavanya ^a  

^a CENTRE FOR POLICY RESEARCH   (India)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; ENVIRONMENTAL ISSUE; ENVIRONMENTAL POLICY; EQUITY; LOCAL PARTICIPATION; POLICY MAKING; PUBLIC ACCESS; STAKEHOLDER; SUSTAINABILITY;

ASIA; EURASIA; INDIA; SOUTH ASIA;

EID: 35848957722     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqm020     Document Type: Article

References (282)

1. U Baxi, 'The Avatars of Indian Judicial Activism: Explorations in the Geography of (In)justice in SK Verma and Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach, (OUP, New Delhi 2000) at 156, 157, Oxford University Press, New Delhi.
2. State of Rajasthan v Union of India (1979) 3 SCC 634, 670 (per Goswami J.)
3. All instances of the term 'the Court' refer to the Supreme Court of India.
4. A few activist judges in the late 1970s and early 1980s, in a series of high profile cases bristling with procedural innovations and doctrinal creativity, laid the groundwork for the growth of public interest litigation in India. The most significant of these cases is S.P. Gupta v Union of India in which Justice Bhagwati relaxed the rule of locus standi and opened up the doors of the Supreme Court to public-spirited citizens - both those wishing to espouse the cause of the poor and oppressed (representative standing) and those wishing to enforce performance of public duties (citizen standing). See S.P. Gupta v Union of India, (1981) Supp SCC 87, 233. Public interest litigation in India can be pursued either in the High Court or Supreme Court. If the complaint is of a legal wrong, Art 226 of the Constitution permits recourse to the High Court of the State. If the complaint alleges a violation of fundamental rights, Art 32 of the Constitution permits direct recourse to the Supreme Court.
5. The fundamental right most often invoked by petitioners is contained in Art. 21 which reads: 'No person shall be deprived of his life or personal liberty except according to procedure established by law'. The Constitution of India, 1950. Article 21 has been read to include the right to livelihood (Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545)
6. 'the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings'. (Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) i SCC 608)
7. the right to health and medical care of workers (Consumer Education and Research Centre v Union of India (1995) 3 SCC 42
8. and, the right to education (Mohini Jain v State of Karnataka (1992) 3 SCC 666
9. and J.P. Unni Krishnan v State of Andhra Pradesh, 1 (1993) 1 SCC 645) much before the introduction of Art. 21A guaranteeing free and compulsory education for all children between the ages of 6 and 14 (Constitutional Amendment, Eighty-sixth Amendment Act, 2002).
10. PN Bhagwati, 'Judicial activism and public interest litigation' (1985) 23 Colum. J. Trans. L 561, 567.
11. K Chandrasekharan Pillai, 'Role of Teachers and Students of law in Public Interest Litigation', (1984) 8 CULR 503.
12. M Rajamani, Ministry of Urban Development, B Lal, Chair, Environment Pollution (Prevention and Control) Authority and BL Wadehra, Senior Advocate, Supreme Court of India, in discussion with the author, Delhi, 23, 9 and 17 September 2004, respectively.
13. See supra n 4.
14. Article 21, The Constitution of India, 1950.
15. Subash Kumar v State of Bihar (1991) 1 SCC 598.
16. See also Virender Gaur v State of Haryana (1995) 2 SCC 577
17. and M.C. Mehta v Union of India (Delhi Stone Crushing Case) (1992) 3 SCC 256 at 257.
18. M.C. Mehta v Union of India (Delhi Vehicular Pollution Case) (1998) 9 SCC 589, 590.
19. Including Principles 3 (Inter-generational Equity), 4 (Sustainable Development), 15 (Precautionary Approach), and 16 (Polluter Pays), Rio Declaration on Environment and Development, 1992.
20. Indian Council for Enviro-legal Action v Union of India (Bichhri Case) (1996) 3 SCC 212
21. See also M. C. Mehta v Kamal Nath, (2000) 6 SCC 213, 220.
22. Vellore Citizens' Welfare Forum v Union of India (1996) 5 SCC 647.
23. See also Narmada Bachao Andolan v Union of India (2000) to SCC 664, 727.
24. The Court in this case went as far as to shift the burden of proof to the industry, a controversial and questionable extension in environmental law. See generally C. Sunstein, Beyond the Precautionary Principle, University of Chicago Legal Theory and Public Law Working Paper No. 38(2003). Available at: .
