We sit here today, a group of 15 judges, assembled from all parts of the world. The ICJ is not a particularly well known organisation. It heard its first case in 1947. We are based in The Hague, the only UN body not in New York. We adjudicate cases between States and also issue advisory opinions. The problem is that no one really listens to us. Our decisions are technically binding but that is only in theory, since the losing sides usually just ignore them. We may speak with greatest legal knowledge and wisdom, but a local magistrate can secure compliance better than us. The United Nations cannot enforce anything, and we are the best example of that.
Most people think we are a collection of international judges, appointed to fill a body created for the purpose of showing that the UN has a presence in the judicial space, that we are very well paid, have precious little work to do. Well, most people are mostly right. Each of us gets a salary of Rs.1.6 crore a year, and a pension for life of half our salary. Most of us get two terms of nine years each. And we have heard only 185 cases since inception in 1947.
As a sinecure it is unmatchable. Many retired Chief Justices and senior judges world over vie for this job, and sadly, since you need the support of your government to get through, some bend a bit and some stoop some more to ascend to this coveted position. Incidentally, there is a Justice on the Court from India, Mr Dalveer Bhandari. He joined in the year 2012 and his second term lasts until 2026.
The Petitioner state, Country X, is suing India for harm caused to its diplomats and their families, especially children, during their stay in its capital New Delhi. It argues that the Indian state is responsible for continuously failing to protect diplomats from harm due to environmental pollution, that such harm is obvious from officially recorded levels of pollution, that there exists plenty of evidence of severe respiratory and other illnesses suffered by diplomats and their families, and that long-standing government inaction/ineffective action makes the pollution attributable to state conduct.
The Petitioner is also asking for a declaration that India should not be treated as a full-fledged country for diplomatic purposes on the international scene requiring posting of diplomats and occasional visits by heads of government.
For a case to be heard by us, both parties must submit to our jurisdiction. India did not refuse to participate but it did not say much in its defence, other than to refer to political pronouncements and appointment of committees. Notably, the extent of pollution and the ill effects were not contested. It was said that other political parties were to blame; that is a bit off course here because we are not into politics and whataboutery has no place here. We did wonder, though, at the easy acceptance by India of our jurisdiction; it could be because someone in power in India mistook ICJ to be the International Commission of Jurists and not the International Court of Justice. India these days seems to be full of acronyms.
The person who received the notice of this hearing probably thought we were a group of old-fashioned lawyers and judges (no modern one is a jurist or wants to be called one) and had nothing better to do than conduct a humorous proceeding in satirical fashion over port and cigars.
Our written opinion comes to about 1,500 pages. This is not unusual; there are 15 of us and we have so few cases that everyone feels he or she should say something in every case. So, we thought of a summary which would encapsulate the Court’s thinking. Of course this means no one will read our full opinion, but no one does anyway.
Living in a gas chamber
The major reason for the plea is that the air quality in Delhi is about the equivalent of well-known gas chambers. Reference was made to modern ones as well as historically notorious ones. It seems well established that a stay of more than a few days in Delhi will severely affect the respiratory system of any person.
Since this is an international court, we are only concerned with issues raised by non-Indians against India. We do recognise that Indians are the ones most affected by this terrible state of affairs, but if they wish to keep quiet about it and their Courts are ineffectual about it, who are we to say anything? We will confine ourselves to the question of compensation, and whether foreign governments and diplomats can be legally required to take up residence or pay visits to the Indian capital. But it must be said that the tolerance level in Indians seems to be as high as their capital’s pollution levels.
On a straight question of law, this matter permits no two opinions. If you wish to maintain diplomatic relations with foreign countries, the least you must do is to ensure the safety of their representatives. Safety of person, safety of family, safety especially of children. Safety is not just being secure against arrest and deprivation of liberty. Safety is being able to breathe clean air at the most fundamental root. If you cannot enable or promise that, then you do not have a right to call guests in or expect to have diplomatic intercourse with civilised nations. You must then conduct such relations on their soil, or online if you wish. There are well recognised exceptions to this rule of affording safety on your soil, but they apply only when States are at war. Or to Acts of God, and here we think it would be a far stretch to impute Delhi’s pollution to the Almighty.
We realise that this has important implications for India. If it cannot maintain diplomatic relationships then how can it bid for a seat on the UN Security Council, which it claims on account of its size and weight? Well, it cannot, is the simple answer. All governments conduct business from their capitals, so if you do not have a functioning capital, can you really say that you are a well-functioning country? And until you get your fundamental act together in the first place, perhaps you should not be sitting as the regulator of the world’s affairs on the United Nations Security Council.
We have been told that Delhi was not always India’s capital, and that before 1911 the capital was Calcutta. Perhaps it should have stayed that way; this looks like one more of the colossal mistakes that the Brits made. Calcutta has been described as the City of Joy (not for light reasons), and also as the home of the adda, which we are told is the term for endless intellectual disputation. We wondered then whether the debates in Parliament located in Delhi matches the Calcutta discussion model, but we verified and found that in fact the Delhi lot is busy expelling the one lady from Calcutta who can be classified as a debater par excellence, and puts all the men to shame. Some of the notable ones do not turn up for parliamentary proceedings, it appears.
There seem to be other contestants for the capital tag. Hyderabad, which looms large as south India starts, is a city of antiquity, grace, and culture and manifestedly follows the spirit of India being a multicultural society. It is a truism that the nature of government takes its cue from the nature of its capital, and some would say that explains the nature of India’s present government, a la Thomas Hobbes’ famous words. Well worth it, therefore, to shift to a city of grace and culture and coexistence and see if some of that seeps into governmental and political functioning.
