India, the fifth most polluted country in the world, has twenty-one of the world’s thirty most polluted cities (2019 World Air Quality Report, IQAir) and Delhi, as of 18 October 2020, has once again reached the number one rank. It is the most polluted capital city (IQAir Ranking). Despite measures recently put in place under the Graded Response Action Plan, Delhi’s air quality has reached ‘very poor’ levels.

Air pollution is one of the most serious environmental health risks, causing an estimated seven million premature deaths each year globally, owing to cardiovascular diseases, cancers and respiratory infections (WHO). In the context of the pandemic, toxic air has additional ramifications, as it increases the risk of severe infections and lower immunity which increases vulnerability to Covid.

Despite a number of laws and policies, why is India failing to control air pollution? Firstly, environmental problems are dealt with in a piecemeal manner and often when courts step into the picture. The Graded Response Action Plan (GRAP), which lays down measures based on the city’s air quality, is a case in point. The primary implementing and coordinating agency for it is the Environment Pollution (Prevention and Control) Authority (EPCA), which has been operational for the past two decades with the aim of preventing and controlling pollution in Delhi. GRAP requires that over a dozen agencies work together and EPCA is responsible for coordinating between them. EPCA has not only failed in this regard, it has also failed to take punitive measures against violators.

Secondly, India’s legal and regulatory framework to tackle pollution tends to be reactionary in nature. This has been the case right from the 1980s when the Supreme Court was called upon to protect the Taj Mahal from corrosion caused by pollution. Similarly, in the CNG case the Supreme Court once again stepped in when the executive failed in its duty to protect the right to life of citizens and put in place measures to control air pollution. In the Relocation of Industries (1995) case as well, the Supreme Court took a stand and ordered that polluting industries in Delhi be closed and relocated. These industries were not abiding by the city’s zoning regulations laid down in the Delhi Master Plan.

Indeed, the Court has played a key role by pushing the Government to enforce existing policies and put in place new policies to deal with air pollution. Yet, the problem persists. India’s cities are expanding in an unplanned and unsustainable manner. The location of polluting industries near residential areas is further endangering the life and health of people. Effective environmental governance is hampered by the lack of political will and poor coordination between the various concerned agencies. Clearly a new approach is needed.

The current framework could be strengthened through the imposition of costs and penalties for those violating the law, complemented by a system of incentives for those operating in a sustainable manner and regulating emissions. Such frameworks have proved to be successful in a number of countries. For instance, in 2008 France introduced the ‘feebate’ system for new cars. A tax is imposed on a buyer if the CO2 emissions of the vehicle exceed a certain threshold and bonuses are offered if they are below a certain level. This has proved to be a successful framework for the regulation of CO2 emissions of passenger cars, leading to a reduction of CO2 emissions in the country. It also encourages trade in vehicles with low carbon emissions. Incentivizing positive measures to curb air pollution can enable a change in behavior, encouraging individuals as well as companies to implement measures to lower pollution. Furthermore, it can aid in moving the environmental protection discourse away from the ‘development versus environment’ narrative towards policy-making aimed at sustainable development through the involvement of all stakeholders. This requires a targeted and comprehensive plan. Regional action plans and coordination mechanisms together with timebound targets to reduce pollution levels are an effective approach. In addition, policies and action plans need to be comprehensive and address all pollutants and polluting sources, supported by strict enforcement of laws and policies. Beijing, which at one time had dangerously high levels of air pollution, has been able to reduce its pollution through the implementation of a comprehensive, targeted framework.

In 2013, systematic and intensive measures for air pollution control were adopted by Beijing and by the end of 2017 fine particulate pollution (PM 2.5) fell by around 35 per cent (UN Press Release, March 2019). This reduction was brought about to a large extent through industrial restructuring and measures to control coal-fired boilers and provide cleaner domestic fuels.

With Covid cases beginning to rise again in Delhi and the advent of the toxic winter haze, the current piecemeal approach to air pollution can prove to be lethal. A comprehensive, target-driven policy needs to be devised to combat air pollution. To be effective this must involve all sectors of society and be complemented by the principles of equity and justice.

The writers are, respectively, Assistant Dean and Assistant Professor of Environmental Law, and a final year law student at Jindal Global Law School, O.P. Jindal Global University.