DELHI'S DILEMMA

Caught between livelihood concerns and a judicial mandate, the national capital struggles to cope with the causes and consequences of massive pollution.

AFTER over a fortnight of often rancorous sittings, the Supreme Court on December 1 adjourned its hearings on the location of industrial units in "non-conforming" areas of Delhi. Laboured explanations by the Delhi State government on the reasons why the y were unable to transfer these units elsewhere and secure conformance with the Master Plan evolved for the National Capital Region (NCR), failed to win the approval of the court. The spirited effort by counsel for the State government to shift the respo nsibility to the Central government and its agencies like the Delhi Development Authority (DDA), again won it little sympathy. When hearings resume, presumably in January, it is likely that there will be a prolonged phase of bargaining over an alternativ e time-table for the court-mandated industrial relocation. After successive defaults by the regulatory authorities, it would take an act of faith to believe that a fresh set of commitments given to the judiciary will actually be fulfilled.

The backdrop to the judicial proceedings was provided by days of turmoil and unrest on Delhi streets. Restive industrial workers, threatened with a loss of livelihood, came out to defend what they perceived as an inalienable right. Their anxieties were s toked by industrial entrepreneurs who saw the Supreme Court's activism on pollution as a major irritant and an inconvenience. When the dust settled, life went on very much as before in the national capital. The matter is now reduced to a tense standoff b etween a Union Minister used to occupying the high moral ground and a Delhi State government that has capitulated to the demands of political populism.

It is a striking feature of the prevalent situation that Jagmohan, the Union Minister for Urban Development, still retains his halo of moral rectitude in the public perception. Despite the fact that the Delhi government is no more than a seven-year old e ntity which shares little of the responsibility for the proliferation of industrial units in unauthorised areas, the entire burden of correcting the situation is being thrust upon it. The Urban Development Ministry and its subordinate body, the DDA, whic h had untrammelled authority to oversee land use in the NCR, has so far faced none of the pressure of judicial or public interrogation.

This is rather curious, since Jagmohan during his prolonged stewardship of the DDA is known to have very often trampled upon key provisions of the 1962 Master Plan for the capital. This was indeed the first comprehensive blueprint prepared to regulate la nd use in the capital city and its environs. Keeping in view Delhi's unique status as an administrative city that had absorbed a flood of refugees from the Partition of the sub-continent, it made ample provision for the growth of industry. In order to ca pitalise on the advantages of starting off with a relatively clean slate, the Master Plan provided for a dispersed pattern of industrial development that would minimise the need for workers to travel long distances to reach their workplaces and mitigate the need for large investments in traffic management.

Few of the plans for developing industrial locations were implemented. The consequence was that Delhi responded to the pressure of a continuing flood of immigrants, through an unplanned and chaotic pattern of industrialisation. This has, over the years, taken a toll of public health and hygiene, providing the inspiration for legal vigilantes to seek redress through the judicial process.

Courtrooms are rather inappropriate forums for formulating policy, though the judiciary could presumably seek to redress public grievances over departures from agreed policy. There is invariably a wide chasm between the real world and the drawing board w here plans are evolved. The realities of a situation where the uncoordinated actions of multiple agents determine the course of economic and industrial growth often compel the abandonment of the best-laid plans.

Planners work with a certain set of preconceptions of the public good, without the benefit of knowing whether these notions are shared by the larger public. Nor do they have any feasible means of force-fitting reality into the mould that they cast. To re cognise the reasons why the real world fails to conform to their ideals, is to go part of the way towards evolving more effective planning methodologies. There may be no cause to submit to the realities of an unplanned and uncoordinated scheme of develop ment. It would be equally unreasonable to believe that a recalcitrant reality could be coerced into a preordained course of development. No government, leave alone court, has so far been able to assume coercive powers of such a magnitude.

The situation in Delhi today focusses attention on some of the inherent irrationalities of using judicial fiat to settle complex matters of public importance. On November 28, a toxic gas leak afflicted dozens of residents of an industrial suburb in the w estern part of Delhi. The source of the hazard was plastic wastes being processed in an aging incinerator, releasing noxious fumes that were being freely vented into the atmosphere through a hole in the industrial unit's roof. The owner of the unit was b ooked under a clause of the Indian Penal Code dealing with "poisonous substances endangering human life". Residents of the area had in the past repeatedly brought the unit's depredations to the notice of local authorities. But the operator of the unit ha d apparently evaded all accountability by manoeuvring his way through the thicket of laws and regulatory agencies.

This incident provided additional fuel to the Supreme Court as it went about its mission of berating the local government. Certain observers believe that the court should perhaps be more mindful of its inherent limitations. A judicially measured response , they feel, would have been for the court to focus its attention on the means it has at its disposal, to empower local communities to deal with the hazards of unplanned industrial growth. The industrial operator in west Delhi has for long years been ven ting noxious gases into his neighbourhood without the slightest fear of punishment or penalty, because there is no well-developed system of legal liability that he is subject to. Indeed, the Supreme Court has in the past had the opportunity to develop a feasible concept of legal liability, but failed to do so.

In 1985, in a case involving the leak of toxic oleum fumes from a chemical unit in Delhi, the Supreme Court propounded the notion of "strict" or "absolute" liability. The concept had a certain value in a context where regulatory agencies are often ill-e quipped to cope with the growing complexities of modern industry. In its application, it had a certain simplicity: official agencies could exercise broad powers of oversight, but could not feasibly supervise every aspect of an industrial unit's functioni ng. But if the unit at any point endangered human life and well-being, then it would be held absolutely liable and would pay maximum penalties. There would, in other words, be a presumption of wrongdoing applying in cases where industrial units cause dea th or injury.

After having firmly resolved this question, the Supreme Court in subsequent cases seemed to wobble. The most infamous case, of course, remains the settlement of the claims arising from the Bhopal gas tragedy. The court in 1989 gave its approval to a coll usive settlement of the case between the Union government and the Union Carbide Corporation. The judiciary lost the moral high ground there. Subsequent efforts to reclaim it through fiats have simply failed to carry conviction.

CERTAIN fundamentals seem to have escaped public attention in the prevalent euphoria over the Supreme Court's approach on the question of pollution. Is it, for instance, the function of the judiciary to force its way into the domain of policy formulation and seek an accretion to its own powers? Or would the judiciary better serve the public interest by empowering individuals and communities to claim what are their rights -- the right to a clean environment being as important as the right to livelihood?

It is more the rule than the exception, of course, that the pressures of earning a livelihood in a chronically employment deficient economy, have engendered a rather casual attitude towards occupational and environmental safety. A suitable antidote would then have to be administered by means of altering the relative application of rights and obligations. By all accounts the judicial hearings over industrial pollution in Delhi have run into a stalemate. The resolve of the judiciary to enforce its writ ha ve encountered the inability of the government to reconcile the divergent interests of its constituents. Failing a radical change in the paradigm of judicial intervention in the matter, it may be unrealistic to expect any progress at all when the hearing s resume.