Context

• Air pollution in Delhi’s National Capital Region (NCR) has reached critical levels, with vehicular emissions being the dominant contributor to fine particulate matter (PM2.5) and toxic gases such as carbon monoxide, benzene, and nitrogen oxides.
• Despite this, responsibility for Delhi’s worsening air quality has frequently been placed on seasonal stubble burning by farmers in neighbouring Punjab and Haryana.
• This selective attribution obscures the complex, multi-source nature of air pollution and raises concerns regarding fairness and accuracy in environmental liability.

The Polluter Pays Principle and Its Legal Foundations

• The Polluter Pays Principle (PPP) assigns the cost of environmental damage to those responsible for pollution.
• In Vellore Citizens Welfare Forum v. Union of India (1996), the Supreme Court recognised PPP as part of Indian law, later reinforcing it through statutory recognition under the National Green Tribunal Act, 2010.
• PPP aims to internalise environmental costs and prevent polluters from externalising harm onto society.
• However, PPP faces serious limitations in cases involving multiple point and non-point pollution sources.
• Air pollution, unlike land or water pollution, is diffuse, cumulative, and often transboundary.
• Determining precise causal links becomes difficult, weakening the effectiveness of PPP when applied in isolation and without coordinated inter-state or regional mechanisms. 

Proportionality and the Limits of Farmer Liability

• The Standley judgment (European Court of Justice, 1999) introduced proportionality in pollution liability, holding that liability must correspond to actual contribution.
• In that case, farmers challenged restrictions imposed under the EU Nitrates Directive, arguing that industrial pollution was also responsible for nitrate contamination.
• The Court accepted that imposing disproportionate liability violated fairness principles embedded within PPP.
• Applying this reasoning to India, seasonal stubble burning cannot be held singularly or excessively responsible for Delhi’s air pollution when vehicular and industrial emissions account for a substantial share.
• Assigning blame without proportional assessment undermines both legal integrity and environmental justice.

Transboundary Air Pollution and International Precedents

• Air pollution is increasingly recognised as a regional and global phenomenon rather than a purely local issue.
• The Trail Smelter Arbitration (1941) established that states are responsible for environmental harm caused beyond their borders.
• Scientific research, including findings by Q. Zhang et al. (2017), demonstrates that PM2.5 pollution linked to international trade produces significant transboundary health impacts, often exceeding those caused by atmospheric transport alone.
• International agreements reinforce this understanding. The Convention on Long-Range Transboundary Air Pollution (CLRTAP, 1979) and the ASEAN Agreement on Transboundary Haze Pollution (2002) recognise long-distance pollution movement.
• The 2012 amendment to the Gothenburg Protocol explicitly included PM2.5, confirming its capacity for long-range dispersion.
• These developments highlight the inadequacy of addressing air pollution solely through localised liability frameworks.

From Polluter Pays to Government Pays: The Indian Experience

• Despite formal recognition of PPP, Indian courts have struggled to operationalise it effectively.
• In cases such as Indian Council for Enviro-Legal Action, Vellore Citizens Welfare Forum, and S. Jagannath, the judiciary prioritised compensation for victims and environmental restoration over precise cost internalisation by polluters.
• This approach aligns more closely with corrective justice over cost internalisation.
• Consequently, India has witnessed a gradual shift towards a government-pays model.
• Through the Water Act (1974), Air Act (1981), Environment Protection Act (1986), and constitutional mandates under Articles 48A and 51A(g), the state has assumed primary responsibility for environmental regulation.
• Specialised authorities possess extensive powers, including industry closure and enforcement directives.

The Role of an Activist Judiciary and Its Limitations

• Regulatory authorities frequently suffer from administrative inefficiencies, prompting an increasingly activist judiciary to intervene.
• Courts often require governments to bear the primary costs of pollution monitoring and control, while polluter liability is imposed secondarily.
• This judicial stance reflects judicial welfarism protecting vulnerable victims, recognising that affected populations often lack the resources to litigate against polluters.
• While this approach enhances access to environmental justice, it weakens the deterrent function of PPP.
• Pollution prevention costs remain inadequately internalised, and long-term accountability is diluted.
• Moreover, environmental discourse in India continues to emphasise rights over duties, with limited engagement on individual environmental responsibility.

Conclusion

• Delhi’s air pollution crisis exposes the shortcomings of simplistic blame narratives and the limitations of unilateral liability frameworks.
• While PPP remains a cornerstone of environmental law, its effective application requires proportionality, scientific attribution, and regional cooperation.
• India’s reliance on a government-pays approach and judicial intervention provides immediate relief but undermines sustained accountability.
• A balanced framework integrating PPP, administrative efficiency, transboundary cooperation, and individual responsibility is essential for durable environmental justice and improved air quality governance.