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War on Air Pollution Will Not Be Won in the Courts

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is a senior resident fellow at Vidhi Centre for Legal Policy, and is based in Bengaluru.

Despite certain measures adopted in the last 12 months, the air pollution problem across northern India has re-emerged this winter, and only worsened after the Diwali festival. The conversations, however, continue to be dominated by Delhi, and revolve around finding quick fixes, mostly pushed by courts, without looking at the deeper, underlying problems or addressing state capacity to deal with air pollution.

It is that time of the year, once again, when a thick and noxious smog desc­ends across northern India; when anxious op-eds are written about the sources of the smog (blamed on a combination of crop residue burning and Diwali firecrackers) accompanied by pictures of Delhi residents wearing all manner of breathing paraphernalia; and when governments of all stripes are being urged to do “something.”

As “Yogi” Berra (in)famously said, “It’s like déjà vu all over again.”

Almost exactly a year ago, I wrote in these pages about the three ways in which the discourse over air pollution is misguided and unhelpful in addressing the problems it creates (Kumar 2017: 10). I could reproduce my column here with a few minor changes and it would still hold almost entirely true. It is not as if nothing has happened in the last 12 months towards addressing the air pollution problem across northern India, it is just that these efforts have turned out to be futile for precisely the reasons I discussed in my earlier column.

This time around, I want to focus on two interventions that have been made in the recent past on air pollution: one by the Supreme Court, and the other by the National Green Tribunal (NGT). Whereas the former has attempted (once again) to limit the use of firecrackers during festivals, the latter has attempted to address the burning of crop residue in a novel, but problematic manner. However, the Supreme Court’s intervention has not had much impact for many reasons.

Court Interventions

In Arjun Gopal v Union of India (2018), the Supreme Court attempted to regulate the bursting of firecrackers while refusing to impose an outright ban on such firecrackers across the nation. The Court’s judgment directed that bursting of crackers on Diwali be limited to two hours a day as determined by the state government, that only “green firecrackers” (those not containing barium salts) be sold in Delhi and the National Capital Region, that chain firecrackers (laris) be banned, and that the police will be responsible for the enforcement of the order.

Needless to say, the order was hardly implemented (Chari et al 2018). The Air Quality Index post Diwali was worse than that of the previous year in Delhi (Times of India 2018), suggesting that the judgment (to whatever extent it was enforced) had no serious impact on improving the air quality. Given that air pollution is the result of a number of factors, including the wind conditions, rains, and other sources of pollutants, perhaps, the comparison is not entirely fair since it needs to be checked if all other factors remained the same across the two years. To be fair to the Court, it did also direct the Central Pollution Control Boards and equivalent state-level bodies to monitor the air quality in the short term to assess the impact of the use of firecrackers on it. Although the Court has threatened to hold the jurisdictional station house officer in contempt for failure to carry out the orders of the Court, it remains to be seen what action, if any, the Court will take for the many failures of the police.

Given that firecrackers contribute to the pollution problem for only a limited period of time in the winter, the Court’s effort in trying to ban or regulate their use seems disproportionate; more so when some sections of society seem to be ahead of the curve and have been reducing firecracker purchases over the years (Iyer 2018). Though there is a good case to be made for regulating the use of firecrackers, getting an understaffed and overstretched police force to try and police lakhs of people bursting firecrackers seems a misguided directive to say the least.

The most befuddled by this measure are the police themselves. What provision in law were they supposed to cite to stop the bursting of firecrackers? Some in the police force resorted to using Section 188 of the Indian Penal Code, 1861, which penalises those who disobey the lawfully promulgated order of a public servant (Lalwani and Dey 2018). It does raise the obvious question: Was Section 188 meant to enforce court orders in public interest litigations?

Of course, none of this would have been necessary if the concerned governments identified the problem and stepped in with appropriate legislation.

MSP and Crop Residue Burning

Not to be entirely outdone, the ngt in Ganga Lalwani v Union of India (2018) directed the state governments of Uttar Pradesh, Delhi, Punjab, and Haryana to come up with a scheme to penalise farmers, who set fire to their fields to clear it of plant residue, by not paying them minimum support price (MSP). There is nothing in the order that indicates any serious application of mind on the part of the court as to the measure it is proposing and its potential effectiveness. Indeed, the suggestion seems to have been made for the first time in the court during arguments and the court seems to have seized upon it simply because it has been told at the bar that it is possible to do so. There is no analysis of the underlying causes for the burning of crop residue or even whether the court’s directions are feasible in light of the failure of state governments to prevent crop residue burning.

In fact, the court order notes the failure of the union and state governments in curbing crop residue burning in the areas around the National Capital Territory. However, the NGT incongruously does not blame the state governments or the centre for not being able to curb crop residue burning. The solutions being proposed in any case are purely technological: getting farmers to use harvesters and seeders, which avoids the problem of crop residue so that they can plant multiple crops quickly. Even where there was an attempt at behavioural change, it was done in a ham-fisted manner: the fines for crop residue burning were cheaper for farmers to pay than the losses they would incur as a result of holding it off (Joshi 2018).

