Parliament House, New Delhi. Photo: Reuters.
On October, 22 2020, then US President Donald Trump surprised many of his followers in India by calling India’s air ‘filthy’. It could be a mere coincidence – but in a swift move quite uncharacteristic of India’s law-making process, the Government of India promulgated an ordinance on October 28 to set up a dedicated commission to improve air quality in the National Capital Region (NCR) of Delhi.
Called the ‘Commission on Air Quality Management’ (CAQM), the ordinance was submitted immediately to the Supreme Court. The apex court has been hearing matters of air pollution in NCR for more than two decades, and the government wanted to prove that it was serious about tackling the issue. The commission was described as an expert body, and like most expert bodies constituted in the recent past, the position of its head was to be reserved for a retired generalist bureaucrat. Former petroleum secretary M.M. Kutty was later appointed its chairperson.
The birth of the commission led to the end of the Environmental Pollution Prevention and Control Authority (EPCA), thus closing the 22-year-long innings of another retired bureaucrat, Bhure Lal.
It was clear from the beginning that the CAQM was designed to fail. In the five months of its existence, its single major failing was that almost nobody even knew it existed. It had no office, email address, website or even a phone number through which people could contact its offices. The government gave the CAQM the power to hear grievances of the people affected by air pollution, but the main grievance of the people was finding the commission itself.
Last week, the commission ceased to exist because the ordinance that created it lapsed. Under Article 123 of the Indian Constitution, an ordinance issued by the President of India is required to be laid before Parliament within six weeks of the house’s reassembly or that it will cease to operate. The reason is simple: an ordinance is an exercise of executive power, vested in our ministers and bureaucrats, to respond to an extraordinary situation, and which does not go through the normal legislative process of being approved by members of the legislature. Therefore, an ordinance needs to be ‘laid’ before the legislature within six weeks of its promulgation or it will lapse.
Note here that the constitution requires only minimal action on the government’s part to ensure legislative supervision over executive action – that it must be laid within a period of six weeks. The constitution does not require that it must be passed within six weeks.
In this context, it’s relevant to discuss both the need for the CAQM ordinance to deal with the air pollution crisis, the implications of the government’s failure to present the ordinance before Parliament and what the end of the commission means for the National Capital Region.
Ordinances and environmental crises
During the constituent assembly debates, there was serious apprehension about resorting to ordinances as a means to enact a law. One member of the assembly, K.T. Shah, said that promulgating an ordinance as a “negation of the rule of law”. Shah’s concern was that even when the government issues an ordinance to rise up to “extraordinary circumstances”, we must not overlook the fact that it was passed without debates and discussion. In Shah’s words:
… the very fact that it is an extraordinary or emergency power, that it is a decree or order of the executive passed without deliberation by the legislature, should make it clear that it cannot be allowed, and it must not be allowed, to last a minute longer than such extraordinary circumstances would require. (CAD Vol. 8, p. 208)
The idea of giving ordinances a finite lifetime is the basis of Articles 123 and 213, which require them to be laid before the legislature within six weeks after the legislature has reassembled or even earlier if a resolution disapproving it is passed. A constitution bench of the Supreme Court has also held that the “failure to lay an ordinance before the legislature amounts to an abuse of the constitutional process and is a serious dereliction of the constitutional obligation”.
Other than the failure on the government’s part to lay the ordinance before Parliament, there is a larger issue of whether the ordinance itself represents a correct or right approach to deal with a long-standing environmental problem. The only other instance in which the government resorted to an ‘environmental ordinance’ was in 1980, with the Forest (Conservation) Ordinance to deal with the extraordinary situation arising out of Kerala’s decision to clear trees in the western Ghats for the Silent Valley hydroelectric power project. The Centre needed to assert its power and prevent the forest’s destruction, and it had no power to stop the use of forest land for non-forest purposes at the time.
But in the case of air pollution in the NCR – there was nothing stopping the Centre or the state government from issuing directions to control air pollution. The Environment (Protection) Act 1986 empowers the former to do so. The National Green Tribunal also has all the powers vested in the commission to deal with air pollution.
The yearly spike in air pollution levels in North India, with the onset of winter, is no longer an ‘extraordinary situation’. It is practically an annual event and we all know it is coming. Therefore, there is no valid ground to resort to ’emergency provisions’ to avoid the normal legislative process with an ordinance. In Krishna Kumar (2017), the Supreme Court observed powerfully that “open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through law-making”.
The fact that the commission set up as a result of the ordinance did practically nothing during its brief existence is a self-fulfilling prophecy: there was no need to promulgate the ordinance.
The way forward
The Supreme Court in Krishna Kumar clearly held that “re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a parliamentary democracy”. According to the court, “The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the State Legislatures which have been constituted as primary law-givers under the Constitution.”
The lapse of the CAQM ordinance also demonstrates the government’s lack of seriousness in dealing with air pollution as an issue. In terms of judicial decisions, the demise of the CAQM represents a dereliction of duty and the abuse of power. It is also telling that the CAQM itself only made news when it was born and when it died. It performed no task worth mentioning when it lived, and there is no need to mourn the death of this institution.
The commission replaced EPCA, which, barring a few instances, was not able to prevent the cities in NCR from becoming a globally notorious pollution hotspot. So as such, the position of a body to effectively steward India’s efforts to reduce air pollution continues to lie vacant.
What we need today is long-term institutional reform and structural changes in national environmental governance. This in turn requires public debates and discussion, political will, institutional support and social acceptance of a variety of changes. India’s air pollution crisis is a perennial problem and has in fact become a new ‘normal’. Against this background, knee-jerk judicial and administrative action and ad hoc solutions will only prevent long-term solutions. As the experience with the Commission on Air Quality Management has shown, it will only be a matter of time before ‘extraordinary’ measures vanish in thin air.
Ritwick Dutta is an environmental lawyer.