To avoid multiplicity of litigations and uncertainty in decision making process, special tribunal to deal with environmental issues is in the pipeline. Advocate Pradeep KP contemplates …
Delayed justice is a matter of great concern in the administration of justice. An inordinate delay in disposal of a case amounts to ultimate denial of justice. In India, there are several reasons to justify the delay in administration of justice, one of them being the corrupt and ill- motivated executive system.
Statistics reveal that government is a major litigant in the country and in 65 per cent of the total cases, government and its instrumentalities are on the opposite side. Another reason is the backlog in courts due to insufficient infrastructure and lack of proper distribution of man and money in running of courts. Large number of vacancies for the post of judges and low rate of judgepopulation ratio are some of the other serious concerns of our judicial system.
The Law Commission of India in its 120th report, as early in 1987, recommended increase in judge’s ratio at 107 judges per million people by the year 2000. The Standing Committee of Parliament in its 85th report suggested increasing the ratio to 50 judges per million. However, as of 2010, we have achieved only 13 judges per one million.
Several solutions are suggested by the luminaries in the fields of law and executive for curbing the problem of mounting of case arrears. Hon’ble Justice BN Agrawal, while delivering an address before the Supreme Court Bar Association in 2007, suggested the introduction of a system of shortening the oral arguments in the court by substituting it with written notes of arguments.
Of course, when the hearing is over in the court room, the burden is on the judge to deliver the judgment and it is his duty to assimilate the written notes for delivering the judgment. There are serious criticisms on the practicability of the suggestion to the effect that without increasing the judges’ ratio, the mounting of cases in the courts cannot be resolved. The written notes will shorten the arguments in the court room, but it will burden the judges in the post-court hours.
Another suggestion is to establish special courts or tribunals in special fields of litigations and fast track courts criminal justice system. Right now, there are special tribunals and courts in resolving disputes in the fields of administrative services, taxation, motor accident claims, debt recovery, family disputes, industrial and labour disputes.
Additionally, as per the recommendations of 11th Finance Commission, Fast Track Courts of Sessions Judges have been introduced, giving special attention to pending criminal cases. These courts have been successful, achieving a large reduction in the pendency of session’s criminal matters.
The foundation for the environmental protection was laid down in 1992, the Earth Summit, where the 178 Governments adopted the Rio- Declaration. In the Conference, Mrs Indira Gandhi, the then Prime Minister observed, ‘While the rich countries may look upon development as the cause of environmental destruction, to us it is one of the primary means of improving the environment’.
Several laws have been enacted for the protection of environment in India. But it is the proactive role played by the Supreme Court, which was doing the work of an environmental tribunal in public interest.
Internationally, around 351 specialised environmental courts and tribunals have been established in 41 countries. Among them the Land and Environment Court of New South Wales in Australia, established in 1980, could possibly be hailed as the model judicial body for dealing with environmental disputes. The Land and Environment Court Act, 1979, vests power in the Court to determine environmental, development, building and planning disputes. It is a superior court of record with six permanent Judges and nine permanent Commissioners who have expertise in one or more of the following areas; administration and local government, environmental or town planning, science or EIA’s, law, architecture or building, or natural resource management. The Court adopts a flexible approach toward procedural matters and interestingly it is not bound by the rules of evidence which significantly complicate most hearings in Australian Courts. Such a composition is necessary and ideal in environmental matters as it integrates the necessary areas of specialisation within a judicial framework, enabling disputes to be resolved as expeditiously as possible.
The judiciary has a role to play in the interpretation, explanation and enforcement of laws and regulations. Increasingly, it is being recognised that a court with special expertise in environmental matters is best placed to play this role in the achievement of ecologically sustainable development.
Philippine Constitution provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” The Chief Justice Puno, Supreme Court, has invented a new form of writ, the Writ of Kalikasan (environmental) as a part of its comprehensive judicial reform program and efforts to strengthen environmental justice. 117 “green” courts were designated in 2008 to resolve some 3,000 cases.
The most affected by the environmental damages are the downtrodden. The indigenous people who live along with the nature do not cause any damage to the environment. They live with the nature. It is the so called development that caused damage to the environment. Now people have started realising the effects of climate change. Natural calamities like Tsunami, cyclones, earth quakes, volcano eruptions etc have started affecting the public. So by providing justice to the nature through green courts the law is reaching out to the common man. The National Green Tribunal has significant role in assuring the justice to common man and the environment.
