The Supreme Court has said it will not act on anecdotal claims about the damage Delhi's air is doing to children's lungs without peer-reviewed research, telling the parties in the capital's long-running air pollution case that it will go by expert opinion and the graded response action plan unless that position is rebutted with published scientific evidence.
The observation came during a hearing in the matter relating to air pollution in Delhi-NCR, In Re: Curbing Air Pollution in the National Capital Region, when the court was told about a report by a chest surgeon at Ganga Ram Hospital that in Delhi, even the lungs of children are not pink. The bench, comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V Mohana, said it was not inclined to go into what it described as anecdotal opinion.
The hearing, held as Delhi's air quality hovered around the severe category in the days after Diwali, laid bare the tension at the heart of the pollution litigation: the gap between what doctors, parents and residents say they can see happening to children's health, and what the court is willing to treat as evidence on which to base its orders.
Senior Advocate Aparajita Singh, assisting the court as amicus curiae, submitted that the air quality was already hovering around the severe category, and informed the court that as on November 5, the contribution of stubble burning to the air quality was 14 per cent. It was during her submissions, and those of other counsel, that the Ganga Ram Hospital report was placed before the court: a chest surgeon's finding that even the lungs of children in Delhi are not pink.
The court, however, drew a line. "We have reason to believe that CAQM takes into consideration all expert opinion, including health professionals," Justice Bagchi said, referring to the Commission for Air Quality Management, the statutory body charged with coordinating the fight against air pollution in the National Capital Region. "Whether the lungs of a young child is better in adaptation, we have no knowledge. Whatever GRAP says, unless you can rebut it with peer reviewed research papers, we are not going to go into these persuasive arguments."
GRAP, the Graded Response Action Plan, is the framework under which emergency measures, from banning construction to restricting vehicles, are triggered as air quality worsens. The court's message was that GRAP, and the expert bodies behind it, would remain the basis for action, and that arguments based on individual reports or impressions, however vivid, would not displace them without scientific backing.
The counsel who raised the issue of minor children pointed to a 2012 research report, according to which there was a 43.5 per cent lung function reduction in schoolchildren in Delhi. The figure, if accurate, is a stark one: it suggests that a generation of children growing up in the capital is reaching adulthood with lungs that work at barely half their capacity.
But the report is more than a decade old, and the court did not indicate whether it regarded it as sufficient to act on.
The bench initially expressed that it would issue certain directions and call for compliance by the states and Union Territories, suggesting that some orders would follow from the hearing. It also expressed the view that court intervention on the issue should be limited, else people would be tempted to violate the laws.
Instead, the court suggested, pollution awareness programmes could be made part of Diwali programmes, a proposal that would put the emphasis on changing behaviour rather than on fresh restrictions.
The exchange captures a dilemma that has dogged the Delhi pollution case for years. The Supreme Court has been seized of the matter for decades, first in the MC Mehta litigation and now in the present suo motu proceedings, and it has issued a stream of orders: on firecrackers, on stubble burning, on vehicular pollution, on construction dust, on the closure of polluting industries.
Yet the air in Delhi each winter remains among the worst in the world, and each year brings a fresh round of hearings, a fresh round of orders, and a fresh round of debate about whether the court is doing too much or too little.
The court's reluctance to act on anecdotal evidence is, in one sense, a matter of judicial discipline. Courts decide on the basis of evidence, and in a case involving public health, the evidence that carries weight is peer-reviewed research rather than an individual doctor's observations, however experienced the doctor.
The bench's insistence on published science is a reminder that the courtroom is not a clinic, and that a claim about children's lungs, however plausible, must be proved in the manner the law requires.
In another sense, though, the court's position highlights the difficulty of proving harm from air pollution in a form that a court can act on. The damage done by years of breathing polluted air is cumulative and diffuse: it shows up in reduced lung function, in higher rates of asthma, in more hospital admissions, rather than in a single dramatic event.
The studies that document it take years to conduct and publish, and by the time they appear, the children they studied have grown older and the air has, if anything, got worse. A 2012 study, cited in court this week, is already fourteen years old, and the children whose lungs it measured are now adults.
For the parents and doctors who live with Delhi's air, the court's demand for peer-reviewed proof can feel like a counsel of delay. The Ganga Ram surgeon's observation, that children's lungs are not pink, is the kind of clinical shorthand that doctors use to convey a reality they see every day in the operating theatre: lungs that should be pink and healthy are discoloured by years of exposure to particulate matter and toxic gases. To a surgeon, that is evidence.
To a court, it is anecdote until it is written up, reviewed and published.
The court's suggestion that pollution awareness programmes be made part of Diwali programmes is a modest one, but it reflects a view that the bench has expressed before: that lasting change in Delhi's air will come from changes in behaviour, not only from court orders. Diwali, with its firecrackers and its spike in pollution, is the most visible annual reminder of the problem, and the court has for years wrestled with the question of how to regulate it.
This year, as in previous years, the cracker ban was widely defied, and the air quality in the days after the festival reached levels more than fifty times the limit recommended by the World Health Organisation.
The hearing also heard that stubble burning, long blamed for a large share of Delhi's winter pollution, contributed 14 per cent to the air quality as on November 5, according to the amicus.
The figure is lower than the shares reported in some previous years, when stubble burning was said to account for a third or more of the pollution on the worst days, and it underlines a point that experts have made repeatedly: Delhi's air is not the product of a single cause, but of a combination of vehicular emissions, construction dust, industrial pollution, stubble burning and weather conditions that trap pollutants over the city.
What the court will do next remains to be seen. The bench indicated that it would issue directions and seek compliance from the states and Union Territories, and the matter will return for further hearing. For now, the court's message is clear: it will act on expert opinion and on the graded response action plan, and those who want it to go further must bring it the kind of evidence it recognises, peer-reviewed research published in a scientific journal.
For the children whose lungs were the subject of the hearing, that evidence, if it comes, will arrive too late to change the air they have already breathed. That is the tragedy at the heart of the case, and the reason the debate about what counts as proof matters so much. The court wants science it can rely on.
The doctors want action before the science is complete. Between those two positions, Delhi's children continue to breathe the air that both sides agree is harming them.
(Reporting based on Live Law.)