The Supreme Court decided to increase the pressure on the Centre and states. Last winter, the apex court had ruled that stubble burning was a violation of people’s right to life under Article 21. But last month, it decided to take the matter into its own hands.

“We just want that the people of Delhi-NCR breathe fresh air without any pollution”, a bench headed by Chief Justice S A Bobde said on October 16th, after appointing retired Justice Madan B Lokur as a one-man committee to take steps to prevent stubble burning in Punjab, Haryana and Uttar Pradesh. And set October 26th for the next hearing.

On that day, Solicitor General Tushar Mehta said the Centre had taken “a holistic view of the matter and a comprehensive law is being planned with a permanent body with the participation of neighbouring states,” and  requested the apex court to hold the appointment of Lokur in abeyance.

Mehta underscored the fact that the several ad-hoc measures taken by the Supreme Court in the past had done little to prevent stubble burning, and said the Centre would come out with a law “within 3-4 days.”

On October 29th, the Solicitor General presented to the bench headed by CJI Bobde an ordinance, signed by  President Ramnath Kovind the previous night. Titled “The Commission For Air Quality Management (CAQM) in National Capital Region and Adjoining Areas Ordinance, 2020”, the 24-page document aims to provide “better coordination, research, identification and resolution of problems surrounding the air quality index and for matters connected therewith or incidental thereto.”

In fact, it was the apex court that has been driving efforts to check air pollution in the NCR, which used to become “severe” with the first nip in the air, come mid-October without fail every year.

First the SC banned paddy stubble burning and asked state governments to pay farmers Rs 100 an acre as subsidy. Plus, at an “emergency hearing” on Nov 4, 2019 , it attempted to bring an “immediate solution to the problem” by issuing about a dozen directions including banning diesel generators, sprinkling roads, ending coal-based industries, banning construction and demolition activities in the NCR.

The super commission

Now, under the new Ordinance, for the first time, the jurisdiction of all issues pertaining to air quality management in NCR has been entrusted to a single 18-member Commission comprising bureaucrats, experts, citizen groups and representatives from all the concerned states.

The Commission subsumes all other agencies that till now were handling different aspects of poor air quality, with one stroke doing away with all the coordination issues previously encountered. The Lokur committee, the Supreme Court-mandated Environment Pollution Control Authority and even the environment ministry have all been left out in the new law.

In fact, no court, including the Supreme Court, will have any role henceforth – other than dealing with the constitutional validity of the Ordinance and its clauses. The National Green Tribunal alone is now authorized to hear cases and appeals against rules, directions and decisions of the Commission. 

Environmentalists were quick to endorse the new law. “It showed the intent and determination of the union government to mitigate the high levels of air pollution in the Delhi-NCR region,” said Bhure Lal who headed the EPCA, and EPCA member Sunita Narain, Director General of the Centre for Science and Environment

In their letter to Prakash Javadekar, union minister of Environment, Forests and Climate Change,  Bhure Lal and Sunita Narain mentioned the next phase of the agenda for clean air and the need for fourth generation reforms that will necessitate massive augmentation of intra-city public transport and moving industries, power plants and other users away from polluting fuels like coal to natural gas, electricity and renewable energy to control emissions.

A wide ambit

The law was clearly in the works for some time and many ministries have chipped in. Now the apex court will study the Ordinance, in its next hearing on November 6th.

An environment ministry officer said, on condition of anonymity, that aiming to achieve clean air in the capital through judicial interventions and state governments working in silos had not helped, necessitating the  new law. Work on it had begun in December last, he said. With air pollution no longer being confined to just the Delhi NCR, the law may well be a template to deal with AQI elsewhere in the country, he added.

The CAQM will not confine itself to stubble burning or vehicular pollution or industrial units that belch out toxic fumes, but all these and much more. As the ordinance points out: “It has become necessary to evolve and implement a consolidated approach for monitoring, tackling and eliminating the causes for air pollution and identifying, specifying and rigorously enforcing measures for elimination and mitigation of air pollution.” 

The commission replaces “multitudes of Committees, task forces, Commissions and informal groups formed temporarily or otherwise, by various orders of the constitutional courts or the Central or state governments concerned, to synergise the efforts, limit duplication, ensuring constant policy innovations, through inter-state and inter sectoral cooperation.”

The Commission, whose members are yet to be named, has sweeping powers. Non-compliance or contravention of any provisions of the Ordinance, rules under it and orders or directions of the Commission could result in imprisonment upto five years, or a fine that may go up to Rs 1 crore, or both.

It will have exclusive jurisdiction on all matters relating to air pollution in this region, and whenever there is a conflict with the orders of the state governments, the order or direction of the Commission will prevail.

The Chairperson will be headed by a secretary level officer, and nine of the 18-member Commission will be senior officers from different ministries and state governments. Besides, it will have three technical or subject experts, three NGO representatives, and one representative each from the Central Pollution Control Board, the Indian Space Research Organisation and NITI Aayog.

The Commission can also coopt associate members from other ministries, industry bodies etc. There will be sub-committees each on Monitoring and Identification, Safeguarding and Enforcement, and Research and Development.

Why only NCR?

“The creation of a  Commission for Air Quality Management (CAQM) is not a trivial change,” say Prof Navroz K Dubash, Santosh Harish and Shibani Ghosh of the Centre for Policy Research. “This commission could possibly help improve capacity to address the problem and set uniform standards and enforcement protocols. However, there are several other impediments to achieving clean air, and the ordinance does little to overcome that.”

 “This was the chance for the government to institutionalise an airshed-level approach to air quality, an idea that is now widely accepted,” add Dubash and his colleagues. “It could have provided a framework for an airshed-level approach in different parts of the country. But an NCR-specific law signals — yet again — that the rest of the country which experiences similarly severe pollution levels is not as important as the Capital region.”

There is also the apprehension, expressed by some political observers that the commission will end up as a bureaucratic, Delhi-centric body, which could be influenced by industry lobbies.

NCR residents had got a taste of clear skies with excellent air quality during the days after the national lockdown on March 25th. It is unlikely that the new Commission can bring back those days for this winter season. Much depends on how innovative and effective the Commission is, even though it has not been given any deadlines or expected outcomes.

Given India is among the top 5 polluted countries according to the “The State of Global Air 2020” report, the Commission will hopefully be under pressure to perform. And hopefully the Centre will extend this effort to the rest of the country.

As Congress leader and former environment minister Jairam Ramesh pointed out in a tweet, “There are at least 88 critically polluted clusters across India, identified in 2010. The entire country demands and deserves clean air”. 

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