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Examining Inter-Jurisdictional and Inter-Sectoral Dynamics in Indian

Federalism: Study of Environmental Management in Delhi

Vandana Prakash (uscvandana@yahoo.com)

Abstract:

This study draws on theoretical and empirical knowledge to identify features (Essential

Features of Federalism) that are essential for smooth federal functioning—with

efficiency and effectiveness, speedy and effective conflict resolution, etc. Indian

federation as an evolving system, adapting to the needs of rapidly changing times,

offers a fertile ground for a study of federalism. In particular, Delhi offers ample scope

for examining the contextual significance of these features in making federalism work.

Delhi’s environmental federalism provides rich pre- and post-comparisons following

much change in response to its extreme pollution problem particularly in the ‘90s. We

study environmental management in Delhi to explain, illustrate, examine and justify

these features. Moreover, examining the working of the three levels of governments

and the inter-governmental relations in environmental management in Delhi provides

an important assessment not only of the evolution of federalism but also of the changes

in situation of state and local governments. This study of evolving roles and

empowerment of the lower level governments brings forth lessons useful for

intergovernmental relations and for the working of state and local governments in

diverse settings. India’s experience has useful lessons to offer for capital cities in

particular and for countries adopting and practicing federalism in general. More

broadly, it helps appreciate inter-jurisdictional and inter-sectoral relationships. We note

that it is time for a qualitative shift in the studies of federalism from those that merely

describe it or note its defining features to those that consciously aid its practice and

development.

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Introduction:

“The essence of federalism is not to be found in a particular kind of structure but a

particular set of relationships among the participants in a political system.”

-Elazar, Daniel J. (1994):‘Federal Systems of the World: A Handbook of Federal, Confederal and Autonomous Arrangements’ (2nd ed.), p. xv.

Federalism is not just a theoretical concept. It is a form of governance increasingly in

practice globally1—especially because it permits accommodation of great diversity in

the nature and form of power structures. Yet, in real life, its practice is plagued by

excessive conceptual diversity and the lack of a commonly-accepted, widely-applicable

framework. Consequently, the nations adopting or practicing this form of government

suffer confusion and a lack of practical guidelines. It is time for a qualitative shift in the

studies of federalism: from those that merely describe it or note its defining features to

those that consciously aid its practice and development, thus from first generation

studies (that recount characteristics of federalism) to second generation ones that

promote practice.

It is imperative to go beyond postulating the minimal defining characteristics of

federalism and identify features that must be promoted consciously for its smooth

working. Accordingly, adopting a pragmatic—rather than a narrow, dogmatic—

approach, this study draws on theoretical and empirical knowledge to identify certain

important features that are essential for achieving smooth federal functioning, i.e. with

efficiency and effectiveness, speedy and effective conflict resolution, etc. These

Essential Features of Federalism (EFF) must not be confused with the necessary or

sufficient conditions. These are the features that must be promoted zealously to realize

the full potential of this form of governance, consciously recognizing the inter-sectoral

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and inter-jurisdictional complexities of federal governance. Thus, using an eclectic

framework, building on theoretical knowledge and practical experience of countries, we

identify five essential features of federalism:

(1) Constitution and its amendment

(2) Multiple, independent governments

(3) Empowerment (including decentralization and sharing of powers)

(4) Conflict resolution mechanisms

(5) Partnership and cooperation.

Admittedly, the existence of multiple governments, functioning independently

within their own jurisdictions is the hallmark of federalism. A constitution embodying

the key points of the covenant and an independent judiciary to interpret, arbitrate, and

enforce it is another. Decentralization of powers and empowerment of sub-national

governments to an extent that gives real meaning to their independence lies at the very

heart of a genuine federal design. In order for decentralization to not degenerate into

disintegration or fragmentation of governance, the division of powers must take the

form of a creatively shared endeavor aimed at maximizing the synergy of the system.

While competition among multiple governments is to be welcomed, there is also the

need to prevent it from taking the ugly form of destructive conflict between them. Not

only must the scope of conflict among the multiple, independent governments be duly

recognized and provisions made in the constitution (as well as otherwise) for obviating

or resolving them, the need for refining the conflict resolution mechanisms from time to

time in light of experience must also be underlined. Finally, the success of a joint

enterprise like federalism requires the conviction as well as matching conduct inspired

by partnership and cooperation.

1 Reference: We recall Elazar’s statistics that nearly 80% of world’s population lives in federal or near-

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We focus on the policy domain of environmental management for an

examination and justification of this framework. Due to the presence of all three levels

of governments in close proximity thus offering a sharper focus on intergovernmental

relations and due to its being the national stage for interplay of power and politics,

Delhi offers ample scope for examining the contextual significance of these features in

making federalism work. This study of evolving roles and empowerment of the lower

level governments brings forth lessons useful for intergovernmental relations and for

the working of state and local governments in diverse settings. The case proves the

utility of federalism for providing limited, decentralized government with due checks

and balances, for addressing the complexities of inter-jurisdictional and inter-sectoral

dynamics, and for harmonizing the interests of diverse groups of people.

1. Constitution and its Amendment:

For federal systems, the constitution—written and accepted by all participating

entities—is indispensable as the anchor of basic principles and for laying down the

mandate governments are charged with. Theoretical discussions stress different aspects

in asserting the importance of a constitution for a federal system. For some, the

constitution is the bedrock for grounding of federal institutions.2 For others, it codifies

the contract3 between governments, a contract of states. Bryce4 regarded it to be

essential for maintaining the balance of centralizing and divisive forces in federal

federal polities. {Elazar, Daniel J. (1994): Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements, 2nd ed., p.xv (New York: Stockton Press)}. 2 References: Dicey (1914): Law of Constitution (8th edition); Haqqi, S.A.H. (1967) (ed.): Union- State Relations in India. 3 Thimmaiah (1976): Federal Fiscal Systems of Australia and India: A Study in Comparative Relevance (New Delhi: Associated publishing House); Ostrom, Bish, Ostrom (1988): Local Government in the US (SF, California: ICS Press). 4 Reference: Bryce, James (1901): “The Action of Centripetal and Centrifugal Forces on Political Constitutions”, Essay IV, in Bryce, J. (ed.): Studies in History and Jurisprudence, Oxford (Claredon Press), vol. 1, reprint Aalen (Scientia Verlag) 1980, pp.225-311; Blankart, Charles B: “Local Autonomy and Popitz’ Law in Prussia and Germany,” at http://www.publicchoice.org/files/blankart.htm.