Ranjith Thamban Addl. Advocate General, Kerala
Kerala, the “Gods own country” is well-known for its lush green natural vegetation, large number of hillocks, deciduous and evergreen forest as well as the lakes, backwaters and rivers. The national forest policy specifically mention “rain forest in Kerala” as the most precious eco-system which shall be protected for the benefit of the entire humanity. The Western Ghats situated in Kerala is one of the six bio diversity hot spots, as identified by the United Nation. There are 41 west flowing rivers in Kerala. Though the State is blessed with abundance of natural resources, scenic beauty, and perfect climate, there has been large-scale unrestricted exploitation of natural resources, principally due to the fact that Kerala is the most densely populated State in the country. Once a water surplus State, Kerala now faces acute droughts. The over-exploitation of natural resources was noticed by the Government and the State and a series of legislation are introduced to regulate and in some cases prohibit excess exploitation of natural resources including land, water, forest etc. The Kerala Forest (Ecologically Fragile Land) Act 2005, Protection of Paddy Fields and Wet Lands Act, 2008, River Bank Protection and Sand Mining Regulation Act etc. are some of the legislation in that direction. There has been flooding up of litigation because of awareness of the people regarding their legal rights. Litigations on environmental matters, at different levels, ultimately reach in the High Court under Article 226 of the Constitution. There are occasions where the different benches of the High Court have expressed divergent opinions on the same environmental aspects. Thus a special bench on environmental matters has a unique role in dispensation of justice in reality.
In the course of a field program of the Hon’ble Judges of the Kerala High Court, at Munnar, the then Chief Justice Hon’ble Justice (Retd.) SR Bannurmath, announced the constitution of Green Bench, on November 1, 2009. With the active support of the Hon’ble Judges of the High Court especially of Hon’ble Justice Kurian Joseph, the High Court started the posting and adjudicating, environment and forest matters in the Green Bench. The Green Bench is functioning on all Fridays with the Chief Justice, presiding over. Since the environment litigation especially Public Interest Litigation, is gathering momentum, there has been a large number of writ petitions posted before the Green Bench, on every Friday. All these matters need meticulous consideration especially in view of the fact that the natural resources and environment are to be held in public trust; it takes sufficiently long time for disposing the environment matters. Hence large number of disposal is not achieved. However, there has been effective intervention by the Green Bench in Kerala in a large number of issues within the shot span of time. Illegal encroachment on precious forest land and other Government lands in Munnar, situated in the Western Ghats has been considered by the Green Bench. In a far reaching judicial pronouncement, the bench alerted the Government regarding the allegations of encroachment of forest land and illegal exploitation of natural resources and natural vegetation in Munnar. This has resulted in the Government as well as the District administration taking steps to prevent such illegality. Such judicial interventions had brought to the public notice, the necessity for protection of environment in the present period of global warming and climate change. Likewise, the Green Bench has effectively interfered in the illegal quarrying activities in the State. Active intervention of the Green Bench, in reprimanding the local self Government authorities for not taking steps for effective management of solid and liquid wastes, is another example.
The Lok Sabha has now passed the National Green Tribunal Act, 2010 (the Act) to constitute a Green Tribunal for dealing with the environment matters. Section 22 of the Act provides that appeal against the orders of the Green Tribunal is maintainable only before the Supreme Court. In the light of the Constitution Bench Judgment in L Chandrakumar vs. Union of India it is not possible to curtail the scope of writ jurisdiction of the High Court. Hence, I am sure that Green Bench in the High Court will be flooded with writ petitions on environmental matters from the orders of the Green Tribunal, even after the introduction of the new Central Act. The purpose of constitution of Green Bench in each high court is to ensure that the litigation regarding environment matters are taken in the right spirit by the Courts and also to ensure uniformity in decisions. It is difficult to constitute a special bench through out the year, every day for exclusively dealing environmental matters. However, it is highly necessary that the Green Bench is constituted in every high court and also in the Supreme Court, as is being done in the Kerala High Court.
Though special benches are being constituted in various high courts for hearing environmental and forest related issues, the idea of ‘Green Bench’ is not a new one. The Law Commission of India in its 124th report recommended for constituting special benches in the high courts for special kinds of litigations.
The Supreme Court in its two landmark judgments, in the year 1996, reminded the high courts the necessity of constituting special benches for environmental issues. On April 16, 1996, the Supreme Court, through the bench comprising Justices Kuldip Singh and S Saghir Ahmed, directed the Chief Justice of the Calcutta High Court to constitute a special Division Bench to hear environment-related cases and thus, the nation’s first ‘Green Bench’ in high court was started in Kolkata. Subsequently, in ‘Madras Tanneries Case’, a three-judge bench of the Supreme Court directed the Madras High court to set up a special ‘Green Bench’ to look specifically into cases related to environment.
‘Green Bench’ is not a ‘Green Court’ or a ‘Green Court’ is not a ‘Green Bench’! There is an apparent distinction in the nature of these two systems of adjudicatory bodies. Green Bench is the specially designated bench of Constitutional Courts, like high courts and Supreme Court, to hear environmental related disputes. Green Courts are established in various countries as per the provisions of special environment related enactments, for instance, Land and Environmental Courts in Australia and Environmental Courts in New Zealand.
