To protect all Indians from air pollution, the Parliament has passed an amendment to establish carbon markets. I intend to look at air as a legal person through the prism of common property and expose the duplicity posed by this ineffective solution. Before establishing why air needs to be armed with legal personhood, it is vital to classify air as a common property. This is crucial for acknowledging its importance as a shared resource in sustaining life and establishing the public interest in protecting it for future generations.
How is air a common property? Firstly, it is non-excludable. If resources are invested in enhancing air quality, no one can be ‘excluded’ from reaping the advantages. Nobody owns air, but the whole world has a common claim on it. Everyone becomes a free rider, and the air falls prey to the ‘Tragedy of Commons’, where industries continuously externalise their costs by disposing toxic gases into the atmosphere to maximise profits. By virtue of its non-excludability, free-rider problem, and unrestricted use, air is a common property.
Public health and quality of life significantly depend on the air we breathe. Hence, it becomes consequential to award ‘air’ the rights of a legal person to cater to the “social and developmental needs of society”. Legal personhood permits non-human entities to have rights and responsibilities similar to humans, allowing them to engage in legal activities.
Indian courts have conferred legal personhood on the Ganga and its glacier source. This radical step also includes fundamental rights. Consequently, the intention is to extend the legal personhood doctrine to air in India while it can be realised through the doctrine of parens patriae, which is based on the State’s ability to protect common resources when citizens cannot do so themselves. Nonetheless, this doctrine is problematic when the State is a major polluter itself. To circumvent this, the Atrato judgement (in Columbia) can be implemented in India. It gives power to communities to choose representatives other than the government.
After arguing for the recognition of air as a legal person, the hypocrisy of carbon markets in the name of ‘cleaner air’ can be unravelled. Carbon credits are traded on carbon markets. While each credit represents the ‘right to pollute’, Indian jurisprudence on air pollution validates the ‘right to clean air’ as a fundamental right under Article 21. In Subhash Kumar vs State of Bihar, it was held that “the right to live is a fundamental right under Art 21 of the Constitution, and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life.”
Naturally, the ‘right to clean air’ trumps the ‘right to pollute’ on ethical, doctrinal, and Constitutional grounds. Through Articles 47 and 48A, the Constitution endorses the ‘right to clean air’ by putting the onus on the State to improve public health and the environment, both of which get adversely affected due to air pollution. Furthermore, Indian cases have imported the ‘polluter pays principle’ and ‘precautionary principle’ to stress holding polluters accountable and preventing the abuse of air.
Secondly, the ‘right to pollute’ can be brought under the ambit of the ‘right to destroy’ because pollution is harmful for the atmosphere. Jus abutendi, the right of destruction, makes up one of the three major categories of rights under private ownership. Seeing that air is a common good owned by no one, nobody has the right to use it unreasonably.
Lastly, emissions trading puts a price tag on the natural world. This overlooks its intrinsic value and compromises “the sense of shared responsibility that increased global cooperation requires”. Carbon markets turn a fine into a fee. Emitting greenhouse gases is a harmful act that should be punished, not treated as another business cost. The term ‘fee’ removes moral responsibility and diminishes the severity of pollution. Moreover, it is easy for a business to buy more credits and pollute more.
Establishing a carbon market in India is a counter-productive solution that should be combated by bestowing air with legal personhood.
(The writer is a second-year law student at OP Jindal Global University.)