A Study of Delhi’s Smog crisis and

the role of the Air Act, 1981 in its

Environment Law Assignment

Submitted by
Syed Mohammad Haroon
20183678
B.A.LL.B. (H) Self-Financed
Faculty of Law, Jamia Millia Islamia

Submitted to: Dr. Ghulam Yazdani, Associate Professor (Faculty of Law,

ACKNOWLEDGMENT

I take this opportunity to express my profound gratitude and deep regards to Dr. Ghulam
Yazdani for his exemplary guidance, monitoring and constant encouragement throughout
this project. So I would like to thank him for giving me the opportunity to work on this
topic. He has given me all the encouragement I needed to complete this project. It is
because of his step by step guidance, correction of errors committed by me during the
making of this project and his method of overall evaluation helped me compose this work
with absolute objectivity, gaining more knowledge about the project topic undertaken by
me.
 ABSTRACT

In light of recent alarming trends in air quality of India, it becomes a matter of great

importance to look back at the environmental legislations that have come into effect in

India, and see what the government had in mind when it came out and what changes, if

any can be brought to modernize them to handle the environmental problems at hand.

The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the

“Air Act”) came soon after the Water Act of 1974, and sought to provide a rounded

legislation for the major environmental aspects focused on Air Pollution in India. It came

into force from 30th March 1981. The main object of the Air Act, as enshrined in its

preamble is, to preserve the quality of air and to control air pollution. The Air Act

extends to the whole of India including the State of Jammu and Kashmir. The Air Act has

the primary aim of providing provisions to abate and control air pollution in the country,

and sets up Boards at the Center and the State level to carry out the necessary steps to

achieve this aim. The Boards are given the power to set up regulations to ensure that air

pollution is controlled in the country. The legislation also gives the Boards power to take

action on the entities that fail to meet the air quality standards that are set.

KEYWORDS: The Air Act, Stubble Burning, Petrol, Diesel, Industries, Chemical
The Air (Prevention and Control of Pollution) Act, 1981

The Air Act consists of 54 sections divided into seven Chapters. Chapter – I, containing

Sections 1 and 2 deals with Preliminary and Definitions of certain terms respectively.

Chapter – II containing Sections 3 to 15 deals with Central and State Boards for the

prevention and control of Air Pollution. Chapter – III (Sections 16 to 18) lays down the

powers and functions of Air Pollution Control Boards. Chapter – IV (Sections 19 to 31-

A) provides for prevention and control of Air Pollution. Chapter – V (Sections 32 to 36)

relates to funding, Accounts and Audit. Chapter – VI (Sections 37 to 46) deals with

Penalties and Procedure. Finally, Chapter – VII (Sections 47 to 54) contains

‘Miscellaneous Provisions’.

Boards:
The Air Act prescribes to set up Central and State Boards with specific and sometimes

overlapping functions and powers. The main function of the Central Board is to improve

the quality of air and to prevent control or abate air pollution in the country1. In addition

to this main function, the Central Board exercises several other functions such as advising

the Central Government on related matters, planning and executing nationwide

programmes, setting up nationwide standards for pollution level and laboratories thereof,2

and while providing technical assistance, guidance and other necessary helps to the State

Boards3. For the brevity of this paper whose primary objective is to observe Delhi and its

smog crisis, the author is not dealing with the functions of the Central Board in detail and

rather focusing on the State Board for the same. The functions of the State Boards are

given below in detail.

1
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 16 (1).
2
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 16 (3).
3
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 16 (2).
State Boards:4
Subject to the provision of the Air Act, the functions of the State Board shall be:

1. to plan a comprehensive programme for the prevention, control or abatement of air

pollution and, to secure the execution thereof;

2. to advise the State Government on any matter concerning the prevention, control or

abatement of air pollution;

3. to collect and disseminate information relating to air pollution;

4. to collaborate with the Central Board in organising the training of persons engaged or

to be engaged in programmes relating to the prevention, control, or abatement of air

pollution and to organise mass education programme relating thereto:

5. to inspect, at all reasonable times, any control equipment industrial plant or

manufacturing process and to give, by order, such directions to such persons as it may

consider necessary to take steps for the prevention, control or abatement of air

pollution;

6. to inspect air pollution control area at such intervals as it may think necessary, assess

the quality of air, therein and take steps for the prevention, control or abatement of air

pollution in such areas;

