The Air Act 1981 carries the most misleading short title in Indian environmental law. A reader who opens it expecting a statute about the air will find instead a statute about industrial plants: about the chimney, the duct and the flue, about consent obtained before a plant is established in a declared area, and about standards measured at the point where smoke leaves a factory outlet. Almost everything else that determines what an Indian city breathes, the exhaust of its vehicles, the dust of its construction sites and roads, the smoke of its burning waste and of the crop residue fired in the fields beyond its edge, is governed somewhere else: under motor vehicle law, under rules made beneath an umbrella statute passed five years later, under municipal bye-laws, or under orders of courts that grew tired of waiting for the machinery of 1981 to reach sources it was never drafted to touch.

That gap between title and text is not a drafting accident, and this article treats it as the central fact about the statute. The Air (Prevention and Control of Pollution) Act, 1981, Act 14 of 1981, was built quickly, on borrowed institutions, for the pollution problem that was visible in 1981: the factory stack. It has been amended twice in ways that matter, once in 1987 to widen its definitions and arm its boards with a power of direction, and once through the decriminalising statute of 2023 to replace most of its prison sentences with money penalties assessed by executive officers. Its consent machinery still runs the daily compliance life of Indian industry, and no plant manager in a declared control area can ignore it. But the honest map of Indian air quality law is a map on which this Act occupies one province, and the article that follows draws that map: what the Act says, how its machinery works, where its writ stops, and which other instruments, institutions and courts took over the rest of the sky.

What stood in the place of an air statute before 1981

India did not lack law touching smoke before 1981; it lacked a law about air. The distinction matters because it explains both the form the 1981 Act took and the expectations it disappointed. What existed was a scatter of provisions aimed at particular nuisances in particular places, none of them organised around the quality of the ambient air that a whole city breathes.

The oldest layer was the criminal law of nuisance. Section 278 of the Indian Penal Code made it an offence voluntarily to vitiate the atmosphere in any place so as to make it noxious to the health of persons in general who dwell or carry on business in the neighbourhood or pass along a public way. The provision was a magistrate’s tool against an individual act, punishable with a small fine, and it required proof of a voluntary act by an identifiable person. It said nothing about standards, nothing about cumulative load, and nothing about the ordinary lawful operation of industry, which is where most of the smoke came from. Alongside it sat the public nuisance chapters of the criminal procedure law, which let a magistrate order the removal of a nuisance, and the private law of nuisance, which let an affected neighbour sue. Each of these instruments was reactive, local and episodic. None created a regulator.

A second layer was local and industrial. The great coal-burning cities had their own smoke legislation in the colonial period, of which the Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisances Act of 1912 are the standard examples, administered through smoke inspectors whose concern was the visible plume from furnaces and boilers in two metropolitan areas. Factory law, consolidated in the Factories Act of 1948, dealt with the atmosphere inside the workplace: ventilation, temperature, dust and fume injurious to workers. Its protected class was the person at the machine, not the person in the street outside the gate. Motor vehicle law contained scattered provisions on smoke and visible vapour in state rules, enforced as traffic matters. Municipal Acts gave local bodies general powers over offensive trades and burning, exercised unevenly.

Nor was the atmosphere itself unstudied in those years, which makes the legislative lag the more instructive. The National Environmental Engineering Research Institute at Nagpur, founded in 1958 as a public health engineering institute, surveyed the air of the great cities through the 1960s and 1970s and recorded suspended particulate levels in the industrial metropolises that would alarm any reader of the tables. The knowledge existed in official hands. What did not exist was a legal instrument into which the knowledge could be poured: no standard against which a survey result counted as a breach, no authority charged with acting on it, and no licensing point at which a new source could be stopped before it added to the load. Survey without statute produced reports; the reports were filed.

What none of these instruments could do was the thing a modern pollution statute exists to do: fix a standard for the quality of the air itself, measure emissions against prescribed limits at the source, license the source in advance against conditions, and put a specialised technical body in charge of the whole sequence. When the United Nations Conference on the Human Environment met at Stockholm in June 1972, and India participated and accepted the conference’s call for national environmental machinery, the legislative answer came in stages. Water came first, in 1974, because rivers were the more visible emergency and because the constitutional route for water required groundwork in the states. Air followed seven years later, and the route Parliament chose for it is the first thing about the Act that an examinee is asked and the first thing a practitioner should understand.

The Article 253 decision and the architecture of the Air Act 1981

The Constitution distributes legislative power over the environment in a way that made the two great pollution statutes of the 1970s take different constitutional roads, and the difference in roads explains a difference in reach that persists. Water is principally a State subject, Entry 17 of the State List, subject to the Union’s power over inter-state rivers. When Parliament legislated on water pollution in 1974, it proceeded under Article 252, the provision that lets Parliament legislate on a State subject where the legislatures of two or more states resolve that it should. The Water (Prevention and Control of Pollution) Act, 1974, Act 6 of 1974, therefore applied at its commencement only to the states whose legislatures had passed such resolutions, twelve in number together with the Union territories, and it spread to further states only as more legislatures adopted it by resolution. A pollution statute that begins life covering part of the country, for a medium that flows across every boundary drawn on the map, carries that original limitation in its institutional memory.

The seven-year interval between the two statutes also had an institutional logic that is easy to miss. The Air Act’s economy of borrowed boards was possible only because the Water Act had gone first and built them: by 1981 the Central Board and most State Boards existed, were staffed, and had laboratories, files and inspection routines into which the air charge could be poured by a deeming clause. An air statute attempted in 1974 would have had to create its institutions from nothing, as the water statute had, and would have spent its first years, as the water statute did, on constitution, recruitment and accommodation. The sequence water first, air second, umbrella third, which structures the whole Indian environmental code, is thus not only a sequence of political attention but a chain of institutional inheritance, each statute standing on the administrative shoulders of the one before, and inheriting, with the shoulders, the stoop.

For air, Parliament chose the other road, and the choice is recited on the face of the statute. The preamble to the Air Act records that decisions were taken at the Stockholm conference in which India participated, calling for steps to preserve the natural resources of the earth, including the quality of air and control of air pollution, and that it was considered necessary to implement those decisions insofar as they relate to air. Article 253 of the Constitution empowers Parliament to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country or any decision made at an international conference, association or other body, and it does so notwithstanding the ordinary distribution of legislative powers. A statute made under Article 253 needs no state resolution and is not confined to the states that ask for it. Section 1 of the Air Act therefore provides, in terms the Water Act could not have used, that it extends to the whole of India. It came into force on 16 May 1981, appointed by notification G.S.R. 351(E) of 15 May 1981, the Act itself having received the assent of the President on 29 March 1981.

The staggered geography of the water statute is worth holding in mind, because the air statute was drafted in reaction to it. The Water Act’s adopting map filled in only over years, as legislature after legislature resolved to bring it in, and one major industrial state, Maharashtra, legislated for water pollution through an Act of its own in 1969 rather than waiting for the central scheme, so that for a considerable period the law of industrial water pollution was a patchwork of the central Act where adopted, a state Act where not, and general law elsewhere. Nothing in the Constitution prevented the same patchwork for air; what prevented it was a drafting choice, to rest the statute on the international-conference power instead of the state-resolution power, plus the accident that the Stockholm conference had handed Parliament a subject, the preservation of the quality of air, that the conference’s own declaration named. The choice also had a quieter consequence for the states that had no water board in 1981: for them the Air Act’s section 5, not the deeming clause, would do the constituting, and those states received a board that was an air board and a water board in one birth rather than by adoption.

The Article 253 template proved durable beyond this statute. It was used again for the Environment (Protection) Act of 1986, whose preamble recites the same Stockholm decisions, and it is the reason Indian environmental law’s two umbrella instruments are national from birth while the water statute had to be adopted state by state. The point is examined in the series’ treatment of the framework of environmental law in India, and it is the single most examinable structural fact about the Air Act: same Parliament, same decade, same family of statutes, two different articles of the Constitution, and two different maps of initial application.

The constitutional weather in which the Act was made should be recorded, because it explains the speed. The Constitution (Forty-second Amendment) Act, 1976 had written the environment into the constitutional text itself, inserting Article 48A in the Directive Principles, charging the State to endeavour to protect and improve the environment and to safeguard forests and wildlife, and Article 51A(g) among the fundamental duties of citizens. A committee appointed by the Government of India under N.D. Tiwari, reporting in 1980, recommended legislative measures and administrative machinery for environmental protection, and an air pollution law on the water model was among the measures the period produced. The Air Act therefore arrived at the end of a decade in which every part of the constitutional system, amendment, committee and conference, had successively pointed at the same statute book gap, and Parliament filled it with the instrument it already knew how to build.

The rest of the architecture is deliberately unoriginal, and its unoriginality was the point. The Act has fifty-four sections arranged in seven chapters. The opening chapter carries the short title, the whole-of-India extent and the definitions. The second chapter, sections 3 to 15, deals with the Central and State Boards. The third, sections 16 to 18, states the powers and functions of the boards. The fourth, sections 19 to 31B, carries the operative law: declaration of control areas, consent, standards, sampling, appeals and the power of direction. Later chapters deal with funds, accounts and audit, with penalties and procedure, and with miscellaneous matters including the rule-making powers. Almost every structural idea in it, the board model, the consent model, the sampling model, the offence model, is taken from the Water Act of 1974 and adapted from water to air by changing the medium. Parliament legislated in 1981 at speed because it did not have to invent anything, and that economy of invention shaped everything that followed, including the Act’s blind spots, which are the Water Act’s blind spots carried into a different element.

The definitions that fix the reach of the Act

Statutes of this kind are decided in their definition clauses, and the Air Act is no exception. Section 2 repays slow reading, because the whole of the Act’s famous gap between title and reach is visible in it in miniature.

An air pollutant, under clause (a), means any solid, liquid or gaseous substance, including noise, present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. Three features of this definition do work. First, the pollutant is defined by its presence in the atmosphere at an injurious concentration, not by its source, which is why the definition can support ambient standards for the air of a whole city. Second, the parenthetical words including noise were not in the Act as passed; they were inserted by the Air (Prevention and Control of Pollution) Amendment Act, 1987, Act 47 of 1987, with effect from 1 April 1988, and their consequences are large enough to deserve a section of their own below. Third, the definition is indifferent to origin, but the operative provisions that follow are not, and the tension between a source-blind definition and source-bound machinery is the Act in one sentence.

An emission, under clause (j), means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet. The word outlet quietly confines the Act’s imagination to things that come out of an opening in a structure. Road dust does not come out of an outlet. Smoke from a field of burning stubble does not come out of an outlet. The exhaust of a vehicle does come out of an outlet of a kind, and clause (e) even defines an automobile as any vehicle powered by an internal combustion engine or by any method of generating power to drive the vehicle by burning fuel, yet, as will appear, the operative chapters make almost no use of that definition. The definition clause contains the whole of the later history: a vehicle is defined and then left nearly untouched, while the defined term that does the work is the industrial plant.

An industrial plant, under clause (k), means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere. Around it cluster the supporting definitions: a chimney includes any structure with an opening or outlet from or through which an air pollutant may be emitted; control equipment means any apparatus, device, equipment or system to control the quality and manner of emission of an air pollutant, including any device used for securing the efficient operation of an industrial plant; an approved appliance is equipment or a gadget used for burning combustible material or generating or consuming fumes, gas or particulate matter and approved by the State Board, and an approved fuel is fuel approved by the State Board; and an occupier, under clause (m), is the person who has control over the affairs of the factory or premises, the person on whom the Act’s duties and liabilities will in practice fasten. There is no definition of an air pollution control area in section 2 at all, although the declared area is the geographical trigger for the Act’s central prohibition. The area exists because section 19 declares it, and its legal content is exhausted by the consequences of the declaration. That too is characteristic: the Act is a machine for regulating premises, and its geography is the geography of premises, declared area by area, rather than the geography of the atmosphere, which moves.

