New Delhi: The intervention of the Supreme Court in environment protection matters stems from a deep distrust of the Executive; therefore, its continued monitoring of its orders has a rationale, and a justification. On Wednesday, the Centre promulgated an ordinance which threatened this very supervision of the Supreme Court over environment regulation by dissolving the autonomous Environment Pollution (Prevention and Control) Authority (EPCA), a body set up under the directions of the Supreme Court two decades ago.An ordinance – promulgated when the Parliament is not in session to meet the urgent requirements of law – is a form of law, and therefore, different from executive action. It is not as if the Centre could not anticipate the urgency of meeting the pollution threat, which is now an annual event in the NCR, and introduce the necessary legislative measure in the last session of Parliament. Therefore, its justification for the ordinance route to create the commission is inexplicable.Besides, the ordinance, insofar as it claims to encourage participation of stake-holders and aim effective oversight by elected MPs, is a contradiction in terms. An ordinance, by its very nature, marks absence of public consultation, and, therefore, cannot claim to contribute to participative democracy.The Supreme Court may defer to the ordinance and the Centre’s intention to fill the legislative vacuum to meet the immediate concern on air pollution, but the question whether the ordinance is an improvement over the existing state of affairs will remain to be addressed.Through this ordinance, the Centre set up a Commission for Air Quality Management in National Capital Region (NCR) and Adjoining Areas in order to “streamline the public participation, the inter-State cooperation, the expert involvement and persistent research and innovation”.Watch: ‘Delhi NCR Air Pollution a Regional Problem, Farmers Alone Should Not Be Blamed’The Centre had given an indication of its legislative measure when it sought the Supreme Court to keep in abeyance its one-man committee, headed by former Judge of the Supreme Court, Justice Madan B. Lokur, to monitor the measures taken by the states of Haryana, Punjab and western Uttar Pradesh to prevent stubble burning. The Supreme Court set up the committee while hearing Aditya Dubey (minor) v Union of India and Others. Despite the oral request by the Solicitor General, Tushar Mehta to avoid setting up the committee, the Supreme Court disagreed initially, but appears to have caved in to pressure from the Centre, which promised an immediate comprehensive law on the subject. It was as if the Centre responded to imminent judicial activism by filling the vacuum in the law, to deprive the Supreme Court any ground for intervention.In this case, Dubey, a Class XII student with a passion for the environment, sought issuance of urgent directions to the states concerned to ensure a complete ban on stubble burning, and availability of appropriate stubble removing machines, free of cost, to the small and marginal farmers. He sought the directions so that the Air Quality Index level in the NCR does not reach critical levels during this season, especially in view of the prevailing COVID-19 pandemic, which may worsen as a result.There is no indication at present that the new Commission set up by the Centre will address Dubey’s concerns. But the Centre seems to have conveyed a clear message to the Supreme Court: Hands off! Much, therefore, will depend on whether the Supreme Court will dispose of Dubey’s petition or agree to monitor the new Commission’s work.Besides, the Supreme Court may have to adjudicate any possible legal challenge in the days to come about the constitutionality of the ordinance and the Act which is expected to replace it.Calling the Supreme Court’s interventions in the matter as “limited and ad-hoc” even while complimenting them as “innovative research initiatives”, the ordinance claims that the Commission would seek to enable monitoring of air pollution, enforcement of laws post such monitoring and research and innovation – all in one go. The ordinance has announced three separate sub-committees under the Commission in order to synergise the collaborative efforts to alleviate the recurring problems associated with air pollution in the NCR.A commission, with a broad-based participation from various sectors, different states, public representatives, experts and innovators would further replace “the inadequate, haphazard and temporary committees or commissions or authorities or bodies at present either appointed judicially or administratively”, the ordinance declares.Also read: Alternate Use for Straw, Providing Machines to Farmers Only Solution to Stubble BurningThe Commission would function under the oversight of the elected representatives with regular reports to the Parliament, the ordinance claims, adding “the highest degree of democratic oversight would ensure effective enforcement of the efforts and proposals of the commission”.The Commission, according to the ordinance, would provide a consolidated and conjoint approach in monitoring, tackling, and researching in air pollution, and specifically monitoring the measures taken by the states to prevent factors causing air pollution like stubble burning, industrial emissions, road dust, vehicular pollution, construction activities, biomass burning and other major sources.As the Commission is to function under the aegis and the overall supervision and guidance of the Central government, the ordinance hopes it would replace multitudes of committees, task forces, commissions and informal groups formed temporarily or otherwise, by various orders of the constitutional courts or the Centre and the States concerned and synergise the efforts of different stake-holders.The ordinance defines “adjoining areas” to include the areas in Haryana, Punjab, Rajasthan and Uttar Pradesh adjoining the National Capital Territory of Delhi and the NCR, where any source of pollution is located, causing adverse impact on air quality in the NCR.As Ritwik Dutta, well-known environment lawyer told The Wire: “This proves that the main purpose of this Ordinance is to improve the air quality only in the NCR. Unless the Central government sets up similar committees in other polluted regions of the country, it violates the right to equality