Supreme Court’s 40-year quest to clean Delhi’s toxic air and why it falls short 

For nearly four decades now, the top court has actively discussed the air pollution crisis plaguing the country’s capital — leading to the passage of some consequential reforms. Yet, significant challenges persist

As the air quality in the national capital plunged to the “severe plus” category, the Supreme Court earlier this week strongly reprimanded the Delhi government and the Commission for Air Quality Management (CAQM)  — the Union government’s pollution monitoring agency — for delaying the enforcement of stringent curbs under Stage IV of the Graded Response Action Plan (GRAP).

Earlier this month, the court admonished the Delhi government for failing to restrict the use of firecrackers during the Diwali festivities. In October, it censured the governments of Punjab and Haryana, as well as the Centre, for imposing paltry penalties for stubble burning, a key contributor to the region’s pollution crisis.

These proceedings, however, seem to follow a disconcertingly familiar pattern. The judiciary’s focus on pollution intensifies with the onset of autumn, persists through winter, and wanes by February. Yet, Delhi’s air quality remains largely impervious to this cyclical judicial intervention.

“The air pollution crisis stems from decades of misguided planning and policy failures. It cannot be remedied solely through judicial orders issued during periods of acute pollution. Even with the noblest intentions, the judiciary’s power and capacity to address this systemic issue are inherently constrained, “ Ritwick Dutta, an environmental law expert and founder of the Legal Initiative for Forest and Environment, told The Hindu.

Long battle

The Supreme Court has been grappling with Delhi’s air pollution crisis for nearly four decades. In 1984, environmentalist M.C. Mehta filed a series of public interest litigations (PIL) pleas addressing three critical issues: the escalating vehicular pollution in Delhi, the environmental deterioration of the Taj Mahal, and the pollution of the Ganga and Yamuna rivers.

Through these petitions, the court progressively took on a quasi-executive role in tackling the crisis, delivering landmark rulings that resulted in some of the most transformative anti-pollution reforms. The court’s engagement was anchored in its interpretation of Article 21 of the Constitution, which guarantees the right to life and, by extension, recognises the access to clean air as a fundamental right.

In 1996, the court ordered the relocation of polluting industries from residential areas to curb industrial emissions. In 1998, it directed all public transport vehicles operating on diesel to switch to compressed natural gas (CNG) by 2001. While the air quality initially improved following the directive, commuters and vehicle operators soon faced numerous practical challenges including acute CNG shortages, frequent cylinder explosions, and even vehicle fires.

Criticising the move for encouraging greater reliance on private automobiles, Mr. Datta pointed out that the court failed to anticipate how this would counteract the benefits of cleaner technology. 

“Fuel-efficient engines are both economically advantageous and environmentally beneficial. But they also incentivise more vehicle purchases and increased travel, thus undermining the intended benefit. The government needs to put a cap on the number of vehicles a city can have — a policy that will require stringent and unpopular measures”, he said.

In 2015, the top court imposed a temporary ban on diesel vehicles with engines larger than 2,000cc and levied an environmental compensation charge on trucks entering Delhi to curb vehicular emissions. A year later, it banned the sale of firecrackers during Diwali to prevent seasonal pollution spikes.

In 2017, the court approved the Union Environment Ministry’s GRAP — a set of emergency measures that kick in once the air quality reaches a certain threshold in the Delhi-NCR region. Among these measures was the “odd-even” vehicle rationing scheme, which allowed vehicles to operate only on alternate days based on the last digit of their registration numbers. However, experts have flagged that the scheme remained largely ineffective due to inadequate public transportation alternatives and the numerous exemptions it allowed. Notably, two-wheelers, which are equipped with two-stroke engines that burn a mixture of gasoline and oil, producing higher emissions, were exempt and continued to operate on the roads.