7. to lay down, in consultation with the Central Board and having regard to the

standards for the quality of air-laid down by the Central Board, standards for emission

of air pollutants into the atmosphere from industrial plants and automobiles or for the

discharge of any air pollutant into atmosphere from any other source whatsoever not

being a ship or an aircraft: however, different standards for emission may be laid

down for different industrial plants having regard to the quantity and composition of

emission of air pollutants into the atmosphere from such industrial plants;

8. to advise the State Government with respect to the suitability of any premises or

location for carrying on any industry which is likely to cause air pollution;

4
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 17 (1).
9. to perform such other functions as may be prescribed, or, as may, from time to time,

be entrusted to it, by the Central Board or the State Government;

10. to do such other things and to perform such other acts as it may think necessary for

the proper discharge of its functions and generally for the purposes of carrying into

effect the purpose of the Air Act.

The State Board, for the performance of its functions efficiently, may establish or

recognise a laboratory or laboratories5

Prevention and Control of Air Pollution:

Air Pollution by providing power to the State Government after consultation with the

State Board make, alter, or declare any area within the State as air pollution control area 6.

If State Government after consultation with the State Board is of the opinion that the use

of any fuel, other than an approved fuel in any air pollution control area or part thereof,

may cause or is likely to cause air pollution, it may by notification in the Official Gazette,

prohibit the use of such fuel in such area or part thereof with effect from such date being

not less than three months from the date of publication of the notification as may be

specified in the notification7. The State Government may after consultation with the State

Board, direct that with effect from the date as may be notified, no appliances other than

an approved appliance shall be used in the premises situated in an air pollution control

area as the state Government may desire, it may notify different dates for different parts

of an air pollution control area, or for the use of different appliances. If the State

Government after consultation with the State Board is of opinion that the burning of any

material, not being fuel, in any air pollution control area or part thereof may cause or is

5
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 17 (2).
6
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 19 (1).
7
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 19 (3).
likely to cause air pollution, it may by notification in the official Gazette prohibit the

burning of such material in such area or part thereof.8

Other Powers conferred upon State Government:

In order to ensure that the standards of emission of air pollutants from

automobiles laid down by the State Board under clause (g) of Section 17(1) are

complied with, the State Government shall, in consultation with the State Board,

give such instructions as may be deemed necessary to the concerned authority in

charge of registration of motor vehicles under the motor vehicles act, 1988, and

such authority shall, notwithstanding anything contained in the Air Act or the

Rules made thereunder be bound to comply with such instructions.

2. Power to impose a restriction on the use of certain industrial Plants: No person,

shall, without the previous consent of the State Board, establish or operate any

industrial plant in an air pollution control area. But a person already operating any

industrial plant in any air pollution control area immediately before the

commencement of Section 9 of the Air (Prevention and Control of Pollution)

Amendment Act, 1987, for which no consent was necessary prior to such

commencement, may continue to do so for a period of three months from such

commencement or if he has made an application for such consent within the said

period of three months, till the disposal of such application. (Sec.21. (1)). If no

consent is granted, then the operation of that plant has to be stopped. The State

Board before granting or refusing to grant permission may make such enquiry as

it may deem fit and in making such enquiry, shall follow such procedure as may

be prescribed (Sec.21. (3)).

3. Power of Board to make application to court for restraining persons from causing

air pollution: Where it is apprehended by a Board that emission of air pollutant,

8
The Air (Prevention and Control of Pollution) Act, 1981 (Act 14 of 1981), s. 19 (4).
 excess of the standard laid down by the State Board is likely to occur by reason of

any person operating an industrial plant or otherwise in any air pollution control

area, the Board may make an application to a court not inferior to that of a

Metropolitan Magistrate or a Judicial Magistrate of the First Class for restraining

such person from emitting such air pollution. The Court to whom such an

application is made may make such order as it may deem fit. Sec. 22A (2).

4. Power to entry and inspection: Any person empowered by the State Board in this

behalf shall have the right to enter at all reasonable times with such assistance as

he may consider necessary, any place:

 For the purpose of performing any of the functions of the State Board

entrusted to him;

 For the purpose of determining whether, and if so, in what manner, any such

functions are to be performed or whether any provisions of the Air Act or the

Rules made thereunder, or any notice, order or direction, or authorization

served, made, given or granted under the Air Act, is being or has been

complied with;

 For the purpose of examining and testing any control, equipment, industrial

plant, record, register, document or any other material object or for conducting

a search of any place in which he has reason to believe that an offence under

the Air Act or the Rules made thereunder has been or is about to commit and

for seizing any such control, equipment, industrial plant, record, register,

document or other material object if he has reason to believe that it may

furnish evidence of the commission of an offence punishable under the Air

Act or the rules made thereunder. [S.24 (1)].

