Transboundary Air Pollution And Human Rights Obligations Of States - An Indian Perspective

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:36:19.834Z

Updated: 2026-08-30T07:12:13.344Z

TRANSBOUNDARY AIR POLLUTION AND HUMAN RIGHTS

OBLIGATIONS OF STATES: AN INDIAN PERSPECTIVE Taniya Sunu, VIT School of Law, Chennai. Dr. Arun D Raj, Professor, VIT School of Law, Chennai.

ABSTRACT

Transboundary air pollution poses a significant and real threat to environmental sustainability and public health, particularly in regions such as South Asia, where political boundaries often intersect with shared airsheds. This paper explores the phenomenon of transboundary air pollution from an Indian perspective, focusing on its implications for human rights and the legal obligations of States and examines the intersection of environmental degradation and fundamental rights, such as the right to life and health, through a detailed analysis of international treaties, constitutional provisions, national environmental laws, and judicial decisions. The paper highlights the limitations of India's current legal framework in addressing pollution originating outside its borders and calls for the integration of a rights-based, regionally coordinated approach to air quality management.

Based on a public perception survey, an empirical component reveals low awareness but strong support for legal reforms and regional cooperation. The study concludes by providing practical recommendations for legal, institutional, and diplomatic reforms aimed at strengthening India's response to transboundary air pollution while fulfilling its human rights commitments. This research contributes to the debate on environmental justice and regional governance by connecting doctrinal analysis with public opinion and policy reform. Keywords: Transboundary air pollution, human rights, environmental law, India, regional cooperation, environmental justice

1 INTRODUCTION

It has long been known that air pollution poses a risk to human health. David Fowler et al. examines the history of air pollution and its related impacts in their paper "A chronology of global air quality," which was published in Philosophical Transactions of the Royal Society A: Mathematical, Physical, and Engineering Sciences. They claim that as early as the time of Hippocrates, around 400 BC, a number of written records mention air pollution in one form or another. 1 True investigation of the problem, however, didn't start until much later. 2 Nine of the ten cities with the worst air pollution are located in South Asia, and concentrations of fine particulate matter (PM 2.

5) in some of the most impoverished and densely populated areas of the region are up to 20 times higher than what the WHO considers healthy (5 μg/mʒ) (Striving for Clean Air: Air Pollution and Public Health in South Asia, n. d. ). The Indo- Gangetic Plains, which span across Pakistan, India, Nepal, and Bangladesh, are arguably the most striking example of how transboundary air pollution is a significant challenge that negatively impacts the population over a vast region as pollution spills from one country to another and, within a country, from one state to the neighbouring ones. 3 Therefore, India's air pollution problem is essentially multi-sectoral and multi-jurisdictional, necessitating an "airshed" strategy. A region with a common air flow that may become consistently polluted and stagnant is known as an airshed.

An airshed's pollution sources will have a major impact on the quality of the air inside it. Airsheds can span several hundred kilometres, well beyond the borders of cities and even countries, due to the fact that secondary particle creation and primary and secondary particle transport occur over vast geographic areas. 4 Therefore, in order to implement successful air pollution control policies and use a new set of instruments for airshed-based management, India must look beyond its cities and operate at the subnational and regional levels.

1 D. Fowler et al., A Chronology of Global Air Quality, 378 PHIL. TRANSACTIONS ROYAL SOC’Y A

20190314 (2020) https://royalsocietypublishing.org/doi/10.1098/rsta.2019.0314

K.

Berryman, What is Transboundary Air Pollution?,

PURPLEAIR (Apr. 17, 2025), https://www2.purpleair.com/blogs/blog-home/what-is-transboundary-air-pollution. 3 Sunil Dahiya, Together for Clean Air: Governance of Transboundary Air Pollution for Blue Skies (Ctr. for Research on Energy and Clean Air, Sept. 7, 2023), https://energyandcleanair.org/together-for-clean-airgovernance-of-transboundary-air-pollution-for-blue-skies. WORLD BANK GRP., How is India Trying to Address Air Pollution? (2025), https://www.worldbank.org/en/country/india/publication/catalyzing-clean-air-in-india.

The paper begins by examining the concept of transboundary air pollution and how it affects human rights, followed by an analysis of international and domestic legal frameworks. There is a detailed study of the impact of air pollution on vulnerable groups and an empirical survey on public perception, leading to policy recommendations and conclusions.

2. RESEARCH

OBJECTIVES

1. To examine the concept of transboundary air pollution and its relevance in the Indian

context, particularly how it impacts public health and the environment.

2. To explore the link between air pollution and human rights, including how poor air

quality can infringe upon rights such as the right to life and health.

3. To assess India’s international and constitutional obligations in addressing

transboundary environmental harm.

4. To critically analyze India's domestic legal and policy framework related to air pollution

and evaluate its effectiveness in addressing transboundary dimensions.

5. To understand public awareness and perception of transboundary air pollution and its

human rights implications through empirical data.

6. To propose recommendations for legal, institutional, and diplomatic reforms that align

with international best practices and human rights standards.

3. STATEMENT OF THE PROBLEM

Transboundary air pollution has become an increasingly pressing problem in South Asia, particularly in India, where pollutants from neighboring countries—and vice versa—seriously affect air quality and public health. Despite this, India's domestic legal framework continues to focus mainly on domestic sources of pollution, and lacks robust mechanisms to address transboundary environmental damage. Furthermore, while international law establishes certain principles and obligations regarding transboundary environmental damage and the right to a clean environment, their implementation and cooperation at the regional level continues to be limited.

The absence of a clear legal approach to managing transboundary air pollution in India, when coupled with low public awareness and weak regional coordination, underscores the need for a more integrated, rights-based, and cooperative legal and policy framework.

4. SIGNIFICANCE OF THE STUDY

This study is significant because it bridges the gap between environmental law, international human rights principles, and regional environmental governance with a focus on India. By analyzing both the doctrinal legal framework and empirical public perception, it offers a comprehensive understanding of how transboundary air pollution infringes upon fundamental rights and exposes legal and institutional shortcomings. The findings not only highlight the need for stronger national legal reforms but also emphasize the importance of regional cooperation in South Asia. The study is particularly relevant in the context of the growing air quality crises and their disproportionate effects on vulnerable populations. Its recommendations offer a way forward for India to align its environmental governance with international obligations, constitutional principles, and the realities of its citizens.

5.

RESEARCH

METHODOLOGY

This research followed a mixed-method approach, combining doctrinal and empirical methods to study transboundary air pollution and state human rights obligations, focusing on India. The doctrinal component involved analysing relevant international treaties, Indian constitutional provisions, environmental laws, judicial decisions, and academic literature to understand the legal framework surrounding the issue. At the same time, an empirical survey was conducted to better understand public awareness and perception. A structured questionnaire consisting of ten questions was distributed, and 28 responses were collected from individuals across different age groups. The objective was to understand how citizens perceive the impact of transboundary air pollution, its link to human rights, and their assessment of the effectiveness of current policies.

The combination of legal analysis and public opinion provided a comprehensive understanding of the topic, highlighting not only the legal aspects but also the level of awareness and concern among citizens.

