Court takes charge - Given the ‘inability’ of the state government

The Telegraph , Saturday, January 10, 2009
Correspondent : A STAFF REPORTER
Calcutta, Jan. 9: Calcutta High Court will monitor the implementation of the ban on two-stroke autos, “given the inability of the state government” to enforce the order to fight air pollution.

The court has asked the government to submit fortnightly action-taken reports till polluting three-wheelers are off the roads.

“Given the inability, for whatever reasons, of the state government to implement the order passed on July 18, 2008, it would be necessary for this court to monitor further progress with regard to the implementation of the said scheme at frequent intervals,” the division bench of Chief Justice S.S. Nijjar and Justice P.C. Ghose said.

Whiplash after whiplash fell mercilessly on the government whose lawyer at one point referred to Nandigram to justify its inaction in the face of violence.

When advocate-general Balai Ray sought an extension of the phase-out deadline to July 31, the chief justice asked whether the government had “suddenly” woken up to the ban. “After sitting on the order for several months since July 18, 2008 (when the ban was announced), your government now seeks an extension of the (December 31) deadline?”

The evocative question nails a lie the government has been dishing out: last week, chief minister Buddhadeb Bhattacharjee had said autos could not be expected to change “one fine morning”.

Bhattacharjee — whose day began badly with the defeat of the Left candidate in Nandigram by a hefty margin, possibly one of the largest since the front came to power — is in Kerala for a party meet and was unavailable for comment on the developments that raise grave questions about his government’s ability to govern.

A subdued transport minister Subhas Chakraborty, who has perfected the art of multiple somersaults on the issue, said this evening: “We have to helplessly hear the court’s rebuke as we had failed to carry out its order.”

The court said the advocate-general has “clearly stated that it has not been possible for the state government to implement” the ban. “We may also notice here that the state government failed to take any meaningful steps in implementation of the July order,” the court said at another point.

The chief justice said the first progress report, meant to be submitted during the next hearing, would determine whether the court would give more time to the government. “Whether or not ultimately the request of the state government is to be accepted with regard to the extension of time to July 31, 2009, will be considered on the next date.”

But the court barred police from seizing any licensed and registered two-stroke auto “in the meantime”, which should mean till the next hearing. However, the order to crack down on the 30,000 unregistered two-stroke autos remains unchanged. This means the government does not have any excuse now for “going slow” — as it has been doing after two days of violence — on seizing the unregistered autos if they ply on the roads.

Although the next hearing — “14 days hence” — falls on January 23, it coincides with Netaji Subhas Chandra Bose’s birth anniversary, which is an official holiday. The next date — the green bench sits only on Fridays — is January 30.

Today’s hearing began at 2.28pm, with the advocate-general first blaming “poor response” from auto operators to the conversion package and then the protests since January 1 for the administration’s failure to rid the city of two-stroke autos.

He outlined the financial package offered to auto owners, saying the public vehicles department had received 11,900 applications from willing auto operators till yesterday.

At this, the court asked what the government had done in the past five-and-a-half months to convince the rest to follow suit.

Chief Justice Nijjar said neither life nor livelihood could be snatched and that it was the government’s responsibility to ensure that both were protected — by phasing out polluting two-stroke autos and helping the owners and drivers switch to LPG-compliant four-stroke ones.

“The scheme framed by the government was not given any publicity. Consequently, hardly any of the autorickshaw owners were able to take advantage of the same.”

The bench asked the government to ensure that the scheme was adequately publicised through newspapers, television and radio.

When the advocate-general spoke of “resistance” and mentioned violence at 26 places since January 1, the bench said the implementation of the ban was “abrupt”, resulting in “widespread resentment”. The July order was passed “on a clear understanding that the conversion” will be done in a phased manner and will be completed by December 31, the court said.

But “the state government failed to take appropriate remedial measures within the stipulated time span”, leaving a large number of autorickshaw owners “totally helpless”. “This, prima facie, resulted in violation of their fundamental rights under Article 21 of the Constitution (protection of life and personal liberty).”

The bench also criticised the government’s handling of the protests. “Such bans were implemented successfully in various parts of the country…. Even in those places the governments faced law and order issues. Your government could have taken a lesson from those instances” Chief Justice Nijjar said.

Ray raked up Nandigram in defence. “What could we have done? We could not have used force. In the Nandigram case, the court said that firing on protesters is unconstitutional.”

The advocate-general said at a news conference later that the government would follow the court’s instructions without fail.

‘DID YOU WAKE UP TODAY?’

Observations made by Chief Justice S.S. Nijjar during the course of the hearing on Friday

What we do here today, the decisions that we take now, impact the health and lives of our grandsons and their future generations.The government must realise that the issue of pollution has to be dealt with utmost care since it involves the health of our posterity It was your government that placed its plea before us in July last year.... After sitting on the order for several months.... did you suddenly wake up to the reality of the ban today?

If the government has not been able to prepare itself for effective implementation of the ban in all these months, what can it do if an extension is granted?

Your government admits helplessness when it comes to tackling the law and order situation.... It is something your government should have been prepared for Such bans were implemented successfully in various parts of the country, in Delhi, Bangalore and Punjab. Even in those places, the governments faced infrastructure or law and order issues.Your government could have taken a lesson from those instances You are constantly referring only to the 38,000 registered autos.What about the tens of thousands of unregistered autos?

It is a fact that the ban involves the question of livelihood for several thousand auto drivers and their families. However, the way the banned autos were polluting the atmosphere could not be allowed to continue. It is the government’s responsibility to strike that balance

Transport minister Subhas Chakraborty on the court’s observations:

We have to helplessly hear the court’s rebuke as we had failed to carry out its order. But we must keep in mind the fact that we cannot use police to beat up auto drivers at our will

 
SOURCE : Saturday, January 10, 2009
 


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