Breathless Justice: Is the Right to Clean Air a Constitutional Myth?

INTRODUCTION

The constitutional guarantee of the right to life as per Article 21 — “No person shall be deprived of his life or personal liberty except according to procedure established by law” — has been widely recognized by the Supreme Court as synonymous with the right to a healthy environment and thus implicitly the right to clean air; this judicial interpretation is the basis for the inquiry whether the judicial recognition has resulted in the birth of a right to breathe clean air in India that is enforceable. The through which the courts have led this rights development can be observed in the landmark decisions: the Court in Subhash Kumar v. State of Bihar¹ determined that the right to life conferred by Article 21 gives the right to a non-polluted environment. The foundation was laid, and hence the Court in Vellore Citizens Welfare Forum v. Union of India² went further in deciding that the polluter-pays and precautionary principles would be applied, among others, and commanded specific remedies to be taken to control industrial pollution, thereby indicating that constitutional rights must be supported with effective remedies.

A lengthy public interest litigation pursued under Article 32—especially the series of M.C. Mehta cases relating to vehicular and urban air pollution—resulted in the issuance of a continuing mandamus and also the making of administratively intrusive orders which aimed at curbing emissions and protecting public health. However, the legal and regulatory framework designed to put these constitutional commitments into practice, especially the Air (Prevention & Control of Pollution) Act, 1981 (which sets up the Central and State Pollution Control Boards (s.3; ss.16–17), gives power to issue directions (s.18), allows designation of air pollution control areas (s.19), and bans over-emissions from industrial plants (s.22), while also providing for penalty sanctions), has often had difficulties at the stage of enforcement; the disparity between declaratory constitutional jurisprudence and sustained, enforceable relief on the ground is what frames the central question of this article—whether the “right to clean air” in India is still a living, enforceable right or a constitutional myth.³

A. Conceptual Framework

1. What do we mean by a “right to clean air”?—negative vs positive obligations.

In the Indian constitutional context, the “right to clean air” is most efficiently interpreted as a combination of (a) negative duties on the State and private parties not to perform such actions that result in the deprivation of people from breathing air and (b) positive duties on the State to take such measures as legislation, regulation, monitoring and offering remedies that guarantee air quality standards. Negative duties are the typical liberty-protecting element: the State has to prevent pollution that affects the right to life as guaranteed by Article 21⁴; this is the basis on which the Supreme Court in Subhash Kumar v. State of Bihar⁵ recognized an eco-friendly environment as a component of the right to life.

Obligation type	State duty / example	Constitutional / statutory basis	Landmark case
Negative (non-interference)	Prevent/state abstention from conduct that causes pollution; police/control illegal emissions	Article 21 (right to life); Article 14 (equality before law)	Subhash Kumar v. State of Bihar6 (Indian Kanoon)
Positive (pro-active duty)	Frame standards, monitor air quality, direct remediation, create CPCB/State PCB powers	Article 21 read with Directive Principles (Art.48A); Air (Prevention & Control of Pollution) Act, 1981 (ss.3,16–19,22); Environment (Protection) Act, 1986 (s.3)	Vellore Citizens Welfare Forum v. Union of India7; M.C. Mehta (vehicular pollution orders). (Indian Kanoon)

2. Article 21 and its doctrinal expansion: “life” to include environment, health and dignity.

The Supreme Court has taken Article 21 — “No person shall be deprived of his life or personal liberty except according to procedure established by law” — and expanded it to a very substantive, dignity-centred guarantee of a healthy environment, physical well-being and the related socio-economic dimensions of life.⁸ The Court’s decision in Francis Coralie Mullin v. Administrator, U.T. of Delhi⁹ and Olga Tellis v. Bombay Municipal Corporation¹⁰ (which recognized right to livelihood as part of life) pointed to the eventual expansion, and later in the case of Subhash Kumar v. State of Bihar the Court actually that right to life implies the right to a pollution-free environment. The Court’s willingness to relate Article 21’s theoretical protection to actual practices was already evident in the public interest litigation wherein the Vellore Citizens Welfare Forum v. Union of India¹¹ decision (polluter-pays and precautionary principles) and M.C. Mehta series (vehicular pollution and related supervisory orders) have become prominent.

3. Other constitutional hooks: Article 14 (equality), Article 32 (PIL), Directive Principles

The right to breathe clean air is upheld not only but also secured by supplementary constitutional provisions that affect its enforceability: Article 14 (equality before the law) gives support to both non-discriminatory enforcement and the challenge to selective or captured regulation; while Article 32 is the procedural mechanism for public interest litigation in the Supreme Court (and by extension Article 226 for High Courts), thereby making it possible for citizens and NGOs to seek writ relief when the state action or inaction poses a threat to fundamental rights; and the Directive Principles (most importantly Article 48A) in conjunction with the Fundamental Duty Article 51A(g) (the duty of citizens to protect the environment) provide content that courts have used to legitimately call for proactive State measures. The laws that have been passed to put these norms into practice — the Air (Prevention & Control of Pollution) Act, 1981 (which establishes the Central Pollution Control Board and State Pollution Control Boards and gives power to issue directions: ss.3,16-19,22) and the Environment (Protection) Act, 1986 (s.3 giving powers to the central government)¹² — constitute the legal framework within which the constitutional hooks are turned into administrative tools; the Supreme Court’s environmental jurisprudence often interprets these laws in connection with Article 21 to impose legal remedial duties.¹³

B. Objectives of the Study

The research study holds an aim of

1.  To investigate if the Article 21 of the Constitution of India can be interpreted to include the right to clean air as a justiciable one;

2.  To map the doctrinal development of environmental rights through the Supreme Court’s interpretation over time;

3.  To inquire about the effectiveness of the legal frameworks in accomplishing the task of clean air;

4.  To spot the constitutional and institutional gaps that hinder the process of recognition to the realization; and

5.  To devise strategies through the law that would turn judicial acknowledgment into enforceable constitutional protection.

