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Report No. 186

Entry 13 of List I of Schedule VII reads as follows:

"Participation in international conferences and associations and other bodies and implementing decisions made thereat"

The above entry enables Parliament to make laws under this entry even though the subjects may fall within the domain of the State Legislatures. Article 253 gives overriding power to Parliament in this behalf. In S. Jagannath vs. Union of India 1997 (2) SCC 87, the Supreme Court observed that Article 253 is in conformity with the object declared by Article 51 106(c) (fostering respect for international law and treaty obligations), Treatymaking and implementing of treaties etc. and is subject to Union legislation, under Entry 14, List I.

Article 253 (entering into treaties and agreements and conventions) by the use of the words "notwithstanding the foregoing provisions", empowers the Union Parliament to make laws with regard to entries in List II, insofar as that may be necessary for the purpose of implementing the treaty obligations of India. Thus, an enactment made under Entry 13, List I, Schedule VII (participation in international conferences etc.) read with Article 253 to implement an international agreement would override and prevail over any inconsistent State enactment.

We shall next refer to the entries in List I (Union List), List II (State List) and List III (Concurrent List) of the Seventh Schedule which contain the list of legislative powers of Parliament and the States, in so far as some environmental related matters are concerned.

List I (Union List): Atomic energy and mineral resources (Entry 6); industries declared necessary for defence (Entry 7); shipping and navigation (Entry 24); maritime shipping and navigation (Entry 25); industries expedient in national interest (Entry 52); regulation and development of oil field and mineral oil resources (Entry 53); regulation and development of mines and minerals (Entry 54); regulation and development of inter-state river or river valleys (Entry 56); fishing and fisheries (Entry 57).

List II (State List): Public health and sanitation (Entry 6); agriculture (Entry 14); preservation, protection and improvement of animal stock (Entry 15); 107water, water supplies, irrigation, canal, drainage and embankment (Entry 17); fisheries (Entry 21); regulation of mines and mineral development (subject to the provisions of List I with respect to regulation and development under the control of the Union) (Entry 23); industries subject to the provisions of Entries 7 and 52 of List I (Entry 24).

List III (Concurrent List): Prevention of cruelty to animals (Entry 17); forests (Entry 17A); protection of wild animals and birds (Entry 17B).

The Tiwari Committee appointed by Government for "Recommending Legislative Measures and Administrative Machinery for Ensuring Environment Protection" (1980) (Dept. of Science and Technology, New Delhi), recommended that a new entry as 'environmental protection' be introduced in List III to enable the Central as well as State Governments to legislate on environmental subjects. This has not been done so far.

But, it is undoubted that under various Articles, such as Articles 252 and 253, Parliament has power to pass central legislations on subjects in the State List (List II) of the Seventh Schedule, in certain circumstances.

So far as prescribing an appellate Court like the proposed Environment Court by law to be made by Parliament under Article 253 by amending the Air (P&CP) Act, 1981, the Environment (Protection) Act, 1986, there is no difficulty because these two laws have also been made by Parliament in exercise of its legislative powers under the same Article 253. The issue arises only so far as the Water (P&CP) Act, 1974 is concerned 108which was made by Parliament in exercise of its legislative powers under Article 252(1) and not under Article 253.

Question is whether it can be amended only by following the procedure of State Legislatures passing resolutions or whether, without following such a procedure, the Water (P&CP) Act, 1974 can be amended by Parliament by passing an amending law under Article 253 for the purpose of providing appellate jurisdiction to the proposed Environmental Court under the Water (P&CP) Act, 1974?

The Water (P&CP) Act, 1974 was enacted after some States desired Parliament to enact law under Article 252(1) on the subject of 'water' etc. which are in List II (State List) for the purpose of uniformity. Those State Legislatures had passed resolutions for that purpose. After Parliament passed those laws, several other States adopted the Water (P&CP) Act, 1974. In view of Article 252(2), if such a law is passed by Parliament under Article 252(1) in respect of a matter in List II for the purpose of amendment in the said law, it is necessary to follow the same procedure envisaged by Article 252(1) by way of State resolutions. Clause (2) of Article 252 requires such a procedure to be followed.

But, the Air (P&CP) Act, 1981 was, however, passed by Parliament not under Article 252 but under Article 253 which enables Parliament to make laws in respect of subjects in List II, if it is for the purpose of implementing "any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

The Air Act (P&CP) Act, 1981 in its Preamble, expressly refers to the "decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972, in which India participated", and the decision was that countries should 'take appropriate steps for the preservation of the national resources of the earth which, among other things include the preservation of the quality of air and control of air pollution'.

The preamble further states that 'it is considered necessary to implement the decisions aforesaid insofar as they relate to the preservation of the quality of air and control of air pollution'. Thus, Parliament resorted to Article 253 rather than to Article 252 while passing the Air (P&CP) Act, 1981. That Act can be amended by another law by Parliament under Article 253.

The Environment (Protection) Act, 1986 was also passed by Parliament under Article 253 and the preamble refer to the decisions taken at UN Conference on the Human Environment held at Stockholm in June 1972 on the protection and improvement of human environment. The preamble states that "it is considered necessary further to implement the decisions aforesaid insofar as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property". The above Act can, therefore, also be amended by Parliament under another law if passed under Article 253.

The National Environment Tribunal Act, 1995 in its preamble squarely relies on the 'United Nations Conference on Environment and Development' held at Rio de Janeiro in June 1992, in which India participated, calling upon States to develop national laws regarding liability and compensation for the victims of pollution and other environmental 110damages. It also states that it was considered expedient "to implement the decisions of the aforesaid Conference so far as they relate to the protection of environment and payment of compensation for damage to persons, property and environment while handling hazardous substances". This Act can, therefore, be amended or repealed by another law if made by Parliament under Article 253.

