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 government brought the ordinance on Commission for Air Quality Management for Delhi-NCR after the Supreme Court on 16 October 2020 indicated its decision to appoint retired Justice Madan B. Lokur as a one-member committee for paddy stubble management. Justice Lokur’s bench was popularly known as the ‘social justice bench’ over the years, and he had experience in adjudicating on matters related to the environment. However, Solicitor General Tushar Mehta expressed strong reservation before the court against the Justice Lokur panel and assured the judges that the government planned to bring in a comprehensive law and a permanent body to monitor and control air pollution. Following this, the apex court on 26 October kept in abeyance its earlier order appointing the Justice Lokur panel.
The ordinance, which was brought in practically overnight under Article 123 of the Indian Constitution, came into effect on 28 October 2020, after the President of India’s nod. Article 123 (1) empowers the President of India with certain law-making powers through ordinances when Parliament is not in session. The limitation to this law-making power through ordinance has been provided under Article 123 (2), which says that an ordinance “shall cease to operate at the expiration of six weeks from the reassembly of Parliament.” Therefore, both the houses of Parliament must approve the President’s ordinance within six weeks from the date of commencement of the parliamentary session. The government failed to bring such legislation to give effect to the 28 October ordinance in the parliamentary session which commenced on 29 January 2020. Because of the absence of a bill from Parliament, the commission disbanded as it was lacking a legal and legislative basis and lapsed after five months from the time it was first set up.
But the 18-member commission also did little in the five months of its existence to resolve air pollution in Delhi-NCR. It limited the role of the judiciary and empowered the executive body to adjudicate on matters related to Delhi-NCR air pollution. The ordinance curtailed the role of multiple ad-hoc committees and boards and even dissolved the Supreme Court-mandated Environment Pollution (Prevention and Control) Authority — an autonomous body that used to report to the apex court on air pollution. In December 2020, the Supreme Court conveyed to the government that it was not satisfied with the work done by the 18-member commission.
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 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.
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.
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Nishant Sirohi is an advocate and a legal researcher specialising in the intersection of human rights and development - particularly issues of health, climate change, ...
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