3. Legislative Powers of the Centre and State Government over Environment | Article 246, the Seventh Schedule and Article 253

This is the 3rd post in Environmental Law, Unit IV — the previous post covered Article 31C; this post covers a more basic question that sits behind every environmental statute — which legislature, Union or State, actually has the power to make it.

The Problem This Topic Solves

India is a federal union, and the Constitution does not let either Parliament or a State Legislature legislate on absolutely anything it wishes — Article 246 read with the Seventh Schedule divides subjects between the Union List, the State List and the Concurrent List, and a law passed on a subject outside a legislature's assigned list can be struck down for lack of legislative competence, regardless of how good its environmental intentions are. "Environment" as a word appears in none of the three Lists — it cuts across forests, water, air, land use, industry and public health, which are scattered across all three. Before any environmental statute can be studied on its merits, it is necessary to know which legislature was actually competent to pass it, and that competence has itself changed significantly over time.

Article 246 and the Seventh Schedule — the Basic Scheme

Article 246 gives Parliament exclusive power to make laws on matters in the Union List (List I), gives State Legislatures exclusive power over matters in the State List (List II), and gives both Parliament and State Legislatures power to legislate on matters in the Concurrent List (List III) — subject to Article 254, which provides that if a State law on a Concurrent List subject conflicts with an existing Central law on the same subject, the State law is void to the extent of the conflict, unless it has received the President's assent under Article 254(2). Any subject not mentioned in any of the three Lists falls under Parliament's residuary power (Article 248, read with Entry 97 of the Union List).

Forests and Wildlife — Moved from the State List to the Concurrent List

Before 1976, "Forests" and "Protection of wild animals and birds" were entries in the State List alone, meaning only State Legislatures could make laws on them, and the Centre had no independent power to intervene even when a State's forest or wildlife policy caused damage with effects far beyond its own borders. The Constitution (Forty-second Amendment) Act, 1976 — the same amendment that inserted Article 48A and Article 51A(g) — moved both subjects to the Concurrent List as Entry 17A (Forests) and Entry 17B (Protection of wild animals and birds), reflecting Parliament's recognition that environmental degradation is a problem that does not respect State boundaries and needs a uniform, nationwide legal floor. This is the constitutional basis for the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 (formerly the Forest (Conservation) Act, 1980) and the Wild Life (Protection) Act, 1972 operating as Central legislation that States must work within, even though States can still legislate further on the same subjects as long as they do not conflict with the Central law.

Water — Why a Central Water Pollution Law Needed a Special Route

"Water" is listed in Entry 17 of the State List, making it ordinarily a State subject — except for Entry 56 of the Union List, which gives Parliament power over inter-State rivers and river valleys to the extent Parliament declares by law that it is expedient in the public interest. Because water pollution control needed to apply uniformly across States sharing the same river systems, and could not simply be justified under Entry 56 for every river, the Water (Prevention and Control of Pollution) Act, 1974 was enacted using a different constitutional route entirely: Article 252, which allows Parliament to legislate on a State List subject for two or more States if their Legislatures pass resolutions requesting it, and further allows other States to adopt the same Act later by passing their own resolutions. This is why the Water Act's own text records that it applies to a State only once that State's Legislature has adopted it by resolution — a structurally different mechanism from a Concurrent List law that binds every State automatically.

Article 253 — Legislating to Implement International Agreements

Article 253 provides that Parliament has power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country or countries, or any decision made at any international conference, association or other body — and this power exists notwithstanding anything in the rest of the Seventh Schedule's division of powers, meaning it overrides the ordinary State List/Concurrent List boundaries entirely. This is the constitutional basis most commonly cited for the two central pieces of environmental legislation that could not easily be traced to any single List entry: the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986, both enacted to give effect to India's commitments at the Stockholm Declaration on the Human Environment, 1972, and the Biological Diversity Act, 2002, enacted to implement the Convention on Biological Diversity signed at the Rio Earth Summit, 1992.

• Article 246 with the Seventh Schedule divides legislative power into the Union List, State List and Concurrent List; a law outside a legislature's assigned subject fails for lack of legislative competence.
• The 42nd Amendment, 1976 moved "Forests" (Entry 17A) and "Protection of wild animals and birds" (Entry 17B) from the State List to the Concurrent List, letting both Parliament and States legislate on them, subject to Article 254's repugnancy rule.
• Article 253 lets Parliament legislate on any subject — even one otherwise reserved to the States — to implement an international treaty or convention, and is the basis usually cited for the Air Act, 1981, the Environment (Protection) Act, 1986 and the Biological Diversity Act, 2002.

• "Water" itself was never moved to the Concurrent List — the Water (Prevention and Control of Pollution) Act, 1974 instead relies on Article 252, which is why the Act formally applies to a State only after that State's own Legislature adopts it by resolution.
• Article 254(2) allows a State law that conflicts with a Central law on a Concurrent List subject to prevail within that State, but only if it received the President's assent — and even then, Parliament can later override it again by a fresh central law.
• Any environmental subject not traceable to a specific List entry can still fall to Parliament under its residuary power (Article 248, Union List Entry 97) — this is a fallback route distinct from, and narrower in practical use than, Article 253's treaty-implementation power.

A Practical Example

Suppose a State Legislature passes its own amendment to forest-conservation law, permitting a category of small-scale forest clearance for tribal housing schemes without the Central Government's prior approval, even though the central Van Adhiniyam, 1980 requires such approval for any non-forest use of reserved forest land. Because "Forests" is a Concurrent List subject, both laws are validly enacted in the abstract, but Article 254(1) makes the State law void to the extent it conflicts with the existing Central Act — unless the State had first obtained Presidential assent for its Act under Article 254(2), in which case the State law would prevail within that State alone, though Parliament could still nullify it later with a fresh central amendment.

Quick Revision Points

• Article 246 + Seventh Schedule: Union List (Parliament only), State List (States only), Concurrent List (both, subject to Article 254 repugnancy).
• Forests (Entry 17A) and Wildlife protection (Entry 17B): moved to the Concurrent List by the 42nd Amendment, 1976.
• Water: remains a State subject (State List Entry 17); the Water Act, 1974 uses Article 252 (State-resolution adoption), not the Concurrent List.
• Article 253: lets Parliament legislate on anything to implement an international treaty — basis for the Air Act, 1981, EPA, 1986 and Biological Diversity Act, 2002.
• Residuary power (Article 248, Union List Entry 97) is Parliament's fallback for any subject not listed anywhere else.