The Environmental Injustice of Delhi's Air Pollution

India's Supreme Court has often compelled the state to respond, sometimes in a certain direction – but is such intervention desirable?

Delhi has consistently been ranked one of the most polluted cities in the world. Every year around winter, the city shocks the nation’s collective conscience with its air and the inability of its powerful residents to deal with it. Experts and administrators alike have described the situation as a public health emergency many times over, and it has become one of the country’s preeminent cases of environmental injustice – made the worse for it by the repetitive pseudo-actions and rhetoric swirling around it.

Every year, the Supreme Court steps up to make up for the shortage of political will. The people protest the inaction and, when there is action, its insufficiency. Blame plays a game of musical chairs among the governments of Delhi, Punjab and Haryana. Almost everyone knows at the end of winter that the air will choke the city’s residents next winter as well. But while our conscience is quick to protest, how much responsibility do we, the urban elite, take?

It enrages us to realise the situation is beyond our control, that it has morphed into a disaster that lays in wait out of sight during the summer, lulling us into a state of blamelessness, and leaps out in the winter as a full-blown emergency.

Also read: Delhi’s Smog Is Here to Stay Because Air Pollution’s Not the Crisis

There’s a solution to this problem but it’s not the stopgap lip-service of emergency measures. Environmental justice requires us to look beyond traditional legal doctrines, rehabilitate environmental governance itself and ensure compliance. We need to reassess the principles that inform our laws, policies and institutional responses to such crises.

India’s Supreme Court has often compelled the state to respond, sometimes in a certain direction – but is such intervention desirable? Environmental policy may not lie within the court’s domain of expertise and the court shouldn’t be making decisions on matters requiring policy expertise. However, the lack of action in that regard necessitates intervention by the court. The Indian Constitution is one of the few sovereign documents in the world with specific provisions dealing with the environment. The directive principles of state policy aren’t enforceable but they’re the provisions that must guide state policy. And a sharp judiciary will ensure the state follows them.

Environment justice is difficult to define. As a concept, it first originated in the US in the early 1980s. The US Environment Protection Agency defines it as “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.” But fairness for and by whom becomes harder to define the more stakeholders there are.

Economically and politically disadvantaged communities bear the major brunt of air pollution, and at present they haven’t been given the opportunity to participate in environmental decision making. So a model that builds legal and political capacity must be encouraged over mere representation.

Members of subordinated communities must be able to define their political and legal rights. Feminism’s statement “the personal is the political” famously identified the fact that the ideology and consciousness of social groups define the axes of legal and political discourse. And it’s essential that judicial power intervene to provide the necessary push for community empowerment, especially since the Constitution demarcates the scope for such an exercise as well.

Also read: Politicians Bicker as Delhi Chokes

Even so, the web of environmental justice isn’t easy to navigate. Recently, the Supreme Court pulled up the Centre plus the governments of Punjab, Haryana, Uttar Pradesh and Delhi to address stubble burning, a leading cause of air pollution in Delhi. However, when the governments argued that farmers resort to crop-burning because the window between the rabi and kharif seasons is so small, the bench responded that there was no sympathy for farmers as “they are doing it with complete knowledge”, as well as that the situation is so dire that farmers must face strict action. However, the problem runs deeper. There are systemic issues of economic distress and employment deficiencies that need to be dealt with first before governments can end crop-burning. The court’s directions aren’t feasible long-term solutions but more along the lines of forcing government authorities to take immediate action.

The law isn’t just a set of explicit rules and standards; it also stands for a set of principles, and while it’s hard to have them accommodate all types of environmental issues, a deeper systemic investigation could yield a fairer assessment of those principles that are applicable to particular cases. This reflects the fact that environmental justice can’t be a fixed idea but that it’s more of an effort to walk a path to remedy injustice to all parties involved. And this winter, we continue to hold our breaths for the government to shine some light on this path.

Veera Mahuli graduated from NALSAR University of Law, Hyderabad. She is a practising lawyer and is passionate about environmental issues.