Courting Social Change – Lessons from the CNG Case in India
| Author | Harsimran Kalra |
Courting Social Change – Lessons from the
CNG Case in India
Harsimran Kalra*
This Article aim s to discuss the challenges to judicial interv ention in
policy-making and the constraints on the courts’ efficacy in bringing
about social change. For this purpose, this Article focuses on the CNG
case, where the Indian Supreme Court decided th e fuel choice for Delhi,
to enforce the right to a clean environment. Th is analy sis is important
in identifying means for Civil Society Organisations to make better use
of the judicial system in effecting social change.
I. INTRODUCTION
While scholars like Trubek are optimistic about the new law and development
movement,1 others such as David Kennedy continue to be sceptical.2 Kennedy
argues that the rule of law approach has the impact of reducing engagement
with politics and economics.3 This Article discusses these limitations of the law
and development movement in as much as it encourages access to justice for
development. To this end, the Article identifies the challenges to judicial
intervention in policy-making and the constraints on the courts’ efficacy in
bringing about social change. The Article focuses on the CNG (Compressed
* B.Sc. LL.B. (Hons), Nation al University of Juridical Scie nces, Kolkata; LL.M., S OAS, University
of London; Assistant Professor, Jindal School of Government and Public Policy, Jindal Global
University. The Article feeds into my ongoing research on access to justice and judicial systems
in India. I am deeply indebted to my supervisor, Prof. Alexander Fischer for his support and
guidance. I am also grateful to Dr. Marica Moscati and Lovleen Bhullar for their comments on
the research, and Goutham Shivshankar and Neha Gauhar for their feedback on previous drafts
of this Article.
1 David M Trubek, ‘Th e “Rule of Law” in Development Assistance: Past, Present and Future’ in
David M Trubek and Alvaro Santos (eds), The New Law and Economic Development (CUP 2006)
94.
2 David Kennedy, ‘The “Rule of Law,” Political Choices and Development Common Sense’ in
David M Trubek and Alvaro Santos (eds), The New Law and Economic Development (CUP 2006)
173.
3 ibid.
(2015) Vol. 2, Issue 1 Harsimran Kalra 111
SOAS LAW JOURNAL
Natural Gas) case,4 where Civil Society Organisations (CSOs) approached the
Indian Supreme Court to enforce the right to a clean environment by
determining the fuel choice for Delhi to be CNG.
Critics of judicial review and the judicialisation of social rights point to the
institutional design of the Court as well as its political embeddedness to
identify factors that constrain the Court in transforming society. This Article
will contribute to the existing literature by identifying these factors and India n
CSOs’ neglect of them in India’s social movements.
The analysis is particularly pertinent to the Indian context, where the civil
society has often sought judicial intervention to determine the adoption of
specific technologies. 5 Recent instances include judicial decisions on the
regulation of genetically modified organisms in Aruna Rodrigues v Union of India
and Others,6 and use of nuclear technology in G Sundarrajan v Union of India and
Others.7 The CNG case is particularly relevant to the discussion as it involves
both institutional limitations of the judicial process, and what Rosenberg points
to as an oft-repeated failure of the environmental movements to adopt political
methods to bring social change.8 The peculiar facts of the case – the lack of
interest of the political class; the non-alignment of the market; limited support
of the executive – highlight the limitations of the law and the strategy of
development movements, which take ref uge from economic analysis and
political choices in law.9
To analyse the role of the Court and its impact on social movements, the Article
adopts a constitutional ethnographic approach developed by Scheppele which
relies upon the logics of particular contexts as a way of illuminating complex
interrelationships among political, legal, historical, social, economic, and
cultural elements.10 In this way, the institutional limitatio ns of the Co urt are
contextualised to identify its political embeddedness, which CSOs did not seek
to influence in the CNG case.
4 MC Mehta v Union of India, WP(C) 13029/1985 (Supreme Court of India).
5 Nupur Chowdhury, ‘Role of the Indi an Suprem e Cour t in Shaping Technology Develop ment ’
(2014) 19(1) Science Technology and Society 57, 74.
6 Aruna Rodrigues v Union of India and Others (2012) AIR SCW 3340 (Supreme Court of India).
7 G Sundarrajan v Union of India and Others (2013) 6 SCC 620 (Supreme Court of India).
8 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2nd edn, Univer sity
of Chicago Press 1991) 283.
9 Kennedy (n 2) 170.
10 Kim Lane Scheppele, ‘Constitutional Ethnography: An Introduction’ (2004) 38(3) Law and
Society Review 389, 390-91.
112 Courting Social Change – Lessons from the CNG Case in India
www.soaslawjournal.org
The research is guided by the ideas of law and development scholars, such as
David Kennedy, Trubek, Santos, and Galanter who advance nuanced criticisms
and varying degrees of faith in the movement. In order to contextualise the
analysis, reliance is placed upon news reports and surveys to examine
consumer preferences, awareness about pollution, media attention on pollution
issues and the price of fuel. Reliance is also placed on existing literature
pertaining to the changing role of the Supreme Court of India developed by
Baxi, Rajamani and Sivaramakrishanan.
The Article is divided into six Sections. The second Section to this Article
discusses the theoretical framework and the facts of the CNG case. The Section
is supported by a timeline depicting the sequence of events. The next Section
discusses reasons for Indian social movements’ preference for judicial
intervention, with specific reference to the Clean Air campaign and the CNG
case.
The fourth Section discusses the efficacy of judicial intervention in policy
decisions by focusing on the intrinsic limitations in the Court’s abilities. Relying
on criticisms de veloped by experts such as Galanter, Baxi, and Horowitz, the
limitations faced by the Court in the CNG case, and the mechanisms it adopted
to overcome these, are identified.
The fifth Section focuses on the political embeddedness of the Court, which
limits it from taking bold steps to effect social change. In this Section, the failure
of CSOs to adopt political means to increase the impact of social movements is
highlighted within the context of the CNG case. The sixth Section concludes the
Article by highlighting the lessons that the CNG case presents for social
movements.
II. THEORETICAL FRAMEWORK AND FACTUAL ASPECTS OF
THE CNG CASE
2.1 Theoretical Basis
Judicialisation, closely linked to the access to justice movement, is a product of
the law and development movement. The core conception of the law and
development movement of the 1950s and 1960s, also known as “liberal
legalism”, is that legal change has the potential to bring about social change.11
11 David M Trubek, ‘Toward a Social Theory of Law: An Essay on the Study of Law and
Development’ (1972) 82(1) Yale Law Journal 1, 17.
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