25. State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC 363
26. See also Indian Council for Envirolegal Action v Union of India (CRZ Notification case), (1996) 5 SCC 281.
27. M.C. Mehta v Union of India (Taj Trapezium Case) (1997) 2 SCC 353, 381
28. See also Narmada Buchao Andolan v Union of India (2000) to SCC 664, 727.
29. M.C. Mehta v Kamal Nath (1997) 1 SCC 288.
30. The Court, in a series of directives spanning over two decades, responded by banning coal-based industries in the Taj's immediate vicinity, closing 230 other factories, requiring 300 factories to install pollution control devices, and ordering the creation of a traffic bypass and a tree belt to insulate the Taj. M.C. Mehta v Union of India (Taj Trapezium Case), Writ Petition Number 13381 of 1984.
31. M.C. Mehta v Union of India (Ganga Pollution Case), Writ Petition Number 3727 of 1985.
32. Including by mandating conversion of Delhi's public transport system from conventional fuel to Compressed Natural Gas M. C. Mehta v Union of India (Delhi Vehicular Pollution Case) Writ Petition Number 13029 of 1985,
33. and ordering the closure and/or relocation of hazardous and noxious industries operating within Delhi, M. C. Mehta v Union of India (Delhi Industrial Relocation Case) Writ Petition Number 4677 of 1985.
34. In TN. Godavarman Thirumulkpad v Union of India and Ors Writ Petition Number 202 of 1995, the Court has undertaken the mammoth task of protecting the forests and wildlife of India. It has passed numerous significant orders including inter alia: That no forests, national park or wildlife sanctuary can be de-reserved without its explicit permission; and no non-forestry activity will be permitted in a national park or wildlife sanctuary even if prior approval under the Forest (Conservation) Act, 1980 has been obtained. It has also imposed complete bans on the movement of cut trees and timber from the seven North-Eastern States, and on felling of trees in 'any forest, public or private' in Jammu & Kashmir, Himachal Pradesh, and the hill regions of Uttar Pradesh, and West Bengal.
35. Almitra Patel v Union of India Writ Petition Number 888 of 1996.
36. U Baxi, 'Preface' in SP Sathe (ed.), Judicial Activism in India (2nd edn, OUP, New Delhi 2002), Oxford University Press, New Delhi.
37. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Bangalore, 13 September 2004 and Delhi, 6 February 2007.
38. These cases are illustrative rather than exhaustive of the kinds of issues raised by public interest litigations. They were selected for inter alia: Their impact - both real (on various actors, and in terms of tangible outcomes), and perceived (in terms of noticeable improvements in solid waste management practices and the air quality in Delhi); for the length of time they had spent in the dockets of the Court (over 22 and 11 years, respectively); for their urban focus; and the strength of the mobilization efforts in waste management and vehicular pollution sectors. In truth any number of cases would have served the purpose of this paper, which is to cast a critical gaze on public interest litigations with the insights that the prime movers and shakers in a case - the petitioners, respondents and other stake holders - may be able to offer. Practical concerns such as the accessibility of the primary actors also played a part in the choice of the case studies.
39. Writ Petition Number 13029 of 1985. A series of orders, directions and judgments were delivered by the Court in the period between 1985 and 2007.
40. Writ Petition Number 888 of 1996. A series of orders, directions and judgmerns were delivered by the Court in the period between 1996 and 2007.
41. The majority of the interviews were conducted in 2004 and 2005, but additional views were canvassed, and earlier views confirmed in 2007.
42. Order dated 07/01/1998.
43. Order dated 20/07/1998.
44. Order dated 11/07/1999. See Solid Waste Management in Class I Cities in India, Report of the Committee Constituted by the Hon. Supreme Court of India, March 1999.
45. Order dated 15/02/2000.
46. Municipal Solid Waste (Management and Handling Rules), 1999. Available at the website of the Ministry of Environment and Forests, Government of India:
47. See ibid Schedule II.
48. Order dated 24/11/1999.
49. Order dated 15/02/2000.
50. Order dated 24/08/2000.
51. See generally .
52. M.C. Mehta v Union of India (Delhi Industrial Relocation Case) Writ Petition Number 4677 of 1985.
53. Order dated 14/03/1991.
54. Saikia Committee, 4th Bi-Monthly Report, 1991.
55. See RG Bell et al, 'Cleaning up Delhi's Air: How Delhi broke the logjam on air quality reforms', (2004) 46 Environment 23, 29.
