Putting some behind bars will send right message: Supreme Court on stubble burning

The two-judge bench of CJI Gavai and Justice K Vinod Chandran was hearing a matter related to filling of vacancies in the Commission for Air Quality Management (CAQM), the Central Pollution Control Board (CPCB) and state pollution boards.

“Why don’t we consider reintroducing (penal provisions)? If you have a provision for criminal prosecution, if some people are sent behind bars, it will send the right message,” the CJI said.

“You consider it, otherwise we will issue mandamus. You can’t just withdraw prosecution, only looking at a five-yearly exercise,” he said.

Appearing for the Centre, Additional Solicitor General Aishwarya Bhati said it was a national policy not to prosecute farmers. “We have to take them along,” she said.

The CJI agreed that farmers must be taken along, by providing other options for utilising the stubble like for biofuel, but said the authorities should use a carrot-and-stick policy. “You take them (along). That’s what I said in the beginning, you should have some alternative mechanism for using this stubble. At the same time, you use both carrot as well as stick. Give them carrot, but at the same time…,” he said. “Farmers have a special position. Because of their efforts, we are getting what we eat. That doesn’t mean they should not be brought in, in order to protect the environment of the country,” he said.

Bhati said farmers enjoyed protection from prosecution, even under the Commission for Air Quality Management in National Capital Region and Adjoining Areas (CAQM) Act “as a policy”.

The CJI asked why it should be so “if you have real intention of protecting the environment.”

Bhati said the CAQM Act has a provision for launching prosecution against erring officials, but the court expressed doubts on how much officials would be able to monitor. “It would be difficult for an officer, say at the block level, to monitor so many villages. If he finds that some of the agriculturalists are violating this condition, if you send at least some people behind the bars, it sends the right message,” the CJI said, adding “why don’t you consider having a penal provision even as far as the agriculturalists are concerned?”

Senior Advocate Rahul Mehra, who appeared for the Punjab government, said sending smaller farmers behind bars would also affect their families who are solely dependent on them.

“We are not saying to do it as a routine. We are only saying if it is done on a sample basis, it will act as a deterrent,” the CJI said.

Bhati urged the court to allow her to place on record the steps that have been taken until now.

The court said combating air pollution cannot be a five-year exercise. “You should take all states on board together and must have a unified policy,” it told the Centre.

The court directed the CAQM, CPCB and state pollution control boards to come out with measures to prevent air pollution within three weeks, ahead of winter when pollution levels spike. The bench asked the CAQM to deliberate the issue with the CPCB, concerned states and their pollution control boards “to come out with a concrete plan to prevent pollution… the same shall be done within three weeks”. The bench sought a report from the CAQM and fixed the next hearing for October 8.

Last year too, the SC had observed that doing away with the penal clause had rendered the Environment (Protection) Act “toothless”. The Centre had amended Section 15 of the Act, which provided for criminal prosecution, by way of an amendment in 2023.

Meanwhile, the Haryana government informed the SC that it had brought down the vacancies in its pollution control board from 173 last year to 44, and efforts were on to fill the remaining posts. The court directed the state to fill the vacancies within three months.

Bhati informed the bench that 147 of the total 603 posts in the CPCB are vacant, and the CAQM, which has 56 posts, has 18 vacancies. She said 11 contractual staff have been appointed for 11 of the 18 vacancies. The court gave the centre three months to fill the vacancies in CPCB and CAQM, and one month to fill the posts of permanent member and member secretary in CAQM.

Senior Advocate Aparajita Singh, who is assisting the court as amicus curiae in the case, said that in 2018, the SC had asked the Centre to come out with a scheme to resolve the stubble burning problem. “Under that scheme, equipment to harvest paddy are provided on subsidy — 80 per cent subsidy to cooperatives and 50 per cent to individual farmers,” she said. Singh said the states say they have taken all steps, and the Centre has spent huge funds in providing the equipment, but the problem hasn’t been resolved.

“In fact, last time we got to know — and the state (Punjab) may clarify — farmers say they were being told to burn (stubble) at a particular time when the satellite does not pass over the state. The bench took note of this. That’s why every time, before the pollution actually starts, we request your lordships to take effective steps. Sorry to say, since 2018, your lordships have passed extensive directions, but every time it’s the same story. And they plead their helplessness before your lordships,” she said.

Mehra, however, said: “People who are on the ground, their reports have come that fire incidents have come down from 77,000 three years back to 10,900 last year. We are assuming it will come down even further this year. A lot has happened. We need to reach a stage where there will be zero incidents. We are gradually moving towards that. In three years, a lot has been achieved.”