ENVIRONMENT PROTECTION AND THE

ROLE OF LOCAL SELF GOVERNMENT

NOVEMBE R 13, 2 017

TO: DR. FAIZANUR RAHMAN

BY: SHUJA HAIDER RIZVI
 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
writing of this project.
I would like to express my special thanks and gratitude to my teacher DR. FAIZANUR
RAHMAN who gave me the golden opportunity to do this project which also helped me in doing
a lot of research work and I came to know about a lot of new things.
I am really thankful to them.
Secondly I would also like to thank my friends who helped me a lot in finishing this
project within the limited time. I am making this project not only for marks but also to
increase my knowledge. Thanks again to all who helped me.
 CONTENTS

 INTRODUCTION

 ENVIROMENTAL GOVERNANCE AND SUSTAINABLE DEVOLOPMENT

 CONSTITUTIONAL SAFEGUARD TO WHOLESOME ENVIROMENT

 LOCAL SELF GOVERNMENT AND FEDERAL STRUCTURE OF

GOVERNMENT

 BARRIERS TO EFFECTIVE ENVIROMENTAL GOVERNANCE AT LOCAL

LEVEL

 CONCLUSION

 BIBLIOGRAPHY
 INTRODUCUTION

Environmental resources are an important component of economic progress and

enhancement of value of life of the society and upright environmental management is a
central means of guaranteeing the environment conservation. Environmental resources
are gradually coming under the pressure from various aspects of development. The use of
natural resources i.e air, water, land and biota, in the production process of economic
activity, the discharges from it and the class of life improvement shall have to keep in
mind the limited resource base, the rights of people, legal framework and the implications
of one’s activities. Essentially, the economic expansion of society has to be sustainable
from numerous points of view – socio-economic, ecological, legal and environmental.
Institutional as well as non-institutional instruments for confirming that the long term
sustenance of environmental resources does not get hindered hold great significance.

Initiatives have been taken independently by several government divisions in India to

increase the governance course of environmental conservation, which must to be put in
proper standpoint. However, still there occurs a large vacuity in the governance of crucial
natural resources like surface and ground water resource management, ecological
forestry, land use management. It is in the form of deficiency of organized machineries,
institutional disintegration, and the absence of suitable implementation of frameworks.

Among several stages of environmental governance, the most operative is the local level
for well-organized management and use of natural resources. Democratic decentralization
in the nation has been path-breaking. However, the third tier of governance has not been
as involved and operative in handling ecological resources as it ought to be. The result is
total worsening and dilapidation of our natural reserve base.

Within the purview of PRIs, there is an abundant deal of duty on them for environmental
preservation. Developing organic connections among many communities initiatives and
PRIs could possibly, be a productive step towards preserving the natural reserve base in
the nation. Safeguarding natural resource base in the country through efficient
 environmental conservational governance at the local tier is one of the last probabilities
of defending integrity of several biotas. As the means of support of many rest on strong
ecosystems, enhanced efforts for maintenance of natural wealth could only avert an
“impending catastrophe”.1After over a decade and a half of the enactment of 73rd and
74th Amendments to the Constitution it is possibly, proper to consider on the obstacles to
and the way forward in determining up effective ecological governance at the third tier
concerning the Panchayat Raj Institutions (PRIs).

 ENVIROMENTAL GOVERNANCE AND SUSTAINABLE DEVOLOPMENT

Sustainable Development means development in synchronization with environmental

concerns. To be sustainable, growth must retain both economic and ecological
sustainability. It is a development course where utilization of resources, route of
investment, orientation of technology improvement and organizational variations are all
in coordination. Sustainable development also suggests local dominance over the
resource consumption, and is the only way for preserving and upholding socio-economic
safety in a democratic system.

The concept of Environmental Governance and Sustainable Development is

supplementary and complimentary to each other. The mutual goal of sustainable
development of the civilization has numerous facets, which include laws, policies and
instruments of application, organizations, fairness, gender compassion, domestic and
global conventions, democratic methods, participatory decision making and admiration
for diversity.

