This Article is Written by Ankita Tripathi, B.A.LL.B(Hons) student of CMP Degree College Prayagraj.
Abstract
India is in the midst of a silent public health emergency. Millions of its citizens are breathing air that slowly kills them, cutting years off their lives in ways that rarely make headlines but show up in hospitals, in lungs, and in the rising toll of cardiovascular disease. The law is not missing. In fact, India has an impressively large body of environmental legislation and a judiciary that has been willing to step in where other institutions have not. The Supreme Court read a right to clean air into Article 21 of the Constitution. Special agencies such as the National Green Tribunal and the Commission for Air Quality Management have been constituted specifically to deal with such issues. But the air grows fouler and fouler.
The discrepancy between the law as written and what actually occurs in the field can be attributed to three persistent flaws: a criminal enforcement model that is too slow to discourage anyone, pollution control boards that are consistently understaffed and underfunded, and an incapacity to control air pollution across state lines when air itself disregards boundaries.
Keywords: The Air Act, Article 21, Airshed Governance, Civil Restitution, Consent to Operate (CTO), Ambient Air Quality.
Introduction
Unlike other crises, air pollution does not arrive as a single, spectacular event. It accumulates in the cough that never goes away, the haze that lingers over a city skyline, and the gradual lung damage that will never completely heal. Pollutants interfere with photosynthesis, the basic process that plants use to clean the air we breathe. Fossil fuel emissions, along with atmospheric moisture, form acid rain that eats away at plants and accelerates the disruption of natural cycles. Carbon dioxide and other greenhouse gases (GHGs) accumulate in the atmosphere, causing climatic instability and warming that is rapidly affecting life on earth.
At the most individual level, the cost is human health. Long-term exposure to contaminated air directly causes allergic reactions, respiratory disorders, heart problems, and irreversible damage to lung tissue.
Air Pollution: Causes and Consequences
Air pollution is the presence of substances that do not belong in the atmosphere — either common compounds in harmful concentrations, or chemical, biological, or physical pollutants that should not be present at all. It occurs in two broad types: visible pollution (smog, smoke, visible haze) and invisible pollution (gases, fine particles, microscopic toxins).
Causes
Natural sources such as volcanoes release sulfur dioxide, while wildfires release enormous volumes of particulate matter into the atmosphere. In practice, however, persistent, chronic air pollution is predominantly caused by human activities: burning fossil fuels for energy and transportation; industrial processes that emit chemical substances; agricultural practices such as applying excessive pesticides and burning crop residue; and landfills that generate methane. Together, these activities place the ecosystem under constant, compounding stress that natural systems cannot absorb.
Consequences
Acid rain damages ecosystems by depleting soil nutrients, weakening trees, and acidifying waterways. Greenhouse gases trap heat, causing increasingly intense weather events. The harm to humans is both direct and cumulative: irreversible lung damage, heart disease, strokes, and chronic respiratory disorders.1
The Constitutional Architecture: How Environmental Rights Evolved
The Indian Constitution of 1950 addressed ecology through legislative means and did not include specific environmental rights. However, the 42nd Amendment of 1976 established two important constitutional pillars: Article 48A (Directive Principle), which assigns the State the responsibility of environmental preservation; and Article 51A(g) (Fundamental Duty), which requires citizens to safeguard nature.
Environmental powers are divided by the Seventh Schedule, which reserves water and public health for the State List and places ecological preservation on the Concurrent List. This frequently results in jurisdictional overlaps.
In order to close these gaps, the judiciary read these non-justiciable obligations into Article 21 (Right to Life). The Supreme Court established a positive state responsibility in Virender Gaur v. State of Haryana (1994)3, ruling that clean air is essential to human dignity. An enforceable fundamental right to be free from the adverse effects of climate change was recently established in M.K. Ranjitsinh v. Union of India (2024).
What the Laws Actually Say: The Statutory Framework
For constitutional ideas to be realized, statutory machinery is required. Parliament has enacted two key pieces of legislation pertaining to air quality — both important, but not without flaws.