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systems. A constitution must not only serve as an anchor for the basic principles chosen

by a nation but it must also allow room for adjustments, keeping pace with the needs of

growing nations and changing times. As the first Prime Minister of the country,

Jawaharlal Nehru, argued in the Constituent Assembly in November of 1948: “In any

event, we could not make this Constitution so rigid that it can not be adapted to

changing conditions. When the world is in turmoil and we are passing through a very

swift period of transition, what may be good today may not be applicable tomorrow.”5

Thomas Jefferson had provided additional reasoning in saying: “Nothing is more likely

than that enumeration of powers is defective. This is the ordinary case of all human

works. Let us then go on perfecting it by adding by way of amendment to the

Constitution those powers which time and trial show are still wanting.”6

Change through the medium of the constitution may take different forms. Some

times changes may be instituted within the given provisions of the constitution. At

other times the constitution itself may need to be amended. A good design would allow

room for both stability and flexibility. In this sense it can be said that while a

constitution must be flexible (allowing amendments), it must guard the basic structure

that a nation has chosen for itself unaltered and hence it must not be fluid. In the past

three cases have been instrumental in showcasing the idea of certain inalienable ‘basic

features’ of the Indian constitution: Minerva Mills v. the Union of India, A 1980 S.C.

1789; Golak Nath v. State of Punjab, A 1967; and Keshavanand v. State of Kerala, A

1973 S.C. 1461 (F.B.). They brought forth the idea that there exist certain ‘basic

features’ of the constitution that cannot be altered in exercising the powers under article

368 on amendment. The word ‘amend’ in article 368, it was clarified, means only

changes other than those altering the very structure of the constitution since altering the

5 As quoted in Sarkar, Subrata (1972): The Center and the States (Calcutta: Academic Publishers), p.4.

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basic structure was tantamount to making a new constitution. Thus, if a constitution

amendment act sought to amend the basic structure or framework of the constitution

then the court was entitled to annul it on the grounds of being ‘ultra vires.’7

India has an extensive constitution constantly in the process of evolution. It has

shown buoyancy with regard to development of federal relations. The constitution has

fared well in strengthening, refining and deepening India’s federalism. It has served as

the foundation for federalism in India—providing at the same time stability as well as

flexibility; flexibility to enable change for strengthening the different elements of

federal relations and for providing smoother working and better intergovernmental

relations. The Indian case presents an impressive case study of the signal contribution

that a written, detailed constitution can make to the evolution of federal institutions.

Both the strength of societal forces and the magnitude of the desired change are

important determinants of this evolution, as illustrated by the moving of environmental

management closer to people in Delhi.

It is first necessary to take note of the provisions in the constitution delineating

the functional domains between the center and the states: Schedule VII of the

constitution sets out three lists of functions earmarked respectively for the Union, the

states and those over which both the states and the Union have concurrent jurisdiction.

Environmental management does not find a place in any of the three lists—indicative,

no doubt, of the lack of attention this subject commanded in the fifties. This unlisted

subject fell in central government’s domain as a result of the residuary powers being

vested in the Union (and not in the states as is the case in USA). The constitutional

changes of the 1970s under Articles 48A and 51A marked nation’s concern for

environment:

6 Thomas Jefferson to Wilson Nicholas (1803) (http://etext.virginia.edu/jefferson/quotations/jeff4.htm).

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– By the 42nd Amendment to the Constitution, Article 48A was inserted in Part IV

which houses the Directive Principles of State Policy, casting a responsibility on the

states to protect the environment and forests. Thus, in 1976 India became one of the

first few nations to add environmental concerns to its Constitution.8

– This same amendment also added another provision Article 51A in Part IVA which

lists Duties of the Citizens laying down that: “It shall be the duty of every citizen of

India … to protect and improve the natural environment including forests, lakes, rivers

and wildlife, and to have compassion for living creatures.”

The center, by exercising its residuary legislative powers9, has created a Central

Pollution Control Board (CPCB) that is responsible for technical supervision of all

pollution control efforts in the country. The CPCB is also directly responsible for

environmental management in the Union Territories. In the states, State Pollution

Control Boards (SPCBs) have been created (under article 258 for delegation) and are

responsible for environmental management in the respective state. However (and this is

another noteworthy aspect of the exercise) the SPCBs have been placed under the

administrative control of the respective state governments. Additionally, though all the

legislation on environment is central, the states have been entrusted with the right to

enforce stricter standards than those prescribed by the center. And the adoption of

stricter standards by a state, keeping in mind its special circumstances, is not an

uncommon practice.10

7 Reference: Introduction to the Constitution of India by Durga Das Basu (18th edition, Reprint 2000) p.158, footnote 7. 8 Reference: Heptullah, Najma (ed.) (1993) Environmental Protection in Developing Countries. (Delhi: Oxford and IBH Publishing Co.). 9 Two specific provisions exist in Indian Constitution with respect to “residuary power of legislation.” Article 248 and Entry 97 of List I (Union List) of VII schedule under Article 246 make explicit provisions for “residuary power of legislation.” 10 In fact, as the states in India are seen sometimes—of their own free will—to enforce more strict standards than the Central legislation demands of them, it in its own small measure belies the “race to the bottom” argument.

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Decentralization and taking governance closer to people were deemed critical to

addressing the intensifying pollution menace in Delhi. A significant change was

required in the organization of the government. In part the fact of a dire environmental

situation in Delhi aided in the smooth transfer of this function to the lower level of

government. A strong popular sentiment (reinforced by judicial whip) has helped

provide an impetus to the working of Delhi Pollution Control Committee (DPCC).

The central government was able to achieve the aims of decentralization and of

creation of DPCC by taking advantage of the authority for delegation of powers and

functions available to it under the original design of the Constitution created in 1951.

