Joint Boards: Two States, One River

Why the machinery is barely used

This is the honest part of the chapter, and it is the part worth writing in an examination.

It needs agreement. Nothing in the Act compels a State to enter into one. A State that is the upstream polluter has no incentive to submit its industries to a Board it does not control.

It transfers regulatory power away from the State Government. The agreement must settle which Government exercises the powers of "the State Government", and no State wants that to be another State.

And events overtook it. Two developments have done in practice what the Joint Board was meant to do.

First, the Central Pollution Control Board's coordination function under section 16 of the Act, which includes resolving disputes between State Boards, gives a route to a decision without any State giving up its Board.

Second, and much more important, the Environment (Protection) Act 1986 gives the Central Government power under section 3(2)(i) to coordinate the actions of State Governments and authorities, and under section 5 to give binding directions to any person, officer or authority, notwithstanding any other law. A problem that would once have needed a Joint Board can now be handled by a direction from the Centre.

Add the National Green Tribunal, which can hear a case about a river regardless of which State the discharge is in, and the case for a Joint Board is weaker still.

A worked example

A river rises in State A, forms the boundary for forty kilometres, and enters State B, where it supplies drinking water to a city. Industrial estates in State A discharge into it.

Without a Joint Board. State B's Board has no power in State A. It may raise the matter with State A's Board, and if they disagree, with the Central Board, whose function under section 16 includes resolving disputes between State Boards. State B's Government may ask the Central Government to give directions under section 5 of the EPA, which bind whether or not State A agrees. And an affected person may take the matter to the National Green Tribunal, which is not confined by a State boundary at all.

With a Joint Board. One Board with jurisdiction over the whole stretch, granting consent to the estates in State A on terms that take account of the abstraction in State B, taking its own samples on both sides, and issuing its own directions. Cleaner, and it requires both States to want it.

Which is why the chapter ends where it does. The Joint Board is a good idea that depends on the cooperation whose absence created the problem.

What it does NOT mean

It does not mean a Joint Board is a Central body. It is constituted by agreement between Governments and is the State Board for the participating area, not a limb of the Centre.

It does not mean it needs a Union territory. Two contiguous States may agree between themselves, under clause (a). The Central Government comes in only where a Union territory is a participant.

It does not mean an inter-State river dispute goes to a Joint Board. Disputes about the sharing of water between States are governed by the Inter-State River Water Disputes Act 1956 and by Article 262 of the Constitution, which is a different subject. This Act is about pollution, not allocation.

Quick revision

• Section 13: an agreement between two or more contiguous States, or between the Central Government for a Union territory and a contiguous State, to constitute a Joint Board, for a specified and renewable period.
• The agreement apportions expenditure and settles which Government exercises the powers of the State Government.
• Section 14: composition, on the State Board pattern, a body corporate.
• Section 15: a Joint Board has the powers and functions of a State Board for the participating area.
• Little used, because it needs agreement and transfers power, and because section 16 coordination, section 5 of the EPA and the National Green Tribunal now do the work.
• Not to be confused with the Inter-State River Water Disputes Act 1956, which is about allocation, not pollution.

Test yourself

1. Who may enter into an agreement for a Joint Board? Two or more Governments of contiguous States, or the Central Government in respect of one or more Union territories together with the Government of one or more States contiguous to that territory or territories. The agreement runs for the period it specifies and may be renewed.

2. What must the agreement settle besides expenditure? Which of the participating Governments, or whether the Central Government, shall exercise and perform the powers and functions of "the State Government" under the Act, because the Act assumes a single State Government and a Joint Board has several. Once that is settled, the Act's references to the State Government are read as references to the Government so determined.

3. What powers does a Joint Board have? Under section 15, the powers and functions of a State Board for the participating States and Union territories, and the Act applies to it as it applies to a State Board. So it grants and refuses consent, inspects, samples, issues directions and enforces, over the whole joint area rather than up to a State boundary.

4. Why is the machinery rarely used, and what does the work instead? Because it requires the agreement of States whose disagreement is usually the problem, and because it takes regulatory power over industries in one State out of that State's hands. In practice the same ground is covered by the Central Board's function of resolving disputes between State Boards under section 16, by the Central Government's powers of coordination and direction under sections 3 and 5 of the Environment (Protection) Act 1986, and by the National Green Tribunal, whose jurisdiction is not confined by State boundaries.