Despite desperately toxic air and powerful anti-pollution legislation, not a single case has been taken up against polluters in India’s capital

By Kumar Sambhav Shrivastava for Scroll.in

Not a single case was filed against polluting industries in Delhi between 2014 and 2016 even as the city’s air quality kept worsening, data released recently by the government shows.

Industrial units are majorly responsible for the rising levels of sulphur and nitrogen oxides as well as the pollutant particles PM 2.5 and PM 2.10 in Delhi air’s. Yet, not one has been prosecuted or fined under the Air (Prevention and Control of Pollution) Act, 1981.

The act empowers state pollution control boards to take industries to court for violations such as exceeding the permissible emission limits or not installing the mandated pollution control equipment. If the offence is proved, the court can punish the managers of the industries with up to six years in prison, along with a fine.

Latest data released by the National Crime Records Bureau on 30 November shows that only 25 cases under the act were registered across India last year – 21 in Maharashtra and two each in Uttar Pradesh and Jharkhand. At least 35 people were arrested and 72 chargesheeted in these cases.

In 2014 and 2015, a total of 98 cases related to violation of the Air Pollution Act were filed – 55 in Maharashtra, 27 in Bengal, 10 in Rajasthan, five in Jharkhand and one in Karnataka – and 210 people arrested.

But Delhi, despite having the dubious distinction of being one of the world’s most polluted cities and with a clutch of polluting industries operating in it, hasn’t found any case of violation of the act.

“The pollution control boards do not want to initiate any legal action,” the environment lawyer Ritwick Dutta said. “This is the reason we haven’t seen substantial improvement in the city’s air quality for years. Everything that is being done at the policy level is that broad guidelines are being issued. Where are the legal actions against the polluters for violating the law?”

This situation will change only when the violators are taken to court, Dutta added.

Delhi has two power plants, at least 20 big factories – with smokestacks more than 20 metres high – and about 25 clusters of small industries, many close to residential areas. According to a study by the Indian Institute of Technology, Kanpur, industrial units and thermal power plants account for almost 98% of sulphur oxide and 60% of nitrogen oxide emitted into Delhi’s air everyday.

The Delhi Pollution Control Committee, which is responsible for implementing the Air Act in the city, did not respond to queries emailed by Scroll.in.

That the Air Act has been poorly implemented since it was enacted over three and a half decades ago is hardly a secret. The law established central and state pollution control boards, and empowered them to impose emissions standards on industries and act against polluters. In fact, the law requires industries to take “consent to establish” and “consent to operate” from the state pollution control boards before starting operations.

However, various reviews of environmental laws show that the boards have limited their role to giving consent to establish and to operate industries. They barely monitor compliance with the standards or take legal action against the violators. But why?

“An officer authorised by the state pollution control boards has to file the case in the magistrate’s court,” said Shibani Ghosh, an environmental lawyer and a fellow at the Centre for Policy Research. “Like other criminal cases, these cases go on for very long, sometimes even over decades. The boards have limited resources, personnel and time and that’s why they are not interested in filing and pursuing these cases.”

In a 2015 paper titled “Reforming the Liability Regime for Air Pollution in India”, Ghosh wrote: “One of the main reasons why the current criminal liability regime has failed is that the overwhelming pendency in the courts, and the procedural hurdles of proving a case beyond reasonable doubt negated any fear of penal action. Non-compliance does not come at a very high cost; and regulated entities are willing to take the (minuscule) risk. This tendency needs to be reversed.”

While the National Crime Records Bureau’s data shows authorities across the country have little interest in filing cases against polluters, the authorities in Delhi seem particularly uninterested. A major violation of the Air Pollution Act occurs when industries exceed the emission standards.

Yet, as Scroll.in reported last month, the government has been sitting on the emission standards for major industries operating in Delhi for years. This is quite convenient for the polluters: with no standards in place, the question of violating them does not arise.

This article was originally published on Scroll.in.