The institutional set up for Delhi in this respect is almost the same as of the states even

though Delhi is not a state but a union territory redefined “National Capital Territory”

for its special status after 1992. This difference is underscored by the fact that while the

states have “boards” Delhi has a “committee.” DPCC is a “delegatee” of the central

government: But it is under the administrative control of the state level government in

Delhi, Government of National Capital Territory of Delhi (GNCTD). This gives

GNCTD an “ownership” role over this function. Funds from the budget of Delhi

government are released more willingly, especially given the live concern over

environmental issues in Delhi. As an elected government, GNCTD sees this issue as

being capable of affecting its popularity and hence accords particular attention to this

function.

Evolution of federalism and decentralization in environmental management has

grown out of administrative execution and experience. Though environmental

management fell in central domain of functions as a “residuary” item, the function was

taken to a more appropriate level of operations through the creation of SPCBs and very

recently through that of DPCC. As has often happened in several cases in different

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countries,11 the whole exercise of decentralization may have turned out to be a false-

step if DPCC had been placed under the central government directly. The direct control

of GNCTD over the day-to-day working of DPCC and the funding of DPCC from the

budget of GNCTD increase the answerability of DPCC to GNCTD and to Delhi’s

people and their elected representatives.

Thus even in the absence of specific legislation providing for bodies at the level

of the state government (for our purposes for Delhi specifically) to handle

environmental management, things have worked out well under the general provisions

of the constitution. Though important changes had to be made for improvements in

environmental management in Delhi to take place, a constitutional amendment was not

required. It was possible to make major changes within the extant provisions of the

constitution. Given the strong societal forces—marked by growing awareness of the

tremendous deterioration of Delhi’s environment in a conscious public, the government

and an active judiciary—environmental management is being taken to lower levels of

government in Delhi without a constitutional change—but within the existing

provisions of the constitution—at this point.

2. Multiple, Independent Governments:

Federalism, by definition, requires the existence of at least two levels of

government. Independent functioning of multiple governments—central, state, and

local—entails more than mere existence. The governments of the federating units

should not be subservient or subordinate to the Union government, as in a unitary set up

but must have a coordinate position, with both or all of them deriving authority from

the same source, the constitution of the country. Moreover, having distinct functions

11 Ostrom, Schroeder and Wynne (1993): Institutional Incentives and Sustainable Development:

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and resources, access to well defined sources and predictable resources of revenue

(independent fiscal regimes), opportunity to seek justice from independent adjudicators

in case of conflict (independent referral system) go a long way in assuring

independence. Datta advances the discussion on empowered sub-national levels in

arguing that in addition to constitutional guarantee to exist (independent status) a

formal divisions of subjects or powers (coordinate status) is also necessary.12

Theoretical constructs—like Cohen and Peterson’s “Institutional Pluralism,” and

Lowry’s “Vertical and Horizontal dimensions”—are drawn upon to gauge the

development of this feature of federal systems in Delhi’s environmental management.

In environmental federalism, the desire to tailor provision to local needs has led

to the involvement of sub-national government, gradually moving away from

centralized provision in Delhi. The DPCC has been made responsible for environmental

management in Delhi. Environmental management has residually fallen into the central

government’s list of responsibilities. In actual working environmental management

responsibilities for the states are handled by the respective SPCB and for the Union

Territories by CPCB. Delhi recently got its own pollution control agency for

environmental management— the DPCC. The DPCC is a state-level body and pollution

control responsibilities have thus been moved out of the ambit of a central body and

into the state arena.

Though nowhere near Cohen and Peterson’s construct of “Institutional

Pluralism”13 (which calls for administrative decentralization to the extent of co-opting

the private sector and NGOs for allocation), “plurality of institutions” is occurring

Infrastructure Policies in Perspective (Boulder: Westview Press). 12 For discussion of independent versus coordinate status see: Datta, A. (1996): “Constitutional Strengthening of Local Government in a Third World Federation”, Indian Journal of Public Administration, April-June 1996, Vol. XLII, #2, pp.144-152. 13 Reference: Cohen and Peterson (1999): Administrative Decentralization: Strategies for Developing Countries (Connecticut, USA: Kumarian Press).

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gradually in environmental management in Delhi. First, the creation of DPCC and

transfer of environmental management to state-level government have broken the

monopoly of the center. The entire authority of the NCT government is drawn from a

pure and simple delegation made by the center to the NCT. Earlier, Delhi used to be

treated like any other union territory in that its environmental management was handled

by the union government’s Central Pollution Control Board (CPCB). That approach

failed miserably, leading ultimately to strong interventions by the judiciary. In the

circumstances, the center found it advisable to transfer the responsibility for combating

pollution along with corresponding authority to the government of the city-state. This

was achieved by the creation of the DPCC answerable to the state level government on

the same pattern as in the states, followed by the delegation of all the powers of the

CPCB to the DPCC. Additionally, the DPCC is not financially dependent on the

center—though it does receive some project-based subsidies from the central

government. It relies primarily on its own resources, especially the water-cess. And

ever since environmental management has been moved down to the level of state

government, money is readily available for it from the state budget. DPCC has access

to and it utilizes the agencies of the local government for pollution control efforts. It

issues directions to the local body MCD for implementation of specific programs for

pollution control (e.g.: Setting-up of sewage Treatment Plants for pollution control of

river Yamuna).