6 SCOPE

AND LIMITATIONS OF THE STUDY This paper focuses on the issue of transboundary air pollution and the corresponding human rights obligations of States, with a focus on India. It explores the concept of transboundary air pollution, its sources, and its health impacts, especially in the Indo-Gangetic Plain. The study analyzes India's constitutional provisions, its domestic environmental legislation, judicial interpretations, and international obligations arising from treaties and declarations such as the Stockholm Declaration, the Paris Agreement, and the ICESCR. It also incorporates a brief empirical analysis based on public perceptions to assess awareness and support for possible reforms.

Through this combined approach of doctrinal and empirical studies, the paper seeks to assess the adequacy of India's legal and policy frameworks and propose recommendations to strengthen transboundary cooperation, law enforcement, and rights-based environmental governance. While the article attempts to provide a comprehensive overview, it faces several limitations. Firstly, the empirical analysis is based on a relatively small sample of 28 respondents, which may not fully represent the Indian population at large. Second, the study focuses mainly on legal and policy frameworks and does not explore the technical or scientific aspects of pollution transport or impact assessment. Furthermore, due to space and scope limitations, the article does not offer a detailed comparative analysis with other countries facing similar challenges.

Finally, the study is limited to secondary sources and public data and does not include interviews with policymakers or subject matter experts.

7. UNDERSTANDING TRANSBOUNDARY AIR POLLUTION AND HUMAN

RIGHTS Any physical, chemical, or biological change in the atmosphere brought on by human activity that has detrimental impacts in states or regions outside of national borders is referred to as transboundary air pollution. Environmental standards set by international agreements or qualified organisations can be used to evaluate the presence and type of this pollution. The spatial diffuseness and dynamic nature of air as a medium for pollution transfer are important features that make it difficult to identify specific transfer events and establish direct cause-andeffect relationships, especially when it comes to long-range transboundary air pollution.

7.1 Key Pollutants and Sources

Air pollution is a critical global environmental concern arising from a complex mixture of gases and particles, originating from both natural and human activities. Globally, key pollutants include particulate matter (PM1, PM2. 5, PM10), nitrogen oxides (NOx), sulphur oxides (SOx), carbon monoxide (CO), ozone (O3), and lead (Pb). Traditional sources contributing to these pollutants encompass industrial processes with smokestack emissions, transportation exhaust from vehicles, the burning of fossil fuels for energy production and consumption, and agricultural activities including crop burning. Natural events like wildfires and volcanic eruptions also release significant amounts of pollutants into the atmosphere.

The impact of these pollutants is widespread, affecting both urban and rural landscapes, exacerbating respiratory and cardiovascular conditions, and contributing to numerous other health complications. 5 In addition to these traditional pollutants, there is growing concern about emerging pollutants whose health impacts are still being researched. These include volatile organic compounds (VOCs) emitted from industrial processes, vehicle emissions, and consumer products, which can contribute to the formation of ozone and fine particulate matter. Microscopic plastic particles, or microplastics, from the breakdown of plastic debris, are also being found in the air and pose potential respiratory risks. Furthermore, pharmaceuticals and personal care products are being detected in the air, raising concerns about their long-term health effects.

The sources of these new pollutants are often interconnected with global economic and industrial activities, including the use of synthetic chemicals, urbanization, and the widespread use of plastics. These pollutants can also have a widespread distribution, unlike some traditional pollutants concentrated in industrial areas. (Chen et al. , 2024) Regionally, the sources and severity of air pollution can vary considerably. In many developing countries, particularly in Asia and Africa, high levels of air pollution are often linked to rapid industrialization, urban sprawl, and the reliance on biomass fuels for cooking and heating. In India, particulate matter (PM2. 5 and PM10) is a major pollutant exceeding national standards across the country, especially in urban areas of the Indo-Gangetic Plain.

6 Source apportionment studies in Indian cities reveal significant contributions from road dust re-suspension, construction activities, industrial emissions, and the transport sector, with the latter's share being more prominent for finer particles (PM2. 5) in urban centres. Residential combustion and open burning of agricultural residues are also notable sources, particularly in rural regions. Power plants can contribute significantly to pollution levels in their immediate surroundings. 55 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/

66 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india.

Rapid urbanization, industrialization, transportation, power generation, and agricultural activities are identified as key drivers of air pollution in Indian urban centres.7

7.2 Contribution to Transboundary Pollution

Air pollutants, including particulate matter, nitrogen oxides, sulphur oxides, carbon monoxide, ozone, lead, volatile organic compounds (VOCs), microplastics, and even substances like sulphur compounds from acid rain, do not respect national borders and can be dispersed across considerable distances through atmospheric movement. This movement is facilitated by wind and other weather patterns, allowing pollutants originating in one country to cause environmental and health impacts in neighbouring nations. 8 The long-range transport of these pollutants means that the air quality in one region can be directly affected by emissions from sources located far away. For instance, sulphur compounds that contribute to acid deposition can travel through the atmosphere, leading to air pollution and its associated problems in countries distant from the emission source.

Similarly, VOCs and microplastics, including those from industrial activities, urban areas, and the proliferation of plastic materials, can be carried by wind currents to remote locations, demonstrating their widespread transboundary distribution. 9 The transboundary nature of air pollution necessitates international cooperation and the development of coordinated policy responses. Various international agreements and frameworks, such as the United Nations Framework Convention on Climate Change (UNFCCC)10 and regional initiatives like the Convention on Long-range Transboundary Air Pollution (CLRTAP)11 in Europe, have been established to address and mitigate air pollution that crosses national boundaries. 12 However, the failure of legislation to keep pace with the airshed approach to pollution control undermines the ability to manage cross-border pollution

7 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india.

8 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india.

9 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india.

10 United Nations Framework Convention on Climate Change, May 9, 1992, S. TREATY DOC. NO. 102-38,

1771 U.N.T.S. 107.

11 Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M. 1442.

12 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india. effectively, as seen in the context of India.13 The understanding that pollutants can cause injurious effects in other states or areas beyond national jurisdiction is fundamental to the concept of transboundary air pollution.

7.3 Link Between Air Pollution and Human Rights

The connection between air pollution and human rights is increasingly recognised globally, asserting that the right to a clean and healthy environment is fundamental to human wellbeing. 14 Air pollution poses significant threats to a range of established human rights, including the right to life, the right to health, the right to private life, and even the right to property as environmental degradation can impact livelihoods and resources. Exposure to air pollutants exacerbates respiratory and cardiovascular conditions and contributes to numerous other health complications, thus directly infringing upon the right to the highest attainable standard of health. 15 In India, the judiciary has played a significant role in establishing the link between air pollution and fundamental rights.

