On October 28, 2020, the Central government rushed through an ordinance to create the Commission on Air Quality Management in the National Capital Region and Adjoining Areas (CAQM). Drafted seemingly overnight, the ordinance was promulgated with no public input. It seemed to have been a knee-jerk response to the Supreme Court’s criticism of the Centre’s handling of farm fires and its creation of a committee under Justice Lokur to monitor these. Five months into its creation, much remained unclear about how the CAQM would function, and by all accounts seemed to remain in its initial setting up phase. The Commission was constituted with a Chairperson and members, some consultations were held with civil society and research groups, and a budget of Rs. 20 crores was allocated for FY22. On March 12, 2021, the ordinance lapsed and the Commission was shut down, as the union government failed to table a bill in Parliament to replace the ordinance.
An Enormous Lost Opportunity
The CAQM represented an important milestone, as it was explicitly given the task of managing the NCR airshed. With time, this experience could have also informed airshed management in other parts of the country. The CAQM also represented a step-up from the erstwhile Environmental Pollution (Prevention and Control) Authority (EPCA) that it replaced, in three important ways.
First, the Commission was to have representatives from the central ministries and from the state governments, along with a small number of technical experts and civil society members. Coordination of planning and action in the region was thus institutionalised as a bureaucratic exercise.
Second, the CAQM had exclusive jurisdiction over the NCR and unspecified “adjoining areas.” In case of disagreements, the CAQM had overriding powers over other government agencies. Air pollution in the NCR has multiple agencies responsible given the many emission sources from throughout the region. With Central government ministries, line departments in five state governments, and local bodies in the region all having roles to play, it is hard to hold any of them individually accountable. With the CAQM, accountability would have rested firmly with this one agency.
Finally, the CAQM had dedicated funds from the Central government, and was intended to have full time technical staff, as well as subcommittees for monitoring, enforcement and research. As a result, the CAQM could have become a regulatory institution in its own right.
To be clear, there certainly were many limitations with the ordinance. It missed an opportunity to create a broader airshed management framework that could be applicable across India, and focused, as always, on the national capital alone. It did not indicate desired environmental outcomes or interim targets that could guide the functioning of the Commission. The interests of states and local governments and those of vulnerable sections of the population were inadequately represented in the Commission’s composition. The bureaucratic imagination evident in its design may not have been able to adequately negotiate the thorny politics of serious mitigation efforts that will always leave some groups worse off. And it is not clear whether and how the CAQM would have used some of its powers, had their exercise been resisted.
However, clean air advocates must be careful not to let the perfect become the enemy of the good, and ignore the opportunities presented by the Commission. While the creation of the agency may have been opportunistic, institutions develop and evolve over time, and get shaped by a variety of factors. Judicial interventions, civil society campaigns, tussles with state governments, and political contingencies would have all affected the functioning and priorities of the CAQM. The seemingly premature end of its tenure extinguish its many possibilities.
Caqm’s Mandate With Stubble Burning
The ongoing farmers’ protests have been speculated as a possible reason for the union cabinet to allow the ordinance to lapse. In this context, CAQM’s mandate and its powers to tackle stubble burning are worth reflecting on briefly.
While the ordinance was promulgated in response to the Supreme Court’s concerns about slow progress on farm fires, the CAQM’s mandate was, rightly, broadly defined to address multiple emission sources. Farmers’ concerns were reportedly resolved on December 30, 2020, with an in-principle commitment to the protesting farmers that stubble burning would be excluded from a contentious clause on punitive powers. Given this rather straightforward resolution, it is unclear how the protests could now be a factor in the cabinet letting the ordinance lapse.
It is worth noting, further, that the CAQM never had direct powers to impose fines on polluters. Like pollution control boards, the CAQM could only initiate criminal prosecution in a court of law, which might eventually result in polluters being levied penalties or sentenced to imprisonment. This enforcement route is rarely adopted even with polluting industries.
A bill to replace the ordinance might yet be tabled in the Parliament for discussion. The union Environment Secretary has assured that the Commission will be set up, once the bill is passed in the Parliament. If this is the case, the CAQM has, in a sense, only been temporarily suspended. If the bill is discussed in the Parliament, there is also an opportunity to further deliberate over the issues that have been identified with the CAQM’s composition, its punitive powers, and specifically, the approach for stubble burning.
If, however, this is the end of the Commission, we have a significant institutional vacuum. This could be an opportunity for the Environment Ministry to create a broader framework for airshed level management in India, follow a more deliberative and inclusive approach while drafting, and redress other shortcomings in the Ordinance discussed above. Individual commissions, like one for the NCR, can subsequently be created under this umbrella framework.
The air pollution crisis in India can only be solved through sustained political commitment, and robust institutions. Letting the ordinance lapse reflects poorly on the Centre’s commitment, and is a significant blow to the development of air quality governance in the country.
This article was first published by the Centre for Policy Research. The original can be read here.