5. Power to obtain information: For the purposes of carrying out the functions

entrusted to the State Board, it may or any officer empowered by it in that behalf

may call for any information regarding the type of air pollution emitted into the

atmosphere and the level of the emission of each air pollutant from the occupier
 or any other person carrying on any industry operating any control equipment or

industrial plant and for the purpose of verifying the correctness of such

information, the State Board or such officer shall have the right to inspect the

premises where such industry, control equipment or industrial plant being carried

on or operated. (S. 25).

6. Power to take samples of air or emission: A State Board or any officer

empowered by it in this behalf shall have power to take for the purposes of

analysis, samples of air or emission from any chimney, flue or dock or any other

outlet in such manner as may be prescribed. [S.26 (1)].

7. Power to give directions: Subject to the provisions of the Air Act and to any

directions that the Central Government may give in this behalf, a State Board

may, in the exercise of its powers and performance of its functions under the Air

Act, issue any directions in writing to any person, officer or authority. The State

Board may specifically direct:-

 The closure, prohibition or regulation of any industry, operation or process; or

 The stoppage or regulations of supply of electricity, water or any other

service. (S.33-A).

The Air Act and Delhi Smog

The World Health Organisation (WHO) has recognised ambient air pollution as a class

one carcinogen and the fourth highest risk factor for premature death worldwide 9. In

India, the situation is exacerbated by rapid urbanisation, industrialisation, and

deficiencies in supporting infrastructure. An Amann10 study reports that 40% of cities

with the highest concentrations of PM2.5 are in India. Previous studies across India have

shown strong correlations between respiratory problems, mortality rate, premature death,

9
WHO, Ambient (Outdoor) Pollution and Health, 2016.
http://www.who.int/mediacentre/factsheets/fs313/en/.
10
M. Amann, “Managing future air quality in megacities: A case study for Delhi.” 161 AE 99–111, (2017).
and air pollution levels11. Addressing this problem is now paramount. In India, air quality

is monitored at more than 450 stations across the country by the Central Pollution Control

Board (CPCB) under the National Ambient Air Quality Monitoring Programme (NAMP)

to assess concentrations at industrial, residential, traffic and ecologically sensitive areas.

The main objective of this monitoring network is to check whether national ambient air

quality standards (NAAQS) are being met. If an area fails to meet the NAAQS, then it is

classified as non-attainment area where adverse health effects are expected. According to

the CPCB, between 2011 and 2015, 94 cities across 22 states registered non-attainment

areas.

The increasing number of cities not attaining the NAAQS puts into question both the

adequacy of past and current interventions and the effectiveness of their implementation.

Delhi, the national capital of India, is one of the cities with non-attainment areas. Here,

extreme air pollution events particularly during the winter months are becoming routine

and national and international media outlets have been using expressions such as “Delhi

Airpocalypse” or “Death by breath” to describe the scale of the issue12. While these

extreme, relatively short-term episodes attract the attention of the media worldwide and

bring about new emergency measures, it must be stressed that air quality in Delhi is poor

all year round. Therefore, an ex-post, reactive set of actions within what can be

considered to be a piecemeal legislative framework, is not enough to reduce the impact

on public health and the

environment in the medium and longer term.

11
T. Lahiri, “Health effects of air pollution in Delhi”, Report submitted to Central Pollution Control Board,
Delhi, 2006; T. Lahiri, “Assessment of air pollution related respiratory problem in children of Delhi.”
Report submitted to Central Pollution Control Board Delhi, 2006.
12
Indian Express Death By Breath: A look at key studies on Delhi’s pollution and how warnings were
ignored, 2016. Available at http://indianexpress.com/article/cities/delhi/death-by-breath-delhi-pollution/
(Last Modified on March 16, 2018); Times of India Airpocalypse again: Air pollution woes return to NCR,
authorities are caught napping once more, 2017. Available at
https://blogs.timesofindia.indiatimes.com/toieditorials/airpocalypse again-air-pollution-woes-return-to-ncr-
authorities-are-caughtnapping-once-more/. (Last Modified on March 16, 2018).
Indeed, many problems remain to be addressed. More needs to be done on the regulation

of industrial sources. Furthermore, so far little has been done to formally control

domestic emissions in Delhi and improvements have largely been made due to a shift

towards the use of (initially bottled, now, in many areas, piped) liquefied petroleum gas