The approved fuel deserves a postscript, because the idea had a second life larger than its first. In the Act it is a modest instrument: a fuel the State Board approves for use in a control area, with section 19 letting the state government forbid the rest. Four decades on, the Commission for Air Quality Management took the same concept regional: it issued a standard list of approved fuels for the industries of the capital region, built around piped natural gas, liquefied petroleum gas, biomass and clean fuels, and directed that coal, the region’s default industrial fuel for generations, cease to be used by industry across the region from January 2023, thermal power plants apart. An approval list in a definition clause had become, by direction, the fuel policy of a metropolitan economy. The student should note the route the idea travelled: defined in the Air Act, dormant in the boards’ practice for years, and made decisive at last by the airshed body that the Air Act’s design made necessary.

One board for two statutes: the deeming shortcut of sections 3 to 6

The Air Act created no new institution, and section 3 performs the economy in a single movement. The Central Board for the Prevention and Control of Water Pollution constituted under section 3 of the Water Act shall, without prejudice to its powers and functions under that Act, exercise the powers and perform the functions of the Central Board under the Air Act. Section 4 does the same at the state level: a State Board constituted under section 4 of the Water Act is the State Board for the purposes of the Air Act. Section 5 provides for the constitution of a State Board under the Air Act itself where a state has no Water Act board, and section 6 assigns the State Board’s functions in Union territories to the Central Board. The boards were later renamed to match their widened charge: the 1987 amendment substituted the name Central Pollution Control Board for the older water-only name in the definitions, again with effect from 1 April 1988, and the familiar abbreviations CPCB and SPCB, which most citizens assume were created by the environmental statutes together, are in truth the water boards wearing a second hat that Parliament told them to treat as their own head.

The merits of the device are real and should be recorded before its costs. Pollution of water and air by the same factory is one industrial fact, and a single board inspects the effluent pipe and the chimney on the same visit, samples both media with the same laboratory chain, and holds one consent file for the plant. The reader who wants the constitution and working of these boards in their original element will find it in the treatment of the Water Act 1974, and the boards’ shared constitution is taken from there rather than restated here. The deeming clauses also meant that the Air Act was operational the day it commenced: there was no interval of years while a new service was recruited, housed and equipped, which is the interval in which many Indian statutes lose their first momentum.

The costs are structural and they compound. A board staffed and budgeted for water inherits air as an additional charge, and the additional charge is chronically the junior one: monitoring stations, stack-sampling equipment and air laboratories compete inside the same budget against the older water establishment. The same member-secretary answers for two statutes with different geographies, water organised by the stream and the drain, air by the declared area and the airshed, and the airshed, unlike the catchment, was never given an institutional expression inside the board system at all. The chapter also carries, little used, a joint board device for groups of states and Union territories that agree to be served by a common board, a provision whose neglect is itself evidence: even the modest regionalism of a shared board found no takers in a system content to let each state mind its own air. When, decades later, the problem of the capital’s air was finally met by creating a body organised around the airshed rather than around the state, the contrast with the deeming shortcut of 1981 was the lesson the new statute taught, and that later development is traced below. For the pillar’s purposes the point to hold is simple: the Air Act’s institutions are the Water Act’s institutions, deemed, and every strength and weakness of that inheritance runs through the enforcement record.

Can the Central Board direct a State Board under the Air Act?

Yes. Section 18 binds every Board to written directions: the Central Board to those of the Central Government, and a State Board to those of the Central Board and of its own state government. Where a state government direction conflicts with a Central Board direction, the section refers the question to the Central Government for decision.

Section 18 is worth pausing on because it is the Act’s internal answer to the federal difficulty that Article 253 had bypassed at the stage of enactment. Parliament could legislate for the whole of India, but the daily administration of the Act was necessarily in the hands of state boards appointed within the states’ own governmental structures, and a Union statute executed by state-appointed bodies needs a hierarchy of directions to remain one statute rather than twenty-eight. The section supplies it. Its existence also locates the political responsibility for inaction with some precision: where a State Board has failed to act against a class of polluters, the failure is rarely a want of legal authority in the system as a whole, because the Central Board and the Central Government both hold statutory pens with which to write to it.

The institutional chapters behind the boards deserve one paragraph of their own, because they explain the boards’ texture as organisations. The constitution carried over from the water statute gives each board a chairman chosen for knowledge or practical experience in environmental protection, a member-secretary with engineering and administrative qualifications, and a membership mixing officials with representatives of local authorities, of agriculture, industry and trade, and of government companies, which is to say a body designed to deliberate with the regulated community inside the room. The finance chapters give each board a fund, fed by government contributions, by the fees the Act authorises, and by receipts, with borrowing powers and the ordinary obligations of budgeting, audited accounts and an annual report laid before the legislature. A board is therefore not an inspectorate with a seal; it is a small statutory corporation with a mixed deliberative membership, a chronic dependence on government grants, and a reporting duty that has supplied much of the public data on vacancies and shortfalls on which the enforcement critique, examined near the end of this article, is built. The reports exist because the statute requires them, and the critique is possible because the reports are honest more often than the system finds comfortable.

The work of the boards: sections 16 to 18

Section 16 states the functions of the Central Board, and its first two clauses set the pattern for the whole family of Indian pollution statutes. The Board’s main function, under section 16(1), is to promote the cleanliness of air and the prevention, control or abatement of air pollution, language adapted from the Water Act’s promotion of the cleanliness of streams and wells. The particulars in section 16(2) run from advising the Central Government, through planning a nation-wide programme for prevention, control and abatement, to coordinating the activities of the State Boards and resolving disputes between them. Two particulars deserve emphasis. Under clause (g), the Central Board may lay down standards for the quality of air: this is the statutory hook on which the National Ambient Air Quality Standards hang, and it is a power over the receiving medium, the air itself, distinct from the source-wise emission standards that the State Boards frame. Under the remaining clauses the Central Board collects and publishes technical and statistical data, organises training, runs mass-education programmes, establishes and recognises laboratories, and may set up committees and delegate functions. The picture is of a national technical authority that plans, measures, standardises and advises, while the licensing of individual plants is left to the states.

Section 17 performs the corresponding office for the State Boards, and its list is the working charter of Indian air regulation at the level where citizens meet it. A State Board is to plan a comprehensive programme for the prevention, control or abatement of air pollution and secure its execution; to advise the state government; to collect and disseminate information; to collaborate with the Central Board in training; and, operatively, under clause (f), to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process and to give such directions as it considers necessary to take steps for prevention, control or abatement. Under clause (g) it lays down, in consultation with the Central Board and having regard to the ambient standards laid down by that Board, standards for emission of air pollutants into the atmosphere from industrial plants and from automobiles, or for the discharge of air pollutants into the atmosphere from any other source except a ship or an aircraft. The exception at the end is a small window onto the Act’s world: emissions from ships and aircraft were consciously left outside the State Board’s standard-setting, to maritime and aviation regimes and to international arrangements, and the carve-out survives as a reminder that the draftsman did decide, source by source, what belonged in the statute and what did not.

Between the standard for the air and the standard for the source there is a deliberate division of labour, and losing sight of it produces much confused commentary on the Act. Ambient standards under section 16(2)(g) say what the air of a place must be like; emission standards under section 17(1)(g) say what may come out of a particular outlet in that place. The first without the second is aspiration, and the second without the first is arithmetic without a target. The Act contains both halves, which is more than can be said for several of the instruments that supplement it, but it contains them in general terms, and the content of the standards is supplied outside the Act’s text, by notification and by rule. How that content is supplied, and by whom, is taken up when the sources of standards are examined below.

One further function of the Central Board, invisible in the functional list’s phrasing and enormous in practice, is its work as the system’s technical memory. The national monitoring data, the emission inventories, the laboratory methods, the categorisation of industry by pollution potential and the guidance on stack heights and monitoring protocols all descend from the Central Board’s committees and publications, and the National Clean Air Programme’s city plans lean on that memory for their baselines. A State Board deciding a consent is never deciding alone: it is applying, often without saying so, a body of central technical doctrine that has no single statutory home and that reaches the file through the section 16 functions of planning, coordination and standard-setting. The Act’s federalism is therefore double: legal authority is divided between the Centre’s board and the states’ boards by sections 16 and 17, but technical authority flows steadily downward from the centre, and much of what looks like state discretion in a consent order is central doctrine in local dress.

The boards charge fees for their services, hold funds under the Act’s finance chapters, and may constitute committees for particular enquiries. Their proceedings and orders are public in the ordinary administrative sense, and their annual reporting feeds the data on which national assessments of the enforcement effort are built. None of this is glamorous, and all of it is the substance of the statute: the Air Act is, in its daily operation, less a code of prohibitions than a charter for two tiers of technical administration, and it is best judged as such when the enforcement critique is reached.

The air pollution control area: the switch that turns the prohibitions on

Unlike the Act’s definitions and its boards, which operate everywhere in India from commencement, its central prohibition operates only where a state government has switched it on. Section 19(1) empowers the state government, after consultation with the State Board, by notification in the Official Gazette, to declare any area or areas within the state as an air pollution control area for the purposes of the Act. The same sub-section lets the government alter an area’s boundaries, whether by way of increase or decrease, and merge areas, again after consultation with the Board. The consultation requirement is the procedural discipline of the section: the declaration is an executive act, but the technical body must be heard first, and the Gazette notification is the act that gives the declaration public legal existence.

The consequences of declaration are what give the section its weight. Once an area stands declared, the consent requirement of section 21 fastens on every industrial plant within it, the standards machinery of the State Board governs emissions there, and under sub-section (3) of section 19 the state government may, after consultation with the Board, prohibit the use in the area of any fuel other than an approved fuel, and under sub-section (4) prohibit the burning of any material other than an approved material, and the installation of unapproved appliances. These fuel and appliance powers are the nearest the Act comes to regulating combustion generally rather than plant emissions specifically, and they mattered in industrial estates and in the control of small boilers and furnaces that might otherwise have escaped the definition of an industrial plant. In practice, many state governments declared the whole of their state’s territory, or all its industrial areas and municipal limits, as control areas, so the geographical trigger that looks restrictive on the page became broad in operation. The transitional rule in the proviso to section 21, examined with the consent provisions next, protected plants already running when an area was declared.

The breadth that declarations reached in practice is best seen in the capital. The whole of the territory of Delhi stands declared as an air pollution control area, so that within the capital the section 21 consent net covers industry generally rather than estate by estate, and it was against that background of total declaration that the later, airshed-wide instruments for the region had to be built. The humble brick kiln shows the declaration working at the other end of the industrial scale. A kiln is an industrial plant for the Act’s purposes: it burns fuel in a structure with an outlet, it has an occupier, and it needs consent. The long administrative campaign to convert the capital region’s kilns to induced-draught zigzag firing, pressed by the Central Board and the region’s authorities through directions and consent conditions, is the consent system doing precisely the work it was designed for, on a source small enough to be numerous and large enough, in aggregate, to matter. Where the source is a kiln, the 1981 design fits. Where it is a million vehicles, it does not, and the difference is not the kiln’s size but its fixity.

Two observations complete the section. First, the control area is a creature of state notification under a central Act, which means the map of the Act’s full operation is drawn in twenty-eight-odd state Gazettes rather than in the statute; a lawyer advising on a plant must check the notification for the district, not merely the Act. Second, the control area is not an airshed. It follows administrative and notification convenience, not the movement of air, and the statute contains no mechanism for two states to declare a joint control area across a shared plume of pollution. That omission was invisible while the paradigm source was the single stack and became indefensible when the paradigm problem became the winter air of a multi-state basin, a development the closing portions of this article trace.

