It is winter of 2025 and still, like a B Grade movie, the same scenes are playing out. The AQI levels are alarming, doctors are sounding warning bells, parents are clamouring for schools to be closed or go virtual, our policy makers are continuing their blame game and yet we are nowhere near a solution anytime in the near future? Is it the lot of the present generation kids to grow up with health issues affecting their lungs, their brains and/or their lives? As a nation, we should frankly hang our heads in shame. While countries like Finland and Germany with clean air, are taking further measures to ensure their environment is safe guarded and using technology to this end, we, who are in an abyss are refusing to take any serious policy measures to tackle the visible and obvious poison in our air.
Looking back over the past few decades, one can see that any environmental measure, be it protecting our forests, animals or our air, the direction and firm nudge has come from our Courts, more specifically our Supreme Court of India.
This would not be the first time our Courts have come in and directed policy. Be it the Vishaka case on sexual harassment at the work place or the Lakshmikant Pandey case on inter country adoption, the Supreme Court as the Sentinel on the qui vive, has stepped in and rescued the downward spiral. In Vishaka's case the Supreme Court has framed guidelines to prevent sexual harassment at work place and in Lakshmikant Pandey's it framed guidelines for inter-country adoption to prevent trafficking in children. The Court could have of course, taken the stand that legislation is not their domain, and they can only request the legislators to look into it. But fortunately for us the Courts in these cases actively stepped in and framed guidelines to protect the vulnerable sections till such time legislations were framed in this regard.
Even in the Environment context, the Supreme Court has been responsible for repeated measures to ensure sustainable development. Unfortunately, all Governments, across party lines have been loathe to take firm steps due to competing interests of various interest groups. The burden therefore unfortunately falls on the last woman standing, namely the Courts of Law.
The polluted Delhi air, has been a vexed issue since a few decades now, leading to public interest petitioner, MC Mehta filing writ petitions before the Supreme Court way back in 1985. The Supreme Court, by a Bench consisting of Justice Ahmadi and Justice B.N.Kirpal, stepped in and directed on 28th July 1998 that all city buses have to convert to CNG by March 2001. Through various orders passed thereafter, the Supreme Court in which Justice B.N.Kirpal continued to be a part of the Bench, ensured the compliance of these orders by strict directions from time to time. A detailed order in these proceedings passed on 5th April 2002 makes for interesting reading. The Supreme Court Bench headed by Justice B.N.Kripal while noting the Government's conduct observed - “If there is a short supply of an essential commodity, then the priority must be of public health, as opposed to the of the balance sheet of a private company.” The Supreme Court went on to note the USEPA's mandate on ideal PM 2.5 (particulate matter) levels and noted that most Indian cities including Delhi, register very high levels. Respiratory and other illnesses amongst children and others in Bangalore and other cities was taken note of and the Court observed that “Under these circumstances, it becomes the duty of this Court to direct such steps being taken are necessary for cleaning the air so that the future generations do not suffer from ill health (sic).”(emphasis supplied)
It is because of these bold decisions, passed with foresight by the Bench headed by Justice Kirpal that the air emergency was marginally mitigated for a while.
It has now been many decades since the Supreme Court has been seized of various petitions and applications to address the issue of the air pollution in Delhi. Each year the Court has asked the Government and other bodies for their opinion and to take concrete measures. Either no measures or policy decisions have been taken, or if they have, they have remained on paper. Each State Government and the Central Government have been passing the buck. The various lobbies, be it the automobile lobby, or the farmer lobby, the fuel lobby, the fire cracker lobby, the thermal power plant lobby have been at work and all actions/decisions/implementation has been either frozen or merely on paper. The standard answer of each of these lobbies is that they are not responsible and someone else is responsible. This is like “No one killed Jessica”. In more than 10 years, we have not inched forward to a solution nor has there been any improvement in the air quality. On the contrary, it has deteriorated.
Vehicular emissions, pollution from factories and thermal power plants, pollution from crop burning, pollution from burning of waste, fire crackers – ALL of them need to be tackled simultaneously and NOW.
I don't claim to be an expert, but surely various measures can be imposed to curb pollution. For example – (a) Encouraging hybrid/electric/alternate fuel vehicles, removing import duties on such vehicles till such time the local manufacturers do not step up their act, (b) imposing a vehicular tax, (c) ensuring pavements are in proper condition to encourage people to walk/cycle, (d) putting an end to thermal power plants, (e)strictly imposing penalties for farm fires and incentivising re-use of stubble- the measures which need to be taken are very many and time is of essence.
We have enough and more experts who have weighed in on these. It is time for the Supreme Court to appoint experts to suggest measures to tackle each of these factors. The experts should be truly independent with no connection to Government or any of the lobbies with vested interests. Strict time frames should be imposed to come up with solutions and to implement them. We do not have the luxury of time. Countries have built bridges and stadiums in a week. Surely we can build pavements and cycle path? Surely we can immediately remove import duty on electric and hybrid vehicles to ensure only clean vehicles are used if at all? It is not only developed nations who have clean air today, even countries which could be considered poorer than India have clean air- Be it Sri Lanka or Vietnam.
While the purists, philosophers and academics of law, may advocate that Courts cannot dictate policy or decide policy and that's the domain of the Government, I would say, our Courts should invoke the Doctrine of Necessity and step in to cure the malaise. Frankly, we are well past the stage of such academic discourse on separation of powers. Its not that the powers that be, do not know that there is a serious problem with our AQI. If they didn't think so, they would not have air purifiers in their government offices, homes and some court rooms. Clearly they all know the problem exists. We insulate ourselves by protecting our lungs by installing air purifiers. Who cares that the common man, who cannot afford air purifiers in their home is suffering? Since we have protected ourselves there is no emergency right? We have the luxury of time to pontificate and debate.
The past few decades have shown that the only way forward is for the Courts to lead the way. It is a climate and Air Emergency and the Courts of Law have to step into the breach. This is not the time for the Sentinel on the Qui Vive to quiver, but to act.
Author is a Senior Advocate, Supreme Court of India. Views Are Personal