The National Environment Appellate Authority Act, 1997 is an Act to provide for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any "industries, operation or process", "or class of industries, operations or processes" shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 and for matters connected therewith or incidental thereto". In view of its linkage with the above Act of 1986, there is thus no difficulty in amending or repealing this Act by an Act to be made by Parliament under Article 253.

Thus, so far as constituting an Environment Courts with appellate powers, there is no difficulty with regard to amending the Air (P&CP) Act, 1981 (passed expressly for the purpose of implementing the decision taken at the Stockholm Conference, 1972) or in regard to the Environment (Protection) Act, 1986 (passed for the same purposes of the 1972 Conference).

These two Acts are also referable to Article 253 and the new law conferring such appellate powers on the proposed Environment Court can be made by Parliament under Article 253, by amending or repealing provision in the three enactments, namely, the Air (P&CP) Act, 1981, the Environment (Protection) Act, 1981 and the National Environment 111Appellate Authority Act, 1997, under Article 253 once again. Similarly, the National Environment (Tribunal) Act, 1995 can also be repealed or amended under Article 253.

Question, however, arises, as stated earlier, with reference only to the Water (P&CP) Act, 1974 which was expressly passed under Article 252, whether it would require, in view of clause (2) Article 252, passing of fresh resolutions by the State Legislatures as envisaged by that clause for the purpose of deleting section 28 which enables appellate powers to be conferred by the State Government and transfer the appellate powers to the proposed Environmental Court. This has become necessary because, as at present, the States (except A.P.) have constituted appellate authorities consisting of bureaucrats.

This question is, however, not difficult to answer.

We shall first explain the scope of Article 253. Parliament chooses to exercise powers under Article 253, where Parliament feels it necessary to make a law for implementing international agreements, or treaties or decisions taken at international conferences in which India has participated. This power of Parliament is an independent power and is not controlled by Article 252. Further, Article 253 opens with the words, "Notwithstanding anything in the foregoing provisions of this Chapter".

The non-obstante clause puts the matter beyond doubt and is applicable not only for making a law by Parliament on the subject for the first time under Article 253 (e.g. Air (P&CP) Act, 1981) when no law on the subject was made earlier by Parliament either under Article 252 or under any other of the foregoing Articles preceding 112Art. 253 (i.e. Article 245 to 252), but also where Parliament wants to exercise its special powers under Article 253 even where it had passed a law under Article 252 based on the resolutions of State Legislatures.

In other words, where, under Article 252 pursuant to desire of the States which passed resolutions (e.g. the Water (P&CP) Act, 1974), Parliament had passed an Act under Article 252, still Parliament if it later feels that such a law requires to be amended or repealed for the purpose of "implementing international agreements or treaties or decisions taken at international conferences" in which India has participated, it is, in the opinion of the Commission, clearly permissible for Parliament to exercise its special powers under Article 253 to pass an amending or repealing Act (under Article 253) for the purpose of amending or repealing such earlier law made by Parliament under Article 252, in regard to a matter falling under List II.

The Parliament's power under Article 253 is an independent power and is not confined to a law made for the first time but is also applicable for the purpose of amending or modifying a law made by Parliament under Article 252. The power of Parliament under Article 253 to do so is further clearly safeguarded by the non-obstante clause in the opening part of Article 253. The words "foregoing provisions of this chapter" in the opening clause, "Notwithstanding anything in the foregoing provisions of this Chapter" permit Article 253 to override Articles 245 to 251 of the Chapter but also to override both the clauses (1) or (2) of Article 252 in that Chapter, which precede Article 253.

When Article 253 thus overrides clause (2) of Article 252, there is no difficulty in stating that though the Water (P&CP) Act, 1974 was one expressly passed by Parliament under Article 252 in respect of a matter in List II (after resolutions were passed by State Legislatures), the said law made 113by Parliament can be amended or modified or repealed under Article 253, without following the procedure indicated in clause (2) of Article 252 for the purpose of implementing decisions taken in international conferences 'for protection of environment'.

All that is necessary is that while passing such amending or repealing Act, amending the Water (P&CP) Act, 1974, Parliament must state in the preamble that Parliament is passing the amending law for giving effect to international agreements, treaties or decisions taken at international conferences. In the present context, such conferences are the 1972 Stockholm Conference and the Rio de Janeiro Conference of 1992.

We have to refer here to another aspect concerning the Water (P&CP) Act, 1974. The said Act was passed by Parliament pursuant to resolutions passed by the legislatures of the State of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, J&K, Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal. The Act was adopted under Article 252 by the States of Sikkim ((1989), Meghalaya (1977), Maharashtra (1989), Manipur (1988)).

It appears to us that the Water (P&CP) Act, 1974 has not been adopted in some States as such.

We are also aware that certain amendments made by Parliament by Act 53/78 following the procedure under Article 252(2) to the Water (P&CP) Act of 1974 are yet to come into force in some States which had passed resolutions for enacting the Principal Act or which had adopted it later, because some of those States have not yet passed fresh resolutions adopting 114the Amending Acts. Such a situation has arisen because the Amending Act of 1978 was not specifically passed by Parliament under Article 253 for giving effect to international agreements, treaties or decisions taken at international conferences.

If Parliament had passed the amending law of 1978 under Article 253, there would have been no need for the States to pass resolutions in their Legislatures or to adopt the amending law of 1978 amending the Water (P&CP) Act, 1974. After all, the idea is to have uniform laws in all the States if they are made to implement decisions taken at international environment-related conferences.



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