Consent: the working instrument of the Air Act 1981

If the Act has a centre of gravity in practice, it is section 21. Sub-section (1) provides that, subject to the provisions of the section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. The requirement is double-headed: consent to establish precedes the setting up of the plant, and consent to operate precedes and accompanies its running, and in administrative practice the two are sought in sequence through the same board, often in a combined application with the corresponding consents under the Water Act, so that a medium-sized factory carries a single composite consent file covering effluent and emission. The application must be made in the prescribed form, contain the prescribed particulars and be accompanied by the prescribed fee, and under sub-section (3) the Board may make such inquiry as it deems fit into the application.

The procedural discipline on the Board is in sub-section (4), and it is stronger than the corresponding discipline in the Water Act. The Board must, within a period of four months after receipt of the application, by order in writing and for reasons recorded, either grant the consent subject to such conditions and for such period as may be specified, or refuse it. There is no general clause deeming consent to have been granted on the expiry of the period in the consent provision itself; the applicant’s remedy against a silent board is the appellate and writ jurisdiction, not an automatic permission, and the contrast with the deemed-consent device familiar under the water statute is a deliberate point of difference between the two Acts that examinees are expected to know. For plants already operating when an area is declared, the proviso to sub-section (2) of section 21 softens the transition: a person who was operating an industrial plant before the declaration, and who applies for consent within the period the section allows, is deemed to be operating the plant with the consent of the Board until the application is disposed of. Continuance is thus protected for the prompt applicant, and only for him.

The conditions attached to a consent under sub-section (5) are the real law of the factory’s chimney. Consent may be granted subject, among other things, to the condition that the applicant install and operate specified control equipment, alter or replace existing equipment, and erect or re-erect the chimney to the Board’s specification within the time the Board allows. A consent order is therefore not a bare permission but a small regulatory statute for one premises, fixing what may be burnt, what must be trapped before release, and how high the plume must be discharged. Once granted, consent may be cancelled, under sub-section (6), where the holder fails to comply with the conditions or with the standards, but only after a reasonable opportunity of being heard has been given, and the section also preserves the Board’s right to impose fresh conditions and to vary them. Refusal, cancellation and burdensome conditions are all carried to the appellate authority under section 31, discussed below, and the day-to-day litigation life of the Act, the volume of files in a State Board’s consent branch, the inspection reports that precede renewal, the show-cause notices that precede refusal, is generated overwhelmingly by this one section.

Consent also has neighbours in the file, and the practitioner reads them together. Projects of the classes listed in the environmental clearance regime under the Environment (Protection) Act must obtain environmental clearance first, and the boards’ consent to establish follows the clearance, translating its conditions into the plant’s operative consent terms; the authorisations required for handling hazardous and other wastes under the waste rules are likewise issued by the same board, so the modern factory’s environmental file is a composite across statutes even where its spine is the Air and Water consents. Siting is the consent system’s other quiet power: boards apply siting criteria for the classes of unit whose nuisance is locational, prescribing, in state policies and consent practice, the distances that stone crushers, hot-mix plants and brick kilns must keep from habitations, schools, hospitals and highways. A crusher refused consent at a site too close to a village has been regulated by the Act as effectively as a stack prosecuted for its plume, and with less ceremony, which is the consent model at its most characteristic: prevention by paperwork, at the gate, before the first emission exists.

Two amendments of 2023 qualify the consent regime and are taken up in detail with the decriminalisation below, but they belong to a statement of section 21 itself. The Jan Vishwas (Amendment of Provisions) Act, 2023, Act 18 of 2023, substituted sub-section (1) of section 21 with effect from 1 April 2024, adding a proviso empowering the Central Government, in consultation with the Central Board, to exempt any category of industrial plants from the consent requirement, and inserted a new section 21A under which the Central Government may issue guidelines on the grant, refusal or cancellation of consent, which the State Boards must follow. The consent power therefore remains the State Board’s, but its perimeter and its procedure are both, since April 2024, subject to central direction of a kind the original section did not contemplate.

Which plants need consent under the Air Act, and which stand outside it?

Every industrial plant in a declared control area needs the State Board’s consent to be established and to operate. Board practice softens the edges: the Central Board’s colour categorisation sorts industry into red, orange, green and white lists, and white-category units, regarded as practically non-polluting, are exempted from consent in that practice.

Since April 2024 the Central Government may also exempt whole categories of plants from the consent requirement by order, in consultation with the Central Board, under the proviso that the Jan Vishwas amendments added to section 21.

The texture of a working consent deserves a closer description, because the section’s abstractions conceal a very concrete file. A consent order for a plant with a boiler or a furnace will ordinarily specify the fuel and its daily quantity, the stack to which each source is attached and the minimum height of that stack, the control equipment to be maintained, the emission limits for particulate matter and the gases in the prescribed units, and the validity period for which the permission runs. Stack height is not an aesthetic condition: board practice, guided by the Central Board, fixes minimum heights by reference to the sulphur dioxide emission rate of the source, so that the plume is discharged high enough for dispersion to do part of the work, and the formulaic character of the condition explains why two neighbouring units can carry different chimney heights in their orders. Validity in board practice is graduated by the colour categorisation described in the direct answer above, shortest for the red list and longest for the green, a graduation adopted so that the inspection effort of an understaffed board is spent where the hazard is. Applications, inspections and renewals have across the years been moved onto online consent management systems by the boards, which standardised the paperwork of consent across states without standardising the ground verification that gives the paperwork meaning, a sentence that summarises the strengths and the weakness of the Indian consent regime in one breath.

Consent, so administered, is a licensing system with the strengths and pathologies of licensing systems everywhere. Its strength is anteriority: the Act speaks before the plant runs, and can dictate the height of a chimney and the specification of a bag filter at the moment when dictation is cheap, rather than prosecuting a plume after the capital is sunk. Its pathologies are the ones the enforcement critique presses: applications processed as routine paperwork, conditions copied from file to file, renewal treated as a formality, and a board whose technical staff are too few to verify on the ground what the consent file asserts on paper. Those pathologies are examined on their merits later; the structural point belongs here, which is that the Act chose to govern industry by permission rather than by prohibition, and its success or failure was therefore always going to turn on the quality of a licensing administration.

Standards, sampling and the problem of proof

Section 22 states the Act’s central standard of conduct in one prohibition: no person operating any industrial plant in an air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of section 17. The prohibition ties three elements together: the operator, the declared area, and the Board’s standard. It is the breach of section 22, with failure to comply with section 21 and with directions under section 31A, that carried the Act’s principal offence before 2024 and that carries its principal money penalty after the amendments described below.

The standards that section 22 enforces come from more hands than the section’s tidy cross-reference suggests. The State Board’s own emission standards are one source. But for a long list of scheduled industries, industry-specific emission standards are prescribed centrally as rules, in Schedule I to the Environment (Protection) Rules, made under the Environment (Protection) Act, 1986, a statute whose place in this family is set out in the series’ guide to the Environment (Protection) Act 1986, and those centrally prescribed standards are treated in practice as the operative limits for the industries they cover, incorporated into consent conditions by the boards. The thermal power sector shows the central stratum at work on the largest stacks in the country: emission standards for coal-based power plants, covering sulphur dioxide and oxides of nitrogen as well as particulate matter, were prescribed by the environment ministry in 2015 under the umbrella statute’s rule power, and their compliance timelines have been extended and re-staged more than once since, a history that belongs to the umbrella statute’s record but lands, plant by plant, in Air Act consent conditions. A third source arrived later still: directions and norms of general application issued by courts and by the National Green Tribunal in particular cases, which fix fuel, technology or emission outcomes for whole sectors in a region. The reader of a modern consent order therefore reads three legal strata at once, and part of the practitioner’s skill is knowing which stratum a given number in the order comes from, because the route to challenge it differs by stratum.

Proof of breach is the Act’s quiet difficulty, and sections 23 to 30 are its answer. Section 23 imposes on the person in charge of premises from which an emission above the standards occurs, or is apprehended to occur, by reason of an accident or another unforeseen act or event, a duty to intimate the occurrence forthwith to the State Board and to render all reasonable assistance; the Board, on receiving information and where it considers remedial measures necessary, must cause them to be taken and recover the cost from the person concerned. The section is a small emergency code inside the statute, and it is the duty most often breached in silence, since the intimation is itself the confession that an excess emission has occurred. Sections 24 and 25 arm Board officers with powers of entry and inspection at all reasonable times and of obtaining information from occupiers. Section 26 then prescribes how a sample of air or emission is to be taken for analysis: in the presence of the occupier or his agent where practicable, with the result of the analysis recorded on the prescribed form, and with portions of the sample dealt with as the section directs, so that the analysis is the analysis of a sample whose provenance the law has certified.

The system’s answer to the fragility of the occasional sample has been to make the sample continuous. Acting under its direction powers, the Central Board in 2014 required online continuous emission monitoring systems to be installed in the seventeen categories of highly polluting industries and in common treatment and disposal facilities, with the instruments connected to the servers of the Central and State Boards so that stack data flow to the regulator as the plant runs rather than when an inspector calls. The direction is a revealing artefact of the statute’s maturity: the Act’s text still speaks the language of the sample bottle and the analyst’s report, but its administration had concluded that a prosecution-grade occasional sample is a weaker instrument than a stream of data that can trigger a show-cause notice, a consent review or a section 31A direction without ever entering a courtroom. Continuous data do not abolish the old problems, instruments drift, are sited badly and are occasionally managed, but they change the economics of concealment, and the change came, characteristically, by direction under the statute rather than by amendment of it.

Not all proof in the system is instrumental, and the oldest technique survives alongside the laboratory: the grading of smoke by eye against the Ringelmann chart, the scale of shaded grids against which an observer matches the density of a plume, which the smoke inspectors of the municipal era used and which consent conditions and board practice continued to use for boiler and furnace smoke long after instrumental sampling arrived. Its persistence is a small emblem of the enforcement problem: a visible plume graded by a trained eye is evidence a layman can understand and a magistrate can act on, while a laboratory number is evidence only as good as the chain that produced it, and the Act’s working history oscillates between the two kinds of proof, the seen and the certified.

The laboratory end of the chain is sections 28 to 30. A state government may establish or recognise State Air Laboratories, to which samples are sent; government analysts are appointed, whose reports are the Act’s forensic currency; and a report signed by a government analyst is given evidentiary standing in proceedings. The chain matters because the older penalty regime was criminal, and a criminal prosecution for exceeding an emission standard stood or fell on whether the sample, the presence, the form and the report could survive cross-examination. Much of the practical failure of prosecutions under the Act, before penalty was substituted for prosecution in 2024, was failure in this chain rather than failure of detection: the stack smoked visibly, and the case still collapsed on a defect in sampling. Boards responded over time by relying more on the directions power and on consent discipline, which demand less forensic purity, and the long drift from prosecution to administration in the Act’s working life begins here, in the laboratory sections, rather than in any legislative choice.

How does a State Board check what a plant is actually discharging?

By inspection and by sample. Board officers may enter and inspect a plant and its control equipment at all reasonable times under section 24, and call for information under section 25. For proof, section 26 governs the taking of a sample of the emission, ordinarily in the presence of the occupier or his agent.

The sample then goes to a State Air Laboratory, and the government analyst’s report on it carries evidentiary weight in the proceedings that follow.

Directions, restraint and the road to a court

The Air Act as passed in 1981 had a conspicuous hole in it. A State Board could refuse a consent, sample a stack and prosecute an offence, but it could not simply order a polluting plant to stop. The hole was filled by the amending Act of 1987, which inserted section 31A with effect from 1 April 1988. Section 31A provides that, notwithstanding anything contained in any other law, but subject to the provisions of the Act and to any directions the Central Government may give, a Board, in the exercise of its powers and performance of its functions under the Act, may issue any directions in writing to any person, officer or authority, and every such person, officer or authority shall be bound to comply. An Explanation widens the power beyond doubt: the power to issue directions includes the power to direct the closure, prohibition or regulation of any industry, operation or process, and the stoppage or regulation of the supply of electricity, water or any other service. A closure direction under section 31A is therefore an administrative act of the Board, taken without first persuading a court, and it is this section, more than any offence clause, that a Board reaches for when a unit must be shut. The direction is binding, appealable under the appellate provisions, and enforceable: failure to comply with it was one of the principal offences under the old section 37 and remains, after 2024, one of the two heads of the principal money penalty under the new section 37, as well as a matter on which the adjudicating officer’s complaint can set the criminal process in motion.

