[Tryst with the Constitution] Judicial orders and firecrackers: Rethinking the constitutional response to pollution

The months of October and November herald the celebration of Dussehra and Diwali and, almost ritualistically, the return of Supreme Court orders addressing Delhi’s pollution crisis and their equally predictable non-compliance.

As Diwali approaches this weekend, a familiar sequence appears poised to unfold once again. The Court’s recent remarks hinting at the permission to use “green crackers” while reiterating earlier prohibitions on conventional ones reflects an annual rhythm of judicial direction, administrative uncertainty and public indifference. In fairness, both the Union and State governments have, in recent years, initiated measures to coordinate their responses to Delhi’s air crisis. Yet, the persistence of winter smog suggests that these efforts have not translated into lasting institutional solutions.

What began as a legitimate concern for public health has gradually evolved into a pattern of ad hoc judicial governance. Each year, even before the festival lights the sky, the debate on air quality reignites in courtrooms and on television screens. While the Court’s interventions have been guided by the recognition of a fundamental right to a clean environment, they have also revealed the limits of adjudication in disputes that are polycentric, dynamic and dependent on executive coordination. The regulation of pollution, particularly in a federal polity, demands cooperation among multiple authorities rather than judicial fiat.

The Supreme Court’s concern with environmental degradation is not new. Beginning with its judgment in MC Mehta v. Union of India (Oleum Gas Leak case), the Court expanded the ambit of Article 21 to include the right to live in a clean environment and reiterated its importance time and again. In Arjun Gopal v. Union of India (2017), responding to petitions concerning the harmful effects of fireworks, the Court imposed a comprehensive ban on their sale in Delhi-NCR, followed by partial relaxations in subsequent orders. The 2018 judgment in this case introduced the concept of “green crackers”, and restricted firecracker use to specific hours. The Court’s directions were wide-ranging - spanning from regulating imports and manufacturing to prescribing chemical composition and duration of use. Yet, despite the judicial energy invested in this cause, Delhi continues to rank among the world’s most polluted cities each winter.

This persistence of this crisis despite sustained judicial engagement underscores the limits of adjudication. Pollution control does not lend itself easily to binary outcomes or command-based enforcement. It requires continuous, coordinated and technically informed decision-making among Union, State, and local authorities - something no court can substitute. Further, the enforcement of these directions lies with the executive, whose failure to ensure compliance often renders judicial orders ineffectual. A striking example is the recurring violation of the restricted hours during which firecrackers are permitted to be burst, despite explicit judicial mandates. The Court itself has occasionally acknowledged these limits, noting that its role is confined to ensuring compliance with the law and the Constitution, not to formulating or executing policy.

A recurring issue is the timing of intervention. The question of bans or relaxations resurfaces only months before Diwali, rendering compliance logistically unviable. By the time orders are passed, firecrackers have been manufactured, distributed and sold, and enforcement agencies find themselves unable to operationalise prohibitions.

To their credit, the governments of Delhi, Haryana and Uttar Pradesh have in recent years undertaken coordinated action under the Graded Response Action Plan (GRAP) and the supervision of the Commission for Air Quality Management (CAQM). These efforts - ranging from region-wide alerts to restrictions on vehicular emissions and stubble burning - reflect an awareness that pollution transcends administrative boundaries. Yet, they remain episodic and reactive. Coordination typically intensifies only once air quality has deteriorated, rather than functioning as a continuous governance mechanism. The result is a recurring cycle of fragmented enforcement and mutual recrimination - most evident during the stubble-burning season, when neighboring states trade responsibility for NCR’s toxic air.

This pattern reflects a broader constitutional challenge - one that demands vertical cooperation between the Union and the states and horizontal coordination among states themselves. The structure of environmental governance in India presupposes such collaboration, as air and water pollution seldom respect administrative boundaries. Yet, practice often falls short of this constitutional design. The absence of a stable institutional framework for joint accountability leaves coordination dependent on ad hoc political will.

At its core, this difficulty highlights the limits of India’s federalism, which has often operated in silos rather than as a collaborative enterprise. The Constitution’s vision of environmental governance was never adversarial, but cooperative. Article 48A obligates the State to protect and improve the environment, while Article 51A(g) enjoins every citizen to do the same -together reflecting a constitutional ethic of shared responsibility between the Union and the States, and among institutions and citizens. When this federal partnership weakens, constitutional duties risk being reduced to aspirations.

What is required, therefore, is not a watertight functioning of institutions within their respective spheres, but a model of governance grounded in coordination and complementarity. Just as contemporary debates on the separation of powers have shifted from a strict demarcation of functions to an emphasis on coordination (inter-institutional comity) and control, federal relations too must evolve toward cooperative engagement rather than competitive assertion.

Judicial intervention was intended to revive this collaboration, not replace it. Yet, in seeking to fill the vacuum left by executive inaction, the Court has increasingly assumed a coordinating role, producing what may be described as institutional substitution - where judicial directives take the place of cooperative governance. When governance turns into an annual cycle of contempt petitions and compliance reports, it exposes the inaction of the executive and the limits of judicial intervention. The failure to protect public health and ensure clean air thus reflects not only administrative incapacity but a breakdown of the cooperative federal model expected under the Constitution.

A sustainable response must move beyond judicial decrees towards genuine inter-governmental collaboration. Delhi’s air cannot be cleaned through contempt proceedings; it requires political consensus, administrative coordination and public participation. The Union and State governments must jointly frame enforceable standards, allocate fiscal resources and strengthen municipal capacity, while the judiciary confines itself to ensuring transparency and accountability. This is not a plea for judicial restraint alone, but for institutional maturity. The governments of Delhi, Haryana and Uttar Pradesh have shown willingness to act in recent years, yet the scale of the problem demands greater coherence and continuity than seasonal coordination can deliver.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.