Page 3 - Environmental Governance Architecture for India - Suggestions
P. 3
Discussion Paper
first in the Government of India Act 1935, and with other countries or at any international
then in the Constitution of India 1950. conference.The Air Act cites the decision of the
The Forest (Conservation) Act, 1980, (in short, FC Stockholm Conference 1972, with regard to “the
Act 1980) passed by Parliament flows from entry need to take appropriate steps for the preservation of
17A of List III (Concurrent List) of the Seventh the natural resources of the earth which among other
Schedule. This was facilitated by the Constitution things, include the preservation of the quality of air
(42nd Amendment) Act, 1976, which inter-alia and control of air pollution”.
moved the subject from the State list to the While the proximate cause for enacting the
Concurrent List. Environment (Protection) Act, 1986, may have
In the case of the Wild Life (Protection) Act, 1972, been the Bhopal Gas tragedy, The Environment
(in short the “Wild Life Act”), the legislation is (Protection) Act, 1986, (in short the “EP Act”)
based on a Resolution of the Legislature of 11 too was passed by Parliament claiming legislative
States, invoking article 252 of the Constitution competence under article 253 of the Constitution.
that provides for Parliament to pass a common law The Act cites the decision of the Stockholm
for two or more States making such a request by a Conference with regard to appropriate steps for
resolution of the State Legislature. The preamble ‘protection and improvement of the environment and
to the Act states.” AND WHEREAS Parliament has the prevention of hazards to human beings, other
no power to make laws for the States with respect living creatures, plants and property’.
to any of the matters aforesaid except as provided
in articles 249 and 250 of the Constitution; AND From the above, it is clear that Parliament has not
WHEREAS in pursuance of clause (1) of article so far made any law in respect of the environment
252 of the Constitution resolutions have been claiming legislative competence under article 246;
passed by all the Houses of the Legislatures of the only the FC Act 1980 was made under this provision.
States of Andhra Pradesh, Bihar, Gujarat, Haryana, The issue of how “environment” should be treated
Himachal Pradesh, Madhya Pradesh, Manipur, for purposes of legislative competence in a federal
Punjab, Rajasthan, Uttar Pradesh and West Bengal situation is a subject of some complexity. While to
to the effect that the matters aforesaid should some extent the historical evolution of the federative
be regulated in those States by Parliament by law forces will be an important factor, the scientific
..(Preamble omitted by the Amendment Act: 44 framework of what constitutes and directly influences
of 1991,presumably because wild life became a the environmental and ecological processes must have
Concurrent subject in 1976). primacy, and the law must harmonize itself with the
In the case of the Water (Prevention and Control science and the natural scheme of things, particularly
of Pollution) Act, 1974, (in short the “Water Act”) when responses of a mitigative and adaptive character
too, the legislation is based, as mentioned in the are increasingly necessary.
Preamble, on a Resolution of the Legislatures of
12 States, invoking article 252 of the Constitution At this stage it would be useful to list out some of
as in the case of the Wild Life Act.(Unlike the Wild the main subjects related to the environment and to
Life Act, the Preamble to the Water Act continues notice how they are distributed between the ‘Union’,
in the Act as Water remains a State subject). ‘State’, and ‘Concurrent’ lists. Boxes 1, 2, and 3 give
The Air (Prevention and Control of Pollution) the details for the Central, State, and Concurrent
Act, 1981, (in short, the “Air Act”) was passed subjects, respectively.
by Parliament under article 253 since that
article empowers Parliament to make law for It is apparent that the distribution of many of the
implementing any treaty, agreement or convention subjects generally, though not explicitly, follows the
‘principle of subsidiarity’, doubtless as a result of the
evolutionary process through the Government of
FEBRUARY 2016 3
first in the Government of India Act 1935, and with other countries or at any international
then in the Constitution of India 1950. conference.The Air Act cites the decision of the
The Forest (Conservation) Act, 1980, (in short, FC Stockholm Conference 1972, with regard to “the
Act 1980) passed by Parliament flows from entry need to take appropriate steps for the preservation of
17A of List III (Concurrent List) of the Seventh the natural resources of the earth which among other
Schedule. This was facilitated by the Constitution things, include the preservation of the quality of air
(42nd Amendment) Act, 1976, which inter-alia and control of air pollution”.
moved the subject from the State list to the While the proximate cause for enacting the
Concurrent List. Environment (Protection) Act, 1986, may have
In the case of the Wild Life (Protection) Act, 1972, been the Bhopal Gas tragedy, The Environment
(in short the “Wild Life Act”), the legislation is (Protection) Act, 1986, (in short the “EP Act”)
based on a Resolution of the Legislature of 11 too was passed by Parliament claiming legislative
States, invoking article 252 of the Constitution competence under article 253 of the Constitution.
that provides for Parliament to pass a common law The Act cites the decision of the Stockholm
for two or more States making such a request by a Conference with regard to appropriate steps for
resolution of the State Legislature. The preamble ‘protection and improvement of the environment and
to the Act states.” AND WHEREAS Parliament has the prevention of hazards to human beings, other
no power to make laws for the States with respect living creatures, plants and property’.
to any of the matters aforesaid except as provided
in articles 249 and 250 of the Constitution; AND From the above, it is clear that Parliament has not
WHEREAS in pursuance of clause (1) of article so far made any law in respect of the environment
252 of the Constitution resolutions have been claiming legislative competence under article 246;
passed by all the Houses of the Legislatures of the only the FC Act 1980 was made under this provision.
States of Andhra Pradesh, Bihar, Gujarat, Haryana, The issue of how “environment” should be treated
Himachal Pradesh, Madhya Pradesh, Manipur, for purposes of legislative competence in a federal
Punjab, Rajasthan, Uttar Pradesh and West Bengal situation is a subject of some complexity. While to
to the effect that the matters aforesaid should some extent the historical evolution of the federative
be regulated in those States by Parliament by law forces will be an important factor, the scientific
..(Preamble omitted by the Amendment Act: 44 framework of what constitutes and directly influences
of 1991,presumably because wild life became a the environmental and ecological processes must have
Concurrent subject in 1976). primacy, and the law must harmonize itself with the
In the case of the Water (Prevention and Control science and the natural scheme of things, particularly
of Pollution) Act, 1974, (in short the “Water Act”) when responses of a mitigative and adaptive character
too, the legislation is based, as mentioned in the are increasingly necessary.
Preamble, on a Resolution of the Legislatures of
12 States, invoking article 252 of the Constitution At this stage it would be useful to list out some of
as in the case of the Wild Life Act.(Unlike the Wild the main subjects related to the environment and to
Life Act, the Preamble to the Water Act continues notice how they are distributed between the ‘Union’,
in the Act as Water remains a State subject). ‘State’, and ‘Concurrent’ lists. Boxes 1, 2, and 3 give
The Air (Prevention and Control of Pollution) the details for the Central, State, and Concurrent
Act, 1981, (in short, the “Air Act”) was passed subjects, respectively.
by Parliament under article 253 since that
article empowers Parliament to make law for It is apparent that the distribution of many of the
implementing any treaty, agreement or convention subjects generally, though not explicitly, follows the
‘principle of subsidiarity’, doubtless as a result of the
evolutionary process through the Government of
FEBRUARY 2016 3