The same amending Act inserted section 22A, which works the other way round. Where a Board apprehends that an emission exceeding the standards is likely to occur from a plant, it may make an application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, for restraining the person responsible from emitting the pollutant. Section 22A is the Act’s preventive injunction, sought before the plume exists, and its presence in the statute records an early legislative understanding that prosecution after emission is a poor remedy for air, which cannot be gathered back. In practice boards have preferred the direction under section 31A, which needs no application and no hearing in a magistrate’s court, and section 22A is the quieter of the two 1987 weapons; but a complete account of the Act’s enforcement geometry must include both, the self-executing direction and the court-sought restraint.

Appeals within the Act run on two tracks laid down at different times. Section 31 constitutes an Appellate Authority and gives any person aggrieved by an order made under the Act by the State Board a right of appeal to it, to be preferred within the period the section prescribes and after depositing the prescribed fee, with the Authority hearing both sides and disposing of the appeal as expeditiously as possible. The appellate route under section 31 is the ordinary destination for consent refusals, cancellations and burdensome conditions. Onto that older track the National Green Tribunal Act, 2010 grafted a second: section 31B of the Air Act, inserted by that statute, gives a person aggrieved by an order or decision of the Appellate Authority under section 31, or by a direction issued on or after the Tribunal Act’s commencement by a State Board under section 31A, an appeal to the National Green Tribunal. The layering is characteristic of Indian environmental adjudication after 2010: the departmental appeal first, the specialised tribunal above it, and the writ jurisdiction of the High Courts, which no statute in this family excludes, above that. Directions under section 31A that carry penal consequences under the post-2024 scheme travel additionally to the Tribunal through the adjudication appeal in section 39B, the second track built by the 2023 amendments.

Cognizance of offences is governed by section 43, and its design is paternal in the manner of the older pollution statutes. No court shall take cognizance of any offence under the Act except on a complaint made by the Board or an officer authorised by it, or on a complaint made by any person who has given notice of not less than sixty days, in the prescribed manner, of the alleged offence and of his intention to make a complaint, to the Board or to an authorised officer. The citizen’s road to prosecution therefore exists, but it runs through a two-month notice to the very Board whose inaction is usually the grievance, and the notice requirement has been the standing compromise in this family of statutes between opening the criminal process to public-spirited prosecution and keeping it from becoming an instrument of rivalry between industrial competitors. Nothing in this account is advice on any individual case; the general structure is stated so that the reader can see where a complaint stands inside the machinery before taking advice on the facts. Section 46 completes the procedural frame by barring the jurisdiction of civil courts over matters the boards and authorities under the Act are empowered to determine.

What else did the 1987 amendment change, apart from noise?

Three operative things. It inserted section 31A, the power to issue written directions, including closure of an industry and stoppage of its electricity or water. It inserted section 22A, letting a Board ask a magistrate’s court to restrain an apprehended emission. And it opened prosecution to a citizen who first gives the Board sixty days’ notice.

The 1987 amendment deserves to be read as the moment the Air Act grew its teeth, six years after its birth, and the pattern, a statute passed lean and armed later by amendment, repeats across the Indian environmental code. The definitional widening to noise and the two enforcement instruments arrived together, in one amending Act, because both answered the same discovery: the Act of 1981 had described the administrative frame accurately but had underestimated what the frame would have to do, admit a pollutant nobody had listed and stop a plant nobody had consented.

The penumbra of rules: sections 53 and 54 and the state rule books

A pillar account of the Act should not end its tour of the text at the offences, because much of the law a citizen actually meets lives one level down, in rules the Act authorises. Section 53 empowers the Central Government, in consultation with the Central Board, to make rules on the matters the Union must standardise: the manner of giving notice of intention to complain, the form and fees of appeals to the National Green Tribunal under the appellate provisions, the budget, annual report and audit forms of the Central Board, and residuary matters required to be prescribed for the Centre. Section 54 gives the corresponding power to state governments, in consultation with the State Board, and its list is the longer and the more practical: the forms in which consent applications are made and the fees that accompany them, the particulars an application must contain, the manner of the Board’s inquiries, the notice periods and forms of the appellate process under section 31, the qualifications of the government analyst’s world, the forms in which the taking of samples is recorded. It is in the state rule books made under section 54 that the consent fee for a plant of a given capital cost is found, and in those books, differing state by state in amount and detail, that the Act’s uniform skeleton acquires its local flesh.

Two consequences follow from the rulemaking design. The first is divergence inside uniformity: the Act is one, but a consent applicant in one state pays fees computed on a schedule that another state computes differently, and the forms, periods and office practices vary, so that national industry runs one statute through twenty-eight administrative dialects. The second is that the rules, not the Act, are where modernisation quietly happens: when boards moved consent applications online, when validity periods were graduated by category, when intimation and return formats were standardised, the legal vehicle was rule, direction and administrative instruction under the Act rather than amendment of it. The Act’s text of 1981, in other words, is an unusually small part of the law of industrial air emissions in force on any given day, and the reader who stops at the fiftieth section has read the constitution of the system, not its working law.

Punishment in the Act: the criminal decades and the penalty settlement of 2024

For most of its life the Air Act enforced its core commands by threatening prison. Section 37, in its original form, provided that whoever failed to comply with the consent requirement of section 21, or with section 22, or with a direction issued under section 31A, would be punishable with imprisonment for a term not less than one year and six months but extending to six years, with fine, and with an additional fine of up to five thousand rupees for every day the failure continued after conviction. Where the failure continued beyond one year after the date of conviction, the punishment rose to imprisonment of not less than two years and extending to seven years, with fine. Around that principal offence the original sections 38 and 39 collected the lesser offences, obstructing officers, damaging board property, tampering with meters and monitors, giving false information, and offences for which no penalty was separately provided, punishable with imprisonment of up to three months, or fine of up to ten thousand rupees, or both. Offences by companies were dealt with on the familiar pattern of liability of the person in charge, subject to a due-diligence defence, and offences by government departments through their heads, subject to the same pattern.

Two satellite provisions of the old penalty scheme show its thoroughness of design, if not of use. Offences by companies were governed by the familiar pattern under which the person in charge of and responsible for the conduct of the business is liable along with the company, with a defence for the officer who proves the offence was committed without his knowledge or that he exercised due diligence, and with liability extended to directors and managers where the offence occurred with their consent, connivance or neglect. Offences by government departments fastened liability on the head of the department, subject to the same knowledge and diligence defences. The pattern matters beyond the courtroom: it is what made the plant’s environmental manager, and not only its balance sheet, a party to every consent negotiation under the criminal regime, and its survival in the residue of offences that remain criminal after 2024, above all the unconsented plant, means the personal stake in consent discipline survives decriminalisation at exactly the point where the plant has no licence at all.

The criminal scheme had the classic defects of environmental criminal law, magnified by the forensic chain described earlier. A prosecution had to prove an offence beyond reasonable doubt on the strength of a section 26 sample and an analyst’s report; it proceeded at the pace of the magistrates’ courts; the Board that prosecuted was also the body that had licensed the unit, so every prosecution carried an implicit admission about the quality of supervision; and the maximum sentences, though severe on paper, were imposed so rarely that their deterrent content was largely notional. The scholarly and administrative criticism of the regime converged on a single observation: a sanction that is never used does not deter, whatever its height, and the height itself made magistrates reluctant and boards cautious. The certificate and sampling jurisprudence under the Act is thin precisely because so few cases travelled the full road.

The Jan Vishwas (Amendment of Provisions) Act, 2023, Act 18 of 2023, piloted through Parliament by the Minister of Commerce and Industry, Piyush Goyal, as a trust-based governance measure across forty-two central Acts, rewrote the Air Act’s sanction scheme, and the rewritten provisions were brought into force for this Act on 1 April 2024. Sections 37 to 41 of the Air Act were substituted wholesale. The new section 37 provides that whoever contravenes section 22, or fails to comply with a direction under section 31A, shall be liable to pay a penalty of not less than ten thousand rupees, extending to fifteen lakh rupees, and, where the contravention continues, a further penalty of ten thousand rupees for every day it continues after the adjudicating officer’s order. New sections 38, 38A and 39 carry penalties on the same scale for contraventions of other commands of the Act, including contraventions relating to information, obstruction and conditions for which no separate penalty is provided. The amounts are penalties, not fines: they are imposed administratively, not by a sentencing court.

The machinery for imposing them is new sections 39A to 39D. Under section 39A, the Central Government and, within their spheres, the state governments may authorise an adjudicating officer, not below the rank of a Joint Secretary to the Government of India or a Secretary to a state government, to hold an inquiry, after giving the person concerned a reasonable opportunity of being heard, and to impose the penalty, having regard to the population and area affected, the duration and frequency of the contravention, its vulnerability and its impact on human health and the environment; the officer wields the powers of a civil court for summoning witnesses and documents. Section 39B gives an appeal from the adjudicating officer’s order to the National Green Tribunal, within sixty days, on deposit of ten per cent of the penalty amount as a condition of entertainment. Section 39C sends the penalty money, once realised, to the Environmental Protection Fund established under section 16 of the Environment (Protection) Act, 1986, so the proceeds of air enforcement finance the umbrella statute’s fund rather than a general exchequer head. The same amending statute performed the same operation on the umbrella Act itself, replacing the imprisonment in its section 15 with penalties and adjudication with effect from the same date, so that from April 2024 the two principal pollution statutes speak the same sanction language, and the Air Act’s settlement cannot be understood, or criticised, as an eccentricity of one statute: it is the new common grammar of Indian environmental enforcement, for which this Act is as good an exhibit as any.

Two features of the settlement prevent it from being described, accurately, as a simple decriminalisation. First, criminal liability survives at the point Parliament evidently thought it mattered most: section 39D preserves an offence of establishing or operating an industrial plant without the consent required by section 21, punishable with imprisonment of not less than one year and six months and extending to six years, with fine, an additional fine of up to fifty thousand rupees a day for a continuing failure after conviction, and imprisonment of two to seven years where the failure continues beyond a year after conviction. Second, non-payment is itself criminalised: a person who fails to pay a penalty within ninety days of the adjudicating officer’s order is punishable with imprisonment of up to three years, or a fine of up to twice the penalty, or both. Section 43 was correspondingly amended to let a court take cognizance on the complaint of the adjudicating officer as well, the new clause (aa) in sub-section (1). The overall architecture of the Jan Vishwas Act, whose section 3 lifts minimum fine and penalty amounts by ten per cent every three years, applies to the substituted scheme as designed. What 2024 changed, in sum, is the default: breach of an emission standard or of a direction is, under the settlement, a question of money assessed by a senior executive officer on a civil standard of satisfaction, while the prison door is kept for the unlicensed plant and for the defaulter who will not pay.

The debate on the settlement divides predictably, and both sides have a case that the article should state fairly before judging. For the government, the vice of the old scheme was that trivial and technical breaches, a late return, a miscalibrated meter, a condition breached in form, exposed managers to prosecution under a section whose minimum sentence was eighteen months, and the rational response of industry was litigation and lobbying rather than compliance investment; a graded money penalty, imposed quickly by a senior officer, raises the probability of sanction, which is the variable deterrence actually responds to. Analysts sympathetic to the design, including commentary from the Council on Energy, Environment and Water, have noted that removing imprisonment for most violations can strengthen enforcement of minor offences if the adjudication machinery actually works. Critics of the amendments, a position stated consistently by environmental law practitioners and legal-policy commentary at the time of the Bill, make three points: that fifteen lakh rupees is a small sum against the compliance costs of a large plant, so the cap must be policed by the daily continuing penalty to bite; that adjudication by executive officers, in a field where the regulator is a board of the same governmental family, concentrates accuser and judge in one administrative house; and that the offences removed were the ones that gave consent negotiations their seriousness. The design question the settlement leaves open is whether the adjudicating officers will in fact be appointed in numbers, conduct inquiries, and see their orders paid, because a penalty regime that is not worked is only a cheaper version of the prosecution regime that was not worked either. The article returns to this institutional question in the verdict, since it is the same question the whole statute poses.

