1. Brief
Legislative History
The Commission for
Air Quality Management in National Capital Region and Adjoining Areas
Ordinance, No. 13 of 2020 was initially promulgated by the President on the 28th
of October 2020. The Ordinance provided for the setting up of a body to
coordinate, research into, identify and resolve problems concerning air quality
and other related matters in the region. In accordance with the provisions of
Sections 3(1) and 3(2) of the aforementioned Ordinance, the Ministry of
Environment, Forest and Climate Change issued a notification on the 5th
of November 2020 constituting the Commission for Air Quality Management in
National Capital Region and Adjoining Areas (“CAQM”) and appointing its
members.[1] On 12th March,
2021, the Ordinance lapsed and on April 13th, the President
promulgated another ordinance to extend the operation of the same provisions.
In the meanwhile,
the Commission for Air Quality Management in National Capital Region and Adjoining
Areas Act, No. 29 of 2021 (“the Act”) was passed by the Parliament and
received Presidential assent on the 12th of August 2021.[2] Since this Act of
Parliament approved the earlier Ordinance, it was deemed to have been in effect
since the 13th of April, 2021.
2. Government
Policy and Objectives of the Legislation
According to
IQAir, a Switzerland-based company that monitors air quality worldwide, Delhi
is the world’s most polluted major city as of February 2022.[3] There is no doubt that
pollution across major cities in India are worsening with time, but the
situation in the National Capital Region is by far the unhealthiest and most
worrisome. The mounting pressure on the Central Government to take action to
address this severe pollution crisis has culminated in several measures, one of
which is the enactment of this piece of legislation.
The Preamble of
the Act clearly identifies the objectives sought to be achieved which are the ‘better
coordination, research, identification and resolution of problems related to
the air quality index’ and incidental, connected matters.[4] The use of the word ‘better’
can be interpreted as an admission or recognition by the Parliament that the
present measures in place to address the pollution issues in the region are
insufficient. There are several parts of the statute itself that show that
existing measures before the establishment of the CAQM were deemed to be
ineffective. For instance, Section 3(6) of the Act grants wide powers to the
CAQM and states that no other body, authority, individual or committee shall
have any power or jurisdiction in the matters covered under the Act.[5] Moreover, in case there is
any conflict between the CAQM and the Central Pollution Control Board, the
state governments of Haryana, Punjab, Uttar Pradesh and Rajasthan, the
Government of Delhi, the State Pollution Control Boards of the aforementioned
states or any other statutory authority, the order or direction of the CAQM
shall prevail. This provision clearly reflects the legislature’s intention to
establish a new authority that is vested with the required mandate to fulfil
policy objectives.
Another critical
outcome of this enactment was the dissolution of the Environment Pollution
(Prevention and Control) Authority for the National Capital Region under
Section 29 of the Act.[6] The Environment Pollution
(Prevention and Control) Authority (“EPCA”) was the apex pollution
control body in the NCR, established in 1998 and was thereby replaced by the
CAQM. At first glance, the key difference appears to be the inclusion of the
term ‘adjoining areas’ in the newly constituted body. Clearly, there is a
widening of the jurisdiction to support a more comprehensive policy approach to
pollution control since pollution in nearby regions is bound to impact the air
quality in the national capital. According to Section 2(1)(a) of the Act,
‘adjoining areas’ refers to the areas in the states of Uttar Pradesh, Haryana,
Punjab and Rajasthan which adjoin the NCT of Delhi which have sources of
pollution that adversely impacts air quality in the National Capital Region.[7]
The legislative
intent and policy behind the enactment are therefore clear. The Act aims to
address the deteriorating air quality levels in the regions aforementioned by
constituting a body that is vested with wider jurisdiction and powers than its
predecessor and other bodies empowered to control pollution in the regions.
3. Committee
Reports
The
Department-related Parliamentary Standing Committee on Science & Technology,
Environment & Forests under the Chairmanship of Anand Sharma presented the
316th Report before the. Rajya Sabha. The Report was on the Air
Pollution in Delhi and National Capital Region and was presented in the Rajya
Sabha on 7th August 2018. The Committee analysed the steps taken by
the Governments of States around the National Capital Region such as Punjab,
Haryana, and Uttar Pradesh to reduce pollution and improve the air quality
within Delhi and its adjoining areas. Based on these observations, the
Committee made further recommendations to improve the effectiveness of these
measures and also further suggested additional steps to be adopted to combat
the rising levels of air pollution in the Capital.
In
its report, the Committee observed that although neighbouring states had
imposed penalties on farmers for burning stubble, the respective governments of
the States have failed to implement these provisions.[8] The Committee further
noted that the lack of sensitivity of the State Governments to this issue has
led to the further deterioration of the air quality in Delhi. The neighbouring
states also failed in ensuring that agricultural waste is disposed in a
scientific manner which further aggravated the pollution in Delhi. Furthermore,
with the increase in vehicular load within the Capital and the surrounding
states, there was an exponential increase in the amount of particulate matter
in the air which posed a severe health hazard to the residents of Delhi.[9] The Committee urged both,
the State and Central Governments to recognise the urgency of the issue and
bring into effect more efficient schemes and policies to tackle the depleting
air quality in Delhi.
