Local Bodies: the Constitutional Source of Their Powers
Chapter Thirty-Six
Syllabus topic 1, "General Laws on Environmental Concern"
Pages 143 to 146 of 913
In one line
The bodies that actually collect your waste, clean your drains and stop your neighbour's chimney are municipalities and panchayats, and the Constitution gave them that job in 1992.
In the wording a student can write in an examination: the Constitution (Seventy-third Amendment) Act 1992 and the Constitution (Seventy-fourth Amendment) Act 1992 inserted Parts IX and IXA, and Article 243G empowers a State Legislature to endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government, including the preparation of plans and the implementation of schemes for economic development and social justice in relation to the matters listed in the Eleventh Schedule, while Article 243W does the same for Municipalities in relation to the matters listed in the Twelfth Schedule.
Why local bodies are asked about on six papers
Because MU asks about the role of local laws in environmental protection on six of the nine printed papers this book was checked against, and because the answer surprises students who have learnt only the central statutes.
Every practical environmental service in India is delivered locally. Water supply, sewerage, drainage, solid waste, street cleaning, burial and cremation grounds, slaughterhouses, public conveniences, parks and building control are all municipal or panchayat functions. The Pollution Control Board regulates industry; the municipality runs the city.
The two schedules
The Eleventh Schedule, referred to in Article 243G, lists twenty-nine matters for Panchayats. The environmental ones are minor irrigation, water management and watershed development; social forestry and farm forestry; minor forest produce; fuel and fodder; drinking water; non-conventional energy sources; and health and sanitation including hospitals, primary health centres and dispensaries.
The Twelfth Schedule, referred to in Article 243W, lists eighteen matters for Municipalities. The environmental ones are urban planning including town planning; regulation of land use and construction of buildings; water supply for domestic, industrial and commercial purposes; public health, sanitation, conservancy and solid waste management; urban forestry, protection of the environment and promotion of ecological aspects; provision of urban amenities and facilities such as parks, gardens and playgrounds; burials and burial grounds, cremations and cremation grounds and electric crematoriums; and regulation of slaughter houses and tanneries.
Two of those entries deserve emphasis. Protection of the environment and promotion of ecological aspects is an express constitutional function of a municipality. And solid waste management is named in terms, which is the constitutional foundation of the waste rules a municipality has to comply with.
The word may, and what it costs
Both articles say the Legislature of a State may, by law, endow the Panchayats or the Municipalities with such powers and authority as may be necessary. It is an enabling provision, not a self-executing transfer.
Local Bodies: the Constitutional Source of Their Powers
The consequence is that the actual powers of a local body come from the State Act that constitutes it, not from the Constitution, and they differ from State to State. A student answering the University's question must therefore talk about the State legislation, and in Maharashtra that means the Mumbai Municipal Corporation Act 1888, the Maharashtra Municipal Corporations Act 1949, the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965, and the Maharashtra Village Panchayats Act 1959.
The three kinds of power a local body has
Obligatory duties. Functions the Act says the body shall perform: water supply, drainage, scavenging, removal of refuse, maintenance of public streets. These are enforceable. Ratlam is a case about an obligatory duty.
Discretionary functions. Things the body may do: planting trees, constructing gardens, providing facilities. Not enforceable in the same way.
Regulatory powers. Licensing of trades, abatement of nuisances, control of construction, and inspection. These are the powers a local body uses against a private polluter.
Worked example
A slaughterhouse operates without a licence in a municipal ward. Waste is dumped in a nullah and the smell affects two hundred households.
Constitutional foundation. Entry 15 of the Twelfth Schedule, regulation of slaughter houses and tanneries, and entry 6, public health, sanitation, conservancy and solid waste management.
Statutory power. The State municipal Act, which will require a licence for a slaughterhouse, empower the corporation to refuse or revoke it, and empower the abatement of a nuisance.
