Author: Aaditya Mittal, Fairfield Institute of Management and Technology (FIMT), GGSIPU
Introduction:
Every October, right on cue, Delhi disappears. The mercury drops, stubble fires start dotting Punjab and Haryana, and within weeks the capital is under a grey lid that shuts down schools and fills up hospital OPDs. It’s become almost routine, which is itself worrying, because a public health emergency shouldn’t feel routine. And Delhi isn’t even the worst of it; India regularly accounts for a majority of the world’s most polluted cities on the WHO’s rankings, a fact that gets less airtime than it probably deserves.
The strange part is that India isn’t short on laws here. It has been legislating against dirty air since 1981. What it seems to be short on is the will, and the machinery, to actually make those laws work. This piece walks through what the law says, what courts have done with it, and why, four decades in, the air still tells a different story than the statute books do.
Constitutional Roots:
Courts got here before Parliament did, in a sense. The Supreme Court read a right to a pollution-free environment into Article 21’s right to life well before any dedicated pollution statute existed in its modern form, most famously in Subhash Kumar v. State of Bihar (1991).
That mattered because it let citizens go straight to the Supreme Court under Article 32 instead of waiting out ordinary litigation. Article 48A and Article 51A(g) add moral weight too, directing the state and citizens alike toward environmental protection, even if neither is directly enforceable on its own.
The Statutes That Do the Work:
The Air (Prevention and Control of Pollution) Act, 1981 is still the core legislation. It set up the CPCB and the state boards, gave them power to declare pollution control areas and set emission limits, and armed them with prosecution powers.
On paper that’s a lot. In practice, two things undercut it. Prosecutions crawl, and the penalties, up to six years’ imprisonment, are almost never actually handed down.
And the SPCBs meant to enforce all this are, in most states, underfunded and politically squeezed, which makes them reluctant to go after large industrial polluters.
The Environment (Protection) Act, 1986, born out of the Bhopal disaster, works as a broader backstop. Section 5 lets the central government issue sweeping directions, including shutting industries down, and it’s flexible enough to cover things the Air Act doesn’t quite reach, like construction dust or newer categories of emissions.
Then there’s the National Green Tribunal, set up in 2010, which is probably the single biggest structural improvement in this space. Before the NGT, environmental disputes landed in ordinary courts that had neither the time nor the technical grounding to handle them well. The NGT brought in judicial and expert members together, applying principles like polluter-pays and precaution.
It has ordered industry shutdowns, fined polluters over stubble burning, and pushed GRAP into existence in Delhi-NCR. Its limitation is simple: it can order things, but it can’t enforce them itself. Execution still depends on state governments that don’t always cooperate.
On the vehicular side, the Motor Vehicles Act framework has actually delivered something concrete. India jumped straight from BS-IV to BS-VI emission norms in April 2020, skipping BS-V entirely, largely because the Supreme Court refused to budge on the deadline despite pushback from the auto industry.
Courts as the Real Regulator:
If there’s a pattern running through all of this, it’s that courts have carried more of the load than either legislators or regulators. The Supreme Court’s long-running proceedings in M.C. Mehta v. Union of India, a case stretching back decades, effectively turned the Court into Delhi’s standing environmental regulator.
It’s what forced Delhi’s bus and auto fleet onto CNG in the early 2000s, pushed polluting industries out of residential zones, and later shaped much of GRAP itself.
That’s impressive in one sense, and a little uncomfortable in another. Courts stepping in to do the executive’s job gets results, but it also raises the obvious question of whether judges are the right people to be designing transport and industrial policy from the bench. A court order can shut a factory down. It can’t really build the alternative.
What’s Actually Working, and What Isn’t:
Give the framework some credit: monitoring networks have expanded a lot since the 1980s, industries have been relocated, fuel has gotten cleaner, and GRAP gives Delhi a legally backed, graded response that simply didn’t exist a decade ago.
But look at outcomes rather than intentions and the picture gets bleaker fast. Delhi’s air quality index still slides into “severe” territory most winters, firecracker bans get announced and ignored in the same breath, and stubble burning, despite specific NGT orders and criminal penalties under the Air Act, hasn’t meaningfully slowed down. The law banned the practice without giving farmers anything workable to do instead, and that gap is exactly why compliance never followed.
Why Enforcement Keeps Failing:
A few threads run through most of these failures. Air pollution doesn’t respect state borders, but enforcement is a state subject, so a genuinely regional crisis like the NCR smog needs Punjab, Haryana, UP, and Delhi to cooperate, four governments that often have little political reason to. The SPCBs meant to enforce the law are chronically under-resourced against industries with far deeper pockets to contest or stall action. Penalties set decades ago haven’t kept pace with inflation, so for a large enough polluter, paying the fine is simply cheaper than complying. And outside the big metros, air quality data is thin enough that it’s hard to even know how bad the problem is in most of the country, let alone act on it.
Where This Could Go From Here:
None of this needs a fresh law so much as it needs the existing ones taken seriously. An airshed-level authority that actually cuts across state lines would fix the coordination problem that keeps undermining GRAP. Better-funded, more insulated SPCBs would matter more than new legislation, since the powers already exist on paper. Penalties need to be steep enough that non-compliance actually costs more than compliance. And stubble burning won’t stop until farmers have a real, affordable alternative, whether that’s crop diversification support, subsidised residue machinery, or biomass industries willing to buy what currently just gets burned.
Conclusion:
On paper, India’s air pollution framework is reasonably complete. The Air Act, the Environment Act, the NGT Act, and a fairly assertive line of constitutional cases give the state most of the tools it would need. What’s missing is the machinery to use them, underfunded, politically constrained, and scattered across governments with little incentive to work together. Until that changes, the laws will keep reading better on paper than the air ever does outside the window.
Frequently Asked Questions:
Q1. What’s the main law dealing with air pollution in India?
The Air (Prevention and Control of Pollution) Act, 1981, though the Environment (Protection) Act, 1986 often fills gaps it leaves open.
Q2. What does the NGT actually do about air pollution?
It adjudicates disputes and has been willing to order shutdowns and impose fines, but it depends on state machinery to enforce its own orders, which is where things often stall.
Q3. Why has stubble burning continued even though it’s banned?
Because the ban was never paired with a genuinely affordable alternative for farmers, so the underlying economics kept driving the practice regardless of the penalty.
Q4. Why do courts end up handling so much of this instead of regulators?
Largely because agencies like the SPCBs have been slow or politically constrained, leaving cases like M.C. Mehta v. Union of India to fill the gap, though that raises its own separation-of-powers concerns.