Though the inspiration can be drawn from the Constitution of India to safeguard
environment as it is vehemently specified in various Articles provided in Fundamental
Rights, Fundamental Duties and Directive Principle of State Policies, a little has it seems,
been done in coherence to such obligations. Not only this, parliament did make that extra

1
As brought out by Elinor Ostram in her book “Institutional Analysis and Development.
 push by inserting Part IX and Part IXA through amendments to formalize the PRI’s
institutions. Unfortunately the purpose of formation of these institutions can be seen only
on papers as it does not reflect from the ground realities. There is an evident need to
understand that the preservation of environment can be done more effectively at grass
root level than at State or Central level. The sustainable development should start from
down-to-up the food chain and not vice versa.

It is also of importance to acknowledge that unlike many other social welfare legislations
where it is the only government’s duty to secure the same, the obligation to secure
wholesome environment rests on the shoulders of both the government and the people of
the nation. The ideals enshrined in the constitution can only be reached if the society as
whole adheres to them. Accusing the government for its loopholes in policies and casual
attitude in implementation will not solve the issue.

 CONSTITUTIONAL SAFEGUARD TO WHOLESOME ENVIROMENT

To guard and develop the environment is a constitutional facet. It is the commitment for a
country devoted to the ideas of a welfare state. The Indian constitution consist of
unequivocal provisions for green safety under the chapters of Directive Principles of the
State Policy and Fundamental Duties. The deficiency of any particular Article in the
Constitution pinpointing the fundamental right to hygienic and healthy environment has
been fixed by judicial engagements in the recent periods.

o Preamble

The preamble2 of India’s Constitution delivers that our nation is established on

“Socialistic” form of the social order, where the government shows more
consideration to the social difficulties than on any singular person’s

2
The Constitution (42nd Amendment) Act, 1976 received the assent of President of India on December 16, 1976.
 complications. Environmental contamination which has become a chief social
issue is being considered as a genuine difficulty distressing the society at large
and thus state is under a responsibility to accomplish the elementary purpose of
socialism, which is, to deliver decent standard of living to every citizen which can
be established from a pollution free environment.3

The preamble also asserts that, the inalienable rights and liberties which the
people of India envisioned to secure all citizens include justice, social, economic
and political. Justice also embraces environmental justice. However, the specific
word ‘environment’ cannot be found here, we can rightly construe this to take in
environmental justice. Environment as a theme has found a place in our day to-
day living in such a manner that we cannot ignore considerations on
environmental issues when dealing about socio-economic or socio-political
scenario of the country4

Environmental justice is also backed by the words of K.S. Dakshinamurty that,

“Environment as a subject, environment as a concern and environment as part of
socio- economic-political structure in the country seems to have taken of. In fact it
has entered the structure in such a way that no intellectual, political or academic
discourse is complete without it”.5

The Preamble also affirms India to be a “Democratic Republic”. In a democratic

set up, people have the right to contribute in government measures. They also
have the right to know and access to information of government policies which is
very vital for the achievement of the environment policies.6

3
Article 48-A “Protection and improvement of environment and safeguarding of forests and wild life: The State
shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country”.

5
K.S. Dakshinamurty, “Politics of Environment”, Economic and Political Weekly, Vol. 21 No. 18
(1986) p. 773.
6
P. S. Jaswal and NishthaJaswal, Environmental Law, 37 (Allahabad Law Agency: Haryana, 3rd Edn., 2009)
 o Article 47

The basic principle specified in the Article 477 very emphatically rejects the
statement to some of the learned authors that originally our Constitution was
environmentally blind8and environment as a subject has been left out of the
Constitution. Article 47 demands the State to carry out the basic obligation to look
after the well-being of the citizen and also take essential and effective steps to
enhance their standard of living and also improve the level of nutrition.
Improvement of public health creates the base of healthy environment because
due to several environmental menaces it is the health of the general people which
comes under severe danger. In order to guard the health, the framers of the
Constitution gave special importance on the enhancement of public health which
is more vital for the existence of the mankind.

