Page 5 - Discussion Paper - Restructuring the Environmental Governance Architecture for India
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DISCUSSION PAPER
birds” and the corresponding entries 19 and 20 economic and environmental requirements in a
in List II (State List) were omitted. democratic context and in a situation of regional
as well as social disparities?
It may be noted that though the subjects of “forests” How should the approach be made science-based
and even “protection of wild animals and birds” were as well as socially inclusive?.
moved from the State List to the Concurrent List, the
subject of “environment”, though mentioned in the Given that “environment” as a subject does
newly inserted Articles 48A and 51A was not inserted not explicitly figure in the Seventh Schedule, an
into the Concurrent List at the same time, an omission important consideration is to analyse the extent to
which cannot be deemed to be either unintentional or which any such governance framework (including
insignificant. As evident from the discussion further the current one) is aligned with the Constitutional
ahead, the difficulties with attempting to incorporate provisions and the current distribution of subjects,
“environment” as a subject in any of the three Lists and in particular, whether:
was probably the reason for the omission. For all intents and purposes, “environment” can
In the 1970s, and even in the 1980s, sectoral and should be treated as a Central subject in terms
governance systems in the States were not so well of Article 248 (read with entry 97 of the Central
developed, and the Central Government had to take List) which provides for Parliament to make law
national ownership for an evolving subject whose for any subject not mentioned in the State and
nature and extent were not fully understood. As the Concurrent Lists;
body of knowledge grows, the multi-disciplinary and The provisions of Article 253 which provides
interdisciplinary linkages are becoming clearer. In for Parliament to make law in furtherance of
some sectors, these linkages can be quite complex. international treaties and commitments are
Understanding the complexity and evaluating the adequate as has been the experience in the past in
nature and appropriateness of the response and respect of the Air Act and EP Act; and
identifying the best manner to deliver the response, Given the deep links between “environment” and
both mitigative and adaptive, is key to being able to many of the subjects in the State list ( including
address the environmental issues. land, water, industry, public health, agriculture
and related activities), the architecture needs to
To the extent that through the accumulation of be more layered, involving a combination of a
knowledge and experience and the development of Framework which meets international obligations
capacity, State-level governance systems now have and provides legislative teeth in respect of matters
better potential, and new local governance systems in the Central and Concurrent Lists, along with
(Panchayats and Municipalities) have also been State level laws ( under Article 246(3) or even
created, the question is whether applying federal under Article 252 as has been done in respect of
(and subsidiarity) principles, the architecture for the Water Act) for matters in the State List.
environmental management and governance can be
improved in a context where there is a widespread Before proceeding further, it is clarified that for
feeling that the current architecture is inefficient and purposes of this Discussion Paper, the focus is
ineffective in balancing the needs of socio-economic more on the “environmental governance” aspect.
development with the imperative of protecting the Though “forests” and “wild life” are related to the
environment. environment, this paper does not go into depth
(except with respect to the FC Act) for the reason
Some of the issues that need to be addressed in that the approach to the governance framework here
this process have been identified as follows: is already largely settled by the specific mention of
In Constitutional terms, what should be the the subject in the Seventh Schedule: initially in the
State List, and now in the Concurrent List, and the
overall framework in respect of Central and body of laws going back to the Forest Acts of 1865
State (including Panchayat and Municipal) and 1878 and the current Act of 1927. As a caveat, it
responsibilities?
How should the governance and regulatory
systems be designed so as to balance socio-
OCTOBER 2017 5
birds” and the corresponding entries 19 and 20 economic and environmental requirements in a
in List II (State List) were omitted. democratic context and in a situation of regional
as well as social disparities?
It may be noted that though the subjects of “forests” How should the approach be made science-based
and even “protection of wild animals and birds” were as well as socially inclusive?.
moved from the State List to the Concurrent List, the
subject of “environment”, though mentioned in the Given that “environment” as a subject does
newly inserted Articles 48A and 51A was not inserted not explicitly figure in the Seventh Schedule, an
into the Concurrent List at the same time, an omission important consideration is to analyse the extent to
which cannot be deemed to be either unintentional or which any such governance framework (including
insignificant. As evident from the discussion further the current one) is aligned with the Constitutional
ahead, the difficulties with attempting to incorporate provisions and the current distribution of subjects,
“environment” as a subject in any of the three Lists and in particular, whether:
was probably the reason for the omission. For all intents and purposes, “environment” can
In the 1970s, and even in the 1980s, sectoral and should be treated as a Central subject in terms
governance systems in the States were not so well of Article 248 (read with entry 97 of the Central
developed, and the Central Government had to take List) which provides for Parliament to make law
national ownership for an evolving subject whose for any subject not mentioned in the State and
nature and extent were not fully understood. As the Concurrent Lists;
body of knowledge grows, the multi-disciplinary and The provisions of Article 253 which provides
interdisciplinary linkages are becoming clearer. In for Parliament to make law in furtherance of
some sectors, these linkages can be quite complex. international treaties and commitments are
Understanding the complexity and evaluating the adequate as has been the experience in the past in
nature and appropriateness of the response and respect of the Air Act and EP Act; and
identifying the best manner to deliver the response, Given the deep links between “environment” and
both mitigative and adaptive, is key to being able to many of the subjects in the State list ( including
address the environmental issues. land, water, industry, public health, agriculture
and related activities), the architecture needs to
To the extent that through the accumulation of be more layered, involving a combination of a
knowledge and experience and the development of Framework which meets international obligations
capacity, State-level governance systems now have and provides legislative teeth in respect of matters
better potential, and new local governance systems in the Central and Concurrent Lists, along with
(Panchayats and Municipalities) have also been State level laws ( under Article 246(3) or even
created, the question is whether applying federal under Article 252 as has been done in respect of
(and subsidiarity) principles, the architecture for the Water Act) for matters in the State List.
environmental management and governance can be
improved in a context where there is a widespread Before proceeding further, it is clarified that for
feeling that the current architecture is inefficient and purposes of this Discussion Paper, the focus is
ineffective in balancing the needs of socio-economic more on the “environmental governance” aspect.
development with the imperative of protecting the Though “forests” and “wild life” are related to the
environment. environment, this paper does not go into depth
(except with respect to the FC Act) for the reason
Some of the issues that need to be addressed in that the approach to the governance framework here
this process have been identified as follows: is already largely settled by the specific mention of
In Constitutional terms, what should be the the subject in the Seventh Schedule: initially in the
State List, and now in the Concurrent List, and the
overall framework in respect of Central and body of laws going back to the Forest Acts of 1865
State (including Panchayat and Municipal) and 1878 and the current Act of 1927. As a caveat, it
responsibilities?
How should the governance and regulatory
systems be designed so as to balance socio-
OCTOBER 2017 5
