With reference to the invitation for suggestions on the Draft Environmental Laws (Amendment) Bill, 2015 by the Ministry of Environment, Forests and Climate Change, ToxicsWatch Alliance (TWA) wishes to make the following submissions:-
1. TWA appreciates the objective with which the Ministry of Environment, Forest and Climate Change has invited public comments on the Draft Environmental Law (Amendment) Bill, 2015. TWA has held for long that environmental laws like National Green Tribunal Act, 2010 needs to be revisited.
2. The aim of the Bill to provide for an “effective deterrent penal provisions and introducing the concept of monetary penalty for violation and contraventions” is step in the right direction. TWA takes note of the proposal to provide detailed “categorizations of violations” and the proposal to frame “rules to minimize the exercise of discretion” in the matter of penalizing the violators.
3. TWA suggests that such categories of violations and penalties must have a scientific basis because adverse environmental impact is all about cumulative impact, disturbance of food chain and habitat. It provides some critical suggestions especially with regard to proposed amendment to the National Green Tribunal Act. It suggests the need for setting up District Environment Courts. Instead of creating new executive adjudicating authority, it seeks strengthening of appellate authority with competent people.
4. The proposed Amendment to the National Green Tribunal Act, 2010 under Chapter III need to be revisited and reframed for a comprehensive overhaul.
5. Under the influence of commercial czars environmental regulation is being framed as an impediment to business enterprises. The fact that degradation of Natural Capital does not make sound business sense because earning profit while depletion of Principal Capital (Amount) happens cannot be deemed sane. The attempts to create political escape routes from the inbuilt design have not worked in the past and it is unlikely to work in the future. In such a backdrop, initiation of legislation for National Green Tribunal Act, 2010 was hardly the right answer. Had it been the so the accountability of those who did not allow National Environment Tribunal Act, 1995 and National Environmental Appellate Authority, 1997 to function must have been fixed and the guilty been brought to book. The lesson is that there is no consequence, if structurally incompatible institutions that are destined to be defunct become so. National Green Tribunal falls in the same category.
6. The National Green Tribunal (NGT) is an institution which demonstrates how ‘institutional judicial independence’ is undermined if Constitutional scheme of the separation of powers is not adhered to. Delivering the 5th V.M. Tarkunde memorial lecture on ‘An Independent Judiciary’ Justice Ruma Pal, former Supreme Court judge asked, “Who do we include within the term “judiciary”? Is it limited to Constitutional Courts or does it also include those tribunals which decide rights and have the trappings of a court?” For instance, all the members including the judicial members remain subject to the administrative and financial control of the Executive. Will it qualify to be deemed part of judiciary? Tribunal has the “trappings of a court”, it is not a Court.
7. The fact is that all the courts in India are specialised judicial bodies, which can get technical bodies of all ilk to help them to adjudicate on environmental disputes and issues. In response to the argument that is advanced in defence of the Tribunals, Justice Ruma Pal observed, “Delay, arrears of cases, specialized knowledge etc. have been usually cited as reasons for the creation of such tribunals” if that is a valid rational then in that case “all courts should have technical members to improve the ‘quality of decision making’. Justice Pal reminds us that “To have technical members (meaning officers of the Executive) on a Tribunal is as repugnant to the independence of the judiciary... A more serious in-road into institutional judicial independence would be hard to find.”
8. Besides how can it be forgotten that ‘Tribunals’ are established under Article 323A or Article 323B of the Constitution, which were inserted in 1976 via the 42nd Constitutional Amendment, which was enacted during the Emergency. The idea of tribunals was to transfer some substantial powers of the Judiciary to these tribunals. In a revenge of sort against High Courts because one of them, the Allahabad High Court had declared Indira Gandhi’s election to the Lok Sabha void on grounds of electoral malpractice on June 12, 1975. These tribunals were exempted from review by High Courts. This excluded the jurisdiction of the courts in respect of the Subjects dealt by Tribunals. It is unfortunate that when the new Government came in it failed to get Articles 323A and 323-B inserted by a totalitarian Government removed from the Constitution. Its removal is an unfinished political task. As things stand as envisaged by Mrs Indira Gandhi, the NGT gives only limited rights of review to the Supreme Court under Article 136 of the Constitution. This was apparently done by Mrs Gandhi because she became allergic to High Courts.
9. Justice Ruma Pal has underlined how increasing tribunalisation as a serious encroachment on the judiciary’s independence. Judicial function is facing consistent mutilation through tribunalisation. Sadly, both the bar and the bench appear structurally complicit in it. The judiciary has been “timorous” in not contesting these tribunals that forces it to share its adjudicating powers with the executive. This is contrary to the Constitutional scheme of the separation of powers between judiciary and the Executive. Her lecture captures the current situation of emergence of collusion, complicity, connivance and incestous institutions in myriad ways.