56. Low-lead petrol = petrol with lead content equal to or less than 0.0138/ 1.
57. Unleaded petrel = petrol with a lead content of less than 0.013g/1.
58. Order dated 29/10/1994.
59. Order dated 28/03/1995.
60. Orders dated 14/02/1996, 09/05/1996 and 07/10/1996.
61. See for CSE advertisements issued in public interest as part of the 'Right to Clean Air Campaign'. Available at: .
62. A Agarwal et al, Slow Murder: The Deadly Story of Vehicular Pollution in India (Centre for Science and Environment, New Delhi 1996).
63. Carter Brandon and Kirsten Homman, The Cost of Inaction: Valuing the Economy-wide Cost of Environmental Degradation in India, World Bank, 1995.
64. c.f. ibid at 15.
65. Central Pollution Control Board, Pollution Statistics 1993-4 (Delhi, 1995). c.f. supra n 50 at 28-29.
66. Order dated 08/11/1996.
67. AR Choudhary, CSE, in discussion with the author, Delhi, 10 September 2004.
68. BN Kirpal, Retired Chief Justice of India, in discussion with the authors of 'Cleaning up Delhi's Air' see supra n 43.
69. Order dated 18/11/1997.
70. Available at: .
71. The Committee obtained status report from the concerned departments, visited the relevant sites, and collected evidence from transport and health experts. B Lal, Chair, EPCA, in discussion with the author, Delhi, 9 September 2004.
72. B Lal, Chair, EPCA, in discussion with the author, Delhi, 9 September 2004.
73. R Mehta, erstwhile Chairperson and Managing Director, Delhi Transport Corporation, in discussion with the author, 22 September 2004.
74. The CNG Sabotage, Down to Earth (15 March 2001), 33, 39.
75. Ibid at 34.
76. Order dated 26/03/2001.
77. Ibid.
78. See Manufactured Chaos, Down to Earth (30 April 2001), 33.
79. See TK Rajalakshmi, 'We are just being Cautious', Interview with Delhi Chief Minister Sheila Dixit, 18(8) Frontline April 2001, 14-27.
80. Note: The cost of a bus with a new CNG system, excluding 12% local taxes, is Rs.13-10 lakhs (a diesel bus costs Rs.7.5 lakhs). The cost of conversion from a diesel to CNG system is Rs.4.5 lakhs, excluding 8% local tax. See TK Rajalakshmi and V Venkatesan, Commuter's Crisis, 18(8) Frontline April 2001, 14-27.
81. See supra n 66.
82. Also, B Lal noted that powerful interests (transport and diesel lobby among others) were at play, and that the Court came to the Committee's rescue at every stage. B Lal, Chair, EPCA, in discussion with the author, 9 September 2004.
83. Order dated 04/04/2001.
84. Ibid.
85. Executive Summary, Auto Fuel Policy Report, 2002. Available at: .
86. Order dated 05/04/2002.
87. Orders dated 09/2001 and 01/2002.
88. Order dated 05/04/2002. B Lal noted that the 'Court stood by the reform like a rock and the government had to yield'. B Lal, Chair, EPCA, in discussion with the author, 9 September 2004.
89. Order dated 9/05/2002.
90. Orders dated 09/05/2002, 08/05/2003 and 14/02/2003.
91. Order dated 11/03/2005.
92. Orders dated 05/05/2006 and 29/04/2005.
93. Order dated 05/05/2006.
94. State of Rajasthan v Union of India (1977) 3 SCC 592, 648.
95. State of Madras v V.G. Row 1952 SCR 597, 605.
96. R Agarwal, Toxics Link, in discussion vith the author, Delhi, 15 September 2004 and 5 January 2007.
97. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion vith the author, 26 October 2004 and 20 February 2007.
98. Order dated 15/02/2000.
99. COWI & Kadam Environmental Consultants, Feasibility Study and Master Plan for Optimal Waste Treatment and Disposal for the Entire State of Delhi based on Public Private Partnership Solutions (April 2004) (Executive Summary).
100. A Patel observed that the fact that the Court tried to play 'Municipal Commissioner', took the case on a tangent for over two years. A Patel, Petitioner and Member, Asim Barman Committee, in discussion vith the author, Bangalore, 12 September, 2004, and Delhi, 6 February 2007.
101. U Ramanathan, Illegality and Exclusion: Law in the Lives of Slum Dwellers, International Environmental Law Research Centre, Working Paper 6 (2004).
102. Ibid.
103. See e.g. Wazirpur Bartan Nirmata Sangh v Union of India, MANU/DE/ 2140/2002 (C.W. No. 2112 of 2002, Order dated 9/11/2002). The Delhi High Court noted that, '[o]ne cannot but use the expression as stated in the said judgment' and quashed a Union of India policy providing alternate sites for JJ dwellers.
