SC's decision to lift ban on sale of diesel cars is legally fit but based on weak rationale - Firstpost
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SC's decision to lift ban on sale of diesel cars is legally fit but based on weak rationale

The Supreme Court has recently ‘allowed’ the sale of diesel cars and SUVs with engine capacity of 2000 cc or more in Delhi and NCR on payment of one percent ex-showroom cost as ‘environment levy’. It would be recalled that the question of ban on diesel vehicles has been in consideration at least for three years now, from the time that Delhi acquired the distinction of being the most polluted city, beating Beijing for this 'honour'. Reports have also emerged that at least 20 Indian cities figure in the list of 50 most polluted in the world. Only in December 2015, the National Green Tribunal had banned registration of all diesel vehicles – apparently complete overturn of the logic of one judicial body by a higher one, is the acceptable norm. The question whether all 15-year old vehicles, diesel or petrol, should be taken off Delhi streets has been in the air for years now. Indeed, there has been so much confusion in public mind that for the past two years no road-worthiness certificate for all old vehicles have been issued, much to the delight of the local policeman controlling the city traffic. The good news is that the Supreme Court has now given a final decision.

How good is this decision? What is the basis for fixing a one percent ‘environment levy’ on diesel SUVs? Has any reliable study or analysis led to this precise or approximate quantum of ‘penalty’? Many high-end brands now sell in India at over 50 lakhs per vehicle – is this ‘burden’ on the buyer a sufficient deterrent? A technical committee is reported to have suggested a levy rate of 30 percent or so. Does the order ban 2000+ cc diesel vehicles registered elsewhere, from entering Delhi/NCR? Will the apex court intervene in the next weeks or months on each city’s air condition, case-by-case, to determine imposition of one percent or other levy vehicles in that city?

Representational image. Reuters

Representational image. Reuters

The Maruti Chairman, prior to the Supreme Court proceedings had declared, publicly that any imposition of penalty on diesel vehicle manufacturers would be ‘unfair’ on them. The one tangible result has been the immediate sharp rise in the share market of the motor manufacturing companies. Apparently the Constitution ordains ‘fair’ treatment only to car manufacturers, for whom presumably Article 21 applies – the public health issues relating to millions of NCR residents, the enormous hidden costs of asthma, lung-diseases are acceptable burden for the Delhi citizen. Has any shadow pricing and cost/benefit been undertaken or published to balance the ‘loss’ to the car makers, with the overall burden on society. One wonders apart from the high-priced lawyers representing the car manufacturers, what was the nature of presentation of the interests of 125 crore Indians in this matter. What did the Central Government and Delhi Government argue on behalf of Indian citizens; where is the study to bring out the societal interest in the issue?  One wonders what arguments the Central Government advanced to represent their client versus the citizen. Staccato, spasmodic ‘directions’, at irregular intervals is the way ‘public policy’ is conceived, designed and executed in the country, used as it is to 'Tughlaqian' decision making styles for centuries.

At least 20 ministries and agencies are concerned with the issue of the city’s air quality and traffic systems – departments dealing with environment, finance, industry, petroleum, urban affairs, urban arts commission, Delhi Government are among these charged primarily to conceive and execute air-quality and traffic policies. With so many cooks in the kitchen, they have over decades ignored systematic contemplation on issues, study of the contributory causes, have a common understanding of the salient features, agree on a common approach, coordinate and learn to execute plans over a time period. As a matter of fact, there is no one ‘executive’ – there are 50 executive operators and agencies with its own agenda, guarding and protecting their own turf, seeing no need for a joint plan, cooperation and execution – each agency busy ‘looking the other way’ – with the only objective that they don’t find themselves responsible with any accountability.

The MP, even of the Rajya Sabha variety (‘elder’) is generally concerned only relating his direct party positions, not related to public policy in any specific arena. Over time, bureaucrats have been pummeled into submission as a class, most have become pusillanimous and passive by nature, except those who join hands with the political executive for mutual benefit. The general approach is not to take any leading positions – leave the initiative to the judiciary to give ‘directions’, and simultaneously complain of ‘judicial overreach’! This generally describes the state of affairs in the decision making policies in public arena.

The issue is of proportionality, logic, reasoning and rationale of the order – is this going to improve public weal or diminish distress of the citizen, and further his right under Article 21

Reverting to the air pollution and traffic congestion issues, both related, one cannot explain why there is no reliable study over time in the public domain to analyse the contributory causes, give appropriate weightage to each factor and initiate a planned approach on the issues over a time period. Has anyone seriously considered estimating overall shadow costs and prices to society and economy, and linking with the rates of taxation in our urban centres. In Singapore, for example, a Mercedes car would cost Rs three crore (as against Rs 50 – 60 lakhs in India) – apparently the standard of living of Indians is higher than in Singapore! With huge income differentials, getting exacerbated with progress of time, at least arguably should not one look at a 50 percent subsidy for bicycles, 100 percent taxation on small cars, 250 percent taxation on medium size cars, and say 600 percent on SUVs (as against the one percent levy). The above may not be acceptable to most decision makers in the country – at least should this not be examined on a theoretical basis. Naturally the proceeds of the above taxation should be ploughed back into creating multi-modal public transport, with huge subsidisation.

The Supreme Court is held in the highest esteem by every citizen – time and again the apex court has upheld the principles of the Constitution, and given directions to the executive. Nobody need question the legality of the decision. The issue is of proportionality, logic, reasoning and rationale of the order – is this going to improve public weal or diminish distress of the citizen, and further his right under Article 21 – these are relevant questions.

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