The Supreme Court on Friday questioned a new central ordinance’s prescription of a uniform five-year jail term and Rs 1-crore fine for anyone polluting the capital’s air, saying the offences and the punishments should be graded.

A bench headed by Chief Justice S.A. Bobde was also dismissive of the Centre’s move to form a new anti-pollution commission, saying it was concerned more about how the government was going to tackle the rising smog and air pollution in Delhi and its neighbourhood.

The court said it would examine the ordinance immediately after Diwali, which falls on November 14, indicating it wasn’t happy with the legislation.

“We are not concerned with any commission. There are already many commissions. There are many brains working,” the bench, which included Justices A.S. Bopanna and V. Ramasubramanian, told solicitor-general Tushar Mehta.

“But ensure that there is no smog. Also grade the offences. For every offence it can’t be five years’ jail or a Rs 1-crore fine.... We will hold a detailed hearing after the Diwali break.”

On October 29, the Centre had promulgated an ordinance creating a high-powered anti-pollution commission, spelling out pollution norms for the National Capital Region, and prescribing punishment for violators.

“There is five years’ imprisonment prescribed for all. We feel there should be a grading of offences. Here everything is one-fold. How can it be?” Justice Bobde asked Mehta.

Mehta said the government would look into the matter.

The law generally grades all punishment depending on the gravity of the offence. The ordinance’s failure to do so could be the outcome of a hurried promulgation.

The ordinance had been sprung as a surprise after the apex court had last month decided to set up a stubble-burning monitor for the capital under one of its retired judges, Justice Madan B. Lokur.

Justice Lokur’s appointment would not have pleased the Centre — he has been a critic of the misuse of the sedition law and efforts to stifle free speech, a seeker of accountability for extrajudicial killings by the armed forces, and the head of a citizens’ probe into the Delhi riots.

Days after the apex court decision to appoint the Lokur committee, the government had told the bench about the proposed ordinance and got the panel to be held in abeyance. It then issued the ordinance in double quick time.

At the start of Friday’s hearing, Mehta told the court the new commission on air quality management in Delhi and its neighbourhood would start functioning from Friday. But the court was unimpressed.

Senior advocate Vikas Singh, appearing for the public interest petitioner whose plea had secured the appointment of the Lokur committee, said the government must immediately take all the necessary measures to stem pollution in the region.

“Please state that (if) any person suffer(s) from health issues, then solicitor-general Mr Tushar Mehta will be responsible…. I have already started coughing,” he told the bench in a lighter vein.

Mehta responded: “I can advise you to leave a couple of things….”

Both counsel laughed at the repartee.

Singh told the court that the new commission lacked any health ministry representative. He requested the court to pass a few urgent directions to check pollution.

But Justice Bobde said: “We don’t want to advise them (the government). They are all knowledgeable people. Whatever anyone says, ultimately we are a court of law. This problem will be dealt (with) by the executive as they have money and resources.”