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| Image Source: Hindustan Times |
21st-century scholars like Scott and Black introduced the idea of post
regulatory state where they seek to test the assumptions that states are the
primary loci of control over social and economic life or that they ought to
have such a position and role (Scott, 2003). The theory of post regulatory
state put forward the idea of decentred regulation. Black defines decentred
regulatory regimes as “those in which the state is not the sole locus
of authority, or indeed in which it plays no role at all” (Black, 2001). The
theory of decentred regulation is loosely based on the Legal Theory of
Autopoiesis (LTA) and the Foucauldian notion of Governmentality.
LTA perceives the world as consisting of differentiated and autonomous
social sub-systems. These sub-systems – the political, the legal, the social,
and the economic are the sub-systems central to regulation – are said to be
cognitively open but normatively and operatively closed. Thus, a sub-system is
open to ‘facts, situations, and events of its environment.’ This means that no
sub-system is immune from stimulating its external environment (Scott, 2003).
LTA proves that the centered approach to regulation will not solve the
regulatory problem because it does not include the different sub-systems of the
society in the governance process.
The concise definition of the Foucauldian notion of Governmentality is
the ‘conduct of conducts’ - the regulation (conduct) of behaviours (conducts).
Foucault saw the art of government as representing a continuum between the
power we have to govern ourselves, families, and the environment and the
state’s sovereign power. The central problem addressed by the theory is the
observation that much of the governance or control is seen in modern societies
is not focused on law and the state. Such an analysis leads to a conception of
regulation that is pluralistic or decentred in character (Scott, 2003).
The decentring analysis emphasizes the de-apexing of the state: the move
from a hierarchical relationship of state-society to a heterarchical one. That
shift from hierarchies to heterarchies implies a different role for the state,
one of mediator, facilitator, enabler, and for the skills of diplomats rather
than bureaucrats (Black, 2001).
The countries now started to put forward the decentred approach of
regulation in some sectors where the traditional Command and Control (CAC)
mechanism did not prove effective. In this paper, I am going to analyze the
regulation of air pollution caused by stubble burning in the northern part of
India. Stubble burning has been one of the leading causes of air pollution in
the Delhi NCR and the adjoining areas, and the government has tried several
instruments of regulation to solve this problem. Some of this has been
statutory provisions of criminalizing the act, whereas others are to make use
of technological and market-based instruments to change the behavior of the
farmers.
Stubble
Burning – the Problem
Stubble is the residue of the paddy plant which remains in the field
after harvesting the paddy. The stubble as wastage needs to be cleared from the
field, which is the principal problem of concern here. The most cost-effective
solution for the farmers to get rid of the stubble is to burn it on the field.
This act of burning in the month of October and November causes a significant
source of air pollution in the adjoining areas, mainly in the landlocked Delhi
NCR region.
Regulations
intended to control Stubble Burning
The government, over the years, used many regulatory policies to control
stubble burning. The various policies can be seen below.
Figure 1- Key Policy Interventions and other measures, Source- (Pandey, Kedia, &Malhotra, 2020)
These policies can be classified into two broad groups, explained below.
1. CAC Regulation
On November 04, 2015, the National Green Tribunal (NGT) ordered the
banning of agriculture stubble burning in Rajasthan, Uttar Pradesh, Haryana, and
Punjab under Section 144 of the CrPC, and the violator was liable to face
action under Section 188 of the IPC. In addition, the government imposed ₹1,500
per acre as environmental compensation (Pandey, Kedia, & Malhotra, 2020).
This regulation negatively impacted the stubble burning issue as the farmers
agitated against the government and continued to burn the stubble as earlier.
Even the monitoring and enforcement of the ban on stubble burning was a problem
for the government. At last, in 2021, the hard law was repealed. This case of
regulatory failure is a practical example of Teubner’s Regulatory Trilemma.
Teubner’s regulatory trilemma is a system where the ‘target’ system is
indifferent to the intervention, the destruction of the ‘target’ system itself,
or the destruction of the intervening system. Here, the target system of the
ban mechanism did not affect the stubble burning problem. The farmers were
indifferent to the ban and criminalization. As an unintended consequence, the
stubble burning increased, and at last, the system of ban failed, and the
government was forced to repeal the law. The system can be seen in the
following diagram.
Figure 2-System
of criminalization of stubble burning, Source- Author
2. Technical Regulation
Technical regulation can be further classified into two subgroups, a)
In-situ stubble management and b) Ex-situ stubble management.
- In-situ stubble management: In-situ
stubble management intended to manage the stubble in the field itself. The
use of crop residue management machines like Happy Seeder can cut the
stubble in the field, reverse the soil, and bury it, which will decompose
over time and work as a bio-fertilizer. A Central Sector Scheme,
‘Promotion of Agricultural Mechanization for In-Situ Management of Crop
Residue in Punjab, Haryana, Uttar Pradesh & NCT of Delhi,’ was
launched in 2018. Under this scheme, financial assistance at the rate of
50% is provided to farmers to purchase in-situ residue management
machines. The scheme covers three components- Establishing Farm Machinery
Banks for Custom Hiring of the CRM machinery (financial assistance
provided to cooperatives, SHGs, etc. to rent out machines to farmers
further), financial assistance to individual farmers, and IEC for
awareness on CRM (Pandey, Kedia, & Malhotra, 2020). However, the
subsidy given on CRM, in turn, increases the price of the machines and the
affordability of farmers remains unaffected (Quint, 2021).
