Delhi air pollution on the rise: Do we legally have the right to clean air?

As toxic smog engulfs the national capital, residents are exposed to increased levels of air pollution. The issue is no longer about how the crisis can be controlled, but whether citizens are being denied their basic right to breathe clean air.

With Article 21 of the Constitution guaranteeing the right to life and personal liberty, the issue raises significant questions about the State's obligation to protect public health, the enforceability of environmental rights and the legal remedies available to citizens when the air they breathe poses a threat to their lives.

Understanding Article 21: The right to life, the right to breathe

Many believe that the constitutional rights enshrined in Article 21 are limited to food, shelter and clothing. However, this dynamic and all-encompassing act includes the right to privacy, sleep, rest, education, speedy trial, clean air and water, among many other things.  

Today, Delhi’s air pollution particulate matter exceeds the World Health Organization (WHO) safety guidelines by nearly 10 times, despite the first landmark Supreme Court judgement on the matter back in 1991 in the case of Subhash Kumar v. State of Bihar. Here, the Apex Court established that the Right to Life under Article 21 of the Indian Constitution includes the right to a pollution-free environment, including clean air and water. Even the 2024 SC verdict in Container Corporation of India Ltd. Versus Ajay Khera & Ors. states that Air pollution directly affects the fundamental rights of the citizens guaranteed under Article 21 of the Constitution of India.

Beyond rights: The government's responsibility

During a recent hearing, the CJI Surya Kant opened with the rather sharp remark “We hope all of you are enjoying Delhi weather”, before describing the existing administrative measures as a failure in curbing toxic vehicular pollutants.

The role and responsibility of the government come under the spotlight here, with Article 48 A of the Indian Constitution directing the State to protect and improve the environment and to safeguard the forests and wildlife of the country.

In 1987, acclaimed environmentalist and lawyer M C Mehta’s case paved way to eliminate the environment vs. development dilemma, with the strong statement by the SC, “Life, public health and ecology have priority over unemployment and loss of revenue problem”.  While on the topic of industrial accountability, the Plachimada Coca Cola Case (Perumatty Grama Panchayat v. State of Kerala) holds great significance. Senior Adv. K. Ramakumar argued that the State holds natural resources, specifically air, water and earth as a “public trust” under Article 21, asserting that citizens’ fundamental right to clean air and water takes priority over commercial exploitation. These precedents clearly outline the responsibility that governments must ensure.

Mahatma Gandhi was one of the first to emphasise the importance of clean air as early as 1906, stating that “Nowadays, there is an increasing appreciation among enlightened men of the need for open air”.

Seeking justice: Legal remedies against air pollution

With all these problems quite literally in the air, what are the legal remedies available?  Sr. Adv. Jasmine Damkewala says that the judiciary has been the guardian of people's right to clean air. Ideally, available remedies include those under Article 21; Articles 32 and 226 (for violation of fundamental rights), filing a public interest litigation (PIL), approaching the National Green Tribunal (a specialised forum for environmental disputes), availing the provisions of Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986. Pollution Control Boards are also set up in both state and central levels.  Apart from these remedies, the Supreme Court has introduced two principles through the Vellore Citizens Welfare Forum v. Union of India case. The ‘Precautionary Principle’, wherein authorities must anticipate and prevent environmental degradation rather than wait for irreversible damage; and the ‘Polluter Pays Principle’, wherein those responsible for pollution must bear the costs of compensating victims and restoring the damaged environment.

A shared responsibility: Citizen's duty to protect the environment

It is not enough that the law is spoken and governments are blamed. Citizens also play a vital role in exacerbating air pollution, yet have the potential to minimise it and protect the environment.

The Indian Constitution lays out a set of Fundamental Duties, under which Article 51 A (g) imposes the duty "to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures". 

Between policy and practice: Where India's clean air efforts falter

The amicus curiae in the Supreme Court air pollution proceedings, Sr. Adv. Aparajita Singh highlighted the deplorable state of Delhi’s Air, warning the bench that breathing it was equivalent to smoking 30 cigarettes a day, adding that during hearings, even lawyers are losing their voices.

By now, it is well understood that weak implementation of existing laws, lack of effective monitoring and accountability, limited public awareness of available legal remedies, gaps between judicial directions and actual implementation; and delays in judicial proceedings are the main junctures where India's clean air efforts falter.

While Fundamental Duties are constitutionally recognised obligations, they are not independently enforceable by courts, and their violation does not automatically constitute a punishable offence unless supported by specific legislation. Similarly, the Directive Principles of State Policy are merely suggestive in nature.

It is not that India lacks environmental laws or constitutional safeguards; the real challenge lies in translating these legal protections into clean, breathable air for its citizens, in a fair, transparent and timely manner.