The Right to Breathe as a Constitutional ‘Essential’
Introduction
“Human Rights, Our Everyday Essentials,” the official theme for International Human Rights Day, 2025, calls for the world to pause and reflect on a striking paradox. While the Universal Declaration of Human Rights (‘UDHR’) represents one of the most extraordinary normative global commitments, its substantive guarantees are quite ordinary. The theme serves as a reminder that human rights are not lofty abstractions but concrete legal entitlements, essential for dignified human existence.
This framing bears particular relevance in India’s national capital, where every winter, the city descends, almost ritualistically, into a smoggy haze that renders the simple act of breathing into a civic battle cry. Individuals are compelled to assert a basic right to clean air, not as an environmental ideal but as a prerequisite for the most elementary act of survival. In such a setting, the struggle for “everyday essentials” as a matter of right becomes literal. As the Slovenian scholar Slavoj Žižek might suggest, this situation exposes the “obscene underside” of our legal order, wherein the most banal gesture of life becomes a point of political and juridical contestation. Legally, this public outcry, or rather, vindication points to two concerns: first, an insistence that the State recognise and secure a life-sustaining entitlement; and second, an indictment of the State’s failure to guarantee these entitlements.
At this point, it becomes pertinent to ask why individuals are compelled to vindicate a right to something as basic as breathing clean air. Within a constitutional framework as evolved and comprehensive as India’s, one would assume that these basics are guaranteed and such contestations unwarranted. Against this backdrop, this essay examines how Indian constitutional law has responded to this basic demand, specifically, how the right to breathe is emerging as a substantive environmental right. The essay is restricted to anthropocentric rights discourse and does not engage with eco-centric theoretical approaches.
The Constitutional Location of the Right to Breathe
A bare reading of the text of the Constitution of India indicates the lack of an explicit mention of the right to breathe clean air. However, through creative and evolving rights-based jurisprudence, Constitutional courts have read, or perhaps breathed, this right within the ambit of Article 21 of the Constitution. Early judicial interpretations decisively moved away from the archaic, survival-based conception of life by reading ‘life’ to encompass dignity, health, and conditions necessary for meaningful human existence. Within this normative shift, the idea of a ‘right to a healthy environment,’ and by extension, a right to the constitutive elements that make up a healthy environment, emerged almost as a necessary corollary. If dignity and humane living are constitutionally protected, then decent environmental quality is not merely a policy aspiration, but a constitutional imperative.
This doctrinal trajectory, however, invited certain deliberative questions. Article 21 is instantiated, at least textually, as a negative right: “no person shall be deprived of life or personal liberty”. This framing is primarily one of restraint, requiring the State to refrain from actions that infringe one’s liberty or deprive individuals of the conditions necessary for life. This naturally implied that the right to a clean environment would principally be a negative right, whereby the state must refrain from actions that interfere with the right to a clean environment. It cast the State in a ‘do-no-harm’ role, as opposed to the demanding position of an environmental custodian. This rights-as-restraint model subtly rested on the presumption that the baseline environment was already adequate for survival or a dignified living, and that the State’s principal obligation was non-interference. However, empirical realities reveal that this assumption was profoundly myopic.
Subsequent jurisprudence pushed negative rights beyond this narrow textual framing. Negatively framed rights were interpreted to entail positive duties by the State as well. This expansive reading was also extended to environmental rights. In cases such as Subash Kumar v. State of Bihar (1991), courts have affirmed that the enjoyment of life necessarily includes access to a pollution-free environment, further recognising ‘fresh air’ as an essential component. This positive framing of environmental rights meant that the state, as a concomitant duty-bearer, had obligations to prevent environmental degradation, to improve the state of the environment, and undertake remediation of environmental damage. Importantly, the right was treated not merely as a defensive shield against State action or an injunction against state interference, but as a basis for imposing positive obligations on the State to protect, respect, and fulfil environmental rights. This was a significant shift. Drawing environmental protection out of the soft-focus realm of directive principles of state policy and into the domain of enforceable fundamental rights enabled individuals to seek judicial remedies when environmental quality deteriorated. The recognition that disturbances to air, water, or soil strike at the core of Article 21 consolidated the understanding that environmental harm is not peripheral to constitutional aspirations.