under Article 14 of the Constitution and discriminates against those who are not in the NCR. Cleary, there are equally if more polluted regions which are beyond the NCR.”The Commission is to consist a full-time chairperson (a former secretary to the Government of India or chief secretary to the government of a state). Besides, the Commission will include six ex-officio members, drawn from the Centre and the states, two full-time members (joint secretaries to the Government of India), three full-time independent technical members, one ex-officio technical member each from the Central Pollution Control Board, and Indian Space Research Organisation, three members from non-Governmental organisations having experience in matters concerning combating of air pollution, and one ex-officio member to represent the NITI Aayog.The Commission, according to the ordinance, may co-opt as associate members, representatives of the ministries of road transport and highways, power, housing and urban affairs, petroleum and natural gas, agriculture and farmers’ welfare, commerce and industry, and associations of commerce and industry.A full-time secretary is also envisaged for the Commission.The ordinance states that in case of any conflict in the orders or directions of the Commission and the governments of the states of Punjab, Haryana, Rajasthan, Delhi and Uttar Pradesh or the CPCB or the State Pollution Control Boards of these states, the Commission’s order or direction shall prevail.Also read: Winter Pollution: The Soot of Bad PoliciesThe Centre shall appoint the full-time chairperson and members of the Commission, on the recommendations of a Selection Committee. This committee will consist of the Union minister of environment, forest and climate change as chairperson, and ministers of commerce and industry, road transport and highways, science and technology and cabinet secretary as members. The chairperson and members shall hold office for a term of three years or until they attain the age of 70 years, whichever is earlier, and be eligible for reappointment.The Ordinance’s omission of requirement for any prior experience or expertise in the field of environment in general or air pollution for selecting the Commission’s permanent members is a serious lacuna and may invite a judicial challenge.Besides, as pointed out by Dutta, the members, likely to be co-opted are from ministries of power, housing and urban affairs, road transport and highways, and petroleum and natural gas – which are engaged in actions which contributes towards pollution – and therefore, may suffer from serious conflict of interest. It is inexplicable why ministries of rural development, health and family welfare and labour can’t have representation in the Commission.As Dutta explains: “Air pollution impacts health, restrictions imposed to control air pollution impacts labourers and dealing with stubble burning requires incentives which is the domain of rural development. No farmers’ body has been allowed to be co-opted as members while representatives of any association or commerce or industry’ can be co-opted as member.”No tears will be shed for the dissolution of EPCA, which has been largely considered as ineffective. But the Commission may not mean an improvement over the body it replaces. If the EPCA was criticised for not exercising its statutory powers and for merely functioning as an advisory body to the Supreme Court, the new Commission too may suffer from similar vice. Under the Ordinance, if an offence has been committed, a complaint has to be filed before the Judicial Magistrate First Class. Dutta asks whether the members of the Commission, who are serving government servants, including chief secretaries and secretaries, would be inclined to file cases against themselves. The EPCA, for this very reason, never filed a single complaint case before the magistrate in the 22 years of its existence, he states.By putting an unrealistic limit of Rs 1 crore to the fine payable, irrespective of the damage caused to the environment, the Ordinance is directly contrary to the polluter pays principle. The National Green Tribunal, in numerous cases, has imposed fines of up to Rs 150 or 200 crore for polluting the environment, Dutta suggests.Sunita Narain, well-known environment activist, and member of the now-dissolved EPCA, in a joint letter she wrote along with its Chairman, Bhure Lal, to the Union minister for environment, forest and climate change, Prakash Javadekar, complimented the Centre for its “intent and determination to mitigate toxic pollution in the region”. Both believed that the new Commission will be able to make a huge difference and bring the much needed relief from breathing toxins to the citizens. “We welcome this effort by your government to put the issue of air quality high on the agenda and to build the institutional framework for action,” they both told the minister.Asked whether the government can be trusted in environment protection matters and whether the Supreme Court and the EPCA could be deprived of their regulatory responsibilities without the court’s consent, Sunita Narain told The Wire: “These are not for me to say. Court will have to decide. EPCA was mandated by the Supreme Court.”Sanjay Parikh, senior advocate of the Supreme Court, who has argued many cases involving environment protection, suggested that the Supreme Court may have to change the way it monitored. It should allow the institutions to function as expert bodies, he said.Rather than strengthen existing bodies such as the CPCB and the State Pollution Control Boards, the Centre has thought it necessary to create another body, which duplicates their functions. This shows that the existing bodies have failed, and there is no political will to bring the law into effect, Parikh said. If the Environment Protection Act and the Rules framed under it have enough provisions to tackle air pollution, why have another law and an exclusive commission, just to convey an impression that the Centre is doing something to address the concerns of the Supreme Court, he asks.The ordinance claims that the quality of air remains a cause of concern on account of the absence of a statutory mechanism for vigorous implementation of measures put in place. It remains to be seen whether the new Commission can mean any difference to the NCR’s quality of air.