[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
M.C. Mehta v Union of India is numbered Writ Petition No. 13029/1985. In other words, this public interest litigation has been pending in the Supreme Court for the last thirty-four years. Every once in a while, the Supreme Court Registry unfreezes it from its cryostat, dusts it down, and posts it for hearing. One of those occasions was yesterday, when the city of New Delhi was suffering from extremely high air pollution. A bench was constituted, and a slew of directions were passed to ostensibly address the situation.
The Supreme Court’s seventeen-page order, authored by Justice Arun Mishra, is difficult to read, and even more difficult to comprehend: it is rambling, and at times borders on the incoherent. For example, the opening line is: “We have heard Mr. Bhurelal, who has pointed out about irrigation.” Who is Mr. Bhurelal?* But more importantly, what is it that he has pointed out “about irrigation”? We do not know, and the Court does not tell us. Two paras down, the order says: “Today everyone is concerned about level of pollution in Delhi and NCR region. This is not something new, every year this kind of piquant situation arises for a substantial period.” The word “piquant”, according to the Merriam-Webster Dictionary, means “engagingly provocative” or “agreeable stimulating to the taste.” The Thesaurus lists some of its synonyms as “peppery”, “poignant”, “pungent”, “racy”, and “savoury”. Pollution is “piquant”? What on earth is the Court talking about? Later on, the Court appears to confuse “tortious action” (i.e., a tort) with “tortuous action” (i.e., convoluted or meandering acts). The Court asks why state governments of Punjab, Uttar Pradesh and Haryana “should not be held liable to compensate [for allowing stubble burning]”, but refuses to complete the thought and explain who it is that will be compensated. There is repeated reference to statutory obligations (at one point, the odd phrase “statutory mockery” is used), but the Court refuses to tell us what statute it is invoking, what the obligations are, and what (statutory) consequences exist. And some of the directions simply boggle the mind: on the advice of an unnamed “expert of the IIT”, the Municipal Corporation is told to use water sprinklers on roads (the “pressure” at which they will be used is to be determined on the basis of the aforementioned unnamed IIT expert); because generators cause pollutions, the state governments are told that electricity is not to be cut, so that there will be no need for generators. And so on.
There is a lot to be said here about the use of PILs to resolve complex poly-centric problems, and how this order represents a textbook examples of all the perils underlying that approach. But for the moment, I want to focus on something else. In particular, I want to focus on this paragraph in Justice Mishra’s order:
No farmer can be said to be having a right under the guise that he is not having sufficient time to use the stubble for the purpose of manure, since they have less time between two crops, cutting and sowing of next crop. As such, they cannot by burning it in their fields, put life of sizeable population in jeopardy.
Reading this paragraph, it would seem that the farmers of Punjab and Haryana are a bunch of perverse individuals who literally want to watch the world burn. Naturally, nothing could be further from the truth. As environmental journalist Aruna Chandrasekhar explains, the roots of stubble burning go back to the Green Revolution, and are linked to patterns of agriculture, water usage, and laxity on part of the State to implement available policy solutions. In other words, stubble-burning does not happen because farmers just love being surrounded by all that smoke and fire – but rather, it is an economic compulsion closely linked to structural questions of livelihood.
This could have been explained to the Court. It could have been explained if the farmers were effectively represented at the hearing.** But the order makes no mention of any arguments advanced on behalf of the farmers. Instead, it goes on to say:
We direct the Chief Secretaries of the State Governments, District Collectors, Tehsildars, Director General, IG/SP and other police officers of the area of concerned police station and the entire police machinery to ensure that not even a single incident takes place of stubble burning henceforth. If it is found that any stubble burning has been made not only that person doing it will be hauled up for the violation of the order passed by this Court but the entire administration, right from the Chief Secretary, Commissioner, Collector and all other concerned functionaries and Panchayats. Gram Pradhan/Sarpanch Panchayat are also directed to ensure that no such stubble burning takes place.
We also direct the Sarpanch of each and every Panchayat and SHO of the concerned area to prepare inventory of the incumbents who have burnt the stubbles in their fields. We also direct the Sarpanch, Gram Panchayat as well as the concerned police of the area and local administration including the Collector and all subordinate authorities to ensure that no further stubble burning takes place.
And here is the problem: these are undoubtedly coercive orders passed against the farmers. They undoubtedly affect their livelihood (notwithstanding the Court’s bizarre use of the words “in the guise of”). In other words, they affect their Article 21 rights – the same Article 21 that the Court is so quick to invoke in order to justify its jurisdiction in this very case. How can the Court possibly pass these orders without hearing the affected farmers – and hearing them at length, recording their arguments, and addressing them? The Supreme Court is not Emperor Jahangir, dispensing “swift and brutal justice” whenever someone rings his golden bell, however much that vision might appeal to public imagination. It must follow certain basic rules and principles that underpin its adjudication, and one of the most important of those principles is that if you are going to deprive people of livelihood, you have to give them a fair hearing. This cardinal principle was, of course spelt out in the famous Olga Tellis judgment, in the context of executive action; and there is no reason why it does not apply with equal force to the Court.
In other words, the Court passes orders on stubble burning (a) without considering the structural reasons underlying the activity, (b) determining in advance that any justification that might be proffered will ipso facto be fake and a sham (“… under the guise of…”), and (c) without effectively hearing the people whose rights will be directly affected. Needless to say, this is light years away from how a constitutional court is supposed to conduct itself.
The procedural injustice of the order is reflected in the final paragraph of Chandrasekhar’s report. She points out that “the unions have even suggested that while the government gets its act in order, farmers are ready to reduce the burning to 25 percent” – but, as noted by representatives of the farmers’ Unions, completely stopping the burning is not economically feasible. Such issues should not – and indeed, cannot – be resolved by gunboat-style judicial orders threatening to “haul up” anyone found burning stubble, and the preparation of “inventories” of people who have (previously) burnt stubble (under what law?) – without even according a substantive hearing to the people involved. I say this at the cost of repetition, because above all it is important to push back against the creeping normalisation of the manner in which the fundamental principles of judicial adjudication are being eroded by the Court; it becomes necessary, therefore, to record the proliferation of such violations, even when they occur at such a basic and an obvious level, that it hardly seems worthwhile to dignify them with analysis.
* He is the chairperson of the EPCA.
** It is impossible to tell from the order whether the farmers were formally represented at the hearing. However, as the order makes no reference whatsoever to arguments advanced on their behalf – or any attempt to address them – the point that it is an order without an effective hearing of the affected parties remains.