10. Environmental groups which are either misled in the way ‘ambulance chasers’ were in the aftermath of corporate genocide caused by Union Carbide Corporation or will see merit in approaching any legitimate or illegitimate institution for relief. Their structural compulsion to approach NGT at present does not mean that the question of its legitimacy has been examined and set at rest. Some verdicts of NGT are good for sure. Trains ran on time during Emergency. Does it make it legitimate? The constitutionality of the NGT has been challenged by the Madhya Pradesh Bar Association in the Supreme Court on October 16, 2012. The Hon’ble Court is also yet to pronounce the verdict on the stay imposed by Madras High Court on NGT. It is noteworthy that the Nagpur Bench of the Bombay High Court has stayed the proceedings before the National Green Tribunal on the ground that a Constitutional Court is superior to a Statutory Tribunal. The attached judgment deals with the following question. "As to whether a statutory Tribunal (in the present case, Principal Seat of the National Green Tribunal at Delhi) has a power to pass an order contrary to the orders passed by the Constitutional Court of this country?, and (ii) as to whether in case of the conflicting orders passed by a Constitutional Court and a Statutory Tribunal, the authorities are bound to comply with which order? These are some of the unfortunate and unwarranted questions that we are called upon to answer in the present proceeding". It is noteworthy that the Division Bench of the Madras High Court in Ettikkan in Writ Petition Nos. 7146/14 & others decided on 6.8.2014 had an occasion to consider the issue as to whether in view of the establishment of the learned Green Tribunal the powers of judicial review of High Court under Article 226 are taken away or not. Relying on the verdict of Constitution Bench consisting of Hon'ble Seven Judges in the case of L.CHANDRA KUMAR vs. UNION OF INDIA AND OTHERS reported in (1997) 3 SCC 261 the Division Bench of Madras High Court holds that when the Apex Court, even in spite of specific provision in a statute under Section 28 of the Administrative Tribunals Act, excluding judicial review, holds that the power of judicial review could not be taken away, there was no question of by any implication the powers of judicial review in the matters for which the learned Green Tribunal was established could be taken away. It is of seminal importance that Nagpur Bench of Bombay High Court has stated in its order, “We are in respectful agreement with the view taken by the Division Bench of the Madras High Court” in this regard.
11. No Government agency ever questions a judicial institution even when they are rebuked and fined. Judicial efficiency is needed but the efficiency of Tribunals does not appear to be the answer. Ongoing tribunalisation merits rigorous attention of all sections of defenders of democracy. The debate on the constitutionality of Tribunals has not been set to rest as yet.
12. While all the ministries, public sector, private sector and citizens sector are contributing to environmental destruction and pollution, a structurally weak Ministry of Environment & Forests under a junior ministry is expected to regulate, minimize and undo the damage. This is a Herculean task and even its critics will agree that the ministry does not have the capacity, competence and resources to undertake this task. It is not surprising that it has consistently failed. In order to change the status quo, like 1995 Tribunal and 1997 Appellate Authority, NGT too should be given a decent burial.
13. Like the Hon’ble Supreme Court, the 17th Law Commission of India specifically refers to the Constitutional provision for ‘additional courts’ under Article 247 under the jurisdiction of High Courts and not to ‘tribunals’. It is a fact that “The Supreme Court in a number of cases (like AP Pollution vs Nayudu decided decided on December 1st, 2000) highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialized environmental court.” NGT is not in compliance with Hon’ble Court’s direction seeking setting up of “a specialized environmental court.”
14. The proponent and beneficiaries of NGT will have us to believe that what 24 High Courts, over 600 District Courts and thousands of magistrates in remote parts of the country could not do, NGT that was notified on October 18, 2010 with its five benches can do it. Only the gullible will believe it. The NGT Act has taken environmental justice farther from the aggrieved parties and made it still farther by making it costlier. The aggrieved parties from West Bengal, Orissa, Bihar, Jharkhand, States of North Eastern region, Sikkim, Andaman and Nicobar Islands are compelled to travel all the way from their respective homes to Kolkata where the Eastern Bench of the NGT is located. The aggrieved parties from Uttar Pradesh, Uttrakhand, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, and Union Territory of Chandigarh are compelled to travel all the way from their respective homes to come to National Capital Territory of Delhi where Northern Bench of NGT is located. The aggrieved parties from Maharashtra, Gujarat, Goa with Union Territories of Daman and Diu and Dadra and Nagar Haveli are compelled to travel to Pune where Western Bench of NGT is situated. The aggrieved parties from Madhya Pradesh, Rajasthan and Chhattisgarh are compelled to travel to Bhopal where Central Bench is situated. The aggrieved parties from Kerala, Tamil Nadu, Andhra Pradesh, Karnataka, Union Territories of Pondicherry and Lakshadweep are compelled to travel to Chennai where the Southern Bench is situated.
15. In order for the proposed amendments to NGT Act to be comprehensively overhauled, TWA suggests that a new Bill should be drafted proposing “a specialized environmental court” as per the letter and spirit of Hon’ble Supreme Court’s directions. Taking a cue from the Protection of Human Rights Act (PHRA), 1993 and verdict of Madras High Court in the Pazhankudi Makkal Sangam Vs State of Tamil Nadu case decided on 23rd June, 1997, Draft Bill, 2015 should incorporate the provision of District Environment Courts like District Human Rights Courts. One of the objects of the Protection of Human Rights Act as stated in the preamble of the Act is the establishment of human rights courts at district level. Under Section 30 of the Act provides for establishment Human Rights Courts for the purpose of providing speedy trial of offences arising out of violation of human rights. It provides that the state Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Sessions to be a Human Rights Court to try the said offences. The object of establishment of such Courts at district level is to ensure speedy disposal of cases relating to offences arising out of violation of human rights. A similar provision using Section 30 of the PHRA, can be incorporated for the creation of District Environment Courts at the district level that has a great potential for environmental protection and natural resources.
16. On the issue of setting up an Adjudicating Authority mentioned in Chapter II under the heading Amendments to Environment Protection Act, 1986, TWA submits that instead of setting up another executive authority, the Appellate Authority under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 should be strengthened with competent judicial and technical persons and required infrastructure.
Having made the above submissions, TWA submitted that the time period allotted for public comments on the proposed Bill is too short. Therefore, the Draft Bill should be put again in the public domain after revising the current draft in the light of objections, comments and suggestions. The public comment period should not be less than 60 days.