The Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (hereafter known as “The Act”) paves the way for the formation of a Commission that aims to cater to the issues looming the air pollution crisis in the National Capital Region (NCR) as well as in its neighbouring States. Section 2(1)(a) of the Act explains the term “Adjoining Areas”, which comprises regions or pollution hotspots in the States of Rajasthan, Haryana, Uttar Pradesh and Punjab that are geographically in proximity to Delhi NCT and the NCR. However, such a definition remains vague as the Act does not elaborate any procedure to follow to accurately analyse, identify, and demarcate such pollution causing regions from the rest of the areas in the States. Such an omission tends to create jurisdictional conflict over the applicability of the Act. Section 3 of the Act elaborates on members who would be appointed to form the Commission. Members in the Commission include a Chairperson (having professional experience of more than fifteen years in the environment conservation/pollution abatement domain or an administrative professional with more than twenty-five years of experience), full time and ex-officio members belonging to the Ministry of Environment, Forest and Climate Change (MOEFCC), Central Pollution Control Board (CPCB), Indian Space Research Organisation (ISRO), NITI Aayog, among others. Three individuals from Non-Governmental Organisations (NGOs) dealing with air pollution issues form a part of the Commission, coupled with three individuals belonging to domains such as transport, agriculture, construction and industry. Although the Act strives to include the involvement of non-bureaucrats such as NGO members and stakeholders from other fields in the Commission, it is observed that a majority of the members in the Commission belong to the Central Government Services segment. Such a disproportionate representation pattern would tend to influence the effectiveness of the opinions and suggestions put forth by the minority non-bureaucrat members on pertinent matters in the Commission.

Moreover, as per Section 3(3) of the Act, officials from various ministries such as the Ministry of Power, Ministry of Petroleum and Natural Gas, Ministry of Road Transport and Highways etc., could be appointed as Associate Members in the Commission. This further highlights the disproportionate representation already discussed above, as a significant portion of individuals in the suggested list {Section 3(a) to 3(f)} are Central Government Bureaucrats. Section 3(5) of the Act gives power to the Commission to set up offices within the NCR and other adjoining regions upon the approval of the Central Government. The Act offers less relevance to the Commission’s capability to operate independently and autonomously. Further consent has to be sought from the Central Government to establish multiple Commission branches to enhance its functioning and operation.  The Commission is also equipped with absolute jurisdiction over matters regarding air pollution in the NCR and adjoining regions, vide Section 3(6) of the Act. The vague nature of the phrase “adjoining areas”, as discussed before, is once again highlighted. Moreover, Section 3(6) of the Act states that the Commission’s orders/directions would supersede the decisions taken by the State Governments of Rajasthan, Haryana, Uttar Pradesh, Punjab and Delhi in times of jurisdictional conflict. The Act fails to consider the expertise or familiarity possessed by State Government Agencies on air pollution in the adjacent States and thus tends to overlook the possible positive results of decentralised governance by removing State involvement in such matters. Sections 11(1) to 11(4) of the Act empower the Committee to form a minimum of three sub-committees comprising additional members that focus on research and development, monitoring and identification, and safeguarding and enforcement. The Commission, vide Section 11(5) of the Act, can form additional sub-committees if the need arises. Here, it is observed that even though State Government Officials are included in the sub-committees along with Central Government officials, only the Research and Development sub-committee considers additional members who are non-bureaucrats {Sections 11(4)(b) and 11(4)(c) of the Act}.

Section 12(1) of the Act provides the Commission with the power “to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and adjoining areas.” Moreover, the Commission is entrusted with the duty “to take all such measures as may become necessary for protecting and improving the quality of air in the National Capital Region and adjoining areas.” Such a provision offers absolute and complete authority to the Central Government-controlled Commission to take any action pertaining to air pollution, highlighting impending abuse of power issues and raising questions concerning the vague and “open-ended” nature of the Commission’s powers and authority. Section 12(6) of the Act elaborates on community stakeholder-centric functions (the list is inexhaustive) that the Commission shall execute, which include: “synergising the energies and efforts of all stakeholders in developing innovative ways to monitor, enforce and research on the issues concerning air pollution” {Section 12(6)(c)(iv)}, “spreading awareness regarding air pollution among various sections of society and promoting awareness of the collective steps that the public may take through publications, the media, seminars and other available means” {Section 12(6)(g)} and “encouraging the efforts of non-governmental organisations and institutions working in the field of air pollution” {Section 12(6)(h)}. However, the Act remains silent when it comes to elaborating the manner/process through which such functions would be effectively implemented in reality. 