The bridge that was barely crossed: section 20 and the motor vehicle

Between the Act’s industrial heartland and the vehicle, there stands exactly one operative provision, and its modesty is the whole story. Section 20 provides that, in particular and without prejudice to the generality of the State Board’s functions, where the Board is of the opinion that emissions of air pollutants from automobiles are likely to contribute to air pollution in a control area, it may give such instructions as it considers appropriate to the authority in charge of the registration of motor vehicles under the Motor Vehicles Act, and that authority shall be bound to comply with the Board’s instructions. Note the architecture: the Board does not regulate the vehicle, the manufacturer or the driver; it writes to another authority, the transport authority, whose own statute governs registration, and the instruction binds the recipient. Section 17(1)(g), likewise, empowers the State Board to lay down standards for emission of air pollutants from automobiles, standards which then need the transport machinery to give them effect on the road. The consent chapter does not touch the vehicle at all: no vehicle is an industrial plant for these purposes, no consent is sought for a fleet, and no section 26 sample is drawn from an exhaust pipe. The automobile defined in section 2(e) is a citizen of the Act with almost no civic duties. In the reported working of the boards the section 20 instruction has left few traces: the transport authorities took their emission law from their own statute’s rule-making, and the boards, whose standards for automobiles under section 17(1)(g) needed that machinery to bite, concentrated their thin staff on the industrial files where their powers were self-executing. A power that depends on persuading another department’s machinery is a power that waits for a crisis to be used, and when the vehicular crisis came to Delhi in the 1990s it was not the Board’s instruction that moved the fleet but the Supreme Court’s order, a substitution examined in the courts section below.

The operative law of the tailpipe lives, therefore, in the motor vehicle code. Emission standards for vehicles are prescribed in the Central Motor Vehicles Rules under the Motor Vehicles Act, 1988, the regime examined in the series’ account of the Motor Vehicles Act 1988, and they take the form of the Bharat Stage norms, modelled on the European sequence, fixed model-year by model-year and fuel by fuel by the Central Government, with the jump to Bharat Stage VI standards across the country on 1 April 2020 as their defining step. In-use control runs through the pollution under control certificate, issued after an exhaust test at authorised centres under the same Rules, with penalties for a vehicle that emits visibly or lacks the certificate lying in motor vehicle law and, since the 2019 amendment of that Act, at levels fixed there. Fuel quality, the other half of vehicular emission, is prescribed in the same rule-making family and in petroleum regulation. A reader who holds the Air Act and asks what a diesel car may lawfully emit will find the answer in none of its fifty-four sections.

The sources the Act cannot see, and the instruments that took them

The case for the design critique rests on measurement, so the measurement evidence should be stated first and stated as the literature states it. The stakes are not in doubt: the disease burden assessments prepared under the Indian Council of Medical Research’s state-level disease burden work have repeatedly placed air pollution among the leading risk factors for premature death and ill health in India, with household air pollution from solid fuels and ambient particulate pollution counted as its two great components, which is the epidemiological form of the table that follows, since neither component is principally the smoke of a consented factory stack. Source apportionment studies, which model and sample a city’s air to attribute its particulate load among sources, have been run for Indian cities by public research bodies over the statute’s life. The study of Delhi’s air by the Indian Institute of Technology Kanpur, released in 2015, and the source apportionment study for Delhi and the national capital region by The Energy and Resources Institute and the Automotive Research Association of India, released in 2018, differ in method and in shares, but they converge on the structural finding on which this article’s argument depends: transport, road and construction dust, biomass and waste burning and industry all contribute materially to the capital’s particulate matter, industry is one contributor among several and not the largest, and the contribution of crop-residue smoke is intensely seasonal, which is why estimates of peak winter days, such as those produced by the System of Air Quality and Weather Forecasting and Research, attribute far higher shares to stubble smoke on the worst days than any annual average shows. The figures of these studies are contested in detail and are used here only for the convergence: no serious apportionment of an Indian metropolis returns industry as the whole, or even most, of the problem. Against that finding, the Air Act regulates one column of the table.

One physical fact organises the whole table and should be stated before it is read: the winter meteorology of the Indo-Gangetic plain. In the cold months, temperature inversions cap the air over the plain, winds fall calm, and the layer into which every source discharges shrinks to a fraction of its summer depth, so that the same emissions produce several times the ground-level concentration. The plain’s crisis is therefore seasonal in a way the statute is not: the consent file, the standard and the sample are the same in January as in June, while the air into which the plume disperses is a different medium. Every instrument built after the Act, the graded plan with its winter stages, the commission with its seasonal calendar, the forecasting system that warns three days ahead, is an attempt to give a steady-state statute book a seasonal instrument, and the attempt had to be made outside the Act because the Act contains no clock.

The table is the article’s central exhibit, and it should be read as a map of Indian air law as it actually is.

Where India’s air pollution actually comes from and which law reaches it

Source	Main regulating instrument	Authority responsible	Sanction available	Does the Air Act reach it?
Industrial plants	This Act: consent, emission standards, directions; industry-specific standards under the Environment (Protection) Rules	State Pollution Control Boards; adjudicating officers for penalties	Penalty from ten thousand rupees to fifteen lakh rupees, with a daily penalty for continuing breach; closure directions; prosecution for operating without consent	Yes. This is the Act’s home ground
Vehicles	Motor Vehicles Act 1988 and the Central Motor Vehicles Rules: Bharat Stage norms and pollution under control certification	Central Government for standards; state transport departments and police for enforcement	Fines under motor vehicle law; refusal of registration or fitness certification	Only at one remove, through the section 20 instruction to the registering authority
Construction and road dust	Construction and Demolition Waste Management Rules 2016 under the Environment (Protection) Act; municipal bye-laws; commission directions in the capital region	Municipal bodies; the air quality commission within its region	Bye-law fines; environmental compensation; stoppage of construction under directions	No
Waste burning	Solid Waste Management Rules 2016 under the Environment (Protection) Act; municipal bye-laws; prohibitory orders of the National Green Tribunal	Municipal bodies	Bye-law fines; environmental compensation	No
Crop residue burning	No provision of this Act; Tribunal orders; environmental compensation under the Commission for Air Quality Management Act 2021 in the capital region and adjoining areas; state enforcement outside it	The air quality commission within its region; district administrations in the states	Environmental compensation on farmers under the commission framework; state measures outside it	No
Domestic fuel	No pollution statute; met by energy and welfare policy, principally the expansion of liquefied petroleum gas for cooking	Government programmes rather than a regulator	None in pollution law	No
Noise	The definition of air pollutant in this Act, since 1988; standards and zones under the Noise Pollution (Regulation and Control) Rules 2000, made under the Environment (Protection) Act	Police and district authorities; boards within their sphere	Action under the Noise Rules and general police powers	Partly. The pollutant status comes from this Act; the working rules do not

Work through the rows the table cannot linger on. Dust is the most humbling entry. Resuspended road dust and construction dust are, on the apportionment evidence, among the largest contributors to coarse particulate matter in Indian cities, and they have no chimney, no occupier in the Act’s sense in many cases, no consent file and no sample point. The legal instruments that address them are diligence instruments: the Construction and Demolition Waste Management Rules of 2016 oblige waste generators and local authorities to segregate, store, transport and process construction waste and to suppress dust at sites; municipal bye-laws fine the uncovered truck and the uncovered site; and in the capital region the graded response machinery, examined below, stops construction activity on bad-air days by direction. None of this is the Air Act, and none of it could have been squeezed into the Act’s consent model without rewriting the model past recognition, because the duty-bearers are thousands of sites and every passing vehicle on an unpaved shoulder, not a list of identifiable plants.

The dust row is worked, in practice, by a repertoire of municipal and emergency measures rather than by prosecution: mechanical sweeping of arterial roads, water sprinkling and anti-smog guns at construction sites and hotspots, paving of shoulders, and, under the graded response machinery for the capital, the outright stoppage of construction and demolition activity on the worst days. Each measure is ordered or funded under some instrument other than the Air Act, municipal budgets, the waste rules, the graded plan, and the set is a useful corrective to the assumption that a source outside a statute is a source outside government. Dust is governed; it is governed by administration rather than by the 1981 Act, which is the design critique stated from the other side.

Waste burning sits one row down and tells the same story in a different register. An open fire of municipal waste at a dumpsite or a street corner is an emission from no outlet, made by an occupier who is often the municipal body itself. The Solid Waste Management Rules of 2016, made under the Environment (Protection) Act, prohibit the burning of waste and structure the collection system whose failure makes burning rational; the National Green Tribunal has prohibited open burning in the capital region by order; and enforcement is by the municipality against its own default as much as against citizens. The Air Act’s contribution is the definition of a pollutant and nothing else.

Crop residue burning requires the fuller treatment the argument promised at the start, because it is the case where blaming the statute, or the farmer, is equally facile. The burning of paddy stubble in Punjab, Haryana and western Uttar Pradesh in the weeks after the kharif harvest is produced by a system: a short window between the paddy harvest and the wheat sowing, widened by groundwater legislation in Punjab that delayed transplanting and so compressed the harvest end of the cycle; the near-absence of a market that pays the farmer for straw, against the cost of machinery or labour to remove or incorporate it; and a combine harvester technology that leaves tall stubble the next operation must deal with. A prohibition addressed to the individual farmer, at the moment when his private cost of compliance is highest and the smoke’s damage is borne by a city hundreds of kilometres away, is the textbook shape of a collective-action problem, in which each burning is rational and the aggregate is ruinous. The legal instruments deployed reflect that awkwardness: the National Green Tribunal prohibited residue burning in the capital region states by order in 2015 and pressed the states for incentive and machinery schemes; the Commission Act of 2021 empowered the new commission to impose and collect environmental compensation from farmers for stubble burning at prescribed rates; and the burden of policy has in practice been carried by subsidised machinery, in-situ incorporation equipment and ex-situ uses of straw, which are fiscal instruments, not prohibitions. The Air Act plays no part in any of it, and could not: a field is not an industrial plant, its burning is not an emission through an outlet, and no control area declaration turns the statute toward it. To call that a failure of the Act is accurate only if one first concedes that the Act was the wrong tool for the problem, which is the design critique in its precise form.

One borderline source deserves separate mention because it tests the Act’s categories so neatly: the diesel generator set. A generator set has an outlet, burns fuel in an appliance and sits on identifiable premises with an occupier, so it looks like the Act’s natural subject; yet the premises it serves, the hospital, the housing society, the office tower, the market, are often not an industrial plant, and a consent file for the building’s generator is not the ordinary course. The standards that govern generator emissions are prescribed under the Environment (Protection) Rules by capacity class, and in the capital region the graded response machinery bans or restricts generator use on bad-air stages, with exemptions argued over for essential services, so that the source is governed, like dust, by the umbrella statute and the emergency protocol rather than by the Act whose definitions it fits best. Borderline sources are where classifications go to be embarrassed, and the generator set is this statute’s standing embarrassment, a point source regulated everywhere except in the point-source Act.

