Air Pollution A Silent Killer, Multi-Sectoral Challenge In India: Kerala High Court

The Kerala High Court on Wednesday emphasised the gravity of air pollution in the country and how it poses a multi-jurisdictional and multi-sectoral challenge for the Centre and the State alike. 

Justice N. Nagaresh observed that air pollution is a silent killer that impacts public health as well as the national economy detrimentally. 

"Air Pollution is a silent killer. The air pollution levels in India are considered as high. Exposure to Particulate Matter 2.5 can cause deadly illnesses like lung cancer, stroke and heart diseases. The health impacts of pollution have a cost on the Nation's economy also. Sectors such as Agriculture, Industry, Power, households and Transport, all contribute to Particulate Matter emission."

The Single Bench added that all the concerned stakeholders were relentlessly working on tackling the challenge. 

"The air pollution challenge in India is multi-sectoral and multi-jurisdictional. The Union and States and the Central and State Pollution Control Boards are taking on the challenge in all possible ways."

The Court was adjudicating upon a plea moved by Vodafone Idea, a licensed Telecom Service Provider seeking to direct the State Pollution Control Board not to implement any restrictive orders on the operation of Diesel Generator (DG) sets without specific direction in writing from the Centre. 

The petitioner rendered service through Telecom Towers using technically hybrid Switching Centres across the State which run on the energy provided by the Kerala State Electricity Board (KSEB).

To avoid any service break in case of failure of KSEB power supply, the petitioner has deployed hybrid and high-quality DG sets which are below par emission levels. 

Meanwhile, State Pollution Control Board issued an order in 2020 mandating deduction of emissions by 30% of DG sets above 500 KVA. The order did not specify any specific unit with respect to the concentration and the level to which emission concentration needs to be contained.

Challenging this order as one issued without application of mind, the petitioner approached the High Court. 

Advocates P. Sathisan and Dona Augustine appeared for the petitioner and argued that the restrictions for using certain industrial plants under Section 21 of the Air (Prevention and Control of Pollution) Act will not apply to them since they can't be treated as an 'industrial plant' under Section 2(k).

It was further submitted that a direction from the Centre is an essential prerequisite for issuance of any directions like the impugned order, which was not present in this case. The petitioner added that prescribing a uniform level for emission without any reference to the capacity, vintage and manufacturing qualities of the DG sets creates imbroglios and implementation of the order has become an impossibility.

However, Standing Counsel T. Naveen appeared for the Pollution Control Board and argued emissions from the DG sets are considered a major contributor to particulate matter in the atmosphere which has to be reduced to meet the target set by the National Clean Air Programme (NCAP).

It was also pointed out that the Board was a statutory body vested with comprehensive powers to prevent, control and abate air and water pollution. No provision contemplated that the State Board can function only if there is a direction issued by the Centre or State.

Central Government Counsel M. Jayakrishnan Vazhoor appeared for the Centre.

The Court found force in the contentions raised by the respondents. The NCAP Plan was for national level target of a 30% reduction of PM 2.5 and PM 10 concentration in the ambient air.

The National Green Tribunal observed that the timeline to reduce air pollution by 30% needs to be reduced and the target of reduction needs to be increased, considering the adverse effect on public health.

It was for this reason that the State Pollution Control Board gave certain directions to all industries and establishments operating DG sets of capacity 500 KVA and above.

The Court added that such a move was necessary considering the gravity of the matter. 

"In India, Diesel Generators are widely used for continuous power backup. When diesel burns, it emits unburned hydrocarbons, carbon monoxide, nitrogen oxides or Particulate Matters (PM) into the air. According to the World Health Organisation, the safety limits of these Particulate Matter is 23 micrograms per cubic metre. DG sets cause the density to increase up to 300 micrograms per cubic metre."

Further, it was observed that the State Pollution Control Boards were empowered to do such acts for the proper discharge of their functions.

The Bench added that the State Boards were empowered to impose more stringent conditions over and above the basic norms by the Centre or the Central Pollution Control Board.

"It has to be kept in mind that emission of Particulate Matter, however little it may be, is harmful to Public Health. The order of the State Board is to retrofit emission control devices with Particulate Matter capturing efficiency of at least 70%."

While finding that there is no ambiguity in the percentage of emission sought to be controlled, the Court observed that the industries using DG sets are given options to reduce polluting emissions, retrofitting being only one of them.

The Single Bench therefore found the initiative to be an appreciated move by the State Pollution Control Board.

"Improvement of Public Health is a Directive to the State under Article 47 of the Constitution. Ext.P5 Order therefore is intended to achieve a laudable objective. It does not violate any of the fundamental or statutory rights of the petitioner."

The writ petition was therefore dismissed as devoid of merits. 

Case Title: M/s Vodafone Idea Ltd v. Kerala State Pollution Control Board & Ors. 

Citation: 2022 LiveLaw (Ker) 429

Click Here To Read/Download The Order