How to plug gaps in the law to prevent and control air pollution

Initiatives such the Commission for Air Quality Management are steps in the right direction, but penal provisions against polluters will need to be made simple and stringent.

Image credits: The Indian Express

In 2019, I submitted a Private Member’s Bill (PMB), drafted in consultation with civil society and experts, proposing amendments in the Air (Prevention and Control of Pollution) Act, 1981. The Commission for Air Quality Management in the National Capital Region and Adjoining Areas Bill, 2021 passed in the Monsoon Session resonates with multiple proposals put forward in my PMB, and is a welcome step. The establishment of a national-level authority was long felt to efficiently coordinate between States. However, there still are critical gaps in the Act, which I explain below.

First, numerous pieces of evidence show the relationship between air pollution and health. In 2019, our country accounted for 1.67 million deaths owing to air pollution, which necessitates according prominence to the impact of air pollution on health in the Act. The Ministry of Health and Family Welfare (MoHFW) should be included in the Commission to undertake regular research and assessment of the effect of air pollution, especially, on the health of the elderly, children and others. Such an arrangement would enable the Commission to devise its approach based on evidence generated. The Commission should also be encouraged to continuously engage with civil society and scale up innovative practices and technology.

Second, as Peter Drucker says, “What is measured improves”. Therefore, the Commission must set a future roadmap in terms of its target like decoupling emissions from growth, reducing exposure of vulnerable populations, decreasing the economic burden of disease among others. To do this, the Commission may propose indicators like emissions per unit Gross Domestic Product (GDP), population’s vulnerability to exposure, urban PM2.5 mortality burdens, per capita green space and the number of clean air days to monitor the impact in the envisaged direction. Targets identified should then be tracked and measured like indicators under SDGs are clearly identified and tracked. We are doing it for SDGs, so I see no reason for not including air pollution under an institutional framework. Also, instead of placing an annual report in Parliament, it should publish a biannual state-wise ranking of performance on its website to incentivise states’ performance and foster public engagement. Further, in the interest of transparency, the legislation should also provide for a third-party performance evaluation.

Third, the Act’s limited geographical extension to the Capital of Delhi, NCR and adjoining states (Punjab, Rajasthan, Haryana and Uttar Pradesh) is a major drawback to the cause as it deprives fellow citizens of their right to clean air. Therefore, the scope must be immediately expanded at least to the Indo-Gangetic plains including the states of Bihar and West Bengal and subsequently, to the entire country as air pollution is not a localised phenomenon.

Fourth, the provision of limiting adjudication to the National Green Tribunal (NGT) is concerning as members of both the Commission and the NGT will be appointed by the Ministry of Environment, Forest and Climate Change (MoEFCC). The Act also violates the principle of federalism by allowing disproportionate representation from the states in comparison to the central government. It is furthered by the superseding of the Commission’s decisions over state governments in case of a conflict.

Last, it flouts the international principle of “polluter pays” by restricting payment of fines to Rs 1 crore. This might enable bigger industries to access a creative loophole, wherein they can get away with a limited fine instead of a proportionate penalty. It is pivotal to not limit the monetary responsibility of a polluter and adopt an approach of “proportionate penalty” without any upper limit. Additionally, with regard to the contravention of the provisions of the Act, it would be prudent to add a form of penalty that is effectuated immediately on the polluter, such as withdrawing of welfare benefits or other concessions provided in an industrial area.

Given the debilitating levels of air pollution in the country, the Act needs to be strengthened to reflect the true legislative intent of tackling the issue of air pollution. Therefore, I strongly believe that the issue of air pollution must have a critical space while we debate, innovate and take actions towards building a more resilient public health architecture in a post-pandemic world.

This article was originally published in the Indian Express on August 16, 2021.

Published by mpgauravgogoi

Member of Parliament, Kaliabor Lok Sabha.

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