104. Ibid. at para 44.
105. B Chaturvedi, Chintan Environmental Action Group, noted although the Courts are available, in theory, to the poor, given their lack of legal literacy, court and media savvy-ness, in practice the poor cannot use the Courts to meet their ends. In electronic discussion with the author, 26 October 2004 and 20 February 2007.
106. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Bangalore, 13 September, 2004, and Delhi, 6 February 2007.
107. Order dated 16/01/1998.
108. Order dated 07/01/1998.
109. R Agarwal, Toxics Link, in discussion with the author, Delhi, 15 September 2004, and 5 January 2007.
110. PU Asnani, Member, Asim Barman Committee, in discussion with the author, Delhi, 14 September 2004.
111. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007.
112. R Agarwal, Toxics Link, in discussion with the author, Delhi, 15 September 2004, and 5 January 2007.
113. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007.
114. Ibid.
115. R Agarwal, Toxics Link, in discussion with the author, Delhi, 15 September 2004, and 5 January 2007.
116. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007.
117. Ibid.
118. The Municipal Solid Waste (Management and Handling) Rules (MSW Rules) were drafted by the Central Pollution Control Board (CPCB). There were unofficial communications between the petitioner and the CPCB scientists, but the impact of these on the final draft is difficult to gauge. The Asim Barman Committee was sent two alternate drafts, and in a subsequent meeting with the CPCB they indicated their preferred option. The preferred draft of the MSW Rules was forwarded to the Ministry of Environment and Forests (MOEF). After some delay in the MOEF, the Court on 13 September, 2000, expressed the 'hope' that draft MSW Rules formulated by the CPCB would be notified before the next hearing (Order dated 13/08/1999). This provided the process with the necessary impetus and the MSW Rules were notified on 3 October 2000.
119. The record indicates that Anil Agarwal suggested holding meetings with NGOs to elicit their views. See supra n. 43 at 39.
120. Ibid at 30-31
121. Ibid.
122. Ibid.
123. R Agarwal, Toxics Link, noted that certain Supreme Court Committees such as the High Power Committee on Management on Hazardous Wastes established by the Court in Research Foundation for Science v Union of India (Writ Petition Number 657 of 1995), in part due to the intervention of one of its members, Claude Alvares, Goa Foundation, involved numerous NGOs at every stage of its deliberations. In discussion with the author, Delhi, 15 September 2004, and 5 January 2007.
124. The term equity is used in its common parlance sense of 'fair, just and impartial in law'.
125. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004, and 20 February 2007.
126. See generally BL Wadehra, Public Interest Litigation: A Handbook (Universal Law Publishing, New Delhi 2003)
127. B Jairaj, Consumer Action Group, in discussion with the author, Delhi, 18 December 2004, and 6 February 2007.
128. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007.
129. See supra n 32.
130. B Chaturvedi, Chintan Environmental Action Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007
131. and, R Agarwal and S Gupta, Toxics Link, in discussion with the author, Delhi, 15 September 2004.
132. R Agarwal et al, Recycling Responsibility: Traditional Systems and New Challenges of Urban Solid Waste in India 35 (Toxics Link, New Delhi June 2002).
133. Ibid at 36-37.
134. Ibid at 35.
135. Ibid.
136. S Pal, Municipal Corporation of Delhi, in discussion with the author, Delhi, 21 September 2004 and 22 February 2007.
137. See supra n 103 (in particular in sections 3(xvi), 4(2) and 7(2) the Rules recognize a role for an 'operator of facilities' in waste processing, disposal and management).
138. See also supra n 114 at 65 (incentives to encourage private sector participation).
139. COWI & Kadam Environmental Consultants, Feasibility Study and Master Plan for Optimal Waste Treatment and Disposal for the Entire State of Delhi based on PPP Solutions, April 2004.
140. Ibid.
141. Clean Up: MCD Joins Hands with Private Players, Times News Network, 7 October 2004.
142. S Gupta, Toxics Link, in discussion with the author, Delhi, 15 September 2004.
143. B Chaturvedi, Chintan Environmental Action Group, in an electronic discussion with the author, 26 October 2004, and 20 February 2007.
