Ourview The wrong ap­proach to en­vi­ron­men­tal reg­u­la­tion

Mint ST - - VIEWS -

The elected govern­ment is in the best po­si­tion to elicit sci­en­tific and eco­nomic in­puts and

The Supreme Court or­der on Mon­day ban­ning the sale of fire­crack­ers in Delhi and the Na­tional Cap­i­tal Re­gion (NCR) has ex­pect­edly turned into a con­tro­versy. The pe­riod of the ban—till 31 Oc­to­ber—cov­ers the fes­ti­val of Di­wali, which is cel­e­brated with elab­o­rate fire­works. Some of those dis­ap­pointed have gone to the ex­tent of ar­gu­ing that the court or­der is “anti-hindu” in na­ture. Oth­ers point to ju­di­cial over­reach that they think this or­der best ex­em­pli­fies. In essence, there are two dis­tinct is­sues that need to be sep­a­rately an­a­lysed: a) the scope of the state’s reg­u­la­tory power vis-à-vis a re­li­gious cel­e­bra­tion, and b) the agency of the state that such reg­u­la­tion should vest with.

On the first count, the mat­ter is rel­a­tively clear. The burst­ing of fire­crack­ers releases a heavy dose of car­cino­gens in the at­mos­phere, pre­sent­ing a pub­lic health chal­lenge for the en­tire city. This is sim­i­lar to smok­ing at pub­lic places—a reg­u­lated ac­tiv­ity—but dif­fer­ent from con­sump­tion of liquor, which harms the in­di­vid­ual. In­so­far as even the lat­ter causes harm to oth­ers, the laws and reg­u­la­tions do kick in—think, for ex­am­ple, of drink and drive penal­ties. As soon as it is clear that burst­ing of fire­crack­ers by one per­son presents a health chal­lenge to an­other, any ar­gu­ment of re­li­gion can­not reign supreme in a con­sti­tu­tional, sec­u­lar repub­lic.

The more dif­fi­cult ques­tion is the choice between reg­u­la­tion, short of a com­plete ban, and a com­plete ban. The de­ci­sion re­quires weigh­ing trade-offs, which would de­pend on nu­mer­ous in­puts from sci­en­tific or­ga­ni­za­tions, reg­u­la­tory in­sti­tu­tions, pub­lic pol­icy ex­perts and civil so­ci­ety. Since a court of law does not have in-house ex­per­tise in th­ese do­mains, it should leave such mat­ters to the ex­ec­u­tive. While the Supreme Court de­liv­ered its ar­gu­ments in the broader frame­work of the “right to breathe clean air” and the “right to health”, it went about dis­miss­ing the com­mer­cial con­sid­er­a­tions of the fire­cracker in­dus­try. Th­ese con­sid­er­a­tions could have equally been framed in terms of the right to liveli­hoods of thou­sands who de­pend heav­ily on the sale of fire­crack­ers dur­ing Di­wali.

Be­sides, bans are rarely ef­fec­tive. It is dif­fi­cult to imag­ine that no fire­cracker sale will hap­pen in the en­tire ter­ri­tory of Delhi and NCR as a re­sult of the Supreme Court or­der. If the po­lice fail to en­force the or­der, the cred­i­bil­ity of the Supreme Court, par­tic­u­larly in cases of en­vi­ron­men­tal reg­u­la­tion, will suf­fer im­mensely.

The man­ner in which the Supreme Court has dealt with this par­tic­u­lar case also raises a num­ber of con­cerns. It first passed an or­der on 11 Novem­ber 2016 (af­ter Di­wali) ban­ning the sale of fire­crack­ers. Then it par­tially lifted the ban on 12 Septem­ber 2017. In this sec­ond or­der, it in­tro­duced sev­eral ar­bi­trary caps like lim­it­ing the num­ber of tem­po­rary li­cences for fire­cracker sell­ers to 50% of those given in 2016. The judges also made state­ments like: “In our opin­ion, even 50,00,000kg of fire­works is far more than enough for Dussehra and Di­wali in 2017.” And then fi­nally, it de­cided on Mon­day that while the 11 Novem­ber 2016 or­der will stay in force, the 12 Septem­ber 2017 or­der will only be ef­fec­tive from 1 Novem­ber 2017. To make mat­ters worse, the court has or­dered sus­pen­sion of all the tem­po­rary li­cences is­sued af­ter its 12 Septem­ber 2017 ver­dict which al­lowed the grant of th­ese li­cences—al­beit with a cap. The Supreme Court couldn’t have fol­lowed a more mud­dled and ad hoc ap­proach.

But none of this is new. In an ear­lier in­stance, the Supreme Court had in­creased the en­try tax on trucks en­ter­ing Delhi with­out fac­tor­ing in the de­mand elas­tic­ity of goods (car­ried in those trucks) trans­ported to Delhi, an over­whelm­ingly con­sump­tion-heavy state. Be­fore the turn of the cen­tury, the Supreme Court had or­dered the con­ver­sion of the pub­lic trans­port fleet in Delhi from diesel to CNG. Even as the or­der was passed with­out the req­ui­site in­fra­struc­ture be­ing ready, it was lauded widely and did in­deed im­prove the qual­ity of air over the next few years. But ques­tions still re­mained. Pratap Bhanu Me­hta, a lead­ing po­lit­i­cal sci­en­tist, for ex­am­ple, has asked (goo.gl/5vdqa) whether the court achieved the low­er­ing of air pol­lu­tion in a cost-ef­fec­tive man­ner.

The CNG or­der had other dele­te­ri­ous long-term con­se­quences. In a 2003 pa­per (goo.gl/spdjv7), Michael Jack­son and Ar­min Rosen­cranz had warned: “...the Court’s ac­tion seems likely to im­pede ca­pac­ity build­ing in the pol­lu­tion con­trol agen­cies, and thereby to com­pro­mise the de­vel­op­ment of sus­tained en­vi­ron­men­tal man­age­ment in In­dia.” The cur­rent sit­u­a­tion—the un­re­solved prob­lem of air pol­lu­tion, the lack of reg­u­la­tory ca­pac­ity on en­vi­ron­men­tal is­sues, the ab­di­ca­tion by the ex­ec­u­tive and in­creased ju­di­cial ac­tivism—do sug­gest that Jack­son and Rosen­cranz were in­deed right.

It is high time the ex­ec­u­tive re­turned to take charge at the wheel. The elected govern­ment is in the best po­si­tion to elicit sci­en­tific and eco­nomic in­puts and take a call, even if it in­volves ex­pend­ing po­lit­i­cal cap­i­tal. The gov­ern­ments at the Cen­tre and the states should in­volve dif­fer­ent agen­cies like the Pe­tro­leum and Ex­plo­sives Safety Or­gan­i­sa­tion and the pol­lu­tion con­trol boards and in­vest in set­ting reg­u­la­tory stan­dards for the medium to long term. What is cur­rently hap­pen­ing, how­ever, is a far cry: The com­ple­men­tary phe­nom­ena of ex­ec­u­tive ab­di­ca­tion and ju­di­cial ac­tivism have cre­ated an ugly spec­ta­cle of en­vi­ron­men­tal mis­man­age­ment in In­dia.

Do you agree with the Supreme Court or­der ban­ning fire­cracker sales in Delhi and the NCR dur­ing the Di­wali sea­son? Tell us at views@livemint.com


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