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. ...