Article 252 and Article 253: the Two Doors Parliament Used

Reading the two side by side

The two words to notice are notwithstanding at the opening of Article 253 and in like manner in Article 252(2). The first is what makes the distribution of powers irrelevant. The second is the trap.

The trap in Article 252(2), worked through

Read Article 252(2) slowly. An Act passed under Article 252 may be amended by an Act of Parliament passed or adopted in like manner. That means an amending Act must itself either be preceded by resolutions of the States, or be adopted afterwards by each State's own resolution.

Facts of the problem. In 2024 Parliament passed the Water (Prevention and Control of Pollution) Amendment Act, which replaced imprisonment with monetary penalties across the Water Act 1974 and inserted a scheme of adjudication.

What almost every commentary says. That the Water Act was decriminalised with effect from 15 February 2024.

What the Amendment Act's own section 1 says. That it applies in the first instance to the States that passed resolutions under Article 252(1) for its enactment, and to the Union territories, and that it applies to any other State which adopts it afterwards by a resolution of its own Legislature.

What follows. On 15 February 2024 the amended Water Act was law in the resolving States and the Union territories, and the unamended Act, with its imprisonment provisions, continued in force in every other State until that State resolved. A flat statement that India decriminalised the Water Act in February 2024 is wrong about every State that had not resolved.

Why this appears in a book about a different Act. Because it is the clearest illustration of what Article 252 does, and because the Environment (Protection) Act 1986 shows the contrast exactly: it was decriminalised by the Jan Vishwas (Amendment of Provisions) Act 2023 with effect from 1 April 2024, and because it is an Article 253 statute that change took effect throughout India on that day with no State resolution needed anywhere.

Worked example

The Legislature of a State has never passed a resolution under Article 252 in respect of the Water Act. A dyeing unit in that State discharges effluent into a river.

Is it liable under the Water Act? No, because the Act does not extend to that State.

Is it liable at all? Yes. The Environment (Protection) Act 1986 extends to the whole of India by section 1(2), and section 7 forbids the discharge of an environmental pollutant in excess of the prescribed standards. The general Act does the work the special Act cannot.

Who enforces it? The Central Government and any officer or authority to whom the power has been delegated under section 23, which in practice means the State Pollution Control Board. A Board constituted under a State Act, or under the Air Act, can exercise powers delegated under the Act of 1986 even where the Water Act does not apply.

This is one of the four reasons the Act of 1986 was called an umbrella Act.

What it does NOT mean

It does not mean Article 253 lets Parliament do anything. The law must be for implementing the treaty or the international decision. A law with no connection to the international instrument recited cannot be saved by reciting it, though in practice courts have read the connection generously.

It does not mean an Article 252 Act is inferior. Within the States where it applies it is a law of Parliament and Article 252(2) protects it from being amended by those States.

It does not mean the Air Act 1981 was passed under Article 252 because the Water Act was. It was not. Its preamble recites the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, and that recital is the Article 253 foundation.

Limits and criticism

The objection to Article 253 in this field is the familiar federal one: Parliament recites an international conference and thereby legislates on subjects the Constitution allotted to the States. India's environmental statute book is, on this view, built on a constitutional workaround.

Three answers are usually given. The article is in the Constitution in terms and was intended to be used. The Supreme Court has consistently upheld statutes resting on it. And the alternative, a country in which air pollution law depends on whether each State chose to resolve, is not a serious proposition.

What is a fair criticism is that the workaround was applied inconsistently. The Water Act of 1974 could equally have been founded on Stockholm, which had happened two years earlier, and the fact that it was not has produced fifty years of avoidable complexity.

Quick revision

• Article 252: resolutions of two or more States, Act applies to them and to later adopters, amendment only in like manner.
• Article 253: implementing a treaty or an international decision, Act applies to the whole or any part of India, distribution of powers expressly overridden.
• Water Act 1974: Article 252. Air Act 1981 and Environment (Protection) Act 1986: Article 253.
• Article 252(2) is why the Water Act amendment of 2024 did not become law in every State at once.
• The Act of 1986 covers the gap in a State where the Water Act does not apply.

Test yourself

1. State the practical difference between an Article 252 statute and an Article 253 statute. An Article 252 statute applies only in the States whose Legislatures passed resolutions before it was enacted, together with any State that adopts it afterwards by its own resolution, and it can be amended only by an Act of Parliament passed or adopted in the same way. An Article 253 statute applies to the whole or any part of India by its own force, needs no State resolution at all, and can be amended by an ordinary Act of Parliament.

2. Why is it wrong to say that India decriminalised the Water Act in February 2024? Because the Water Act is an Article 252 statute and Article 252(2) requires an amending Act to be passed or adopted in like manner. The Amendment Act of 2024 said in its own section 1 that it applied in the first instance to the resolving States and the Union territories and to any other State that adopted it later. In a State that had not resolved, the unamended Act with its imprisonment provisions continued in force.

3. A State has never adopted the Water Act. Can a polluter there be proceeded against for discharging effluent into a river? Yes. The Environment (Protection) Act 1986 extends to the whole of India, section 7 forbids the discharge of an environmental pollutant in excess of the prescribed standards, and the standards are prescribed by rule 3 of the Environment (Protection) Rules 1986 read with Schedule I. The Central Government may also give directions under section 5 and may delegate its powers under section 23 to a State authority.