Supreme Court on November 10 will hear pleas over concerns of the worsening air pollution in the Delhi-National Capital Region. Smog has engulfed the national capital with the Air Quality Index (AQI)—which measures air pollution—hovering in the severe category. The Aam Aadmi Party (AAP)-led government in Delhi has mandated the shutting of primary schools in the city and allowed 50 per cent of its workforce to work from home among a host of other measures.
Reuters on Thursday reported that "Delhi's 20 million residents were effectively breathing smoke". A study suggests that air pollution has come to be the greatest threat to the health of an average Indian, shortening their life expectancy by almost five years – especially in Delhi.
Senior advocate Vikas Pahwa said an exercise as simple as cycling for a mere 30 mins left him worse for the wear. "I can feel the dust in my throat. I don't think the conditions are conducive for outdoor exercises or any sporting activity. The Supreme Court should intervene on this issue and seek report from the government, regarding the measures taken by them to control the pollution to the extent possible," he added.
Advocate Shashank Shekhar Jha moved the top court against the stubble burning in Punjab. The AQI in Delhi has crossed 500, the highest since the past few years, Jha said adding that "Delhi was choking". Noida administration has already shut schools and the situation in Delhi "requires urgent intervention", he added. "Even those who are fit are unable to reside in Delhi anymore," Jha said.
Judicial measures to combat air pollution
Advocate Shashank Shekhar Jha's concern and plea in the Supreme Court is not the first of its kind. From mandating cleaner fuel for Delhi's public transport to banning fireworks altogether, in the past two decades, courts at various levels have implemented several measures to curb air pollution.
Supreme Court first took cognizance of worsening air pollution in 1986 on a plea filed by environmentalist MC Mehta. Among other measures, the Supreme Court in November 2016, immediately after Diwali, imposed a total ban on the sale of firecrackers in the national capital. A month later, the top court directed the Centre to issue appropriate notifications to incorporate the Graded Response Action Plan (GRAP)—a reactive measure wherein prohibition on several activities kick in based on AQI levels in the city.
The National Green Tribunal said it was a case of 'environmental emergency' if AQI crossed 500 (PM10) or 300 (PM 2.5) respectively.
Once an 'environmental emergency' was recognised, the NGT said certain measures would be automatically activated. Among others, these included water sprinklers across the city through helicopters to settle the invisible PM 2.5, shutting down of polluting industries in the worst affected areas, temporary shutting down of power generation units, brick kilns, and hot mix plants if they were found emitting in excess of prescribed standards.
The Commission for Air Quality Management (CAQM) on Thursday invoked GRAP – Stage IV with immediate effect. This includes a ban on dust-causing construction and a prohibition on the use of non-BS IV-compliant diesel four-wheelers and LMVs in Delhi.
But does a judicial intervention work?
Judicial intervention has limited success
An advocate who did not wish to be named observed that judicial intervention has had limited success. The advocate, who is integral in the air pollution matter before the top court, said court orders only work if there is regular monitoring.
However, senior advocate Gopal Sankarnarayan, pointed out that it was the only thing "that ever worked for Air Pollution in Delhi". "We got 10 years of relief thanks to the orders banning polluting industries and brick kilns from 1996 to 2000," Sankarnarayan told BOOM.
Advocate Amit Anand Tiwari believes there is only so much judicial intervention can do, ultimately some issues are "beyond any of our doing". Climate change is also largely responsible for what we are facing now, Tiwari said while senior advocate Shyam Divan said the issue is a complex one and this is something the Centre needs to take up in consultation with several states.
Tiwari who along with Sankarnarayan and one other had filed a plea in 2015 seeking control measures said the government should focus on pre-emptive measures as opposed to the GRAP, which is more reactive.
We have advanced satellites now, better mapping technology and we can make more accurate predictions now, Tiwari said adding that this could help us plan better. We should focus on preventive policy now, he said.
Government's abject silence and a blame game
Senior advocate Gopal Sankarnarayan said the lack of executive enforcement and abject government silence is one of the biggest hurdles in tackling this issue. "We need Phase 2 on banning the manufacture of fireworks, incentivizing cleaner fuel, and closing coal-based power plants," he said.
The Supreme Court in 2021, had asked the Centre whether a two-day lockdown in Delhi could be considered an emergency measure to curb rising levels of air pollution.
The National Human Rights Commission (NHRC) on Fri said it was unsatisfied with the air pollution control measures and summoned chief secretaries of three states—Punjab, Haryana, and Delhi—to appear before it on November 10.
Sankarnarayan had a similar thought. He said there would be "some sort of compliance" if the Supreme Court were to make individuals in the higher administration personally responsible at the cost of harsh penalties. The Aam Aadmi Party (AAP), which heads the Delhi government, and the Bharatiya Janata party, which is the ruling party at the Centre "will endlessly trade barbs about how each other are responsible and try to pass the buck", Sankarnarayan added.
Maybe we would make some inroads if Delhi's Chief Secretary and the Home Secretary at the Centre who are responsible for Delhi's affairs were to be summoned and asked for an explanation on why control measures are being flouted, Sankarnarayan said. We need to disincentivize polluting vehicles and promote e-vehicles rather than a GRAP measure at times of emergency, he added.
Editor's Note: A previous version of this story stated the name of the advocate incorrectly. The error is regretted.