Who acts? The commissioner or the designated officer of the corporation. Not the Pollution Control Board in the first instance, though the Board has power too.
What if the corporation does nothing? Two routes. A complaint to the Executive Magistrate under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023, which is what the residents in Ratlam did. Or a writ petition under Article 226 to compel the corporation to perform its obligatory duty, relying on what Ratlam said about that duty.
Facts of that case. Residents of a ward in Ratlam complained to a magistrate that the municipality had failed to construct drains and that filth and effluent flowed through the street; the magistrate ordered the municipality to build drains and remove the nuisance and it pleaded want of funds. Held. A statutory body constituted to preserve public health cannot escape its principal duty by pleading financial inability, and the abatement power is a tool of social justice for ordinary people. Why it matters here. It is the leading authority that a local body's environmental duties are enforceable at the suit of the people it serves.
What it does NOT mean
It does not mean the Constitution gave local bodies these powers. It permitted the States to give them. What a particular body can do is a question about its own State Act.
Local Bodies: the Constitutional Source of Their Powers
It does not mean local bodies displace the Boards. The two operate together: the Board regulates industry and sets standards, and the local body delivers services and licenses trades.
It does not mean a local body is only a polluter. It is both regulator and, in respect of sewage and municipal waste, very often the largest polluter in its area. That double role is the recurring difficulty of this part of the law.
Limits and criticism
Devolution is incomplete. Article 243W is enabling, and States have devolved unevenly. Many municipal bodies have the function and neither the finance nor the staff.
Finance is the binding constraint. Ratlam decides that want of funds is not a defence to a duty. It does not create money, and a court order that a body without revenue build a sewerage system produces a compliance affidavit rather than a sewer.
The regulator is the polluter. A corporation that runs an unlined dump and also licenses trades cannot enforce against itself, and this is why the National Green Tribunal's environmental compensation orders against municipal bodies have become the effective sanction.
Nobody teaches the State Acts. They are long, they differ, and they are where the operative law is. A student who can name the Twelfth Schedule entries and the obligatory duties in one State Act is ahead of most answers.
Quick revision
- Parts IX and IXA, inserted by the Seventy-third and Seventy-fourth Amendments in 1992.
- Article 243G with the Eleventh Schedule for Panchayats; Article 243W with the Twelfth Schedule for Municipalities.
- Twelfth Schedule entry 6: public health, sanitation, conservancy and solid waste management. Entry 8: protection of the environment and promotion of ecological aspects.
- Both articles are enabling: the actual powers come from the State Act.
- Three kinds of power: obligatory duties, discretionary functions, regulatory powers.
- Ratlam: obligatory duties are enforceable and want of funds is no defence.
Test yourself
1. Which entries of the Twelfth Schedule matter most for environmental protection, and why? Entry 6, public health, sanitation, conservancy and solid waste management, because it is the constitutional basis of the municipal duties that the waste rules made under the Environment (Protection) Act 1986 impose. And entry 8, protection of the environment and promotion of ecological aspects, because it makes environmental protection an express municipal function rather than an incidental one. Urban planning and the regulation of land use and building construction, and the regulation of slaughter houses and tanneries, are the other significant entries.
2. Articles 243G and 243W use the word may. Why does that matter? Because they are enabling provisions and not self-executing transfers of power. They permit a State Legislature to endow Panchayats and Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government in relation to the scheduled matters. What any particular local body may actually do therefore depends on its own State Act, and devolution has been uneven across the States.
Local Bodies: the Constitutional Source of Their Powers
3. A municipality does nothing about a nuisance in its area. What are the two remedies? A complaint to an Executive Magistrate under section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023 for a conditional order requiring the nuisance to be removed, which is what the residents did in Municipal Council, Ratlam v. Vardhichand and which is quick and free. Or a writ petition under Article 226 to compel the corporation to perform its obligatory statutory duty, in which the same case is authority that want of funds is not a defence.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.