Following Lowry14 we can examine the development of environmental

federalism in Delhi in terms of the vertical and horizontal dimensions. Lowry’s vertical

dimension requires the involvement of federal government and its role in coordinating

interstate efforts. In India the central government has been the leading actor in

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environmental activities. It sets the Minimum National Standards (MINAS) for

pollution control that are implemented by the states and must be adhered to. The central

government is also involved through the CPCB in providing technical assistance to the

pollution control boards. In this respect, the position in Delhi closely approximates the

national position as the presence of DPCC takes Delhi closer to the states rather than

the Union Territories without legislatures. Thus the vertical dimension is apparent in

the Indian context to the extent of involvement of both the center and the state

governments. Lowry’s horizontal dimension provides for interstate competition. Delhi

does not present evidence for ‘race to the bottom.’ The city-state has a vivid concern

with environment. In fact, this can be seen to be leading to a redefinition of its

developmental goals. In the 1960s Delhi aimed to adopt the “Japanese model” of

having a small industry in every household, becoming the largest exporter of garments

in India.15 Now with its experience of pollution and health hazards from industries in

residential areas, Delhi has undertaken a major endeavor to relocate industries to

specially designated areas. Also, Delhi has adopted stricter standards than those

mandated nationally or those followed by other areas. For example, MINAS (Minimum

National Standards) allows power plants to have suspended solids of 100mg but Delhi

has confined it to only 30mg. Or while MINAS restricted pollution from coal-fired

boilers by stipulating an upper limit of 800-1600mg of Particulate Matter, Delhi had

restricted this to 450mg with the intention of finally banning them altogether.16 Given

14 Reference: Lowry, William R. (1992): The Dimensions of Federalism: State Governments and Pollution Control Policies (Durham: Duke University Press). 15 Reference: Experience Sharing Workshop on Review of Structure and Working of the Municipal Corporation of Delhi (New Delhi, India: 16-17 January 2001) {Organized by: Times Research Foundation and Government of National Capital Territory of Delhi}. 16Reference: Vandana Prakash: Combating Environmental Ills: Using Synergy of Citizens, Governmental and Non-Governmental Agencies, Local Environment, Volume 8, Number 3, June 2003.

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the strong concern over environmental issues in today’s Delhi, it is setting for itself

difficult targets even in the absence of interstate competition.

3. Empowerment:

Because of too much centralization of power, there has arisen an almost

singular concern with decentralization to, and empowerment of, sub-national

governments. Empowerment of sub-national levels, however, requires not only

decentralization but also creative sharing of powers. To begin with, mere delegation or

de-concentration falling short of actual transfer or devolution of power to lower levels

does not go far enough by the way of the decentralization necessary for federalism.

Simultaneously, an ideal federal design must ensure that the sharing of powers in the

system is so devised as to lay down the foundations of good governance in that the

responsibilities assigned to each of the players must be discharged at an optimum level

of performance. This calls for a creativity of approach that goes beyond formal, rigid

structures in order to engender and promote flexible, positive and mutually supportive

response by the governments at different levels.

Sharing of powers is integral to federal design—because each level has its own

role and place. In federal systems, even as decentralization of roles, responsibilities,

powers and authority occurs, both centralized and decentralized actions must continue.

Sharing of powers is meaningful only when powers commensurate with responsibilities

are made over to each level. The lower level governments must also have full freedom

of action in their respective spheres, which is not to say that the need for inspection,

monitoring, and even strategic support from the center can be dispensed with. But such

a role of the center should not sap the local initiative nor create crippling dependency at

the sub-national level. Sharing of powers—emphasizing the need to match the nature

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and quantum of power and resources with the responsibility to be discharged—calls for

creativity due to demands of interdependencies and the need for flexibility of approach,

supportive responses, and cooperative attitude. Creative sharing of powers—allowing

for recognition of interdependencies, and cooperative rather than competitive attitudes

by governments at different levels—is also required because of overlaps and

interconnectedness in the functioning of different levels of governments. The key

objective to be focused on must be to help generate the requisite synergy among the

national and sub-national governments. A fine-tuning of relationships in this approach

rules-out domination of the lower by the higher order government while doing away

with deficiencies of central provisioning and promoting citizen participation.

Imperatives of effective implementation and interdependencies of

environmental working in Delhi have led to decentralization of responsibility as well as

authority: It has been duly recognized that Delhi’s pollution menace cannot be tackled

from the center but requires constant and persistent executive action at the local level

and hence the delegation to the state level. This study of environmental management in

Delhi shows how creative sharing of powers and pooling of resources has enabled

better attainment of governance goals. Exigencies of the situation and the spur of

Court’s whip have led to such creative sharing of environmental management

responsibilities that Scheberle’s model17 (developed for the division of responsibilities

in the context of American environmental policy) is being realized in Delhi. That even

major deficiencies in the matter of due transfer of powers can be overcome through

sharing of powers has been demonstrated by the advances being made in the capital city

in environmental management. The criticality of achieving sharing of powers (above

and beyond formal decentralization) is thus revealed by the study of Delhi’s experience

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in empowerment of sub-national governments. It is important, of course, that such

creative sharing of powers is built into the system itself, with the aid of well-designed

institutional mechanisms and appropriate incentives.

Centralization failed to deliver the goods; consequently, decentralization is

being resorted to in response to the ground realities: Decentralization is occurring by

way of Delhi’s environmental management being entrusted to a state-level agency—

having been moved out of the ambit of the union government’s CPCB and

decentralized to DPCC. In fact, an avowed aim of the creation of DPCC was to take

governance in this crucial area closer to the people. But more importantly

decentralization has come about as the center has not tried to remote control the DPCC

but has instead placed it squarely under the administrative control of the state-level

GNCTD. Not only has the function been moved to a level of governance closer to the

people, the lower level government has been charged with full responsibility and armed

with commensurate authority for accomplishing the task. This not only increases the

answerability of the implementers to people’s representatives; it also increases the

involvement and commitment of the state-level government as a consequence of the

task coming directly in their control. This greater commitment is reflected in the

allocation of finances from the state budget for the DPCC even as the central

government continues to bear the cost of salaries of the employees of DPCC amounting

to about Rs. 15 Lac (or Rs. 1.5 million) per annum. But by far the much larger chunk of

the finance comes to the DPCC through an annual grant of about Rs 2 crores (or Rs. 20

million) from the state budget for defraying the expenses on implementing various

schemes and projects of environmental protection and improvement.18 This truly

17 Reference: Scheberle (1997): Federalism and Environmental Policy: Trust and the Policies of Implementation (Washington, DC: Georgetown University Press). 18 Reference: Vandana Prakash: Essential Features of Federalism: A Study of Federal Evolution in India’s Capital Territory. Ph.D. Dissertation, University of Southern California, 2002.

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reflects the sea-change brought about by decentralization in practice, bearing witness to

the commitment of the GNCTD to its new responsibility in the crucial area of

environmental management.

