Traffic moves on a smoggy morning in New Delhi, October 23, 2020. Photo: Reuters/Danish Siddiqui.
The Central government has brought in a new law through an Ordinance which was promulgated by the President on the 28 October, 2020. This is the second instance in India where the Centre has issued an Ordinance on an issue related to environment. The first one was in 1980 when the Forest (Conservation) Act, 1980 was initially passed as an Ordinance. In its statement on objects and reason, the Ordinance recognises that the lack of permanent, dedicated and participative mechanism adopting a collaborative and participatory approach.
It further notes that the ‘source of air pollution, especially in the National Capital Region (NCR), consists of a variety of factors which are beyond the local limits of the NCR’. Further, ‘Air pollution is not a localised phenomenon and effects are felt even far away from the source, thus creating the need for regional level initiatives through inter state and intercity coordination’.
Having correctly identified the regional nature of the problem and the need to go beyond the local, it goes on to state that there is a need ‘for a permanent solution and establish a self regulated, democratically monitored mechanism to tackle air pollution in the National Capital Region and Adjoining Area’. In addition, the said committee aims to replace all other committees and ad hoc bodies dealing with pollution. However, in reality, there is only one committee that the new body will replace, which is the Environment Pollution (Prevention and Control) Authority, or EPCA, – set up in 1998 by the Ministry of Environment and Forests.
Headed by former IAS officer Bhure Lal, EPCA has largely failed to fulfil its mandate. The new body is called the ‘Commission for Air Quality Management in National Capital Region’. It is interesting that though the Ordinance mentions air quality management in ‘adjoining areas’ of the NCR, the focus is not on improving the air quality in these areas. Rather, the ‘adjoining areas’ will be considered for air quality management only of it is causing adverse impact on air quality in the NCR. This proves that the main purpose of this Ordinance is to improve the air quality only in the NCR.
Unless the Centre sets up similar committees in other polluted regions of the country, it violates the right to equality under Article 14 of the Constitution and discriminates against those who are not in the NCR. Clearly, there are equally if not more polluted regions which are beyond the NCR.
Section 3 of the Ordinance deals with the composition of the ‘Commission for Air Quality Management in National Capital Region and Adjoining Areas’. It is clear from the composition that it is a civil servants’ club. The 15-member permanent body is to be headed by a former secretary to the Government of India or chief secretary to a state government. There is no requirement for any prior experience or expertise in the field of environment in general or air pollution. The ex-officio members comprise chief secretaries or secretaries dealing with the subject of environment in the states of Delhi, Haryana, Punjab, Rajasthan and Uttar Pradesh.
Of the 15 members, only three members representing NGOs have been included. The commission has been given power to co-opt members, but the majority are ministries that are engaged in actions that contribute to the pollution – Ministry of Power, Housing and Urban Affairs, Road Transport and Highways, and Petroleum and Natural Gas. The only exception is the Ministry of Agriculture.
The crucial ministries that are missing are the Ministry of Rural Development, the Ministry of Health and Family Welfare and the Ministry of Labour. Air pollution impacts health, restrictions imposed to control air pollution impacts labourers and dealing with stubble-burning requires incentives in the domain of rural development.
Importantly, no farmers’ body has been allowed to be co-opted as members while “representatives of any association or commerce or Industry” can be co-opted as member (Section 3 (3) (g)).
Power and functions
The commission has been given a power similar to the one conferred on EPCA. EPCA, in its 22 years of existence, had rarely exercised its statutory powers and had become an advisory body to the Supreme Court. The same thing is likely to take place with regard to the new commission. Section 12 gives power to entertain complaints. Such power already existed with EPCA, but was never exercised. The same is likely to continue with the new commission.
The reason is simple. Under the Ordinance, if an offence has been committed, a complaint has to be filed before a judicial magistrate first class. 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 reason that the EPCA never filed a single complaint case in the 22 years of its existence.
As far as punishment is concerned, it may seem progressive that the non-compliance or contravention will invite imprisonment for a period of five years and/or with a fine of up to one crore rupees. However, in reality, this puts a limit on the fine that can be imposed and is directly contrary to the ‘polluter pays’ principle. The National Green Tribunal in numerous cases has imposed fines of up to Rs 150-200 crore for polluting the environment. But the Ordinance puts an unrealistic limit of Rs 1 crore, irrespective of the amount of damage caused.
This is a regressive provision, and shows that legislation on the environment should not be promulgated through the ordinance route. The principle of participatory democracy requires effective public consultation before enacting any law and regulation. Informed and participatory decision-making leads to enactment of legislation that is implementable and is able to achieve its goals.
There is no doubt that the EPCA had long outlived its utility. Unfortunately, it is being replaced by a body that is bureaucratic and has similar limitations as the EPCA. Despite including members from other states, it has excluded significant stakeholders, the most prominent being the farmers and their representative groups. Further, it continues to see air pollution as a scientific and technical issue, overlooking the social aspects of the problem.
Finally, there is disproportionate representation from agencies and ministries that are responsible for the problem on the body. As it is currently constituted, the new commission is neither representative nor independent as a body to deal with the issue of air pollution. One can hope that there will be serious debate when the Government presents this ordinance after Parliament reopens.
Ritwick Dutta is an environmental lawyer.