144. Ragpickers to be Trained How to Segregate Waste, Indian Express, 21 September 2004.
145. R Ray, MCD, in discussion with the author, Delhi, 21 September 2004.
146. S Pal, MCD, in discussion with the author, Delhi, 21 September 2004 and 20 February 2007.
147. See generally the numerous initiatives described in R. Agarwal and S K Gupta, 'Rethinking urban waste in India: Creating a community paradigm', (2003) 33 Social Change 58 and,
148. S. Gupta, Partnership For Change: Bringing Stakeholders Together To Manage Solid Waste In A Low-Income Community In Delhi, Paper presented at the Collaborative Working Group on Solid Waste Management Workshop, Dar es Salaam, March 2003 (on file with the author).
149. S. Gupta, Toxics Link, noted that when private contractors replace the municipality the stake of citizens is reduced, for citizens have recourse against their municipality but not against a private contractor. In discussion with the author, Delhi, 15 September 2004.
150. R Mehta, erstwhile Commissioner, MCD, in discussion with the author, Delhi, 22 September 2004.
151. Ibid.
152. CNG supply to Maruti to be cut, The Asian Age 17 May 2002.
153. R Bose and D Sperling, Transport in Delhi, India: Environmental Problems and Opportunities, Transportation Research Record No. 1815, 2002.
154. AK De, Development of CNG Infrastructure in India with Special Reference to National Capital Territory of Delhi, 2002. Available at: .
155. It costs Rs. 44.8 Million to build a mother station, Rs. 29 Million for an online station, Rs. 15.8 Million for a Daughter-Booster station, and Rs. 13.1 Million for a Daughter station. Ibid.
156. The number of CNG stations increased from 9 in 1998 to over 150 by 2005. See Bambang Nurbianto, CNG Conversion: Learning from New Delhi, The Jakarta Post, 19 March 2005
157. see also for details of CNG business in 2004-5, Indraprathsa Gas Limited Annual Report 2004-05, 3. Available at: .
158. Ibid. Fuel Choices for Transport and the Environment 11 (The Energy Resources Institute (TERI), New Delhi 2004) (noting that: A Bharat Stage II CNG bus is Rs. 13.87 lakhs as compared to a Bharat Stage II Diesel Bus which is Rs. 11.69 lakhs; ULSD is Rs. 10.94 Per litre as compared to CNG which is Rs. 14.41 per litre; and the running costs are Rs. 8.92 per kilometre for ULSD as compared to Rs. 11.11 per kilometre for CNG).
159. Govt. hikes public transport fares, blames Centre for it, The Indian Express, 7 May 2002
160. and, Delhi BJP to observe 'protest week' against fare hike, Outlook, 8 May 2002.
161. See also BJP Stages Protests Against Hike in Bus Fares, Outlook, 11 May 2002.
162. Only nominal hike in bus, auto fares, Tribune News Service, 7 May 2002.
163. N Bhatt, MOEF, in discussion with the author, Delhi, 21 September 2004.
164. See supra note 104 at 31.
165. Ranjan Bose et al, Transportation in Developing Countries: Greenhouse Gas Scenarios for Delhi, India, Pew Centre on Global Climate Change 13 (Pew Centre on Global Climate Change, Washington D.C. 2001) (data drawn from Delhi Statistical Handbook and Transport Department, Delhi). Available at: .
166. State Transport Authority, Delhi, c.f. Air Quality Gains from the First Generation Reforms and Challenges of Second Generation Problems in Delhi (CSE, July 2004) (noting an annual increase of 106% since 1998-99). Available at: .
167. See also CSE, Winter Woes: Delhi Headed for Air Pollution Disaster 14 November 2006 (noting that, based on CPCB data, the share of diesel cars, 4% of the total new car registration in 1999, has climbed to nearly 20% in 2006).
168. 2 from 2002 to 2007.
169. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004
170. See also R Agarwal and KS Gupta, Rethinking Urban Waste in India: Creating a Community Paradigm, 33 Social Change (2003) 58.
171. Schedule II (5), Schedule II, Municipal Solid Waste (Management and Handling Rules), 1999.
172. S Gupta, Toxics Link, in discussion with the author, Delhi, 15 September 2004 (noting the example of the failed Timarpur Incineration Plant)
173. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Delhi, 6 February 2007 (noting that the low calorific value of the Indian urban waste makes energy production economically unviable)
174. See also Waste Plant may add toxins in air: Discarded by US and Europe City Opts for Outdated Technology, The Times of India, 4 March 2007.
175. S Pal, MCD, however, argued that Japan has 18,000 incinerators treating 80% of its municipal waste, and it is possible to put in the technological fixes exists to address toxin releases. In discussion with the author, 5 March 2007.
