Applying the brakes

In a significant ruling on April 29, 1999, the Supreme Court of India ordered the automobile industry to adhere to stringent emission standards or get off the road. Besides restricting the sale of cars that comply to Euro i norms to 1,500 (1,250 petrol and 250 diesel) per month in the National Capital Region (ncr), the Court has also advanced the dates of enforcement of Euro i standards for both petrol and diesel cars to June 1999, earlier scheduled for April 2000. However, cars that comply to Euro ii norms will not be touched by this order and will not be affected by any quota. While the Euro i norms have been advanced by nine months, the Euro ii norms have been brought forward by five years, to April 2000.

This is probably the first time the apex court order requires industrial giants to take the business of air emissions seriously. This order has come as an unexpected bonus to environmentalists as the original hearing on April 29 was to take a decision on a proposed ban on diesel cars only (and not petrol) following the recommendations of the Environment Pollution (prevention and control) Authority (epca).

In late 1998, Anil Agarwal, a member of the epca, raised the issue of the risks posed to public health by the dieselisation of private vehicles at a meeting of the epca. Agarwal had made a presentation to the epca on the scientific evidence of the carcinogenic nature of diesel particulate matter (pm) and limits of diesel technology. The epca referred the matter to the Central Pollution Control Board (cpcb) which was asked to file a report.

The cpcb submitted a report in favour of preventing the dieselisation of the private vehicle fleet. Following months of debate and deliberations with representatives of the automobile manufacturers, the epca was informed that it would not be possible for car makers to advance emission norms. Taking all this into consideration the epca submitted its report on April 1, 1999, recommending a ban on the registration of private diesel vehicles in the ncr. The epca stated, “It would appear logical to firmly and immediately discourage the trend to dieselise private vehicles, and to encourage this category also to resort to use of cng/clean fuel. The sooner the ban is imposed, the earlier the industry will be alerted to stop further investment.”
Countdown to the hearing On April 16, the Supreme Court considered this report and said in its order, “It is estimated that more than 90 per cent of the Nitrogen Oxide (nox) and respirable particulate matter (rspm) from vehicular exhaust over Delhi is due to diesel emission.”

Tata Engineering and Locomotive Company’s (telco’s) counsel F S Nariman left no doubt that telco would try hard to get the proposal to ban diesel cars stalled. According to the Supreme Court order of April 16, he had submitted that “without further improvement in the quality of diesel it may not be possible to fully control the harmful emissions, but he would have it examined.”

Moreover, telco’s statement that the number of diesel cars on the roads is small led the Court to direct the additional solicitor general to inform the court before the next hearing on April 29, the number of diesel and petrol-driven private vehicles registered in ncr in 1997 and 1998; and disclose the number of registered private vehicles for both petrol and diesel separately from January 1, 1999 to March 31, 1999.

The epca submitted a draft report to the Amicus Curiae Harish Salve before the next hearing on April 29 to re-emphasise the need for restricting private diesel cars in the ncr. epca pointed out that diesel car sales have only begun in Delhi’s market, and the expected trend in its growth is not likely to show up yet in the registration figures. The entire effort to restrict the number of diesel cars was a precautionary measure.

Meanwhile, sensing the industry’s mood, campaigners from the Centre for Science and Environment (cse) played a proactive role to brief Salve just before the court hearing on April 29. They pointed out several scientific evidences on how even better emission standards and improved fuel quality would not help to solve the problem of toxic particulate emissions from diesel cars (See analysis: Fatal attraction on pg 34). Moreover, any move to let diesel car manufacturers to continue to cash in on the cheap diesel prices would negate the spirit of the earlier order of the Supreme Court requiring a large part of public transport vehicles in Delhi to run on compressed natural gas (cng) or other cleaner fuel.

On April 29, 1999, the courtroom was filled with not mere onlookers but a defence line of the automobile industry to contest any possible decision in the court that might hurt their multi-crore business interest. The case was being heard by a three-judge bench headed by Justice A S Anand.

The automobile industry had turned out in large numbers along with a virtual who’s who in the legal profession. Among them were F S Nariman and Arun Jaitley for telco, P Chidambaram for fiat, Kapil Sibal for Maruti Udyog Limited (mul) and Anil Divan for Mahindra and Mahindra. Rajeev Dhawan was present on behalf of cse, which has brought the problem of dieselisation of the private vehicle fleet to the forefront.

The tension was palpable when Harish Salve began summing up the reasons why the diesel cars should be banned and read out the relevant portion from the draft report sent by the epca just before the hearing. The drama unfolded as soon as Salve recommended that all applications filed by the diesel car manufacturers be referred back to the epca for a final position on this matter and diesel car sale be frozen at the current rate of 250 cars as an interim measure.

Threatened by the proposed ban on diesel cars which could decimate telco’s diesel Indica market, Nariman tried to fight back. Instead of taking up the case of diesel, he shifted his target on petrol. In the court, with great fanfare, this masterly lawyer admitted that “diesel is a pollutant, it is a carcinogen, but, My Lord, so is petrol a carcinogen.” The telco counsel contended that 93 per cent of the vehicles in Delhi were petrol-driven and benzene emissions from petrol were as carcinogenic as particulate matter from diesel.

Nariman went on to point at Jagdish Khattar, joint managing director of mul, and a member who represents the automobile association in the epca, by saying that his interests lay in “petrol”. Implying that the epca was biased, Nariman even alleged that the larger interest of the industry was not adequately represented in the epca as its recommendations had been largely focused on diesel vehicles while overlooking that mul, the largest manufacturer of petrol vehicles in India, were not even meeting Euro i norms.

Maruti’s lawyer, Kapil Sibal, clearly unprepared for this assault, was unable to reply. This opened the floor to other prominent lawyers. Harish Salve mentioned that epca was working on diesel.

P Chidambaram, the former finance minister, present in the court to defend fiat argued for more time to meet tighter norms. “The Indian car industry was in any case going to be Euro i compliant by April next year, and it would be impossible for the car companies to change technologies overnight.” The bench retorted that fiat sells Euro ii compliant cars in Europe, so why were they not conforming to these norms in India.

The judges were in no mood to relent to Chidambaram’s concern for how the new norms might hurt the Indian economy and the industry. The bench cut him short, “If we have to choose between economy and public health