The Supreme Court of India has interpreted the right to life under Article 2116 of the Constitution to include the right to a clean and healthy environment, encompassing clean air. Landmark cases such as M. C. Mehta v. Union of India17 have affirmed the government's duty to ensure that air quality does not become contaminated due to pollution, recognising the right to a healthy environment as a basic human right. Furthermore, the Directive Principles of State Policy Article 48-A18 of the Constitution of India (1950) and Fundamental Duties through Article 51-A(g)19 of the Constitution of India (1950) explicitly state the national commitment to protect and improve the environment, including air quality. 20 International perspectives also underscore this connection, with the UN General Assembly

13 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 14 P. Malm, State Responsibility in Relation to Transboundary Environmental Damage (Master’s thesis, Univ. of Lund 2007). https://lup.lub.lu.se/luur/download?fileOId=1565196&func=downloadFile&recordOId=1560083 15 F. Chen et al., Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed.ncbi.nlm.nih.gov/38850696/

16 INDIA CONST. art. 21.

17 M.C.Mehta vs Union Of India And Ors, 1991 SCR (1) 866

18 INDIA CONST. art. 48A.

19 INDIA CONST. art. 51A(g).

20 A. Prakhar & R. Shekhar, Air Pollution and the Constitution of India

A Critical Analysis of the Right to Clean and Healthy Environment, https://docs. manupatra. in/newsline/articles/Upload/d08a625b-13b6-49a9-936eee5520d83366. pdf. declaring the right to a clean, healthy, and sustainable environment. 21 The Aarhus Convention, while not universally ratified, highlights the importance of public access to environmental information, participation in decision-making, and access to justice in environmental matters without discrimination. This reflects a growing international consensus that individuals have rights concerning the environment they live in, and that states have obligations to protect these rights from harms like transboundary air pollution.

The failure of states to control harmful activities within their territory that cause foreseeable environmental harm extraterritorially can also be seen as a violation of the human rights of those affected, particularly if they are denied equal access to information, participation, and remedies. 22 In India, several population groups exhibit heightened vulnerability to the detrimental effects of air pollution. These include children due to their developing respiratory systems, and the elderly with weakened physiological functions. Individuals with pre-existing health conditions such as respiratory or cardiovascular diseases are also at greater risk. Furthermore, pregnant women face increased chances of complications like preterm birth.

Low-income communities often experience disproportionately higher exposure levels due to proximity to pollution sources and have limited access to healthcare and mitigation resources, highlighting environmental justice concerns. 23 Additionally, local populations, including Adivasis, in areas affected by activities such as mining are particularly susceptible to air pollution and its health consequences. 24 These vulnerabilities necessitate targeted interventions and policy considerations to protect these groups from the adverse impacts of air pollution.

8. INDIA’S INTERNATIONAL OBLIGATIONS

India's international obligations concerning transboundary air pollution are shaped by various international treaties and declarations, even if India is not a direct party to all of them. These agreements establish principles and frameworks for international cooperation and set

21 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia.

22 Alan Boyle, Human Rights and the Environment

Where Next?, 23 EUR. J. INT’L L. 613 (2012). https://academic.oup.com/ejil/article/23/3/613/399894 23 F. Chen et al., Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed.ncbi.nlm.nih.gov/38850696/ 24 A. Kothari & A. Patel, Environment and Human Rights, https://www.ignfa.gov.in/document/environment-andhuman-rights-8521.pdf expectations for state conduct in preventing environmental harm across borders.25

8.1 International Treaties and Agreements

The 1972 Stockholm Declaration on the Human Environment is a foundational document that established a key principle relevant to transboundary air pollution. Principle 21 of the Stockholm Declaration (1972) states that nations have the right to exploit their resources according to their environmental policies but also bear the responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other states or areas beyond national jurisdiction. This principle is now widely considered a part of customary international law, setting a general obligation on states to prevent transboundary environmental harm. 26 The Stockholm Declaration also urged states to avoid releasing toxic substances that could cause serious or irreversible damage to ecosystems.

The 1992 Rio Declaration on Environment and Development further reinforced the principles laid out in the Stockholm Declaration (Malm, 2007). Principle 2 of the Rio Declaration (1992) reiterates the duty of states to ensure that activities within their control do not harm the environment of other states. 27 This reaffirms the international consensus on the responsibility of states to prevent significant transboundary environmental damage. 28 The Convention on Long-Range Transboundary Air Pollution (CLRTAP), adopted in 1979 in Europe, is a significant regional agreement that addresses air pollution crossing national boundaries. Although India is not a party to CLRTAP, its relevance lies in its recognition of the transboundary nature of air pollution and the necessity for international cooperation to reduce it.

29 The preamble to CLRTAP explicitly endorses the principle that states have an obligation not to allow their territory to be used contrary to the rights of other states. 30 CLRTAP has been successful in establishing a framework for research and policy coordination among its member 25 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 26 Günther Handl, Binational Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RESOURCES J. 405 (1986). https://digitalrepository. unm. edu/nrj/vol26/iss3/2/ 27 Günther Handl, Binational Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RESOURCES J. 405 (1986). https://digitalrepository. unm. edu/nrj/vol26/iss3/2/

28 Noah Hall, Transboundary Pollution

Harmonizing International and Domestic Law, 40 U. MICH. J.L.

REFORM (2006). https://repository. law. umich. edu/mjlr/vol40/iss4/2/ 29 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 30 Günther Handl, Binational Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RESOURCES J. 405 (1986). https://digitalrepository. unm. edu/nrj/vol26/iss3/2/ states in Europe and North America, demonstrating a model for addressing transboundary air pollution through international collaboration. 31 While the initial treaty lacked specific emission reduction targets, subsequent protocols under CLRTAP have established such commitments for various pollutants.

32 The International Covenant on Civil and Political Rights (ICCPR), while primarily focused on civil and political rights, has indirect implications for transboundary air pollution. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) generally limits its scope to individuals within a state's territory and subject to its jurisdiction. However, environmental degradation caused by transboundary pollution can potentially impact rights such as the right to life and private life. There is a growing recognition that a state might have human rights obligations towards individuals affected by transboundary pollution originating from its territory, particularly concerning access to information and remedies, based on the principle of non-discrimination.

33 The International Covenant on Economic, Social and Cultural Rights (ICESCR), to which India is a party having acceded in 1979, is more directly relevant to the impacts of air pollution on human well-being. Under Article 1234, the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) recognizes the right to the highest attainable standard of physical and mental health. Air pollution, including that of transboundary origin, can significantly impact the right to health. 35 While the primary focus of the ICESCR is on domestic application, the principle of non-discrimination suggests that states should consider the health impacts of activities under their control that may affect the health of individuals in other states through transboundary pollution. 36 31 F. Chen et al.

, Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 32 Günther Handl, Binational Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RESOURCES J. 405 (1986). https://digitalrepository. unm. edu/nrj/vol26/iss3/2/

33 Alan Boyle, Human Rights and the Environment

Where Next?, 23 EUR. J. INT’L L. 613 (2012). https://academic.oup.com/ejil/article/23/3/613/399894 34 International Covenant on Economic, Social and Cultural Rights art. 12, Dec. 16, 1966, 993 U.N.T.S. 3. 35 R. Dutta et al., Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf.

36 Alan Boyle, Human Rights and the Environment

Where Next? , 23 EUR. J. INT’L L. 613 (2012). https://academic. oup. com/ejil/article/23/3/613/399894 The Paris Agreement (2015), under the United Nations Framework Convention on Climate Change (UNFCCC), addresses greenhouse gas emissions, which are also significant contributors to air pollution. India is a party to the Paris Agreement and has set its own Nationally Determined Contributions (NDCs) that include targets for reducing emission intensity, promoting cleaner energy, and enhancing carbon sinks. While the Paris Agreement primarily focuses on climate change mitigation, its aim to reduce overall emissions has cobenefits for air quality and can help in reducing the transboundary transport of certain pollutants.