What the NGT, and perhaps much of the discussion around crop residue burning, entirely misses, is that the phenomenon, at least in Punjab and Haryana, is fairly recent (Singh 2018: 149–70). It is the fallout of the green revolution’s success, a combination of factors such as the use of tube well irrigation and high-yielding varieties of rice, and the pressure to plant multiple crops in a given season that have led to this situation. In fact, instances of crop residue burning may have increased after a particular legal intervention by the Punjab government to prevent depletion of ground­water in the state (Mukherjee 2018).

Despite the absence of data, studies, or for that matter any empirical proof that withdrawing MSP is a viable means of nudging farmer behaviour, the NGT has simply directed parties to carry out this ill-conceived idea. Having noted that fines were proving to be ineffective, the NGT seems to be persisting with the notion that economic disincentives would work in preventing farmers from setting fire to the crop residue, without actually assessing whether the loss from lack of MSP for crops would deter them.

Conclusions

As a recent book on air quality in India puts it, “all of the above” is the only option that can reasonably be expected to address the pressing problem of air quality in India (Singh 2018: 224). While, no doubt, more data is needed on the exact sources of air pollution and the quantum of contribution by each to the problem, the available data is clear that there are multiple sources, all of which contribute significantly, such that tackling any one to the exclusion of others will have no impact on the problem. It is not just road dust, vehicular pollution, dust storms, industrial pollution from power plants, and biomass burning, but a combination of all that has led to the problem. It is also very clear that this is not just a “Delhi problem” or even an urban problem (though India briefly had the 40 most polluted cities in the world; Financial Express 2018), but an international one that affects wide swathes of northern, western, and eastern India.

It cannot be tackled through one-off measures by courts, it cannot be handled with piecemeal measures aimed at one source, and it cannot be focused only on the cities. The scale of the task is indeed vast, but—if history is any guide—not insurmountable. London and Los Angeles are among those cities that had a seemingly insurmountable problem of polluted air thanks to a combination of geographic and industrial factors in the last century, but have now made significant progress in improving air quality.

No part of this progress, however, was cost-free or an overnight process, but change did come about gradually thanks to governmental interventions. Even so, such interventions are bound to fail if they are not backed by the institutional capacity to suggest, implement, and see the interventions through. Unfortunately, as I had noted in my previous column on this issue, public debate and discussion is still focused on finding quick fixes and demanding court intervention, making any successes short-lived and unsustainable.

References

Arjun Gopal v Union of India (2018): SCC OnLine, SC, 2118.

Chari, Mridula, S Senthalir, Abhishek Dey and Arunabh Saikia (2018): “How Did the Police Fare in Implementing Supreme Court Restrictions on Firecrackers?” Scroll.in, 8 November, viewed on 19 November 2018, https://scroll.in/article/901296/how-did-the-police-fare-in-implementing-supreme-court-restrictions-on-firecrackers.

Financial Express (2018): “India Beats China to Become Country with Most Severe Air Pollution; Here’s Disturbing Real-time Map,” 17 November, viewed on 19 November 2018, https://www.financialexpress.com/economy/india-beats-china-to-become-country-with-most-severe-air-pollution-heres-disturbing-real-time-map/1384876/.

Ganga Lalwani v Union of India (2018): Original Application No 666 of 2018, National Green Tribunal order dated 15 November.

Iyer, Gayathri (2018): “Cracker Sales Down by Nearly a Half,” Hindu, 5 November, viewed on 19 November 2018, https://www.thehindu.com/news/cities/bangalore/cracker-sales-down-by-nearly-a-half/article25421179.ece.

Joshi, Mallika (2018): “Death by Breath: Why Farmers Say Cheaper to Pay Fine for Crop Burning,” Indian Express, 13 October, viewed on 19 November 2018, https://indianexpress.com/article/india/crop-burning-air-pollution-aqi-punjab-farmers-5400106/.

Kumar, Alok Prasanna (2017): “Three Wrong Ways to Talk about ‘Delhi Smog,’” Economic & Political Weekly, Vol 52, No 46, pp 10–11.

Lalwani, Vijayta and Abhishek Dey (2018): “‘Where Are Green Crackers?’ Delhi Traders Are Upset with Supreme Court Order, Police Confused,” Scroll.in, 5 November, viewed on 19 November 2018, https://scroll.in/article/900918/where-are-green-crackers-delhi-traders-are-upset-with-supreme-court-order-police-confused.

Mukherjee, Andy (2018): “Killer Delhi Air Is a Water Crisis in Disguise,” Bloomberg.com, 9 November, viewed on 19 November 2018, https://www.bloomberg.com/opinion/articles/2018-11-09/killer-delhi-air-pollution-is-a-water-crisis-in-disguise.

Singh, Siddharth (2018): The Great Smog of India, New Delhi: Penguin India.

Times of India (2018): “Air Pollution: Delhi’s AQI post-Diwali 642, Almost Double 2017’s 367,” 8 November, viewed on 19 November 2018, http://timesofindia.indiatimes.com/articleshow/66546892.cms.

Updated On : 30th Nov, 2018

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