An Open Letter to the Judges of the Supreme Court

Dear Judges,

As I write these words, my adopted city of Delhi continues to be the most polluted capital of the world for a seventh straight year. In 2014, when several media houses ran headlines about this unique laurel and the impact it was having particularly on children and the elderly, many of us were worried. We had become accustomed to what we dubbed as “allergies” and “seasonal changes” – euphemisms for the lethal ailments that we now learnt were growing in our lungs.

A few of us from different walks of life – advocates, journalists, atmospheric scientists, health experts and engineers – came together to form Care For Air, a not-for-profit organization aimed at raising awareness and pursuing advocacy on the toxic air and its effects. We have spoken at schools, colleges and hospitals, we have written, we have tweeted, we have studied, we have published, we have shared, we have argued in courts and we have cried ourselves hoarse. And no, we have not taken a single penny for our work, remaining completely self-financed by our voluntary contributions.

There are many lessons we have learnt in the course of this struggle against the ghostly pall of gloom, but I will not bore you with tales of political apathy, corporate lobbies and dishonest lawyers. They are all present, and are cankers of our society, and yet, have a modest role in this missive.

What I wish to reflect on, and what is more pertinent perhaps, is the part that the Supreme Court has played in this foggy narrative. For that, we have to go back to 1985, when prescient green warrior MC Mehta asked the Court to intervene on behalf of the citizens of Delhi against the polluted air – at that time caused primarily by three sources – diesel vehicles, fossil based industry and brick kilns. In a brief five-year period, the Court took swift steps: more than 9,000 factories were closed and relocated, brick-kilns shut down and the entire public transport compulsorily converted to CNG. There was much hand-wringing and typical “whataboutery” by the polluters, usually firing from the shoulders of labour and workmen, but the Court remained firm. As a consequence, blue skies and cleaner climes prevailed in the city… for a while.

But, allow me to digress momentarily about an entity that played a central role for the two decades since.

In order to ensure that there was an independent oversight and monitoring mechanism, the Supreme Court had in 1998, directed the setting up of the Environment Pollution (Prevention & Control) Authority (EPCA) for the NCR, which came to be headed by former bureaucrat Bhure Lal and manned by representatives of the various governments with the Director of the Centre for Science and Environment acting as Secretary.

The EPCA was given wide ranging powers, including bans, restrictions, search and seizure, suo motu cognizance and the filing of complaints. EPCA was represented by an Amicus Curiae before the Supreme Court and its regular reports made recommendations for improving air quality, which were accepted by the Court almost always without demur.

It was on the watch of this entity – one set up by the Supreme Court and the Government of India, and unique in the world – that Delhi climbed to No.1 on the international filth list. There is no doubt that some work was done, as 117 Reports of the EPCA uploaded on its website stand witness, but the proof of the pudding is in the eating, and in this case, that dessert is a putrid, grey mess.

In 2015, while at a fellow lawyer’s house, the conversation turned to the bronchial issues our children were facing. We lamented the fact that things had gotten worse over the years and how, as lawyers we needed to do something about it. One thing led to another, and eventually six of us parents filed a petition in the names of our three infants – Zoya, Aarav and Arjun. We had many questions of the government –

o Why was the Union’s Auto Policy pushing off the transition to BS-VI fuel by seven years when the world’s largest refineries of Reliance and Essar perched right here on the Gujarat coast were sending that very fuel abroad for private profit?

o Why was the diesel subsidy being misused by millionaires buying SUVs so that Delhi had more diesel 4-wheelers than petrol?

o Why did India have the highest import duty of 125% on electric cars? (USA is 2.5% and Singapore is 0%)

o Why were fossil-fired plants allowed to operate without Flu Gas Desulfurization (FGD) in place?

o Why was no action being taken when construction material and malba were dumped in the open without any liability being fixed?

o Why were firework permits being granted when carcinogenic chemicals were being used by an industry which Kailash Satyarthi certifies continues to employ child labour?

Although much of this petition’s initial hearings dealt with multiple issues (including the presence of automotive engineers from IIT-Madras), alas, it soon came to dwell on the last aspect, quickly becoming labelled as “the fireworks petition”. In its wake was the invective, thick and fast.

We were accused of being anti-hindu and social media was used to direct obnoxious curses at our children. We were also besieged by concerned well-wishers to back off. After all, this is not our job – we are not trained environmentalists, or medical doctors or scientific experts, or policy makers. So withdraw, they counselled.

Unfortunately, we can’t. Because we are all of the above – for our children.

Every time one of them coughs, or our paediatrician recommends an inhaler, we are reminded of the solemn obligations we have as parents. As each minute micron of the PM2.5 comes to rest on the surface of a child’s lung, never to leave, we are made grimly aware of a shadow enveloping us – of future years with pulmonary disorders, collapsed lungs and worse. And yet, we remember that we are privileged.

Privileged to have cleaner air wafting through ventilated machines, of vacations that allow us to escape, of cars with rolled-up windows, of access to health care and of even courtrooms with air purifiers. But what about the small, grey faces at traffic lights blinking cheerfully at us as they peddle their wares? Or the thousands in Kumhar colony who use choking wood-fires for their daily bread? And the tiny bodies rummaging on the disgraceful landfills of Bhalswa, Okhla and Ghazipur as they inhale hydrogen sulphide? As also the millions across the country, because this is no longer a Delhi problem, as the readings from Chennai last week will stand testament.

We will be judged by a tribunal higher than the ones your Lordships adorn if we were to abandon this task.

Which is how we come to now.

In August 2020, teenager Aditya Dubey who has himself suffered from pulmonary issues, moved the apex court for relief similar to those that had come before. Over the last two weeks, as cracker ban violations and farm fires have jostled for responsibility, his petition has been taken up by the Court which has passed certain short-term directions. It is expected that certain other aspects will be taken up in the days to come and we can only hope they will have the same impact as those from 20 years ago.

However, what I urge the Court to consider is the fact that these petitions concern the single largest issue that face a quarter of India’s population today. The factors that contribute to air pollution are multifarious, the parties many, and almost all States are affected.

The Global Burden of Disease reports that a child dies every 3 minutes in India because of inhaling toxic pollutants in the air. More than 1 crore children in the last quarter of a century did not live past their fifth year because of Lower Respiratory Tract Infection (LRI) occasioned by air pollution. A Lancet Report from last year said that 1.7 million deaths of Indians were due to the poison that was being breathed, which was estimated to be a ₹2,60,000 crore loss to the economy (about 1.5% of the GDP). These numbers dwarf those of COVID, and yet, the energies of all our institutions have been channeled towards the tiny virus.

Air Pollution is not a political issue because it carries no religion, caste or colour. It claims all, and yet leaves no trace that could be profitable at the hustings. Unfortunately, as pithily observed by the Chief Justice, the bureaucracy’s apathy when coupled with political disregard leaves the issue yet again at the doors of the Court.

The time has come for a full-fledged hearing on what is no longer a Winter’s Tale. A few weeks from the Court’s calendar would be a small price to pay if we can shepherd our children to a better tomorrow. Till then, we can hold our breath.

Yours sincerely,

Gopal Sankaranarayanan

Co-Founder, CARE FOR AIR