C. Research Methodology

The study follows a doctrinal legal methodology and makes use of both primary and secondary legal sources. The primary sources consist of constitutional laws, the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986, along with the judgments of the Supreme Court and High Courts. The secondary sources are made up of academic publications, law commission reports, policy documents, and author’s commentaries. The research applies the analytical and critical approaches to legal texts and judicial reasoning, with the aim of determining the normative and practical position of the right to clean air in Indian constitutional law.

STATUTORY & POLICY ARCHITECTURE

A. The Air (Prevention & Control of Pollution) Act, 1981— the area of application and constraints.

The Air (Prevention & Control of Pollution) Act, 1981 is the main legislative measure that deals with the air quality in ambient and was issued to make the provision for the “prevention, control and abatement of air pollution” as well as to form the central and state pollution control boards; the Act itself provides for a Central Board (s.3), allows the Boards to carry out inspections and to give orders (ss.16–19), gives the Central Government the power to define areas for air pollution control (s.19) and lays down punishments for violations (s.22). ¹⁴

However, the Act is implemented mainly as a regulatory statute, permitting and investigation with limited power for systematic and cross-sectoral actions — on the one hand it assigns responsibilities to point-source emitters and on the other hand it endows the Boards with powers, but it does not have comprehensive and enforceable ambient air quality criteria or binding “rights” for individuals; for this reason the Air Act must be interpreted together with the Environment (Protection) Act, 1986 (which grants extensive powers to the Central Government to make rules and give directions — s.3 and s.5) and with constitutional remedies under Article 32/226. The Act’s composition thus embodies a delegated-regulatory model (Boards + standards + penalties) instead of a rights-based statutory framework, which in turn helps to clarify the significant implementation gaps that are going to be processed later on. ¹⁵

B. Central Pollution Control Board (CPCB), State PCBs and NAMP monitoring frameworks.

The regulatory setup looks like a three-tier system: on paper, Parliament established the Central Pollution Control Board (initially under the Water (Prevention & Control of Pollution) Act, 1974 — s.3) and corresponding State Pollution Control Boards; the Air Act (s.3) and subsequent rule-making have given CPCB and SPCBs mandates to set standards, monitor ambient quality, and coordinate enforcement, to name a few. In practice, the National Ambient Air Quality Monitoring Programme (NAMP) managed by CPCB is the backbone monitoring network that provides a combination of manual and continuous monitors divided into roadside/background and industrial stations, with their data feeding national reporting and the PRANA/NCAP dashboards for policy decisions. Even though there is a formal monitoring framework under NAMP/CPCB, spatially uneven coverage is still the case (certain cities and rural areas lack enough continuous monitoring, and there are regions with almost no monitoring of pollutants like ozone, and so on), and many SPCBs’ institutional capacity is limited due to inadequate personnel, technical backlogs, and inefficient enforcement units. The difference between the legal authority and the actual monitoring capacity is a major factor contributing to the enforcement deficit.¹⁶

C. National Clean Air Programme (NCAP) — design, targets and city coverage.

The National Clean Air Programme (NCAP), which was introduced by the Ministry of Environment, Forest & Climate Change in 2019, is the main national programme aimed at curtailing particulate pollution and through it, the Indian government is now targeting a fantastic 20-30% decrease in PM2.5/PM10 concentrations (from the baseline) over a 5-year cycle. Moreover, it has initially designated 131 non-attainment cities for the implementation of focused interventions; the Programme is supported by city action plans, source apportionment studies, a combination of central funding windows, and state/city co-financing. One of the main things that have been introduced through those efforts is the PRANA portal (NCAP dashboard) for tracking programmes and their implementation. However, independent progress reviews have been uncovering major shortfalls; most of the cities are not able to complete source apportionment studies according to the scheduled time, inconsistent fund disbursement/utilisation, and only a few NCAP cities are giving access to the public, through their sturdy implementation reports, the problems that lead to weak project management and limited incentives for timely compliance. To put it in one sentence, the NCAP policy design is reasonable as a national programme but its delivery model relies on active, well-resourced city/state bureaucracies and clear accountability which is not a condition that is met throughout.¹⁷

D. Overlap, gaps and regulatory fragmentation.

Air quality regulation in India is spread out over a wide range of different laws and agencies which makes it hard to follow. Specifically, the Air Act (1981) which addresses air quality, the Environment (Protection) Act (1986) which gives central government rule-making, and the right to declare emergencies (s.3); the Water Act (1974) which recognizes the CPCB as the original body (s.3); separate Acts and regulations (Ministry of Road Transport / BS fuel standards) for transport and vehicles; the area of urban planning and municipal functions again goes to state/local bodies; and energy/industrial supervision divided among clergy namely Cabinet ministries — this sectoral fragmentation creates overlaps in jurisdiction and gaps in accountability (for example, who gets to determine the burning of crop residues in one state when the emissions inventory is the responsibility of three ministries?). The outcome of this situation is a governance system with a lot of legal responsibilities but very little in terms of coordination, funding, and clear enforcement hierarchies which are often missing; the courts have tried to resolve these issues through the application of continuing mandamus but the problem of institutional dispersal remains a legislative/policy task.¹⁸

Table 1 — NCAP coverage and fund utilisation

Indicator	Number / Amount	Percentage / Note	Source
NCAP target cities	131 cities	—	CPCB / PRANA. (Central Pollution Control Board)
Allocation to 82 non-attainment cities	₹1,253 crore	Utilised till Nov 2023: ₹498 crore	CREA ‘Tracing the Hazy Air’ 2024. (CRECA)
Allocation to million-plus cities (MPCCF)	₹9,610 crore	Utilised till Nov 2023: ₹5,909 crore (62%)	CREA / PRANA summary. (CRECA)