Section 14(1) of the Act states that “Any non-compliance or contravention of any provisions of this Act, rules made thereunder or any order or direction issued by the Commission, shall be an offence punishable with imprisonment for a term which may extend up to five years or with fine which may extend up to one crore rupees or with both.” In the above-mentioned section, it is observed that the Act fails to elaborate on the offences or actions that are “non-complying” or “contravening” in nature, thereby adding to the ambiguity and arbitrary nature of the provision. Although the Proviso of Section 14(1) explicitly exempts farmers involved in stubble burning practices and improper management of agricultural residue, on the contrary, Section 15 of the Act empowers the Commission to procure “environmental compensation” from farmers involved in stubble burning activities. Besides, the manner in which the amount is collected/determined in regard to “environmental compensation” and the procedure applied for the same is left unexplained in the Act.

Although the Act, vide Section 12(6)(a) empowers the Commission to take up complaints lodged by the public and environmental organisations against the government and private industry stakeholders, the relevance of Judicial Review/Activism concerning the Commission’s decisions and actions are blatantly overlooked. This is evident primarily through Section 18 of the Act, wherein appeals against “any orders, actions and directions” initiated by the Commission could only be made solely through the National Green Tribunal. Moreover, as per Section 22 of the Act, Civil Courts in the nation do not have the “jurisdiction to entertain any suit, proceeding or dispute pertaining to or arising out of the actions taken or directions issued by the Commission in respect of any matter which the Commission is empowered by or under this Act.Section 23 of the Act further provides immunity to the Central Government, the Commission (including the members), and any individual associated with the Act’s implementation in good faith against any legal action. Here it is pertinent to note that such absolute immunity in the guise of acting in good faith may lead to abuse of power, especially in the absence of proper checks and balances. It is further observed that the Act, vide Section 28(1) has been provided with an “overriding edge” which supersedes “any other law for the time being in force, any document, judgment, order, bye-law, rule, regulation, notification having the force of law in the territory of India”. It is also elucidated in Section 28(2) of the Act that “no other individual or body or authority constituted either under a law enacted by Parliament or by a State or appointed or nominated in terms of any judicial order, shall act upon or have jurisdiction in relation to the matters covered by this Act”, which includes any law in existence or any judicial decision pronounced by an Indian Court for that matter. Such a blatant disregard for judicial review debilitates courts’ vital role in the nation, being “watchdogs of the Indian Constitution”. Moreover, considering India’s tryst with environment-centric public interest litigations and activism campaigns, the Act in discussion vehemently narrows down judicial venues available for public legal redressal (to the National Green Tribunal) against the Commission’s decisions/orders/actions.

According to the Statement of Objects and Reasons concerning the Act that was presented in the Parliament, an important reason behind the introduction of the said Act was the absence of an inclusive structural framework and multi-sectoral consonance that ensured the involvement and participation of Central Government, State Governments, community stakeholders and local governing organisations. With reference to the provisions of the Act discussed above, it is, however, noted that the Act has significantly wavered from its original standpoint as the Commission so established through the Act considerably comprises officials belonging to the Central Government, thereby leaving a marginal representation space for community stakeholders and State Government representatives. Moreover, provisions as discussed above in the Act offering absolute legal immunity, jurisdiction and authority to the Commission on matters concerning air pollution, thereby barring Judicial, Public and State Government intervention, need to be immediately pushed for further deliberation and democratic criticism. Since the Judiciary is considered an equally important stakeholder in matters concerning public welfare, it should be provided with the space to rightfully exercise “checks” on the functioning of the Commission, backed by the views and concerns so raised by the citizens of the nation. Representation margins of State Governments, local governing institutions, and community stakeholders ought to be increased to do justice to the “participative quotient” of the Act. Moreover, precise and elaborate information concerning the implementation aspects of the Act in the form of Rules needs further attention.

By Rohan Girish, Research Fellow, Climate Justice, LQF