Author: Shashank Sahay, Research Associate
The Indian Constitution is amongst the few in the world that contains specific provision son environment protection. The directive principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. Judicial interpretation has strengthened the constitutional mandate ((Shyam Divan and Armin Rosencranz , Environmental Law and policy in India, Second Edition, ,Oxford India Paperbacks, p.41)). The Problem of environment is tackled through various statutes like The Environment (Protection) Act, 1986 was introduced as an umbrella legislation that provides a holistic framework for the protection and improvement to the environment. In terms of responsibilities, Air (Prevention and Control of Pollution) Act 1981, Water (Prevention & Control) Act 1974, Water (Prevention & Control) Act 1974 etc.
INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION
Indian constitution provide for a federal structure within the framework of parliamentary form of government. There are Union list (subject matter on which only central government can enact legislations), State list (subject matter on which only state legislatures can make legislation) and Concurrent (both Parliament and state legislature can make legislation) which covers various subject matter related to environment protection. The union list gives Parliament exclusive jurisdiction over 97 topics including foreign affairs, defense, the regulation and development of oilfields, and interstate, rivers. The state list gives state government’s exclusive power over areas such as public health and sanitation, agriculture, water supplies and irrigation, land reform and improvement, and fisheries. Under the concurrent list, both the union government and the states may regulate criminal law and procedure, forests, protection of wild animals and birds, population control and family planning, prevention of cruelty to animals etc. A union law regarding a concurrent subject generally prevails over a state law on the same subject, thus providing some administrative uniformity throughout the country.
OBLIGATION ON THE STATE
Article 39 (b) of the Constitution of India provides that the State shall direct its policy to see “that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good. The term “material resources of the community” embraces all things, which are capable of producing wealth for the community ((Assam Sillimanite Ltd. v Union of India, AIR 1992 SC 938)). The expression “material resources of the community” has been held to include such resources in the hands of the private persons and not only those, which have already vested in State ((Sanjeev Coke Mfg. Co v Bharat Coking Coal Ltd., AIR 1983 SC 239)).
The Constitution of India through Article 42 has directed the State to endeavor to secure just and human conditions of work. The Constitution of India under Article 47 also imposes a duty upon the State to endeavor to secure just and human conditions of work. The Supreme Court in Municipal Council, Ratlam v Vardichand ((AIR 1980 SC 1622))observed, “the State will realize that Article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties.”
Article 48 directs the State to take cognizance of agricultural and animal husbandry on modern and scientific lines. In particular, it is directed to take steps for preserving and improving the breeds and prohibiting the slaughter of cows, calves and other milch and draught cattle.
The State under Article 49 is also required “to protect every monument or place or object of artistic or historic interests (declared by or under law made by Parliament) to be of national importance from spoliation, disfigurement, destruction removal, disposal or export.”
India also being a Welfare State has a responsibility to provide basic amenities and a decent living standard to its citizens. Art 39 (b) of Indian Constitution earmarks equitable distribution of natural resources as one of the State’s policy under the scope of Art 21 of the constitution of India as Right to Life, Supreme Court of India has at many occasions upheld the right to a decent standard of environment as necessary outcome to ensure right to life.
THE FORTY SECOND AMENDMENT ACT
The Forty-second Amendment Act, passed in 1976, explicitly incorporated environmental protection into the Indian Constitution for the first time. First, article 48A, added to the Directive Principles of State Policy, imposed on the State the responsibility to protect the environment “The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.” Second, article 5 1A of a new chapter entitled “Fundamental Duties” imposed a similar duty on all Indian citizens “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. The Forty-second Amendment Act also added entries to the concurrent list. The Act inserted a new entry, “Population control and family planning, and moved “Forests” and “Protection of wild animals and birds,” from the state list to the concurrent list ((See H. Seervai, Constitutional Law of India: A Critical Commentatory, Vol.1, 1991 and S. Rao, The Framing of India’s Constitution, Select Documents 315, Vol IV, 1968)).
Some members of the Indian academic community believe that the Forty-second Amendment gave the central government new powers to protect the environment, powers that the center did not previously possess. Debate over the interpretation of the Forty-second Amendment Act centers on whether the central government’s objective was simply to express its willingness to deal with environmental problems, or actually to acquire additional powers as against state governments. To evaluate these opposing contentions and to determine to what extent the centre’s ability to pass environmental legislation is limited by the division of powers among the lists, it is necessary to analyze the extent to which the provisions added by the Forty-second Amendment Act altered the distribution of powers in the original Constitution. Legal pundits have argued that if the central government’s intention in passing the Act was only to express its willingness to prevent environmental pollution, the incorporation of Article 48A in the Chapter on Directive Principles of State Policy certainly served that purpose. For the first time, the policy of environmental protection was given constitutional status. On the other hand, if the central government’s intention was to acquire more powers, then it must be determined what additional powers the government actually gained. Although article 51A (g) states that “it shall be the duty of every citizen of India… to protect and improve the natural environment,” no enforcement mechanism is provided. Further, while article 51A (g) establishes a citizen duty, the language of article 48A, that “the state shall endeavor to protect and improve the environment,1 48 is significantly weaker. In sum, these two articles do not seem to grant any additional powers to the central government.
FREEDOM TO TRADE VIS- A-VIS ENVIRONMENTAL PROTECTION
As environmental regulations grow more stringent and its enforcement becoming more vigorous, industrial challenge to agency action is likely to increase. Courts will then need to balance environmental interests with the fundamental right to carry on any occupation, trade, business guaranteed under Article 19 (1) g. For example, effluent discharge standards prescribed by the pollution control boards may be challenged under Article 19 for being excessive (too stringently to comply with, despite using the best available technology) or otherwise unreasonable. Likewise, unreasonable government decisions relating to the sitting or translocation of industry may also be assailed under Article 19(1) g ((Shyam Divan and Armin Rosencranz , Environmental Law and policy in India, Second Edition, ,Oxford India Paperbacks, p.54)).
ADMINISTRATIVE SYSTEM AND ENVIRONMENT PROTECTION IN INDIA
The structure of India’s administrative agencies reflects the split between union and state authority. Some divisions of the civil service provide India-wide administration, while other administrative services may be regulated by either the union or state governments, or both. Within the union government, the Planning Commission is one of the most important government entities. Although not specifically authorized by the Constitution, the Commission, formed in 1950, plays a key role in formulating national economic policy. Among other things, it drafts India’s “Five Year Plans,” which set targets for the country’s economic growth. While the states have some input into these Plans through the National Development Council, the Union, through the Planning Commission, has primary authority for national planning.
Finally, the insertion of new entries in the concurrent list did not by itself give the Union new powers that it did not have previously. The concurrent list gives the Union the upper hand on deciding whether to legislate on concurrent topics, but moving the forests and wildlife entries from the state list to the concurrent list did not diminish the states’ right to make laws. The issue is whether or not union government legislation has pre-empted state legislation.