Domestic fuel completes the rows. The smoke of the cooking fire, wood, dung and crop waste burnt indoors and vented into the lanes of a settlement, is on any health accounting among the gravest air exposures in the country, and it is met by no pollution statute at all. The instrument has been the liquefied petroleum gas connection, distributed as welfare and energy policy, the Pradhan Mantri Ujjwala Yojana being its largest vehicle. Where the Air Act’s map ends, the welfare state begins, and the boundary is worth noticing because it shows how much of Indian air policy is not environmental law in the statutory sense at all.

The courts as air regulator

Into the space the statute left, the courts walked, and the history of Indian air quality cannot be told without them. The vehicular-pollution proceedings in the Supreme Court, conducted over many years within M.C. Mehta’s litigation over Delhi’s environment, are treated in this series in the account of environmental jurisprudence in the Supreme Court, and their holdings as public law are owned by that article; what belongs here is the institutional fact. Faced with vehicular emissions that the Air Act could reach only through a written instruction from a Board to a registering authority, the Court in the late 1990s simply directed the outcome itself: it ordered the conversion of Delhi’s bus fleet, and in time of its taxis and auto-rickshaws, to compressed natural gas, pressed the phase-out of old commercial vehicles, and superintended fuel quality and emission deadlines, with the converted fleet on the road in the years after its 1998 directions. A later generation of the same displacement appears in the National Green Tribunal’s 2015 prohibition on diesel vehicles older than ten years plying in Delhi and the capital region, a restriction the Supreme Court declined to disturb, under which a class of vehicles lost its right to the road not by any Air Act standard but by adjudicatory order. Whatever view is taken of such orders as constitutional method, and that debate belongs to the jurisprudence article, their existence is evidence in this article’s inquiry: they are what a legal system produces when its ambient statute cannot reach the source that matters.

A second judicial theatre makes the same point in the industrial field itself. In the Taj Trapezium litigation, the Supreme Court confronted the yellowing of the Taj Mahal by the emissions of the foundries, glass works and chemical units of Agra and the Mathura refinery, and in its orders of 1996 directed industries in the trapezium zone to switch to natural gas as fuel or to close or relocate, a technology-and-fuel mandate imposed on hundreds of units by adjudication and later supported by a statutory authority for the zone constituted under the Environment (Protection) Act. The episode is usually remembered as heritage protection. For the student of the Air Act its significance is different: a regional industrial airshed, the trapezium, had to be invented by a court and then by notification, because the Act’s declared areas and consent files, unit by unit, had no way to express the proposition that the aggregate load of a whole zone was the problem. The Commission Act of 2021 is the Taj Trapezium lesson written as legislation for the capital region, a quarter of a century later.

The noise case law shows the same judicial energy working with, rather than around, the statutory text. In the Church of God (Full Gospel) in India case, the Supreme Court held that no religion prescribes that prayers should be performed through voice amplifiers or the beating of drums, and that the use of microphones and loudspeakers in religious places is subject to the noise rules like any other use. In Re Noise Pollution, decided in 2005, the Court issued a body of directions on loudspeakers, public address systems, vehicular horns and firecrackers, resting the analysis substantially on the right to life and on the existing body of noise regulation, and fixed the night hours during which the use of loudspeakers and high-volume sound systems is restricted. Both lines of authority lean on the settlement the 1987 amendment and the Noise Rules created, the pollutant status in the Air Act and the standards under the umbrella statute, and together they mark the one field in which the Air Act’s own text, through its definition, genuinely supplies the foundation of a working modern regime.

Noise: the pollutant that arrived by a two-word amendment

The insertion of the words including noise into the definition of an air pollutant, by the amending Act 47 of 1987 with effect from 1 April 1988, is the most consequential parenthesis in the Indian environmental code. Before it, noise was a nuisance matter, governed by police powers, municipal provisions and scattered rules, with no statutory home in pollution law. After it, noise was, in the eyes of the principal air statute, an air pollutant, present in the atmosphere at concentrations tending to be injurious, and the whole conceptual apparatus of pollution control, standards, zones, measurement in decibels and restriction by time of day, could be and was organised around it. The amendment also captures something true about the medium: the atmosphere is the carrier of sound as it is the carrier of smoke, and the statutory family that regulates what the air carries had no principled reason to exclude the one pollutant that is pure energy rather than matter.

The working law of noise, however, is not in the Air Act either, and the division of labour repeats the pattern of the standards story. The Noise Pollution (Regulation and Control) Rules, 2000 were made by the Central Government under the Environment (Protection) Act, 1986, and it is they that divide the world into industrial, commercial, residential and silence areas or zones and prescribe ambient air quality standards in respect of noise for each, seventy-five decibels by day and seventy by night in an industrial area, sixty-five and fifty-five in a commercial area, fifty-five and forty-five in a residential area, and fifty and forty in a silence zone, the day running from 6 a.m. to 10 p.m., with the silence zone drawn around hospitals, educational institutions and courts. The Rules restrict loudspeakers and public address systems at night, regulate horns and construction equipment, and assign enforcement principally to the police and the district administration, with the boards in support. Noise, alone among the pollutants in this article, also acquired a dedicated measurement network: the Central Board’s national ambient noise monitoring network, with real-time stations in the metropolitan cities, reports day and night levels against the zone standards of the Noise Rules, and its published results, year after year, show the residential and silence zones of the great cities in breach of their night limits as a matter of routine. The network matters to the argument because it demonstrates what the system does when a pollutant is actually assigned a standard, a zone map and a monitor: it discovers, documents and publishes its own failure with great precision, while the enforcement, resting with police and district authorities for whom noise is one duty among hundreds, continues to move at the speed of the complaint and the festival calendar. Measurement without a dedicated enforcing hand is the noise regime’s lesson, and it generalises.

The firecracker litigation completes the noise picture and shows the courts again carrying a standard-setting load. Noise limits for firecrackers were prescribed through the umbrella statute’s framework and the Central Board’s work on standards, and in Arjun Gopal v. Union of India the Supreme Court in 2018 regulated the sale and composition of firecrackers on a national scale, restricting licences, addressing barium salts and joined crackers, and treating the festival-season cracker as an air pollution problem as much as a noise one. The doctrinal home of the case is the jurisprudence article; its place here is as evidence that when a diffuse, seasonal, culturally embedded source needed governing, the governing was done by a court working with umbrella-statute rules, and the Air Act appeared, as so often, in the recitals rather than in the operative directions.

A citizen kept awake by a generator or a procession therefore lives legally between two statutes: the grievance is an air pollutant because the Air Act says so, and the remedy is a noise rule because the umbrella statute made it. The oddity is stable in practice, and the examination answer and the practitioner’s answer are the same: cite the Air Act for what noise is, and the Noise Rules for what may be done about it.

An airshed gets a statute: the Commission of 2021

The institutional confession that the 1981 design could not govern an airshed came in two stages, one executive and one legislative. The executive stage was the Environment Pollution (Prevention and Control) Authority for the National Capital Region, constituted by notification S.O. 93(E) of 29 January 1998 under section 3 of the Environment (Protection) Act, chaired by Bhure Lal, a former Union secretary, and armed with the umbrella statute’s direction powers. The EPCA, born of the Supreme Court’s pressure in the Delhi air litigation, was the system’s first airshed-minded body: a single authority for a multi-state region, issuing directions across state lines on fuels, industries and transport. It worked for over two decades, and its existence was always an anomaly inside the board system, one region with a coordinator and the rest of the country with none.

The legislative stage began when executive improvisation was replaced by ordinance. The Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, Ordinance 13 of 2020, was promulgated on 28 October 2020, dissolving the EPCA and installing a statutory Commission; the Ordinance lapsed when it was not approved by Parliament in the following session, and a second Ordinance, Ordinance 4 of 2021, revived the scheme in April 2021, until Parliament enacted the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021, Act 29 of 2021, dated 12 August 2021, which repealed the Ordinance and the EPCA’s constituting notification, dissolved the EPCA and declared the transfer of its work. The Commission the Act creates is a large, deliberately composite body: a chairperson of seniority in public administration, representatives of the Central Government and of the governments of Delhi, Haryana, Punjab, Rajasthan and Uttar Pradesh at chief-secretary level, technical members including representation from the Central Board and the Indian Space Research Organisation, and non-governmental members. Its functions, stated in the Act, cover taking measures, issuing directions, entertaining complaints and coordinating for the prevention and control of air pollution in the region; its directions bind the authorities and persons to whom they are issued; the Act carries an overriding effect over inconsistent instruments; and it may impose and collect environmental compensation from farmers for stubble burning. Under the Commission, the Graded Response Action Plan, the staged protocol of measures that tightens as the capital’s air quality index worsens, first notified in January 2017 under the Environment (Protection) Act, is implemented and revised, so the region’s emergency playbook and its standing regulator sit in the same house.

The Commission’s geography deserves one precise note. Its charge is the National Capital Region together with the adjoining areas, the districts of Haryana, Punjab, Rajasthan and Uttar Pradesh that adjoin the region and from which pollution travels into it, so its writ follows the movement of air across state lines up to the boundary the Act draws. Inside that field it works through standing sub-committees for monitoring and identification of sources, for safeguarding and enforcement, and for research, and it inherits the functions the EPCA had accumulated, including the review of the graded plan and the power to call for reports from any authority in the region. A body of this design could not have been created by amending the Air Act’s board chapters, which are built of states and declared areas; it required its own Act, and it got one.

Set beside the Air Act, the Commission Act is a photographic negative. Where the 1981 Act is organised by state and by declared area, the Commission is organised by airshed. Where the 1981 Act speaks almost only to industry, the Commission’s remit runs across transport, dust, waste and agriculture within its region. Where the 1981 Act works through boards deemed from another statute, the Commission was purpose-built, with the states inside it rather than instructed by it. The Commission has its own critics, on grounds of centralisation and of the accountability of an appointed body for decisions with electoral weight in five polities, and those criticisms are live ones. But as evidence about the Air Act the 2021 statute is unambiguous: when the Indian state finally legislated seriously for a whole body of air, it did not amend the Air Act to do it. It wrote a new Act.

Air that is measured: standards, indices and the national programme

A statute that defines pollution by concentration invites a measurement regime, and the measurement regime that grew up around the Air Act is the part of the system a citizen is likeliest to meet. The National Ambient Air Quality Standards, laid down by the Central Board under its section 16(2)(g) power and comprehensively revised in 2009, prescribe limits for twelve pollutants. The 2009 revision was itself a turning point in the system’s maturity: it brought fine particulate matter, the fraction small enough to enter the bloodstream, within the standards for the first time, rationalised the limits for the coarse fraction and the gases, and dropped the older practice of gentler standards for residential areas in favour of a broadly uniform national standard with stricter treatment reserved for ecologically sensitive areas. A revision of ambient standards is the closest the system comes to a legislature redefining clean air, and it happened, characteristically, not in Parliament but in the Central Board acting under a clause of a 1981 statute, among them particulate matter of both principal sizes, sulphur dioxide, nitrogen dioxide, ozone, carbon monoxide, lead, ammonia, benzene, benzo(a)pyrene, arsenic and nickel, with separate limits for industrial and for ecologically sensitive areas in specified cases. The standards define the legal meaning of clean air for regulatory purposes: a city whose monitored values exceed them is in non-attainment, and non-attainment is the trigger for planning obligations. The monitoring network that produces the values, run by the Central Board, the State Boards and partner institutions through continuous and manual stations, is the physical plant of the section 16 function, and the data feed the public reporting on which every winter’s debate about the capital is conducted.