37 Some argue that the obligation to prevent significant harm that transcends national boundaries is a part of customary international law, and legal rulings related to states' obligations in mitigating greenhouse gas emissions can reinforce climate negotiations. 38

8.2 Influence of International Obligations on India’s Domestic Laws

India's domestic laws concerning transboundary air pollution are influenced by its international obligations in several ways, though the connection isn't always direct or explicitly stated in domestic legislation. The Stockholm International Conference on Human Environment (1972) served as a catalyst for India to introduce the 42nd Amendment to the Constitution of India (1976),39 which explicitly announced the national commitment to protect and improve the environment and preserve air quality. This demonstrates a clear instance where an international environmental discussion influenced a fundamental aspect of India's legal framework. 40 India is a member of various multinational environmental agreements, including the Paris Agreement on Climate Change (2015) and the United Nations Framework Convention on Climate Change (UNFCCC, 1992).

These agreements complement each other, underscoring the broader aim of adopting cleaner energy and sustainable practices. While these agreements may not directly translate into specific domestic laws on transboundary air pollution, they signal India's commitment to addressing emissions that contribute to air pollution and climate 37 A. Kanaujia et al. , Air Pollution in India: A Critical Assessment and Suggestive Pathways for Clean Air (CSIR- NIScPR, 2022). https://niscpr. res. in/includes/images/discussionpapers/CLEAN-AIR-POLLUTION-2022-01. pdf 38 C. A. Unni, Navigating Global Climate Law: Examining the Scope, Extent, and Legal Implications of the Upcoming ICJ's Advisory Opinion on States’ Obligations Towards Climate Change, 9 ENV’T L. & PRAC. REV. (2024). https://nalsar. ac. in/images/ELPR-Vol-9_Inner-Pages. pdf

39 The Constitution (Forty-Second Amendment) Act, 1976, No. 44, Acts of Parliament, 1976 (India).

40 A. Prakhar & R. Shekhar, Air Pollution and the Constitution of India

A Critical Analysis of the Right to Clean and Healthy Environment, https://docs. manupatra. in/newsline/articles/Upload/d08a625b-13b6-49a9-936eee5520d83366. pdf. change, thereby indirectly influencing the direction of national policies and potentially future legislation. 41 The need to strengthen India's legal frameworks for air pollution, including provisions for regional and transboundary air pollution control, has been highlighted. There's a recognition that India can benefit significantly from international practices and standards in air quality management, such as the adoption of market-based mechanisms used in the United States and Europe.

The Air (Prevention and Control of Pollution) Act, 1981, could be enhanced by incorporating lessons from international laws, including more frequent amendments to address emerging pollutants, mandating localized action plans with accountability, and enhancing the powers of Pollution Control Boards. The Act's current inability to effectively manage crossborder pollution, as seen in the limitations faced by Delhi's PCBs regarding polluters in neighbouring Uttar Pradesh, underscores the need for incorporating an airshed approach as emphasised in EU directives. 42 The principle of preventing significant transboundary environmental harm is considered a part of customary international law, stemming from foundational documents like Principle 21 of the Stockholm Declaration (1972) and Principle 2 of the Rio Declaration (1992).

43 While not always explicitly codified in Indian law in the context of transboundary air pollution, this principle forms a background against which domestic environmental laws are developed and interpreted. There is a duty on states to take all appropriate and effective measures to ensure that their activities cause no transboundary air pollution. The International Covenant on Economic, Social and Cultural Rights (ICESCR, 1996), to which India acceded in 1979, recognises the right to the enjoyment of the highest attainable standard of physical and mental health. Although primarily cited in local air pollution cases, the ICESCR could have persuasive value in future air pollution litigation concerning 41 A. Kanaujia et al. , Air Pollution in India: A Critical Assessment and Suggestive Pathways for Clean Air (CSIR- NIScPR, 2022). https://niscpr. res.

in/includes/images/discussionpapers/CLEAN-AIR-POLLUTION-2022-01. pdf

42 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www. undp. org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 43 P. Malm, State Responsibility in Relation to Transboundary Environmental Damage (Master’s thesis, Univ. of Lund 2007). https://lup. lub. lu. se/luur/download? fileOId=1565196&func=downloadFile&recordOId=1560083 transboundary effects on health. 44 The Convention on Long-Range Transboundary Air Pollution (CLRTAP, 1979) in Europe, even though India is not a party, is relevant as it demonstrates a successful regional initiative for reducing air pollution across national borders. It highlights the importance of international cooperation and coordinated policy responses for addressing the transboundary nature of air pollution (Chen et al. , 2024).

This success story can serve as a potential model or inspiration for India and other South Asian countries to develop similar regional frameworks. The Male Declaration (1998) also urges mutual consultation and networking among South Asian countries for reducing air pollution in the region, indicating a regional recognition of the transboundary issue. 45 Overall, while India's domestic air pollution laws have their own trajectory, they are demonstrably influenced by international environmental discussions and agreements. There is a clear understanding of the transboundary nature of air pollution and a recognition of the need for international cooperation and alignment of domestic laws with global best practices.

However, challenges in implementation and enforcement persist, suggesting a need for further strengthening of domestic legal mechanisms in light of India's international obligations and the transboundary nature of air pollution. 46

9. DOMESTIC LEGAL AND POLICY FRAMEWORK IN INDIA

9.1 Domestic Legal and Policy Framework in India on Transboundary Air Pollution

India's domestic legal and policy framework addresses air pollution, and while not explicitly focused on the 'transboundary' aspect in all instances, certain provisions and principles have relevance to it. 44 R. Dutta et al., Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf. 45 R. Dutta et al., Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf.

46 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia.

9.1.1. Constitutional Provisions

The Constitution of India includes provisions that lay the groundwork for environmental protection, which implicitly relates to transboundary air pollution. Following the 1972 Stockholm International Conference on Human Environment, the 42nd Amendment in 1976 explicitly recognised the national commitment to environmental protection. Article 48A47 of the Constitution of India (1950) of the Directive Principles of State Policy mandates that the State shall endeavour to protect and improve the environment and safeguard forests and wildlife. Similarly, Article 51(g)48 of the Constitution of India (1950) imposes a fundamental duty on every citizen to protect and improve the natural environment, including air quality. Although the Directive Principles are not directly enforceable by courts, they serve as guiding principles for governance and are increasingly cited in judicial interpretations.

