Page 3 - Discussion Paper - Restructuring the Environmental Governance Architecture for India
P. 3
DISCUSSION PAPER
The Forest (Conservation) Act 1980, (in short FC for the preservation of the natural resources of
Act 1980) passed by Parliament flows from entry the earth which among other things, include the
17A of List III (Concurrent List) of the Seventh preservation of the quality of air and control of
Schedule. This was facilitated by the Constitution air pollution”.
(42nd Amendment) Act 1976, which inter alia While the proximate cause for enacting the
moved the subject from the State List to the Environment (Protection) Act 1986 may have
Concurrent List. been the Bhopal Gas tragedy, The Environment
(Protection) Act 1986 (in short the “EP
In the case of the Wild Life (Protection) Act, Act”) too was passed by Parliament claiming
1972, (in short the “Wild Life Act”), the legislation legislative competence under Article 253 of the
is based on a Resolution of the Legislature of 11 Constitution. The Act cites the decision of the
States, invoking Article 252 of the Constitution Stockholm Conference with regard to appropriate
that provides for Parliament to pass a common steps for “protection and improvement of the
law for two or more States making such a request environment and the prevention of hazards to
by a resolution of the State Legislature. The human beings, other living creatures, plants and
preamble to the Act states, “AND WHEREAS property”.
Parliament has no power to make laws for the
States with respect to any of the matters aforesaid From the above, it is clear that Parliament has so
except as provided in Articles 249 and 250 of far not made any law in respect of the environment
the Constitution; AND WHEREAS in pursuance claiming legislative competence under Article
of clause (1) of Article 252 of the Constitution 246; only the FC Act 1980 was made under this
resolutions have been passed by all the Houses of provision. The issue of how “environment” should
the Legislatures of the States of Andhra Pradesh, be treated for purposes of legislative competence in
Bihar, Gujarat, Haryana, Himachal Pradesh, a federal situation is a subject of some complexity.
Madhya Pradesh, Manipur, Punjab, Rajasthan, While to some extent the historical evolution of
Uttar Pradesh and West Bengal to the effect that the federative forces will be an important factor,
the matters aforesaid should be regulated in those the scientific framework of what constitutes and
States by Parliament by law ..(Preamble omitted directly influences the environmental and ecological
by the Amendment Act: 44 of 1991, presumably processes must have primacy, and the law must
because wildlife became a Concurrent subject harmonize itself with science and the natural scheme
in 1976). of things, particularly when responses of a mitigative
and adaptive character are increasingly necessary.
In the case of the Water (Prevention and Control
of Pollution) Act, 1974, (in short the “Water Act”) At this stage it would be useful to list out some
too, the legislation is based, as mentioned in the of the main subjects related to the environment
Preamble, on a Resolution of the Legislatures and notice how these are distributed among the
of 12 States, invoking Article 252 of the “Union”, “State”, and “Concurrent” Lists. Boxes 1, 2,
Constitution as in the case of the Wild Life Act and 3 provide the details for the Central, State, and
(Unlike the Wild Life Act, the Preamble to Concurrent subjects, respectively.
the Water Act continues as Water remains a
State subject). It is apparent that the distribution of many of the
subjects generally, though not explicitly, follows the
The Air (Prevention and Control of Pollution) “principle of subsidiarity”, doubtless as a result of
Act, 1981, (in short, the “Air Act”) was passed the evolutionary process through the Government
by Parliament under Article 253 since this of India Act 1919 and 1935 to the Constitution of
Article empowers Parliament to make laws India, 1950. In particular:
for implementing any treaty, agreement or Subjects such as land are left to the States
convention with other countries or at any Subjects that require a national uniformity of
international conference. The Air Act cites the
decision of the Stockholm Conference 1972, with approach like airways and railways are in the
regard to “the need to take appropriate steps Central domain
OCTOBER 2017 3
The Forest (Conservation) Act 1980, (in short FC for the preservation of the natural resources of
Act 1980) passed by Parliament flows from entry the earth which among other things, include the
17A of List III (Concurrent List) of the Seventh preservation of the quality of air and control of
Schedule. This was facilitated by the Constitution air pollution”.
(42nd Amendment) Act 1976, which inter alia While the proximate cause for enacting the
moved the subject from the State List to the Environment (Protection) Act 1986 may have
Concurrent List. been the Bhopal Gas tragedy, The Environment
(Protection) Act 1986 (in short the “EP
In the case of the Wild Life (Protection) Act, Act”) too was passed by Parliament claiming
1972, (in short the “Wild Life Act”), the legislation legislative competence under Article 253 of the
is based on a Resolution of the Legislature of 11 Constitution. The Act cites the decision of the
States, invoking Article 252 of the Constitution Stockholm Conference with regard to appropriate
that provides for Parliament to pass a common steps for “protection and improvement of the
law for two or more States making such a request environment and the prevention of hazards to
by a resolution of the State Legislature. The human beings, other living creatures, plants and
preamble to the Act states, “AND WHEREAS property”.
Parliament has no power to make laws for the
States with respect to any of the matters aforesaid From the above, it is clear that Parliament has so
except as provided in Articles 249 and 250 of far not made any law in respect of the environment
the Constitution; AND WHEREAS in pursuance claiming legislative competence under Article
of clause (1) of Article 252 of the Constitution 246; only the FC Act 1980 was made under this
resolutions have been passed by all the Houses of provision. The issue of how “environment” should
the Legislatures of the States of Andhra Pradesh, be treated for purposes of legislative competence in
Bihar, Gujarat, Haryana, Himachal Pradesh, a federal situation is a subject of some complexity.
Madhya Pradesh, Manipur, Punjab, Rajasthan, While to some extent the historical evolution of
Uttar Pradesh and West Bengal to the effect that the federative forces will be an important factor,
the matters aforesaid should be regulated in those the scientific framework of what constitutes and
States by Parliament by law ..(Preamble omitted directly influences the environmental and ecological
by the Amendment Act: 44 of 1991, presumably processes must have primacy, and the law must
because wildlife became a Concurrent subject harmonize itself with science and the natural scheme
in 1976). of things, particularly when responses of a mitigative
and adaptive character are increasingly necessary.
In the case of the Water (Prevention and Control
of Pollution) Act, 1974, (in short the “Water Act”) At this stage it would be useful to list out some
too, the legislation is based, as mentioned in the of the main subjects related to the environment
Preamble, on a Resolution of the Legislatures and notice how these are distributed among the
of 12 States, invoking Article 252 of the “Union”, “State”, and “Concurrent” Lists. Boxes 1, 2,
Constitution as in the case of the Wild Life Act and 3 provide the details for the Central, State, and
(Unlike the Wild Life Act, the Preamble to Concurrent subjects, respectively.
the Water Act continues as Water remains a
State subject). It is apparent that the distribution of many of the
subjects generally, though not explicitly, follows the
The Air (Prevention and Control of Pollution) “principle of subsidiarity”, doubtless as a result of
Act, 1981, (in short, the “Air Act”) was passed the evolutionary process through the Government
by Parliament under Article 253 since this of India Act 1919 and 1935 to the Constitution of
Article empowers Parliament to make laws India, 1950. In particular:
for implementing any treaty, agreement or Subjects such as land are left to the States
convention with other countries or at any Subjects that require a national uniformity of
international conference. The Air Act cites the
decision of the Stockholm Conference 1972, with approach like airways and railways are in the
regard to “the need to take appropriate steps Central domain
OCTOBER 2017 3
