Moving beyond Delhi’s odd-even scheme

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One particular issue that merits urgent policy intervention is the institutional crises within the Pollution Control Boards in the country. These bodies are the first line of regulatory defence for prevention and control of most types of environmental pollution. Yet their powers and capacities are not commensurate with the tasks they are mandated to perform under various environmental laws. As the government grapples with its effort to locate long-term solutions to air pollution, it is an opportune time to invigorate the Boards and make them capable of responding to the nature and scale of environmental problems we face now, and are likely to face in future.

The limited enforcement powers of the Boards are an indication of the practical difficulties faced by them. The Air (Prevention and Control of Pollution) Act 1981 envisages criminal punishment–imprisonment and a fine – for offenses such as violating emission standards. These penalties can only be imposed once the Board files a criminal complaint, meets the procedural requirements of evidence collection, charges are framed and finally, a Magistrate’s court finds the polluter guilty. The time taken to conclude such proceedings is not conducive to effective and timely pollution abatement. This is aggravated by a low conviction rate that lowers the deterrent impact of the law. Not surprisingly then, Boards mostly choose not to initiate criminal proceedings. Instead they issue notices to units warning them of possible closure, revocation of mandatory consents, or stoppage of water or power supply; and hope for compliance. Often even this does not have the desired outcome.

Units can risk ignoring such notices as the data collection and monitoring capacity of the Boards are known to be abysmally inadequate. Even where a polluting unit is shut down, the Board may have succeeded in checking the immediate cause of pollution, but it cannot direct the unit to ensure appropriate restitution. Nor can it impose a monetary fine based on the environmental damage caused, or require payment of compensation to affected persons. Closures could also have other, unintended consequences (including unemployment and financial losses for stakeholders) that are politically and socially unpalatable.

With Boards unable to effectively regulate sources of pollution, the National Green Tribunal is proving to be a preferred forum for grievance redressal. In the recent past the Tribunal has issued several orders aiming to tackle the causes of air pollution. But a situation where a judicial forum is the first port of call for citizens is unfortunate, and ultimately unsustainable. A competent and accountable regulatory agency (and therefore, presumably, less susceptible to corrupt practices) with access to adequate resources (technical, human and financial) is far better placed to formulate and enforce environmental standards than the judiciary. No doubt, the judiciary has participated proactively in Indian environmental governance but largely because the executive has been passive in the face of glaring violations. Judicial recourse is not a viable long-term mechanism for protecting the quality of the country’s air (or any other environmental challenge for that matter).

For air pollution regulation to be even moderately successful, there has to a credible threat of enforcement action that is prompt, proportionate to the damage caused, and prohibitively costly. One promising path forward is to enhance the enforcement powers of the Boards – allow them to impose administrative fines, revoke bank guarantees, and impose damages. A note of caution is in order – any effort to empower the Boards legally must be accompanied by efforts to strengthen them institutionally as well: make them financially independent and secure, and increase transparency in their functioning.

The underlying causes for regulatory failure deserve serious reflection, and corrective action, if our cities are to effectively control pollution. Weak Pollution Control Boards have been a big part of the problem and thus must occupy an important part of any reform agenda that the government may initiate. Strengthening the powers and capacities of the Boards is by no means an easy ask. But the status quo is no longer an option.