Environmental Governance in India
Catalytic Role of the Indian Institute of Ecology and Environment
If human society is to endure not for just another century but for thousands and thousands of years, we need to learn a way of life that could be sustained by the Mother Earth. Human society must learn to control population size and develop more efficient technologies that produce as little harmful waste as possible. We must learn to rely on resources that are renewable. A society based on these ideas is called a sustainable society.
We should long for having a sustainable world so profoundly different from the way we live which cannot be imagined without a strenuous exercise of mind. Like human body the Mother Earth has its organs that adjust to changes - in climate, nutrient levels and other aspects of the environment to maintain its stability. Just as the human organism is made of trillions of cells and so is the world organism; each of us is a cell of Gaia (Greek word for Mother Earth).
Changing our ways will be a colossal task which may involve arduous work but as an optimist we should view the third millennium with a cleaner and greener mind and pledge to work on new pollution control technologies as the answer to our polluted waters and skies by better treating our Mother Earth by not to rival nature but to cooperate with it and live in harmony.
We must guide the human race living in a historic transitional period of burgeoning awareness of the conflict between human Activities and environmental constraints, preparing to venture into a new century and a new millennium and to finally help save the fragile and endangered planet with the natural resources already overtaxed and for developing a critical path to governance through modern ideas for reducing the toll exacted in supporting daily life and the ever growing problems on the earth exerting profound pressures on the environment.
As the human race prepares to venture into a new century, conversations and news reports are peppered with references to our fragile and endangered planet. The earth is five billion years old, and over the eons it has endured bombardment by meteors, abrupt shifts in its magnetic fields, dramatic realignment of its land masses, and the advance and retreat of massive ice mountains that reshaped its surface. Life, too, has proved resilient: In the more than three and a half billion years first forms of life emerged, biological species have come and gone, but life has persisted without interruption. In fact, no matter what we humans do, it is unlikely that we could suppress the powerful and chemical forces that drive the earth system.
Although we cannot completely disrupt the earth system, we do affect it significantly as we use energy and emit pollutants in our quest to provide food, shelter, and a host of other products for the world's growing population. We release chemicals that gnaw holes in the ozone shield that protects us from harmful ultraviolet radiation, and we burn fuels that emit heat - trapping gases that build up in the atmosphere. Our expanding numbers overtax the agricultural potential of the land.
Tropical forests that are home for millions of biological species are cleared for agriculture, grazing, and logging. Raw materials are drawn from the earth to stoke the engines of the growing world economy, and we treat the atmosphere, land, and waters as receptacles for the wastes generated as we consume energy and goods in our everyday lives. Scientific evidence and theory indicate that as a result of such Activities, the global environment is undergoing profound changes. In essence, we are conducting an uncontrolled experiment with the planet to the extent that we have come to a point of no return and we may face the disaster any time.
The world is finite, but it will have to provide food and energy to meet the needs of a doubled world population some time in the twentyfirst century. Its natural resources, already overtaxed in many areas, will have to sustain a world economy that may be five to ten times larger than the present one. This cannot be done if humans continue to pursue current patterns.
As people continue their endless quest for new materials, new energy forms, and new processes, the constraints imposed by depletion of natural resources and the pollution caused by human Activities have brought society to a crossroads. Abundance coexists with extreme need and our very existence may be in danger owing to mismanagement and over exploitation of the environment. In spite of all the technological and scientific triumphs of the twentieth century, there have never been so many poor, illiterate, or unemployed people in the world, and their numbers are growing. As they struggle to survive, they have little choice but to pursue Activities that may undermine the environment, the natural resource base on which they depend, and the conditions that sustain life itself.
Third World nations seem convinced that the poverty they endure is not a mere aberration of international economic relations that can be corrected by minor adjustments, but rather is the unspoken premise of the present economic order. Developing countries have had to produce more and sell more in order to earn money to repay debt and pay for imports. The amount of coffee, cotton, or copper they must produce to buy a technology or an equipment keep increasing. This has caused people to place extra stress on the environment, which has fuelled soil erosion, accelerated the cancerous process of desertification and deforestation, and began to threaten the genetic diversity that is the basis for tomorrow's biotechnology, agriculture, and food supply.