Two executive instruments complete the measurement story, and both must be kept in their correct legal places. The National Air Quality Index, launched by the environment ministry in April 2015, converts the concentrations of eight pollutants into a single number and a colour-coded descriptor of health concern for the day; it is a communication instrument of great public effect, and it is created by no statute, resting on the monitoring system and executive decision. The National Clean Air Programme, launched by the Ministry of Environment, Forest and Climate Change in January 2019, is a national strategy for the cities in non-attainment: it covers one hundred and thirty-one non-attainment and million-plus cities, sets a target, stated by the ministry at the programme’s launch as a reduction of twenty to thirty per cent in particulate concentrations by 2024 against a 2017 base and later revised to forty per cent by 2025-26, and works through city-specific action plans prepared by the states and reviewed nationally. Neither the index nor the programme amends the Air Act; both draw their statutory oxygen from the ambient standards the Central Board lays down under it and from the planning functions of the boards. Aspirants comparing city action plans, monitoring reports and source apportionment studies, which circulate between ministries, boards and universities principally as slide decks and scanned memoranda, can open such compliance presentations directly in the browser through the ReportMedic PPT viewer without downloading them, a small working convenience in a field where the primary material is rarely published as clean text.

The physical network beneath these instruments is itself two networks of different vintages. The manual stations of the National Air Monitoring Programme sample the air on a twice-weekly cycle of twenty-four-hour measurements, a design from an era of filter papers and laboratory weighing, and their readings arrive with a lag and at a rhythm that cannot describe a single bad day. The continuous stations, which report hourly values and feed the index, are concentrated in the larger cities and along the Indo-Gangetic plain where the winter crisis is a public event. A national programme and a national index therefore rest on a base that is dense where the debate is loudest and thin where exposure is quiet, and the city action plans under the national programme inherit the unevenness: a plan is only as good as the inventory of sources beneath it, and the preparation of source inventories and apportionment studies for the listed cities has been the programme’s slowest component, for the same reason of technical manpower that runs through the boards themselves. Measurement, in this field, is not a preliminary to governance; it is one of its scarcest resources.

The gap the measurement regime exposes is not legal but factual, and it belongs in any honest account: a monitoring network measures the air that reaches its stations, and stations are thickest where institutions are thickest. Whole categories of exposure, the indoor smoke of the domestic-fuel row of the table, the occupational exposure inside small unregistered units, the construction worker’s dust, are measured thinly or not at all. The statute’s ambient standards are uniform for the nation; the nation’s knowledge of its own air is not.

Two critiques of the Act, and the one the record supports

Criticism of the Air Act comes in two families, and they are often run together when they should be separated, because they call for opposite conclusions about the statute. The first is the enforcement critique: the Act is sound but unworked. Its evidence is formidable. Audits by the Comptroller and Auditor General of state boards, and assessments by the Centre for Science and Environment of the board system, have repeatedly recorded sanctioned technical posts standing vacant in large fractions, laboratories unequal to the sampling load placed on them, and inspections too few to make the consent file a reliable description of the plant. The consent process itself, in such accounts, degenerates into correspondence: applications in standard form, conditions reproduced from template, renewals granted on paper assessments, and cancellation proceedings so rare against connected units that the power reads as reserve artillery rather than working law. The decriminalisation debate added a chapter to this critique: if boards could not prosecute, the critics asked, what in their record suggests they will adjudicate penalties under section 39A with greater energy, and who audits the adjudicating officers? On its own ground, against organised industry, in the declared areas, this critique is substantially conceded by this article: the machinery is better than its manning, and the manning has been the state’s choice, year after year, in budget after budget.

The prosecution record under the old criminal scheme is the critique’s single most telling exhibit, and it should be characterised exactly. A consent universe that runs to lakhs of industrial units produced, under a section carrying a mandatory minimum of eighteen months’ imprisonment, a number of prosecutions visible in the boards’ own reporting as a thin file rather than a body of case law: the reported appellate jurisprudence on section 37 convictions is sparse enough that the section’s deterrent reputation rested almost entirely on its text. Magistrates, asked to imprison a manager for a standard exceedance proved on a sampling chain of the fragility described earlier, acquitted or the boards, anticipating acquittal, did not file. The result was the worst configuration a sanction can have, too severe to use and too visible to repeal, and it persisted for over four decades because the severity itself was the argument against touching it. The 2023 settlement, whatever its defects, at least addressed a real and long-demonstrated pathology, and the critics of decriminalisation are at their weakest when they write as though the criminal decades were a golden age of deterrence from which the Act has fallen.

The most serious attempt to make the old system think in areas rather than units deserves recording here, because it shows the design’s limits from inside. The Central Board’s assessment of industrial clusters on a Comprehensive Environmental Pollution Index, scoring clusters on the quality of their air, water and land and the health evidence, identified critically polluted areas across the country, and the environment ministry in 2010 imposed a moratorium on new and expanding projects in the worst of them until action plans were prepared and implemented. For a season, the consent system was made to answer a question it was not built for, not whether this plant meets its conditions but whether this place can bear another plant at all, and the moratorium was lifted cluster by cluster as plans were worked. The episode changed practice in the clusters; it did not change the statute, and its instrument was, once again, an executive direction laid over the Act rather than an amendment within it. The system kept discovering airsheds and kept declining to legislate them, until the capital forced its hand in 2021.

The second family is the design critique, and it is the one this article defends: for the problem India actually has, the statute regulates the wrong subset of sources however well it is run. Its logic has been built through the article and needs only assembly. The Act’s operative concepts, industrial plant, emission through an outlet, occupier, consent, sample, are a point-source technology. The exposure that determines Indian public health is dominated, on the apportionment evidence, by distributed sources with no consent point: the vehicle fleet, dust from roads and construction, the burning of waste and of biomass for cooking and for clearing fields. A perfectly staffed State Board, granting perfect consents, collecting perfect samples and adjudicating every penalty, would by itself move a city’s annual average particulate level only modestly, because the largest shares of the burden would remain exactly where the Act never looks. The historical record corroborates the structural argument: at each moment when the system confronted a non-industrial source seriously, the vehicle, the airshed, the emergency protocol, the noise regime’s working rules, it reached for another instrument, a motor vehicle rule, a judicial direction, an umbrella-statute rule, a new commission Act. The enforcement critique explains why the Act underperforms in its province. The design critique explains why its province is not the country’s problem, and the second is the deeper truth about the statute.

The state’s own conduct since 2019 amounts to a confession on the design point. The National Clean Air Programme does not instruct the boards to enforce the Air Act harder against industry and stop there; its city action plans are required to address, city by city, road dust, construction, vehicular emissions, waste burning and domestic sources, which is to say the programme’s architecture is multi-source precisely because the statute’s is not. A government that believed the 1981 design sufficient would have written a programme of industrial enforcement. It wrote a programme of everything the Act leaves out, administered by committees of the same governments, funded outside the Act, and measured against the Act’s ambient standards. The programme is the design critique, adopted as policy by the only institution whose adoption matters.

Two qualifications keep the verdict honest. First, the design critique is not an acquittal for the enforcement failure: within the industrial province the Act’s standards, honestly administered, are the difference between the organised sector’s emissions being a managed quantity and their being an open one, and the cities where boards function visibly are better for it. Second, the design gap was a reasonable inheritance in 1981, when the visible, prosecutable, licensable source was the factory and the science of apportionment did not exist in Indian administration; it became indefensible only as the evidence accumulated and the statute was left unamended in its coverage, through decades in which the same Parliament found time to widen its definitions to noise and to rework its sanctions twice. The Act was amended where amendment was easy and left alone where amendment was hard, which is a legislative pattern wider than this statute.

The Act at work: the anatomy of a consent file

For the practitioner, and for the examinee who wants the statute as it is lived rather than as it is printed, the Air Act reduces to a file that accumulates over the life of a plant, and the file’s anatomy is worth one section because every power in the Act leaves its paper in it. It opens with the application for consent to establish, with the site particulars, the raw materials and fuels, the processes, the points of emission and the control equipment proposed, and the Board’s inspection of the site before the order issues. Consent to establish granted, the plant is built; the application for consent to operate follows, with the installed equipment as built, and the first consent to operate fixes the operative conditions described earlier in this article, the fuels, the stacks, the limits, the validity. Renewals punctuate the file at the validity’s end, each preceded in principle by inspection and, where the Board samples, by the section 26 record and the analyst’s report. Adverse entries accumulate their own sub-file: the show-cause notice proposing refusal or cancellation, the hearing, the order; or the direction under section 31A, with the electricity board’s compliance when a stoppage of supply is directed; or, after 2024, the adjudicating officer’s notice and order where a penalty is proposed. Appeals under section 31 and section 31B carry the file upward, and the writ court receives it whole.

Into the same file, once a year, goes the plant’s account of itself: the environmental statement that every occupier holding consent must submit to the State Board under the Environment (Protection) Rules, reporting the year’s consumption of water, energy and raw materials, the pollutants discharged, the wastes generated and the conservation measures taken. The statement is self-reported and rarely audited line by line, but its discipline is real, because a false statement is the occupier’s own signed evidence in any later proceeding, and because the annual rhythm of the statement, like the renewal rhythm of the consent, keeps the plant inside a calendar of accountability that a purely prohibitory statute, enforced by occasional prosecution, never achieves. The Act governs by recurrence as much as by force: application, inspection, consent, statement, renewal, each turn of the cycle an opportunity for the Board to ask a question and for the file to thicken. Where the cycle is honestly worked, the system regulates. Where the papers are filed and the questions are not asked, the same cycle is the enforcement critique’s evidence, filed annually, in the regulated community’s own hand.

Read as the file reads it, three features of the Act become plain that a bare reading of sections can miss. The first is the Act’s reliance on renewal as its principal moment of leverage: a board that cannot easily prosecute can always decline to renew, and the discipline of the system is exercised disproportionately at the renewal counter, which is why consent validity periods matter and why their graduation by category was an enforcement reform and not merely a convenience. The second is the evidentiary asymmetry the file creates: the plant’s own applications, returns and monitoring records are the Board’s best evidence against it, which is why the information and false-information provisions matter and why the duty to intimate an accident under section 23 cuts against the occupier’s instinct so sharply. The third is the file’s silence about everything outside the gate. The file of the most compliant plant in an industrial estate records nothing about the trucks that serve it, the road that carries them, the waste burnt behind it or the fields beyond the estate wall. The map of the Act is the sum of its files, and its files end at the boundary of the premises. That is the design critique one final time, this time in documentary form.

The verdict on the Air Act 1981

What, then, is this statute for? It is the licensing constitution of Indian industrial air emissions: it fixes who may set up and run a plant in a declared area and on what conditions, what may lawfully come out of the plant’s outlets, how that is to be sampled and proved, what happens when it is exceeded, and through the Central Board’s ambient standards it supplies the definition of acceptable air against which every other instrument in the field, including the national programme and the capital’s commission, silently measures itself. Judged on that charter, and discounting for the manning its governments chose to give it, the Act is a workable, durable piece of institutional legislation whose consent machinery still structures the environmental life of every organised factory in the country.

Judged as India’s air pollution law, the thing its short title promises, it is a partial answer mistaken for a whole one. The largest sources of the air Indians breathe are governed, where they are governed at all, by motor vehicle rules, by umbrella-statute rules for waste and construction, by judicial orders earned city by city, by welfare policy for the cooking fire, and, in the one region where the problem grew impossible to ignore, by a purpose-built commission statute that superseded the 1981 design rather than extending it. The Air Act 1981 endures, and will go on being examined, cited and complied with, because the province it governs is real. The lesson it teaches the reader of Indian legislation is the one with which this article began: read the operative sections, count the sources they reach, and never mistake a statute’s title for its jurisdiction.

There is a second lesson, about how Indian statutes grow, and the Air Act teaches it as clearly as any in this series. Its institutions were borrowed entire from a seven-year-old statute for another element; its definitions were widened once, in 1987, when experience showed a pollutant missing and a power absent; its sanctions were rebuilt once, in 2024, when the criminal scheme was conceded to have failed as a working deterrent; and its coverage was never rebuilt at all, because coverage is where statutes meet interests, and it was easier at every point to govern the new sources somewhere else, in rules, in programmes, in court orders, in a new commission, than to reopen the settlement of 1981. The result is an environmental code whose centre of gravity sits outside its named statutes, in instruments a citizen cannot find by reading the Acts. To study the Air Act is therefore to study two things at once: a competent, functioning licensing statute for industrial emissions, and the archaeology of everything Indian air governance had to build around it when the air refused to confine itself to chimneys.

