Delhi has earned the unenviable distinction of becoming the most polluted city on earth this month, especially after the people paid deaf ear to the order of the apex court to limit the time for bursting crackers in Diwali. A day after the nation celebrated Diwali, the Air Quality Index of had hit severe for the first time this season, with a value of more than 500. Apart from Delhi, neighbouring Faridabad, Ghaziabad, Gurugram and Noida were also in the ‘severe’ category.

The five main sources of Air pollution, as per the IIT Kanpur’s comprehensive study, remains the emissions from coal fired power plants, vehicular emissions, burning of crop residue, emissions from ready-mix concrete batching plants and dust at construction sites, with minor sources like bursting of firecrackers leading to a spike in pollution. The situation has turned into a public health emergency, with the air quality index crossing the limits of hazardous levels in some parts, leading to an abruption of routine works. Several research-based studies have found that air pollution is directly associated with respiratory morbidity. The deaths from respiratory diseases in Delhi has consistently increased over the last decade. It reached to a point where three minors suffering from respiratory ailments had to approach the Supreme Court last year to enforce the ban on crackers.

As the air quality deteriorates for the worse at this time of the year, with large swathes of Delhi and the area around it in the grip of a suffocating smog, the government has not shown adequate sense of urgency in coming up with an immediate and concrete solution. Although the Central Pollution Control Board has come up with a Graded Response Action Plan, its recommendations are limited to ensuring better enforcement of a clearly deficient legal-regulatory anti-pollution framework. It is a general expectation from the government of a welfare state to formulate and execute a concrete plan for the prevention, control and abatement of hazardous condition of environment in the capital. The issue of air pollution seems to be part of government’s policy agenda only during the winter season when the Air Quality Index skyrockets and hasty headline management substitutes any concrete action. The governmental apathy is clear from the fact that it has to wait for Supreme Court’s Environmental Pollution Control Authority to wake it up from its slumber.

Government’s Legal Obligation

The issue of deteriorating environmental pollution in Delhi must also be understood from the perspective of a rights discourse. While doing so, it becomes necessary to understand the constitutional source from which the claim emerges. The right to a clean and healthy environment can be located within the right to life under article 21 of the Indian constitution as has been noted down in court on its own motion v. Union of India. It is also a directive principle of state policy under article 47 and 48 A to improve public health and protect and prevent environment from degradation. In this backdrop, an immediate positive intervention by the judiciary is needed to alleviate the horrors of the existing disastrous situation and to protect the wellbeing of the citizens and ensure their unbridled right to life and ambient air in the country. However, the judicial activism is not an alternative to the laxity in functioning of the executive. At most, courts can act as an “alarm clock” to alert and signal the legislature that the problem has gotten out of hands and needs immediate attention.

Delhi’s Governance Crisis

The political underpinnings of the policy inertia and regulatory laxity about a pressing public health and environmental issue cannot be ignored. It is no secret that over the last three and a half years, the institutional governance in Delhi has been going through considerable chaos. The power-tussle between the elected provincial executive and centrally supported bureaucracy has impacted the environment policy the most. The plan for operationalizing the procurement of 1000 DTC buses has been in the cold storage due to lack of cooperation between agencies like the state government, Delhi Development Authority and the Lieutenant Governor’s office. The lack of political will of the government can also not be ignored as it brought up the issue of air pollution only when the crisis reached worrisome levels. Another failure of the political and administrative machinery in North Indian states has been regarding lack of cooperation and consistent policy with regard to curbing stubble burning through effective incentive measures for farmers. Unfortunately, the Union Government has not stepped up to ensure cooperation among states even as the ‘apocalypse’ has assumed dangerous proportions.

Need for Sustainable Action Plan

The national capital needs a sustainable action plan to fight the spectre of air pollution. A mishmash of judicially determined makeshift measures is clearly not up to the task of checking this spiraling public health emergency. The executive needs to take the initiative to proactively pursue an anti-pollution strategy. This must involve the necessary public investment stimulus towards restructuring fuel consumption, power generation and fossil fuel utilization. The example of successful Chinese efforts for abating air pollution show that there are no easy and politically expedient options for the responsible government. It has to bear the cost of systematic exploitation of fossil fuels and comprehensively replace pollution economic activities through both command-control systems as well as incentive-penalty structures. The issue of air pollution can only be resolved when the underlying economic systems are radically transformed to enhance their ecological sustainability. The symbolic measures like tree plantation drives and awareness camps have a role but cannot substitute infrastructural transformation and rigorous regulation.

The Supreme Court should also not attempt to fill the void of executive policy by doing ad-hoc emergency management. It should rather force the governments to fulfill their legal and constitutional obligations in most effective and pragmatic manner possible. This is because the executive is accountable for its measures and should not be relieved of its public accountability by an overzealous constitutional court which tends to micromanage polycentric policy conundrums. The authorities must go beyond the routine measure to strengthen monitoring and compliance and suggest a range of actions – legislative, executive, policy, financial – that are needed to give effect to the many solutions that have already been proposed to combat Delhi’s air pollution crisis.

(Prannv Dhawan and Kumar Satyam are second year students of BALLB Hons at National Law School of India University Bangalore. Prannv is the Founding Editor of Law School Policy Review.)

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