The other process is using PUSA bio-decomposer developed by the Indian Agriculture Research Institute (IARI) in Pusa. When sprayed onto the rice straw after harvesting, it can turn crop residue into organic manure in just 15-20 days. The govt, in its pilot projects giving this bio-decomposer to farmers free of cost to popularize it.
2.
Ex-situ stubble management: Ex-situ stubble management is the process of getting the stubble
cut and using it somewhere else. More on this is explained in the market
market-based regulation.
3. Market Based Regulation
The main problem of farmers in managing stubble is that it is a waste, and the cost of managing it increases their production cost. So, the regulators wanted to attach a monetary value to it and create a market of stubble. The stubble can be used as fuel in industrial boilers, WTE plants, brick kilns, TPPs, and other applications like composting, bio-fuel / biogas production, biomass power generation, paper, and packaging industry, etc. The policy asked NTPC to use stubble as fuel in their thermal power plants located in the northern states (Report, 2022). This mechanism of regulation intended to reuse stubble so that farmers can sell the rice straw and gain income from it, rather than burning it.
4. Farming Behaviour Influencing Regulations
After the Green Revolution, farmers of the significant part of Punjab
and other adjoining states started monoculture, e.g., only wheat and rice
cultivation. The current regulation government tried to change the cultivation
pattern. The objectives are to demonstrate and promote the improved production
technologies of alternate crops for diversion of; paddy cultivation; and
second, to restore the soil fertility through the cultivation of leguminous crops
that generates heavy biomass and consume more minor nutrient intake
crops.
Punjab is the first state to set dates for harvesting and sowing seeds
for other reasons like the water table. However, the dates are a significant
point in the stubble burning problem because the farmers have very little time,
about 15 to 25 days, between paddy harvesting and sowing seeds for wheat for
better production. Because of this, the renting out the mechanism of the CRM
machines has failed as there were not enough machines to fulfill the needs of
all the farmers in that stipulated time. So, the regulations like setting a
time and crop diversification can address the problem.
The government is also in the line of talks about giving MSP to cash
crops other than wheat and rice, and this can influence the farmers for crop
diversification.
Assessment
of the regulations mentioned above in the decentred regulation approach
Black’s discussion of decentred regulation can be used to analyze the
regulatory elements in air pollution regulation caused by stubble burning. The
following excerpts from her work identify crucial elements in this analysis:
1. She describes regulation as follows: “the sustained and focused
attempt to alter the behaviour of others according to defined standards or
purposes with the intention of producing a broadly identified outcome or
outcomes, which may involve mechanisms of standard-setting,
information-gathering and behavior-modification.” (Black, 2001).
2. She also raises the question of which values should be applied to
decentred regulation and states: “just how these values should be attained are
the most troubling, and the least worked through, questions relating to the
decentering analysis. (Black, 2001).”
3. A decentred conceptualization of regulation raises questions about
where the forces of legitimacy, authority, or power are located in society and
require answers as to what values regulation should be made subject to, and
how, if those issues of power, authority and legitimacy are to be addressed. (Black,
2001).
The key components or concepts in Black’s description of decentred
regulation can be listed as follows:
• Locus of Authority
• Standard-setting
• Information-gathering
• Behaviour-modification
• Values
• Legitimacy
• Power
An additional concept which is implied in her work is related to how the
regulatory regime
operates, its process.
The components of the regulatory approaches stated above are summarized
in the following table.
|
Concepts |
Criminalization |
Technological |
Market
Based |
Others |
|
Locus
of Authority |
Only
State |
Various:
State is giving incentives, SHGs are involved in renting out of CRMs, Individuals
are in autonomous in adopting of technology, Market is also involved in
regulating the price of the technology. |
Various:
The market is in control of Realising price. Whereas, individuals are still
autonomous in decision making. State here has minimal authority as t just
guiding the industry to an intended pathway. |
Various:
Here state has the authority over intention of policies, nudges and giving
incentives. Whereas the individuals are cognitively open to farming choices. |
|
Standard-setting |
Here
standard setting is solely done by the state. |
Here
standards are depended on technology, market mechanism and external
environment. |
In
market-based mechanism state has limited authority of standard setting
whereas the market that is both industry and farmers are involved in standard
setting |
Government
here clearly set our intentions, so there is a part of standard setting done
by government. Whereas most of the standards depends on the dynamics of the
system. |
|
Information-gathering |
The
whole enforcement and monitoring are done by the state without consultation
of other stakeholders. |
Information
is generated through academia., research, industry and the community of
farmers as a whole |
Information
is generated by the market and the individuals. |
Here
the information gathering is done by the academia, research institutions,
policy makers, and the community. |
|
Behaviour-modification |
Behaviour
modification is minimal in CAC regulation |
Technology
can change the behaviour of farmers as well as farmers behaviours can make change
to the technology |
Individual
and industry behaviour is a dynamic process in market-based regulation.