The
report highlighted the urgent need for a body whose powers transcended state
boundaries and had full time members who specialised in this field to better
combat the degradation in air quality in and around the National Capital
Region. One of the primary shortfalls of the EPCA was that it was incapable of
enforcing its directions and could merely request state governments to comply
with them. The EPCA failed to impose any penalties or initiate proceedings
against governments for their failure to comply with the EPCA’s directions and
orders. Based off these conclusions, the CAQM was given a broader mandate with
certain exclusive and overriding powers to increase accountability and ensure
better enforcement of the Commission’s directions and orders.
4. Political and
Legal Issues Faced in Enacting the Law
The
CAQM was formed by a Presidential Ordinance dated 28 October 2020. Article 123
of the Constitution states that the ordinance has the same effect as that of an
Act of the Parliament however the ordinance needs to be presented before the
Parliament in the form of a Bill within 6 weeks from the assembly of the
Parliament.[10]
After the expiry of the six-week period, the ordinance seizes to exist[11] and therefore becomes
inoperative.
The
CAQM ordinance ideally should have been presented before the Parliament during
the 2021 Budget Session however, the Bill was never taken up for discussion due
to which the ordinance lapsed and the CAQM was dissolved on 13th
March 2021.[12]
The dissolution was sudden to the point that the members of the commission only
found out about the same through reports in the media and news outlets.[13] The Union Environment
Ministry had completed the requisite formalities and submitted the paperwork
required to give legal backing to the Commission to the Union Cabinet.[14] However, the CAQM was
dissolved anyway.
The
Centre faced strong opposition from the farmers over the controversial farm laws
in 2021. The Government therefore attempted to pacify the protestors by
committing to the removal of the provision which penalised the farmers for
burning stubble despite it being a major contributor to the reduced air
quality. The Ordinance was repromulgated on 13th April 2021 with the
aforementioned change being incorporated in Section 14 of the Ordinance. By
means of the new Ordinance, the CAQM can impose and collect environmental
compensation from the farmers at a rate and manner which may be prescribed.[15] These changes were
subsequently adopted by the Legislature as well when it passed the Commission
for Air Quality Management in National Capital Region and Adjoining Areas Bill.
5. Conclusion
The
establishment of the CAQM is certainly a step forward in the attempt to combat
air pollution in the National Capital Region and restore the quality of the
air. The CAQM however, does have certain major shortcomings with the most
glaring issue being the lack of representation of local governments and the
absence of certain essential ministries such as health and labour ministries
from the Commission.[16] Although many critics
have said that the CAQM is merely a duplication of previously existing efforts
and is bound to fail, the true effectiveness and performance of the body can
only be assessed with time.
[1] Ministry of
Environment, Forests and Climate Change, S.O.
4014(E) (Notified on November 5, 2020).
[2] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Act, 2021, No. 29,
Acts of Parliament, 2021 (India).
[3] IQAIR, Air quality
and pollution city ranking, IQAIR, https://www.iqair.com/in-en/world-air-quality-ranking
(Feb. 5, 2022).
[4] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Act, 2021, Preamble,
No. 29, Acts of Parliament, 2021 (India).
[5] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Act, 2021, §3, No.
29, Acts of Parliament, 2021 (India).
[6] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Act, 2021, §29(1),
No. 29, Acts of Parliament, 2021 (India).
[7] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Act, 2021, §2(1)(a),
No. 29, Acts of Parliament, 2021 (India).
[8] Parliamentary
Standing Committee on Science & Technology, Environment & Forests,
Three Hundred and Sixteenth Report, Report on Air Pollution in Delhi and National
Capital Region 12 (2018).
[9] Id at
35.
[10] India
Const. art. 123.
[11] Id.
[12] Centre
for Policy Research, The CAQM Act, 2021: An Overview 2 (2021).
[13] Special Correspondent, Air
Quality Commission Bill for National Capital Region Cleared, The Hindu (Aug. 4, 2021) https://www.thehindu.com/news/national/lok-sabha-passes-air-quality-commission-bill-for-ncr-adjoining-areas/article35723205.ece
[14] Id.
[15] The Commission for Air Quality
Management in National Capital Region and Adjoining Areas Ordinance, 2021, § 15
(Apr. 13, 2021).
[16] Supra note 10 at 3.
About the Author: This post is prepared by Rithwick Ganesh & Yash Chadha, Law Students from Christ (Deemed to be) University, Bangalore. They can be reached at rithwick.g@law.christuniversity.in & yash.chadha@law.christuniversity.in respectively.
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