In November 2019, the government was ordered by the court to install smog towers in the capital, each entailing a humoungous construction cost of nearly ₹23 crore. However, research has indicated that such measures are largely ineffective since their impact is limited to the immediate vicinity, leaving the broader cityscape unaffected. This finding was reaffirmed by the Delhi Pollution Control Committee (DPCC) when it informed the National Green Tribunal last year that the two experimental smog towers in the city had proven ineffective in reducing air pollution.

The issue of crop stubble burning by farmers has also come under heightened scrutiny in recent years, with the court directing State governments in 2019 to take action against the practice. Although the CAQM has doubled penalties for farmers caught engaging in the practice, the absence of strong financial incentives has rendered such measures largely ineffective. A typical bureaucratic response to a problem that requires political consensus has further exacerbated the woes of farmers. 

Lack of political will

Despite these directives, Delhi consistently ranks among cities with the worst air quality globally, particularly during winter. 

Debadityo Sinha, Senior Resident Fellow at the Vidhi Centre for Legal Policy, attributes the failure to implement these orders to inadequate accountability mechanisms and a lack of political will.

“The imposition of hefty penalties is imperative to deter polluters and discourage violations. However, judicial directives alone are insufficient; effective enforcement requires active government cooperation. Unfortunately, there is a glaring absence of political will within the government,” Mr. Sinha told The Hindu. He further stressed that anti-pollution measures must be enforced uniformly and should not disproportionately impact the informal sector.

Echoing similar concerns, Mr. Dutta remarked that the courts had been compelled to intervene due to the government’s failure to address the issue.

“The judiciary cannot remain a mute spectator when the air quality index (AQI) reaches hazardous levels. Even in such alarming circumstances, no inter-ministerial or crisis meetings are convened by the Environment Ministry to take urgent action. The government seems to have outsourced the responsibility of addressing the city’s pollution crisis to the judiciary, which constitutes a clear abdication of its constitutional duty,” he said.

The lack of political will is also reflected in the functioning of the CAQM. In the three years since it replaced the Supreme Court-mandated Environment Pollution (Prevention and Control) Authority (EPCA) as Delhi’s nodal pollution control agency, the CAQM has faced criticism for adopting populist measures and failing to develop the institutional capacity needed to tackle the city’s air pollution crisis.

“The continued rise in pollution despite the CAQM’s establishment highlights its failure. Moreover, the negligible number of complaints registered for violations reflects a mindset that treats air pollution as a mere aberration rather than a serious criminal offence”, Mr. Dutta said.  

Notably, the Supreme Court on November 22, 2024, took cognisance of The Hindu’s report that highlighted that the CQAM was aware of a significant rise in stubble burning by farmers in Punjab and Haryana. This contrasts sharply with the statutory body’s repeated claims before the court of a “significant reduction” in such incidents in recent years. Consequently, the CAQM was instructed to submit the documents cited in the report and offer a detailed explanation.

Existing challenges  

Mr. Sinha emphasised that there were no quick fixes to one of the capital’s most pressing civic challenges and that lasting remedies could only be achieved if it became a key electoral issue and was prioritised by the government year-round. 

“Despite all our technological advancement, the stark reality is that the majority of cities in India lack even basic air quality monitoring systems. The National Air Quality Monitoring Programme (NAMP) has only established 962 manual monitoring stations across 419 cities. However, there are nearly 4,000 cities in the country. This means that fewer than 10% of cities are actively monitoring air pollution, and the situation in rural areas is even more dire”, Mr. Dutta pointed out.

He further highlighted that recent regulatory reforms had only weakened environmental protection regimes. For instance, the Jan Vishwas (Amendment of Provisions) Act, 2023, had decriminalised offences under key environmental laws, including the Environment Protection Act, 1986, and the Air (Prevention and Control of Pollution) Act, 1986. 

“Rather than a court imposing penalties on a violator, the law now hands over all adjudicatory powers to a government servant”, he explained.

Published - November 23, 2024 01:45 pm IST