A Well-Intended Law May Be Behind Delhi's Toxic Air In Winters. Should It Be Scrapped?

As Delhi and the region around it again breathes toxic air this winter, a petition in the Supreme Court brought the spotlight on what may have triggered this yearly cycle of distress: an altruistic law aimed at preserving the groundwater table.

A provision in a 2009 law preventing early sowing of paddy in the fields of Punjab could be behind Delhi's winter pollution, the state's Advocate General of Punjab said in the top court, which is hearing the MC Mehta Vs. Union of India—commonly referred to as the crop burning case. Initiating the paddy sowing process earlier can help mitigate the issue, he said.

Delhi has the worst air in the world during the winters as burning of paddy shoots after harvest add to pollution from power plants and cars. AQI levels spiked to severe levels, prompting the government to shut schools, ban construction and bar entry of diesel vehicles.

That started with the Punjab Preservation of Subsoil Water Act, 2009, or the Subsoil Act, according to experts BQ Prime spoke with. The law explicitly prohibits sowing of paddy before May. And it directs the relevant state government officials to eliminate any paddy sown in violation of this schedule.

The Subsoil Act was established with the primary objective of conserving the groundwater resources in the state of Punjab. But a 2019 study by Cornell University found that implementation of groundwater conservation policies seems to be worsening the air pollution crisis by concentrating agricultural burning during the late fall season in northwest India.

The delay in the schedule of paddy sowing brings the season end to November, resulting in pollution from stubble burning. That's because November is a period of low wind speed and the polluting smog hangs in the air.

Before the implementation of Punjab Preservation of Subsoil Water Act, 2009, stubble burning would occur earlier where the wind conditions did not result in the smoke remaining stagnant and causing pollution, according to Aakanksha Joshi, partner at Economic Laws Practice.

According to Arun Kumar, partner at IndusLaw, there was an argument in the apex court that the Subsoil Act be repealed. But, he said, starting the sowing activities before the onset of monsoon season will have detrimental effect on the already endangered groundwater levels of the state and will have dire ramifications for its future.

The other solution could be shifting to other crops, he said.

According to Joshi, conserving groundwater is an important requirement and hence, the act cannot be repealed. The alternative to stubble burning could be using crop residue as compost or for producing biogas or for energy production, she said. 

Since the Subsoil Act cannot be completely repealed and rice still has a high demand, being a staple diet of many Indians and in other parts of the world, farm experts suggested sowing varieties of rice that use less water, promoting millet, and using eco-friendly solutions to stubble burning. 

The economic costs discourage small farmers from adopting new varieties and methods, according to Vanita Bhargava, partner at Khaitan & Co. Therefore, apart from offering subsidy, incentives should be offered to farmers who reuse and recycle their stubble, she said. 

An example of such a step can be seen in the District Mineral Foundation fund, established under the Mines and Minerals (Development and Regulation) Act to provide assistance and support to the districts impacted by mining activities. 

As a step forward, the Ministry of Environment, Forest and Climate Change, on June 26 issued a notification for the draft Green Credit Programme Implementation Rules, 2023.

These proposed regulations outline the introduction of a national level programme to establish a framework that fosters a competitive market-based system for green credits. These credits are intended to serve as incentives, encouraging industries to voluntary implement environmental initiatives.