Whenever Delhi’s Air Quality Index (AQI) crosses the 300 mark not only are Delhi’ites worried, but their sons and daughters living abroad are deeply concerned about their parents’ health and wonder why the government can’t control the monstrous air pollution of the capital city. Immediately starts the political slugfest and the acrimonious cacophony on TV channels playing out the blame game. This has been going on for more than one decade with no change on the ground; on the other hand, the situation worsens every subsequent year.

Our son, a university professor in the United States, who has conducted considerable research on ‘emission wars’ has been asking us to abandon Delhi and settle down in a relatively clean city in south India. But for people who have been living in Delhi for decades, it’s a hard and painful decision which we haven’t been able to take leaving our destiny to the city’s future.

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Delhi with a high-density population of 30.2 million (2020) in an area of 1484 square kilometre and an estimated 11.2 million registered vehicles (2018) on the roads is one of the most polluted cities in the world, if not the worst. The winter months ~ November to February ~ are especially bad when the city, enveloped in smog and haze, cannot breathe fresh air and see the blue sky. Measured in a modern Spectrometer, one cubic meter of the city’s air in peak winter may contain more than a trillion particles including PM2.5, PM10 and other noxious chemicals and smoke and harmful bacteria and viruses. Against the WHO’s (World Health Organization) guideline of 5 microgram per cubic meter, Delhi’s PM2.5 concentration ranges from an average of 110.2 to 220.7 microgram during the months of December and January, which is more than 25 times the WHO norm.

For example, on 29 December 2022, Delhi recorded a pollution level of 385 (US AQI) and PM2.5 level at 335, which was 67 times more than the WHO’s recommended level. In the past, PM2.5 had been recorded soaring up to 829.2 microgram, more than 80 times the WHO norm. Hundreds of research papers have been published in the Americas, Europe, and India about the impact of air pollution on human health. Some of the studies have shown that Delhi’s atmosphere is toxic and extremely harmful for senior citizens and the young children. The PM2.5 particles are more lethal as they penetrate the tissues of the lungs and then enter the blood stream. Exposed for a long time, this may not only cause Chronic Obstructive Pulmonary Disease (COPD) but also cardiac problems, and even cancer. The studies also reveal that a large number of school-going children in Delhi are likely to lose 25 per cent of their lung capacity. The severe air pollution has the effect of reducing life expectancy of Delhi citizens by about nine years.

A higher level of pollution affects not only the elders and the children; the risk starts with the normal healthy people also. A study by Greenpeace and the Swiss firm IQAir conducted in 2021 claimed that about 54,000 premature deaths in Delhi in the previous year were due to air pollution. The same is the situation for almost all the cities of North India. In 2017 alone, India’s air pollution was linked to the death of 1.24 million people and accounted for 12.5 per cent of total deaths in the country that year.

It’s a cruel irony that these tragic events are occurring in spite of the fact that India has been one of the first countries in the world to have enacted a comprehensive environment law. As a sequel to the United Nations Conference on Human Environment held at Stockholm in 1972, the Environment (Protection) Act, 1986 (EPA) was passed by Parliament under Article 253 of the Constitution to give effect to international agreements signed by the country. It provided the framework for the environment regulation regime in India covering all industries and infrastructure activities.

The Act was passed with great hopes of restoring the glories of our national rivers, the lakes, the wetlands, the hills, and the seashores. It was a comprehensive Act aimed at prevention of pollution of air, water, and soil of the country with special emphasis on pollution in the urban areas; it also contained directions for better management of hazardous material, solid waste management and effluent plants. It contained extremely strict provisions for punishment, termed draconian by the legal fraternity, for violation of the Act. It was called draconian especially because of Clause 18 of the Act which says: “No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken, or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.” The Act envisaged establishment of a Central authority with almost unlimited powers.

The chief architect of the Act was T N Seshan, former Chief Election Commissioner, who was the Environment Secretary at that time. Seshan wanted to showcase the enactment of the Act as his singular personal achievement to cover himself with glory. It was soon discovered that the Act was promulgated in great haste. It suffered from many flaws ~ lack of clarity, lack of implementability and legal infirmities. Moreover, there was no mechanism in place to enforce the law. In a vast country like India and in a federal set up, a law cannot be imposed unilaterally. In the final analysis, it is the States who are the main stakeholders and are primarily responsible for the protection of forests and environment. It was as complicated an affair as the introduction of a single tax like the GST throughout the country. Seshan had been a brilliant Secretary. But his super-ego prevented him from conducting wider consultations with all the stakeholders ~ the States, the Centre, environmentalists, legal experts, and the law enforcing agencies. In fact, there should have been a high-powered committee or council to frame a common environmental law. Not only were the States not taken into full confidence, he could not also take his own officers on board and ignored their opinions.

In spite of all the fanfare, the Environment Act, 1986 remained a non-starter. There was no doubt that the Act of 1986 was draconian. It was apparently intended to be so because of the enormity of the problems of all-round environmental destruction and degradation undermining the quality of life of the citizens.

But nobody in the Ministry gave serious thought as to how it should be implemented and what should be the institutional mechanism for effective enforcement of the draconian provisions of the Act.

Several organisational structures were created with a view to administering the Act, but this was done in the usual manner of bureaucratic proliferation. Each State created a Department of Environment and Forest and a State Pollution Control Board. At the Central level, a Central Pollution Control Board (CPCB) with a battery of experts, supervisors and technicians and testing laboratories was constituted to study and monitor environmental pollution for the whole country and initiate action against the offenders strictly following “the polluter pays” principle.

But none of the high-powered Pollution Control Boards was equipped with enforcement powers; they were practically powerless and toothless. They had to depend on the same general police forces of the States, for whom environmental crimes would receive the least priority. To expect effective and prompt punitive action from a police force largely perceived by the public as non-professional and ineffective would be asking for the moon. The Pollution Control Boards should have been entrusted with the powers of enforcement; they had no legal powers to impose fines or close down a polluting industry. It is not known if any of the offenders has been prosecuted for polluting the Ganga by discharging effluents from the tanneries of Kanpur or for destroying the Yamuna by the unregulated industries of Delhi. It speaks volumes for the weakness of the so-called ‘Draconian Act’ when we realise that not even a single offending industrialist has so far been sent to jail for deliberately flouting the provisions of the Environment Act, 1986. The CPCB which was designed as the main instrument of implementation of the Environment Act lapsed into a semi-academic institution doing research, collecting, and collating data from the states and casually monitoring the environmental situation.

Fortunately for the country, the National Green Tribunal (NGT) was later established and has since assumed the responsibility of enforcing environmental laws suo moto, or on the basis of complaints, and has started setting new norms for environmental pollution and protection of the environment. The Delhi’ites haven’t noticed any active role played by CPCB to combat air pollution in the NCR.