The Concentration of Power, and Delegation at a Lower Level

In one line

The University asks whether putting every power in Delhi was a mistake, and the honest answer is that it was a design choice with real costs.

In the wording a student can write in an examination: the Environment (Protection) Act 1986 concentrates power in the Central Government, conferring on it by section 3(1) a general power to take all such measures as it deems necessary, by section 3(2) fourteen particular powers, by section 3(3) the power to constitute authorities, by section 5 the power to give directions including closure, and by sections 6 and 25 the power to make rules, while imposing on it no duty to exercise any of them, and the counterbalance is section 23, which permits almost all of those powers to be delegated to an officer, a State Government or another authority.

The question as MU sets it

Her 2015 paper asked candidates to evaluate the provisions of the Act in the context of the concentration of powers in environment protection with the Central Government and the delegation of powers at a lower level, and to make suggestions. Three things are wanted: a description of the concentration, an account of the delegation, and suggestions.

The concentration, provision by provision

Everything is a power of the Central Government. Section 3, section 4, section 5, section 6, section 8's rules, section 12's laboratories, section 13's analysts, section 20's information, section 23's delegation and section 25's rules. The word used throughout is the Central Government.

Almost nothing is a duty. Section 3(1) says the Central Government shall have the power. Section 9(2) is one of the very few provisions in the Act that says an authority shall do something, and it is the duty to cause remedial measures to be taken after an accident is reported.

No institution is created. Unlike the Water Act and the Air Act, which constitute Boards in the statute itself, this Act constitutes nothing. Every body in Modules III and IV exists because the Government chose to create it by order.

The subject matter is unbounded. The definition of environment is inclusive and the power in section 3(1) is to take all such measures as the Government deems necessary.

Why it was done that way

Three defensible reasons.

Flexibility. A statute that fixes standards and institutions has to be amended when the science changes. This one has regulated plastic, electronic waste, coastal development, impact assessment and eco-sensitive zones without a word being altered.

Speed. A notification takes weeks. An amending Act takes years.

Federalism in reverse. The Act rests on Article 253. Its subject matter is largely in the State List, and it could be enacted for the whole country only as an implementation of an international decision by the Union. A statute drafted in those circumstances naturally vests the power in the Union.