In the current times numerous reasons account for the pollution dangers which is
going beyond control. The pollution of water and air plunders the nature and
distress our health. Therefore, attending the issue, the Constitution very
appropriately accepted the right to health and casts a duty upon the State making
it mandatory to work for improving the health of the citizens.

o Article 48 A

7
“The State shall regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about
prohibition of the consumption except for medical purposes of intoxicating drinks and drugs which are injurious to
health”.
8
K.L.Bhatia, “Human Rights and Human Environment – A Study in the Policy Perspectives”, ALJ, Vol. 10 (1990)
p.46.
 A universal adaption awareness for the safeguard of the environment in the
seventies encouraged the Indian Government to implement the 42nd Amendment
(1976) to the Constitution. The said amendment inserted Art. 48A9 to the Part IV.
o Art. 51 (A) (g)

The amendments also made few modifications in the Seventh Schedule of the
Constitution. ‘Forest’ and ‘Wildlife’ were moved from the State list to the
Concurrent List. This proves the concern of Indian Government to give
significance to environment safeguard by pouring it out the on national scheme.
Although unenforceable by a court, the Part IV are repeatedly being cited by
courts as supplementary and complementary to the Part III. In many
environmental cases, the courts have showed by the words of Art. 48A. and
deduce it as striking an obligation on the government, including courts, to shield
the environment. When every single citizen owes a constitutional duty to look
after the environment, the citizen must also be permitted to procure the judicial
assistance in imposing that obligation against disobedient government
functionaries.

The Public Trust Doctrine states that certain joint properties such as rivers,
jungles, coastlines and the air were held by Government in Trusteeship for the
open and unrestricted use of the general public. The Apex court again confirmed
that the right to clean air also stemmed from Art 21 which referred to right to
life.10

o Article 246

Art.246 of the Constitution distributes the subject matters of legislation between

the Union and the States. The Union List (List I) includes defense, foreign affairs,

9
“the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the
country”.
10
M.C. Mehta vs. Union of India (Vehicular Pollution Case) 1991 SCR (1) 866, 1991 SCC (2) 353.
 atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines
and inter-state rivers.11 The State List (List II) contains public health and
sanitation, agriculture, water supplies, irrigation and drainage, fisheries.12 The
Concurrent list (List III) on which both government can make laws on forests,
protection of wildlife, mines and minerals and development.13 Parliament has
residual authority to legislate on matters not mentioned in the three Lists. The
parliament is also empowered to make laws in the ‘national interest’ on substance
mentioned in the State List. Also, Parliament can legislate on State matters, for
States whose legislative bodies have consented to central legislatures.14

From an environmental position, the allocation of legislative authority is an

significant one – some environmental difficulties such as sanitation and waste
clearance, are best undertaken at the local level; others, like water contamination
and wildlife safety, are better addressed by uniform national laws.

o Article 253

The aims of worldwide environmental covenants would be efficiently

accomplished if all relevant states become parties to them and rigorous
application including surveillance on compliance was ensured. India is a
contracting party to several global treaties and conventions involving domestic or
universal environmental problems.15 India is under a commitment to translate the

11
Article 246 (1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the
union list).
12
Article 246 (4) parliament has power to make laws with respect to any matter for any part of the territory of India
not included (in a State) notwithstanding that such matter is a matter enumerated in the State List
13
Article 246 (2) Notwithstanding anything in clause ( 3 ), Parliament and, subject to clause ( 1 ), the legislature of
any State also, have authority to legislate with regard to any of the subject matters mentioned in List III in the VII
Schedule (Concurrent List).
14
For Example: The Water (Prevention and Control of Pollution) Act of 1974.
15
India has also made accession to the international covenant on Economic Social and Cultural Rights on 10th
April, 1979. Article 12(1) of the covenant recognizes the right of every one to the enjoyment of the highest standard
 matters and resolutions of International Conferences, treaties and agreements into
domestic law in accordance with Article 51(c)16 Art 253 of the Constitution
authorizes Parliament to make laws executing India’s international obligations as
well as any decision made at an international conference, association or other
body.

In sight of the extensive language of Article253 as also in entries 13 and 14 in

Union List, the parliament has very extensive authority to enact laws including
the matters specified in the State List provided those issues are addressed at any
global conferences, association or other body or it is the enactment of any
international treaty, agreement or convention. Under this authority, the Parliament
can legislate on environment security and the same cannot be examined before the
courts on the ground that the Parliament had a want for legislative competence.