EMPIRICAL REALITY: AIR QUALITY, HEALTH AND ENFORCEMENT GAPS

A. National and city PM2.5/PM10 data — trends and hotspots (CPCB / WHO summaries).

The worldwide pollution map has confirmed that the problem has reached massive proportions: as far as PM2.5 made up of India’s population the annual average concentration is still heavily above the recommended limit set by the WHO (5 μg/m³), recent global assessments (IQAir/World Air Quality Report; State of Global Air) come up with the conclusion that India is one of the world’s most polluted countries and the surveys conducted in India point out that its cities are among the most polluted ones globally — for example, the IQAir World Air Quality Report 2024 identifies Byrnihat and a few NCR and industrial towns as polluted metropolitan areas and mentions that India’s 2024 PM2.5 concentration is approximately 50–55 μg/m³, depending on which method is used.¹⁹ The CPCB’s NAMP and city AQI dashboards not only agree with these trends but also point out that the Indo-Gangetic Plain experiences the highest winter (December–February) pollution levels that last for a couple of months and that there are urban areas with very high pollution levels due to industry, traffic, roadworks and sometimes agricultural burning. International organizations (WHO database, State of Global Air) and national monitoring therefore confirm together that there is widespread non-compliance with national ambient air quality standards (NAAQS) in urban and peri-urban areas, which leads to both chronic exposure and acute episodic crises.²⁰

Table 2 — Selected annual PM2.5 averages for Indian cities (WAQR / IQAir 2024, selected cities)

City / Metro	Annual average PM2.5 (µg/m³)	Comment	Source
Byrnihat (Meghalaya/Assam border)	128.2	Ranked world’s most polluted metro (2024).	IQAir WAQR 2024. (IQAir)
Delhi (NCT)	~91–108 (reported range by sources)	Among world’s most polluted capitals; strong winter peaks.	IQAir / WAQR / Indian press. (IQAir)
Ghaziabad / Noida / Faridabad (NCR cluster)	High annual means (60–120)	Industrial and roadside emissions + winter stagnation.	IQAir / CPCB AQI portal. (IQAir)
Ludhiana / Amritsar / Ludhiana region	70–120 (regional variation)	Textile/industrial clusters; seasonal crop burning effects.	IQAir / local CPCB readings. (IQAir)
Kolkata / Mumbai (port metros)	Lower than NCR but episodic spikes	Coastal dispersion; episodes from regional sources/traffic.	CPCB / IQAir. (Central Pollution Control Board)

B. Enforcement evidence: recurring crises (Delhi seasonal peaks, stubble burning, industrial clusters).

Over the years, there have been enforcement data and episodic evidence to show that there have been repeated failures in the implementation of the legal obligations to clean air outcomes. The Delhi region is facing severe winter pollution episodes every year, which are caused by emissions from vehicles, industry, and construction, as well as by the stagnation of meteorological conditions and the burning of crop residues in Punjab and Haryana — scientific assessments and satellite analyses have indicated that stubble burning events can be responsible for 20-70% of PM2.5 on high-pollution days (the exact percentage depending on the day and averaging window), and that the season-average contribution is lower; such variability makes regulatory targeting difficult and requires coordinated, timely action across states and sectors.²¹

The court has intervened (the M.C. Mehta series and related orders) and has set up a system of deadlines and supervision for the control of vehicular emissions, conversion to CNG/BS standards, inspection regimes, and traffic management, yet the seasonal crises continue to witness that court directions alone have not managed to wipe out the complex, cross-jurisdictional causes of episodic smog. These patterns underline the shortcomings in enforcement — inadequate joint action, limited rapid funding mobilization, and weak mechanisms to prevent repeat infractions — that further widen the gap between doctrinal recognition and the actual protection on-the-ground.²²

Table 3 — Selected enforcement/implementation indicators (NCAP / PRANA / independent review)

Indicator	Figure	Interpretation	Source
NCAP cities completed source apportionment (by timeline)	44 out of 131	Less than one-third completed on time (crea report).	CREA ‘Tracing the Hazy Air’ 2024. (CRECA)
Fraction of allocated funds utilised (82 non-attainment cities)	40% (₹498 / ₹1,253 crore)	Under-utilisation of funds impedes project delivery.	CREA / PRANA finance summary. (CRECA)
Number of NCAP cities with public, detailed progress reports	~17 (detailed reports)	Transparency gaps on implementation status.	CREA press release. (CRECA)

C. Civil society and local governance responses (Survekshan/NCAP case studies).

Civil society actors, research institutions and municipal reforms have all been active players: NGOs and researchers have employed public interest litigation, requests for information and independent monitoring as means of compliance; “Survekshan” style ranking and competitive drivers — together with the NCAP’s own city action-plan architecture — are ways for municipalities to enhance their performance by linking performance with funds and technical assistance that are based on measurable outputs. Nevertheless, independent assessments indicate that the capacity of urban governance varies widely: a few big cities (which could access state finance and technical resources) have adopted cleaner public transport, stricter building regulations, and waste management reforms that have noticeably cut some emissions, whereas a lot of smaller cities are suffering from poor project management and limited access to financiers/technical know-how. The empirical record thus demonstrates a mixed picture: areas with measurable progress but wide differences in outcomes — which in turn weaken the communication that a justiciable right to clean air has been made universally effective by statutes or programmes.²³

