Report No. 186

Proposal to Constitute Environment Courts

Chapter 1

Introductory

In the Judgment of the Supreme Court of India in A.P. Pollution Control Board vs. M.V. Nayudu: 1999(2) SCC 718, the Court referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as part of the judicial process, after an elaborate discussion of the views of jurists in various countries.

In the subsequent follow-up judgment in A.P. Pollution Control Board vs. M.V. Nayudu: 2001(2) SCC 62, the Supreme Court, referred to the serious differences in the constitution of appellate authorities under plenary as well as delegated legislation (the reference here is to the appellate authorities constituted under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981), and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were manned only by bureaucrats.

These appellate authorities were not having either judicial or environment back-up on the Bench. The Supreme Court opined that the Law Commission could therefore examine the disparities in the constitution of these quasi- judicial bodies and suggest a new scheme so that there could be uniformity in the structure of the quasijudicial bodies which supervise the orders passed by administrative or public authorities, including orders of the Government.

For instance, these 5appellate bodies can examine the correctness of the decision of a pollution control board to grant or refuse a no-objection certificate to an industry in terms of the Water Act. Environmental Courts were advocated in two earlier judgments also. One was M.C. Mehta vs. Union of India: 1986(2) SCC 176 (at page 202) where the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication.

There should be an appeal to the Supreme Court from the decision of the environment court. The other judgment was Indian Council for EnviroLegal Action vs. Union of India, 1996(3) SCC 212, in which the Supreme Court observed (see p. 252) that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner.

We may also state that 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.

In view of the observations of the Supreme Court in the above said judgments, and having regard to the inadequacies of the existing appellate authorities.- which neither contain judges nor have the assistance of expert.- and their limited jurisdiction.- the Commission proposed to review the position with a view to bring uniformity in the constitution of these bodies and the scope of their jurisdiction.

These bodies must, in our view, be called 'Environmental Courts' and should consist of judicial members assisted by technical experts. Our scheme as proposed in Chapter IX is that there should be an Environmental Court in each State (or in some cases for one or more States) which should be able to take on the burden of the environmental cases from the High Courts and at the same time decide these cases with the help of experts. An Environmental Court at the level of each State is proposed so as to be accessible to the litigants in each State.

The said Court must have appellate jurisdiction over the authorities under Water Act, 1974, Air Act, 1981 and the Environment (Protection) Act, 1986. It is proposed that the Environment Court should exercise original as well as appellate jurisdiction. It should be able to grant all orders which a Civil Court could grant, including the grant of 'compensation' as visualized by the National Environmental Tribunal Act, 1995.

The alternative suggestion for having a single appellate Court at Delhi over the statutory authorities has not appealed to us inasmuch as practically no person or groups of persons residing in any local area who are aggrieved by orders of these authorities will be able to come all the way to Delhi to raise their grievances. If the Court is a single Court in Delhi, it will not be accessible and several environmental issues will remain stagnant, may not be pursued and will remain unadjudicated by a Court of law. 7Access to justice, particularly, in matters relating to environment, is an essential facet of Article 21 of the Constitution of India.

The proposals for constitution of Environmental Court is dealt with in detail in Chapter IX. While dealing with this subject of Environmental Courts, which is of great importance for the millions of our country, we have to keep in mind several aspects such as the following:

(a) The uncertainties of scientific conclusions and the need to provide, not only expert advice from the Bar but also a system of independent expert advice to the Bench itself.

(b) The present inadequacy of the knowledge of Judges on the scientific and technical aspects of environmental issues, such as, whether the levels of pollution in a local area are within permissible limits or whether higher standards of permissible limits of pollution require to be set up.

(c) The need to maintain a proper balance between sustainable development and control/regulation of pollution by industries.

(d) The need to strike a balance between closure of polluting industries and reducing or avoiding unemployment or loss of livelihood.

(e) The need to make a final appellate view at the level of each State on decisions regarding 'environmental impact assessment'.

(f) The need to develop a jurisprudence in this branch of law which is also in accord with scientific, technological developments and international treaties, conventions or decisions.

(g) To achieve the objectives of Article 21, 47, 48A and 51A(g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure.

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