Decentralized working is also manifest in the cooperation of different levels of

government in pollution control. A case in point is the current exercise of closure of

polluting industries in Delhi and their relocation.19 The problem of pollution assumed

such alarming proportions that public-spirited NGOs and individuals sought the

intervention of the Delhi High Court and the Supreme Court of India to coax the

unresponsive, ineffective government into purposive action.20 The Supreme Court (in

1996) directed the removal of industries from non-conforming areas, i.e., areas where

setting up/ running of industries was not permitted under the restrictions imposed in the

Master Plan from Delhi’s (MPD) development. The MPD had been drawn up and

enforced under the Delhi Development Act and thus had a statutory basis. However,

until recently industries were allowed to come up (under political and bureaucratic

patronage) in flagrant violation of the law, thereby giving the adversely affected

citizens a cause to invoke the writ of the higher judiciary. The Courts took a serious

view of the matter and started issuing stern directives. Non-compliance with judicial

directives brought with it the hazard of severe penalties to the extent of imprisonment

being inflicted under contempt of court proceedings. Judicial activism persisted leading

to the coming into existence of a unique sharing of powers between the center and the

19 See: “Cell created to oversee moving industries from residential areas” The Hindustan Times (New Delhi), September 20, 2000 (http://www.hindustantimes.com). 20 The following report (“Jagmohan lashes out at Delhi Govt, MCD”) in The Hindustan Times of September 20, 2000 is noteworthy in this regard: “At a Press conference held here today, Mr. Jagmohan said that the Supreme Court judgment dated September 12 had clearly indicted the Delhi Government and the Municipal Corporation of Delhi for making no effort to implement the court’s orders and maintaining rule of law. The court had, in fact, observed that there had been a systematic effort to see to it that the court’s orders were not implemented and somehow in situ regularization of polluting industries was effected and wrong doers not punished, the Minister said.” (http://www.hindustantimes.com).

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sub-national government, the GNCTD.21 Following Supreme Court’s specific

directions, the Union Urban Development Ministry was appointed as the “nodal”

agency and its Minister charged with coordinating the efforts for closure of industries.

In actual practice the Minster has to rely on the state-level officials for the grass-roots

enforcement; physical implementation of the orders to seal or close-down the offending

industries being carried out by the Additional District Magistrates (ADMs) of Delhi

government working under the Deputy Commissioners (DCs). As the implementation

of the directives of the Supreme Court had to take the form of a campaign, the newly

established District Administration of Delhi headed by the Deputy Commissioners

came into its own as the implementing arm of GNCTD for identifying and sealing-off

the polluting industrial units. The Industries Department of the GNCTD and the public

sector undertaking under it, the Delhi State Industrial Development Corporation

(DSIDC), were rescued from the stifling restrictions placed on them by the political

bosses, formally and informally, in order to protect the industries that had been

allowed, in the first place, to come up with their blessings in violation of the laws.

Their plans for developing vast stretches of land at the periphery of the NCT for

shifting the offending units in a planned way had been shelved or their implementation

retarded due to such motivated interference. The GNCTD under the leadership of its

top bureaucrat, the Chief Secretary, was charged with the responsibility of ensuring the

closure or shifting of offending units within the strict time frame laid down by the

court. The unique authority acquired by the Chief Secretary enabled him to involve the

municipal bureaucracy into the implementation process—through the MCD

Commissioner who (along with the Chief Secretary) had also been at the receiving end

of the Supreme Court’s notice for initiation of contempt action—thereby ruling out any

21 See report of September 20, 2000 titled “Cell created to oversee moving industries from residential

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effective interference from the political executive of the MCD. Although legally under

the MCD Act the entire executive power vests in the Commissioner yet in practice it is

bent to the political will in diverse ways. But in this case that too was checkmated.22

This had two salutary effects. First, a real sharing of powers between the center and the

state level government was engendered a la Scheberle—the center came to be the

guiding and monitoring authority with the state being left to take care of front line

delivery of anti-pollution measures. Secondly, the usual frustration of political

interference in plain and simple executive action was effectively forestalled on pain of

the penal consequences of contempt of the Supreme Court. Politicians, who were

clearly on the side of the industrialists rather than that of the long-suffering citizens, did

not of course give up without a fight.23 As it happened all seven Members of

Parliament from Delhi (the Lok Sabha, i.e., the House of Representatives) including the

Urban Development Minister belonged to the BJP, the ruling party at the center. Since

the GNCTD was in the control of the rival Congress Party, six of the MPs, leaving out

areas” in The Hindustan Times, New Delhi (http://www.hindustantimes.com). 22 All that the deliberative wing (the elected house) could do was to call an emergency meeting of the Municipal Corporation of Delhi to discuss the issue of shifting of polluting industries from the non-conforming and residential areas to the conforming areas and to blame “the Municipal Commissioner for taking hasty decision to seal the industrial units.” Note that the blame is for acting hastily and no direction is given to act to withdraw or frustrate the ongoing action. “Later a resolution passed by the leader of the House said that non-polluting industrial units would not be sealed till alternative site for relocation was allotted to the owners of such units. It was also resolved that the definition of small-scale industries as suggested by the Jagdish Sagar Committee be accepted and enforced.” Thus action against polluting units was excluded from the ambit of the resolution. {“Commissioner blamed for hasty decision,” The Hindustan Times, dated November 21, 2000 (http://www.hindustantimes.com)}. 23 Delhi politicians approached their party’s top brass at the center to argue against the relocation of industries and also the Master Plan: “Mr. M.L.Khurana, former Chief Minister of Delhi and now national vice-president of the Bhartiya Janta Party in power in the center, told news-persons that in the last two months he had met both Prime Minister Atal Behari Vajpayee and Home Minister L.K. Advani separately several times to highlight the plight of the owners and workers of the industrial units in the non-conforming areas in the Capital. The BJP leader said that he had clearly pointed out to them the need for a change in the Master Plan and relocation of industries to developed site. Sealing of units apart from affecting their owners would leave their workforce jobless. Mr. Khurana said that Mr. Advani had told him that he (Union Urban Development Minister Jagmohan) did not listen to him. ‘I have also written to Mr. Vajpayee several times, the last letter dated Jan 4. In it I have told him that he is the court of last resort to me and how deeply anguished I feel about the industries issue.’ When asked about Mr. Vajpayee’s response, Mr. Khurana said that he would speak on the matter after a few days.” {Reference: “Industries Issue: Adamant Khurana to go on fast,” The Hindustan Times, January 18, 2001 (http://www.hindustantimes.com)}.

