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Delhi Air Pollution: Judicial Interventions In Abating Vehicular Emissions

Shyama Kuriakose and Upama Bhattacharjee
1 Jan 2020 12:59 PM GMT
Delhi Air Pollution: Judicial Interventions In Abating Vehicular Emissions

Delhi Air Pollution (Image Courtesy : Financial Express)

For last few years now, Delhi National Capital Region (NCR) has been grappling with air pollution crisis. Scores of studies have emerged which attribute this state of affairs to coal-fired power plants, vehicular pollution, burning of crop residue, emissions from heavy industries, construction dust and bursting of Diwali firecrackers, among other reasons. While all these contribute to air pollution in varying percentages, most studies concur that vehicular emissions play a huge role in the ongoing crisis. According to a Centre for Science and Environment study of 2018, Delhi NCR ranks the last amongst 14 urban agglomerations in terms of vehicular emissions despite the fact that Delhi uses CNG and has a relatively higher share of public transport ridership.

The same study points out that this may be due to high volume of private vehicles and a higher population than other cities. As per the Economic Survey of Delhi 2018-19, there are around 32.5 lakh cars and 70.8 lakh two-wheelers registered in the Delhi NCR. Alternatively, the share of public taxis, autos and buses are insufficient to meet the needs of this city's burgeoning population thereby leaving one no choice, but to rely on private vehicles. Even though the courts and policymakers have intervened time and again with different measures, there has been no coherent or uniform policy on tackling air pollution borne out of plying of private automobiles.

It will be interesting to note that it was the judiciary that brought in revolutionary changes to vehicular policy in the Delhi NCR. In fact, technical reports submitted by the court-appointed committee, the Environment Pollution (Prevention and Control) Authority (EPCA) led to several important orders on bringing down vehicular emissions. Starting with imposition of EURO II norms on private (non-commercial) vehicles, ban on registration of diesel taxis not confirming to EURO II in 1999 to shift from BS II to IV norms, the Courts have attempted to address the issues of fuel efficiency and lower emissions through continuing mandamus under the matters of MC Mehta v. Union of India (Writ Petition (Civil) 13029 of 1985) and Vardhaman Kaushik v. Union of India (Original Application No. 21 of 2014). The Supreme Court finally clarified in 2018 that only vehicles compliant with the BS VI emission standards would be allowed to be sold from 1 April, 2020. Entry of heavy vehicles into Delhi NCR was also restricted and subject to payment of Environmental Compensation Charge (ECC) to the Delhi Pollution Control Committee through a 2015 order.

It is due to EPCA's seminal report on 'Controlling pollution from the growing number of diesel cars in Delhi', that the Supreme Court eventually directed in 2015 that no private diesel vehicle and SUV which is more than 2000cc would be registered in NCT Delhi upto 31st March, 2016. As for light commercial vehicle, Court allowed for such vehicles to continue to be registered provided that these are engaged in providing essential services. The order regarding ban on registration of vehicles above 2000cc was modified later in 2016 subject to payment of 1% ECC. As for the issue of charging the same amount to other private diesel vehicle and SUVs, which are of less than 2000cc, the question of charging 1% ECC was left open.

The impact of traffic congestion and parking policies adopted by civic agencies on air pollution in Delhi, was considered as well in the above-mentioned Supreme Court case of M.C. Mehta along with a bunch of Delhi High Court decisions. In its 5th May, 2006 order, the Supreme Court directed EPCA and Delhi Government to implement the parking policy. A Report by EPCA following this order recommended strategies for proper management of parking and pricing of parking that can decongest commercial and public places effectively. Even the Delhi High Court in Manushi Sangthan, Delhi vs Govt. Of Delhi & Ors. on 10th February, 2010 directed the Delhi Government, the Municipal Corporation of Delhi, the Delhi Development Authority and the Delhi Police, to constitute a special task force to explore all the questions pertaining to road traffic in Delhi, with the objective of minimizing congestion, reducing pollution levels of motor vehicles, and ensuring equitable access to all classes of vehicles that ply on the roads, including non-motorized transport such as bicycles and cycle rickshaws. The importance of shared mobility over private vehicle ownership to reduce congestion and pollution in urban agglomerations, was also highlighted in the Delhi High Court order dated 21st December, 2016.

Scrapping of old vehicles and registration of new Diesel vehicles have been under judicial scrutiny as well since 1998. Age of the vehicles themselves was also discussed in these same matters as mentioned above. In 2018, orders were issued to ban permission for plying of diesel vehicles (whether light or heavy) which are more than 10 years old. The NGT had already imposed a similar prohibition on registration for diesel vehicles which are more than 10 years old and petrol vehicles which are more than 15 years old in NCR. Thereafter, the Tribunal as an interim measure had also banned registration of new Diesel vehicles in NCT Delhi. Thereafter, Supreme Court in M.C. Mehta v. Union of India (Order dated 16.12.2015) took cognizance of the issue of banning registration of light commercial vehicles and private vehicles/SUVs using diesel as fuel.