The judiciary has also interpreted the right to clean air as an element of the right to life under Article 2149 of the Constitution of India (1950). Furthermore, amendments to the Seventh Schedule of the Constitution transferred 'Forests' and 'Wildlife' from the State List to the Concurrent List, indicating a national priority for environmental protection. The language of the Directive Principles obliges the State to not only protect but also improve the polluted environment, and the government's 1992 policy statement for the abatement of pollution aims to integrate environmental considerations at all levels of decision-making. 50

9.1.2 Environmental Legislations

India has enacted several environmental legislations to address air pollution within its borders, which indirectly contributes to the prevention of transboundary pollution. The primary legislation in this regard is the Air (Prevention and Control of Pollution) Act, 1981. This Act was established with the main objective of preventing, controlling, and abating air pollution in India. It led to the creation of the Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs), which are pivotal institutional mechanisms for implementing and

47 INDIA CONST. art. 48A.

48 INDIA CONST. art. 51A(g).

49 INDIA CONST. art. 21.

50 A. Prakhar & R. Shekhar, Air Pollution and the Constitution of India

A Critical Analysis of the Right to Clean and Healthy Environment, https://docs. manupatra. in/newsline/articles/Upload/d08a625b-13b6-49a9-936eee5520d83366. pdf. enforcing air quality regulations. 51 The Air Act empowers these boards to set air quality and emission standards, advise the government, conduct research, and enforce regulations against polluting industries and other sources. State governments are also authorised to declare air pollution control areas and impose restrictions on the use of polluting fuels and appliances. The establishment of National Ambient Air Quality Standards (NAAQS) by the CPCB is a key outcome of this legislation, defining acceptable levels of air pollutants to protect public health and the environment.

While the Air Act primarily focuses on domestic air pollution, by controlling emissions within India, it inherently contributes to limiting the potential for air pollutants to travel across national borders. However, the Act has been noted to lack specific provisions for managing cross-border pollution effectively. 52 The Environment (Protection) Act, 1986 provides a broader legal framework for environmental protection in India. Although not exclusively focused on air pollution, its wide scope and generalised language allow it to be used to address various environmental issues, including air quality. Important environmental measures and policies, such as the Environment Impact Assessment Notification and rules governing different types of waste, have been promulgated under this Act.

While it doesn't directly address transboundary air pollution mechanisms, its overarching goal of environmental protection and the power it grants to the central government to take measures to protect and improve environmental quality indirectly support efforts to reduce pollution that could have transboundary impacts. The definition of 'pollutants' under this Act is broad enough to potentially include greenhouse gases and other substances contributing to air pollution. 53

9.2. Institutional Mechanisms

The Central Pollution Control Board (CPCB), a statutory body formed under the Water Act of

1974 and subsequently empowered by the Air (Prevention and Control of Pollution) Act, 1981,

serves as the primary national organisation in India tasked with enhancing air quality and 51 R. Dutta et al., Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf.

52 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www. undp. org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 53 R. Dutta et al. , Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation. in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework. pdf. preventing, controlling, or reducing air pollution across the nation. The CPCB's key functions include formulating and executing nationwide air pollution control programmes, coordinating activities among State Pollution Control Boards (SPCBs) and resolving disputes between them, providing technical guidance to SPCBs, establishing national ambient air quality and emission standards (NAAQS), and conducting public awareness initiatives.

SPCBs, established under the same legislative framework but operating within their respective states, mirror many of the CPCB's functions at the state level, such as advising state governments, developing statespecific air pollution control programmes in collaboration with the CPCB, monitoring air quality within their jurisdiction, setting emission standards for industries and vehicles (in consultation with the CPCB), and enforcing the Air Act at the state level. 54 However, both the CPCB and SPCBs face challenges including inadequate resources, limited enforcement powers (often needing to resort to lengthy court proceedings as they may lack direct penalty-levying authority), and the need for stronger inter-agency coordination and more stringent enforcement to effectively combat the increasing air pollution in India. The Air Act provides the legal framework for their operations.

55 Despite these efforts, it's recognised that India currently lacks specific legislation explicitly aimed at combating climate change or addressing transboundary air pollution in a comprehensive manner. 56 The existing laws, while providing a foundation for controlling air pollution domestically, face challenges in implementation, enforcement, and keeping pace with scientific understanding and international standards. 57 For instance, SPCBs often lack direct penalty-levying powers and struggle with enforcement across state borders, highlighting limitations in addressing regional air pollution, let alone transboundary issues. There is a growing recognition of the need to modernise the Air Act to include provisions for civil penalties, enhance the powers of SPCBs, incorporate regional and transboundary air pollution 54 A. Kanaujia et al.

, Air Pollution in India: A Critical Assessment and Suggestive Pathways for Clean Air (CSIR- NIScPR, 2022). https://niscpr. res. in/includes/images/discussionpapers/CLEAN-AIR-POLLUTION-2022-01. pdf

55 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia.

56 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www. undp. org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 57 R. Dutta et al. , Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation. in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework. pdf. control, and align with international best practices and standards. 58 India's participation in international environmental agreements like the Paris Agreement and the UNFCCC reflects a commitment to addressing emissions with transboundary impacts, even if the domestic legal framework doesn't explicitly detail mechanisms for transboundary pollution control and cooperation.

59 The principles of 'polluter pays' and 'precautionary principle', though primarily applied domestically, also hold relevance in the context of preventing potential transboundary harm. 60

10. ROLE OF THE JUDICIARY

The Indian judiciary has played a significant and proactive role in addressing air pollution, primarily through the mechanism of Public Interest Litigation (PIL) and the interpretation of fundamental rights enshrined in the Constitution. The right to a clean and healthy environment, including clean air, has been progressively recognised as an integral aspect of the right to life under Article 21 of the Constitution. One of the earliest landmark cases addressing air pollution was the Taj Trapezium Case (M. C. Mehta v. Union of India, 1997). 61 This case, initiated by a PIL, concerned the pollution caused to the Taj Mahal in Agra by emissions from various industries, including iron foundries and the Mathura Refinery, leading to acid rain that corroded the white marble.

The Supreme Court, after examining reports from various expert bodies, directed the industries in the Taj Trapezium Zone to either switch to industrial gas or relocate outside the zone, or cease operations using coke/coal. The court also established an authority to monitor the implementation of these schemes. Another crucial case is the Delhi vehicular pollution (M. C. Mehta v. Union of India, 1991). 62 Filed in 1985 under Article 21 of the Constitution, this petition challenged the inaction of authorities in controlling vehicular pollution in Delhi. The Supreme Court passed several

58 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 59 A. Kanaujia et al., Air Pollution in India: A Critical Assessment and Suggestive Pathways for Clean Air (CSIR- NIScPR, 2022). https://niscpr.res.in/includes/images/discussionpapers/CLEAN-AIR-POLLUTION-2022-01.pdf 60 R. Dutta et al., Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf.

61 M.C. Mehta v. Union of India, AIR 1997 SC 734 (India).

62 M.C. Mehta v. Union of India, 1991 SCR (1) 866 (India).

orders during the pendency of this case, directing measures such as the elimination of leaded petrol, the replacement of old commercial vehicles, the construction of new bus terminals, and the strengthening of air quality monitoring. These interventions are credited with contributing to the improvement of Delhi's air quality. The Supreme Court in Vellore Citizen Welfare Forum Vs Union of India and Others (1996)63 relied on the precautionary principle and the polluter pays principle, accepting them as part of the law of the land. While the case itself primarily dealt with tannery pollution affecting water, the emphasis on these principles has broad implications for addressing all forms of pollution, including air pollution. In M/s Navin Chemical Manufacturing & Trading Co. Ltd. vs.