A global consensus for economic growth in the twentyfirst century must be consistent with sustainable development. It must take heed of ecological constraints. If coming five years are truly to be a period during which we respond to the serious problems confronting the world, issue of sustainable global development requires special and urgent attention.
In the totality of environment, the biological component goes through cyclical changes but the non-living component does not. And the all-important fact is that the living world sustains itself at the expense of the non-living. A portion of the non-living finds it way into the making of a living object but eventually whatever had thus moved from the non-living state of existence into the fabric of a living objects has got to go back to its original state. Otherwise, ecological imbalance sets in. In such a situation, the threat posed to the ecology of an area comes mainly from man, for while the non human segments of the living world do not play any planned role aimed at sustaining their numbers, man had grown too clever to be outmaneuvered by nature. On the other long. Now, he finds that the game did not pay off. He realises that while he had been clever, he had not been wise. Hence, this reappraisal. Thus is born the environmentalist school. It works towards generating a fresh awareness regarding the importance of maintaining environmental quality in man’s own interest.
Environmental protection is a national as well as international responsibility. We remember what Mahatma Gandhi said “The earth provides enough to satisfy every man’s needs, but not for anybody’s greed”. Based on the motivation from the United Nations Conference on Human Environment held at Stockholm on 5 June 1972, a Committee was formed for with a time period of 10 years (1972 - 1981) for preparing the aims and objectives, course materials, case studies, occasional monographs with a view to establishing the Indian Institute of Ecology and Environment (IIEE) at New Delhi. Accordingly the IIEE was established on the occasion of the World Environment Day on 5 June 1980. The Silver Jubilee was celebrated on 5th June 2005.
The Government of India keeps on setting up different statutory bodies including the Central Pollution Control Board, National Eco-Afforstation Board besides National Environment Authority (NEA) and six regional authorities with appellate jurisdiction to hear appeals against decisions made by the regional authorities.
Whether these decisions stem from a genuine concern for sound environmental governance and overcoming administrative failures is debatable. It has to be seen in the light of the complete bureaucratisation of the Ministry of Environment and Forests (MoEF) in the last two decades.
The MoEF was established as a Scientific Department in November 1980 following the recommendations of the N. D. Tiwari Committee Report. It was envisaged that the Ministry would formulate policies and laws, while an Environment Protection Authority, independent of the Government, would oversee implementation of policies and programmes and enforcement of the laws (on the lines of the powerful EPA in the US).
This did not happen. Instead, over the years, the original mandate of the MoEF was eroded by administrative cynicism and sidelining of scientific expertise available within the Government, even as the MoEF has sought to takeover more regulatory functions. Civil society perceives the bureaucracy as disinterested in public welfare and corrupt.
Weak governance, manifesting itself in poor service delivery, excessive regulations, poor enforcement of laws and uncoordinated and wasteful public expenditure, are among the key factors eroding national ecological and environmental security.
This is exemplified by the thousands of crores of rupees spent so far under the Ganga Action Plan and the National Wasteland Development Board without achieving their respective mandates of cleaning the Ganga and developing wasted lands. When the MoEF was established, the existing Department of Forests and Wildlife continued to be under the Ministry of Agriculture.
But the new Department of Environment was directly under the Prime Minister and was envisaged as a focal point for developing future programmes, policies and laws based on scientific and technical analysis to ensure environmentally-sound and sustainable development in all sectors in the country.
With this perspective, the Department was intended to guide and monitor the progress of complex inter-sectoral programme implementation both in the private and public sectors. Three eminent scientists served as Secretaries till May 1985. Thereafter, the Environment and Forests and Wildlife Departments were placed in one Ministry headed by a Secretary from the Indian Administrative Service. In 1987, the Department of Environment, which was recognised as a ‘scientific’ Department (such as the Departments of Ocean Development, Biotechnology, Space, Science and Technology, and Non-Conventional Energy), was taken out of the purview of the Union Public Service Commission (UPSC) for speedy recruitment of scientific personnel. After the initial phase of recruitment of scientists, however, no fresh recruitment was made. Gradually, as senior scientists retired, these posts were converted to non-scientific posts and taken over by the IAS and allied services such as Customs, the Railways, Post and Telegraphs, etc.