Certain laws17 were enacted through the use of this power, the preambles of which
stated the purpose of enactment of those laws was to implement the decisions
reached at the United Nations Conference on Human Environment held at
Stockholm in 1972.

The provisions of the Global Covenant, which illuminates and go to effectuate the
Fundamental Rights assured by our Constitution, can positively be trusted upon
by courts as features of those Fundamental Rights and hence, enforceable as
such.18 It is almost an accepted proposal of law that the guidelines of customary
International Law which are not dissimilar to the Municipal Law shall be

of physical and mental health. India also participated in Stockholm Conference of 1972, Earth Summit of 1992,
Earth Summit plus Five of 1997 and Earth Summit at Johannesburg in 2002.
16
“the State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized
people with one another”.
17
Air (Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986.
18
People’s Union for Civil Liberties v. Union of India (1997) 3 SCC 433 at 422.
 considered to have been integrated in the domestic law and shall be followed by
the courts of law.19

o Article 14

The Indian Constitution assures ‘right to equality’20to all persons without any
discrimination. This specifies that any act of the ‘State’ concerning to
environment must not encroach on the right to equality as mentioned in the
Article 14 of the Constitution. The Stockholm Declaration, 1972, also
acknowledged this principle of equality in environmental management21and it
called up all the countries to stand by this principle.

The judiciary, on many occasions, have struck down the capricious official permit
in environmental matters on the foundation that it was violative of Article 14.22 A
decision making authority must give consideration to environmental factors such
as the ecological strategy of the government and the sustainable employ of natural
assets.23 A government assessment that fails to take into account pertinent concern
disturbing the environment is invalid.

o Article 19 (1) (a)

19
Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at 660.
20
Article 14: The State shall not deny to any person equality before law and equal protection of laws within the
territory of India.
21
The Stockholm Declaration, 1972, Principle I, ‘Man has the fundamental Right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and well-being’.
22
Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 at 499.
23
State of Himachal Pradesh v. Ganseh Wood Products AIR 1996 SC 149.
 Article 19(1) (a) secures fundamental freedom of speech and expression to every
citizen. In India most of the environmental jurisprudence has developed through
judicial fiction. Most of the cases came for adjudication before a Court as a result
of PILs in which the enjoyed their freedom of speech and expression sometimes,
stressing on the violation of the rights of the people to live in healthy
environment. Freedom of speech and expression under Article 19(1) (a) also
includes freedom of press.24 In India the public opinion and media have played an
important role in molding the public sensitivity on green issues.

Also excessive noise is certainly pollution in the society. Under Article 19(1) (a)
read with Article 21 of the Constitution of India, the citizens have a right of
decent environment and surrounding to have a good night sleep at night, to have
right to comfort and relaxation which all are indispensable constituents of the
right to life provided under Article 21 of the Constitution.25

 LOCAL SELF GOVERNMENT AND FEDERAL STRUCTURE OF

GOVERNMENT

India is a distinctive federal country. Normally, federalism constitutes of a two tier

system – central at the top level and the provisional state government at the medium
level. But the Indian constitution pays way for a three tier arrangement: -

1. Union Government.
2. State Government.
3. Local Government i.e. Panchayats and Municipalities.

In India, Local Self Government is the last division of the Government. Constitutionally,
democracy is the base of Government, where, every adult citizen (18+ of age) of the
country holds some direct or indirect nexus with the government. Understanding the high

24
Indian Express Newspapers (Bombay) Pvt ltd. v. Union of India AIR 1986 SC 515.
25
Burrabazar Fire Works Dealers’ Association v. Commissioner of Police, Calcutta AIR 1998 Cal 121 at 136.
ideals democracy, Local self-Government has an integral role in governance and
management in India.

Local Self Government is the administration of local dealings by such bodies who have
been elected by the people. It is widely acknowledged that self-governing bodies at the
local level are integral for the national growth and active people’s contribution is an
indispensable element of the democratic process. Grass-roots levels of democracy based
on minute units of the government makes natives to understand a sense of obligation and
to instill the principles of democracy. All the same time, it also promotes a distinctive
opportunity to contribute in public affairs.

