Air Pollution – Suo Moto Proceedings And Their Effect

India has the dubious distinction of having 15 out of the 20 most polluted cities in the world and is the third most polluted country in the world after Pakistan and Bangladesh.1 In India, air pollution continues to be a major problem that has an impact on both the environment and public health.

The inherent ability of courts to initiate legal proceedings without a formal request from an aggrieved party is known as the suo moto power of a court. This empowers the judiciary to take up matters of grave public concern and address the same by enforcing and ensuring the fundamental rights and the maintenance of law and order. Indian courts i.e. Supreme Court (SC), High Courts (HC) and the National Green Tribunal (NGT) have been using their suo moto powers i.e. the ability to take up cases without a formal petition, more frequently in response to the pressing need to address and combat air pollution. This aggressive judicial action shows a dedication to defending citizen’s fundamental right to a clean and healthy environment.

This assertion of the suo moto powers is done only in alarming situations when the human rights of citizens are in danger or when the State authorities fail to appropriately handle the infringement of the constitutional rights of a person to breathe healthy air. Supreme Court has used suo moto powers several times to deal with environmental issues like Delhi’s air pollution.

The Indian judiciary is well known for using judicial activism to nourish environmental laws. Individuals are typically more affected by environmental litigation than by other types of legal conflicts. This explains why Public Interest Litigations (PILs) have become more and more prominent in the field of environmental protection. When a significant number of persons are distressed as a result of particular circumstances, it is difficult to expect that each affected party would approach the court on their own, both practically and technically. This is where suo moto actions of courts come and enforce the rights of the people. When there is a violation of the human rights of the community, then the technical procedure should not hinder the redressal platforms to enforce human rights. Environmental protection and citizen rights preservation are interdependent. The Indian court has taken on an activist role, with the authority to administer justice, address issues of public interest, and address grave human rights violations. Using its suo moto powers, the Indian Supreme Court has taken the lead in environmental preservation. In environmental cases, epistolary jurisdiction, which further developed into suo moto power portrays the activist trait of the Indian judiciary.2

Courts, suo moto initiatives and their effect

The Bombay High Court took suo moto cognizance of the poor air quality in Mumbai reported by some news reports3 while hearing a PIL on the same issue. The court ordered that the both Central and State Pollution Control Boards (PCB), State Government and all Municipal Corporations should be made party and should place the measures taken by them to address the concern of air pollution in Mumbai.4 The High Court constituted a Committee of the Director of the National Environmental Engineering Research Institute (NEERI) and Principal Secretary, Public Health, Government of Maharashtra, to supervise and monitor the steps taken by the Municipal Corporations and the State daily.5

The High Court of Delhi took suo moto action in Court on its own Motion (Air Pollution in Delhi) v Union of India6 on the deteriorating air quality of Delhi and ordered that All companies and plants, including biomass plants, cement plants, power generation plants, and public undertakings involved in the production of boards and rough paper, are required by the state governments to fulfill their corporate social responsibility by removing crop residue from farmer’s fields and paying them a fee in exchange for removing the agricultural residue. The court also ordered that the Air Pollution Act prohibits the burning of crop residue and paddy straw, and each State is required to strictly enforce this prohibition in both letter and spirit.

The topic of using suo moto powers has been brought up about tribunals. Tribunals were created to speed up the decision of cases. They are quasi-judicial organizations with limited judicial authority. Tribunals usually do not have suo moto authority. Nonetheless, the National Green Tribunal has begun using its suo moto authority to issue orders. If a construction that restricts the self-action by the NGT is taken, that would result in ineffectiveness, and the legal mandate granted to the tribunal would fail.7 Thus, NGT exercises suo moto jurisdiction in environmental issues. The tribunal cannot address any issues that are of residuary character. 8 The principal bench of the National Green Tribunal (NGT), on Oct 20, 2023, took suo moto cognizance of rising air pollution in Delhi after referring to various newspaper reports that highlighted the deteriorating air quality index in the city.9 Tribunal directed the authorities to file their action-taken report on controlling air pollution from different sources in Delhi in accordance with the Graded Response Action Plan (GRAP), to maintain AQI in an acceptable range to safeguard public health in view of the winter season.

