Dr.Jayashree Khandare

Assistant Professor, Bharati Vidyapeeth (Deemed to be University), New Law College, Pune

Dr.Jaykumar Bhongale Assistant Professor & Research Associate

BharatiVidyapeeth (Deemed to be University), New Law College, Pune

1.         INTRODUCTION

Various international surveys and assessments have time and again found Delhi to be one of the most polluted cities in the entire world. Worst comes to worst as winter arrives, and the entire city, including the most powerful elites of India are seen grappling with a constantly deteriorating state of the environment around them. Environmental experts have termed this worsening of the situation as a public health emergency several times, and yet, the attention devoted to the same has been shockingly abysmal. It is that time of the year again, and once again, despite a much cleaner preceding few months, the situation has become appalling.

Some prior data is relevant to be cited here. According to a survey conducted by the World Health Organisation, out of a total of 1,650 major cities of the world, Delhi is the worst in terms of air quality. Furthermore, air pollution in Delhi and adjoining regions is estimated to cause around 2 million (nearly 20 lakh) deaths every year. Such a dreadful state of affairs is caused by multiple reasons, as mentioned in Figure 1.

As the Figure 1 reveals, the biggest contributor to Delhi‟s air pollution is Vehicular Emissions, i.e., 41%. 21% of the pollution is caused by dust, whereas a whopping 19 % is caused by industries. These data, sourced from the Ministry of Earth Sciences show how bad the situation actually is on the ground. As stated above, the situation gets especially bad in the winter months.

A pertinent question arises in light of the aforesaid situation- does our omnipotent legal system, which is so well equipped and has often dealt with the subtlest issues of human importance, provide no recourse to environmental damage? If it does, what are these recourses? How can one avail them? Are people aware of such legislation? Which steps must necessarily be taken so that our legal system is able to effectively tackle the menace of air pollution in the national capital of our country?

These very relevant questions make the foundation of the present article. Accordingly, it explores the situation on ground in Delhi, the factors responsible for the situation vis-a-vis environmental population, the legal framework to address the menace of pollution and the role of the Indian judiciary in this regard.

2.         UNDERSTANDING AIR POLLUTION

Before we directly jump into understanding the situation of air pollution in Delhi, it is quintessential to understand what air pollution is and how we ascertain the magnitude or gravity thereof.

Simply put, air pollution can be understood as the presence of such substances in the atmosphere that are harmful, either actively or potentially, to the health of living species including, but not limited to human beings. Such substances, known as “pollutants” may prove to be harmful to the climate at large and to other materials as well.

Pollutants can be found in any form of matter, i.e., solid particles, liquid droplets or gases; and the origin thereof can be both man-made as well as natural. Broadly speaking, these pollutants can well be categorized into two different heads, Primary and Secondary Pollutants.

  1. Primary Pollutants: Primary pollutants are those pollutants that are released into the environment directly. For instance, the sudden eruption of a volcano may lead to the emission of ashes and some harmful gases directly into the environment, and accordingly, they shall be considered as primary pollutants. Likewise, burning of plastic garbage may result in the direct emission of some gases in the environment, making it a primary pollutant. Particulate Matter 2.5 and 10 are also examples of primary pollutants.
  • Secondary Pollutants: Secondary Pollutants are not directly released in the environment. These pollutants are in fact generated in the environment itself by the interaction and reaction of primary pollutants inter se. For example, particulates are created with the interaction of primary pollutants among themselves and compounds in smog (photochemical smog). Such newly generated harmful substance is an example of a secondary pollutant.

After having understood what air pollution is and how it is caused, we can now segue into understanding the method of calculation of air pollution in India.

Air Pollution is tracked by what is popularly known as the Air Quality Index. Air Quality Index or Indices has been developed to understand the magnitude and severity of air pollution present in a defined geographical area. The Index figure showcases levels of air quality by markers such as good, satisfactory, severe, hazardous, etc based on numerical counts. The way it calculates the figure is as follows.

