ENVIRONMENTAL LAW & GOVERNANCE IN INDIA

The human beings, directly and indirectly are influenced by the factors of environment.
Among these factors, climate has direct effects on the human's economic activities. It has a
major influence on the process of decision making regarding the use of resources. This
influences the culture and life style of the different races of the people. Though with the help
of advancement in science and technology, man is in the position of modifying the
environment by creating artificial changes but that is to a very limited extent. India's
environmental resources are limited. Further these resources are being exploited by
unprecedented growth of population and unplanned economic development. The
environmental resources are the foremost and mandatory requirement for sustainable
development. These resources are depleted by environmental pollution and deterioration.
India has enacted more than 200 laws for protecting the environment with significant
provisions in the constitution. An attempt is made to systematically analyze the initiatives
taken by the government of India in the broader framework. The study will provide greater
insight into the efforts done by Government of India for the citizens of the country, NGOs,
institutes, regulatory agencies, polluting sources as well as general public.

KEYWORDS : ENVIRONMENT, PUBLIC, GOVERNANCE, POLICY, STATE

INTRODUCTION

Environmental protection is a national as well as international responsibility. We remember

what Mahatma Gandhi said The earth provides enough to satisfy every mans needs, but not
for anybodys greed. Based on the motivation from the United Nations Conference on
Human Environment held at Stockholm on 5 June 1972, a Committee was formed for with a
time period of 10 years (1972 - 1981) for preparing the aims and objectives, course materials,
case studies, occasional monographs with a view to establishing the Indian Institute of
Ecology and Environment (IIEE) at New Delhi. Accordingly the IIEE was established on the
occasion of the World Environment Day on 5 June 1980. The Silver Jubilee was celebrated
on 5th June 2005.

The Government of India keeps on setting up different statutory bodies including the Central
Pollution Control Board, National Eco-Afforstation Board besides National Environment
Authority (NEA) and six regional authorities with appellate jurisdiction to hear appeals
against decisions made by the regional authorities.

Whether these decisions stem from a genuine concern for sound environmental governance
and overcoming administrative failures is debatable. It has to be seen in the light of the
complete bureaucratisation of the Ministry of Environment and Forests (MoEF) in the last
two decades.

The MoEF was established as a Scientific Department in November 1980 following the
recommendations of the N. D. Tiwari Committee Report. It was envisaged that the Ministry
would formulate policies and laws, while an Environment Protection Authority, independent
of the Government, would oversee implementation of policies and programmes and
enforcement of the laws (on the lines of the powerful EPA in the US).

This did not happen. Instead, over the years, the original mandate of the MoEF was eroded by
administrative cynicism and sidelining of scientific expertise available within the
Government, even as the MoEF has sought to takeover more regulatory functions. Civil
society perceives the bureaucracy as disinterested in public welfare and corrupt.

Weak governance, manifesting itself in poor service delivery, excessive regulations, poor
enforcement of laws and uncoordinated and wasteful public expenditure, are among the key
factors eroding national ecological and environmental security.
This is exemplified by the thousands of crores of rupees spent so far under the Ganga Action
Plan and the National Wasteland Development Board without achieving their respective
mandates of cleaning the Ganga and developing wasted lands. When the MoEF was
established, the existing Department of Forests and Wildlife continued to be under the
Ministry of Agriculture.

But the new Department of Environment was directly under the Prime Minister and was
envisaged as a focal point for developing future programmes, policies and laws based on
scientific and technical analysis to ensure environmentally-sound and sustainable
development in all sectors in the country.

With this perspective, the Department was intended to guide and monitor the progress of
complex inter-sectoral programme implementation both in the private and public sectors.
Three eminent scientists served as Secretaries till May 1985. Thereafter, the Environment and
Forests and Wildlife Departments were placed in one Ministry headed by a Secretary from
the Indian Administrative Service. In 1987, the Department of Environment, which was
recognised as a scientific Department (such as the Departments of Ocean Development,
Biotechnology, Space, Science and Technology, and Non-Conventional Energy), was taken
out of the purview of the Union Public Service Commission (UPSC) for speedy recruitment
of scientific personnel. After the initial phase of recruitment of scientists, however, no fresh
recruitment was made. Gradually, as senior scientists retired, these posts were converted to
non-scientific posts and taken over by the IAS and allied services such as Customs, the
Railways, Post and Telegraphs, etc.

ENVIRONMENT GOVERNANCE

Two agencies concerned with afforestation function independently - the National

Afforestation and Eco-development Board under the MoEF, and the National Wastelands
Development Board under the Ministry of Rural Areas and Employment. Biodiversity
conservation falls within the purview of different Departments and Ministries. The National
Bio-Resource Board was constituted by the Department of Biotechnology and the National
Medicinal Plant Board by the Department of Indian Systems of Medicines and Homeopathy
(Ministry of Health and Family Welfare). And, under the new Biodiversity (Conservation)
Act, the MoEF is to set up a National Biodiversity Board.
The Ministry of Water Resources is the nodal agency for managing the water sector. It
discharges its mandate through the Central Water Commission (surface water), Central
Ground Water Board (ground water) and the National Water Development Agency (inter-
basin transfer of water).

But the MoEF handles water quality and related environmental aspects; the Ministry of
Urban Affairs and Development coordinates projects in urban water supply and sanitation;
the Ministry of Rural Areas and Employment looks after rural water supply and sanitation
under the Rajiv Gandhi National Drinking Water Mission; and the Ministry of Power and
Central Electric Authority handles water issues for power generation.

