Environmental Federalism

In one line

India legislates centrally and enforces locally, and almost every failure in Indian environmental administration happens at the joint.

The division in practice

Parliament writes the law. The Water Act, the Air Act, the Environment (Protection) Act, the Forest (Conservation) Act, the Wild Life (Protection) Act, the Biological Diversity Act and the National Green Tribunal Act are all central.

The Central Government sets the standards. Section 3 of the Environment (Protection) Act 1986 carries the power to take all such measures as it deems necessary for protecting and improving the quality of the environment, and the standards and the environmental impact assessment machinery are made under it.

The State does the enforcing. The State Pollution Control Boards grant and refuse consent, take samples, and prosecute. The State forest departments administer the forests. The State governments hold the land.

And the State pays the political price. A refused consent is a factory not built in that State, and the revenue and the employment that would have followed are lost to a neighbouring State that granted one.

That is the structural problem of Indian environmental federalism, and it should be stated before anything else. The body that bears the cost of enforcement is not the body that made the rule, and the body that made the rule has almost no field presence of its own.

The repugnancy rule

Forests, wildlife, cruelty to animals, drugs and poisons, economic and social planning, and population control are all in the Concurrent List, so both Parliament and a State legislature may act on them. Article 254 settles the conflict.

Article 254(1): if a provision of a State law is repugnant to a provision of a law made by Parliament which Parliament is competent to enact, or to an existing law with respect to a Concurrent List matter, then, subject to clause (2), the parliamentary or existing law prevails and the State law is void to the extent of the repugnancy, whether the State law was passed before or after.

Article 254(2) is the exception. Where a State law on a Concurrent List matter is repugnant to an earlier parliamentary or existing law, the State law prevails in that State if it has been reserved for the consideration of the President and has received his assent.

And the proviso takes it back. Nothing in clause (2) prevents Parliament from enacting at any time a law with respect to the same matter, "including a law adding to, amending, varying or repealing the law so made by the Legislature of the State".

So the settled position is that the Union wins, and a State that obtains the President's assent for a divergent law holds it only until Parliament chooses to legislate again.