More recently, cases such as M.K. Ranjt Sinh & Ors. v. Union of India & Ors. (2024), have deepened this trajectory by explicitly linking environmental rights with State action to address climate change. The recognition of a constitutional right against the adverse effects of climate change signals an important evolution in environmental rights-reasoning. The Supreme Court also framed climate vulnerability as a question of equality under Article 14, thereby underscoring that failing to empower vulnerable communities to adapt to climate impact constitutes a constitutional violation of the right to equality. It acknowledged that environmental degradation is not evenly distributed and that its burdens fall disproportionately on marginalised groups. The court’s observation that “the inability of underserved communities to adapt to climate change or cope with its effects violates the right to life as well as the right to equality” (¶ 25) appears to signal an implicit, though unarticulated, engagement with principles of distributive justice. It acknowledges the unequal allocation of adaptive capacity and the disproportionate burdens borne by marginalized communities in the context of climate change.
Theoretical literature on distributive justice in the context of climate adaptation frames justice as an obligation to prioritise those most vulnerable to climate impacts. Drawing on the Rawlsian notion of justice, this would imply that the allocation of adaptive resources should be guided by differences among communities. This requires that social and institutional arrangements to be structured so as to improve the position of the worst-off. Pollution and environmental harm thus emerge as equality concerns insofar as they map onto, and exacerbate, existing socio-economic hierarchies. Empirical evidence demonstrates that socially and economically marginalised groups are exposed to higher levels of environmental risk while simultaneously possessing fewer material and institutional resources to cope with or adapt to such harms. This is also particularly evident in context of air pollution in India. The Court’s articulation of climate vulnerability under Articles 14 and 21 can therefore be understood as gesturing towards a constitutional framework in which environmental protection, distributive justice, and substantive equality are mutually reinforcing, rather than analytically distinct, commitments.
The recalibration of environmental rights by the courts as solidarity rights, also prompts the understanding that the right to air clean air is inherently incapable of being secured through individual action alone or just state action. Unlike certain socio-economic rights which can be secured through targeted State provision to identifiable beneficiaries, clean air is a non-excludable public good. No individual can secure it in isolation, and its enjoyment depends on shared restraint and coordinated governance. Its protection therefore requires regulatory action by the State, compliance and positive measures by private actors whose activities generate emissions, and public participation in monitoring, advocacy, and behavioural change. This solidarity dimension is further underscored by the intergenerational nature of air pollution, as present governance failures impose long-term harms on future generations. Understanding clean air as a solidarity right also clarifies the relevance of contemporary protests and public demands, which seek not individual remedies but collective accountability and coordinated action across institutions and public at large.
Reflections: Between Recognition and Realisation
Despite its conceptual richness, the articulation of the right to breathe clean air within the constitutional framework raises a few questions, as is evidenced from the fact that Delhi’s residents must still struggle for this seemingly robust right. The first question arises in context of semantics around the phrase ‘a healthy environment’. As the right to a healthy environment has been expressly understood to mean a ‘pollution-free’ environment, questions arise with regard to the feasibility of a ‘pollution-free environment’ in a developing state. Courts have repeatedly recognised development itself as a right, implying that some degree of environmental impact is inevitable. Given this duality, courts have relied on guiding principles of environmental law, such as the sustainable development principle to state that the nature and extent of permissible, or rather inevitable development must be limited to what can be sustained by the environment and ecological systems. What remains unresolved is the threshold question: what level or degree of pollution is constitutionally acceptable and how is this threshold determined? The contestation around this question drives much of contemporary environmental conflict in India and is starkly reflected in the recent protests for clean air in Delhi, where citizens are not merely demanding affirmative government action but are contesting state complacency that is insufficiently grounded in scientific rigour. For example, India’s distancing from international air-quality rankings and the World Health Organisation’s guidelines, has raised concern that the rejection of widely accepted standards weakens environmental and public health protection.
