By Vikram Kilpady
Over the past few years, the winter months have seen Delhi enveloped, even choked by smog, an amalgam of smoke from seasonal stubble burning and routine urban pollutants from vehicles and construction projects. The smog usually picks up in mid-October and gets worse after Diwali with the addition of pollutants from the fireworks. An acrid taste and smell take hostage of one’s tongue and nose even as the cold winds rush down from the mountains of our North.
Given this scenario in the weeks to come, the Supreme Court was recently jolted when it found out that the Commission for Air Quality Management (CAQM) was meeting once in three months and not more regularly. The CAQM had been constituted in October 2020 through an ordinance to oversee efforts to reduce pollution in Delhi and the National Capital Region.
The bench of Justices Abhay S Oka and Augustine George Masih was hearing the case after amicus curiae Senior Advocate Aparajita Singh reported that there had been a spike in stubble burning in end-September.
The latest CAQM status report said Punjab reported 93 incidents of stubble burning between September 18 and 25, compared to eight last year for the corresponding period. Similarly, Haryana, which voted on October 5, registered 70 farm fires in the same period as against 13 last year.
The Court, however, was scathing about the CAQM’s inability to curb stubble burning by farmers in Haryana and Punjab, which ends up worsening air quality in Delhi NCR during the winters.
The bench was upset that the CAQM had not taken any action under Section 14 of the CAQM Act against those burning stubble. The Court noted such provisions of the law remain only on paper if they are not utilised.
Under Section 14, any contravention of the provisions of the Act, or any order or direction issued by the Commission, is a punishable offence, with imprisonment for a term which may extend up to five years or fine extending up to Rs one crore, or both.
Singh made the point that unlike the CAQM’s predecessor, the Environment Pollution (Prevention and Control) Authority, the incumbent body was not toothless.
Insisting that the CAQM cannot hide behind the excuse that farmers were not following its orders, the amicus curiae pushed for holding officers responsible if their orders were not being paid heed to. Singh also said Section 14 of the CAQM Act provides that the officer be deemed guilty whether said officer is of the government or of the company found violating CAQM’s directions. “If stubble burning is not stopped now, it will be impossible to stop it later,” she said.
Noting the amicus curiae’s submissions, the bench said the CAQM, even if it had taken steps to improve air quality in Delhi-NCR, must ensure the focus of its directions should actually decrease pollution levels.
Additional Solicitor General (ASG) Aishwarya Bhati noted that penal action under Section 14 was always the “last resort”, and said the Commission should adopt a collaborative approach with farmers.
The ASG said that while the CAQM was strict with polluting industries, it adopted a more collaborative approach towards the farmers. The Court, however, said despite several directions, stubble burning unfailingly returns to haunt the winter season.
Further, the bench said Section 14 should be the first option to be deployed in case of stubble burning by the CAQM instead of being used as a last resort. If it was not utilised, then any directions to stop stubble burning will neither be taken seriously nor implemented. Farmers should not be allowed to continue to burn stubble by paying fines, it said.
Justice Masih, who is from Punjab, said farmers resorted to burning stubble to make room for the next crop soon after harvesting paddy. He said the feedback he had got from farmers was that there are hardly one or two machines available for the entire community to remove stubble. With paddy being a crop widely cultivated in the state, the shortage of machines leaves the farmers hanging, and the entire effort to prevent them from burning stubble comes to naught.
“Huge harvesters will only remove the upper part of the stubble and the machines remove only the lower and the number of (machines) is too less. Next issue is the machines need to be stored, and there is hardly any space to store them, and they become virtually unusable by the next season,” the judge said.
Justice Masih added that the central government had provided farmers with equipment which could be used as a substitute for stubble burning. He reiterated that such equipment even when available should be put to use at the ground level.
CAQM Chairman Rajesh Verma apprised the apex court that he had taken charge only two weeks ago. He said the Commission has held meetings with the deputy commissioners of districts in Punjab and Haryana where stubble-burning incidents were reported. The ASG also said the Commission has been working whenever there has been an increase in stubble burning.
The Court observed that like the pollution, the CAQM rules were also up in the air. It sought a status report by October 3 as to preparedness, what has been done till now and what is immediately recommended.
“If you don’t send across a message to citizens that strong, stern action will be taken if you violate law, the CAQM penal provisions will remain merely on paper,” Justice Oka told Verma.
In its order, the bench also said the amicus curiae was right to say the CAQM has not performed the way it was expected to. “The chairperson present today through VC said that three sub-committees are holding only one meeting every three months, they have been assigned important tasks. We wonder how they are performing those tasks by meeting only once in three months!”
“We are of the view that though Commission has taken certain steps, the Commission needs to be more active and must ensure that its efforts and directions actually translate into reducing the problem of pollution.”
Delhi, as it is rightly said in newspaper headlines, turns into a gas chamber as temperatures plummet and the cold weather keeps the pollutants down. This affects people residing in the city and its nearby suburbs so much as to constrain people to leave the region to safeguard their health.
If bureaucrats responsible for keeping Delhiites from coughing their way through winter fail to work in the months leading up to the cold season, it can only termed a sad state of affairs.
The Court’s surprise at the CAQM’s meeting once in three months shines light on how the bureaucracy functions even in times of crisis. The pace at which governments work is the result of how bureaucrats carry out their functions.
Yes, it is true that there is procedure and process, but while everything is being done as per their requirements, the end result has been nil or just above that.
To change this radically, the central government has been at pains to introduce the lateral entry system and get it to work. While career bureaucrats do follow procedure and duly set about their work, the efforts of subject experts inducted via the lateral entry system have been found to be subpar.
The iron frame that holds the country has often been unwilling to change its mode of functioning. But without clear political will, lateral entry has turned out to be a dud.
Reports have indicated that appointing subject experts instead of IAS officers, could be useful if they were appointed at secretary level instead of the joint secretary and director-level appointments being made since lateral entry came into greater use under the Narendra Modi governments. The last attempt to introduce lateral entry was shelved after allies, including Lok Janshakti Party (Paswan) MP and Minister Chirag Paswan, objected to it on grounds of reservation.
The Opposition Congress had also underlined the move as doing away with reservation. Given the political flare-up, the Modi government has put the plan away for now.
It is another matter that given the assembly elections in Haryana and the sentiment among farmers of the state, it is questionable how far the CAQM could have gone in implementing its tough provisions without alienating the agriculturists.
Diwali is some weeks away, and if the CAQM doesn’t get its act together, the NCR will be back to the smog and the rush to buy portable air purifiers.