Table 4 — Illustrative NCAP implementation snapshot

Metric	Total NCAP cities	Cities reporting completion	% reporting	Source
NCAP target cities	131	131	100% (target)	CPCB PRANA list. (Central Pollution Control Board)
Cities with some progress data on PRANA	40 (example)	40	~31% (reporting/completed)	CREA/Tracing the Hazy Air press summary. (CRECA)
Cities with completed source apportionment	44	44	~34%	CREA report. (CRECA)

WHY “BREATHLESS JUSTICE”? — THE MYTH ARGUMENT

A. Doctrinal recognition vs. practical enforceability — the enforcement deficit.

The central paradox — the reason the expression “Breathless Justice” fits so well — is that Indian law has variously acknowledged environmental protection as an inseparable part of Article 21 and created innovative solutions (Subhash Kumar accepted a pollution-free environment as life; Vellore Citizens’ Welfare Forum brought in polluter-pays and precautionary principles; M.C. Mehta litigation generated moving mandamus and intrusive supervisory regimes), but the doctrinal expansion has not reliably transformed into universally enforced, evenly distributed rights to breathe clean air throughout the country. Courts can and do issue decrees, but the actual enforcement of those mandates involves administrative capacity, finance, technical monitoring, inter-governmental coordination and political will; in places where these conditions are lacking or unevenly distributed, judicial victories are fragile. In other words, while Article 21 offers a constitutional anchor (and the courts have been quite creative in their use of it), that doctrinal recognition alone is not enough to ensure that all Indians have access to air which meets health-based standards every day; thus the “myth” critique: a right is acknowledged but not really applied in a similar manner everywhere.²⁴

B. Institutional failures: capacity, data, and federal coordination.

Institutional failures are at the heart of the issue: SPCBs and municipal bodies consistently lack the necessary funding for large-scale NCAP activities; monitoring is not exhaustive (there are gaps in the coverage of continuous monitors, and ozone tracking is limited), and PRANA/NCAP dashboards indicate uneven data reporting — all of which hinder both the diagnosis and the solution. Federal aspect is of equal importance besides the already mentioned factors; agricultural waste burning goes beyond state lines, the transport authorities regulate vehicular air pollution but it has the same impact on the quality of fuel all over the country, and if a company is licensed by one state, it will still affect the neighboring states. Without a precise, legally binding mechanism for emergency action that would cover multiple states and sectors (and predictable funding flows), crises will keep coming up just as they have been done through court orders. ²⁵

C. Political economy: regulatory capture, incentives and implementation failures.

Air quality management is under the influence of political-economic incentives: investment in the industry, local job creation, real estate development, and short-term political cycles could exert pressure to postpone the implementation of pollution controls that are costly. Regulatory capture and weak enforcement (e.g., slow closing of non-compliant units, loose controls during construction, weak vehicle inspection regimes) imply that the groups who would be affected the most by strict enforcement have the most power over the regulatory bodies. Where the imposition of sanctions is slow, the fines are not significant or inspections are not conducted frequently, the economic calculation is in favor of continuing non-compliance. This problem can be viewed from an administrative perspective; however, it is a political-economic reality that statutory provisions (even if they are quite clear) will have to go through the struggles of getting stronger transparency, accountability, and institutional redesign — for instance, independent funding streams for air-quality projects, statutory timelines with enforceable penalties for non-implementation, and anti-capture safeguards. ²⁶

D. Rights inflation: judicial proclamations without durable institutional remedies.

In the end, “rights inflation” — the pumping up of rights and principles through judicial declarations without corresponding change in the institutions — is on the verge of making the constitutionally guaranteed rights meaningless. The Supreme Court’s environmental jurisprudence has been ecologically great, yet it is not the Court that can make pollution control boards to run, give out money for bus fleets, or reorganise municipal services; the Court can set up outcomes and timelines, but a wholesale change will need legal (for instance, a more explicit, rights-based environmental statute; attaching ambient air limits with compliance obligations that have time-frames; and ruling administrative institutions that are supportive and empowered) reform. Rights to clean air as enshrined in the Constitution will still be partly aspirational until laws and budgets that are durable are not only enacted but implemented: a right acknowledged in theory, accessible in the legal arena, yet frequently beyond the reach of the majority of people—this is what the “myth” thesis claims as the central issue. ²⁷

Table 5 — Health burden attributable to air pollution

Metric	India (2019)	Note / Source
Total deaths attributable to air pollution	1.67 million (95% UI 1.42–1.92 million)	GBD / Lancet (2019 estimate).
Deaths attributable to ambient particulate matter	0.98 million	Majority from ambient PM2.5 exposure.
% of total deaths	17.8%	Significant share of national mortality.

The legal and policy framework for cleaner air is there—the Air Act, the Environment (Protection) Act, the monitoring by the CPCB/NAMP and the NCAP programme all come together to create a legal and institutional framework—but the empirical record (pollution levels, health impact and NCAP execution indicators) indicates a constant gap between enforcement and capacity. This leads to a situation where the constitutional promise is doctrinally and theoretically valid but practically incomplete: thus, the “right to clean air” in India is at the same time recognized and for many still unattainable—a living jurisprudential commitment that needs corresponding legislative reform, institutional strengthening and political accountability to become the enforceable, everyday right the Constitution envisages.²⁸

