Why Delhi’s Winter Smog Is Not Just a Policy Failure, but a Constitutional Question

Every winter, Delhi wakes up to a familiar but devastating reality — dense smog, hazardous air quality, and a public health emergency that paralyses daily life. Work-from-home advisories and hybrid classes offer limited relief as toxic air continues to envelop not just the national capital but also the surrounding National Capital Region (NCR). Beyond administrative measures, the crisis increasingly raises a deeper question: does the Indian Constitution already recognise clean air as a fundamental right, and if so, are current responses adequate?

Why particulate matter makes Delhi’s air uniquely lethal

Air pollution has multiple sources — fossil fuel combustion, vehicular emissions, industrial activity, construction dust, waste burning, and agricultural residue. Among these, particulate matter poses the gravest threat to human health.

Particles smaller than 10 microns (PM10) can penetrate the respiratory system, while fine particulate matter below 2.5 microns (PM2.5) enters the bloodstream, triggering strokes, heart disease, lung cancer, and chronic respiratory disorders. Diesel Particulate Matter (DPM), often less than 1 micron in size, is especially dangerous, with proven long-term impacts on children’s cognitive and physical development.

It is this invisible toxicity, rather than visibility alone, that makes Delhi’s winter air a public health catastrophe.

GRAP, CAQM and the tightening of emergency responses

Recognising the recurring severity of pollution episodes, the Commission for Air Quality Management has amended the Graded Response Action Plan (GRAP). Under Phases 3 and 4, school closures in Delhi and NCR districts are now mandatory rather than discretionary. State governments are also required to stagger office and municipal working hours to reduce peak emissions.

These measures mark a shift from advisory governance to enforceable interventions. Yet, they remain reactive — triggered only after air quality deteriorates — rather than preventive solutions addressing the root causes of pollution.

How the Constitution came to recognise environmental rights

India’s original Constitution did not explicitly mention environmental protection. However, constitutional interpretation gradually bridged this gap. In Maneka Gandhi v. Union of India, the Supreme Court expanded the scope of Article 21, holding that the right to life means more than mere animal existence.

This interpretation paved the way for recognising a clean environment as intrinsic to life and dignity. Subsequent constitutional amendments inserted Article 48A, obligating the State to protect the environment, and Article 51A(g), imposing a corresponding duty on citizens.

Judicial expansion of the right to clean air and water

The Court decisively linked environmental protection with fundamental rights in Subhash Kumar v. State of Bihar, holding that the State is constitutionally bound to ensure pollution-free air and water. Earlier, in Rural Litigation and Entitlement Kendra v. State of U.P., environmental degradation was recognised as a violation of the right to life.

This jurisprudence culminated in M.C. Mehta v. Union of India, where the Supreme Court unequivocally declared that the right to live in a pollution-free environment is part of Article 21.

Disasters, liability and the evolution of environmental principles

Environmental disasters accelerated doctrinal innovation. After the Oleum Gas Leak case, the Court introduced the principle of absolute liability for industries handling hazardous substances — imposing responsibility regardless of fault.

Two other principles became cornerstones of Indian environmental law: the precautionary principle and the polluter pays principle, elaborated in Vellore Citizens’ Welfare Forum v. Union of India. These doctrines reject the argument that development must precede environmental protection, instead mandating sustainable development as a constitutional obligation.

The public trust doctrine and state accountability

The public trust doctrine further deepened constitutional responsibility. In M.C. Mehta v. Kamal Nath, the Court held that natural resources are held by the State in trust for the public and cannot be exploited for private gain.

This principle flows from Directive Principles such as Article 39(b) and (c), which emphasise community ownership of resources and prevention of economic concentration. The doctrine was reaffirmed in cases like Radhey Shyam Sahu, where public parks were held to be part of the citizens’ right to life.

Climate change and the expanding scope of Article 21

The Supreme Court has continued to expand environmental rights. In M. K. Ranjitsinh v. Union of India, it recognised the right against adverse effects of climate change as part of Article 21, read with Article 14’s guarantee of equality.

This judgment signals that environmental harm — including chronic air pollution — is no longer merely a policy issue but a constitutional concern demanding proactive governance.

Why India may need an explicit constitutional right to a healthy environment

Despite robust judicial interpretation, environmental rights in India remain indirectly enforceable — contingent on their linkage to existing fundamental rights. This often allows executive hesitation and fragmented accountability.

Delhi’s annual air crisis exposes this limitation. Administrative advisories, emergency school closures, and short-term restrictions cannot substitute for a clear, enforceable constitutional guarantee. Explicitly recognising the right to a clean and healthy environment would clarify State obligations, strengthen citizen claims, and align constitutional text with decades of judicial doctrine.

As winter smog returns year after year, the question is no longer whether clean air is a constitutional right — the courts have answered that. The unresolved issue is whether the Constitution should now say so unambiguously.