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Clean Air Is A Fundamental Right

Clean air is a Fundamental Right

Clean air is a Fundamental Right – that’s why judiciary has to intervene in Delhi’s pollution crisis. The situation in India is dire enough that courts need to intervene however necessary in order to enforce the Fundamental Right to clear air. The actions of the government ought to be subject to close scrutiny.

The Supreme Court has stirred up a heated discussion once again, with the order passed by it on November 7 whereby it clarified that the orders passed by it in 2018 and 2021 against the use of firecrackers containing barium and banned chemicals, and that only “green firecrackers” may be used, were binding on all states and not just on the Delh-NCR region.

Directions like this have become a part of the season. Every year around this time, Delhi and NCR begin to choke and the governments start the blame game, courts take suo-moto cognisance based on media reports, the expert committees give suggestions, the media cries itself hoarse on calling out the system’s apathy and all enlightened citizens berate everyone involved, and some ad-hoc token measures are introduced. This commotion dies down and gets resurrected the next season when the same cycle is repeated. There doesn’t seem to be a logical end in sight for this ordeal for people as no concrete, coherent, evidence-led action is underway which would deliver on required objectives in a time-bound manner. Actions are being taken but have been insufficient, incoherent, sporadic, and inefficient without any long-term vision.

India has the dubious distinction of having 15 out of the 20 most polluted cities in the world and is the third most polluted country in the world after Pakistan and Bangladesh. Doctors in the city have been talking about the change in the demography of lung cancer patients which seems to be a consequence of the toxic air that people breathe in the city. A public health emergency was declared in Delhi NCR on November 2, 2019, by a Supreme Court-mandated panel. According to a survey, 15,000 persons died prematurely in Delhi in 2016.

Parliament, by law, constituted the Commission for Air Quality Management in the National Capital Region and Adjoining Areas. The Commission has been given wide powers and violation of its directions is punishable by imprisonment for up to five years. But the AQI in the NCR even two years later tells you that the Commission has not succeeded. These dire circumstances are in stark contradiction with the fact that the right to health and a clean environment has been recognised as a Fundamental Right, carved out of and read into the right to life and personal liberty by the Supreme Court.

What indeed can the courts do to combat this problem? There has always been a debate about the role courts can play, while adjudicating matters before them, without venturing into the domain of other branches of the government in view of the “doctrine of separation of powers”. But it is today well accepted that the division of government into three branches does not and cannot mean three water-tight compartments. Courts, especially on questions of the environment, have stepped in where the other branches of government have not been able to tackle the problem.

Illegal levels of nitrogen dioxide (NO2) persisted in areas across the UK. Since 2011, ClientEarth brought three successful legal challenges against the UK government’s failure to deliver compliance with the legal limits of this harmful pollutant and to comply with its obligations under the Ambient Air Quality Directive 2008/50/EC (the “Directive”). In each case, the courts have ordered ministers to produce updated or additional plans to tackle illegal levels of pollution.

In the judgment of a high court in R(ClientEarth (No 2)) v Secretary of State for Environment, Food And Rural Affairs, Justice Garnham set out a three-part test for assessing air quality plans. One, the plans must aim to achieve compliance as soon as possible; the court held that considerations such as cost, or unpopularity of measures are not lawful reasons for excluding effective measures from a plan. Two, such a route to compliance must be chosen which reduces human exposure as quickly as possible; he subjected the environmental action plans to intense scrutiny to ensure that the best possible action was being proposed by the government.

And three, it must be ensured that compliance with the limit values is not just possible but likely.

In the UK, all air quality plans have to pass this test to be declared legal and valid. The court held that nothing can stand in the way of complete compliance with this Directive and the state would have to take the best possible course of action available in terms of adoption of technology, air quality modelling methodology, etc., which in all probability will meet the objective of the plan. The court does not want anything to be left to chance and directed the state to take every possible action to ensure compliance with the Directive at the earliest so that peoples’ right to clean air can be restored at the earliest and the threat to their health can be removed at the earliest.

The court did not hesitate to get into the adequacy of proposed actions by the executive though only to perform its own function of being the custodian of the rights of people which are being infringed upon by inadequate actions of the respective governments.

In ClientEarth v Secretary of State for the Environment Food and Rural Affairs[2015], the UK’s supreme court chose to get into the scientific evidence attached to the Air Quality Plan to determine whether the “air quality modelling” adopted by the government was sufficient to meet the challenge of bringing air pollution levels down within the shortest possible time. In this case, since it was the health of the people that was at stake, the courts chose to interpret the discretionary power of the government narrowly and in support of the efficacy of the plan over its economic cost. Since people’s right to breathe clean air was being flouted, the norms were required to be met in the shortest possible time that the technology could provide irrespective of its cost or cumbersomeness for the authorities.

Joanna Bell in her article ‘ClientEarth (No 2): A Case of Three Legal Dimensions’ has brought this out very clearly when she states, “when it comes to matters of environmental modelling, the judiciary takes a much more context-sensitive approach, paying close attention, in particular, to the relevant legislative and regulatory scheme and allowing this scheme to shape its approach to scrutiny.” She also states that the concept of a “ground” of judicial review is not monistic and it may play a role in providing a recognisable legal structure over which difficult and novel arguments of environmental law may be draped. Different grounds of judicial review play different roles in legal reasoning and interact differently with legislation. In ClientEarth as per Joanna Bell, “It is rather that the relevant legal obligations engaged in the case were thought to necessitate a rigorous testing of whether the government’s response demonstrated a serious commitment to meeting these targets.” This case according to J Bell, demonstrates the willingness of the judiciary to intensify scrutiny when the legislative and regulatory approach requires it.

The constitutional courts have for several decades been cognisant of the issues and have been taking some action. The Supreme Court has also guided the government on several decisions such as the phasing out of leaded petrol.

Apart from constitutional courts, the National Green Tribunal is also a judicial body that has a role to play. The National Green Tribunal has the power to take proactive action on a precautionary basis. The Tribunal has both judicial and technical members, and it is clothed with the power to go into the merits of the decisions taken by the executive on environmental issues.

However, the NGT’s actions have not borne the necessary results and have at times created confusion. It is apparent that it is only the high courts and the Supreme Court that carry the necessary sway to bring about change.

The situation in India is dire enough that courts need to intervene however necessary in order to enforce the Fundamental Right to clear air. The actions of the government ought to be subject to close scrutiny. The scrutiny can include the choice of appropriate technology and proper and timely implementation.

The Court can also take the assistance of relevant scientific bodies. It can also observe the judicial remedies being evolved in various countries in order to meet the challenge of the grave situation we are facing currently in India. The courts need to subject air quality management plans of the non-attainment cities (NAC), the source apportionment study of pollution of NACs to as close scrutiny as was used in ClientEarth cases.

The article originally appeared on Indian Express and was authored/co-authored by one of FELPRs team member.