Strict Action and Not Seasonal Scolding Must Be SC’s Take on Delhi’s AQI Menace

Delhi and Haryana’s Air Quality Index (AQI) has consistently been featuring at an alarming "severe” level over the last two months; a phenomenon we have almost come to terms with for the past few years, much to our peril.

Last week, while being seized of a 1985 petition demanding legal interventions to curb air pollution, the Supreme Court of India strongly censured the Delhi and Haryana governments and emphasised the exigency of preventive measures beyond political blame games.

The direness of the situation can be gauged in the context of the World Health Organisation (WHO) guidelines which highlight that the citizens stand to lose almost 11.9 years of their life expectancy on account of the prevailing toxicity in the air.

With stubble burning being the prime reason, vehicular pollution and incapacitated smog towers in the capital continue to exacerbate the situation. Irony lies in the fact that this is almost a four-decade-long matter and not only have the prayers not been addressed duly but also the situation has taken a much more grave turn.

The SC has mandated the concerned governments to provide details of the steps taken and their progress thus far in the upcoming hearing scheduled next Tuesday.

While the governments continue to grapple with technical, economic, and political challenges to resolving the issue of air pollution, citizens endure violations of their fundamental right to clean air on a daily basis. So governments can no longer get away with sporadic and inefficient measures while passing the baton of blame onto one another.

Come next week, all eyes will be on the apex court but let’s not anticipate any novel articulation since the law already recognises the folly and has time and again urged for the rightful steps but it is in the actioning of the steps that we fail and is now paying dearly.   

It Is an Established Law That Air Pollution Is a Breach of Our Fundamental Right to Life

Back in 1980, in the Municipal Council, Ratlam vs Shri Vardhichand and Ors case, the SC had observed that the Right to Life guaranteed under Article 21 of the Indian Constitution includes the “right to a wholesome environment” and the citizens are entitled to hold the state accountable.

In the landmark judgment in the case of MC Mehta vs Union of India (1986), the Supreme Court reiterated that pollution posing risk to health was violative of the fundamental right to life.

Recently, while hearing a case concerning rising asthma problems among children, the Delhi High Court observed that by the post held by the State government officials, it was their “obligation” to bring the AQI down and restore the residents’ fundamental right to clean air to breathe. 

States’ Culpability Runs Beyond Judicial Vigilance

There remains little doubt as to the fact that the concerned states are, in fact, guilty of environmental crime in their failure to preserve a healthy and clean environment for its citizens. The repeated lapse on their part to mitigate the harms of air pollution is, in fact, a punishable crime under “public nuisance”.

Moreover, section 278 of the Indian Penal Code (IPC) explicitly penalises anyone who vitiates the atmosphere endangering the lives of the residents or those passing through the region. This is something we can very well impugn the governments’ current omissions for.

One hears a flurry of excuses on the part of the state every time brought under judicial scrutiny. But, technical or logistical stopgaps in the way of implementing environmental safeguards have not been exonerated by the Indian courts.

In the Uttar Pradesh Pollution Control Board vs Modi Distillery (1988) case, the Supreme Court cautioned against the impunity that polluters may enjoy on account of negligence of the authorities. 

Farmers may have economic reasons behind pursuing stubble burning but what has the state done to assuage their grievances in a sustainable and eco-friendly manner? Smog towers continue to malfunction even in the face of an environmental crisis. Thus, citizens gasp on account of the state’s negligence.

Judicial Principles Espouse the Complete Liability of the State

As we continue to have our life expectancy reduced, the question we ask ourselves is who is responsible? To find the answer, let’s juxtapose the facts on the ground in the current scenario with the three legal principles of environmental law : 

• Polluter Pays: In the Vellore Citizens’ Welfare Forum vs Union of India (1996) case, the Supreme Court promulgated that the polluter has the absolute liability to not just compensate for the environmental damage caused but also to restore the environment to its natural form. In this context, the state may not be the direct polluter but as authorities responsible for overseeing all alleged sources of pollution; agriculture, vehicles, and industries, the state must be held responsible for its omission, if not commission. 

• Inter-generational Equity:  The right to a clean environment is a collective right of both the present as well as future generations as held in G Sundarrajan vs Union of India (2013). Here again, the state has failed in its duty to protect the rights of the citizens. 

• Precautionary principle: Under this principle, irrespective of any immediate or scientific evidence, measures to anticipate and avert any causes of environmental degradation must be taken. Year after year, around October-November, the pall of smog engulfs the Northern belt of India with the same causes being highlighted. Yet, no concrete measures by the government or the concerned authorities can be sighted. So, it is indeed an instance of the state’s negligence. 

Systemic Inefficiency Mars Citizens’ Right to Clean Air

Time and again, our collective right to a clean environment is undermined due to structural inefficiencies and political gimmicks.

Judicial orders pile on with instructions and mandates a solution but the ground reality remains extremely dreary.

As the apex court adjudicates on the current batch of petitions regarding air pollution and crop burning next week, one hopes that the outcome actually translates on ground and does not remain old wine in new bottles.

(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)