In India, there was an initiative to establish the National Environment Tribunal as per the National Environment Tribunal Act, 1995 (the Act). However, the Central government did not notify the Tribunal, even after the lapse of fifteen years of enacting the Act. Although a National Environment Appellate Authority was constituted as per a separate enactment in 1997, there was no reappointment after the expiry of its first authority. Despite the fact that the Ministry of Environment and Forest proposed a National Environment Tribunal Bill in the year 2007, the same was kept in a limbo, in the light of the complaints overlooking authority of the judiciary in the field of environmental related disputes.
The Ministry of Environment and Forest, yet again, came up with the National Green Tribunal Bill, 2009, which was adopted by the Lok Sabha during the last session. As per the Bill, there shall be a National Green Tribunal established in the country, as a special judicial body with experts, exclusively to deal with environmental issues. The Tribunal shall consist of a full time chairperson, full time judicial members and full time expert members. The chairperson shall be appointed by the Central government from the persons, who is or has been the judge of the Supreme Court or the Chief Justice of the high court. The appointment of the chairperson shall be made in consultation with the Chief Justice of India. The judicial members are to be appointed from the present or former judges of high court.
The powers of the Tribunal are very wide and the Tribunal is empowered to deal with all civil cases, where a substantial question relating to environment is involved and the questions arising out of the implementation of statutes like, the Environment (Protection) Act, 1986; the Air (Prevention and Control of Pollution) Act, 1981; Water (Prevention and Control of Pollution) Act, 1974; Water Cess Act, 1977; the Forest (Conservation) Act, 1980; Public Liability Insurance Act, 1991; and the Biological Diversity Act, 2002, are involved.
The Tribunal has its original jurisdiction in environmental matters and has the power to award compensations and to order restitution of properties. In the appellate jurisdiction, challenges can be made against the orders and decisions of the various authorities under the respective Acts, before the Tribunal and the decisions of the Tribunal are final. The civil courts are barred from hearing any disputes, which are to be adjudicated before the Green Tribunal.
While introducing the Bill in the Lok Sabha, proposal was made to make the orders of the Green Tribunal final, and not subject to any appeal. Apparently, the existence of Green Bench in high courts becomes significant, even after the establishment of Green Tribunal. However, in tune with the recommendations of the Parliamentary Committee, changes were made in the Bill and the Bill was passed by the Lok Sabha on April 30, 2010 with such amendments. Now the orders of the Green Tribunal are subject to appeal before the Supreme Court only. Thus the existence of Green Bench in high court becomes illusory or meaningless. It is, therefore, imperative that a Green Bench in the Supreme Court is designated, since the role of the Supreme Court under the Green Tribunal Act is vital.
It is debatable, whether issue relates to violation of fundamental rights in environmental and pollution matters are amendable to the extraordinary jurisdiction of the high courts under article 226 of the Constitution.
Nowadays, high courts are in the course of constituting special benches for hearing environmental matters, akin to a ‘Green Bench’. For the first time, in the judicial history of the nation, in February 2009, the Karnataka High Court announced the constitution of a Green Bench by a notification issued by the Chief Justice of the High Court.
The cases related to grant of lease or licence of mines and minerals, or government, private or forest lands, which are concerned with the protection and improvement of environment and prevention of hazards to human beings, other living species, and have bearing on pollution control are now dealt with by the Green Bench.
During October, 2009, the Kerala High Court announced launching of Green Bench every Fridays for hearing of environmental disputes in a speedy manner. The division bench, headed by the Chief Justice of the High Court, on Friday afternoons sat as the Green Bench to deal with environmental pollution matters, forest matters and land conservation matters. However, since there was no positive response from the litigant’s side and there were no substantial results in the disposal of environmental cases, the Green Bench was also transferred to an adjournment court. Nevertheless, following the Kerala experience in establishing a Green Bench, the Himachal Pradesh High Court also announced its Green Bench in February, 2010.
Critics say that this system does not result in any advantages in speedy disposal of cases. Furthermore, ‘Green Benches’ are lacking ‘Green Judges’. The President of Environmental Division of Supreme Court of Thailand, Hon’ble Justice Sobchock Sukharomna endorses this view and says: “Green Bench needs green judges, who are not only the masters in the environmental laws, but also the persons with understanding of the philosophy of environmentalism and ecologism. They need to have the sensitivity in the environmental justice and injustice.”
India is lacking a Green Legislation, which can act as a substitute for the plethora of existing environmental related legislations. The current environmental related legislations are to some extent overlap and create complexities in law and procedures. It results in multiplicity of litigations and inconsistency and uncertainty in decision makings process. The lawman and also the layman must have a common understanding on the environmental laws. To achieve this, what is needed is a codified Green Legislation, unifying laws on environmental protection, forest and wildlife, mining and protection of river banks and land conservancy.
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