176. B Chaturvedi, Chintan Environmental Action and Research Group, in an electronic discussion with the author, 26 October 2004 and 20 February 2007.
177. See supra n 85.
178. See N Tangri, Waste Incineration: A Dying Technology (Global Anti-Incinerator Alliance (GAIA), Quezon City, Philippines 2003) at 11-18. Available at:
179. Dioxin and Furan Inventories: National and Regional Emissions of PCDD/ PCDF, UNEP, May 1999 at 85 (Table 60).
180. See generally N Tangri, Bankrolling Polluting Technology: The World Bank and Incineration (Global Anti-Incinerator Alliance (GAIA), Quezon City, Philippines 2002). Available at: .
181. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Bangalore, 13 September 2004, and Delhi, 6 February 2007.
182. Ibid. One government official, who wished to remain anonymous, noted that government officials prefer large capital intensive projects as they offer opportunities for corrupt officials to enter into illegal financial transactions. In discussion with the author, Delhi, 15 February 2007. Other government officials however noted that it was impossible to focus solely on small sustainable options given the quantity of waste produced in the big metropolitan cities. JK Dadoo, Secretary (Environment), Government of National Capital Territory of Delhi, in discussion with the author, 15 February 2007.
183. Order dated 06/05/2005.
184. Order dated 01/09/2006.
185. Order dated 04/01/2007.
186. Section 353, Delhi Municipal Corporation Act, 1957.
187. Schedule II(2), Municipal Solid Waste (Management and Handling Rules), 1999.
188. S Pal, MCD, in discussion with the author, Delhi, 21 September 2004.
189. Ibid.
190. Ibid on 22 February 2007.
191. Schedule II(5), Municipal Solid Waste (Management and Handling Rules), 1999.
192. AB Akolkar, CPCB, Delhi, in discussion with the author, 23 September 2004,
193. and, S Pal, MCD, in discussion with the author, Delhi, 22 February 2007.
194. S Pal, MCD, in discussion with the author, Delhi, 22 February 2007.
195. See CPCB, Management of Municipal Solid Wastes, 5-5 (recording patchy implementation of the MSW rules). Available at: .
196. See also Assessment of the Status of Municipal Solid Waste Management in Metro Cities and State Capitals 17-21 (CPCB, New Delhi 2006).
197. The municipality town of Suryapet in Andhra Pradesh is in total compliance. It has a population of 103,000 and generates waste Of 32 metric tons per day. See Solid Waste Management Initiatives in Small Towns: Lessons and Implications 19 (World Bank, New Delhi 2006).
198. AB Akolkar, CPCB, in discussion with the author, Delhi, 23 September 2004.
199. AB Akolkar, CPCB, Kirtee Devi, USAID-FIRE, and Shubagato Dasgupta, World Bank, in discussion with the author, Delhi, 23, 24 and 25 September 2004, respectively.
200. SK Singh, CPCB, in discussion with the author, Delhi, 23 February 2007.
201. AB Akolkar, CPCB, in discussion with the author, Delhi, 23 September 2004.
202. N Bhatt, Ministry of Environment and Forests (MOEF), in discussion with the author, Delhi, 21 September 2004.
203. R Bose, TERI, and N Bhatt, MOEF, in discussion with the author, Delhi, 15 September and 21 September, 2004 respectively.
204. See supra text accompanying n 132-40.
205. See also TERI, Fuel Choices for Transport and the Environment 11 (2004).
206. N Bhatt, MOEF, in discussion with the author, Delhi, 21 September 2004.
207. See supra text accompanying n 132-7.
208. Leapfrog Factor: Clearing the Air in Asian Cities (Centre for Science and Environment (CSE), New Delhi 2006).
209. Ibid.
210. See also Ranjan Bose, TERI, in discussion with the author, Delhi, 15 September 2004.
211. See supra n 143
212. See also infra n 180 at 148. A CSE Study reports a 26% decrease in suspended particulate matter in Delhi.
213. See supra note 177.
214. In September 2001 the Government appointed a Committee headed by RA Mashelkar, the Director General of the Council for Scientific and Industrial Research (CSIR) to draft an 'Auto Fuel Policy' for India. The Mashelkar Committee Report embraced economic rather than command and control instruments, and recommended setting stringent vehicular emissions, including Euro IV norms by 2010, but shied away from specifying the type of fuel or technology to be used. Executive Summary, Auto Fuel Policy Report (2002). Available at: .