The part of local self-government is critical for federal arrangement of government. First,
local government is a key link between society and the state. Democracy originates here,
and if democratic institution are not functionalized nearby, they will be missed
somewhere else also. Then, third tier government has to be incorporated in the intricate
composition of a federally governed system. Its affiliation to the larger regional and
nationwide orders of administration has to be defined, and it is essential to create set of
laws and measures for its involvement in the political decision-making process.

The Local Government’s control is restricted to a specific jurisdiction and its functions
relate to the civic facilities to the inhabitants living within its area. A Local Government
operates within the boundaries of the law which has created it. It is inferior to the state or
regional government which exercises power and supervision over it. But the actions of
the Local Government are not less. Local Government has been taking up new measures
which either regulated the behavior of the citizens or are in the nature of service such as
provision of transportation, construction of houses for the poor, supply of electricity,
health centers, parks, play grounds etc. In fact, Local Government is much more
significant in the daily life of a citizen than the State or Central government.

The importance of Local government cannot be overlooked when we understand the

variety, the nature and the impact upon the daily life of the civilian of the functions which
 local authorities takes. It provides public facilities and services which are essential for the
handiness, healthy living and wellbeing of the individual and the society. Breaking down
of municipal services means the entire disruption of social and economic life of the
public. If these services were all of a sudden be ceased, we should relapse into
chaos.26The Constitution of India focuses on the establishment of a welfare state and
intensification of Local Government may guarantee its proper success. The welfare
services of the modern state, in view of the flexible technique of administration they
required, essentially municipal in principle and practice.27

Thus, the essential features of Local Government are (i)its legal status (ii) its power to
raise finance by taxation in its, (iii) involvement of local community in decision making
and their implementation (iv) the freedom to function independently of central control
and (v) its community oriented purpose, in contrast to individual’s purpose.28

 BARRIERS TO EFFECTIVE ENVIROMENTAL GOVERNANCE AT LOCAL

LEVEL

The influence of such complex configurations on local government can be huge. Local
government may become the article of two controlling authorities. The Central and the
regional government may describe responsibilities and set rule for the activities of local
government. In financial aspect, two superior instructions of government may be an
benefit as local authorities may make revenue from two foundations of help. However,
there is also the danger that struggles between the central and state governments and
many program may end up generating an unfunded directive for third tier of government.

Here, the relationship of lowest governments and the regional government usually make
no structural difficulty. Because there are direct nexus, task determination and
management can be balanced out in a helpful way. Though, the role of lowest

26
J.H. Warren, “The Local Government Service” (1952), p. 5.
27
M.P. Sharma, “Local Self-Government in India” (1965), p. 2.
28
Maheshwari, S.R., “Local Government in India” Agra, Lakshmi Narain Aggarwal, 1984, p. 5.
government authority in these practices rest on the outline established by the state. Chief
articles in the state’s policies for the third tier government may comprise a legal
assurance of local bye-rule and a significant contribution of local government in the job
and standard-deciding procedures. It is equally essential to put into effect these
regulations so that there are legitimately demarcated parameters of state control over third
tier government and also legal procedures, containing access to autonomous courts.

A special problem may arise with regard to federal grants for programs executed by local
governments. Where direct monetary affairs between the central and the regional
governments are unconventional, central revenue for a purpose is provided to the
provisional government despite of the fact that the particular programs is to be conducted
by third tier government. It is for the regional government to allocate the central’s money
in a feasible method. In this circumstance, it not only has to allocate the reasonable part
to both municipalities but also has to guarantee that the central grant reaches wholly with
local government where the programs are to be executed. Local governments often argue
that the regional government put “sticky fingers” with respect to the federal money which
is sanctioned for local government. As these local governments play a fundamental role
in the social and economic expansion of the nation as a whole, they require more than
appropriate funds and powers to meet their ever-increasing responsibilities. They also
want to be taken seriously as allies who can represent their views too.

