Wednesday, January 13, 2010

Environment Tribunals in India: From the NEAA to the National Green Tribunal

The Union Government was scheduled to introduce the “National Green Tribunal Bill” in the recently concluded winter session of Parliament. The bill provides for the setting up of the National Green Tribunal and its four regional counterparts, as suggested over the years by the Supreme Court and the Law Commission. The Law Commission Report on “Proposal to Institute New Environmental Courts” can be accessed here. The National Green Tribunal will replace the National Environmental Appellate Authority (NEAA), constituted under the NEAA Act, 1997 and the National Environmental Tribunal to be set up under the National Environment Tribunal Act, enacted by Parliament in 1995, which has never been implemented.

Lawyers and environment groups litigating before the National Environment Appellate Authority routinely describe this body as singularly “environment unfriendly”. Appeals filed before the NEAA are heard by three retired bureaucrats and usually dismissed on technical grounds such as delay in filing appeal. Set up twelve years ago, the NEAA is without a chairperson or vice-chairperson and is understaffed. Former Supreme Court judge, Justice N Venkatachala, was its first chairperson. He retired in 2000 and the post has remained vacant since. The vice-chairperson’s post fell vacant in 2006. In February 2009, the Delhi High Court in a bench headed by Justice Muralidhar imposed a penalty of 20,000 Rs. on the NEAA for its failure to appoint a chairperson and asked it to appoint one by mid May. However, to the best of my knowledge, the authority has still not appointed a chairperson and the strength of the NEAA had dwindled to two members in July, 2009 and apparently one member now. News and magazine coverage of the dismal functioning of the NEAA may be accessed here and here.

The NEAA panel comprises of retired bureaucrats who are greatly reluctant to hold the Ministry of Environment and Forests accountable for giving environmental clearances in violation of the law and established procedures. They are similarly reluctant to set up commissions to investigate petitioners’ allegations regarding violation of existing clearances choosing to accept at face value respondent companies’ assertions that they have complied with the conditions stipulated in the environment and/or forest clearance. The myopic approach of the NEAA can be seen from its judgment and decision in the Mundra port and SEZ case, where the tribunal refused to examine allegations regarding cutting down of mangrove forest land prior to the grant of the forest clearance confining its review to allegations of violations of the clearance based on an extremely narrow and in my opinion legally unsound interpretation of the word “grievance” in section 11 of the NEAA Act.  Of course, the callous indifference of the NEAA is only surpassed by the connivance of the MoEF with companies engaged in violations and their subversion of the clearance procedures. In the circumstances, the fact that the MoEF is repeatedly in the news for granting clearances for projects destroying existing forest cover and endangering wildlife is hardly surprising.

In light of the shortcomings of the NEAA, there is clearly need for a new environment tribunal with enhanced powers. The Parliamentary Standing Committee in its report on the National Green Tribunal bill dated November 24, 2009 notes that “[The] [e]nvironment has assumed immense importance during the last few years not only because of significant climatic changes that have started manifesting in various forms, but also because of ever-sharpening conflict and contradictions between economic development and conservation and protection of environment. Such conflicts have led to a large number of litigation [ ] pending in various courts through out the country.” Given that courts in the country are increasingly burdened with civil and criminal cases, the Bill proposes the setting up of a National Green Tribunal, which shall consist of a full time Chairperson and such other full time Judicial Members and full time expert members as the Central Government may from time to time notify. The expert members shall be experts in physical and life sciences, engineering and include persons having practical knowledge and administrative experience in environmental matters. The Chairperson shall be appointed by the Central Government, in consultation with the Chief Justice of the Supreme Court of India while the judicial members and expert members of the tribunal shall be appointed by the Central Government in the manner prescribed. Unlike the NEAA, the tribunal will hear initial complaints as well as appeals from decisions of authorities under various environmental laws. However, the Tribunal shall hear only ‘substantial questions relating to the environment’. Substantial questions are those which (a) affect the community at large and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.

PRS Legislative Research has published a legislative brief on the bill highlighting its key provisions. The brief also contains a comparison of the powers of the NEAA under the NEAA Act and the National Green Tribunal under the proposed bill. While the National Green Tribunal is a slight improvement on the NEAA in terms of increased powers, including the power to hear initial complaints and appeals, and the power to impose greater penalties for noncompliance, its jurisdiction is limited to violations of particular environmental laws. The list excludes important environmental laws like the Wildlife (Protection) Act, 1972 and the Scheduled Tribes (Recognition of Forest Rights) Act, 2005. In a comparison with environment tribunals in other countries, the brief notes that “other countries give environmental courts [] much wider scope”. The brief also details the Law Commission recommendations that were ignored in drafting the bill.

Armin Rosencranz and Geetanjoy Sahu in a recent article in the EPW have analysed the provisions of the bill noting its benefits as lying in the setting up of regional tribunals (as opposed to one central NEAA) which would enable easier and cheaper access for petitioners as well as stronger powers to punish non compliance. The green tribunals can impose a fine of upto 10 crore Rs. for failure to comply with their directions. However, Rosencranz and Sahu also highlight the costs and risks associated with the proposed bill raising doubts about the efficacy of the bill and the tribunal to help reduce litigation in the environmental field, and to introduce greater uniformity and consistency in judgments in environmental cases. Moreover, while the bill is an improvement over the NEAA in that it allows the national green tribunal to entertain disputes brought within a period of six months from the date when the cause of action first arose as opposed to one month extendable to a period of three months in the discretion of the NEAA, discretion it seldom exercised, Rosencranz and Sahu rightly point out that in many environment law cases, the cause of action may pre-date the consequence by more than six months. They propose that the tribunal should have the discretion to extend time without limitation in the interests of justice.

The Parliamentary Standing Committee Report has also highlighted several flaws in the bill and made some recommendations. PRS has published a one page summary of the Standing Committee Report, which can be accessed here. It is not clear whether the Standing Committee recommendations have been incorporated in the bill so far. One hopes that the next avatar of the bill provides for increased powers, jurisdiction, independence and accessibility of the green tribunals. However, the experience with the NEAA makes clear that a strong legislative framework is a necessary but not sufficient condition for an effective environment tribunal. Executive will to implement the legislative framework and consistency of judicial pronouncements, both severely lacking in the environmental arena are similarly indispensable. 

1 comment:

What's in a name? said...

I have a question around this.
Does this law dilute the ability to prosecute an organization under criminal law for environmental crimes?

Example - if there is contamination of groundwater with hazardous chemicals - should it be treated as a civil or criminal matter and will be addressed by the new authority?

Anand