No Final View Expressed On Delhi's 'Odd-Even' Scheme, Was Only Flagging Amicus's Concerns, Clarifies Supreme Court

A bench of Justices Sanjay Kishan Kaul, Sudhanshu Dhulia, and Ahsanuddin Amanullah was hearing a batch of pleas raising concerns over the deteriorating air quality in the Delhi-National Capital Region (NCR). The region typically faces heightened pollution during the winter months, largely due to factors such as stubble burning in neighbouring states.

On the last occasion, the court questioned the effectiveness of Delhi’s ‘odd-even’ scheme in curbing vehicular pollution, terming it as ‘optics’ after amicus curiae and senior advocate Aparajita Singh criticised the policy as 'unscientific'. 

Instead, the Delhi government was asked to report back on the restrictions imposed to regulate vehicle use by employing colour-coded stickers, with an orange tag representing diesel vehicles, and a blue tag representing compressed natural gas (CNG) and petrol vehicles. Amicus curiae and senior advocate Aparajita Singh had called for a ban on vehicles with orange stickers. The colour-coded stickers, the court noted, have already been rolled out by the Delhi government. However, the neighbouring states are yet to implement the scheme, the bench was informed. Accordingly, it directed the governments of adjacent states to “obtain instructions”.

Meanwhile, the Delhi government was asked to prevent the burning of municipal solid waste in the city and to ensure that only locally registered taxis operated within the capital. The court also took critical notice of a non-operational smog tower installed in Delhi’s Connaught Place. “This is ludicrous. We want the tower to be working,” the bench stated in its order, while summoning the chairperson of the Delhi Pollution Control Committee (DPCC) on the next day. 

Today, Senior Advocate ANS Nadkarni explained that the smog tower cannot be operated during monsoons. "We sent a reminder to the Delhi government. From June to October, till it rains, the smog tower had to be shut down. In between, the weather suddenly changed."

"The weather changes every year around this time. And, every year, the same problem arises. You have been trying to address this problem for six years, unsuccessfully," Justice Kaul exclaimed before referring to the morning showers in Delhi that marginally improved the air quality -

"God may have heard the prayers of people and provided some relief. It is no thanks to any government."

Coming down heavily on the union government, the Delhi government, as well as the governments of the neighbouring states, Justice Kaul said, "We have a lot of reports, theories, commissions, and interactions...But on a ground level, nothing is happening. We do not want to get into anything but the ground-level implementation."

Next, speaking about the odd-even scheme, which Minister Gopal Rai has said will be implemented after the Supreme Court reviews its effectiveness, Justice Kaul clarified, "We had raised the issue of taxis coming into Delhi since it affects the whole area. The next thing you read is that they are planning on introducing odd-even in that as well. The court is not concerned with odd-even for taxis. They are now saying that they will wait for the Supreme Court order. But what does that have to do with this?"

On behalf of the Delhi government, the Supreme Court was informed that a large number of diesel vehicles of the orange category have been banned from entering Delhi as an interim measure. Now, there are only diesel vehicles with an emission standard of Bharat Stage IV or higher plying in the streets of the national capital. "At the same time, they constitute a very small percentage of the larger polluting diesel vehicles. But then, taxis and other vehicles are also required or otherwise there will be a in terms of commutation and mobility," the court was told. In response, Justice Kaul said -

"We agree and that is not something we have said. Do not try to non-perform and shift the burden onto the court. Now you're making a hue and cry about how other people will be affected but you have to do it. You have it. All we flagged was the issue is that the amicus was saying that the odd-even scheme has not proved to help. Now you want it for taxis? Did we ask you to do that? We didn't."

The Delhi government objected to the contention that the odd-even scheme was ineffective. Referring to a study, the counsel argued, "It may not have a very large effect, but when contending with pollution of this scale, every little bit counts. We have a study that shows odd-even does make a difference. Maybe it is not as large as a complete ban on diesel vehicles would make, but it does make a difference. Most importantly, the odd-even scheme helps by decongesting roads. When vehicles stall up in lines and do not move due to traffic, they cause even more pollution. Studies have found that the PM2.5 levels were lowered by 13 percent on average between 8 AM and 8 PM."

In response to this, Justice Kaul pointed out that the total share of pollution attributed to vehicles is 17 percent, referring to a real-time source apportionment study of pollution in Delhi conducted by the Indian Institute of Technology (IIT), Kanpur that was cited by the amicus curiae during today's hearing. The judge reasoned, "Out of this 17 percent, you are saying that there is a decline of 13 percent, that too in a specific window. Therefore, possibly the amicus said that it is optics, and doesn't really affect anything."

But he quickly added -

"You do what you have to. We are not telling you what to do. You'll have to take the call. Tomorrow, you'll say we asked you to continue or not and that is why, there is pollution...because the Supreme Court has passed an order. We have flagged what the amicus curiae said, that this is the minimal impact of the policy. Also, people must have two cars with odd and even number plates to travel by car under this policy. It doesn't apply to two-wheelers and other vehicles. Everyone will therefore need a two-wheeler and a car. Then, this gets implemented. You do what you have to and want. On the lighter side, the population can only pray. Sometimes the wind comes and helps, sometimes rain."

Later, during the hearing, Senior Advocate Vipin Sanghi also suggested the formation of a committee headed by a retired Supreme Court judge. Justice Kaul expressed his reservations, saying, "When we constitute committees, the responsibility shifts to these committees, rather than lie with the government. So I believe, our job is to crack the whip and tell the concerned authorities already established to do their jobs, rather than constitute a new committee."

The senior counsel also pointed out that the statutorily required colour-coded stickers were not being affixed to older vehicles despite being more polluting. "Because the statutory provision is interpreted to mean that the manufacturer or some other agency will attend to this. This has resulted in the rule not being implemented in spite of being on the statute book. Now, odd-even..."

You're right, we'll take it up. We'll hear these aspects once the farm fires are taken care of," Justice Kaul said.

Other than this, the court expressed renewed concerns over the raging farm fires in the states adjacent to Delhi, particularly Punjab, urging the governments to come up with emergency measures to douse the fires now and longer-term measures for crop replacement in a phased manner and to encourage crops that do not leave behind stubble that will require burning, including alternative varieties of paddy. These directions were passed while the bench was hearing a plea filed by environmentalist and lawyer MC Mehta in 1985, seeking the court’s intervention with respect to environmental pollution in Delhi NCR. This case, the focus of which extended to different forms of pollution, including air, water, and land pollution in the national capital, has witnessed one of the longest-standing continuing mandamus in the field of environmental litigation.

Case Details

MC Mehta v. Union of India & Ors. | Writ Petition (Civil) No. 13029 of 1985