Air Quality Index device physically measures pollutant concentrations and reports them. AQI measures the average concentration of a certain pollutant, say, the Particulate Matter 2.5 over a defined period of time, say 24 hours. In such duration, based on the concentration of such pollutant, the air quality index is defined. Accordingly, the more the presence of the pollutant, the worse is the air quality. Accordingly, if an AQI for PM 2.5 reads 200, one should understand that the concentration of PM 2.5 in the air in that region is 200 micrograms per cubic metre of the AQI, and accordingly understand the pollution level too.

3.         Air Pollution in Delhi-NCR

Former Supreme Court Judge, Mishra, Arun J, once opined in his courtroom, “Delhi has become worse than narak”, i.e., Delhi has become a place worse than hell itself. The court, palpably agitated at the ever worsening state of the environment in Delhi, said that it was better if explosives were brought and everyone was killed at once. If such is the fury of the Apex Court of the land about the pollution in Delhi, it is easily understandable that the situation is extremely terrible.

In the year 2010, as per the survey of the World Health Organisation, the average Particulate Matter 10 limit stood at 286 micrograms per cubic metre whereas Particulate Matter 2.5 stood at 153, which is an extremely unhealthy figure. Compare it with another premier city of the world, London, where the number for Particulate Matter 10 stood at 22 micrograms per cubic metre whereas for 2.5, it was 16. The difference between the situations in the two countries is stark, and warranted attention at the said time itself. However, the present situation is simply flabbergasting.

In October of 2017, several areas of Delhi reported an Air Quality Index of 999. Experts have cautioned that this air quality is extremely detrimental to the health of everyone, irrespective of their age or where they live. Experts have also stated that such air quality is nearly as harmful as having 50 cigarettes in one day. The city, well put in the words of its Chief Minister Mr Kejriwal, has become nothing less than a gas chamber.

There are several reasons behind this ever worsening state of affairs in Delhi. Some possible contributing factors are enumerated herein below:

  1. Stubble burning in areas adjoining Delhi:Delhi as well as areas adjoining them have been badly affected due to the stubble burning that happens when crops are harvested. This is one of the reasons why it is seen that pollution levels suddenly rise in September-October.
    1. Lack of political and bureaucratic willingness to tackle the issue upfront: The dire inaction of the authorities to completely resolve the issue at hand or take active steps in the right direction, both at political and bureaucratic levels is another reason behind the worsening of the situation.
    1. Overpopulation in the city: Much of the pollution in the city of attributable to the booming population.
    1. No proper monitoring system in place to see the levels of the AQI and act thereupon: against the mounting levels of pollution, shockingly, no suitable system has been established to ensure continuous monitoring of the pollution levels and further keeping a check on them.
    1. Use of firecrackers during festivals: Despite directions banning the burning of firecrackers, several contraventions have been reported.
    1. Motor vehicle emissions: Delhi is the host to a large number of vehicles and despite innovative measures such as the „odd-even rule‟, vehicular pollution continues to haunt the city.

4.         LEGAL FRAMEWORK TO CONTROL AIR POLLUTION

The obvious question that needs to be addressed is whether there is any legal framework in place to address the menace of air pollution. The Indian Parliament passed The Air (Prevention and Control of Pollution) Act in the year 1981 (hereinafter referred to as the “Air Act”). This piece of legislation provides for the “prevention, control and abatement” of air pollution and “for the establishment of Boards at the Central and State levels with a view to carrying out the aforesaid purposes”.

The Air Act was enacted by the Parliament to tackle the many problems associated with air pollution in the country. It also aims to, and subsequently does, set up ambient standards of air quality in India. The Act endeavours to battle air pollution in more ways than one, such as by completely stopping the use of polluting fuels and substances.