(LPG)13. The lack of provision of efficient municipal services leads to two primary

problems, the open burning of waste; and the widespread use of diesel generators in

response to frequent (almost daily) power cuts. On the transport front, a study reported

that, in Delhi, “the number of vehicles has more than doubled from 3.37 million in 2000

to 8.83 million in 2015”14. It is pertinent to mention that the Air Act provides that in all

the metropolitan cities lead-free petrol shall be distributed and therefore the old vehicles

in such cities have to be fitted with a new device to meet the new situations, whereas only

such new vehicle would be registered which are fitted with the new device. This is an

effective measure to control air pollution. In cities, especially in big and industrial cities,

motor vehicles are the most serious source of air pollution. The fuel which is used in

them in the form of petrol contains lead tetraethyl and after burning in the engine it is

exhausted as lead oxides which are highly toxic and harmful. Due to the introduction of

Maruti technology, the ideas of super petrol was introduced which contains 900 gms lead

in one Kilolitre of petrol. Experts are of the opinion that if lead could be eliminated from

petrol, the solid matters in the exhaust could be reduced by 80% and unburned

hydrocarbons up to 30%. Thus, this provision would be an important factor in the

direction of prevention and control of environmental pollution and that is why this step

was taken by the Government.

The Case of Motor Vehicles in Delhi:

Exhaust from vehicles is a major source of outdoor air pollution which was responsible

for over 3.8 lakh (3,85,000) deaths worldwide in 2015 out which 74,000 deaths occurred

13
T.J. Chatterton, “Supporting Air Quality Management in Delhi.” 20 (1) ES 28–31, (2011).
14
Sunil Gulia, “Urban local air quality management framework for non-attainment areas in Indian cities.”
619–620, STTE 1308–1318, (2018).
in India15. As mentioned above, the burning of fossil fuels like Petrol and Diesel leads to

emission of several toxic and harmful fumes which is not only harmful as Air Pollution

but also go through several changes to cause other kinds of pollution to the natural

environment as well. In the National Capital region, the number of internal combustion

vehicles was 8.83 Million in 2015 as mentioned above and one can only expect a

significant increase in that number now. Such a monstrous number causes a significant

problem in front of the Government and the Regulation Authorities to tackle the problem.

Even though the Boards have the power to implement requisite measures to tackle the

problem at hand, it still leaves a number of loopholes.

The Supreme Court, National Green Tribunal and the Delhi High Court have on

numerous occasions tried to bring meaningful difference to help save the environment.

The Supreme Court on October 29 passed a judgement16 effectively eliminating the

grossly polluting passenger cars in Delhi-NCR. For Delhi, which has over one crore

registered vehicles, the judgement directly impacts about 37 lakh cars that are older than

15 years. The apex court mandated the Transport Department of NCR, with immediate

effect, to ban diesel vehicles more than 10 years old and petrol vehicle more than 15

years from plying within Delhi-NCR. This is in conformity with the National Green

Tribunal (NGT) order of April 2015. NGT’s order was challenged in the apex court and

the civil appeal was dismissed. Vehicles violating the order will be impounded. This

judgement also brings forth the pressing issue of end of life regulations for automobiles.

At present, there is no rule to guide the police or the government as to what is to be done

with the vehicles after they are impounded and de-registered. Under the ‘Delhi Scrapping

of Vehicles Rules, 2018’, all impounded vehicles, including two-wheelers, will be sent

directly to empanelled scrap dealers for dismantling and owners will be paid a scrapping

charge, which has not yet been defined. India needs a scrappage policy along with

15
Diesel Vehicles are Responsible for 66 Percent of Air Pollution-Related Deaths in India, says a new
Study available at https://swachhindia.ndtv.com/india-air-pollution-related-deaths-due-to-diesel-vehicles-
says-a-new-study-31853/ (Last Modified on March 5, 2019)
16
M.C Mehta v. Union of India (2019) 17 SCC 490.
facilities to eliminate the re-use of parts of older vehicles in the informal sector. In

absence of such facilities and lax enforcement, used old cars will find their way to

neighbouring cities, causing more pollution in other parts of the country.

