A man rides a bicycle on a smoggy morning near India Gate in New Delhi, October 17, 2019. Photo: Reuters/Anushree Fadnavis.
New Delhi: With rising concerns over air pollution in the National Capital Region (NCR), the Centre has promulgated an ordinance to set up a permanent commission to monitor the air quality in New Delhi and its adjoining areas.
The ordinance came a day before the apex court’s hearing on air pollution.
Under the ordinance, the Environment Pollution (Prevention and Control) Authority (EPCA) has been dissolved and replaced by a new commission, dubbed the Commission for Air Quality Management in National Capital Region and Adjoining Areas
The commission will comprise nearly 20 members and be headed by a chairperson who is or has been a secretary of the Centre or the chief secretary of a state. The commission will be headquartered in the NCR and will also include a representative from the environment ministry and five ex-officio members – chief secretaries or secretaries in charge of the environment protection in Delhi, Punjab, Haryana, Rajasthan and Uttar Pradesh.
S.N. Tripathi, an atmospheric scientist at IIT Kanpur and a member of the steering committee of the National Clean Air Programme (NCAP), said in a press release that the creation of a single body for coordinating actions amongst different states was a welcome step. Tripathi also said that the ECPA was crippled because it had representation only from within the NCR.
“This commission is so much broader in purview, by bringing in secretary rank members to head it and populating it with officers from the central government, various departments and ministries which represent the polluting sectors,” he said.
Sunil Dahiya, an analyst at the Centre for Research on Energy and Clean Air, said that the EPCA had similar powers to those of the newly formed commission – “but failed miserably in cleaning the air even after being in force for more than 20 years”. The success of the new commission depended on the ground implementation of the ordinance and whether strict action was meted out towards polluters, he said.
However, Ritwick Dutta, an environmental lawyer and founder of the Legal Initiative for Forests and Environment, said that there being no need “for any prior experience or expertise in the field of environment or air pollution” to be appointed to the commission, it is effectively a “civil servants’ club”.
The commission, according to the ordinance, will also be empowered to “take all such measures, issue directions and entertain complaints” to protect and improve the quality of air in NCR and will have the power to lay down parameters for air quality, emission and discharge of environmental pollutants, carrying out investigations into problems of environmental pollution and preparation of codes or guides for prevention and abatement of air pollution.
Dutta said that the main purpose of the ordinance was to improve the air quality in the National Capital Region and manage the air quality in the ‘adjoining areas’ if they were adversely impacting air quality. In the absence of similar committees in other polluted regions of the country, the ordinance “violates the right to equality under Article 14 of the Constitution and discriminates against those who are not in the NCR,” Dutta said.
Dahiya also felt that the commission disproportionately emphasised the Delhi-NCR region. “We have hazardous air pollution situation throughout most of the country and the ordinance fails to address that issue,” he said.
Navroz Dubash of the Centre for Policy Research also held that the commission was rather “bureaucratic” and that air pollution was not solely a problem within NCR. “The fact that it was created practically overnight, with no discussion and input, does not inspire confidence that it will open the doors to a more fruitful conversation and action across all interests,” he added.
He also noted that the absence of “clear benchmarks of progress” was disappointing. “If the commission is to create spaces for more creative solutions, it should send a signal to industries, power plants, farmers, car owners, construction firms and all others that the status quo is no longer tenable,” he said.
The commission will also be able to take up matters on a suo moto basis, provide a framework to tackle stubble burning and will submit annual reports to the parliament.
Violating orders by the commission can attract a punishment of imprisonment up to a term of five years with a fine that may extend up to Rs 1 crore. Dutta said that while this amount seemed like a progressive step, it in fact contradicts the ‘polluter pays’ principle. In numerous cases, Dutta said, the National Green Tribunal had imposed fines of up to Rs 150-200 crore on polluters. But “the ordinance puts an unrealistic limit of Rs 1 crore irrespective of the amount of damage caused,” he said.
On the commission’s power to entertain complaints, Dutta said that a similar power had been vested with the EPCA but the body never exercised it. “Under the ordinance, if an offence has been committed, a complaint has to be filed before a Judicial Magistrate First Class,” Dutta explained. “Given the fact that a majority of members of the commission are serving government servants, including chief secretaries and secretaries, it would amount to filing cases against themselves. It is for this very reason that EPCA never filed a single complaint … before the magistrate in the 22 years of its existence.”
The ordinance also said the commission would have at least three sub-committees for monitoring and identification, safeguarding and enforcement, and R&D. Finally, the commission will have “exclusive jurisdiction” in NCR on matters relating to air quality management. In case of a conflict between the commission’s orders and those of the state governments or state pollution control boards, the commission will overrule them. However, Tanushree Ganguly, a programme associate at the Council for Energy Environment and Water, also said the ordinance had only set up a dedicated authority to curb air pollution in NCR but failed to outline the sectoral mandates.
On Monday, the Supreme Court had suspended the appointment of retired Justice Madan B. Lokur as a one-man committee to monitor air pollution and stubble burning after the Centre, via the solicitor-general Tushar Mehta, assured the apex court that the government would create a permanent body by law to battle air pollution in the next few days.
Dutta also said that as a democracy, there should be effective public consultation prior to enacting any law and regulation. “It has excluded significant stakeholders, the most prominent being the farmers and their representative groups,” he said and added that the ordinance effectively overlooked the problem’s social aspects. In fact, he continued, “There is disproportionate representation from agencies and ministries which are responsible for the problem.”