Which Legislature May Act: The Seventh Schedule

Entries 17A, 17B and 20A were all inserted by the 42nd Amendment in 1976, the same amendment that inserted Articles 48A and 51A(g). Before that, forests and wild life were State subjects.

In the Union List, List I

Reading the table

Three things follow, and the whole of the next chapter is built on them.

Water is squarely a State subject. Entry 17 of List II covers water supplies, irrigation, canals, drainage, embankments, water storage and water power, subject only to Entry 56 of List I, which is about inter-State rivers and requires a declaration by Parliament. A statute about the pollution of a stream inside one State does not fit Entry 56 and does fit Entry 17. So Parliament could not simply pass the Water Act.

Air is nowhere. Search the three Lists and there is no entry for air, or for the atmosphere, or for emissions. Air pollution reaches List II only through Entry 6, public health and sanitation, and through Entry 24, industries. That is still a State subject, so the Air Act had the same problem.

Nor is there an entry for waste. Module III's whole subject matter is unlisted, reached through public health and sanitation in the State List and through the Union's powers over particular industries.

So all three of India's pollution statutes are national laws on subjects the Constitution gives to the States. That is not an accident of drafting; it is the central constitutional fact about this branch of law, and the next chapter is about the two provisions that made it possible.

A worked example

A State passes an Act of its own regulating the emission of dust from stone crushers, imposing a fine of two lakh rupees, and a crusher prosecuted under it says the State had no power to pass it.

Which entry? Not water, which is Entry 17 of the State List, and not the Union List's Entry 52 on industries in the public interest. The subject is closest to public health and sanitation, Entry 6 of the State List, and to industries, Entry 24 of the State List, both of which the State may legislate on.

So can the State legislate? Yes, on those entries. A State is not confined to areas the Union has left alone; it has its own field.

Then why does the Air Act exist? Because a State law binds one State. Parliament wanted a national standard, could not use the State List, and used Article 253 and the Stockholm Conference instead.

What if the State law conflicts with the Air Act? The State law is on a State List entry and the Air Act rests on Article 253, which operates notwithstanding the distribution of legislative powers, so the Central Act prevails to the extent of the inconsistency.

And if the State law had been on a Concurrent List entry? Then Article 254 decides: the Central law prevails, unless the State law was reserved for and received the President's assent, in which case it prevails in that State, subject to Parliament's power to legislate again.

What the crusher should actually argue. Not want of legislative competence, which is a difficult argument here, but that the two laws can stand together, so that compliance with the Air Act's standard answers the State law as well.

What it does NOT mean

It does not mean the States are powerless now. A State may legislate on a State List subject unless Parliament has occupied the field, and the Article 252 machinery in the next chapter has a special consequence here: once a State has adopted an Act passed that way, its own Legislature may not amend or repeal it as respects that State. Maharashtra's own water pollution Act of 1969 was repealed for exactly that reason.

It does not mean an entry is read narrowly. Entries in the Lists are read widely and as including ancillary matters, and an Act is judged by its pith and substance rather than by its incidental effects. A statute in pith and substance about public health does not become invalid because it also touches industry.

It does not mean the residuary power solves the problem. Article 248 gives Parliament the residuary power over matters not enumerated in any List. It cannot be used to reach a matter that IS enumerated, and water and public health are enumerated in List II, so the residuary power is no answer.

Quick revision

• Article 246 and the Seventh Schedule distribute competence. There is no entry called "environment" anywhere.
• List II Entry 17: water. List II Entry 6: public health and sanitation. Both State subjects.
• No entry for air at all; air pollution reaches the Lists through public health and industries.
• List III Entries 17A forests and 17B wild animals and birds, both moved from List II by the 42nd Amendment, 1976.
• List I Entry 52 industries, Entry 54 mines, Entry 56 inter-State rivers, each needing a declaration by Parliament.
• The residuary power in Article 248 is no help, because the subjects are enumerated.

Test yourself

1. Which entry puts water in the State List, and what is it subject to? Entry 17 of List II: water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power. It is expressed to be subject to the provisions of Entry 56 of List I, which covers the regulation and development of inter-State rivers and river valleys to the extent Parliament declares expedient in the public interest.

2. Under which entry does Parliament legislate on air pollution? None directly. There is no entry for air in any of the three Lists. Air pollution touches Entry 6 of List II, public health and sanitation, and Entry 24, industries, both State subjects. That is why the Air Act 1981 was passed under Article 253, using the Stockholm Conference as the international decision to be implemented.

3. Which environmental entries moved between Lists, and when? Forests and the protection of wild animals and birds moved from the State List to the Concurrent List as Entries 17A and 17B by the Constitution (Forty-second Amendment) Act 1976, the same amendment that inserted Articles 48A and 51A(g) and Entry 20A on population control.

4. Why can Parliament not use the residuary power in Article 248 for a water pollution law? Because the residuary power extends only to matters not enumerated in any of the three Lists, and water is enumerated, in Entry 17 of List II. Where a subject is in a List, the question of competence is answered by Article 246 and the residuary power does not arise.