The continued inability of the executive bodies to implement judicial orders not only leads to the persistence of the problem of air pollution, but also undermines the authority of the courts, as their role from being adjudicators becomes that of an advisor to the executive.
The hope that COVID-19 will cause us to change our polluting ways has been crushed, according to the Swiss IQAir’s 2020 report. New Delhi continues to remain the most polluted capital city in the world for the third consecutive year. Pollution levels in the Delhi-National Capital Region (NCR) remained in the ‘very poor’ and ‘severe’ category throughout the winter of 2020–2021, and these conditions continue to persist as the hot summer months are approaching.
While there is no relief from the choking air pollution, the Commission for Air Quality Management for Delhi-NCR stands suspended as the ordinance that brought it into existence lapsed on 12 March 2021. On 28 October 2020, the President of India promulgated an ordinance, namely the Ordinance for the Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020. The objective of the commission was to provide “better co-ordination, research, identification, and resolution of problems surrounding the air quality index.” The ordinance, which was brought to set up a regulatory body to function on a “war footing” to combat air pollution, disbanded due to the government’s failure to bring legislation to Parliament.
Over the past three decades, the judiciary and executive bodies have been working to find solutions to ever-rising air pollution in Delhi-NCR. While the judiciary has acted decisively to force agencies to take action, the executive — which has the primary responsibility to take policy decisions to curb air pollution — has neither effectively implemented judicial orders nor created a long-term strategic policy to address the environmental and health challenge posed by air pollution.
The 18-member commission also did little in the five months of its existence to resolve air pollution in Delhi-NCR.
As of now, the commission cannot operate until Parliament passes a legislation or the government promulgates an ordinance yet again to keep the Supreme Court distant from adjudicating on Delhi’s air pollution matters.
The judicial process to address Delhi’s air pollution began after lawyer M.C. Mehta moved to the Supreme Court in 1984–85 — WritPetition (C) No. 13381 of 1984. Over the last 35 years, the courts have been combatting air pollution by passing directives and guidelines and persuading public authorities to take coercive actions against polluters. The Supreme Court of India, the Delhi High Court and the National Green Tribunal have been extremely active in responding to Delhi-NCR’s air pollution problems and have attempted to create an environmental rule of law. However, the continued inability of the executive bodies to implement judicial orders not only leads to the persistence of the problem of air pollution, but also undermines the authority of the courts, as their role from being adjudicators becomes that of an advisor to the executive.
The courts’ role should not be curtailed, especially when public authorities cannot address the evident challenges posed by environmental pollution.
The courts are dynamic creators of law and have played an essential role in interpreting and developing the rule of law that defends environmental protection and conservation. Apart from adjudicating disputes related to environmental pollution, the courts have also acted as regulators and laid down policy framework on jurisprudential lines. For example, on 4 November 2019, a two-judge bench headed by Justice Arun Mishra and Deepak Gupta held an emergency hearing on severely depleting air quality in Delhi and passed a slew of guidelines for immediate measures. At the same time, the Commission on Air Quality Management, in its five months of functioning, did not give a single directive to combat air pollution.
In matters concerning a subject as important as environmental health, the courts’ role should not be curtailed, especially when public authorities cannot address the evident challenges posed by environmental pollution.
There is no dearth of legislation and detailed judicial directives on air pollution mitigation. What is missing is the lack of solid governance arrangements for the effective implementation of environmental laws and regulation. With the new management body under the 25 October ordinance shutting down, the courts are back at the forefront of adjudicating Delhi’s air pollution along with the Central Pollution Control Board and State Pollution Control Boards.
What is missing is the lack of solid governance arrangements for the effective implementation of environmental laws and regulation.
However, there is still the hope that the government will seize the opportunity to reflect on the successive failures of the past and draws up a strategic policy to address the decades-old challenge of air pollution. Clean air to breathe should be understood as a welfare aspiration for all and all arms of the government — judiciary and executive need to work in tandem, rather than engage in a tussle for power.
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.
Nishant Sirohi is an advocate and a legal researcher specialising in the intersection of human rights and development - particularly issues of health, climate change, ...
Read More +
PREV
