‘NGT orders impossible to enforce’

‘NGT orders impossible to enforce’

By Siddharth Tiwari & Dibyendu Mondal | New Delhi | 11 November, 2017

The National Green Tribunal, taking stock of the grim air pollution levels in the national capital, upheld the Delhi government’s odd-even road rationing scheme for five days from 13 November, however it overruled the Delhi government directive of exempting women and two wheelers from the scheme. This led to the Delhi government withdrawing the odd-even scheme, citing the lack of infrastructure to bear the additional burden of lakhs of two-wheeler riders, who would be using public transport in the odd-even period. The NGT also said that every time Delhi’s pollution level crossed the “danger” mark, which is pegged at AQI 300, the road rationing scheme should be implemented within 48 hours. “Delhi government is free to implement the odd-even car rationing scheme with the subject to conditions. The odd-even scheme will be automatically implemented in Delhi and NCR as and when PM 10 crosses 300 level and PM 2.5 crosses 500,” said a bench headed by NGT chairperson Justice Swatanter Kumar. If this is to be implemented, the odd-even scheme would be a permanent fixture in the calendar of Delhi and the whole of National Capital Region, observers pointed out, as the air quality is above the danger mark almost throughout the year. However, this would also inconvenience commuters and tremendously hurt business and other activities in the whole of Delhi-NCR.

Observers and environmental experts said that the current dense smog in the region showed that NGT’s orders were not being enforced on the ground.

Legal experts and environmentalists said that NGT was a tribunal and had its own limitations in ensuring the implementation of its orders. They further said that NGT should seek collaborative efforts from the implementing agencies. Secondly, orders have to be more “reasonable” and “technically sound” for their effective implementation. “You ban the entry of diesel trucks in Delhi without assessing the capacity and manpower available at the checkpoints. Also, you go on to ban the traditional practice of burning crops without laying a solid cost-effective alternative for the farmers. Instead, there needs to be a wider approach to mitigate environmental challenges,” Shishir Pinaki, a senior lawyer at the Supreme Court, told The Sunday Guardian.

NOT IMPLEMENTED

An investigation by The Sunday Guardian in Kirti Nagar, Kidwai Nagar, Govindpuri, and Nehru Place revealed that none of the previous orders of the NGT, such as the ban on diesel generators, construction activities, industrial activities causing emissions, usage of polythene bags and entry of trucks older than 10 years, was being implemented.

Even on Thursday, when the Air Quality Index (AQI), which measures the concentration of pollutants in the air, clocked at more than 450 in some parts of the city, construction activities were still underway in several parts of the national capital.

Construction activity at the redevelopment site of Kidwai Nagar in South Delhi, which is being undertaken by the National Buildings Construction Corporation Limited (NBCC), was going on in full swing and construction workers remained unaware of any such ban.

Delhi Metro construction work was also going on at different locations.

Even the ban on diesel generators, which contribute nitrous oxide to the air, was not being implemented seriously. Banquet halls and even several shopkeepers in the city are still using diesel generators. Also, hardly anything was being done to arrest dust pollution by either vacuum cleaning the roads or sprinkling water. However, Radha Krishnan, spokesperson of the South Delhi Municipal Corporation, claimed, “We have been vacuum cleaning the roads for the last one month. We have five machines that are on the field and working. We have also been taking measures to sprinkle water from time to time at different places.”

Furthermore, despite NGT’s 2015 order banning crop burning in paddy fields, there has been a dramatic rise in stubble burning in Punjab, Haryana and Uttar Pradesh. According to National Aeronautics and Space Administration (NASA) data, crop burning intensified on 27, 29 and 31 October, particularly in Punjab.

Experts said that the banning of crop burning without substituting it with a cost-effective method would not yield any results. “Crop burning comes into the input cost of the farmers. Unless there is an alternative cost-effective mechanism to dispose of the crop residues, they wouldn’t stop the practice. Also, will you punish the entire of Punjab or Uttar Pradesh for flouting the order?” reasoned Supreme Court advocate Vijay Pal Dalmia.

WIDER APPROACH NEEDED

Experts said that the need of the hour was a much wider approach, rather than “stay orders” or “blanket bans”.

“Law has only one thumb rule, do not pass an order that cannot be implemented, because it will lead to the disrespect of the courts. If you pass a sweeping order without proper deliberation with the stakeholders, then implementation of such an order would be patchy,” noted Dalmia.

“While challenging NGT orders in higher courts, parties have argued that their concerns, capacities and limitations were not heard before passing an order. For instance, is it practically possible to stop all small and big industries in NCR? The entire economy will come to a standstill,” Dalmia added.

Commenting on the increasing number of instances where NGT orders were being challenged in higher courts, TISS professor Geetanjoy Sahu said, “NGT has several internal and external challenges. Firstly, they don’t have the mechanism to ensure the implementation of the order. Secondly, their orders can be challenged in the High Court and the Supreme Court. In fact, we have seen the HC asserting its superiority by stating that ‘High Court is a constitutional body, while NGT is a statutory body’. Thirdly, appointments are a big issue. They are not functioning with their full strength and do not have the variety of scientists and experts they need, to address the rising number of environment cases. Fourthly, there is a lack of coordination among several highly potent agencies, crafted especially to mitigate environmental issues.”

However, as Shibani Ghosh, a public interest lawyer specialising in environmental and access to information laws, said, “It is true that some of the orders of the NGT have weak evidentiary basis. But to stop the rapidly declining quality of our environment and to shake the (mostly) apathetic executive agencies, the NGT occasionally has to give a wake-up call.”

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