Assignment Submission

Continuous Evaluation – II

On the subject of

Constitutional Law I (2BL332)

Reflective Note-

Worsening Air quality disaster in capital: Article 21 at stake

https://www.indiatoday.in/news-analysis/story/delhi-air-pollution-real-cause-solutions-needed-2292841-
2022-11-03

Submitted By:- Sheetal Chundawat (21bal 238)

Guided By:-

Shriya Bhojwani

(Asst. Professor)

And

Sukrit Garg
"It is my aspiration that health finally will be seen not as a blessing to be wished for, but as a
human right to be fought for."

—United Nations Secretary-General Kofi Annan

INTRODUCTION
Human life and health are intimately linked to the condition and state of environment. A good
and clean environment provide fundamental mandatories of life- water, air, fertile land for food
generation and aids in production related to energy and other material inputs. Clean environment
also provide access to green and blue expanses that gives opportunity for recreation and fosters
mental and physical well-being. The peaceful existence of life is possible only when there exists
harmony between the ecosystem and the environment.1

Through the ages, humans have become much more capable of eliminating shackles of nature via
the development of science and technology, where humans have acquired a great deal to

transform its surrounding and make life easier and comfortable. But it has also resulted in
deterioration of our natural habitat to an unprecedented level. Toxins in their food and water
have exposed millions of residents of all socioeconomic backgrounds to lung and skin diseases,
water-borne illnesses, and congenital abnormalities, some of which may have originated
hundreds of kilometres away. Development, which was supposed to alleviate such problems, has
often increased them, especially by allowing the powerful sections of society to appropriate the
natural resources of poor and resource-dependent people.

ISSUE - THE DETERIORATING AIR QUALITY

The national capital of Delhi is grappling with yet another year of intense pollution that has sent
the Air Quality Index plummeting. The pollution has made the air of New Delhi and the
surrounding regions unbreathable. The toxic air poses multiple severe health complications to
those who are breathing it, including children, adults, elderly, and also animals. The sources of
pollution majorly persist in the capital itself and are of major concern. Stubble burning is an
important factor in deterioration of air quality in Delhi. As air quality hovers between the "very
poor" and "severe" categories, nearly 18 per cent of people indicated that they or their family
members had already visited a doctor or hospital and as a result many petitions have been filed in

1
Dr.G. Indira Priya Darsini & Prof. K. Uma Devi, Article 21 of Indian Constitution- A Mandate To Pollution Free
Environment, https://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-Free-Environment.html ,
last accessed 20 Nov 2022
the Supreme Court. The main issues that petitioners raised was violation of right to pollution free
environment and right to education of children conferred under article 21.

ARTICLE 21 AND RIGHT TO POLLUTION FREE ENVIRONMENT

Article 21 of the Indian Constitution states: 'No person shall be deprived of his life or personal
liberty except according to procedures established by law.' Article 21 is the core of fundamental
rights. It seems short in words but speaks the most, it is the most expansive in meaning out of all
other fundamental rights. Through the ages the ambit of article 21 is covering more and more,
here the right to life includes right to health, right to food, right to pollution free environment,
etc. In simple words, Article 21 provides an intrinsic assurance to a person for right to live with
human dignity. Right to clean and healthy environment is a fundamental right incorporated in
article 21 because deterioration of environment directly endangers life therefore owing the duty
upon the state to protect the same. Link between environmental quality and the right to life was
first addressed by a constitutional bench of the Supreme Court in the Charan Lal Sahu Case 2 In
1991, the Supreme Court interpreted the right to life guaranteed by article 21 of the Constitution

to include the right to a wholesome environment . Along with this children’s right to education is
infringed for a temporary period of time as the Delhi government announced for shutting down
of primary schools in the territory.

PERSON OF INHERENCE AND PERSON OF INCIDENCE

Person of inherence is a person who has a legal right that can be exercised against another,
whereas person of incidence is a person against whom a legal right can be enforced or upon
whom a correlative duty falls.

In this scenario the people of Delhi have the fundamental right of life against the state making
them the person of inherence and state becomes the person of incidence as the right is being
exercised the state. But in the given case any person who inflicts danger upon right to life of
other person or violates there right to pollution free environment by taking up such person
becomes the person of incidence as now the same duty as state lies upon that person the protect
other people’s right.
2
Charan Lal Sahu vs Union of India, 1990 AIR 1480,1989 SCR Supl.(2)
ARGUMENTS ADVANCED

The United Nations Human Rights Council passed a resolution recognizing the human right to a
clean, healthy, and sustainable environment as a fundamental human right. While this right is
already recognized in over 150 national jurisdictions, its international recognition opens the door
to its successful incorporation into international law and stronger domestic implementation.

Right to healthy environment was first addressed by 1972 Stockholm Declaration. Its first
Principle states: “Man has the fundamental right to freedom, equality and adequate conditions of
life, in an environment of a quality that permits a life of dignity and well-being”.

In India, the right to life has been exercised in a variety of ways. These rights have been
implicitly recognized as constitutional rights in India. The right to a healthy environment has
been incorporated, either directly or indirectly, into court decisions. As a result, it is clear that
article 21 has multiple interpretations. Any arbitrary, whimsical, or fanciful act by any state
depriving life or personal liberty would be a violation of Article 21 of the Indian constitution.

In Subash Kumar3, the Court observed that 'right to life guaranteed by article 21 includes the
right of enjoyment of pollution-free water and air for full enjoyment of life. Through this case,
the court recognized the right to a wholesome environment as part of the fundamental right to
life. 

The industries in Delhi are one of the major concerns for polluting the air and impacting the
health of its people. The Supreme Court held in Vellore Citizens Welfare Forum vs. Union of
India, AIR 1996 SC 2715, that industries are important for the country's development, but due to
pollution caused by them, the principle of 'Sustainable Development' must be used as a balancing
concept. The 'Precautionary Principle' and the 'Polluter Pays Principle' have been accepted as
part of the country's legal system.4

According to a scientific study cited by the government in the Supreme Court, agricultural
burning contributes only 4% and 7% of PM 2.5 and PM10 in the winter and summer,
respectively.

3
Subhash Kumar v. State of Bihar (AIR 1991 SC 420/ 1991 (1) SCC 598
4
Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715
The aftermath of stubble burning on Delhi's air quality is affected not only by the amount of
biomass burned in Punjab and Haryana, but also by a combination of high wind speed at
intrusion height, wind direction, and air residence time in the Delhi airshed, according to the
paper published in the international journal Science of the Total Environment 5

CONCLUSION

The deterioration of air quality in Delhi due to multiple reasons has taken a different pace over
the years and is impacting the health of people of Delhi-NCR is many ways. Schools are shut
down , children’s health is at stake. People have complete right of pollution free environment
and proper health. The basic element fundamental to living organisms when gets toxic it raises
many questions on the citizen fundamental duties as well as state actions where they cannot
keep up the most necessary thing capable of enjoying. Healthy living environment is an integral
part of article 21 every individual is entitled to have a clean air to breathe in. It is a right in rem
and is available against everyone but the state has the obligation to enforce this right the duty
under article 21 lies down on state to provide for a healthy living conditions to every individual
in its territory.

5
Gufran Beig, Saroj K. Sahu, Vikas Singh, Suvarna Tikle, Sandeepan B. Sobhana, Prashant Gargeva, K. Ramakrishna,
Aditi Rathod, B.S. Murthy, Objective evaluation of stubble emission of North India and quantifying its impact on air
quality of Delhi, Science of The Total Environment, Volume 709,2020