Source: Why Supreme Court ruling on climate change isn’t enough (The Indian Express, April 8, 2024)
The Supreme Court made a significant ruling on climate change, noting that there’s no single law in India specifically for it. Despite government policies and discussions on climate change effects, there’s no clear legislation. This raises questions about whether India’s Constitution acknowledges the environment and climate change.
- Legal Ownership of Water: The Constituent Assembly of India discussed present-day Article 297 in 1949. This article gives control of valuable items in territorial waters to the Union. Originally about resource ownership, it expanded to water ownership. Ananthasayanam Ayyangar said, “We must own water, its rights, and resources.” This view seems influenced by colonialism.
- Debates on Water Ownership: In 1949, India debated who controls resources in territorial waters. Article 297 gives this control to the Union. Ownership discussions extended to water itself. Ananthasayanam Ayyangar expressed the need for water and resource ownership. This view reflects colonial influence.
- British Environmental Perspective: The British in India saw the environment mainly for human consumption. They viewed it as a resource pool for endless extraction. This perspective influenced the Constitution, which lacks a holistic view of the environment.
- Limited Environmental Outlook: The Constitution reflects a narrow view of the environment. For instance, Entry 17 of the State List addresses “water” but only in terms of supplies, irrigation, and storage. It overlooks the environment’s broader significance.
Environmental Protection in Indian Law
- Limited Legislative Power: Indian law lacks explicit authority for holistic environmental protection. Parliament holds residual power to legislate on unlisted subjects.
- Parliament’s Authority: Under Article 253 of the Constitution, Parliament can enact laws to implement international treaties, agreements, or conventions. This includes legislation related to the environment.
- Environmental Protection Act of 1986: The EPA was enacted under Article 253 to implement decisions from the Stockholm Conference in 1972. This Act grants broad powers to the Centre to safeguard and enhance environmental quality and control pollution.
- Fragmented Environmental Laws: Current laws focus on specific aspects like water, air, and forests, reflecting a fragmented understanding of the environment.
- Constitutional Perspective: The Constitution views the environment as comprising air, water, and soil. This limited outlook results in fragmented legislative powers. Entries in the Constitution address various environmental components, but none directly empower environmental protection or address climate change impacts.
- Concurrent List Inclusion for the Environment: Introducing “environment” as an entry in the Concurrent List is necessary under the current constitutional framework.
- Decentralization and Cooperative Federalism: This step aligns with decentralization and cooperative federalism principles. Both Centre and states would legislate on environmental matters, with states taking a primary role and the Centre intervening in climate emergencies.
- Local Decision Making: India’s states vary greatly in vulnerability to environmental emergencies. Local decision-making can minimize damage.
- Adaptation to Climate Change: In the era of climate change, a heavily centralized legislative power isn’t feasible. Decentralization ensures more effective responses to environmental challenges.