REMEDIES, RELIEF AND INNOVATIONS

A. Traditional judicial remedies (mandamus, injunctions, continuous mandamus, damages).

For a long time Indian courts used the traditional public-law remedies mandamus and injunction (under Article 32/226) as the main tools to compel State action and to restrain polluters, respectively. For the latter, the judiciary has translated the environmental content of Article 21 into enforceable orders through if not less than these mandamus issuing and injunctions. The Supreme Court’s interventionist approach in the M.C. Mehta v. Union of India ²⁹ vehicle-pollution controversies, where the Court set up expert committees, issued indefinite mandamus, and oversaw implementation, exhibits the judiciary’s readiness to control complicated administrative programs. The Court’s openness to mandating or providing remediation funding and shutting down with conditions is, however, equally important: the notion of requiring the guilty party to cater for the cleanup was recognized in Vellore Citizens Welfare Forum v. Union of India³⁰, while the particular killer pleadings for depositing of skimming costs and shutting down of dirty units are found in Indian Council for Enviro-Legal Action v. Union of India³¹. Such remedies are supported by the regulatory framework — the Air (Prevention & Control of Pollution) Act, 1981 (ss.16–19, 22) and the Environment (Protection) Act, 1986 (s.3) — that give enforcement powers to CPCB/SPCBs and the Central Government; nevertheless, the judicial orders frequently take an extra role of plugging up the institutional gaps and setting up time-limited supervisory regimes where the administrative inertia is still present. ³²

B. Designing enforceable socio-economic remedies: binding air budgets, statutory right to information and individual remedies for health harms.

Innovation must go beyond injunctions and mandamus to socio-economic remedies that render rights measurable and administratively enforceable: (a) State Implementation Plans (SIPs) based statutory “air budgets” (city- or sector-level emission caps with legally-binding timelines) would turn aspirational NCAP targets into enforceable duties with clear-cut milestones. The Clean Air Act’s NAAQS + SIP structure shows how national standards can be combined with state plans and sanctions. (b) a statutory right to timely, accessible air-quality information — complemented by penalties for withholding or data manipulation — would bring procedural rights into play and empower citizen enforcement (information duties are already a policy feature of NCAP/PRANA guidelines but require statutory support). (c) clearer civil remedies for individual and class health harms — statutory compensation schemes or presumptive causation rules in high-exposure zones — might make the recovery process less burdensome in terms of evidence; Indian courts have occasionally given orders for remediation and compensation, but a statutory, scheme-based approach would provide clarity in terms of entitlement and enforcement. ³³

C. Institutional reform proposals: independent National Air Commission; judicially supervised implementation deadlines; mandatory remediation funds.

The solutions proposed have to align with the planning of the relevant institutions. A law-based dependent National Air Commission (NAC) with the authority to make rules, allocate budgets, technically monitor, and enforce, would facilitate the centralisation of power, cut down on inter-ministerial division, and create a permanent expert body with the legal right to set binding air budgets and invoke quick reactions in the case of non-attainment zones (the proposal is inspired by the organizational attributes of California’s Air Resources Board among others). The reforms could be such that courts would have to, when ordering continuing mandamus, change the orders into deadlines for implementation with the assessment of reports and auditor assignments (there are examples in Indian PIL practice and socio-economic rights jurisprudence – e.g., judicial supervision orders in Treatment Action Campaign style cases in South Af³⁴rica). Moreover, the funds for mandatory remediation would be a guarantee that the financial resources for the cleanup would be available beforehand; in the past, courts have ordered the deposit of remediation costs in pollution cases (Indian Council for Enviro-Legal Action).

Table 6 — NCAP implementation & diagnostic metrics

Indicator	Figure	Interpretation	Source
Non-attainment cities identified under NCAP	131 cities	National target cohort for focused action.	CPCB / NCAP. (Maharashtra Pollution Control Board)
Cities completing source-apportionment (Dec 2023)	44 / 131 (≈33.6%)	Less than one-third met the planned timeline for critical diagnostic studies.	Tracing the Hazy Air (CREA) 2024. (CRECA)
NCAP allocated funds utilised (82 cities)	₹498 / ₹1,253 crore = 40% utilized	Under-utilisation undermines implementation.	Tracing the Hazy Air (CREA) / PRANA fund guidelines. (CRECA)

D. Role of criminal / administrative sanctions — feasibility and fairness.

The waves of criminal and civil sanctions exist along with the legal acts that contain the possibility of drawing penalties but the deterrent power of these sanctions is restless upon the factors of prompt actions, appropriate punishment that is in accordance with the damages and sufficient barriers against corrupt practices. The provisions pertaining to the imposition of penalties on a company for exceeding the emission limits are laid down in the Air Act (s.22), whereas the Environment (Protection) Act provides for issuing directions and passing penalties from the central government (s.15/16 read with s.3 rule-making powers). However, regularizing criminalization without a capable investigation might lead to selective enforcement and also might slow down the courts instead of controlling pollution. The administrative sanctions, which include fines that are under a graduated scheme, cessation of licensing/clearance, and corrective action notices that automatically get their money from escrows, can be very fast and predictable and it is still very important to put a framework around these actions that includes due-process safeguards, independent review, and clear standards for proportionality to avoid unfairness. Insights from the Indian enforcement show that barriers of time, low levels of penalties and bad follow-through cause deterrence to be less effective; thus, the stamping of sanctions that guarantees quick, non-discriminatory, and resource-ready enforcement is of great importance. ³⁵

COMPARATIVE PERSPECTIVES (SHORT, FOCUSED — TO STRENGTHEN ARGUMENT)

A. South Africa’s constitutional environmental right (Section 24) and lessons on enforceability.

Section 24 of South Africa’s Constitution guarantees a right to a healthy environment for everyone, and it obligates the State to take reasonable legislative and other measures to mitigate pollution. South African courts (particularly in the cases of socio-economic rights enforcement like Minister of Health and Others v Treatment Action Campaign and Others³⁶ and environmental adjudication under Section 24) have shown that the constitutional text along with institutional mechanisms and political will can even provide enforceable outcomes; however, the courts still face limitations in the implementation of remedies that require continuous administrative action and budgetary allocations when they are the case. Thus, the South African experience gives rise to two lessons for India: (a) explicit constitutional entrenchment is helpful, but (b) enforcement requires funding that is predictable, technical agencies, and politics-aware but legally firm remedies. ³⁷

B. Developments before the European human-rights system (ECtHR) and strategic litigation in Europe.

The ECHR has gradually made its way to acknowledge a situation where extreme environmental pollution can trigger the engagement of the rights guaranteed in Article 8 (right to private and family life). The landmark cases Fadeyeva v. Russia³⁸ and Tătar v. Romania³⁹ have placed such responsibility on the States that a lack of regulation or failure to implement proper measures led to extreme disturbances in living conditions, private and family issues of the applicants. The courts’ decisions are still quite enlightening: they change environmental damages into human rights obligations (including positive duties to control, supervise, and communicate) and confirm awarding and procedural remedies to the States which do not act.