It aims to do so by regulating appliances that give rise to air pollution too. The Act entrusts and empowers Governments at the State level, in consultation with the State Pollution Control Boards, “to declare any area or areas within the Sate as air pollution control area or areas”. As per the Act, setting up or functioning/operating an industrial plant in a pollution control area requires the prior consent from State Pollution Control Boards. These boards are also expected to test the air quality in air pollution control areas, manufacturing processes as well as to inspect pollution control equipment.

Other important legislations in this area are the Environment Protection Act of 1986 and the National Green Tribunal Act that work in consonance to counter the threats posed by air pollution in India.

5.         ROLE OF THE JUDICIARY

The next area that requires careful consideration is the response of the Indian judiciary to the menace of air pollution. In a nutshell, it can comfortably be stated that the courts have truly played their role of being the “sentinel on the qui vive” when it comes to the protection of the environment, not just in Delhi but for the entire country. Following are some of the important judgments in this area:

a.         M.C. Mehta v Union of India, (1998) 6 SCC 60 & (1998) 9 SCC 589

In this case, dealing with the issue of vehicular pollution, the Supreme Court held that it was the duty of the Government to ensure that air in the country was not being contaminated as a result of vehicular pollution. The court further held the right to clean environment is a right well under Article 21, the right to life and personal liberty enshrined under the Indian Constitution.

b.        M.C. Mehta v Union of India, (1998) 8 SCC 206

This case was revolutionary as the court discussed the subject of lead free supply of petrol for the first time ever. The Hon‟ble Supreme Court was pleased to hold that old commercial vehicles more than 15 years old should be phased out.

c.         B.L. Wadheravs- Union of India, W.P. No. 179 of 1999

This particular case was related to the ecological non performance of compulsory duties by the Municipal Corporation of Delhi. These duties would include garbage clearance, scavenging and cleaning Delhi, etc. The Supreme Court held that non availability of funds can simply not be taken as a ground for ignorance or non performance of an obligation imposed by legislation.

d.        M.C. Mehta v. Union of India, AIR 1997 SC 734

This present case was a PIL filed by MC Mehta. Taking into its judicial cognisance the harmful effects that emissions from Mathura Oil Refinery had on the TajMahal, the Hon‟ble Supreme Court employed the “principle of sustainable development” to the case. The Court passed a slew of directions in the matter.

e.         M.C. Mehta v. Kamal Nath, AIR 1987 SC 1086

The present case is in fact very significant. Here, an attempt was made to divert the flow of a river for the purpose of augmentation facilities at a “motel”. The court was pleased to hold that the State, as also the instrumentalities thereof, as trustees concerned were duty-bound to protect and preserve natural resources.

f.          Rural Litigation & Entitlement Kendra and Others v. State of U P, AIR 1988 SC 2187

Yet another landmark judgment, this case was in which the Supreme Court was informed about the unauthorised mining activities / illegal mining activities of mining in Dehradun. Consequent of the aforesaid, the ecology of the surrounding area was getting negatively impacted, further leading to

disorders in environment. The Supreme Court, in this matter, treated a letter as a writ petition and directed to stop the excavation.

g.         Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2718

This present case saw the recognition and evolution of the popular “polluter pays” principle. The court conducted extensive discussions on the subject of the “polluter pays” principle and went on to hold that the same is a part of the environmental law of India. The court identified that the central or key objective of this principle is to ensure that the polluter is made to pay for their deeds and compensate their victims, should their act cause any harm.

6.         CONCLUSION

In conclusion, it can be stated that despite the robust involvement of no less than the Apex Court of the country and despite the presence of legislations such as the Air Act, pollution levels, especially in a place like Delhi are rampant. Clearly, there are several lacunae that need to be identified and governments, both at the Central and the State level need to work coherently and in sync with another to battle this menace of air pollution and climate change.

As is evident from the figures, the pollution levels in Delhi have not even left it liveable. An AQI of 999 is not just scary, but also grossly damaging. Yet, no effective steps seem to have been taken. It is time that responsibility that only the courts have been taking so far should now be shared by the Executive and legislative branches as well, and effective steps at the level of the government itself be taken to resolve the problem at hand.

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