DOES THE INDIAN CONSTITUTION PROTECT OUR ENVIRONMENT?
Updated: Dec 14, 2021
The Indian Constitution, when adopted, was more concerned with economic development, and poverty alleviation after centuries of colonization. The framers of the “supreme law of the land” did not have environmental issues on their minds. With climate change now threatening our future, and India’s conflicting need for growth, it has become imperative for our laws to ensure environmental protection. In this dialogue, we dig into the Constitution and reflect on the need to make a constitutional amendment to reflect our current climate reality.
The Constitution splits law-making power between the Centre and the State. Subject matters are divided into three lists - the Union list, for legislation by the Central government, the State list containing subjects for the State governments, and the Concurrent list consisting of matters that are shared between the Centre and the State, where the Central laws override those of the State. The concurrent list includes subjects such as forests and animal welfare issues, while the State list includes water and public health issues. Words such as “environment”, “pollution” and the like do not appear in any of these three lists. Unlisted subjects generally fall under what is commonly referred to as the Residuary list and become the sole responsibility of the Central government. This is arguably where issues concerning the “environment” are categorized.
The first mention of the “environment” as a matter of concern was in 1977 when a constitutional amendment introduced provisions that placed the onus on the government to protect and improve the country’s environment, forests and wildlife, and emphasized the citizen’s duty in environmental protection. These Articles, however, are not enforceable in a court of law and, therefore, do not provide much protection. Another Article of the Constitution empowers the Centre to make laws to implement international treaties or agreements. This is how the all-encompassing Environmental (Protection) Act (“EPA”), 1986 came about, which gives the Central government vast powers to enact rules to ensure environmental protection. Under the EPA, the Central government is empowered to delegate, to the State governments, the power to issue directions to implement rules made under the Act.
The lack of constitutional clarity for specific environmental issues can lead to several problems and delays. One such problem is the litigation that accompanies environmental rule-making. For instance, there is a lack of clarity in situations where the State-issued EPA directions are stricter than the Centre-issued EPA rules, as there is no constitutional provision determining the final authority for such issues. Waste management, despite the severity of the problem, does not feature on any of the constitutional lists. Litigation challenging Karnataka’s ban on plastic items (under the Plastic Waste Management Rules) has arguments that the State has exceeded its delegated power by banning most forms of plastic when the Centre’s rules had only banned a certain thickness of plastic. The State’s ban was upheld based on the fact that the directions were issued under the EPA, and were more far-reaching as it relates to the whole environment and not just plastic waste management. If “waste management” was on a constitutional list, this conflict would have been simpler to resolve. Without this, litigation and uncertainty are continuing as the judgment is on appeal before the Supreme Court. Litigation regarding “noise pollution”, which does not feature on any list, was also taken to the Supreme Court based on the argument that Rajasthan had no right to regulate it. The Court held in favour of the State by noting that noise pollution relates to public health, which is a State list subject.
Environmental concerns can be widespread but in some cases, are localised, affect smaller populations and require urgent remedies. Experience has shown that local bodies are more well-versed and therefore, better equipped to resolve these issues than the Centre. Continuing with the example of the plastic waste issue discussed above, the State of Karnataka has banned almost all forms of plastic based on the ground reality that it was difficult for the city corporation to easily determine the thickness of the plastic and hence, effective enforcement was impossible. The Central government, who does not have to directly deal with enforcement issues, has still not acknowledged this as a legitimate problem and continues to ban plastic based on its thickness.
The Constitution allows the Central government to enact laws if two or more States wish for Parliamentary oversight of a certain State list subject. Therefore, even though water, and presumably water pollution, belong to the State list, the Water (Prevention and Control of Pollution) Act, 1974, was enacted by the Centre. There is potential for delay in such a procedure as it requires two or more State Legislatures to adopt resolutions asking for the Centre to step in. Environmental issues, at this stage, require urgent remedies. To avoid delays associated with inter-State coordination and based on the State showing that water should be regulated by the Centre, “water” issues could be promoted to the union list.
Like the EPA, the Air (Prevention and Control of Pollution) Act, 1981 was also a consequence of the Stockholm Declaration. While international pressure to ensure environmental protection is always welcome, India’s fight to save the environment should not be solely based on the same. India cannot risk inaction in this field and a clear direction in the Constitution would mean that the authorities have to act, with or without outside pressure.
Additionally, States have to apply for clearances and permits from the Central government for relatively minor environmental works which can be time-consuming and cumbersome. It is with this in mind that Nitish Kumar, Bihar CM in 2014, wrote to the Prime Minister, urging that “environment” be included in the concurrent list so that States may enact laws based on their local requirements.
Understanding the need for environmental protection, the Supreme Court expanded Article 21 (the fundamental right of life) to include the right to live in a pollution-free environment and introduced international law principles.
This, however, is not enough. The changing climate and an increase in developmental activities have led to India witnessing multiple environmental calamities. There is an urgent need to provide constitutional backing and clarity for laws that can regulate activities causing
such degradation. A constitutional amendment to reflect the reality of our environmental situation is needed. “Environment” or specific environmental issues (for instance, pollution, protection of waterways, solid waste management, etc.), if included in the Constitution, would benefit the nation’s environmental health. While it is not practical to introduce a blanket system for all these issues, the categorization of specific environmental issues, based on its complexity, the need for inter-State coordination, and States’ preference for Central rule, will likely enable us to effectively legislate and attempt to resolve these issues.
The Constitution is a living and evolving document. An Indian citizen living with dignity in a pollution-free environment is integral to this document. Without constitutional clarity, we are faced with delays, left making legal interpretations based on Court judgments and enacted laws, and losing precious time in our battle against climate change and global warming.
Let us know your thoughts on this crucial issue by commenting below!
Article 246 and Seventh Schedule of the Constitution of India, 1949
Entries 17, 17A and 17B of the Concurrent List
Entries 17 and 6 of the State List
Article 248 of the Constitution
Article 48A of the Constitution of India, 1950
Article 51 A (g) of the Constitution of India, 1950
Article 253 of the Constitution of India, 1950
Based on India’s obligations as a signatory to the Stockholm Declaration, 1972
Section 5 and 23 of the Environment (Protection) Act, 1986
Karnataka State Plastic Association and Ors vs The State of Karnataka and Ors Appeal No. 119/2016
Karnataka State Plastic Association and Ors vs The State of Karnataka and Ors Civil Appeal No(s). 9197/2017
State of Rajasthan v. G Chawla, 1959 AIR SC 544
Plastic Waste Management (Amendment) Rules, 2021
Article 252 of the Constitution of India,1950.
“Absolute Liability” (M.C. Mehta vs. Union of India AIR 1987 SC 1086)
“Sustainable Development” (T.N Godavaran Thirumulpad v Union of India (2006)1SCC1)
“Polluter Pays Principle” (Vellore Citizens Welfare Forum v. Union Of India AIR 1996 SC 2715)