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'Green Tribunal Bill has many flaws'

Sep 02, 2009

India’s National Green Tribunal Bill has evoked much criticism over the issues of accountability, biasness and restricting appeals from rights groups, notes environment and health policy analyst Gopal Krishna. A lot of reform is needed before it is passed by the Parliament, he says.

The National Green Tribunal (NGT) Bill, 2009 that would judge environmental disputes was introduced in the Lok Sabha by Jairam Ramesh, Environment Minister on 31 July, 2009.

The Bill provides "for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources ..." The tribunal 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.

The NGT comes in response to the 186th Report of Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003. This report had noted, "the National Environmental Appellate Authority (NEAA) constituted under the NEAA 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 [Eds: Numerous articles in India Together have reported on the NEAA's dysfunction]. So far as the National Environmental Tribunal (NET) 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 NGT Bill, 2009 is meant to replace NEAA Act of 1997 and NET Act of 1995.

While it seems to be a step in the right direction, the Bill itself includes a number of flawed passages, which would need to be corrected before it is deemed fit for passage from Parliament as an Act.

Broadly, there are four kinds of problems.

Restrictions on who can approach the Tribunal: Judicial and quasi-judicial institutions cannot be strong if only a few people, conveniently selected by the authorities, are allowed to approach them. Moreover, since the courts have recognised that the environment falls within the purview of Article 21, it is clear that all persons have a duty to protect the environment and a corresponding right to question the adverse impact on environment and human health. But the Bill ignores this principle.

Instead, in Section 18 of the Bill, the locus standi of a person to file an application before the Tribunal reads, "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.

"There is no reason why only an environmental organisation can file appeals before the Tribunal"

This is highly problematic. There is no reason why only an environmental organisation can file appeals before the Tribunal. Why not human rights organisations, or public health institutions, labour groups, or even other plaintiffs. And it's laughable that the 'permission of the Tribunal' is needed to file applications before it.

This portion of the Bill should simply be deleted, before it heads inevitably towards a constitutional challenge in the Supreme Court.

Appointment of experts: The intent of most appointed bodies can be judged from its composition, and on that score the Bill fares poorly. The proposed composition of the Tribunal follows a tried, tested and failed track; anyone who has read the 32-page Bill is bound to wonder if the Tribunal is meant to be a club for retired IAS officers and technocrats.

As it stands, the expert members of the Tribunal would need "administrative experience of fifteen 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". This is undisguised code for the 'jobs for the boys' program that nearly all retired senior bureaucrats join.

It has been a constant concern of the Supreme Court, which has been expressed in several orders that an expert body (the 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 the NEAA and other bodies have failed because their control was left in the hands of bureaucrats. Had such appointees been competent, those government departments or institutions where they served would have surely been instrumental in protecting the environment, which is clearly not the case and which had led to the necessity of the Tribunal. In fact it is the colossal failure of administrators that has created the compelling logic for the Tribunal itself.

"It would be infinitely better for the Tribunal's expert members to be of technical and scientific background"

What would be infinitely better is for the Tribunal's expert members to be of technical and scientific background, experts in public health, occupational health, social science with relevant experience in environmental and occupational health, etc. with a minimum experience of 15 years. That would bring forth real experts.

Limiting the period of accountability: Section 14 (3) of Chapter III in the Bill deals with Tribunal's jurisdiction, powers and proceedings. It reads, "No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose".

It is not clear why there should be such a restriction. Disputes can arise at any time, and it is silly to expect that only those that arise in the first six months should be entertained by the Tribunal. The Bill is also silent on where one should take disputes that rise beyond this window of time!

Similarly, Section 15(3) reads, "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 various environmental and public health hazards - silicosis, asbestosis, radiation exposure, chemical exposure, for instance - often take more than five years to manifest themselves.

Therefore, the fixed period of five years should be removed, or, alternately, the Bill should specify who will be liable for adverse effects discovered beyond this time limit.

Section 16 that deals with the appellate jurisdiction of the Tribunal in the matter of "any person aggrieved" by orders or decisions of the Tribunal or National Biodiversity Authority or State Biodiversity Board, under the stipulated provision of the NTG Bill, 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 is too short, and should be extended to 60 days, as often individuals are prevented by unavoidable situations from filing appeals within 30 days.

Implicit threat to petitioners: Section 22(2) of the Bill reads: "Where the Tribunal holds that that a claim is not maintainable, or false or vexatious, ... the Tribunal may ... make an order to award costs, including lost benefits due to any interim injunction." This provision is quite discouraging. In general, the courts (Tribunal in this case) always have a general right to impose costs of trials and others costs upon petitioners or the accused. There is no need to include this explicitly in Section 22(2) .

This will deter concerned citizens from bringing environmental issues before the Tribunal, fearing the imposition of heavy costs in case their claim is disallowed.

"There is much that needs to be revised in the draft before the law is enacted. Whether the Environment Ministry now takes up such reform will be watched keenly"

Moreover, this clause is one-sided; it should be amended, at the very least, to say that costs can be imposed on defendants too, in cases where they are found to have misled the Tribunal through their vexatious actions.

In any event, the correct way to tackle this is for the Tribunal to decide whether, prima facie, the claim made by the petitioner is allowable before it, and also whether any defendants have a fair amount of explaining to do. If that is done, there will be almost no need for imposing any costs of trial and/or punitive costs on either party at the end of the trial.

With all these worries, there is much that needs to be revised in the draft before the law is enacted. Whether the Environment Ministry now takes up such reform will be watched keenly. Many observers have despaired of the Ministry's functioning during the last 10 years, and are hopeful that a new Minister, Jairam Ramesh, will steer a different course than the blatantly pro-industry stances of his immediate predecessors. The final version of the NGT Bill will be an important test of that hope.

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