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A National Green Tribunal that would judge environmental disputes is on the anvil. It would deal with the "substantial questions relating to the environment" and its ambit "shall include an instance where, there is a direct violation of a specific statutory environmental obligation by a person".
Besides the term person as defined in the National Green Tribunal Bill, 2009 is manifestly inadequate because "the community at large other than an individual or group of individuals (which) is affected or likely to be affected by the environmental consequences" alone is deemed eligible to file application of complaints. Such an approach to environmental questions and affected persons is quite parochial.
The bill deals with the eligibility or locus standi of the person to file an application before the tribunal and envisages that "any representative body or organisation functioning in the field of environment, with permission of the tribunal" can file an application for grant of relief or compensation or settlement of dispute to the tribunal. This is very problematic. The locus of an individual or a body of individuals irrespective of the field they are working or living in should be recognized by the tribunal. These could include individuals, group of individuals working in the field of public health, human rights, workers rights, resident welfare associations and others. It is necessary to define the person aggrieved mentioned in the bill. Once environment has been recognised as part of Article 21, issues relating to environment fall in public domain and each and every person has the human duty to protect the environment and a corresponding right to question the adverse impact on environment and human health.
The bill fails to note that if there is a direct violation of a statutory environmental obligation, it becomes a legal wrong and therefore, any individual or group of individual can take action. Otherwise it would mean that though the statutory environmental obligation is violated but still no action can be taken because it has not affected the community at large. There is no tangible method by which the gravity of the damage to environment and public health can be measured in general. The environmental questions cannot be left to the subjective assessment of an individual to judge what is substantial or not. The "environmental consequences" cannot be restricted to either "specific activity or to a point source of pollution" as is being proposed in the bill because non-point source of pollution and a bundle of industrial activities are also a major contributor of pollution load. Therefore, the definition of environmental questions and the aggrieved person must be suitably amended.
This bill was introduced in the Lok Sabha by Environment Minister Jairam Ramesh on July 31 after it got the approval from the cabinet. The ministry had submitted a note for the cabinet on July 17 proposing establishment of the tribunal. It will have the same powers as a civil court. It will subsume various state-level authorities that address environmental issues as well as committees created by the Supreme Court for that purpose.
It provides for the establishment of a tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected with it. A draft of the bill has been around since the year 2006.
The bill comes in response to the 186th report of the Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003 had noted, "the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It appears that since the year 2000, no judicial member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the tribunal under the act is yet to be constituted. Thus, these two tribunals are non-functional and remain only on paper." The bill would replace above mentioned environmental authorities. While it seems to be a step in the right direction, there are valid concerns that would need to be addressed before it is deemed fit for its passage from Parliament as an Act.
Any one who has read the 32-page bill would wonder as to whether the tribunal is meant to be a club of retired IAS officers and technocrats. Even as the bill keeps referring to public health concerns, it neither defines public health nor includes social scientists with specialisation or familiarity with enviro-occupational health aspects. The current composition of the tribunal merits critical scrutiny for it follows a tried, tested and failed track. It has been a constant concern of the Supreme Court, which has been expressed in several orders that an expert body (Tribunal in the present case) should consist of experts in relevant fields and not the bureaucrats. All earlier attempts in handling the environmental problems through Pollution Control Boards/National Environment Appellate Authority etc have failed because their control was given in the hands of bureaucrats or to political appointees.
The bill refers to appointment of an expert member with "administrative experience of 15 years including experience of five years in dealing with environmental matters in the central or state government or in a reputed national or state level institution" should be deleted from the bill. Had people with such experience been eager and willing to act with their competence, the government departments or institutions where they served would have surely been instrumental in protecting the environment, which is clearly not the case. It is their dereliction of duty that has necessitated the creation of yet another tribunal. In fact it is the colossal failure of administrators that has created the compelling logic for the tribunal.
While it is fine to have expert members of technical and scientific background but it has failed to include experts from the field of public health, occupational health, social science with relevant experience.
