Laws for a better climate

SC ruling isn’t enough. Legislation needs a more holistic vision

IN WHAT CAN be termed as one of the most significant rulings on climate change, the Supreme Court has recognised that there is no single legislation in India that relates to climate change and allied concerns. Although the Court goes to the extent of discussing the right against adverse effects of climate change, it is imperative to understand why there is no legislation or any explicit legislative entry in the Constitution that indicates a decentralised set-up to tackle issues relating to the environment or climate change. This is despite various policies of the government and a plethora of decisions discussing the adverse effects of climate change. Against this backdrop, it is important to discuss whether the Indian Constitution explicitly recognises the importance of the environment and climate change.

On June 15, 1949, the Constituent Assembly discussed the present-day Article 297 of the Constitution. This article vests the control of “things of value” within the territorial waters with the Union. The debate that originally pertained to the ownership of resources went on to encompass discussions around the ownership of water itself. Ananthasayanam Ayyangar remarked, “We must have the waters, the right to water itself, ownership of the water itself and also the fish and other things”. This statement seems to stem from a colonial hangover.

The British in India largely possessed an anthropocentric worldview of the environment — they saw it as a conglomeration of resources for unlimited human extraction. This limited view, as reflected in the Constitution, does not view the environment as greater than the sum of its parts. For example, Entry 17 of the State List outlines the legislative power of states regarding “water”. But, the understanding of “water” is limited to water supplies, irrigation, water storage, etc. The environment is not viewed in a holistic sense.

The explicit power to protect the environment holistically is not conferred in Indian law. Parliament has the residuary power to legislate on subjects not explicitly listed in the legislative lists. It can legislate on matters related to the environment under Article 253 of the Constitution, which accords it the power to frame laws to implement any international treaty, agreement or convention.

For example, the Environmental Protection Act, 1986 (EPA) was passed under Article 253 to give effect to the decisions taken at the Stockholm Conference, 1972.

This Act gives sweeping powers to the Centre “to take all such measures as it deems necessary” to protect and improve the quality of the environment and to prevent and control environmental pollution.

There are laws on what we call the fragmented understanding of the environment — water, air and forests. The Constitution seems to view the environment as a sum of air, water, and soil. This limited view has led to fragmented legislative power where different entries deal with the components of the environment but none reflect a source of power to protect the environment or deter the impact of climate change.

The present constitutional position in relation to the environment indicates a need to introduce “environment” as an entry in the Concurrent List. This move aligns with decentralisation and enhanced cooperative federalism. Both the Centre and the states would legislate on matters relating to the environment — states take the primary role and the centre will have a specific role in case of climate emergencies.

India’s states differ vastly in their vulnerability to environmental emergencies, and decision making at the local level will help reduce damage. In the era of climate change, a centre-heavy devolution of legislative power is not tenable.

Climate change is characterised by its differential localised impact, between states and even within districts. This was witnessed in Karnataka recently when Bijapur faced a dry spell, while floods took place in neighbouring Belgaum. Recent developments indicate that states are prioritising climate policy, with the advent of climate action plans and increased capacity.

However, these action plans have faced bottlenecks in implementation, owing to a lack of financial support from the Centre. The fact that most financial decisions are taken by the central government, despite state governments being better equipped to respond to environmental emergencies, indicates a glaring gap.

Given this situation and the potentially catastrophic effects of climate change on society, the need of the hour is to re-imagine Indian federalism. This is also in consonance with the principle of subsidiarity, which ought to be the essence of the emerging new Bharat.