In India, air pollution usually only comes to the fore when an emergency arises. Nonetheless, the judiciary has been essential in resolving this urgent issue. In particular, the Supreme Court has addressed the problem of air pollution on multiple occasions by acting suo moto, especially in Delhi where poor air quality is a constant hazard. The Supreme Court's intervention resulted in the creation of Delhi's Graded Action Response Plan, a major initiative to reduce particulate emissions.10 Over time, the government of Delhi introduced several environmental strategies meant to reduce air pollution, only to have them later abandoned or ignored. These included initiatives to move industries, improve fuel regulations, and encourage the use of compressed natural gas (CNG). All of these initiatives, when presented separately, lacked a unified plan, and Delhi's air pollution problem was noticeably unaddressed. But starting in the early 1990s, the court took steps to force the government to keep its promises.

The court’s efforts included direct orders and the appointment of the Saikia Committee. The Supreme Court issued a suo moto notice to the Delhi government to submit an action plan to control the city’s air pollution. 11 Following direct orders from the Supreme Court, the governments of Delhi and the central government finally created action plans in 1996 and 1997 to reduce pollution in Delhi. These were the first all-inclusive air pollution control policies.

However, the idea that a court must step in to protect constitutional principles when the legislative or executive institutions lack the necessary tools to carry out their duties is highlighted by the requirement for suo-moto powers. Cases started suo moto, as opposed to orders based on petitions, would give the court or tribunal the power to choose which matters to take up and how much of the executive branch's territory it can trespass on. In Municipal Corporation of Greater Mumbai v Ankita Sinha,12 the Supreme Court affirmed the power of NGT to act suo moto and held that the functions of NGT cannot be restricted to adjudicatory roles. It is not desirable to wait till NGT receives an application during exigencies, but to act on its own motion eg: the Vizag gas leak case. NGT is the environmental watchdog and such a body cannot be cornered by a rigid interpretation of the statute.13

An important advancement in environmental governance has been made with the application of suo moto powers by Indian courts to address air pollution. The judiciary's proactive approach is indicative of its acknowledgment of the pressing threat posed by air pollution and its steadfast dedication to safeguarding the constitutional right to a clean environment. The Indian judiciary is an important player in the ongoing fight against air pollution, with the National Green Tribunal offering a specialized forum for swift resolution and creative initiatives like GRAP demonstrating judicial pragmatism. The courts must remain involved in tackling environmental issues in order to guarantee India's citizens a healthy and sustainable future.

This article is authored by Vishal Kumar, a Delhi based lawyer.

1 Vikram Hegde, Archana Vaidya, Clean air is a Fundamental Right – that’s why judiciary has to intervene in Delhi’s pollution crisis, The Indian Express, Nov 8, 2023.
2 Shinsa P Mathew, Prof (Dr). N Balu, “Suo Moto Jurisdiction; The Escalated Role of The National Green Tribunal in Environmental Jurisprudence”, 1764-1771, Journal of Survey in Fisheries Sciences 10(4S).
3 Omkar Gokhle, Bombay HC takes note of Express Mumbai pollution series, seeks response from BMC, state and central agencies, Indian Express, Nov 6, 2023( last visited on Dec 30,2023).
4 Sharmin Hakeem, Bombay High Court Takes Suo Moto Cognisance Of Deteriorating Air Quality In Mumbai, To Issue Comprehensive Directions, Live Law, Oct 31, 2023. ( last visited on Dec 30, 2023).
5 MANU/MHOR/39347/2023.
6 MANU/DE/2885/2017.
7 Shinsa P Mathew, Prof (Dr). N Balu, Suo Moto Jurisdiction; The Escalated Role of The National Green Tribunal in Environmental Jurisprudence, Journal of Survey in Fisheries Sciences 10(4S) 1764-1771
8 Rajeev Suri v. Delhi Development Authority, MANU/SC/0001/2021.
9 In re: News item published in Indian Express dated 07.10.2023 titled “GRAP Stage 1 kicks in as air quality dips to poor, condition likely to prevail till Sunday”, National Green Tribunal, New Delhi, order dated 20.10.2023.
10 M.C. Mehta v Union of India, MANU/SCOR/49213/2016.
11 Urvashi Narain and Ruth Greenspan Bell, “Who Changed Delhi’s Air? The Roles of the Court and the Executive in Environmental Policymaking”, Resources for the Future, December 2005.
12 MANU/SC/0815/2021.
13 Shinsa P Mathew, Prof (Dr). N Balu, Suo Moto Jurisdiction; The Escalated Role of The National Green Tribunal in Environmental Jurisprudence , 1764-1771, Journal of Survey in Fisheries Sciences 10(4S).
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