New Okhla Industrial Development Authority (1986),64 the Supreme Court directed the Uttar Pradesh Pollution Control Board to inspect industries allegedly causing air pollution and take necessary action against polluting units, specifically those grinding stones. This demonstrates the judiciary's willingness to intervene in specific instances of industrial air pollution. The case of Smoke Affected Residents' Forum vs Municipal Corporation Of Greater Mumbai (2002)65 illustrates the judiciary's engagement with local air pollution issues, although the specifics of the judgment regarding air pollution are not detailed in the provided excerpts. Similarly, Karnataka Lorry Malikara Okkuta v. State of Karnataka (2004)66 touched upon vehicular pollution, indicating the High Courts' involvement in addressing air quality concerns related to transportation.

67 The judiciary has also played a role in ensuring the enforcement of air pollution control measures. However, the Delhi High Court in Splendor Landbase Ltd v. Delhi Pollution Control Committee (2010)68 observed that under the Air (Prevention and Control of Pollution) Act, 1981, State Pollution Control Boards (SPCBs) do not have the power to levy penalties directly; this can only be done through the procedure prescribed in the Act and by the

63 Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715 (India).

64 M/s Navin Chem. Mfg. & Trading Co. v. NOIDA, (1986) (All. HC) (India).

65 Smoke Affected Residents’ Forum v. MCGM, 2002(4) BOMCR 479 (India).

66 Karnataka Lorry Malikara Okkuta v. State of Karnataka, ILR 2004 KAR 4206 (India).

67 R. Dutta et al., Air Quality Management in India

Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation.in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework.pdf.

68 Splendor Landbase Ltd. v. Delhi Pollution Control Comm., 2010 (173) DLT 52 (India).

empowered authority. The role of SPCBs was thus clarified as primarily initiating proceedings before the competent court. Despite this, High Courts, as seen in cases concerning vehicular pollution policy in Karnataka and Kerala, have issued directives to SPCBs to formulate policies for mitigating vehicular emissions, highlighting a proactive stance in guiding executive action. The establishment of the National Green Tribunal (NGT) in 2010 provided a specialised forum for dealing with environmental issues, including air pollution. The NGT has the power to apply principles of sustainable development, the precautionary principle, and the polluter pays principle. The Supreme Court has even directed the transfer of pending environmental cases to the NGT where it has jurisdiction.

The NGT, with its combination of judicial and technical members, is considered well-suited for adjudicating complex environmental issues. 69

11. CASE STUDIES AND IMPACTS ON VULNERABLE GROUPS

One of the most polluted areas of the world is the Indo-Gangetic Plain, which includes portions of Bangladesh, India, Nepal, and Pakistan. It is easy for pollutants from one nation's industrial operations, automobile emissions, and agricultural practices to travel across international borders and impact nearby countries. In order to combat air pollution, this shared airshed requires cooperative regional efforts. 70 Although transboundary air pollution from coal-fired power generation is a global issue, it is particularly bad in South and East Asia, regions with significant coal dependence and dense populations. When considering the population in "receiving" areas, China and India are the two biggest emitters of transboundary air pollution, but Bangladesh's citizens are most affected by pollutants released from overseas.

71 Transboundary factors cause severe air pollution in northern India, particularly in Delhi, every winter. Burning agricultural stubble in nearby states like Punjab and Haryana is a significant factor (Financial Express, 2019). Large volumes of particulate matter (PM2. 5 and PM10) are 69 R. Dutta et al. , Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation. in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework. pdf. 70 Sunil Dahiya, Together for Clean Air: Governance of Transboundary Air Pollution for Blue Skies (Ctr. for Research on Energy and Clean Air, Sept. 7, 2023), https://energyandcleanair. org/together-for-clean-airgovernance-of-transboundary-air-pollution-for-blue-skies. 71 X. Du et al. , Transboundary Air Pollution from Coal-Fired Power Generation, 270 J.

ENV’T MGMT. 110862 (2020). released into the atmosphere as a result of this practice, and with the help of the dominant winds, these particles drift into Delhi, worsening the air quality there. According to studies, these activities are responsible for more than 25% of the PM2. 5 and 17% of the PM10 in Delhi's winter air. 72 Northern India was hit by intense smog from Pakistan's Punjab province during the winter, especially in November 2024. The Air Quality Index (AQI) in Lahore was over 1,200, and in Delhi it was over 1,500, both of which were well above dangerous limits (Irfan et al. , 2025). Health crises occurred in both countries as a result of the smog, which was visible from space and was exacerbated by industrial emissions and agricultural burning.

73 Bangladesh has serious air pollution problems, and pollutants from Bangladesh can spread to eastern India because of the Indo-Gangetic Plain's shared airshed. West Bengal and Assam, two Indian states that border Bangladesh, have worsening air quality as a result of this transboundary movement of pollutants. 74

12. IMPACTS OF AIR POLLUTION ON VULNERABLE GROUPS IN INDIA

Air pollution in India has extensive adverse impacts on human health, the environment, the economy, and social well-being. Millions of people's health are at risk due to high concentrations of air pollutants. Studies have shown both short-term and long-term health effects of air pollution in India. The Global Burden of Disease Study 2017 indicated significant impacts of air pollution on deaths, disease burden, and life expectancy in India. In 2019, air pollution was linked to 1.67 million deaths in India, accounting for 17.8% of total deaths and

53.5 million disability-adjusted life years (DALYs), which was 11.5% of total DALYs.

Ambient particulate matter pollution was a significant contributor to these figures.75 Air 72 S.P.A.V. Rambani, Delhi Chokes on Smoke from Neighbouring States, HINDUSTAN TIMES (Oct. 24, 2016), https://www.hindustantimes.com/delhi/delhi-chokes-on-smoke-from-neighbouring-states/storyzAkXkflle5MoUXLNYfZa0H.html 73 S.M. Baloch & H. Ellis-Petersen, ‘More Toxic than Ever’: Lahore and Delhi Choked by Smog as ‘Pollution Season’ Begins, GUARDIAN (Nov. 26, 2024), https://www.theguardian.com/world/2024/nov/01/lahore-delhichoked-smog-pollution-season-india-pakistan.

74 WORLD BANK GRP., Air Pollution Knows No Borders in South Asia, Neither Do Solutions (2024),

https://www. worldbank. org/en/news/feature/2024/09/05/air-pollution-knows-no-borders-in-south-asia-neitherdo-solutions. 75 A. Kanaujia et al. , Air Pollution in India: A Critical Assessment and Suggestive Pathways for Clean Air (CSIR- NIScPR, 2022), https://niscpr. res. in/includes/images/discussionpapers/CLEAN-AIR-POLLUTION-2022-01. pdf pollution is now considered a leading risk factor for chronic diseases including respiratory infections, COPD, lung cancer, and cardiovascular diseases. 76 Children are identified as particularly vulnerable to air pollution, experiencing stunted lung development. 77 Pregnant women exposed to polluted air may face a higher risk of complications like preterm birth and low birth weight in newborns. Due to socioeconomic inequalities, marginalised groups, such as Scheduled Castes and Scheduled Tribes, frequently live in areas with higher pollution levels.