Similarly, multiple agencies are responsible for the protection of air quality, including the
Directorate of Industries, the Department of Transport and Urban Development and the
Traffic Police authorities in urban areas. Unlike the independent Environment Protection
Authority envisaged by the Tiwari Committee, the National Environment Authority, which
has now been setup, seems to be confined to appellate jurisdiction only.

If the NEA is to be truly effective, its mandate has to be extended to include monitoring the
policies and programmes developed by the MoEF and the functioning of enforcement
agencies at the national- and State-levels. To do this, the NEA needs to be staffed with an
independent scientific and technical cadre. Further, the Government would have to make a
major departure from the current mode of functioning of nodal Ministries responsible for the
ecological and environmental sustainability related to various developmental Activities.

The regular coordination of all monitoring Activities could be done by setting up a National
Task Force on Ecology and Environmental Security, answerable to the NEA. The Task Force
could be mandated to sort out inter-ministerial and sectoral differences, fund allocations and
programme implementation. Indeed, the entire institutional mechanism needs to be
restructured for effective ecological and environmental governance. This would require
treating the MoEF on the same lines as the other scientific Ministries and Departments. The
functioning of the MoEF could be streamlined under two separate Departments for
Environment, and for Forests and Wildlife. The Department must be headed by an eminent
scientist as Secretary, with the support of a scientific and technical cadre and allowing for the
lateral entry of experts in different disciplines from the universities, scientific agencies and
other professional organisations. The Forest Department should be independently headed by
the Director-General who should also serve as its Secretary. The Central Board of Forestry,
which has been dormant since 1988, should be revived. Every Ministry concerning natural
resource management must have an Ecological and Environmental Adviser who relates to
the MoEF as the respective financial advisers do to the Ministry of Finance. Also, the
National River Conservation Authority could be merged with the Department of
Environment. To strengthen the Central and State Pollution Control Boards, there has to be
an in-built mechanism within the MoEF to continuously revise standards for air, water and
effluents and review the relevant legislations. The marine environment and coastal areas have
long been neglected. A Central Commission needs to be set up to address the entire range of
issues relating to marine and coastal areas. So too forest genetic resources and micro-
organisms; separate bureaus for Forest Genetic Resources and Micro-organism Genetic
Resources also need to be created for collection, identification and characterization on the
lines of the existing National Bureaus of Plant, Animal and Fish Genetic Resources.

The NEA is only a very small step towards restructuring the institutional mechanism for
environmental governance. Much more needs to be done to meet national needs and the
commitments made by India in respect of various international conventions and agreements.
Unless this is done, such incremental knee-jerk measures only create the illusion that
environmental governance is moving forward in the interests of the people when, in fact,
nothing much is being accomplished.

There is accordingly an urgent need for having a competent cadre of young professionals and
scientists by acquiring necessary skills in the areas of ecology and environment. The Indian
Institute of Ecology and Environment has been engaged since June 1981 in the promotion of
environmental education, depolluting technologies, impact assessment, natural resources
conservation and management, environmental governance, advocacy and citizenship.

ENVIRONMENTAL FEDERALISM : AN INDIAN VIEW-POINT

The two common types of regulatory structures of Governments are unitary and federal.
As the name suggests, a unitary structure is one that consists of a single level or a single
platform from which governance and regulation flow. It has all the elements of centralisation.
In such a structure, one would find little or no autonomy in matters of decision-making in
places away from or at some distance from a single centre of power. In contrast, a federal
structure is one which is decentralised, where one will easily observe a great deal of
empowerment and localised decision-making authority at a number of levels in addition to a
single centre, and federalism refers to an ideology that propounds such a federal structure.
Ulrich Kloti, a Swiss political scientist, provides a useful working definition of federalism.
According to him, Federalism is a territorially differentiated political organization, where
citizens belong to two (or more) political units at two (or more) levels, in which each level
(i.e. the federation, the States and the communes) can decide autonomously on certain
policies and has its own tax base, where the federation makes sure that the Union does not
disintegrate, and where the lower levels (in particular, the States or Provinces) participate in
the decision-making at the superior level. Another crisper definition of Federalism is
provided by David Nice in his book Federalism: The Politics of Intergovernmental
Relations, where he defines federalism as a system of Government that includes a national
Government and at least one level of sub-national Governments, and that enables each level
to make some significant decisions independent of the others. With this brief background,
we now turn to federalism and environmental regulation. It is conceivable that like other
areas of governance and regulation, there exists scope for a degree of federalism in the area
of environmental policy-making, regulation and management as well. Since the natural
environment, national and international, is inherently variable with local geography and with
physical distances measured from any point, it makes sense to postulate or hypothesize that
federalism and the entire gamut of environmental management, regulation and preservation
will go together. Let us now examine environmental federalism in India from constitutional,
institutional, legislative and judicial perspective and then go on to scrutinize various elements
of the international order to establish the degree, if any, of the linkage between federalism,
deCentralisation and the environment.

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.

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.
CONCLUSION

Effective environmental and ecological strategies have not been evolved in major sectors
such as industry, transport, agriculture and aquaculture, energy, and forestry. Environment
Impact Assessment, which is a multidisciplinary and multidimensional process, is being
undertaken mechanically just to get the environmental clearance under the Environment
Protection Act, instead of being an integrated and continuous process from the very start of a
project. Conflicts have escalated in sectors such as water, land use, agriculture, animal
husbandry, mining and forests, which are of deep concern to the people, and there has been
little attempt to decentralise natural resources management through the institutions of self-
government under the 73rd and 74th Amendment Acts. Moreover, multiple systems of
administration and functioning in an uncoordinated manner, have led to confusion in the
implementation of programmes and the enforcement of laws, and also unhealthy rivalry
between agencies.

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