No attempt was made to create an independent cadre of scientific professionals. The influx of career administrators has contributed to the spread of the bureaucratic babu culture. A sense of urgency to integrate ecological and environmental concerns into the developmental process has completely evaporated, undermining effective coordination with other concerned Ministries on inter-sectoral issues. Effective environmental and ecological strategies have not been evolved in major sectors such as industry, transport, agriculture and aquaculture, energy, and forestry. ‘Environment ImpAct Assessment’, which is a multidisciplinary and multidimensional process, is being undertaken mechanically just to get the environmental clearance under the Environment Protection Act, instead of being an integrated and continuous process from the very start of a project. Conflicts have escalated in sectors such as water, land use, agriculture, animal husbandry, mining and forests, which are of deep concern to the people, and there has been little attempt to decentralise natural resources management through the institutions of self-government under the 73rd and 74th Amendment Acts. Moreover, multiple systems of administration and functioning in an uncoordinated manner, have led to confusion in the implementation of programmes and the enforcement of laws, and also unhealthy rivalry between agencies.
For instance, two agencies concerned with afforestation function independently - the National Afforestation and Eco-development Board under the MoEF, and the National Wastelands Development Board under the Ministry of Rural Areas and Employment. Biodiversity conservation falls within the purview of different Departments and Ministries. The National Bio-Resource Board was constituted by the Department of Biotechnology and the National Medicinal Plant Board by the Department of Indian Systems of Medicines and Homeopathy (Ministry of Health and Family Welfare). And, under the new Biodiversity (Conservation) Act, the MoEF is to set up a National Biodiversity Board.
The Ministry of Water Resources is the nodal agency for managing the water sector. It discharges its mandate through the Central Water Commission (surface water), Central Ground Water Board (ground water) and the National Water Development Agency (inter-basin transfer of water).
But the MoEF handles water quality and related environmental aspects; the Ministry of Urban Affairs and Development coordinates projects in urban water supply and sanitation; the Ministry of Rural Areas and Employment looks after rural water supply and sanitation under the Rajiv Gandhi National Drinking Water Mission; and the Ministry of Power and Central Electric Authority handles water issues for power generation.
Similarly, multiple agencies are responsible for the protection of air quality, including the Directorate of Industries, the Department of Transport and Urban Development and the Traffic Police authorities in urban areas. Unlike the independent Environment Protection Authority envisaged by the Tiwari Committee, the National Environment Authority, which has now been setup, seems to be confined to appellate jurisdiction only.
If the NEA is to be truly effective, its mandate has to be extended to include monitoring the policies and programmes developed by the MoEF and the functioning of enforcement agencies at the national- and State-levels. To do this, the NEA needs to be staffed with an independent scientific and technical cadre. Further, the Government would have to make a major departure from the current mode of functioning of nodal Ministries responsible for the ecological and environmental sustainability related to various developmental Activities.
The regular coordination of all monitoring Activities could be done by setting up a National Task Force on Ecology and Environmental Security, answerable to the NEA. The Task Force could be mandated to sort out inter-ministerial and sectoral differences, fund allocations and programme implementation. Indeed, the entire institutional mechanism needs to be restructured for effective ecological and environmental governance. This would require treating the MoEF on the same lines as the other scientific Ministries and Departments. The functioning of the MoEF could be streamlined under two separate Departments for Environment, and for Forests and Wildlife. The Department must be headed by an eminent scientist as Secretary, with the support of a scientific and technical cadre and allowing for the lateral entry of experts in different disciplines from the universities, scientific agencies and other professional organisations. The Forest Department should be independently headed by the Director-General who should also serve as its Secretary. The Central Board of Forestry, which has been dormant since 1988, should be revived. Every Ministry concerning natural resource management must have an ‘Ecological and Environmental Adviser’ who relates to the MoEF as the respective financial advisers do to the Ministry of Finance. Also, the National River Conservation Authority could be merged with the Department of Environment. To strengthen the Central and State Pollution Control Boards, there has to be an in-built mechanism within the MoEF to continuously revise standards for air, water and effluents and review the relevant legislations. The marine environment and coastal areas have long been neglected. A Central Commission needs to be set up to address the entire range of issues relating to marine and coastal areas. So too forest genetic resources and micro-organisms; separate bureaus for ‘Forest Genetic Resources’ and ‘Micro-organism Genetic Resources’ also need to be created for collection, identification and characterization on the lines of the existing National Bureaus of Plant, Animal and Fish Genetic Resources.
