Centre brings new law to tackle NCR air crisis

The Union government issued an ordinance and put in place a new anti-pollution agency with sweeping powers spanning five north Indian states where it will monitor and act against sources of dirty air, armed with the ability to lay down rules, set emission standards, and hand out fines of up to Rs 1 crore or send violators to prison for up to five years.

The ordinance, issued by the ministry of law and justice as per its commitment to Supreme Court, sets up what will be an 18-member Commission for Air Quality Management (CAQM) for the National Capital Region (NCR). Its members will be drawn from Union ministries, NGOs and administrations from each of the five NCR or NCR-adjacent states: Delhi, Haryana, Punjab, Uttar Pradesh and Rajasthan.

“We will do everything on a war footing to curb air pollution,” solicitor general Tushar Mehta told the Supreme Court on Thursday, days after the government sought time from the judges to create a permanent mechanism to tackle a persistent problem.

The new commission replaces all ad-hoc committees and bodies created under court orders, including the SC-appointed environment pollution control authority (Epca), which was tasked with overseeing air pollution control in NCR since 1998.

Since 2015, the air in the national capital and in much of the Indo-Gangetic plains plunges into hazardous levels as a consequence of farm fires, pre-winter meteorological conditions, and festivals, when more people crowd markets, and use firecrackers.

“We like to have a look at the Ordinance before passing any order. Let the petitioner also go through it and make suggestions,” chief justice SA Bobde said, adjourning the case to November 6. The hearing was related to a petition seeking the court’s intervention in farm fires in NCR and adjacent regions.

Pollution levels in the air were at its worst yet this season, with the air quality index (AQI) in the Capital settling at 395 – merely six notches below what’s considered severe. This directly appeared to correlate with the number of farm fires in Punjab and Haryana, which hit a new peak on Wednesday. Data from US’s National Aeronautics and Space Administration (Nasa) showed 2,633 fires in the two states.

Farm fires are likely to be one of the focus areas of the new commission, which will be headed by a retired bureaucrat, include eight technical members, and three from non-governmental organisations. The commission will be a statutory authority and its 18 fulltime members will be appointed by the central government. The committee will have the powers to issue directions, entertain complaints; regulate and prohibit activities that are likely to cause or increase air pollution, lay down parameters and standards; restrict industry, activities, processes; direct the closure, or prohibit any polluting activity in Delhi-NCR and adjoining areas.

The new mechanism also brings in a completely new, centralised regime of pollution control with appeals against any order or direction of the Commission can be made only at the National Green Tribunal. No civil court will have jurisdiction to entertain any suit or proceedings against the decisions of the Commission.

The Central Pollution Control Board (CPCB) and state pollution control boards will continue to function but in case of a conflict, the commission’s orders will prevail. Defying any orders or violating rules that will be laid down by the commission will be punishable with prison term of up to five years or with a fine which may extend up to ₹1 crore or with both.

Members of Epca wrote to the environment minister on Thursday welcoming the decision on the new commission. “Over the past many years, we have worked to find solutions and to recommend action through our reports to government and to the honourable Supreme Court. We are grateful for the consideration given to our work and to the fact that many of our recommendations have been implemented,” said the letter by Epca’s chairperson Bhure Lal and member Sunita Narain, recounting a list of initiatives government departments had taken on the panel’s recommendations.

“...The next phase of the agenda for clean air; fourth generation reforms need to be deliberated upon and implemented. That will necessitate the massive augmentation of intra-city public transport, and to move industries, power plants and other users away from polluting fuels like coal to natural gas, electricity and renewable to ensure clean combustion,” the letter added, listing out seven areas that the new commission will need to address.

Legal and environmental experts, however, raised several concerns with the ordinance including a lack of consultation and possible overriding powers that the Centre may now wield.

“There several concerns with this ordinance, starting with the fact that legal and regulatory changes to tackle public issues like air pollution, need a democratic conceptualisation. At the outset, it is clear that the central government has taken control over the pollution control matters in the Delhi-NCR region,” said Kanchi Kohli, legal researcher, Centre for Policy Research.

“This starts with the fact that the chairperson of this commission is a central government appointee. The commission will be heavily dominated by bureaucrats, to whom the legal frameworks gives various powers. The enforcement mechanism is clearly top down and so far there is no indication that it will include third party monitoring and be citizen driven enforcement,” Kohli added.

During the hearing at the top court, senior advocate Vikas Singh appearing for the petitioners –environment activists Aditya Dubey and Aman Banka – told the Court that the air quality in the city was worsening and the ordinance would not provide any quick-fix solutions.

Singh said, “Till the next hearing, let the Justice Lokur Committee take steps to control stubble burning in order to address the problem of air pollution.” The bench replied, “We shall hear you on what steps can be taken by the Commission under the Ordinance. These steps can be considered by the Solicitor General on the next date.”

Earlier this month, the Court appointed former apex court judge justice Madan Lokur as a one-man commission to conduct surveillance of stubble burning in neighbouring farmlands of Punjab, Haryana and UP. But the order appointing him was kept in abeyance after the Centre proposed bringing an Ordinance.

The bench felt that stubble burning alone was not the problem ailing Delhi’s air. “Experts have told us the only cause for pollution in the city is not stubble.” In a lighter vein, the chief justice added: “For that you have to stop using your beautiful cars and ride bicycles.”