215. Report, a Fresh Look at CNG: A Comparison of Alternate Fuels (2001) cited in supra n ibid at 148.
216. Ibid.
217. Order dated 09/05/2002. The EPCA submitted a report on CNG pricing. See Getting the Prices Right: Promoting environmentally acceptable fuels through fiscal measures (Environment Pollution (Prevention and Control) Authority (EPCA), New Delhi 2002). Available at: .
218. See TERI supra n 137.
219. B Lal, Chair, EPCA, in discussion with the author, Delhi, 9 September 2004.
220. See supra n 144 at 23.
221. See supra n 143 at 4.
222. See also V Kathuria, Impact of CNG on vehicular pollution in Delhi: A note, Transportation Research Part D 9 (2004) 409 (noting that while No2 has risen after the conversion, SPM has only fallen marginally).
223. See supra n 180 at 150.
224. See supra n 143 at 5.
225. Ambient Air Quality Trends in 17 Cities 66 (Central Pollution Control Board (CPCB), New Delhi 2006).
226. Ibid.
227. See supra n 180 at 152.
228. See CPCB Newsletter, Parivesh, 32 (2003).
229. D Mohan, CNG- A Big Mistake? Economic Times 16 April 2002.
230. D Mohan, Transportation Research and Injury Prevention Programme, IIT-Delhi, in electronic discussion with the author, 10 October 2004 (estimating the number of new vans in Delhi to be in the range of 5000).
231. AR Choudhary, CSE, in discussion with the author, Delhi, 13 February 2007.
232. Investigation relating to fire hazards and safety in CNG Buses (Environment Pollution (Prevention and Control) Authority (EPCA), New Delhi 2006). available at: .
233. DTC drivers hit hard by CNG buses, The Hindu, 9 January 2007.
234. AR Choudhary, CSE, in discussion with the author, Delhi, 13 February 2007. See also EPCA Reports numbered 15 and 17, available at: .
235. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Bangalore, 12 September 2004, and Delhi, 6 February 2007.
236. Ibid on 6 February 2007.
237. Ibid.
238. AR Choudhary, CSE, in discussion with the author, Delhi, to September 2004 and 13 February 2007.
239. See TK Rajalakshmi and V Venkatesan, Commuters Crisis, 18(8) Frontline April 2001, 14-27 (quoting Rajeev Dhavan).
240. See Order dated 04/04/2001
241. See supra n 204.
242. At the end of 2005, the Supreme Court of India had 33,019 cases pending on its dockets. See Follow up and Recommendation of the All India Seminar on Judicial Reforms with Special Reference to Arrears of Court Cases, 29th and 3oth April, 2005, New Delhi, Volume II, 108.
243. S Divan, A Mistake of Judgment, Down to Earth (30 April 1992), 51.
244. JK Dadoo, Secretary (Environment), Government of National Capital Territory of Delhi, in discussion with the author, 15 February 2007.
245. Ibid. One official, who wished to remain anonymous, however welcomed court supervision, arguing that a combination of short-term electoral politics and three syndromes-Not-in-my-backyard, Not-in-my-tenure and Not-in-an-election-year-leads the government to function 'mayhem to mayhem'. It would be unrealistic to expect strategic vision or proactive action. He noted that the more action-oriented government officials often welcomed, and in some cases secretly requested NGOs to file, public interest litigations. In discussion with the author, 15 February 2007.
246. B Lal, Chair, EPCA, in discussion with the author, Delhi, 9 September 2004.
247. A Patel, Petitioner and Member, Asim Barman Committee, in discussion with the author, Bangalore, 13 September 2004, and Delhi, 6 February 2007.
248. Ibid.
249. GH Gadbois Jr, 'The Supreme Court of India as a Political Institution', in Rajeev Dhavan et al. (ed.), Judges and Judicial Power (N.M. Tripathi Sweet & Maxwell, Bombay London 1985) 250, 257.
250. Dr P. Nalla Thampy v Union of India (1983) 4 SCC 598, 603.
251. Ibid. Yet the Court has also shown some reluctance to be drawn into other policy areas, for instance, the debate on economic policy and reform. In the BALCO Disinvestment Case the Court observed that in 'the sphere of economic policy or reform the Court is not the appropriate forum'. It added that '[e]very matter of public interest or curiosity cannot be the subject matter of PIL. Courts are not intended
252. Vishaka v State of Rajasthan (1997)6 SCC 241.
253. Ibid.
254. Article 141 (Law declared by the Supreme Court to be binding on all Courts) reads: The law declared by the Supreme Court shall be binding on all courts within the territory of India. The Constitution of India, 1950.
