New Delhi: Against the backdrop of rampant stubble burning in neighbouring states of the capital, the Supreme Court on Wednesday reminded the Centre and state governments of the right of citizens' to live with dignity and in a pollution-free environment.
It pulled up the Centre for rendering the Environmental Protection Act "toothless" through amendments and the provision of Section 15, which required prosecution of the wrongdoers is substituted by a provision of recovery of penalty.
The apex court stressed that the Commission for Air Quality Management in the National Capital Region and Adjoining Areas Act of 2021 (CAQM Act) was enacted without creating the required machinery for implementing the provision to curb air pollution.
A three-judge bench led by Justices Abhay S Oka, and comprising Justices Ahsanuddin Amanulllah and Augustine George Masih said the Centre and state governments should recognise that there is a fundamental right of every citizen under Article 21 of the Constitution of India to live in a pollution-free environment.
The air quality in the national capital was recorded in the "very poor" category, with several areas falling into the "severe" zone on Wednesday.
Justice Oka, pronouncing the order, said these are not a matter of only implementing the existing laws, these are matters of blatant violation of fundamental rights guaranteed under Article 21 of the Constitution.
Justice Oka stressed that governments have to address the question of how they are going to protect the right of citizens to live with dignity and a pollution-free environment.
"Therefore, it is high time that governments and all authorities note that this litigation is not an adversarial litigation. This litigation is only to ensure that laws related to the environment are strictly complied with so that constitutional rights of citizens are upheld”, said Justice Oka.
The Chief Secretaries of both Haryana and Punjab were present in the court and made submissions before the bench regarding the steps taken to curb the menace of stubble burning.
The bench said what precise action has been taken by a large number of officers is specifically not placed on record. Haryana Chief Secretary said instances of stubble burning have been reduced considerably.
Justice Oka said in the case of both governments, Haryana and Punjab, we find that selective action has been taken and in some cases, governments are claiming that they have recovered the compensation and in a few cases, they are claiming that they have registered FIRs, and the environmental compensation stated to be recovered is minimal.
Justice Oka said another serious issue is flagged in the compliance affidavit filed by the state of Punjab, where court's attention was invited to the amendment made to Section 15 of the Environment Protection Act. Section 15 provided for violation of a provision of the Act, the order passed, and rules framed, as an offence.
The bench said now the provision of Section 15, which required prosecution of the wrongdoers is substituted by provision of recovery of penalty.
"The provision has been rendered completely ineffective due to inaction on the part of the Government of India," said Justice Oka, adding that no appointment of adjudicating officer has been made, though a period of more than 6 months has elapsed, and the law enforcing machinery cannot impose penalty under Section 15.
“In the absence of machinery created by the government of India, Section 15 has been amended and become toothless, and there is nothing in the hands of law enforcing authorities to strictly enforce the provision of the Environment Protection Act," said Justice Oka.
"Therefore, those who violate the laws related to the environment are scot-free, as no action can be taken against them," the bench said.
Additional Solicitor General Aiswarya Bhati assures the court that within 14 days’ from today, the entire machinery will be in existence. Bhati represented the Centre.
The top court noted that the manner in which action has been taken by governments is reflected from the figures given across the bar, for example this year there are 1084 identified cases of stubble burning in Punjab.
"However, compensation has been recovered from 473 persons. As far as Haryana is concerned there are 419 cases identified. FIR lodged against 32 of the wrongdoers and in case of 320 wrongdoers’ nominal compensation has been recovered. Prime facie it appears to us that the penal provisions are not implemented by both states”, said Justice Oka.
Bhati submitted that CAQM has issued notices to senior administrative officials of Punjab and Haryana besides officials of the state pollution control boards. Bhati said the commission has sought their response as to why action should not be taken against them.
The bench asked the CAQM who is taking your notices seriously as the procedure is not provided under the law. The bench emphasised that penal action should be taken against those officials who have not implemented the directions, instead of setting criminal law in motion, the commission has merely issued show cause notices.
"Please tell your chairperson of CAQM not to bail out these officials. We know what is happening on the ground," the bench said. The apex court was informed that over 1,000 cases of stubble burning have taken place in several districts of Punjab like Amritsar, Ferozepur, Patiala, Sangrur, and Taran Taran.
The bench stressed that coordination between the commission and state authorities is absolutely necessary and added that an important committee under the Act is not functioning properly because the number of members are remaining absent and this committee deals with the orders passed by the commission.
"There is an assurance in the affidavit filed by the Union of India necessary will be taken regarding members who are not attending the meeting", noted the bench.
The bench was informed that show cause notices have been sent to the secretary (environment) and additional chief secretary (agriculture) of both Punjab and Haryana.
On October 16, the top court condemned the apathy shown by state governments, Punjab and Haryana, in finding a solution to the menace of stubble burning, one of the major contributors towards air pollution in the capital, which has existed for decades.
The apex court also minced no words in criticising the Punjab government, for its inaction in prosecuting the violators, saying that the state should declare itself “helpless”, as it cannot prosecute anybody. The apex court has summoned the chief secretaries of both Punjab and Haryana, saying that the attitude of the state governments is "complete defiance".
The apex court was hearing a matter regarding the issue of stubble burning, which is a major contributor for severe air pollution in Delhi.