C. Chosen global best practices (lawful R2HE frameworks, air commissions).

Best practices across the globe have the combination of statutory standards, independent technical agencies, and legally binding implementation plans as a common denominator: the U.S. Clean Air Act (42 U.S.C. §7401 et seq.) links national ambient standards (NAAQS) with State Implementation Plans and federal enforcement; California’s Air Resources Board (CARB) is an example of an official, skilled agency setting strict standards and promoting health-focused regulation at state level. Other novelties encompass legally-enforced public actions, automatic financial triggers for restoration, and statutory environmental budgets that guarantee funding for enforcement — mechanisms that India might contemplate and customize according to its federal administrative context.⁴⁰

Table 7 — Comparative institutional elements

Jurisdiction	Institutional device	Outcome / relevance	Source
United States	Clean Air Act: NAAQS + State Implementation Plans (SIPs)	Binding plans, federal oversight, enforceable timelines.	U.S. Clean Air Act text / EPA. (GovInfo)
California (USA)	California Air Resources Board (CARB)	Independent technical board with strong regulatory mandate.	CARB official site. (California Air Resources Board)
South Africa	Section 24 constitutional right; progressive jurisprudence	Direct constitutional text + enforcement via courts/administration.	South African Constitutional Court decisions / text. (OHCHR)

A NORMATIVE DEFENSE: FROM MYTH TO RIGHT — PATHWAYS

A. Why a justiciable, enforceable right matters: dignity, distributive justice, and inter-generational equity.

The legal right to pure air is not only a means of measuring health but also a basis for human dignity and the fairness of distribution among people. The dignity-centered interpretation of Article 21 conforms to the principle that the most basic human needs for clean air, safe water, and healthy surroundings are the prerequisites for the most valuable and active participation in the community. The burdens caused by air pollution have a particular impact on the disadvantaged, informal laborers and the people living in the periphery whether in the towns or the countryside, that is the reason of the concern from the perspective of distributive justice: a right that can be taken to court but not enforced leaves the most weak still unprotected. The issue of inter-generational equity also insists that the environmental policy of today (energy, transport, land-use) should not deprive future generations of the right to a safe environment; the right to a safe environment becomes a legal obligation of the present-day institutions to meet, converted from a mere normative commitment by the feature of enforceability. ⁴¹

B. Practical, incremental legal reforms (statutory codification; stronger standing rules; tri-party implementation boards).

Legal reforms that are practical and that would turn the “myth” into a living right, include the following measures: (a) statutory recognition of a right to a clean environment or a Right to Clean Air Act that would establish health-based ambient standards, prescribe time-bound reduction targets, and provide legal means for citizen enforcement; (b) removing procedural obstacles in standing and public-interest litigation (removing barriers in writ jurisdiction and empowering NGOs and communities affected to bring suits), and (c) formation of tr-party oversight panels (federal/state/independent expertise) for areas failing to meet standards with certain power over budgets, monitoring, and plans for corrective actions. The overall goal of these gradual reforms is to utilize current laws — Air Act, EP Act, Motor Vehicles Act (rule-making powers under s.110 for emissions) — while providing such laws with normative clarity and enforceability through statutory hooks and transparent accountability mechanisms.

Table 8 — Implementation levers & indicative legal provisions

Leverage	Indicative statutory provision / model	Expected effect	Source
Statutory air budgets	Modeled on Clean Air Act SIPs (42 U.S.C. §7410)	Converts national targets into binding local plans.	U.S. Clean Air Act. (GovInfo)
Independent air agency	CARB / independent NAC model	Technical authority + accountability.	CARB site. (California Air Resources Board)
Mandatory remediation escrow	Court-ordered deposits (Indian precedents)	Ensures funds for cleanup are available.	Indian Council for Enviro-Legal Action orders. (Indian Kanoon)

C. Complementary policy measures (NCAP 2.0 proposals, urban planning, transport reform).

Legal reforms must be aligned with policy instruments: NCAP 2.0 should give preference to the quick finishing of source-apportionment studies, the setting aside of financial resources with disbursement linked to performance, and the statutory deadlines for moving to cleaner fuel/vehicle standards (the Bharat Stage VI rollout shows how transport policy can influence emissions trajectories but is dependent on complementary enforcement and inspection capacity). Urban planning (zoning, construction dust controls, green-space preservation), fiscal incentives for clean public transport, and agricultural support schemes to end stubble-burning (with conditional transfers and mechanisation subsidies) are important non-legal complements that must be synchronized with the legal enforcement framework; only a united legal-policy programme can transform doctrinal recognition into the everyday breathable air for all. ⁴²

RECOMMENDATIONS FOR COURTS, LEGISLATURE AND EXECUTIVE

The courts must keep relying on Article 21 as the constitutional basis for air-quality protection, but at the same time, they must largely transfer their remedial practice from the issuing of single decrees to the establishment of enforceable compliance architectures: judge’s orders should always include the following (a) time-bound schedules for the implementation of the remedial activities, (b) hiring of independent technical experts to monitor compliance, and (c) setting up of court-supervised remediation escrow accounts to which the industries or state authorities responsible would have to deposit money for cleaning up and providing health relief. In situations where statutory authorities (CPCB/SPCBs) have the power to act under the Air (Prevention & Control of Pollution) Act, 1981 (refer to ss.3, 16–19, 22) and the Environment (Protection) Act, 1986 (s.3), the courts should pass judgments that activate those powers and require substantive administrative actions rather than abstract pronouncements—for instance, directing that CPCB exercise its inspection and direction powers and that funds be allocated to carry out the court-ordered remedies.