The Air (Prevention and Control of Pollution) Act, 1981
In order to fulfil commitments made at the 1972 UN Conference on the Human Environment in Stockholm, India enacted its first statute specifically addressing air pollution. It created the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs) as the main regulatory agencies, granting them the power to regulate industrial emissions and define ambient air quality standards.
Under Section 19, state governments may designate certain regions as Air Pollution Control Areas and then restrict or prohibit the use of particular fuels and industrial operations within them. Section 21 prohibits establishing or operating an industrial facility in such a region without first obtaining a Consent to Establish (CTE) and a Consent to Operate (CTO) from the appropriate board. 5 This is a reliable gatekeeping mechanism in theory — though, as discussed below, it has significant gaps in practice.
The Environment (Protection) Act, 1986
Parliament acknowledged that the existing patchwork of rules was insufficient and responded directly to Bhopal by enacting the EPA. It serves as a comprehensive umbrella statute that grants the Central Government extensive authority to fill regulatory gaps.
Section 3 gives the Ministry of Environment, Forests, and Climate Change the authority to establish National Ambient Air Quality Standards, coordinate inter-state initiatives, and regulate industrial activities. 6This Act also enables the National Clean Air Program (NCAP), which aims to lower particulate matter concentrations in more than 130 cities that regularly fail to meet air quality standards.
The Cases That Shaped Environmental Law
The Bhopal Gas Tragedy (1984) 7and the Oleum Gas Leak Case (M.C. Mehta v. Union of India, 1986) are the essential structural pillars of modern Indian environmental law and air pollution litigation.
The Statutory Shift (Bhopal Gas Disaster): The 1984 Methyl Isocyanate disaster should be understood not merely as an industrial accident, but as a catastrophic exposure of statutory weaknesses. The inability of earlier frameworks to transition from scattered regulations to centralized enforcement immediately compelled Parliament to enact the Environment (Protection) Act, 1986 as an umbrella statute to control hazardous emissions.
The Jurisprudential Shift (M.C. Mehta v. Union of India): The 1986 Oleum leak illustrates how corporate liability has evolved. By rejecting moderate common law theories, the Supreme Court introduced the doctrine of Absolute Liability, which holds hazardous enterprises fully accountable for dangerous atmospheric escapes with no legal exceptions.
Specialized Enforcement: The NGT and CAQM
Air pollution cases differ from ordinary court proceedings. They frequently span multiple jurisdictions, involve complex scientific evidence, and require prompt responses.
Parliament addressed this by establishing specialist institutions.
The National Green Tribunal (NGT)
Established under the NGT Act of 2010, the Tribunal brings together environmental experts and judicial officers in a single forum. This combination is significant: it eliminates the need to simplify complex technical evidence for a court unfamiliar with environmental science. The stringent procedural requirements of the Indian Evidence Act, 1872 are expressly waived for the NGT. Instead, the Tribunal operates according to the principles of natural justice, making it faster, more flexible, and better suited to environmental disputes. Section 20 of its enabling Act mandates that all decisions of the Tribunal must be guided by three fundamental environmental principles: the Polluter Pays Principle, the Precautionary Principle, and the Sustainable Development Principle.9
The Commission for Air Quality Management (CAQM)
Air pollution in Delhi and the NCR is a regional problem: industrial emissions from Uttar Pradesh contribute to the mix, smoke from stubble burning in Punjab and Haryana drifts across state boundaries, and no single state government has the power or incentive to address what is essentially a shared crisis.
To address this precisely, Parliament established the CAQM in 2021. Its jurisdiction crosses state lines and covers the entire NCR airshed. CAQM guidelines take precedence over State Pollution Control Board directives and conflicting state laws. The Commission has the authority to close facilities, confiscate equipment, and levy substantial fines.
Where the System Fails
India has dedicated commissions, specialized tribunals, and statutory frameworks. Yet northern India continues to record some of the worst air pollution on the planet. There are specific reasons for the gap between law and reality.
State Pollution Control Boards are meant to be at the forefront of enforcement — conducting factory inspections, verifying emissions data, and ensuring that Continuous Emission Monitoring Systems are operational and reporting accurately. However, a significant proportion of technical and inspection positions at these boards remain unfilled. Boards cannot carry out meaningful field audits if they cannot staff their core functions.