There is reference to "workman" as defined in the Workmen Compensation Act, it requires to be examined to ensure that the definition is comprehensive enough to include casual workers, daily wage worker, contract worker besides regular workers.
As to the tribunal's jurisdiction, powers and proceedings, a time period of six months is sought to be fixed to ascertain whether or not environmental and public health damage has happened or not. Given the fact that environmental damage is a continuous process, no time period can be fixed when the question is raised with regard to the same because its impact also affects the quality of life under Article 21 or human environment as such as mentioned in the Stockholm Declaration. For example, a lake is destroyed, a pond is filled up or construction is made in the forest area or unacceptable level of blood contamination is noticed, under the stipulated position in the current form of the bill, no challenge can be made after six months. That means the mankind would lose the natural resource forever. Will this position not benefit the violators of environment?
In the bill there is reference to the Environment Protection Act but not to the rules there under. Therefore, the bill should be explicitly mention it and the amendments ought to be made to include rules pertaining to hazardous wastes, hazardous chemicals, hazardous substances, municipal solid waste, biomedical waste, fly ash and radioactive waste.
Surprisingly, the bill stipulates that "No application of grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the tribunal unless it is made within a period of five years from the date on which the cause of such compensation or relief first arose."
The adverse effects of silicosis, asbestosis, radiation exposure, chemical exposure, for instance, takes more than five years to manifest itself. Therefore, the fixed period of five years should be removed.
Dealing with the appellate jurisdiction of the tribunal in the matter of "any person aggrieved" by orders or decisions of the tribunal or the National Biodiversity Authority or State Biodiversity Board, under the stipulated provision of the bill, it provides that the person aggrieved can file an appeal "within a period of 30 days from the date on which the order or decision or direction is communicated to him". The period of filing the appeal should be extended to 60 days. The individuals and others are prevented by unavoidable situations to do so because 30 days is too short a time.
The bill reads: "Where the tribunal holds that that a claim is not maintainable, or false or vexatious, and such claim is disallowed, in whole or in part, the tribunal may, if it so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunction."
This provision is quite discouraging. The courts (tribunal in this case) always have a general right to impose costs. There is no need to include Section 22 (2). This will deter the concerned citizens to bring in environmental issues before the tribunal fearing the imposition of heavy cost in case their claim is disallowed. While granting interim injunction the court/tribunal properly weighs the facts and law and it is only when the prima facie case is established and balance of convenience and the interest of justice is in favour of the applicant that injunction is granted. It is pure and simple judicial discretion, if subsequently, the interim injunction is vacated for whatever reasons, and the applicant cannot be saddled with costs. Of course, the petitions based on concealment of important facts and fraud always stand on a different footing. The court/tribunal has ample power to deal with them even in the absence of Section 22 (2).
The bill seems to confine itself to relatively non-serious offences for it envisages that "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code."
This is insufficient to deal with serious cases of violation such as Bhopal Gas Leak Disaster. Grave offences of this nature must be made cognizable on a complaint.
In the light of the above, the bill merits immediate attention of environmental as well worker groups which it has not received so far. The bill refers to Workmen Compensation Act, Public Liability Insurance Act among other legislations. It would be relevant to read it along with 303 page The Companies Bill, 2009 which has been introduced in the Lok Sabha on August 3.
The National Green Tribunal Bill refers to a company as a person imposes penalty for failure to comply with the orders of the tribunal. Its adequacy must be examined threadbare. In a context where giant corporations are capable of contaminating the entire gene pool, reclaiming land from a living river and causing irreparable damage to public health, the penalty amount of Rs 25 crore for all kinds of companies is quite low.
The bill also deals with the offences by the companies and government departments. The role of companies and government departments and the provisions of penalty for their acts of omission and commission are of huge significance in the era of corporate crimes. But the million dollar question is: Are only monetary penalties sufficient to deter offenders like Warren Anderson and Dow Chemicals for instance, who are linked to the Bhopal disaster? The bill must answer categorically as to whether or not it would be able to stop another industrial disaster. The usefulness of any such bill lies in its affirmative response.