The Delhi Air Pollution matter: Judges! Leave them kids alone!

“See how misplaced this plea is. I am not saying this is a publicity gimmick but that is why children should not be involved in this…Governments are answerable and conscious of the need of children to go back to school. We cannot say by the judicial diktat to send them to school disregarding the possibility of a third wave; vaccination is going on…These issues are fraught with grave complexity. We don't think we should enter here by judicial mandates. In this petition by a child there is no data for us to rely on, teachers have to be vaccinated.”

These were the observations of the Supreme Court during the hearing of Amar Prem Prakash (Minor) v. Union of India & Ors, on September 20, 2021. The Court was hearing a petition by a Class 12 student highlighting the closure of schools in India for approximately 18 months. None of this was recorded in the Supreme Court’s order, which simply stated that the petition had been withdrawn. The Court’s reluctance is technically correct since governance is not its domain.

However, if the Court was aware that “…in several countries schools were reopened but after repercussions they had to shut them again”, how did they miss the multitude of media reports on adverse effects of prolonged school closures in India (including lack of online access) as well as recommendations by Indian and international experts to open schools? One wonders if the Court could have taken cognisance of these reports and at least questioned whether the right to education was being denied to Indian children, particularly when everything else was open. After the Court’s harsh reaction in Amar Prem Prakash, would anyone dare to approach a court for the same issue? Our children were once again left to the mercy of Union and state governments, which were collectively creating the third longest school closure in the world.

Apart from governance, another area where the Supreme Court does not have expertise is science. However, on October 8, 2021, the Court reportedly said “…[we are] not policymakers but opening of classes for small children should be delayed till they are vaccinated.” After a frantic search, it emerged that this was yet another off-the-cuff remark. While encouraging the withdrawal of Amar Prem Prakash, the Court recognised that “…the court must be equally or even more careful because there is absence of data before us, absence of scientific knowledge on our part and also on the part of the petitioner who has moved the court.” On what basis then did the Supreme Court confidently say that small children must be vaccinated to attend in-person classes? Concern in the same hearing about economically weaker children’s access to online education came months too late.

The decision of the Delhi Disaster Management Authority (DDMA) to permit Delhi schools to open for all classes (on an optional basis with 50% capacity) with effect from November 1, 2021 unfortunately coincided with Delhi’s annual pollution season. During the hearing of Aditya Dubey (minor) & Anr. v. Union of India & Ors on November 13, 2021, the Court observed,

“You have opened all schools two weeks back, you are now witnessing children going to school and exposing their lungs & life to grave pollutants. Has Delhi government done anything to schools or they're still running?”

The Delhi government had to save face and within hours, Chief Minister Arvind Kejriwal announced that schools would be closed for a week “so children don't have to breathe polluted air”. Subsequent orders stated that schools would remain closed until further notice.

The Delhi government courageously opened schools on the same basis as earlier, effective November 29, 2021. However, the Court once again pulled it up for doing so, observing on December 2,

“…you told us schools are closed but it is not so. 3 to 4 year old children are being made to go to schools…We are serious about industrial and vehicular pollution. You cannot fire bullets from our shoulders, you have to take steps. Why are schools open?…We also have children and grandchildren.”

Within minutes, the Delhi government announced closure of schools until further orders, and we are back where we had started.

The adverse effects of prolonged school closure are well-documented. For example, a representation to the DDMA by the Delhi Commission for Protection of Child Rights asking for school reopening noted that 17% more grade 1 students could not read letters in 2020-21 compared to 2019-20; 92% of children on average have lost one specific language ability compared to the previous years; 80% of children aged 14-18 years reported lower learning levels compared to when schools were open; nearly 90% teachers reported no meaningful assessment of children’s learning takes place in online mode; and more than 80% teachers expressed inability to emotionally connect with children and vice-versa. Online education was extolled as the panacea to all problems, but only 25% of Delhi’s schoolchildren had access according to a survey conducted by LIRNEasia and Indian Council for Research on International Economics Relations (ICRIER) during the first lockdown in 2020.

As parents, we can see the impact of prolonged school closure in our own homes. And so, my question to the Supreme Court is – which children do they want to protect by closing schools for air pollution? The privileged few who either have air purifiers or can hop on a flight to Goa? For the vast majority, the air is the same at school and at home. In fact, some experts say indoor air could be worse. Consequently, school closure presents no significant health benefits to most school-going children in Delhi, who have suffered significantly from one of the longest pandemic-induced school closures in the world. Purification equipment cannot be installed in schools overnight. In the interim, wouldn’t it be better to let children attend school with parental consent and N95 masks, which the government could provide using public funds? If the concern is vehicular pollution, schools are currently allowed to run at 50% capacity in hybrid mode, which will reduce the extent of potential transport on the roads, thus reducing any public health benefits of closing schools.

There is a striking similarity between Amar Prem Prakash and Aditya Dubey – both petitions were filed on behalf of minors highlighting problems affecting them (and others). And yet, the reactions of the Supreme Court could not have been more different. In Amar Prem Prakash, the Supreme Court was unaware of copious media reports of learning and developmental losses due to prolonged school closures, unable to comment on the issue of reopening schools because it was “fraught with grave complexities” and advised that “Let us leave something to the government” on the basis that “sending children to schools is the most fundamental duty of the local authorities and they are very well aware of it.”

However, in Aditya Dubey, the Supreme Court was miraculously aware of adverse effects of air pollution on children’s health, and effortlessly criticised the decision of the Delhi government to open schools, thereby making school closure the easiest tick-in-the-box for Delhi authorities. The same Supreme Court that advised Amar Prem Prakash to focus on his studies instead of pursuing constitutional remedies, happily entertains a petition by another minor in the context of air pollution and does not trust state governments to take appropriate action. Why? Perhaps the Supreme Court feels that air pollution deserves their attention, given large-scale adverse effects and the Court’s historical relationship with the issue. Or maybe the reason is simpler. They can smell the smoke but cannot see adverse effects of prolonged school closures.

If the Supreme Court truly recognized the extreme costs of school closure for our children, they could have refrained from making off-the-cuff remarks in Amar Prem Prakash. If the Supreme Court truly recognized the extreme costs of air pollution for our children, they could have been proactive instead of reactive – they could have heard Aditya Dubey throughout the year, focusing on core sources of air pollution, instead of cracking the whip on an annual basis and forcing the Delhi government to indefinitely extend one of the longest school closures in the world.

The honourable judges of the Supreme Court of India sitting in Lutyens Delhi need to look beyond their privileged children and grandchildren.

Tanya Aggarwal (@tanya_aggarwal1) is a New Delhi-based lawyer and parent of a class 1 child. She is an alumnus of the National Law School of India University, Bengaluru, and Harvard Law School. Views are personal.