Criminal prosecution was the primary enforcement mechanism under Section 37 of the Air Act for many years. In theory, the possibility of criminal liability should discourage pollution. In practice, criminal proceedings move slowly, demand a high standard of proof, and rarely produce results quickly enough to alter business behavior. Meanwhile, the alternative — boards cutting off water or power supplies to non-compliant enterprises under
Section 33A — was economically damaging enough to prompt High Court injunctions, effectively neutralizing enforcement.
Farmers in Punjab, Haryana, and western Uttar Pradesh burn paddy stubble remaining after the harvest in October and November. They do so because they are constrained: most smallholders lack the resources to clear fields by other means, and the rice harvest and wheat sowing cycle leaves only a narrow window between them. The smoke from this burning is a major contributor to the hazardous winter haze that envelops Delhi and the surrounding region. In theory, state governments may prohibit agricultural burning under Section 19 of the Air Act. In practice, compliance remains elusive without viable and affordable alternatives for farmers.
What Needs to Change
The EPA should be amended to create statutory bodies that govern air quality across entire airsheds — geographical regions defined by how air actually moves, rather than by state boundaries. These bodies need legally binding transboundary emission caps and the authority to enforce them across jurisdictions.
The 2025 third-party audit rules are a step in the right direction. But rules without enforcement are merely suggestions. Independent auditors need genuine authority, protection from industry pressure, and a direct reporting line to regulators rather than to the companies they audit.
By law, funds collected from environmental fines and green levies must be allocated to the interventions that would actually lower emissions. This includes infrastructure for electric vehicles, public transit, and — critically — financial support for farmers who need alternatives to stubble burning. No legal prohibition will change behavior on the ground if there is no economically viable alternative.
Conclusion
India’s air pollution crisis is, at its core, a constitutional crisis. Article 21 guarantees the right to life, and a life spent breathing air that continuously exceeds safe limits by multiples is a life being slowly taken away. The legal architecture to address this exists. The problem is that it is not working.
Delhi is a notable example. Baseline particulate concentrations exceed WHO guidelines even during pre-monsoon months, when conditions are at their most favorable. After the
stubble burning season in winter, the statistics are nearly incomprehensible. A real change is needed — not merely improved crisis management, but proactive enforcement before the problem arises. This means stringent automotive emissions standards and genuine implementation of PUC regulations; accelerated transition to electric public transportation; strengthening GRAP to prevent restrictions from being relaxed when they become inconvenient; and ending open biomass burning through real alternatives backed by real finance, not just sanctions.
India’s legal system has demonstrated its capacity to articulate the right to clean air. Building the institutions and political will to truly deliver it remains the final — and most difficult — obstacle.
References
- Solar Impulse Foundation, Air Pollution, https://solarimpulse.com/topics/air-pollution (last visited June 2026).
- Constitution of India 1950, arts. 21, 48A, and 51A(g).
- Virendra Gaur and Ors v. State of Haryana and Ors, AIR 1995 SC 577, https://indiankanoon.org/doc/27930439/ (last visited June 2026).
- M.K. Ranjitsinh v. Union of India, Writ Petition (Civil) No. 838 of 2019 (Supreme Court of India, 2024), https://indiankanoon.org/doc/128036238/ (last visited June 2026).
- Air (Prevention and Control of Pollution) Act 1981, https://www.indiacode.nic.in/bitstream/123456789/9462/1/air_act-1981.pdf (last visited June 2026).
- Environment (Protection) Act 1986, https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep_act_1986.pdf (last visited June 2026).
- ‘Bhopal Disaster’, Encyclopaedia Britannica, https://www.britannica.com/event/Bhopal-disaster (last visited June 2026).
- M.C. Mehta and Anr v. Union of India and Ors, AIR 1987 SC 1086, https://indiankanoon.org/doc/1486949/ (last visited June 2026).
- National Green Tribunal Act 2010, The Gazette of India Extraordinary, Part II, https://www.greentribunal.gov.in/sites/default/files/act_rules/National_Green_Tribunal_Ac t,_2010.pdf (last visited June 2026).
