State of Goa vis-à-vis Concurrent List possesses an indomitable right to legislate under entry 17A and 17B
The matters on which uniformity of legislation throughout the country is desirable but not essential are enumerated in the concurrent list.
The Mhadei waters diversion can be effectively blocked through the legislative route by the State Government of Goa.
The State of Goa vis-à-vis the Concurrent List possesses an indomitable right to legislate upon entry 17A. Forests and entry 17B. Protection of wild animals and birds in order to conserve the indigenous flora and fauna that is endemic to the State.
Relatedly, the State List at entry No. 17 empowers Goa’s Legislative Assembly to enact appropriate legislation to conserve its existing water supplies for purposes of irrigation and also to preserve its canals, drainage and embankments in addition to water storage in so far as the intended legislation does not override the provisions of entry 56 in the Union List.
Resultantly, once the State of Goa resolves to preserve its water resources in order to conserve about 44 species found in Goa that have been assigned International Union for Conservation of Nature (IUCN) statuses, the Wildlife Protection Act would also come into play.
Constitutional Preface:
The 7th Schedule of the Indian Constitution deals with the division of powers between the Union government and State governments.
Article 246 deals with the 7th Schedule of the Indian Constitution.
246. Subject matter of laws made by Parliament and by the Legislatures of States -
(2) Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the Legislature of any State also, shall have power to make laws with respect to any of the matters enumerated in List III.
The division of powers between Union and State is notified through three kinds of the list mentioned in the seventh schedule:
Union List – List I
State List – List II
Concurrent List – List III
The 42nd Amendment Act 1976 shifted below mentioned five subjects from State list to Concurrent List:
- Education
- Forests
- Protection of wild animals and birds
- Weights and measures and
- Administration of justice, constitution and organisation of all courts except the Supreme Court and the High Courts
Basavaraj Somappa Bommai, while commenting on the ongoing attempts by Goa government to halt Karnataka from going ahead with the Mhadei project, remarked that the measures and decisions being taken by the Goa government inside the House would not have any consequence as the Centre has already cleared its DPR relating to Kalsa-Bhandura project.At this stage, it seems necessary to mention, that the entire scheme of distribution of legislative powers under the present Indian Constitution is based on the Government of India Act 1935.
Therefore, the time would be now for the State Legislature to enact appropriate legislation in consonance with entry Nos. 17A and 17B of the concurrent list while in keeping with entry No. 17 of the State List in order to retain the Mhadei waters from being diverted.
Theoretical consideration pertaining to concurrent legislation:
Federalism in the modern age is a principle of reconciliation between two divergent tendencies, the widening range of common interests and the need for local autonomy.
The concurrent powers of legislation under the Constitution. The subject of federalism in any country covers a vast area, embracing legislative, executive and judicial powers, as distributed between the federal union and its units. Distribution of legislative power is only one branch of the subject; and in that branch, the topic of concurrent legislative power is only a sub-branch.
Further, so far as the Concurrent List is concerned, it is desirable to quote what the Joint Committee on Indian Constitutional Reforms said, with reference to the corresponding list, as contemplated in the proposals that led to the Act of 1935 :-
17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.
“Experience has shown, both in India and elsewhere, that there are certain matters which cannot be allocated exclusively either to a central or to a Provincial legislature and for which, though it is often desirable that provincial legislation should make provision, it is equally necessary that the central legislature should also have a legislative jurisdiction enable it, in some cases to secure uniformity in the main principles of law throughout the country, in others, to guide and encourage provincial effort and in others, again, to provide remedies for mischief arising in the provincial sphere, but extending, or liable to extend beyond the boundaries of a single province”.
The concurrent list is a list of 47 subjects on which both the Union and State legislatures enjoy jurisdiction over.
List II—State List
17A. Forests.According to the Record of Proceedings dated: 02.01.2017 before the honourable Supreme Court in Petition(s) for Special Leave to Appeal (C) No(s). 34352-34353/2016, the Order reads:
List III—Concurrent List
17B. Protection of wild animals and birds.
Hence, the claims made by Senior advocate Bhavanishankar Gadnis that Karnataka cannot go ahead with construction work since it has given undertaking to the Supreme Court may not be an accurate interpretation of the Order dated: 02.01.2017.
“After arguing the matter at some length, Mr Fali S Nariman, learned senior counsel appearing for the petitioners, seeks leave to withdraw these special leave petitions reserving liberty for the petitioners-State of Karnataka to approach the Tribunal once again with a fresh application supported by fresh materials, details and data to support their prayer for interim relief. The special leave petitions are accordingly dismissed as withdrawn with the liberty prayed for. Needless to say that all contentions are left open.”
Hence, the claims made by Senior advocate Bhavanishankar Gadnis that Karnataka cannot go ahead with construction work since it has given undertaking to the Supreme Court may not be an accurate interpretation of the Order dated: 02.01.2017.