According to a study78, areas with a high concentration of underprivileged communities had noticeably higher PM2. 5 concentrations, which raised health risks. 79 The elderly and those with pre-existing respiratory or cardiovascular conditions are also more susceptible to the adverse effects of air pollution. 80 Socioeconomic factors increase vulnerability, as low-income communities often experience higher exposure levels due to proximity to pollution sources and have limited access to healthcare and resources to mitigate exposure. 81 This highlights the issue of environmental justice in India. 82 Indoor air pollution, often from the use of biomass for cooking, also leads to a significant number of premature deaths in India, estimated to be between 400,000 and 550,000 annually.

83 Policies must prioritise reducing exposure among these high-risk populations through targeted local interventions such as clean cooking initiatives and exposure reduction near traffic and pollution hotspots. 84 76 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 77 R. Dutta et al. , Air Quality Management in India: Existing Legal and Institutional Framework (LIFE, 2021), https://shaktifoundation. in/wp-content/uploads/2017/06/LIFE-2012-Air-Quality-Management-in-India-Legaland-Institutional-Framework. pdf. 78 deSouza, P. N. , Chaudhary, E. , Dey, S. et al. An environmental justice analysis of air pollution in India. Sci Rep 13, 16690 (2023). https://doi. org/10. 1038/s41598-023-43628-3

79 D. Padmanaban, India’s Disadvantaged Groups Face More Air Pollution, EOS (Jan. 3, 2024),

https://eos.org/articles/indias-disadvantaged-groups-face-more-air-pollution. 80 F. Chen et al., Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed.ncbi.nlm.nih.gov/38850696/

81 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia. 82 F. Chen et al., Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed.ncbi.nlm.nih.gov/38850696/ 83 P. Bhave & N. Kulkarni, Air Pollution and Control Legislation in India, 96 J. INST. ENGINEERS (INDIA): SERIES A 317 (2015). https://ui.adsabs.harvard.edu/abs/2015JIEIA..96..259P/abstract

84 UNITED NATIONS DEV. PROGRAMME, Legal Environment Assessment for Air Pollution and Health in

India (2024), https://www.undp.org/india/publications/legal-environment-assessment-air-pollution-and-healthindia.

Since they are close to pollution sources in Bangladesh, Pakistan, and Nepal, borderland communities in India—especially those in the Indo-Gangetic Plain and the Himalayan regions—are severely impacted by transboundary air pollution. High concentrations of PM2.5 and other pollutants are present in these areas due to industrial operations, crop burning, and vehicle emissions. According to the World Bank (2024), air pollution was responsible for more than 1.6 million deaths in India in 2019 and is frequently associated with health problems like respiratory disorders and shortened life expectancy. Effective regional solutions are still hampered by political tensions and a lack of cross-border cooperation, despite the urgency.85

13. EMERGING SOURCES OF TRANSBOUNDARY POLLUTION

The emergence of new and evolving pollutants is a significant aspect of contemporary transboundary air pollution. Air pollution, recognised as a widespread environmental threat, is exacerbated by the introduction of novel pollutants with diverse origins and characteristics. These emerging pollutants broaden our understanding of the challenges in maintaining air quality. The increasing use of synthetic chemicals in agriculture and industry leads to the release of new compounds into the atmosphere. Furthermore, urbanisation and the growth in vehicular traffic contribute to higher emissions of volatile organic compounds (VOCs) and other harmful substances. The widespread use of plastic materials globally has resulted in the presence of microplastics in the environment, including the air, which can also travel across borders.

86 These emerging pollutants are often interconnected with global economic and industrial activities. They can undergo complex chemical reactions with natural atmospheric processes, leading to the formation of secondary pollutants that may be even more harmful than their initial forms. Energy production and consumption, essential for economic development, are also significant sources of particulate matter and greenhouse gases, which contribute to air pollution with transboundary implications. The rapid advancement of technological innovation, while offering potential solutions, can also introduce new types of pollutants, 85 R. Butt, Air Pollution and Politics Pose Cross-Border Challenges in South Asia, AP NEWS (Jan. 21, 2024), https://apnews. com/article/pakistan-india-air-pollution-smog-airshed-4d710e431993b3d59d551901cc2cea33. 86 F. Chen et al.

, Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ requiring constant adaptation from researchers and policymakers. 87 Unlike traditional air pollutants, which tend to be concentrated in urban and industrial areas, these new pollutants can be found in various environments. For example, VOCs can be transported over long distances by wind and weather patterns, affecting regions far from their origin. Similarly, microplastics have been detected in remote locations, indicating their capacity for long-range atmospheric transport. This widespread distribution poses challenges for monitoring, controlling, and fully assessing the health and environmental impacts of these pollutants.

The identification and analysis of these new pollutants are crucial for our understanding of air quality and public health, and research in this area must keep pace with evolving industrial and technological activities. 88 Beyond these newly identified chemical pollutants, the increasing scale of ultrahazardous activities presents an emerging source of severe transboundary environmental harm, as highlighted by past industrial disasters. The potential for accidents in such activities underscores the risk of sudden and significant pollution events that can cross national borders. 89 Moreover, greenhouse gas emissions are increasingly recognised as a critical and inherently transboundary form of pollution due to their contribution to climate change, which has global impacts.

India, as a major emitter, is involved in international efforts to reduce these emissions, which inherently address transboundary concerns. The need to prevent the emission of fumes contributing to acid rain also remains a significant aspect of transboundary air pollution. 90 The transfer of pollutants between industrialised and developing nations due to various economic activities is another emerging dimension of this problem. 91 Finally, key drivers within countries, such as rapid urbanisation, transportation, industrialisation, power generation, and agricultural activities in India, generate a range of pollutants (including dust, particulate matter, and NOx) that, if transported across borders, constitute emerging sources of transboundary 87 F. Chen et al.

, Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 88 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 89 N. Singh, Right to Environment and Sustainable Development as a Principle of International Law, 29 J. INDIAN L. INST. 289 (1987), http://www. jstor. org/stable/43952264 90 F. Chen et al. , Breathing in Danger: Understanding the Multifaceted Impact of Air Pollution on Health, 280 ECOTOXICOLOGY & ENV’T SAFETY 116532 (2024). https://pubmed. ncbi. nlm. nih. gov/38850696/ 91 C. A.

Unni, Navigating Global Climate Law: Examining the Scope, Extent, and Legal Implications of the Upcoming ICJ's Advisory Opinion on States’ Obligations Towards Climate Change, 9 ENV’T L. & PRAC. REV. (2024), . https://nalsar. ac. in/images/ELPR-Vol-9_Inner-Pages. pdf pollution. 92

14 RECOMMENDATIONS

AND THE WAY FORWARD

14.1. Strengthening National Legislation and Enforcement

India's environmental regulatory framework, while extensive, often presents challenges in its enforcement. To address this, there is an urgent need to modernize existing laws, such as the Air (Prevention and Control of Pollution) Act of 1981, to incorporate contemporary scientific knowledge and technological advances. Improving the capacities of Central and State Pollution Control Boards through increased funding, training, and autonomy can lead to more effective oversight and enforcement. Amendments should also be made to introduce civil penalties, empower State Pollution Control Boards (SPCBs) to act as quasi-judicial bodies, increase public participation, and, more importantly, include regional and transboundary provisions for air pollution control.