The NEA is only a very small step towards restructuring the institutional mechanism for environmental governance. Much more needs to be done to meet national needs and the commitments made by India in respect of various international conventions and agreements. Unless this is done, such incremental knee-jerk measures only create the illusion that environmental governance is moving forward in the interests of the people when, in fact, nothing much is being accomplished.
There is accordingly an urgent need for having a competent cadre of young professionals and scientists by acquiring necessary skills in the areas of ecology and environment. The Indian Institute of Ecology and Environment has been engaged since June 1981 in the promotion of environmental education, depolluting technologies, impact assessment, natural resources conservation and management, environmental governance, advocacy and citizenship.
ENVIRONMENTAL FEDERALISM : AN INDIAN VIEW-POINT
The two common types of regulatory structures of Governments are ‘unitary’ and ‘federal’. As the name suggests, a ‘unitary’ structure is one that consists of a single level or a single platform from which governance and regulation flow. It has all the elements of centralisation. In such a structure, one would find little or no autonomy in matters of decision-making in places away from or at some distance from a single ‘centre’ of power. In contrast, a ‘federal’ structure is one which is decentralised, where one will easily observe a great deal of empowerment and ‘localised’ decision-making authority at a number of levels in addition to a single centre, and ‘federalism’ refers to an ideology that propounds such a federal structure. Ulrich Kloti, a Swiss political scientist, provides a useful working definition of federalism. According to him, Federalism is a territorially differentiated political organization, where citizens belong to two (or more) political units at two (or more) levels, in which each level (i.e. the federation, the States and the communes) can decide autonomously on certain policies and has its own tax base, where the federation makes sure that the Union does not disintegrate, and where the lower levels (in particular, the States or Provinces) participate in the decision-making at the superior level. Another crisper definition of Federalism is provided by David Nice in his book “Federalism: The Politics of Intergovernmental Relations”, where he defines federalism as a “system of Government that includes a national Government and at least one level of sub-national Governments, and that enables each level to make some significant decisions independent of the others”. With this brief background, we now turn to federalism and environmental regulation. It is conceivable that like other areas of governance and regulation, there exists scope for a degree of federalism in the area of environmental policy-making, regulation and management as well. Since the natural environment, national and international, is inherently variable with local geography and with physical distances measured from any point, it makes sense to postulate or hypothesize that federalism and the entire gamut of environmental management, regulation and preservation will go together. Let us now examine environmental federalism in India from constitutional, institutional, legislative and judicial perspective and then go on to scrutinize various elements of the international order to establish the degree, if any, of the linkage between federalism, deCentralisation and the environment.
Environmental Policy and Constitutional Provisions in India
Powers over environment are assigned to different tiers of Indian Government. The division of environmental policy-making and allocation of environmental functions amongst the Central, State and local Governments is regulated by the Indian Constitution. Let us see how the Indian constitution governs the relations between the Central, State and local Governments, especially with reference to environmental issues.
Union and State Governments
India, a Union of States, has a federal system of governance. The power of governance is shared between the Union Government and the State Governments. The Indian Constitution governs the legislative and administrative relations between the Union and the States. While the Union Parliament enjoys the power to legislate for the whole or any part of the country, the State legislatures are empowered to make laws only for their respective States. However, State legislatures, enjoying plenary powers, are not delegates of the Union Parliament. Both, the Union Parliament and the State legislatures, derive their powers from the Indian Constitution. The division of Governmental powers is made with reference to three lists given in the Seventh Schedule to the Constitution. List I or the Union List contains 97 subjects over which Parliament has exclusive power to legislate. These include defence, foreign affairs and environmentally relevant subjects such as atomic energy and mineral resources; regulation and development of interstate rivers and river valleys; highways; shipping and navigation in national highways; major ports; airways, aircraft and air navigation; regulation of mines and mineral development; development of oil fields etc. The State legislatures have exclusive power to legislate with respect to 66 subjects enumerated in List II or what is known as the State List.