As a consequence of a series of orders by the judiciary regarding the issue of banning of older diesel vehicles or switching to alternatives, Parliament passed the Motor Vehicles (Amendment) Act, 1994 to promote the use of alternative fuels, such as batteries, solar power, and CNG.. Most recently, the Ministry of Road Transport & Highways (MORTH) has issued a draft notification for amendments to the Central Motor Vehicles Rules for providing a boost to electric vehicles, ensuring divyang friendly features in buses, and providing an enabling mechanism for scrapping of vehicles older than 15 years. The renewal of certificate of fitness in respect of transport vehicles older than 15 years has been proposed to be conducted every six months from the current requirement of testing once a year. In addition, the fees have been increased further for conducting fitness test and grant and renewal of certificate of fitness for motor vehicles older than 15 years.

The National Green Tribunal had as early as 28th November 2016 directed the Ministry of Heavy Industries to bring out a vehicle scrapping policy looking at different practical aspects of scrapping of old vehicles. Simultaneously, the Central Pollution Control Board (CPCB) also came out with the Guidelines for Environmentally Sound Management of End of Life Vehicles (ELVs) in November, 2016. Recently the Draft Guidelines by MORTH for scrapping of vehicles was published for public consultation in October, 2019. The 2019 Draft Guidelines are supposed to apply to all vehicles and their last registered owners, automobile collection centres, automotive dismantling, scrapping and recycling facilities and recyclers of all types of automotive waste products. The Guidelines provide that dismantling and scrapping of waste vehicles shall be carried out as per CPCB's 2016 Guidelines only in an authorized scrapping yard.

Even though, the 2019 Draft Guidelines do not mention/prescribe an age till when the vehicle can be used; however, the definition of 'End of Life Vehicles' broadly include those which cannot be validly registered, or cannot be allowed to ply on roads due to be the age limit of vehicles prescribed vide various Orders given by the Supreme Court and National Green Tribunal, or vehicles damaged due to accident or fire. Further, a lot of the waste, for instance, discarded tyres gets diverted to local markets for being used in unregulated industries. Hence it becomes imperative that the 2019 Draft Guidelines should look into the principle of Extended Producer's Responsibility which is already well established under the legal norm prevailing in the country for specific wastes like plastic waste and e-waste and has also been recommended to be followed for end of life vehicles by vehicles manufacturers under CPCB's 2016 Guidelines. In addition, once the 2019 Draft Guidelines, are finalised, the Authorized Vehicle Scrapping Facility should be ideally required to obtain authorization under Rule 6 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 since the scrapping facility would primarily be dealing with hazardous waste such as tyres, batteries, fuel, oils, liquids and gases.

Changing dependence from fossil fuel based mobility to renewable fuels is another target, which the Government intends to achieve, through emphasis on CNG, biofuels, electric vehicles and hydrogen fuel cell. Accordingly, Government of India has attempted to support and push this target through several policy measures ranging from Alternate Fuels for Surface Transportation (AFST) Programme, National Electric Mobility Mission Plan, 2020 (NEMMP), Faster Adoption and Manufacturing of (Hybrid &) Electric Vehicles in India (FAME India), 2015 Phase 1, FAME India, 2019 Phase 2, National Energy Storage Mission, 2018 to National Policy on Electronics, 2019, among others. Delhi state government's recent passing of the Delhi Electric Vehicle Policy 2019 drives a lot more impetus on electric vehicles and ensuing subsidies. The Policy though ambitious could set a positive trend towards reducing vehicular emissions.

With a governmental push towards change, one would expect the automobile industry to respond positively. Despite the same, it can be seen that the industry has been reeling under massive sales downturn and is facing a crisis not seen in the past two decades. For instance, the NEMMP set an ambitious target of 6-7 million electric vehicles in the country by 2020. However, so far, only 2.7 lakh vehicles have been sold under the FAME India scheme. This downturn has been blamed on the possibility of a compulsory upgrade to battery-powered vehicles by 2023 in case of three-wheelers and 2025 for two-wheelers. Coupled with this, the Government has already provided an undertaking to implement the BS-VI norms. The BS-VI norms are supposed to roll out next year, increasing the cost of vehicles, especially diesel. In this context, the 2019 Draft Guidelines described above, if implemented, is likely to give stimulus to customers to make new purchases in place of their old vehicles. Though there will be no direct incentives from the central government, states and automakers will be empowered to provide sops against scrapping certificates. The government has even planned to lift a ban that forbade government departments from buying new vehicles, even to replace old ones.

Given, the government's slew of measures, most of the automobile slowdown is the industry's own making since the sector never bothered to keep pace with the world standards and becoming globally competitive. Rather than innovating in-house, the industry has been simply adapting electric vehicle technology from the West which may not even work in tropical climes of India. Further, measures need to be taken to improve existing infrastructure and innovate with available materials rather than importing the same from developed countries, so as to be more sustainable. It is very clear that consumer behaviour can be influenced by impressive product attributes that check all boxes, be it an aspirational value, performance or cost factor. Instead auto majors like Volkswagen were caught using 'cheat devices' in its diesel engines to manipulate emission tests in India by changing the performance of the vehicles. Even the policymakers have merely been responding to crisis after crisis rather than taking preventive measures from the get-go. There is a well settled principle of saluspopuli (est) supremalex which means regard for public welfare is the highest law. It is thus important for the government as well as all stakeholders to either step up their game or miss the bus!

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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