Furthermore, integrating community participation and public awareness campaigns can help strengthen regulatory compliance and accountability.

14.2. Enhancing Regional Cooperation and Diplomacy

To deal with the issue of transboundary air pollution, there is a necessity for collaborative regional approaches. India can revitalize and actively participate in regional agreements like the Malé Declaration, aiming to foster collective strategies for air quality management in South Asia. The "Convention on Long-Range Transboundary Air Pollution (CLRTAP)", to which India is not a party, is highlighted as an important regional agreement which demonstrates the necessity for international cooperation. Engaging in bilateral talks with neighboring countries to share data, best practices, and technological solutions can prepare the way for coordinated action against shared environmental challenges.

14.3 Incorporating Human Rights in Environmental Policy

Recognizing the inherent link between environmental quality and human rights is a necessity. Incorporating principles such as the right to a clean and healthy environment into the national legislation can empower citizens and communities. This approach ensures that environmental

92 COUNCIL ON ENERGY, ENVIRONMENT AND WATER, Policy Brief

Air Pollution in Urban Centres of India (2022), https://www.ceew.in/publications/air-pollution-urban-centres-india. policies are not only ecologically sound but also socially just, which in turn safeguards the rights of vulnerable populations affected by pollution.

14.4. Gender-Responsive, Health-Centered, and Justice-Oriented Policy Proposals

Environmental policies must consider how air pollution disproportionately impacts women, children, and marginalized communities. Implementing gender-responsive approaches involves assessing how pollution affects different demographic groups and tailoring interventions accordingly. Health-focused strategies should prioritize access to healthcare and preventative measures in high-risk areas. Policies must be justice-oriented to address systemic inequalities, and ensure equitable distribution of resources and participation in decisionmaking processes.

14.5. Promoting Scientific Research and Public Participation

Scientific research and technological innovations are also crucial in addressing the evolving nature of air pollution. The rise of new pollutants, such as microplastics and volatile organic compounds, demands the need for an updated monitoring system and adaptable regulatory frameworks. Investing in clean technologies, public awareness campaigns, and citizen-led monitoring initiatives can support informed policymaking and community participation. There is a need to involve citizens in air quality issues to not only improves transparency but also encourage collective action and ensure they behave responsibly.

14.6. Judicial and Policy Reforms

Finally, the role of the judiciary must remain one of oversight and leadership. Historically, judicial interventions have played a key role in galvanizing government action on environmental issues. There is a need to strengthen institutions such as the National Green Tribunal (NGT), ensure compliance with court orders, and promote policy coherence across the industrial, agricultural, energy, and transport sectors to create a more robust and integrated framework for pollution control. Taken together, these recommendations seek to provide a balanced, fair, and effective strategy for addressing transboundary air pollution in India. Through harmonized legal reforms, institutional improvements, regional diplomacy, and the protection of human rights, India can move toward a cleaner environment and a healthier future for its citizens.

15. EMPIRICAL

ANALYSIS

To empirically assess public perception on transboundary air pollution and the human rights obligations of states, a qualitative survey was conducted, garnering 28 responses to ten questions. The participants were from different age groups with 39. 3% belonging to the age group of 18 to 21, 32. 1% belonging from 22 to 25 and 28. 6% being above 30. The first question asked participants whether they were aware of the term transboundary pollution. A majority (63. 3%) agreed that they were not aware this shows the need for more awareness to be brought about in relation to the topic. For the next question of whether if they believe air pollution from neighbouring countries or regions affect air quality in India, an overwhelming majority (75%) agreed it could. For the third question regarding whether air pollution should be considered a human rights issue, 35. 7% strongly agreed and 42.

9% agreed, while 17. 9% were neutral. Therefore we can see that an overwhelming majority agree that it should be considered a human rights issue. Fig. 1 75% of the respondents agreed that someone they know experienced health issues (such as respiratory problems) that they believe were worsened by poor air quality. For the question of which group do you think is most affected by transboundary air pollution, there were varying responses.

Fig. 2 74. 1% of the respondents do not believe that the current Indian policies adequately protect vulnerable groups (such as women, children, the elderly, and low-income communities) from the harmful effects of air pollution. 68% of the respondents were not aware of any Indian laws or government policies that address air pollution from cross-border sources. For the question of whether India should engage more diplomatically with neighboring countries to address cross-border pollution, the responses were as follows; Fig. 3 71. 4% of the respondents believe environmental policies in India be more gender-sensitive and health-focused when dealing with pollution issues and 71. 4% of the respondents would support the creation of a regional agreement among South Asian countries to tackle transboundary air pollution. Fig.

4 The empirical research shows a notable lack of public awareness about transboundary air pollution, even among educated respondents. This suggests that the public still does not pay sufficient attention to this important environmental issue. Most participants showed a basic understanding of transboundary environmental impact, even if they were unfamiliar with the term. They intuitively knew that pollution from neighboring nations affects India's air quality. There was also widespread consensus that air pollution should be analyzed from a human rights perspective due to its direct impact on health and well-being. As evidenced by the high percentage of respondents who stated that poor air quality exacerbated their own health problems or those of a loved one, poor air quality has a substantial influence on everyday life.

Concern was also expressed about the inadequacy of current Indian regulations to protect vulnerable groups, such as women, children, and low-income areas, given that many people are unaware of legislative measures addressing transboundary pollution. However, support was expressed for India taking a more proactive diplomatic approach to addressing this issue and a clear willingness to collaborate with other countries in the region. Respondents also called for more inclusive, health-focused, and gender-responsive policy measures. The results clearly highlight the imperative for stronger legislative protections, increased public education, and regional cooperation to successfully address the complex reality of transboundary air pollution.

Demands were also made for legislation regarding transboundary pollution to be monitored and implemented with greater transparency and accountability. The study also highlights the importance of including underrepresented groups in decision-making processes to ensure their views are heard and their needs are adequately met.

16 CONCLUSION

Transboundary air pollution is a growing challenge that threatens not only environmental sustainability but also people's health and fundamental rights, especially in densely populated regions such as South Asia. This paper has explored the issue from an Indian legal and human rights perspective, revealing significant gaps in the current legal framework for addressing pollution originating outside national borders. Through the analysis of international treaties, national environmental laws, and judicial pronouncements, it is clear that while India has taken significant steps to address domestic air pollution, it lacks a coordinated strategy to address its transboundary aspects. The empirical study further highlighted the lack of public awareness on the issue but also showed a strong willingness among the public to support legal reforms and regional cooperation.

Given the transboundary nature of air pollution, it is essential that India adopt a more rightsbased approach with greater regional collaboration. Legal and institutional reforms are urgently needed to empower regulatory agencies, incorporate airshed-based planning, and align national laws with international environmental and human rights standards. Furthermore, increased diplomatic efforts and awareness-raising campaigns can play a key role in promoting public participation and building international partnerships. Addressing transboundary air pollution is not only an environmental necessity but also a human rights obligation. By strengthening its legal and policy frameworks, India can take a leading role in promoting environmental justice throughout the region.

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