And some of India’s southern politicians are adept at building or refurbishing capitals at the drop of a hat, notably one Chandrababu Naidu and one Chandrashekar Rao (albeit with some alleged dollops to a favoured few) so it should not be difficult to get a nice capital with some classical old buildings and well-designed new ones, endowed with good weather, free from construction dust and industrial fumes, no fume-belching vehicles, and without stubble-burning farmers nearby. After all, how much space do you need for essential government offices? A couple of streets. Not much, but then government has a habit of spilling out from essential to non-essential to plain nuisance, and then a city will barely suffice.
Another idea is to have the Court away from the Government, each in a different city. Several countries have done that, and in India, Kerala does that too. Could make for stouter judicial independence. One does realise that this scuppers a recent building opened in Delhi for Parliament, but there will be other worthwhile uses for it, surely, including a school for design and planning official infrastructure (How TO and How Not TO).
We considered deferring judgment for a while so that India could get a chance to clean up its capital. However, we were taken through a long list of committees set up by the government and the Courts and the voluminous reports they have churned out, matched only by the voluminous increase in pollution. Perhaps Indian committees are the same as committees elsewhere, productive of hot air, thus adding to the general problem of pollution on a different level.
Even the mighty Indian Supreme Court, which can make, sorry, mar same-sex marriages, seems powerless against building contractors, drivers of old cars, and stubble-burning farmers in neighbouring Punjab. The best course would of course be to subject the grandchildren of these to prolonged stay in selected gas chamber enclaves in Delhi; then we can see how well the law of disincentives works.
A word of advice for Courts in general about taking on public interest cases concerning the environment: take on only what you can usefully resolve, realise that you do not have the expertise or administrative bandwidth, acknowledge that just like King Canute could not control the waves, you cannot wave your rod of mandamus before pollution. Wisely select critical initiatives where your intervention will yield tangible and meaningful results, and let not individual judges chase individual bees in their individual bonnets: one goes after diesel cars, another after firecrackers, one targets the building industry, some others like committees which are a sure-fire prescription for no action, and no one wants to take on Punjab farmers or offer a sensible alternative and compensatory option to them.
Truly the message for the Courts is: get into public environmental issues when you can make a vital difference; if not, do not manage, least of all micromanage. Stick to laying down and enforcing the law on what will happen to public officials and others for not enforcing or breaching environmental norms. Because, when you entertain something and show that you intend to be the grand saviour with all the answers, the public feels reassured, the politicians and bureaucrats are off the hook, nothing gets done, well-meaning judges retire, and cynicism and helplessness multiply.
Since some of us are familiar with India we may venture an opinion here. It is of course obiter dicta, but since we are unlikely to revisit this case, or visit India given this pollution, we may speak our minds.
Complications of India
It does seem that India is a country of many parts, and some so different from the rest, that we have often wondered how it can be governed at all. It would therefore be worthwhile for the country to stay as one (no one is advocating Balkanisation or secession), but for administrative purposes for most things it would be better for the South to regulate itself, and the North to do likewise. These are two homogenous units clearly very different from each other, as different as chalk from cheese, or, as a learned brother says, sambhar from chole. The rhetoric on Hindutva and Hindi has made the divide sharper. The East is another bloc, a speciality of its own with disputation and debate and argumentative Indians. The West is complicated, with Gujarat becoming the de facto capital of India and Bombay languishing at the margins.
The North-East has special sensitivities, incomprehensible to many in the mainland, so it is good if they can largely administer themselves. And like the Irani Trophy, we can always have a Rest of India who can make up the quotient of the diversity of this country. The Andaman and Nicobar Islands can be beefed up to provide special cells for outlawed politicians once we get around to punishing them. This would make for much better governance, and each can progress as it wishes, or refuses to progress as it wills, without being held back or prodded by the other.
But sadly again, we must return to the centre of this exercise. The Petitioner state is entitled to full damages from India for all harm to its diplomats and staff and their families posted in New Delhi during the period of the intense pollution. These will be calculated and a decree will issue. As for India’s status, no one will wish to deny India its rightful place in the world. But just like no man is an island, no nation is one as well, and one must be kind to one’s own and to others. In law, to conceive of a nation without a functioning capital is a difficult concept. A capital is the heart of a nation, and what body exists without a beating heart?
India has to realise that it cannot be considered to be anywhere near a leader of the comity of nations unless it has a capital safe for anyone to visit. If it truly aspires for Novum Caput Mundi—New Capital of the World—status, then it needs to have a breathable capital city to start with. As Arlen Specter said: “There’s nothing more important than our good health—that’s our principal capital asset.”
Principle 15 of the Rio Declaration states that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.
India must tighten its act and ensure air quality in its capital, whichever city that may be, within two years from today. Failure to do so will result in its votes in the United Nations bodies being kept in suspended animation. However, with immediate effect, its Foreign Minister will be given breathing time and will not make speeches at UN functions. This will enable him to imbibe fresh air and clear his mind—always a good thing for a country’s representative.
Erewhon (anagram of Nowhere) is based on the novel Erewhon by Samuel Butler set in a fictional country. It is a satire. The Court, judge and judgment in this piece are fictional.
Sriram Panchu is real. He is a Senior Advocate at the High Court, Madras. He was assisted by Vikas Muralidharan, Lecturer, Sai University, and Aprameya Manthena, Advocate, Madras High Court.