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the Minister, approached the higher level of the central government on the plea of

policy review, going right up to the level of the Prime Minister of India in order to

frustrate the ongoing executive action—but to no avail.24 Going beyond party-politics,

the Prime Minister (heeding his own better judgment and also perhaps the advice of his

Urban Development Minister) simply refused to oblige.25

Thus, a unique sharing of powers effectively came into operation involving all

three layers of government, enabling each one to play their role and discharge their

responsibility in a purposeful manner. The impact of the judicially enforced working

relationship—of shared concern with coordinated and joint action—was remarkable

and was widely welcomed by the adversely affected citizenry: The sealing of polluting

industries went apace comprehensively. The Delhi case illustrates the indispensable

role that purposeful power sharing can play in fulfillment of the promise of federal

governance and presents a convincing argument for incorporating into a successful

federal design the structures and conditions that would make it happen in routine.

4. Conflict Resolution Mechanisms:

It must be recognized that conflict is inevitable and conflict resolution

mechanisms are indispensable for federalism. Given the vast variety of conflicts and

given basic differences in the kinds of conflicts, a number of different mechanisms—

like mediation, adjudication, arbitration, etc.—need to be relied upon for its resolution.

Delhi’s environmental federalism is currently witnessing conflict between

different levels of government and—unusually—even between the branches of

governments. We find that in the system an overwhelming reliance is placed on the

24 See: “Successive Govts. to Blame: Jagmohan” in The Hindustan Times, Tuesday, November 21, 2000, New Delhi (http://www.hindustantimes.com). 25 See: “Industries Issue: Adamant Khurana to go on fast” in The Hindustan Times, January 18, 2001, New Delhi (http://www.hindustantimes.com).

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Supreme Court for adjudication. As questions are raised about its decisions—the

viability26 of the Supreme Court decisions is being questioned and the competence 27 of

the Court in certain issues is being doubted—the need for establishing other conflict

resolution mechanisms is underlined.

The ‘Maili Yamuna’ case and Delhi’s debate on converting diesel buses to

Compressed Natural Gas (CNG) have raised pertinent questions for federalism,

highlighting the importance of conflict resolution mechanisms given inter-jurisdictional

and inter-sectoral conflicts between levels and branches of governments. While the

state level government blamed the judiciary for an impractical verdict and the center for

lack of infrastructural development at the new location, the center blamed the state and

local governments for ignoring the judicial verdict by continuing to regularize the

polluting industries.28 Inter-jurisdictional crossfire was also seen in the CNG crisis: not

only in the conflict between the Delhi government and the Supreme Court but also in

the conflict between the two governments—at the central and the state levels—with

each holding the other responsible for crisis. As we discuss below, while the center

blamed the GNCTD for non-implementation of the court’s verdict, the GNCTD in its

turn blamed the center for the shortage of CNG.29 {En passant, similar concerns can

also be seen in the Relocation of Industries case that we discuss in the following

section}.

A major challenge of environmental management that became a hotly debated

public issue was vehicular pollution, especially from buses, three-wheeler scooters, old

26 For example, in the recent CNG debate (which we discuss in detail further in this section), the state government has accused the Supreme Court of being blind to the ground level realities and to implementation problems in pronouncing its judgments. {Reference: “Executive versus Judiciary: Fueling Contempt” (India Today on the Net, April 16, 2001 Issue, Home, Environment: Clean Delhi)}. 27 The Court’s technical competence is being questioned for deciding to convert all public transport from diesel to CNG. {Reference: “Executive versus Judiciary: Fueling Contempt” (India Today on the Net, April 16, 2001 Issue, Home, Environment: Clean Delhi)}. 28 Reference: “Jagmohan lashes out at Delhi Govt, MCD” in The Hindustan Times (New Delhi), September 20, 2000 (http://www.hindustantimes.com).

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vehicles, etc. The enormity of the vehicular pollution problem can be understood from

the fact that around two-thirds of air pollution in the city arises from this single source.

To address this problem, the measures applicable to petrol-driven vehicles, like use of

lead-free petrol, retiring of old vehicles and enforcement of stringent emission control

standards could be introduced with relative ease. However diesel vehicles (three-

wheelers and buses) posed a serious challenge: both due to the high sulfur content in

diesel as well as due to their important role in public transport in Delhi. Following an

expert committee set up by the court, it was ordered that diesel be replaced by CNG in

all three-wheeler auto-rickshaws (all privately owned) and in buses, both privately

operated and those run by the GNCTD’s Delhi Transport Undertaking. The NCT

government of Delhi and the Supreme Court of India—two unlikely rivals given their

very different positions, functions and roles in the nation—came into direct conflict

over the CNG issue. While the NCT government accused the Court of being insensitive

to the needs of the people of Delhi and of ignoring the ground realities, the Supreme

Court labeled the Delhi government’s deviation from its instructions as “an attack on

the judiciary.”30 To begin with, the Delhi government had failed to adhere to the March

31st, 2001 deadline set by the Court for conversion of diesel buses to CNG (as directed

in 1998 CNG verdict). On its own side the Court was unrelenting and did not extend

the deadline causing the public transportation system of Delhi to come to a halt in the

beginning of that April. In response to the severe effect of this on the lives of Delhiites,

the Delhi government permitted buses with conversion bookings—though not having

29 Also see footnotes 26 and 27 above. 30 Chief Justice A.S. Anand as quoted in “Executive versus Judiciary: Fuelling Contempt” (India Today on the Net, April 16, 2001 Issue, Home, Environment: Clean Delhi).

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been actually converted as yet—on the roads. Thus, in some measure, it defied the

Court31 (but it subsequently apologized for this transgression32).