Frequently Asked Questions

Q: What does the Air Act 1981 regulate?

The Air Act 1981 regulates air pollution from industrial plants. Its core machinery is aimed at premises: a State Board’s consent is required to establish or operate an industrial plant in a declared air pollution control area, the Board lays down standards for emissions from plants, emissions above those standards are prohibited by section 22, and Boards can sample emissions, issue directions including closure under section 31A, and enforce penalties. The Act also empowers the Central Board to lay down standards for the quality of air itself. What it does not regulate directly is the daily traffic of sources outside the factory gate: vehicles, dust, waste burning and crop burning are governed by other laws.

Q: Why was the Air Act enacted under Article 253?

Because Parliament wanted one law for the whole country without waiting for the states. The Act implements the decisions of the 1972 Stockholm Conference on the Human Environment, in which India participated, and Article 253 of the Constitution lets Parliament legislate for the whole of India to implement an international conference decision, regardless of the State List. That is why section 1 says the Act extends to the whole of India and why it commenced everywhere on 16 May 1981. The Water Act 1974, by contrast, used Article 252 and applied at first only to the states whose legislatures had passed resolutions asking Parliament to legislate.

Q: What happens when an air pollution control area is declared?

A declaration under section 19, made by the state government by Gazette notification after consulting the State Board, switches on the Act’s operative prohibitions in that area. From the declaration, no industrial plant may be established or operated there without the State Board’s previous consent under section 21, the Board’s emission standards govern discharges, and the state government may prohibit the use of unapproved fuels and unapproved appliances in the area. Plants already operating when the area is declared receive transitional protection: if the operator applies for consent within the period section 21 allows, the plant is deemed to run with consent until the application is decided.

Q: Is noise covered by the Air Act?

Yes, by definition, but the working rules sit elsewhere. The Air (Prevention and Control of Pollution) Amendment Act, 1987 inserted the words including noise into the definition of an air pollutant in section 2(a), with effect from 1 April 1988, so noise is an air pollutant in the eyes of the Act. The standards that govern it, zone-wise decibel limits for industrial, commercial, residential and silence areas, are laid down by the Noise Pollution (Regulation and Control) Rules, 2000, made under the Environment (Protection) Act, 1986, and enforcement rests mainly with the police and the district administration. The Air Act supplies the pollutant status; the umbrella statute supplies the operative regime.

Q: Who issues consent to operate an industrial plant for air emissions?

The State Board for the state in which the plant stands, that is, the State Pollution Control Board, issues consent under section 21 of the Air Act 1981. Consent is needed twice over: consent to establish before the plant is set up in an air pollution control area, and consent to operate before it runs, ordinarily renewed periodically. The Board must grant consent with conditions or refuse it by a reasoned written order within four months of the application. In Union territories, the Central Board performs the State Board’s functions. In practice the air consent is usually processed together with the consent under the Water Act 1974, since the same board administers both.

Q: What penalties does the Air Act carry after decriminalisation?

Since 1 April 2024, when the Jan Vishwas (Amendment of Provisions) Act, 2023 amendments took effect for this Act, contravention of section 22 or of a direction under section 31A carries a money penalty of ten thousand rupees to fifteen lakh rupees, imposed by an adjudicating officer, with a further ten thousand rupees for every day a contravention continues. Similar penalties cover other contraventions. The appeal lies to the National Green Tribunal on depositing ten per cent of the penalty. Prison survives in two places: operating a plant without consent remains punishable with imprisonment of one year and six months to six years, and failing to pay a penalty within ninety days is itself an offence.

Q: Does the Air Act cover vehicle emissions?

Not directly, and barely at all. The Act defines an automobile in section 2(e) and empowers State Boards under section 17(1)(g) to lay down emission standards for automobiles, and section 20 lets a State Board issue binding instructions to the authority that registers motor vehicles where vehicle emissions are likely to add to pollution in a control area. But no consent, sampling or penalty provision of the Act applies to a vehicle. Vehicle emission standards in force, the Bharat Stage norms and the pollution under control certificate, are prescribed under the Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, and enforced by transport authorities and the police.

Q: Which body enforces air quality in the national capital region?

The Commission for Air Quality Management in National Capital Region and Adjoining Areas, created by the Act of that name, Act 29 of 2021. The Commission replaced the Environment Pollution (Prevention and Control) Authority, which had coordinated the region since 1998, after two ordinances in 2020 and 2021. It includes the Central Government and the governments of Delhi, Haryana, Punjab, Rajasthan and Uttar Pradesh, can issue binding directions across the region, implements the Graded Response Action Plan, and can levy environmental compensation, including on farmers for stubble burning. The State Boards and the Central Board continue their functions, but air quality management for the region is the Commission’s charge.

Q: What is an air pollutant under the Air Act 1981?

Section 2(a) defines an air pollutant as any solid, liquid or gaseous substance, including noise, present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. The definition turns on presence in the atmosphere at an injurious concentration, not on the identity of the source, which is why the same definition can support ambient standards for a whole city’s air. The words including noise were added by the 1987 amendment. Related definitions matter too: an emission is a substance coming out of a chimney, duct, flue or other outlet, which quietly confines the Act’s enforcement model to point sources.

Q: What must an industry do when an accident causes emissions above the prescribed standards?

Section 23 places a duty on the person in charge of the premises. Where an emission above the Board’s standards occurs, or is apprehended to occur, because of an accident or another unforeseen act or event, he must intimate the occurrence forthwith to the State Board and render all reasonable assistance to it. On receiving information, where the Board considers remedial measures necessary, it must cause those measures to be taken and may recover the cost from the person concerned. The duty is one of immediate disclosure and cooperation, separate from any penalty that may follow for the excess emission itself.

Q: Can a citizen complain against an air pollution offence, and what notice is required first?

Yes, but only after notice to the Board. Under section 43, a court takes cognizance of an offence under the Act on a complaint by the State Board or its authorised officer, on the complaint of the adjudicating officer, or on the complaint of any other person who has given notice of not less than sixty days, in the prescribed manner, of the alleged offence and of his intention to complain, to the Board or its authorised officer. The sixty-day notice gives the Board a chance to act on its own complaint first. The citizen’s route therefore exists, but it is deliberately slower than the Board’s own route.

Q: How does the Air Act 1981 differ from the Environment (Protection) Act 1986?

The Air Act is a sectoral statute and the Environment (Protection) Act is an umbrella statute. The Air Act works through specialised boards, consent for industrial plants, emission standards and sampling, and concerns one medium. The 1986 Act gives the Central Government general power over all environmental media: to set standards, to make rules on any environmental subject, to constitute authorities and to issue binding directions to any person, officer or authority under its section 5, including directions to close an industry. Much of the working law used alongside the Air Act, including the Noise Rules 2000, the waste rules and industry-specific emission standards in the Environment (Protection) Rules, is made under the 1986 Act. Both statutes rest on Article 253.

Q: Are the Pollution Control Boards under the Air Act the same bodies that work under the Water Act?

Yes. Sections 3 and 4 of the Air Act deem the Central and State Boards constituted under the Water Act 1974 to be the boards for the Air Act as well, so the Central Pollution Control Board and each State Pollution Control Board administer both statutes with the same members, officers and laboratories. Where a state had no Water Act board, section 5 provides for constituting a Board under the Air Act itself, and in Union territories the Central Board performs the State Board’s functions under section 6. The deeming device meant the Air Act was operational from its commencement in 1981 without a new institution being built.

Q: What are the National Ambient Air Quality Standards, and who lays them down?

The National Ambient Air Quality Standards prescribe the acceptable concentrations of pollutants in the air itself, as distinct from limits on what a single source may discharge. They are laid down by the Central Pollution Control Board under clause (g) of section 16(2) of the Air Act, which empowers the Board to lay down standards for the quality of air. The standards were comprehensively revised in 2009 and cover twelve pollutants, including particulate matter, sulphur dioxide, nitrogen dioxide, ozone, carbon monoxide and lead, with separate limits for ecologically sensitive areas in some cases. A city whose monitored air exceeds the standards is treated as a non-attainment city for planning purposes.

Q: Is the Air Quality Index a creation of the Air Act?

No. The National Air Quality Index, launched by the environment ministry in April 2015, is an executive communication instrument: it converts measured concentrations of eight pollutants into one number and a colour-coded health descriptor for the day. No provision of the Air Act creates it, and it carries no legal consequence of its own. Its connection with the statute is indirect: the monitoring network of the Central and State Boards generates the measurements the index reports, and the index’s breakpoints are related to the National Ambient Air Quality Standards that the Central Board lays down under section 16(2)(g) of the Act.

Q: Can the Air Act stop the burning of crop residue in agricultural fields?

No, and the reason is structural. The operative chapters of the Act fasten on an industrial plant in a declared control area and on emissions through an outlet. A field of paddy stubble is not an industrial plant, open burning is not an emission sampled under the consent regime, and no declaration under section 19 makes the Act’s machinery fit the problem. Crop residue burning has instead been addressed by orders of the National Green Tribunal prohibiting it in the capital region states, and, under the Commission for Air Quality Management Act 2021, by environmental compensation that the Commission may impose on farmers, alongside state programmes of machinery subsidy and straw management.

Q: What happens if an industrial plant is established or operated without the State Board’s consent?

It remains a criminal offence even after the 2023 decriminalisation. Section 39D of the Air Act, inserted by the Jan Vishwas (Amendment of Provisions) Act, 2023, punishes establishing or operating an industrial plant in an air pollution control area without the consent required by section 21 with imprisonment of not less than one year and six months and extending to six years, with fine. A continuing failure after conviction draws an additional fine of up to fifty thousand rupees a day, and if the failure continues beyond one year after conviction, the imprisonment rises to between two and seven years. The Board can also direct closure under section 31A.

Q: Can an order of a State Board under the Air Act be appealed, and to which forum?

Yes. Section 31 gives a person aggrieved by an order of the State Board, such as a refusal or cancellation of consent, an appeal to the Appellate Authority constituted under the Act, within the period the section prescribes. Section 31B, inserted by the National Green Tribunal Act, 2010, then gives an appeal to the National Green Tribunal against an order of the Appellate Authority, and against a direction issued by a State Board under section 31A. Orders of an adjudicating officer imposing a penalty after the 2023 amendments are appealed directly to the National Green Tribunal under section 39B, on depositing ten per cent of the penalty.

Q: If the Air Act does not govern vehicle emissions, why did Delhi’s buses convert to CNG?

Because the Supreme Court ordered it. In the long-running vehicular pollution proceedings within M.C. Mehta’s litigation on Delhi’s environment, the Court in the late 1990s directed the conversion of the capital’s bus fleet, and in time its taxis and auto-rickshaws, to compressed natural gas, and pressed the phase-out of old commercial vehicles and cleaner fuels. The orders rested on the constitutional right to life and the Court’s continuing supervision, not on any Air Act provision, since the Act reaches vehicles only through a State Board’s instruction to the registering authority under section 20. The CNG conversion is the standard example of adjudication filling a gap the statute left.

Q: What is the Graded Response Action Plan, and is it issued under the Air Act?

The Graded Response Action Plan, or GRAP, is a staged emergency protocol for Delhi and the national capital region: as the Air Quality Index worsens through prescribed stages, progressively stricter measures take effect, from dust control and restrictions on diesel generator sets to curbs on construction activity, entry of trucks and certain vehicles. It is not issued under the Air Act. It was first notified in January 2017 under the Environment (Protection) Act, 1986, and is implemented and revised by the Commission for Air Quality Management under its 2021 Act. The Plan’s stages key off the Air Quality Index, which is itself an executive instrument rather than a creature of the 1981 statute.