Section 23: the Power to Delegate

In one line

The Act gives every power to the Central Government and then lets it hand almost all of them to somebody else.

In the wording a student can write in an examination: section 23 of the Environment (Protection) Act 1986 provides that without prejudice to the provisions of section 3(3) the Central Government may, by notification in the Official Gazette, delegate, subject to such conditions and limitations as may be specified in the notification, such of its powers and functions under the Act, except the power to constitute an authority under section 3(3) and to make rules under section 25, as it may deem necessary or expedient, to any officer, State Government or other authority.

Why this section is set as a question

Because the University asks about the delegation of powers to environmental agencies as a short note, and because the answer explains something that puzzles every student: why a State Pollution Control Board, constituted under the Water Act, issues directions under a central Act it is not mentioned in.

The answer is section 23. The powers remain the Central Government's; their exercise is delegated.

Reading the section

Without prejudice to the provisions of sub-section (3) of section 3. So delegation under section 23 and the constitution of an authority under section 3(3) are independent and cumulative.

By notification in the Official Gazette. Not by letter, not by executive instruction. A delegation not notified is no delegation, and this is a live point in litigation.

Subject to such conditions and limitations as may be specified. The delegation may be partial and conditional, and the conditions bind.

Such of its powers and functions under this Act. Any of them, subject to the two exceptions.

Except the power to constitute an authority under sub-section (3) of section 3 and to make rules under section 25. Two things cannot be delegated. The power to create an authority, and the power to make rules. Both are legislative or quasi-legislative in character and Parliament kept them with the Central Government.

To any officer, State Government or other authority. The three classes of delegate.

What has been delegated

The pattern in practice is as follows, and a student should know it in outline.

To the State Governments. Powers under sections 5, 10 and 11 in respect of most industries, so that a State Government may issue closure directions and its officers may enter and sample.

To the State Pollution Control Boards and the Pollution Control Committees. Powers under sections 5, 10 and 11 in respect of specified categories, which is why a Board's closure direction under this Act is valid.

To the Central Pollution Control Board. Powers in respect of certain matters and certain categories of industry.