The CNG debate points to the need for institutionalized mechanisms to address

conflicts in governance. It also represents an unmitigated failure of governmental

functioning due to the triumph of conflict over cooperation, thus underscoring the need

for effective conflict resolution mechanisms. The center blamed the GNCTD’s lack of

will for its failure to implement the Supreme Court’s orders. On its side, the NCT

government of Delhi has blamed the center (particularly the Union Petroleum Ministry

responsible for the procurement and distribution) for the CNG supply crises, accusing it

of not providing the requisite infrastructural support.33

The case of “Maili Yamuna” illustrates amply the scope for intergovernmental

conflict in federalism. The path of river Yamuna falls in three states—Delhi, Haryana

and UP. The issue of handling pollution of the river was buried under buck-passing not

only between these three governments but also between the agencies of different

governments in Delhi. Commenting on this sad state of affairs, the concerned Supreme

Court bench noted: “It appears to us that with the existence of numerous agencies in

Delhi, no single entity can be held responsible for cleaning-up the river.”34 In this case

the Court was able to resolve the matters.35 It held the GNCTD responsible for cleaning

the river, setting a 2003 deadline for the task. Additionally, it directed the other two

31 See: “Executive versus Judiciary: Fuelling Contempt” in India Today on the Net, April 16, 2001 Issue, Home, Environment: Clean Delhi. 32 See: “Green and Bear It” in India Today on the Net, April 16, 2001 Issue, Home, Environment: Clean Delhi. 33 See: “BJP, Congress trade charges on CNG issue” in The Times of India, Wednesday, September 26, 2001, Cities: Delhi (http:// www.timesofindia.com/). 34 As quoted from the judgment of the Supreme Court bench (comprised of Justices B.N. Kirpal, Ruma Pal and Brijesh Kumar) in “SC gives Delhi two years to clean up Yamuna” in The Hindustan Times, Wednesday, April 11, 2001, New Delhi ((http://www.hindustantimes.com). 35 In different federal systems, courts have played a critical role in intergovernmental conflict resolution: Kearney highlights the important role that courts have played in environmental federalism in USA. {Reference: Kearney, Richard C.: “ Low-level Radioactive Waste Management: Environmental Policy, Federalism and ‘New York’” (Publius: The Journal of Federalism, 23, Summer 1993)}.

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state governments (UP and Haryana) to ensure that effluents discharged conform to

prescribed formula and to control pollution of the river.36 It is interesting to note that

the instrument of Public Interest Litigation was useful for the Supreme Court here as it

was able to initiate proceedings of its own accord (“suo motu”) based on a newspaper

report.

Wright37 suggests the importance of recognizing the possibility of conflict

among different government entities. While the need for conflict resolution is obvious

in environmental management in Delhi, neither pre-planned nor mid-course conflict

resolution mechanisms are found to be working; the only institution at work as a

conflict resolution mechanism in environmental management is the portal of last resort,

the Supreme Court of India—possibly this reflects the extent of evolution.

5. Partnership and Cooperation:

Woodrow Wilson advises us to apply our minds to helping the “system within

systems” of federalism in “combining independence with mutual helpfulness.”38

Interdependencies, mutuality of interests, shared and overlapping activities, coordinate

jurisdictions, comparative advantages of different governments, and simultaneous

centralization and decentralization with important roles for both national and sub-

national governments all point to the need for partnership and cooperation. Designing

and employing suitable incentives and disincentives, enactment of appropriate legal and

constitutional provisions, and activist interventions of higher judiciary on behalf of the

36 Reference: “SC gives Delhi two years to clean up Yamuna” in The Hindustan Times, Wednesday, April 11, 2001, New Delhi ((http://www.hindustantimes.com). 37 Reference: Wright (1988): Understanding Intergovernmental Relations (Pacific Grove, California: Brooks/ Cole Publishing Co.) p.459. 38 Reference: Wilson, Woodrow (1887): “The Study of Administration” in B.S. Baker and William E. Dodd (Eds.) (1925): The Public Papers of Woodrow Wilson, Volume 1: College and State: Educational, Literary and Political Papers (1875-1913), pp.130-158 (New York: Harper and Brothers Publishers), p. 157.

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suffering citizenry seem called for to help the partnership and cooperation grow. It

could grow out of volition (arising out of enlightened self-interest) or out of

compulsion (being enforced by higher echelons of government).

Given the importance of partnership and cooperation for federal systems, public

policy must provide incentives for its growth. Incentives must be provided to encourage

otherwise independent governments to come together and cooperate for effective

governance. Disincentives must be generated to discourage governments from

withholding purposeful cooperation or adopting a non-participatory stance or indulging

in bickering and obstructionism in disregard of the larger interest of populations under

their charge. Further research must examine the form, kinds, etc. of incentive

structures.

Environmental management of densely populated Delhi illustrates well the need

for cooperation between the different layers of governments as also the part played by

both volition and compulsion. Delhi’s small, compact area houses not only a large

population and the offices of the national government and its multifarious agencies, it is

also the most important center of small industry and distributive trade for the whole of

northern India. Natural resources available to the city-state therefore need to be tapped,

augmented and preserved by coordinated actions across inter-sectoral and inter-

jurisdictional actors, especially the three governments in Delhi. Examining federalist

governance for environment in Delhi—water pollution, water supply management and

industrial pollution—underscores the importance of our ideas for wider inter-

jurisdictional and inter-sectoral dynamics.

The problem of pollution of river Yamuna arises as about 80% of the water

supplied (plus the rainwater) flows back into the river carrying all the muck and the

filth. Concerted action across a broad front by all three governments is required to

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tackle this menace. Recently, when the three failed to rise to the occasion, the Supreme

Court of India had to act by issuing pointed directives to them to put their act

together.39 The well known Public Interest Litigation (PIL) case, popularly referred to

as the “Maili (dirty) Yamuna” case, saw the highest court directing the installation of

effluent treatment plants in industrial estates, necessitating cooperative action by the

center and the state government, and ordering the setting up of adequate sewage

treatment capacity by the MCD, which again had to take recourse to financial

assistance from the Plan Funds of the NCT government. (The water supply and sewage

disposal activity has also since come under the NCT government).

