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Delhi Air Pollution: Burning Issue

A CJI Ramana led bench reprimanded and nudged governments to work together to control this menace keeping in view that the right to a pollution-free environment is enshrined in the Constitution.

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By Sanjay Raman Sinha

Amidst yet another smoggy day in Delhi, a three-judge bench headed by Chief Justice of India NV Ramana took a hard stand against pollution and pushed the governments in Delhi-NCR to evolve a mechanism to tackle the menace.

The no-nonsense approach of the bench was not lost to the stakeholders. Hitherto farmers were at the receiving end and branded as prime polluters and stubble burners. This time, it was different as the bench took up cudgels for them.

This was not new for those who know Chief Justice Ramana. He was known for his activism in his early days and getting involved with issues concerning farmers and industrial workers. He has often taken sticky problems upfront with a missionary zeal.

The same proactiveness was seen during this hearing. One school of thought is that the present pollution narrative is anti-farmer and pro-city dwellers. To borrow a Marxist maxim of Amita Baviskar, Professor of Environmental Studies and Sociology, Ashoka University, Sonepat, it’s a “bourgeois environmentalism” phenomenon. Here, the poor are conveniently seen as responsible for urban pollution and have to bear the unequal costs of ecology reconstruction.

In recent times, stubble burning was hyped as a major cause of pollution in the Delhi-NCR region. The Court, however, didn’t buy the theory. Interestingly, during the hearing, the research data itself became an ammunition for judges to demolish the myth of pollution.

The fight for clean air in the Delhi-NCR region in the Court, at one time, became a data-crunching exercise with the centre claiming that farm fires in Punjab, Haryana and Uttar Pradesh contributed only 10% of the pollution.

However, Justice DY Chandrachud said: “You say 76% of the pollution is caused by industry, dust, vehicles and construction and not due to stubble burning. Now the cat is out of the bag. You are now trying to target pollution that is insignificant?”

Vikas Singh, appearing for petitioner Aditya Dubey, held that the centre had made a wrong statement in Court on stubble burning as a recent high-powered meeting on pollution had recorded that stubble burning even now was responsible for 35-40% of Delhi’s air pollution. He alleged that the government was going soft on farmers’ due to political considerations. Singh advocated an “independent agency” to monitor the air quality in Delhi.

The solicitor-general, however, rued that his comments had been misinterpreted by the media. Justice Chandrachud added comfortingly:

“That day, I recollect, when I pointed out the figure of 4% (as mentioned in the Centre’s affidavit regarding stubble burning contribution), Mr. Vikas Singh pointed out that in the annexure of the affidavit the figure is 35%. We were not misled at all.”

CJI Ramana supported the farmers. He said: “We don’t want to penalise farmers. We have requested states to persuade the farmers to not burn stubble.” Singh said: “We are not into farmer bashing. But stubble burning is a serious problem and it needs to be addressed. Compensate farmers for stubble.’’

Justice Surya Kant, who had earlier insisted that farmers need incentives to find alternatives, said: “Irrespective of figures in affidavits, we have to consider the plight of the farmers…what compels him to burn the stubble? Nobody is concerned about that. People sleeping in five-star hotels in Delhi blame farmers. Look at such small landholdings. Can they afford the machines you all talk about? You all say transport is main cause. We know all the gas guzzlers, hi-fi cars run on Delhi roads. Who will encourage them to stop this?”

How the media handled the pollution imbroglio was also on the minds of the judges. The CJI said that debates in the media were adding to the “pollution’. “You want to use some issue, make us observe and then make it controversial and then only blame game will remain. Debates in TV is creating more pollution than everyone else. Everybody has their own agenda. They don’t understand anything.”

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The Supreme Court said it would take a call on putting in place harsher measures to improve Air Quality Index (AQI) levels in the national capital after November 21. It asked the centre and the states involved to follow directions issued by The Commission for Air Quality Management in the National Capital Region and adjoining areas.

CJI Ramana said that firecrackers were not a major factor in Delhi’s air pollution, but were a temporary phase, according to a study conducted by IIT Kanpur. The findings of the study were submitted to the Court by the Delhi government.

It is not the first time that technical expertise has been tapped by courts to look into pollution and other complicated issues. In 2020, on the orders of the Court, the government and IIT experts formed a committee to look into pollution management technology. Environmental degradation has over the years become an increasingly complex subject. It is a heady mix of technology, law, human rights, economy and biological health. In order to handle this complicated web of issues, courts need expert knowledge.  

Earlier in 1986, in MC Mehta vs Union of India, the Supreme Court had observed that environmental cases involve assessment of scientific data. Setting up of environmental courts would require professional judges and experts. Since then, the rigorous demands of cases have institutionalised the mechanism of expert committees.

Post-1995, the appointment of an amicus curiae in environment cases has also became a standard fixture in courts. An amicus curiae is literally a “friend of the Court”, one who has domain knowledge over the subject and plays an advisory role to the court. 

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As humans have increasingly found themselves in the vortex of habitat devastation and environmental wreckage, courts have been forced to become champions of the beleaguered citizenry. This was more so because the governmental and administrative machinery had failed to do their jobs as trustees.

In the present hearing, the bench conveyed its unhappiness over the response of the bureaucracy in complex pollution scenarios. “What I am observing as a Judge…is that bureaucracy has completely developed a sort of inertia. They don’t want to take a decision. How to stop a fire, seize a vehicle, this court has to say. Use sprinklers or water buckets, we have to say. This is the attitude developed by the executive…It is unfortunate…,” the CJI remarked.

The distinguishing factor in environment jurisprudence in India has been its stress on human rights. Though the “development versus economic growth” debate has led to the evolution of strong environment laws, the human concern has always been given centrality. The quality of life of the individual had been sought to be protected and enhanced. Courts have interpreted and invoked fundamental rights along with the Directive Principles of State Policy and Fundamental Duties to develop their stand on environment issues.

In Charan Lal Sahu case, the Supreme Court held that the right to life guaranteed by Article 21 of the Constitution includes the right to a wholesome environment. Such pronouncements have given environmental legislations a humane face. 

As environmental devastations increased, the concern for protection of the natural milieu came to be recognised as an adjunct to the right to life. The State was held be a trustee of citizens rights and hence, its protector.

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In Kamal Nath case, the concept of public trust doctrine was invoked forcefully. The Court held:

“The state is the trustee of all the natural resources, which are by nature meant for public use and enjoyment. The public at large is the beneficiary. The state as a trustee is under a legal duty to protect the natural resources.’’

The judicial activism being seen now has also led to the growth of strong environmental policies and institutions. It has also activated a system of checks and balances via a robust environmental movement, responsive bureaucracy and a proactive judiciary. 

Perhaps the most important piece of legislation in this field of law is the Environment Protection Act 1986. Enacted in the wake of the Bhopal Gas tragedy, this Act covers the whole gamut of environment issues. Environment has been defined under the Act to include water, air and land and the inter-relationship among them and human beings, other living creatures, plants, micro-organisms and property. The Act empowers the central government to take such measures as it deems necessary to protect and improve the quality of the environment and to prevent, control and abate environmental pollution. Unfortunately, governments haven’t risen to the task and the opportunity provided by the Environment Protection Act.

Sadly, governments need directions from the Court to make blueprints of action. The present hearings are an exercise in that direction. On any other day, it would have been dubbed as judicial activism. Today, the Court’s wisdom and directions are the need of the hour for governments struggling to deliver the goods on pollution control and other problems.

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