As part of what has now become an annual ritual during the winter months, the Supreme Court has over the last six weeks pulled up various government authorities for not doing enough to curb air pollution in the National Capital Region.
In October, the court reprimanded the governments of Punjab, Haryana as well as the Centre for failing to stop stubble burning. This month, it picked up the issue of firecrackers, criticising Delhi for failing to implements the Supreme Court’s ban.
There is a weary familiarity about these proceedings. The court’s activity around pollution starts in autumn, continues through winter and packs up by February. However, pollution in Delhi remains unmoved by this clockwork-like judicial activity.
Why has the Supreme Court been so ineffective in curbing air pollution in the capital? According to experts that Scroll spoke with, it is a combination of two factors: the court’s orders not being implemented on the ground and the judiciary not being suited to manage something as complex as the environment. There was consensus among experts, though, that executive authorities that are actually supposed to manage air pollution have utterly failed to do so.
Four decades in court
The Supreme Court has been attempting to solve Delhi’s air pollution crisis for nearly 40 years. It started in 1984, when environmentalist MC Mehta filed a public interest litigation to address vehicular pollution in the city. The court’s engagement was rooted in its interpretation of Article 21 of the Constitution, which guarantees the right to life and hence recognises access to clean air as a fundamental right.
Since then, the Supreme Court has issued numerous orders to reduce air pollution in Delhi. In 1996, it mandated the relocation of polluting industries from residential areas to curb industrial emissions. In 1998, it ordered that Delhi’s public transport system be run on compressed natural gas, significantly reducing vehicular pollution in the early 2000s.
Despite these orders, Delhi continues to face some of the world’s worst air quality, especially during winter. The problem is complex and driven by, among other factors, stubble burning in states bordering Delhi, vehicular emissions and dust from construction projects.
In 2015, the court imposed a temporary ban on diesel vehicles with engines larger than 2,000cc and ordered an environment compensation charge on trucks entering Delhi to discourage polluting vehicles. In 2016, it banned the sale of firecrackers during Diwali to control pollution spikes.
The Supreme Court has also focused on crop stubble burning by farmers in recent years. In 2019, it directed state governments to act against this practice. However, without strong financial incentives and support, these measures have struggled to gain traction.
The court has also instructed Delhi’s government to enhance public transport and limit private vehicle use during high-pollution periods. In 2017, it approved the Graded Response Action Plan, which included road rationing based on odd or even numbers plates.
Regulating construction activities has been another focus. The Supreme Court mandated strict dust control measures at construction sites, ordering halts during severe spells of pollution and fines for violations.
No penalties
However, the implementation of these directives has been difficult. Environmentalists in the capital that Scroll spoke with said that this is due to the court not fixing accountability as well as lack of political will within the government.
Advocate Manali Singhal, who has been involved in several public interest litigation related to air pollution in the city before the Supreme Court, said that without the apex court’s interventions, “things would have been much worse in the city.” “The court has been repeatedly pulling up authorities,” she said. “But there is a willful defiance of court orders.”
The lack of political will is also reflected in the fact that there is hardly any prosecution for environment-related offences in Delhi. Data from the National Crime Records Bureau shows that only seven cases of environment-related offences were registered in the National Capital Territory in 2022. This is part of a trend: in 2021, the corresponding number was 66 while it was 23 in 2020. In Haryana and Punjab too, the number of cases registered for such offences between 2020 and 2022 has hovered between 35 and 72.
This lack of penalties encourages polluters. “There are no penalties or prosecution for violation of anti-pollution laws,” said environmental lawyer Ritwick Dutta, who is the founder and managing trustee of the Legal Initiative for Forest and Environment. “Violaters know that the Supreme Court doesn’t affect directly affect them. If there are blanket restrictions placed by the court, they will go after a few months.”
Writer and journalist Jyoti Pande Lavakare, who is the author of Breathing Here Is Injurious to Your Health, a book about the health crisis posed by air pollution in India, and a co-founder of the Delhi-based non-profit organisation Care for Air, told Scroll that the Supreme Court must do more to fix accountability. “Only when the court actually pulls up officers for non-enforcement of its directions will its orders have teeth and heft,” she explained.
Singhal, however, cautioned that the court must exercise restraint when it comes to using its power of contempt. “The court has to go about pulling up authorities in a responsible manner,” she said. “It cannot just jail bureaucrats for not complying with its orders. What would that achieve?”
Is the Supreme Court suited for this task?
The Supreme Court also cannot be singularly held responsible for the air pollution crisis in the city or for the failure to tackle it, experts that Scroll spoke with said. “It is not the job of the Supreme Court to manage the environment,” said Singhal. “The court can only act on cases brought before it.” Although she acknowledged that the court has also in the past taken up environment-related matters on its own accord.
Dutta was clear that it is not feasible to expect to solve air pollution through public interest litigation. According to him, executive agencies must act on the ground to tackle sources of pollution in the city. “We cannot have such a system where only the Supreme Court works and none of the other agencies are active,” he said.
Pande Lavakare also pointed out that Supreme Court judges are not environmental experts. She referred to the court’s order in 2019 directing the Delhi government to install smog towers to clean the air in the city. However, there is no scientific evidence that smog towers purify outdoor air. The two towers, which cost Rs 23 crore each to build, were “a complete waste of taxpayers’ money”, she said.
However, the court is the only forum for citizens to try to hold the government to account for its failure to provide clean air, said Singhal. “What other resort does one have except going to the court?” she rued.
