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.
Local Government
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. ...