Case law affirming the right to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard has ostensibly answered this. Yet, what remains unclear is what this means in quantifiable, objective, pollution metrics. Without clear direction on what the acceptable threshold is, and how it can be achieved by the State, these observations may suffer from being mere moral compasses. Proportionality analyses, often invoked by the courts to resolve conflicts between competing constitutional claims, offers a potential doctrinal framework for environmental adjudication. In this context, proportionality could structure a judicial assessment of whether pollution-intensive developmental activities, which may support economically marginalised communities, are constitutionally defensible considering their environmental and public health impacts. It could also assess whether less harmful alternatives are reasonably available. However, in the absence of clearly defined benchmarks, a proportionality analysis also risks collapsing into discretionary and inconsistent balancing. These developments foreground the need to consider whether constitutionally anchored, ambient air quality standards are required to impart substantive meaning to concepts such as “minimal disturbance” to guide both judicial review and state action.
A second tension arises from the risk of reliance on a negative-rights framework. The environmental crises confronting India today, be it urban smog, industrial emissions, vehicular congestion, waste mismanagement, or climate-induced disasters, are not the result of excessive State interference. They are symptoms of State absence: regulatory paralysis, weak enforcement, fragmented governance, and insufficient imagination in environmental planning. A purely negative right, or one with ill-defined state duties, is structurally incapable of addressing these failures. Effective air quality management must be proactive rather than reactive, grounded in inter-state coordination to address transboundary pollution. It must be supported by anticipatory planning that accounts for seasonal and structural emission sources. In this context, recent judicial interventions calling on authorities to either guarantee access to clean air or reduce the GST on air purifiers from 18 per cent to 5 per cent underscore a deeper policy failure. Such directions, while providing short-term relief, implicitly acknowledge gaps in institutional capacity and regulatory enforcement. They also raise important questions about equity, as market-based solutions (such as air purifiers) shift the burden of protection from the state to individuals, privileging those who can afford them. The obligation must not simply to respond when the air becomes toxic, but to ensure that such toxicity never materialises. Prevention, in this context, is fulfilment.
The third reflection lies in how the intergenerational rights perspective fundamentally reshapes how legal protection for the right to clean air is conceived, by demanding that constitutional and judicial frameworks account for those not yet born. Contemporary scholarship underscores that future generations currently lack direct legal standing, yet their interests can be operationalised through doctrines such as intergenerational equity and evolving constitutional interpretation. Instead of treating rights as static entitlements of present individuals alone, an intergenerational constitutionalism approach embeds future interests into the temporal horizon of rights-based law, compelling states to consider long-term environmental harms in interpreting rights of life, health, and a healthy environment
A fourth reflection concerns the role of procedural rights. Courts have acknowledged the importance of right to information, public participation in environmental decision-making and access to justice. However, as environmental conflicts intensify, these procedural guarantees are calling for an expansion. The right to protest environmental harm, for instance, has emerged as an essential democratic safeguard. Yet, its situation remains precarious situated in the face of growing restrictions on civic space, reflected in the policing of recent protests in Delhi, including the imposition of prohibitory orders and the arrest of demonstrators. This invites a deeper inquiry: do environmental defenders require a distinct layer of constitutional protection, perhaps akin to the United Nations Environment Programme’s (‘UNEP’) Environmental Defenders Policy? The Policy urges states to exercise zero tolerance for threats, harassment, or violence against environmental defenders, to recognise their legitimate role in environmental protection. As environmental contestation becomes more fraught, procedural guarantees on these lines may need to evolve from peripheral safeguards into central pillars of environmental constitutionalism.
Finally, environmental protection must be understood as a matter of equity, and not merely ecology. Pre-existing inequalities are further exacerbated by air pollution and climate impacts. The burden of toxic air is borne most acutely by those with the least capacity to protect themselves. Recognising this distributive injustice is essential for giving substantive content to the right to breathe. It transforms environmental protection from a technocratic exercise into a project of social justice.
This shows that the evolution of the right to clean air reflects both remarkable progress and some ambiguities. While courts have articulated an expansive and morally compelling vision, the real challenge lies in operationalising these rights on the ground.