What are the steps involved in this regulatory performance evaluation?

The first step requires an accurate map of the regulatory landscape.

The regulation and governance of air pollution in the Delhi NCR is fragmented, with a division of power across Central, State and municipal authorities, and overlapping functions across environmental and local authorities. The duties of these various bodies are set out across environmental laws, municipal laws, court orders, different versions of air pollution plans and programmes, and a host of directions, orders, and notifications. To be able to assess whether our authorities are functioning effectively or not, we must first know what their various obligations are. For a lay citizen, or even for advocacy groups or technical experts working on air pollution, this is a difficult task, primarily because relevant information has not been consolidated in one place.

Putting this information together is the first step of our regulatory performance evaluation. We have divided this into two parts — the first is a map of the various laws, rules, regulations, bye-laws, directions, orders, circulars, plans, policies and programmes related to construction activities; the second is a compilation of relevant orders and judgments of the Supreme Court, Delhi High Court, and the National Green Tribunal.

A regulatory performance evaluation on construction must extend to the health and safety of construction workers.

A separate law, the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, regulates the health and safety measures that must be in place at construction sites to protect workers. The implementation of this Act has been a challenge and the subject of litigation in the Supreme Court by the National Campaign Committee for Central Legislation on Construction Labour. A regulatory performance evaluation, in the context of air pollution, should also encompass the measures that are required to be taken to protect health, even if such measures are not directly aimed at air pollution. As part of this project, we have also attempted to put together information on the key provisions of this legislation, on the directions of the Supreme Court, and where possible, information on the manner in which these have been implemented.

A regulatory performance evaluation should attempt to develop an index that can be used to objectively assess the functioning of authorities.

The Central Pollution Control Board has recently developed an index to measure the follow-up action taken by different authorities in response to violations pointed out by it during inspection. This index assigns compliance scores to various authorities depending on their performance regarding the resolution of complaints. Although the minutes of a review meeting chaired by the Chairperson, Central Pollution Control Board, mention a detailed system of allocating scores, the actual details remain unclear. However, the idea behind such an index is the right one, because it provides an objective way of measuring the performance of authorities.

Since a regulatory performance evaluation is, in some sense, equivalent to an air quality index, a natural step would be to create a scoring system and then assign values to different scores. Scores on the air quality index range from 0-500 and can mean that the air quality is Good, Satisfactory, Moderate, Poor, Very Poor or Severe. Similarly, a regulatory performance index should be able to tell you whether regulatory action has been Strong, Adequate or Weak. Once this has been developed, it will then be useful to compare the air quality index with the regulatory performance index and see whether scores on the poorer end of the air quality index are accompanied by strong regulatory action and vice versa.

We are still some way from gathering enough data to be able to develop a regulatory performance index. However, we hope to take the first step towards this by framing the questions that will make up various components of the index. To do this, we will draw on some of the methods of regulatory performance assessment developed in other jurisdictions and adapt them to the Indian context.

A regulatory performance evaluation is a dynamic and collaborative process.

For this project, we had two primary sources of information—material made available in the public domain by relevant authorities (action taken reports, reviews, press releases) and information provided in response to requests under the Right to Information Act, 2005. The response to RTI requests has been very poor. There appears to be no information available for an overwhelming number of requests and several requests have been redirected to other authorities. It has been very difficult to put together a meaningful analysis of regulatory action between January 2017 and August 2018. This is the period that we were interested in studying, because it allowed us to assess the level of regulatory activity during all parts of the year, even when authorities may not be under the same kind of scrutiny that they are during the winter peaks in air pollution.

The information that we received under the RTI is in contrast to the information periodically released by the authorities themselves. For instance, common citizens or even researchers would not have been able to put together, from the public domain, the kind of information that is contained in the report of the Parliamentary Standing Committee reviewing the status of air pollution in the Delhi NCR. If we are to verify the information made available by public authorities, we need corroboration from different kinds of sources.

  • Data on the grievances lodged through citizen-facing apps
  • First information reports filed with the police
  • Violations reported by Resident Welfare Associations
  • Firsthand accounts by construction workers
  • Nature of air pollution prosecutions by government lawyers

Such an information-gathering exercise must necessarily be collaborative. This project is, therefore, an appeal to citizens, groups, civil society organisations, and even authorities themselves to come together to create a reliable database of information on regulatory activity. For the government, this will help it determine whether its limited regulatory resources are being utilised effectively. For citizens and civil society, it will be a powerful tool of accountability.

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