The authors are advocates of Karanjawala & Co. practicing before the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Mr. Debmalya Banerjee is a Partner at Karanjawala & Co. and Mr. Aman Singh is a Senior Associate.
In the year 1952 a high-pressure weather system trapped cold air below and warm air higher up over the city of London. By itself this would have been a relatively harmless weather phenomenon. However, combined with the fact that the coal driven industrial revolution had rendered the city a virtual cesspool of air pollution it spelled disaster. A cloud of smog descended upon the city like never seen before and wreaked havoc for five full days leaving behind in its trail a story of devastation. It resulted in thousands and deaths and completely inundated the health infrastructure of the city. It was reported at the time that there had been 4000 casualties directly attributable to the smog, however, present day estimates have revised the count to 12,000. Finally heeding nature's warning, the slow to respond Government under the leadership of the then Prime Minister, Winston Churchill enacted the Clean Air Act four years later in the year 1956. The aforementioned Act is widely regarded as one of the very first steps in acknowledging environmental concerns at a time when industrial production was the solution to all problems in Britain.
Air pollution is also a major concern that India as a country is well aware of. The same issues of smog acutely afflict many major Indian cities and more so its capital, New Delhi. Pollution level in New Delhi predominantly fluctuates between bad and worse peppered with extended time periods where the situation get so bad that health emergencies have to be declared. The Hon'ble Supreme Court of India in the matter of Consumer Education and Research Centre v. Union of India; (1995) 3 SCC 42 while exposing on Article 21 of the Constitution of India has been pleased to observe that 'life' does not connote a mere animal existence or continued drudgery throughout life. It is said to include right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. Therefore, it is only reasonable to expect clean air for our daily survival and not be fettered by absence thereof.
The State over time has acknowledged this issue and taken various steps to remedy the situation. However, a major concern remains that it should not be a case for too little too late. The National Capital Territory of Delhi constantly figures in the list of most polluted cities in India. Successive governments have tried various measures over time starting from introduction of CNG (Compressed Natural Gas) as a fuel option since 1993. Public transport buses were all converted to CNG as an initial step. The same also became available for private vehicles also. Led by the NGT (National Green Tribunal) diesel powered vehicles older than 10 years were banned from the NCT of Delhi along with petrol powered vehicles older than 15 years. The Government of Delhi also tried a controversial "odd-even" scheme wherein only vehicles with odd and even registration numbers would be allowed on corresponding odd and even days. Although, the impact was noticeable, however, this scheme was criticised for the inconvenience it caused to the general public and particularly people from modest economic backgrounds. Another feather in the cap of the government has been the elaborate Delhi Metro which has been operationalised with unexpected sincerity. Having elaborated on most of the major steps taken to combat air pollution it must also be said that with a region like NCT of Delhi which is growing exponentially even as you read this, these measures are simply not keeping pace.
Another important aspect to be kept in mind is the long term effects of introducing measures for eradication of air pollution. Electrification of transport is an important example of this. Despite a push towards this trend there are serious reservation on other environmental effects of such a scenario. The batteries used in electric vehicles are also causes of substantial pollution to the environment once the vehicle is de-commissioned due to either its life cycle or for any other reason. The technology in this area is relatively advanced but there is room for improvement. This should serve as a cautionary tale in implementation of knee-jerk measures for combating air pollution without undergoing a rigorous analysis of the long terms effects of such measures. This should not be a case for one step forward and two steps back. We owe it to our future generations to engage in proper due diligence than to busy ourselves with implementation of superficial measures.
We must also take a moment to acknowledge the role of the Supreme Court of India which has through the public interest litigation route taken various steps in ensuring that environmental concerns of the citizens of India are not given a go by in favour of commercial interests. It has also been active in facilitating both action and legislation where it has found that the State machinery is proving inadequate. The M.C. Mehta, Vellore Citizens Forum are but a few examples of public interest litigations where the Supreme Court has actively taken front seat in tackling issues of pollution. There have been certain sections which have called out this action as judicial activism and stepping in the area of the legislature. However, if not for such crucial interventions things would have been much worse. The State is not known to be always pro-active in areas of environmental issues and more often than not requires a nudge to fulfil its obligations.
The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as "the Act") was enacted in India with this view to combat air pollution. It outlines the framework for setting up of Central Pollution Control Board and State Pollution Control Boards. The urgent problem i.e. air pollution has been addressed in this act by mandating that the boards meet every three months or anytime if any exigency arises. Power of the boards include declaring certain areas as 'air pollution control areas' thereby empowering the State Government in consultation with the State Board to ban use of certain fuels, appliances or burning certain combustible items in that area until air quality improves. They also have the power for ensuring standards of emission from automobiles, ban on operation of industrial plants in 'air pollution control areas' subject to just exceptions, check on industry specific emissions and finally the Boards can approach the courts for restraining a person from causing air pollution. The Boards also have powers of gaining information, entry and inspection and taking samples which are necessary for the discharge of their duties in terms of the mandate outlined in the Act.
Where the aforementioned Act really gets its teeth is from the penal provisions. Therefore, any restriction imposed on an industrial plant or an individual operating an industrial plant along with any direction issued by the Central Government under the Act for "the closure, prohibition or regulation of any industry, operation or process" or "the stoppage or regulation of supply of electricity , water and any other service" in terms of Sections 21, 22 and 31A of the Act invite punishment of "imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine". For an ongoing transgression there is an additional fine of Rs. Five thousand per day. For general transgressions the imprisonment is up to three months or with a fine of up to Rupees ten thousand or both along with Rupees five thousand for every additional day of an ongoing transgression. The Act also addresses transgressions committed by Companies and Government Departments.
In the beginning of 2019 the Central Government of India launched a National Clean Air Program (hereinafter referred to as "the Program")to reduce particulate pollution by twenty to thirty percent in at least 102 Indian cities by 2024 inclusive of many state capitals such as New Delhi. It envisages broad areas which need our attention such mitigation action which inter alia include stringent enforcement, extensive plantation drive, technology support etc. It provides for knowledge and database augmentation such as enhancing our air quality monitoring network. It further makes a case for institutional strengthening for example public awareness and education, training and capacity building and setting up air quality forecasting systems. This is to say that a comprehensive action plan is already in place to combat the problem of air pollution. However, experts have often seen this program as a toothless tiger in terms of enforcement mechanisms and also the rather modest budgetary allocation that has been provided.
To conclude it is evident that the State has given appropriate attention to the issue of air pollution in terms of both legislative and policy decision making. However, its implementation leaves a lot to be desired. The effects of air pollution are no longer analysed just in terms of statistical information. They are evident for all to see such as deadly smog engulfing parts of our country creating environmental emergency like situations especially in the National Capital Region of Delhi. Of course, given the current ongoing pandemic these frameworks would again be on the backburner as the State resources are employed in dealing with the pandemic and its repercussions on all aspects of our economy. However, the threat of air pollution presents a clear and present danger and it needs to be addressed post haste. Despite the framework in place as described hereinabove and various other legislations providing ancillary support such as Motor Vehicle Act, 1988 there is scope for substantial improvement. It is in light of this a re-visit to the Act along with the Program are advised. It is for all to see that the existing framework is relatively inadequate in terms of tackling air pollution and as a consequence the constitutionally guaranteed rights of citizens of India are being infringed. It may not be out of place to mention that we may also analyse examples of countries which have been successful in dealing with this problem and implementing stricter legislative and regulatory framework.
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