The legislature has to create a clear, rights-based legal framework that transforms the objectives of NCAP into enforceable legal obligations. The first step for a “Right to Clean Air Act” or targeted changes in the existing laws would be the creation of health-based national ambient air quality standards defined in terms of obligations imposed by the law, (i) that is legal air-source budgets for every city/sector with statutory deadlines and automatic administrative triggers for non-compliance; (ii) with the technical, rule-making, and enforcement power of an independent National Air Commission; and (iv) giving public procedural rights such as a right to real-time, accessible air-quality information and public interest litigation with simplified standing rules to decrease the transaction costs for citizen enforcement. The Motor Vehicles Act (power to make emission rules under s.110) and the Environment (Protection) Act (s.3 central powers) should be modified or explicitly connected to the new regime such that the transitions of vehicle and fuel standards are legally synchronized with the air-budget timelines.

The executive branch needs to direct its efforts towards institutional building, monitoring, and providing funds that are predictable. The Central Pollution Control Board and State Pollution Control Boards should extend their National Air Quality Monitoring Program (NAMP)/continuous monitoring coverage, make available validated real-time data (PRANA/NCAP dashboards), and adopt binding performance-linked funding disbursement for National Clean Air Program (NCAP) projects so that central funds are released only upon achievement of demonstrable milestones. Administrative regulations must be put in place that will operationalise the Air Act’s (s.22) graduated administrative sanctions with swift administrative closure, automatic draw-downs from remediation escrows, and non-discretionary procedures to prevent capture of regulators. The‌ executive‌ should‌ then employ‌ inter-state‌ coordination‌ mechanisms‌ and‌ use the power of the central government under the ‌Environment‌ (Protection) Act‌ (s.3) to issue instructions that must be followed and to use ‌conditional‌ transfers‌ to the farmers affected by the burning of crop-residues for the management of those residues in an eco-friendly way.

CONCLUSION

The° implicit constitutional recognition in Article 21° gives a strong doctrinal base for a right to clean air, but that recognition without concurrent statutory clarity, institutional capacity and reliable financing will be delicate. A right that lasts requires three interconnected features; statutory enforcement (clear legal duties and air-budgets), institutional capability (an empowered, independent technical authority and rigorous monitoring under NAMP/PRANA), and procedural accessibility (rights of information, manageable standing and swift remedies through forums like the National Green Tribunal). The National Green Tribunal Act 2010, is a key specialized forum for environmental disputes, and it should be functionally integrated into the proposed statutory framework so that the NGT’s remedial competence is complementary to legislative reform and executive capacity.

Translating “breathless justice” into actual justice requires the collaboration of all parties involved: courts should create remedies that are both enforceable and easy to monitor rather than just declaratory relief; Parliament has to make legal provisions (air budgets, independent commissions, escrow mechanisms, statutory information and standing); and the executive has to provide the technical systems (an extended NAMP, continuous monitors), roofed funding and predictable administrative penalties under the Air Act (s.22) and the Environment (Protection) Act (s.3). A tripartite response only — judicial monitoring aimed at enforceability, legislative codification of duties, and budgetary design, and executive institutionalization of monitoring and sanctions — can turn the right to clean air from a constitutional promise into a reliable and enforceable reality for all Indians.

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Footnotes

1. Subhash Kumar v. State of Bihar, AIR 1991 SC 420

2. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647

3. Rachit Garg, MC Mehta vs. Union of India (1986) : Case Analysis, IPLEADERS (Dec. 21, 2022, 2:12 PM), https://blog.ipleaders.in/mc-mehta-vs-union-of-india-1986-case-analysis/.

4. Article 21: Protection of Life and Personal Liberty, CONSTITUTION OF INDIA (Dec. 21, 2022, 2:21 PM), https://www.constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty/.

5. Subhash Kumar v. State of Bihar, AIR 1991 SC 420 (also reported at (1991) 1 SCC 598)

6. Ibid.

7. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647

8. Constitutional Law of India – Chapter 8, Right to freedom, (Dec. 21, 2022, 2:38 PM) http://student.manupatra.com/Academic/Abk/Constitutional-Law-of-India/CHAPTER-8.htm

9. Coralie Mullin v. Administrator, U.T. of Delhi, AIR 1981 SC 746

10. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

11. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647

12. Sneha Mahawar, Environment (Protection) Act, 1986, IPLEADERS (Dec. 21, 2022, 4:39 PM), https://blog.ipleaders.in/environment-protection-act-1986-2/

13. Lawcurb, Right To A Clean And Healthy Environment As Part Of Article 21, LAWCURB (Dec. 21, 2022, 7:12 PM), https://www.lawcurb.in/post/right-to-a-clean-and-healthy-environment-as-part-of-article-21.