Delhi Smog and the neighbouring states:

neighbouring States of Haryana and Uttar Pradesh, thus suggesting that addressing only

the sources generated within Delhi might not be enough to protect public health and a

more comprehensive understanding of the impacts of each source and of the activities

that generate pollution, as well as the effectiveness of the policies that have been so far

adopted is needed. Moreover, tackling the challenge of air pollution in Delhi requires a

joined-up approach which integrates different perspectives and which considers this issue

in relation to other dimensions, such as political changes, economic development, and

Delhi citizens’ lived experiences with air pollution. One such cause for the Smog in Delhi

is stubble burning in the neighbouring states after harvest seasons which not only creates

a lot of Smog in that state but also the smog travels through wind to reach Delhi from all

the neighbouring states thereby deteriorating the already worse air quality of the NCR. In

a recent case filed before the Supreme Court of India17 with respect to stubble burning

and its treacherous effects especially during COVID-19 pandemic, it was stated that “The

consequence of allowing any stubble burning to take place in the times of this pandemic

will be catastrophic,” and “Any increase in air pollution levels in Delhi-NCR this year

while the Covid-19 pandemic is spiralling out of control, will exponentially increase the

mortality rate due to Covid-19 by compromising the respiratory system of the citizens,

particularly in the case of senior citizens and children,” the Supreme Court has been

monitoring the stubble burning issue by asking respective state governments to inform

progress made on setting up biomass plants and providing stubble removal machines to

17
M.C. Mehta v. Union of India, (2020) 7 SCC 571, M.C. Mehta v. Union of India, (2020) 7 SCC 582,
M.C. Mehta v. Union of India, (2020) 7 SCC 589.
small farmers. The Supreme Court in the current case has been making slow progress but

it seems to lack teeth.

The Air Act and other such acts have been brought to life to help tackle the grave danger

we have at our doors, i.e. the Death of our Environment. It has been a wise old saying

that one must not play with nature as the nature always bites back. However, nobody has

ever paid a heed to it. So is the case with the current scenario.

The Problem of Smog in Delhi and its relation to the Air Act is a topic so wide that it

may not be possible to cover it in a paper limited by words. Currently the situation of Air

Quality in Delhi even on good days is appalling and even after number of actions by the

Government, the Tribunals and the Courts, such as banning of old internal combustion

vehicles, subsidies on Electric Vehicle, revamping pollution norms, setting pollution

standards for industries, controlling open burning, regulating chemical pollutants. It

seems like a powerful blow gone waste. It may be pertinent to notice that the Smog in

Delhi is not solely Delhi’s fault or problem, it is a problem of the whole country and by

country the author means a composite action of the Governing body and the Citizen. The

Government currently has plethora of technological innovations and work-power at hand

to tackle the situation at hand with ease, however it requires the help of the Citizens and

some major revamps in the legislations its actions are based upon.

A thorough study must be conducted to understand the root cause of the issues that

plague the problem of Air Pollution and actions much be brought in a swift manner. If

not, it might be a little too late.

 BOOKS
o Dr. N. V. Pranjape: Environmental Laws and Management in India, Thomson

Reuters, Delhi.

o K. Thakur: Environmental Protection, Law and Policy in India, Eastern Book

Company, Lucknow.

 ARTICLES
o WHO, Ambient (Outdoor) Pollution and Health, 2016.

http://www.who.int/mediacentre/factsheets/fs313/en/

o Indian Express Death By Breath: A look at key studies on Delhi’s pollution and

how warnings were ignored, 2016. Available at

http://indianexpress.com/article/cities/delhi/death-by-breath-delhi-pollution/

o Times of India Airpocalypse again: Air pollution woes return to NCR, authorities

are caught napping once more, 2017. Available at

https://blogs.timesofindia.indiatimes.com/toieditorials/airpocalypse-again-air

pollution-woes-return-to-ncr-authorities-are-caughtnapping-once-more/ .

o Diesel Vehicles are Responsible for 66 Percent of Air Pollution-Related Deaths in

India, says a new Study available at https://swachhindia.ndtv.com/india-air-

pollution-related-deaths-due-to-diesel-vehicles-says-a-new-study-31853/

 LEGAL RESEARCH DATABASES

o https://www.manupatrafast.com/

o https://www.scconline.com/

o https://www.lexisnexis.com/