The environmental subjects over which State legislatures can legislate are public health and sanitation; agriculture; communication; preservation, protection and improvement of stock and prevention of animal diseases; water; land; etc. Under List III or Concurrent List, Parliament and State legislatures have overlapping, concurrent and shared jurisdiction over 52 subjects ranging from forests, protection of wild animals, and mines and mineral development to population control and family planning minor ports, factories and electricity. The State legislatures have full powers to legislate with respect to subjects specified in the Concurrent List. But this power is subject to an important limitation, namely that the provisions of the State law should not conflict with any of the provisions of the Union law on that subject. This is to say that if a State law relating to a concurrent subject is conflicting and therefore repugnant to a Union law relating to that very subject, then the Union law will prevail and the State law shall, to the extent of such inconsistency and repugnancy, be void. There is one exception to this rule. If a State law on a concurrent subject is inconsistent with a prior Union law on that same concurrent subject, then the State law shall prevail in that State and overrule the Union law in the applicability to that State only, if the State law has received presidential assent. Again, there are a few Articles in the Constitution where the legislative power is specifically and exclusively reposed in the Parliament. In such cases, the distribution of powers based on the three lists is not applicable. For example, Article 262 confers exclusive power on Parliament to enact a law providing for the adjudication of any dispute or complaint with respect to the use, distribution or control of waters of, or in, any inter-state river or river valley. In exercise of the power conferred by Article 262, Indian Parliament enacted The Inter-State Water Dispute Act, 1956. And the jurisdiction of all Courts, including the Supreme Court, is barred with respect to such disputes, which are to be settled by the Tribunal set up under The Inter-State Water Dispute Act, 1956. Another important provision in the Indian Constitution, tilting the balance in favour of the Union, is Article 248. This Article confers the residuary power of legislation on Parliament. It grants exclusive power to Parliament to make law on any subject matter not covered by the State or Concurrent lists. In addition, under Article 249 of the Constitution, Parliament is also empowered to legislate in ‘national interest’ on matters covered by the State list. And, if there is any inconsistency between the law made by Parliament under Article 249 and law made by the State legislature, the law made by Parliament shall reign supreme. Further, Parliament can enact laws on State subjects for those States whose legislatures have consented to such Central legislation. Thus, though ‘water’ is a State subject, The Water [Prevention and Control of Pollution] Act of 1974 was enacted by Parliament, pursuant to consent resolutions passed by 12 State legislatures. In order to legislate on environmental matters, the Indian Parliament has relied upon yet two other constitutional provisions. These provisions are Article 253 and Article 51(c). Article 253 empowers Parliament to make laws for implementing any treaty, agreement or convention with any other country/countries or for implementing any decision made at any international conference, association or other body. Article 51(c) mandates that the State shall endeavor to foster respect for international law and treaty obligations. These two Articles, therefore, legitimize the Parliament to pry open List II and enact laws on any entries contained in it provided it is necessary for the purpose of implementing the treaty obligations of India. In fact, two major and vital Indian environmental laws, namely, The Air [Prevention and Control of Pollution] Act of 1981 and The Environmental [Protection] Act of 1986, have been enacted under these Constitutional provisions. The Preambles to both these laws State that the statutes are enacted to implement the decisions reached at the United Nations Conference on Human Environment held at Stockholm in 1972. Similarly, The National Environmental Tribunal Act of 1995, The National Environment Appellate Authorities Act, 1997 and The Biodiversity Act, 2002 were passed by the Indian Parliament pursuant to the Rio Summit of 1992. The United Nations Conference on Human Environment also gave rise to the Constitutional (42nd Amendment) Act, 1976. The Amendment expanded the list of concurrent subjects by introducing a new entry ‘Population Control and Family Planning’, and two entries ‘Forests’ and ‘Protection of Wild Animals and Birds’ were shifted from the State List to the Concurrent List. These changes have resulted in giving more powers to Parliament to legislate on environmental issues. Consequently, though the environmental powers are distributed between the Union and States, the Union does enjoy a dominant role in environmental policy making. The Constitutional (42nd Amendment) Act of 1976 also resulted in inclusion of Article 48A and Article 51A(g) in the Constitution. Article 48A casts an obligation on the Indian State not only to protect but, more importantly, to improve the environment and to safeguard the forests and wildlife of the country. Article 51A(g) imposes a fundamental duty on the Indian citizen to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Therefore, the duty to protect and enhance the quality of environment in India is the duty of the Union, States and the citizens. The Division Bench of the Supreme Court directed the Central and State Governments and local authorities to introduce ‘cleanliness week’ when all citizens, including members of the executive, legislature and judiciary, should render free personal service to keep their local areas free from pollution.