Whereas state policies can change the behaviour of the market. |
Here
the whole intention of behaviour modification is done by the policy taken by
the government but depends on external factors of the system. |
|
Values |
The
government’s desire to regulate through punishment |
Technology
can influence the values of individuals. |
Here
the values depend on market dynamics. |
The
government’s values are propagated through different policies |
|
Legitimacy |
State’s
monopoly over legitimate use of power and violence. |
Hear
the legitimacy depend on the process itself. That means the effectiveness of
technology makes it legitimate. |
Hear
the legitimacy of the different actors in the market is defined by the state
and the history of the actors. |
Policy
intentions are legitimised by the government itself. Whereas the process got
legitimised by its effectiveness. |
|
Power |
Power
lies solely on the government. |
Power
diffused in the different actors of the system. |
Here
the power is the market mechanism itself. The individual hand of the market
is the source of power. |
Power
lies on the individual farmers on decision making but it also depends all the
government’s policies and intentions. |
|
Process |
By
the use of law enforcement agencies. |
Technology
diffusion by the government and industry and adoption of technology by the
individuals. |
The
market mechanism itself is a process. |
The
process is through different degrees of nudges. Also, the use of incentives
and decent incentives by the state shapes the process. |
Conclusion
The
diagnosis of regulatory failure provided by the decentring analysis suggests
that regulation should be a process of coordinating, steering, influencing, and
balancing interactions between actors/systems and of creating new patterns of
interaction which enable social actors/systems to organize themselves, using
such techniques as proceduralisation, calibration, feedback loops, redundancy,
and above all, countering variety with variety (Black, 2001). The various
regulatory instruments used by the Indian government over the years have not
effectively controlled the stubble burning problem. So apart from the ban on
stubble burning, other regulatory instruments involve various stakeholders
other than the government. So, the regulation to control air pollution caused
by stubble burning is polycentric in nature rather than completely decentred.
In all of that state has a role to play. In this kind of decentred regulation,
the intention or the outcome of the regulation is always developed by the
state. However, the decentred or polycentric notion of regulation decreases the
probability of unintended adverse outcomes of a particular regulatory policy.
In
a socio-technical system of society, the regulatory outcomes depend on the
interaction between technology and other actors of the system. So, in par with
the decentred notion of regulation, there is a fragmentation of power and
authority as well as fragmentation of knowledge. In order to regulate this
socio-technical system, regulatory instruments and technology need to be
dynamic with the needs of the society and changing times. We have seen that
when the CRM use and renting out systems were not that effective, new
technology such as bio decomposers was used as an instrument.
More
sustainable options in regulating stubble burning, such as crop diversification
through nudging and incentivizing, can be practical tools. So, the recent stunt
by the government to use more decentred tools of regulation rather than
criminalization sanctions or ban as a regulatory instrument can be proved to be
effective. However, citizens of a welfare state need the government to take
action in a particular manner of social and economic life, as we can see in
some documentaries on stubble burning (Quint, 2021).
Regulation
is an intentional activity (Black, 2001), and the intention here is the
intention of the government. So, retaining an element of intentionality, it
excludes the categories of market forces, social forces, and technologies. So,
the regulation of air pollution caused by stubble burning is polycentric in
nature rather than being wholly decentred.
References
Black, J. (2001).
Decentering Regulation: Understanding the role of regulation and self
regulation in a 'post regulatory' world. Current Legal Problems, Volume
54, Issue 1, 103–146.
Levi-Faur, D.
(2010). Regulation &Regulatory Governance. Jerusalem Papers in
Regulation & Governance Working Papers Series.
Pandey, R.,
Kedia, S., & Malhotra, A. (2020). Addressing Air Quality Spurts due to
Crop Stubble Burning during COVID19 Pandemic: A case of Punjab. NIPFP
Working paper series.
Quint, T.
(Director). (2021). Stubble Burning: The Soot of Bad Agri Policies? | Farm
Talks | Krishi Ki Baat | Punjab Farmers [Motion Picture].
Rambani, V.
(2021, Novembeer 10). Punjab ignoring stubble burning; 50,000 cases, not a
single FIR this year. Retrieved from Hindustan Times News:
https://www.hindustantimes.com/cities/others/punjab-ignoring-stubble-burning-50-000-cases-not-a-single-fir-this-year-101636563621387.html
Report, C. (2022,
April 7). Dialogue towards Clean Air held on 7th and 8th March, 2022 at
Gurugram. Retrieved from Commission for Air Quality Management in Delhi
NCR and adjoining areas: https://caqm.nic.in/Index1.aspx?lsid=4&lev=1&lid=4&langid=1
Scott, D. C.
(2003). Regulation in the Age of Governance: The Rise of the Post- Regulatory
State. National Europe Centre Paper No. 100.