The management of the scarce water resources poses a particularly daunting

challenge both in procuring raw water supply, its treatment and distribution as well as

in respect of the associated problem of disposal of wastewater. There are heavy

demands of the upstream populations, both for human consumption and irrigation of

croplands, on the water supply in the river Yamuna. So much so that it became

necessary to procure raw water supply from other, distant sources—from river Ganga

in Uttar Pradesh and from a reservoir in the Himalayan foothills in Himachal Pradesh.

To get the two autonomous states to part with a precious resource like water was

beyond the capability of the Delhi Water Supply and Sewage Disposal Undertaking of

the MCD, the authority charged with the responsibility (for entire NCT) of tapping,

treating and supplying water in bulk and for disposal of wastewater. First, it needed the

stature and authority of the central government to secure the raw water supply. Then,

before the MCD could discharge this mandatory responsibility, it had to draw upon the

Plan Funds of the state government as also on assistance from the center to finance the

costly infrastructure development projects of water conveyance from long distances and

39 See: “SC gives Delhi two years to clean up Yamuna” in The Hindustan Times, Wednesday, April 11,

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its treatment. This three-way partnership came about through volition and the

governments cooperated of their own accord because a parched capital-city was simply

inconceivable.

In the matter of combating pollution generated by industrial units, the crucial

need for partnership and cooperation was underlined by the fact that the Supreme Court

had to issue directions to the agencies of all three levels of governments for effective,

concerted action.40 The players were forced to working in a coordinated, collaborative

fashion. And they had to develop a partnership, involving the different levels and

agencies of government: “Acting according to orders from the Supreme Court, Urban

Development Minister Jagmohan today constituted a cell to oversee the task of shifting

industries from the residential areas in Delhi according to the provisions of the Master

Plan. The cell, which will function under the direction of the Urban Development

Minister, has 10 members, including Delhi Government’s Urban Development Minister

A K Walia and Industries Minister Narendra Nath. Among the other members are Delhi

Government's Chief Secretary, a Joint Secretary of the Ministry of Environment and

Forests, the Managing Director of Delhi State Industrial Development Corporation

(DSIDC), the Chairman of Delhi Pollution Control Committee, a senior representative

of Central Pollution Control Board, the MCD Commissioner and the Engineer Member

of Delhi Development Authority (DDA). The Joint Secretary in charge of Delhi affairs

in the Urban Development Ministry will be its member-convenor.”41 The Delhi

Development Authority responsible to the Ministry of Urban Development of the

Government of India was charged with enforcing the provisions of Delhi’s Master Plan

bearing on the location of industries only in designated (“conforming”) areas. The

2001, New Delhi (http://www.hindustantimes.com). 40 Reference: “SC gives four weeks to shut Delhi polluting units” in The Times of India, Friday, 8 December 2000 (http:// www.timesofindia.com/).

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responsibility for creating requisite infrastructure for shifting of industries functioning

in “non-conforming areas” to appropriate sites was to be discharged by GNCTD

through its Department of Industries and the associated public undertakings, the Delhi

State Industrial Development Corporation and the Delhi Finance Corporation. So also

was the drive to shut down the recalcitrant polluting industrial units. As safeguarding of

public health is the responsibility of the municipal government and hence granting of

industrial licenses falls within its purview, MCD was also involved—it was directed to

cancel licenses issued in disregard of zoning provisions of the Master Plan and to

cooperate in sealing/ closure of the offending units.

Cooperative working on the part of different levels of governments in Delhi

goes beyond formal design, reflecting the gravity of problems and the focal attention to

environmental action. In terms of formal design, environmental management is not a

local government function (though proposals envisioning such further decentralization

are under examination). But local government is being involved in environmental

management in Delhi: given the current modes of functioning of DPCC, local

government has already been involved in environmental management in Delhi to the

extent required to invoke municipal laws.

While in the second case (of water supply), the governments chose to cooperate

of their own will, in the latter two cases (Maili Yamuna and Industrial Pollution) the

governments had to cooperate out of compulsion, given the mandate of the Supreme

Court. As federalism in the city-state matures, such active partnership and cooperation

should increasingly become a natural attribute of the system rather than requiring to be

imposed from the outside.

41 “Cell created to oversee moving industries from residential areas,” The Hindustan Times (New Delhi),

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Conclusion:

It is imperative to go beyond postulating the minimal defining characteristics of

federalism and identify features for its smooth working. These EFF must not be

confused with the necessary or sufficient conditions. Accordingly, this study draws on

theoretical and empirical knowledge to identify features that are essential for smooth

federal functioning—with efficiency and effectiveness, speedy and effective conflict

resolution, etc. Indian federation as an evolving system, adapting to the needs of rapidly

changing times, offers a fertile ground for a study of federalism. In particular, Delhi

offers ample scope for examining the contextual significance of these features in

making federalism work. Delhi’s environmental federalism provides rich pre- and post-

comparisons following much change in response to its extreme pollution problem

particularly in the ‘90s. We study environmental management in Delhi to explain,

illustrate, examine and justify these features. Moreover, examining the working of the

three levels of governments and the inter-governmental relations in environmental

management in Delhi provides an important assessment not only of the evolution of

federalism but also of the changes in situation of state and local governments. This

study of evolving roles and empowerment of the lower level governments brings forth

lessons useful for intergovernmental relations and for the working of state and local

governments in diverse settings.

India’s experience has useful lessons to offer for capital cities in particular and

for countries adopting and practicing federalism in general. More broadly, it helps

appreciate inter-jurisdictional and inter-sectoral relationships. Future research can also

establish the utility of these institutions for systems other than the federal ones—for

example, for unitary systems aiming to decentralize. It would be desirable for future

September 20, 2000 (http://www.hindustantimes.com).

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studies to adopt a pragmatic and eclectic—as opposed to a dogmatic and narrow—

approach: We note that it is time for a qualitative shift in the studies of federalism from

those that merely describe it or note its defining features to those that consciously aid

its practice and development. Future work must also continue to draw on experience to

enrich the list of EFF.