14. Sagarika Panigrahi, . . Air (Prevention and Control of Pollution) Act, (Dec. 21, 2022, 9:48 PM), https://www.academia.edu/32086265/_Air_Prevention_and_control_of_Pollution_Act

15. Difference Between Article 32 & Article 226: MEANING, DIFFERENCES & WRITS, (Dec. 21, 2022, 10:16 PM) https://thelegalschool.in/blog/difference-between-article-32-and-226

16. Water (Prevention and Control of Pollution) Act, 1974 and Its Rules – ENVIRONMENTAL LAW AND POLICIES, (Dec. 21, 2022, 10:28 PM) https://ebooks.inflibnet.ac.in/esp13/chapter/water-prevention-and-control-of-pollution-act-1974-and-its-rules/

17. National Clean Air Programme (NCAP) to Improve Air Quality in 131 CITIES BY ENGAGING ALL STAKEHOLDERS, (Dec. 21, 2022, 10:42 PM) https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1909910

18. Ajay Thakur, clean air related laws in India, IPLEADERS (Dec. 21, 2022, 10:48 PM), https://blog.ipleaders.in/clean-air-related-laws-in-india/

19. World Air Quality Report 2024, DRISHTI IAS, (Dec. 21, 2022, 10:51 PM) https://www.drishtiias.com/daily-updates/daily-news-analysis/world-air-quality-report-2024

20. Vikas Singh, Shweta Singh & Akash Biswal, Exceedances and Trends of Particulate Matter (PM2.5) in Five Indian Megacities, 750 THE SCIENCE OF THE TOTAL ENVIRONMENT 141461 (2021)

21. Breath Under Trial: How CAQM’s Failures Exposed Delhi’s Pollution Crisis, MEDICIRCLE, (Dec. 21, 2022, 10:59 PM) https://medicircle.in/breath-under-trial-how-caqms-failures-exposed-delhis-pollution-crisis

22. M.C. Mehta v. Union of India, WP 13029/1985 (1996. 04.26) (Vehicle Pollution Case: Government Vehicles), ELAW: ENVIRONMENTAL LAW ALLIANCE WORLDWIDE (Dec. 21, 2022, 11:06 PM), https://elaw.org/resource/india-mc-mehta-v-union-india-wp-130291985-1996-0426-vehicle-pollution-case-government-vehicl.

23. Document Display (PURL), US EPA, (Dec. 21, 2022, 11:17 PM) https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=9101Y0BP.TXT

24. JusCorpus, constitutional green justice: expanding Article 21 for a sustainable future, JUS CORPUS (Dec. 21, 2022, 11:38 PM), https://www.juscorpus.com/constitutional-green-justice-expanding-article-21-for-a-sustainable-future/.

25. VisionIAS, National Clean Air Programme Ncap, CURRENT AFFAIRS | VISION IAS, (Dec. 22, 2022, 7:13 AM) https://visionias.in/current-affairs/schemes/ministry-of-environment-forest-and-climate-change/national-clean-air-programme-ncap (

26. Sadiq H. Melhim & Rima J. Isaifan, The Energy-Economy Nexus of Advanced Air Pollution Control Technologies: Pathways to Sustainable Development, 18 ENERGIES (2025).

27. A Breath of Fresh Air: Indian Supreme Court Declares Protection from Climate Change a Fundamental Right – HHR JOURNAL, (Dec. 22, 2022, 7:38 AM) https://www.hhrjournal.org/2025/04/20/a-breath-of-fresh-air-indian-supreme-court-declares-protection-from-climate-change-a-fundamental-right/

28. National Clean Air Programme (NCAP) to Improve Air Quality in 131 Cities by Engaging All Stakeholders, (Dec. 22, 2022, 7:51 AM) https://www.pib.gov.in/PressReleaseIframePage.aspx?PRID=1909910

29. M.C. Mehta v. Union of India, AIR 1987 SC 1086

30. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647

31. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212

32. Sneha Mahawar, Environment (Protection) Act, 1986, iPleaders (May 29, 2022), https://blog.ipleaders.in/environment-protection-act-1986-2/

33. Document Display (PURL), US EPA, (Dec. 22, 2025) https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=9101INBG.TXT

34. Indian Council for Enviro-Legal Action Vs. Union of India and Ors. – SUPREME COURT – IBC LAWS, (Dec. 22, 2022, 8:21 AM) https://ibclaw.in/indian-council-for-enviro-legal-action-vs-union-of-india-others-supreme-court/

35. Sneha Mahawar, Environment (Protection) Act, 1986, IPLEADERS (Dec. 22, 2022, 9:14 AM), https://blog.ipleaders.in/environment-protection-act-1986-2/

36. Minister of Health and Others v Treatment Action Campaign and Others (No 2) (CCT8/02) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) (5 July 2002)

37. Filo student, Compare the South African Constitution with the Indian Constitution: What Lessons Did India Learn from South African Experience?, FILO (Dec. 22, 2022, 9:49 AM), https://askfilo.com/user-question-answers-smart-solutions/compare-the-south-african-constitution-with-the-indian-3338303633353135.

38. Fadeyeva v. Russia (No. 55723/00, 9 June 2005)

39. Tătar v. Romania (App. No. 67021/01, 27 January 2009)

40. Summary of the Clean Air Act, US EPA (Dec. 22, 2022, 10:03 AM), https://www.epa.gov/laws-regulations/summary-clean-air-act

41. A Breath of Fresh Air: Indian Supreme Court Declares Protection from Climate Change a Fundamental Right – HHR JOURNAL, (Dec. 22, 2022, 10:18 AM) https://www.hhrjournal.org/2025/04/20/a-breath-of-fresh-air-indian-supreme-court-declares-protection-from-climate-change-a-fundamental-right/

42. Tracing the Hazy Air 2025: Progress Report on National Clean Air Programme (NCAP) – CENTRE FOR RESEARCH ON ENERGY AND CLEAN AIR, CENTRE FOR RESEARCH ON ENERGY AND CLEAN AIR (Dec. 22, 2022, 10:39 AM), https://energyandcleanair.org/publication/tracing-the-hazy-air-2025-progress-report-on-national-clean-air-programme-ncap/.