Reforming the Liability Regime for Air Pollution in India

The recent uproar about the toxic levels of pollution in the country’s national capital region has once again brought to fore the failure of the regulatory and legal mechanisms in India to control air pollution. Despite an early legislative acknowledgment of the issues relating to air pollution, and regulatory mechanisms set up consequently, India has not been able to restrict the sharp upward trajectory of air pollution. While several issues with regard to the legal and regulatory regime governing air quality in the country deserve serious and urgent consideration, this paper focuses on one issue in particular – the liability regime for violation of air quality standards. The paper is divided into three parts. The first part discusses the relevant provisions of the law pertaining to liability - civil and criminal - for causing air pollution. The second part identifies three critical issues that have emerged in the current liability regime: (1) the Pollution Control Boards do not have the power to levy penalties; (2) criminal prosecution is not an effective solution; and (3) the National Green Tribunal Act does not provide complete relief. The third and final part of the essay proposes a way forward. It is suggested that the Pollution Control Boards need to be granted additional enforcement powers, and administrative fines for violations should be introduced, albeit with certain conditions.