The Indian Constitution focuses mainly on Centre-State relations. Till 1992, it hardly talked about local Government, except in Article 40 in Part IV of the Constitution. This Article directs that State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. Local Government and village administration is a subject in the State list. Hence, it is the States which have to set up local Governments. Consequently, local Governments are completely under the jurisdiction and control of their respective State Governments. They derive their powers, functions and jurisdiction from their State Governments and not from the Constitution itself. This is to say that though Local Governments enjoy a statutory position and are an integral part of national Government, no specific powers have been conferred upon them by the Constitution. The constitutional allocation of functions/subjects is between the Union and the States and not amongst Union, States and Local Governments. The Seventh Schedule contains the Union List and State List but no Local List. In 1992, Constitutional (73rd and 74th Amendment) Acts were passed, inserting Parts IX and IX A in the Constitution. Part IX [Articles 243-243(0)] deals with panchayats17 and Part IXA [Articles 243(P)-243(Za)] relates to municipalities. The 73rd and 74th Constitutional Amendments added XI and XII Schedules to the Constitution. While XI Schedule distributes powers between the State legislature and the panchayat; XII Schedule distributes powers between the State legislature and the municipality. Both Schedules contain environmental subjects. The panchayat can handle agriculture; land improvement and soil conservation; minor irrigation, water management and watershed development; animal husbandry; fisheries; social forestry; rural housing; drinking water; fuel and fodder; electricity and nonconventional energy sources. The municipality can undertake town planning; regulation of land-use and construction of buildings; roads and bridges; water supply for domestic, industrial and commercial purposes; public health, sanitation, solid waste management; urban forestry, protection of environment and promotion of ecological aspects; slum improvement and up-gradation; provision of urban amenities and facilities such as parks and gardens; cattle ponds and prevention of cruelty to animals; and regulation of slaughter houses and tanneries. It warrants noting that the XI and XII Schedules merely list suggested environmental functions for panchayats and municipalities. The States are not obliged to devolve all or some of these listed functions on the panchayats and municipalities. However, local Governments do perform some environmental functions such as public health and sanitation, garbage collection and sewage. But there is considerable variation across Indian States in the range and nature of environmental functions discharged by the panchayats and municipalities. Hence, the Actual role of local Governments in environmental policy and management is very weak. Municipal Council, Ratlam v. Vardhichand is the first landmark Indian decision where a statutory obligation of a civic body towards protection of environment was categorically acknowledged. The Supreme Court compelled the municipality to either fulfill its obligation of providing a clean environment or face consequence of closure. Rejecting financial inability as a ground for avoiding statutory obligation, the Court reprimanded: “a responsible municipal council constituted for the precise purpose of preserving public health cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies”. Since then the Indian judiciary has risen to the occasion. Adorning the mantel of an ombudsman it has not hesitated in reminding the local authorities of their constitutional duty to provide an unpolluted environment, and on occasions has even chided them for dereliction of their duties. In Ganga pollution case, where the pollution of Ganga was affecting the life, health and ecology of the entire Indogangetic plain, the summit court admonished that although Parliament and State legislatures have enActed many laws imposing duties on the Central and State bodies and municipalities for preventing water pollution, many of these provisions have just remained on paper. Directions of this judgement were sent to all the municipalities of the towns situated on river Ganga. Hence, despite some unitary features, the Indian Constitution does reflect strong federal characters in matters relating to environment. ..