However, in practice, the relation between local government and the state and federal
governments is understood not only by the constitutional framework. The ways in which
local government composition is arranged are equally essential. A strong and competent
local government association is required to stand for views and interests in the state and
in national platforms. Inside local government associations, the problem will inescapably
come up that the situation of cities and rural areas, or small and large communities are
not necessarily alike. Party politics is usually involved too. This requires a carefully
structured sole association or, if this is not expedient, perhaps a number of organizations
where local associations with special common organizational structures and interests can
work together.
 CONCLUSION

A healthy and safe environment is very essential for a hassle free life. In order to secure a
healthy life the conservation of the environment is a prerequisite and the inspiration to
secure the same can be drawn from the preamble of the constitution. The makers of the
constitution were very serious to safeguard the deteriorating environment and that is why
specified sections have been placed in various chapters of the constitution to preserve the
same. Where the lacuna has been found in the provisions of the constitution the judicial
activism has played a crucial role to meet the requirements. However the preservation of
environment cannot be secured if all the institutions of the government don’t work
shoulder to shoulder.

The democratic decentralization of power has paved the way for third tier of the
government to take measure to ensure the purpose of various environment friendly
provisions of the constitution. The effective implementation of the environment oriented
policies is also important to secure the purpose of the welfare state and the same can be
only be done by making the local self-government an effective, autonomous and self-
sufficient body.

The insertion of Part IX and Part IXA through the 73rd and 74th Amendment Act to the
Constitution was done to provide for an existence and proper mechanism to third tier of
government by formalizing it. These institutions have vital role to play in the securement
of the basic necessities of life i.e. Health, Safety, Sanitation, Environment conservation.
But often these institution get stuck between the tussle of the self-serving desires of
Center and the Provisional states. Also, sometimes they are unheard on the various
platforms and despite being acquainted with the ground realities they are provided with
negligible role. There is an imminent need to empower the lowest tier of the democratic
setup to ensure the basic entitlements to the people.
It is also significant that it is not only the obligation of the government to provide for a
pollution free environment but also that of the people of the nature to work together to
create one. There is a need of self-realization in the minds of the people about the
necessity of a healthy environment because it poses a direct relation with the healthy life.
People should rather abstain from indulging into such activities or to reduce it to marginal
extend that contaminates the environment and substantially pose a direct threat to their
health.

At last the Local Self Government is well equipped to safe guard the environment as it is
the only institution to be aware of the ground realities of the surroundings. The policies
can be made either by Central or State Government but the implementations of such
policies should be done by the third tier of the government as the environment
conservation would be an effective measure down to up the chain and not vice versa. It is
the time to realize the looming need of strong third tier government institution as the
human desires are increasing day by day and which is directly contaminating the
ecological system and posturing an unavoidable threat to the lives of the people at large.
 BIBLIOGRAPHY

Laws and Declarations

 P.M Bakshi, The Constitution of India, 1950, Twelfth Edn. (Universal Law Publishing
Co.).
 Air (Prevention and Control of Pollution) Act of 1981.
 The Environment (Protection) Act of 1986.
 The Stockholm Declaration, 1972.

Books

 P.S. Jaswal and Nishtha Jaswal, Environmental Law, 39-40 (Allahabad Law Agency,
Haryana, 3rd Edn. 2009).
 Dr.Sukanta K Nanda, Environmental Law, 65 (Central Law Publication: Allahabad, 1st
Edn. 2007).
 K.S. Dakshinamurty, “Politics of Environment”, Economic and Political Weekly, Vol. 21
No. 18 (1986) p. 773.
 K.L.Bhatia, “Human Rights and Human Environment – A Study in the Policy
Perspectives”, ALJ, Vol. 10 (1990) p.46.
 P. S. Jaswal and Nishtha Jaswal, Environmental Law, 37 (Allahabad Law Agency:
Haryana, 3rd Edn., 2009)
 J.H. Warren, “The Local Government Service” (1952), p. 5.
 M.P. Sharma, “Local Self-Government in India” (1965), p. 2.
 Maheshwari, S.R., “Local Government in India” Agra, Lakshmi Narain Aggarwal, 1984,
p. 5.