255. Supra n 1 at 204.
256. See AH Desai and S Muralidhar, Public Interest Litigation: Potential and Problems in BN Kirpal et al (eds), Supreme but not Infallible - Essays in Honour of the Supreme Court of India (Oxford University Press, New Delhi 2000) 159.
257. N Sethi and M Singh, Govt plans special courts to curb SCs green blitz, The Times of India, 19 March 2007. See also R Jayaswal and MK Venu, Now green tribunals to look into protection laws, The Economic Times, 10 November 2006.
258. R Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge 1977) 22.
259. Ibid at 82-86
260. A pure doctrine of separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State. Vile proceeds to state that, '[t] he doctrine has rarely been held in this extreme form, and even more rarely put into practice, but it does represent a "benchmark" or an "ideal-type"...' See MJC Vile, Constitutionalism and the Separation of Powers (2nd edn 1998) 14. Although there is no rigid separation of powers in the Indian Constitution, there is broad separation of functions and 'a system of salutary checks and balances'. The reason for this broad separation of power is that 'the concentration of power in any one of organ may... by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged'. See Indira Nehru Gandhi v Raj Narain (Clarendon Press, Oxford 1975) Supp SCC1, 260.
261. Ronald Dworkin, Taking Rights Seriously 85 (arguing that 'policy decisions must... be made through the operation of some political process designed to produce an accurate expression of the different interests that should be taken into account. The political system of representative democracy may work only indifferently in this respect, but it works better than a system that allows non elected judges, who have no mailbag or lobbyists or pressure groups, to compromise competing interests in their chambers'.)
262. See Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1.
263. Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 at 232.
264. SP Sathe, 'Judicial activism: The indian experience', (2001) 29 W UJLP 40.
265. A Rosencranz and M Jackson, 'The Delhi Pollution Case: The Supreme Court of India and the limits of judicial power', Columbia Journal of Environmental Law (2003) 28 CJEL 223, 249.
266. U Baxi, 'Taking suffering seriously: Social action litigation in the Supreme Court of India in Rajeev Dhavan et al (eds), Judges and Judicial Power 289 (1985) 298-300.
267. See supra n 194.
268. See LL Fuller, 'The forms and limits of adjudication', (1978) 92 Harvard Law Review 353, 395, 397. Fuller illustrates this concept through the analogy of a spider's web: 'A pull on one strand will distribute tensions after a complicaited pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different complicated pattern of tensions. This would certainly occur, for example, if the doubled pull caused one or more of their weaker strands to snap. This is a 'polycentric' situation because it is 'many centered' - each crossing of strands is a distinct center for distributing tensions'. See also JWF Allison, Fuller's Analysis of polycentric disputes and the limits of adjudication, (1994) 53 CLJ 367.
269. Ibid at 394-5
270. See also Steadman v Steadman [1976] A.C. 536, 542 (Lord Reid arguing that 'Judges ought not to develop the law because 'it would be impracticable to forsee all the consequences of tampering with it').
271. Ibid.
272. The South African Constitutional Court, for instance, has developed the following rules: The court should not ordinarily act as both the court of first and last resort; applicants for direct access should show that they have exhausted all other remedies and procedures; and, the applicant must have reasonable prospect of success based on the substantive merits of the case. See Jackie Dugard and Theunis Roux, 'Record of the South African Constitutional Court in providing an Institutional Voice for the Poor: 1995-2004' in Gargarella, Domingo and Roux (eds), Courts and Social Transformation in New Democracies (Ashgate Publishing, Hampshire 2006) 107.
273. The Supreme Court Rules, 1966.
274. R C. Ghiya Memorial Lecture: The Constitutional Obligation of the Judiciary, delivered by JS Verma, Chief justice of India (1997) 7 SCC (Jour) 1. B Jairaj, Consumer Action Group, suggested that the Committee was established primarily to create the political environment for the Bill to lapse, in discussion with the author, 6 March 2007.
275. Ibid.
276. Supra n 243.
277. Sachidanand Pandey v State of West Bengal (1987) 2 SCC 295, 334.
278. Chhetriya Pardushan Mukti Sangarsh Samiti v State of Uttar Pradesh (1990)1 SCC 449.
279. Narmada Bachao Andolan v Union of India (2000) 10 SCC 664, 762.
280. Subhash Kumar v State of Bihar (1991) 1 SCC 598, 604.
281. Janata Dal v H. S. Chowdhury (1992) 4 SCC 305.
282. Simranjit Singh Mann v Union of India (1992) 4 SCC653.