Which Legislature May Act: the Seventh Schedule

In the State List. Public health and sanitation. Water, that is to say water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the Union List entry on inter-State rivers. Agriculture. Land. Fisheries. Gas and gas works. Industries, subject to the Union List entries. Local government.

In the Concurrent List. Forests. Protection of wild animals and birds. Economic and social planning. Factories. Electricity. Prevention of the extension of infectious or contagious diseases.

Two of those Concurrent entries, forests and the protection of wild animals and birds, were moved from the State List to the Concurrent List by the Forty-second Amendment in 1976, the same amendment that inserted Articles 48A and 51A(g).

Worked example

Maharashtra passes an Act in 2027 fixing a stricter standard for effluent discharged into any river in the State than the standard notified by the Central Government under section 6 of the Environment (Protection) Act 1986. A paper mill on the Panchganga challenges it.

Step one, is the State competent? Water is a State List entry and public health is a State List entry, so prima facie yes.

Step two, is there a repugnancy? Article 254 applies only to a Concurrent List matter. If the State Act is truly on water as a State subject and the central standard is made under an Act traceable to Article 253, the two do not sit in the same List and Article 254 does not directly apply.

Step three, the answer the courts actually give. A stricter State standard is generally held compatible: the central standard is a floor, not a ceiling, and complying with the stricter State rule necessarily complies with the central one. There is no repugnancy because there is no impossibility of obeying both.

Step four, change the facts. Suppose the State Act had fixed a laxer standard. Now the mill can comply with the State Act and breach the central one. That is a direct conflict, and section 24 of the Act of 1986, which gives that Act effect notwithstanding anything inconsistent contained in any other law for the time being in force, resolves it in favour of the central standard.

Distinctions

What it does NOT mean

It does not mean the environment is a Union subject. It is not a subject at all. It is a purpose pursued through entries that belong to all three Lists, which is why the Indian environmental statute book looks fragmented.

It does not mean a State cannot legislate on the environment. States legislate on water supply, sanitation, town planning, municipal law, groundwater and fisheries constantly, and much of the operative law a student will meet in practice is State law.

It does not mean Article 249 is a dead letter. It is available. It has simply never been needed for an environmental statute, because Article 253 gives Parliament a route that requires no resolution at all.

Limits and criticism

The criticism usually made is that Article 253 has been used to bypass federalism: Parliament recites an international conference and legislates on water, public health and sanitation, which the Constitution gave to the States. The answer is that the Constitution itself provided the route in terms, that the Supreme Court has upheld it, and that a national environmental problem cannot be solved State by State.

The more practical criticism is the opposite one. Implementation is with the States, because the Boards are State bodies, the magistrates are State officers and the municipalities are State creatures. Parliament has the power and the States have the machinery, and that mismatch explains a great deal about why Indian environmental law is better on paper than on the ground.

Quick revision

• The environment is in no List. It is legislated through entries in all three.
• Article 246 distributes power; Article 248 is residuary; Article 249 is the national interest route; Article 254 resolves repugnancy on a Concurrent subject.
• Forests and the protection of wild animals and birds moved from List II to List III in 1976.
• Water and public health are State subjects; that is why the Water Act needed Article 252.
• A stricter State standard is compatible with a central floor; a laxer one is not, and section 24 of the Act of 1986 decides it.
• Parliament has the power; the States have the machinery.

Test yourself

1. The environment is not in any List. How then does Parliament legislate on it? Through entries that are in the Lists and through two special articles. Where the subject is in the Union or the Concurrent List, Article 246 suffices. Where it is in the State List, Parliament may act under Article 252 if the States concerned pass resolutions, or under Article 253 if it is implementing an international treaty, agreement, convention or a decision taken at an international conference. Both of the last two have been used for the statutes on this syllabus.

2. A State passes a law fixing a stricter emission standard than the central one. Is it valid? Generally yes. The central standard operates as a minimum, and a person who complies with the stricter State standard necessarily complies with the central one, so there is no impossibility of dual compliance and no repugnancy. The position would be different if the State standard were laxer, when section 24 of the Environment (Protection) Act 1986 would give the central standard overriding effect.

3. Why did the Forty-second Amendment move forests to the Concurrent List? Because forest depletion had become a national problem while forests were a State subject, so Parliament could not legislate for the whole country. Moving the entry to List III, in the same amendment that inserted Articles 48A and 51A(g), gave Parliament the competence it used four years later to enact the Forest (Conservation) Act 1980, which requires central approval before forest land is diverted to non-forest use.