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Decentralising Environmental Justice

Debating the National Green Tribunal

Kaleeswaram Raj (kaleeswaramraj@gmail.com) is a lawyer practicing in the Supreme Court of India and the High Court of Kerala. He has authored ‘The Spirit of Law’ (2012).

Many consider that the National Green Tribunal, a relatively centralised and specialised court, set up in 2011 for “effective and expeditious disposal of cases relating to environmental protection”, is a misfit for a vast country like India, due to its inaccessibility to the majority of people.

The current ecological crisis has given a new shape to class struggle. In addition to workers, dalits and women affected by environmental degradation, another vulnerable group, the  emerging global precariat can be added to the list. This in turn has necessitated a new victimology in the adjudicatory process. Terry Eagleton said in another context:

Court rooms, like novels, blur the distinction between fact and fiction. ….The jury judge not on the facts, but between rival versions of them.  Since postmodernists believe that there are no facts in any case, just interpretations, law courts neatly exemplify their view of the world.1

These observations apply to environmental litigation in India as well. The existing courts have to decide serious issues of survival merely on affidavits, which are only versions and not necessarily reflections of reality. The scientific and technological aspects of ecological litigation often made the conventional “Wednesbury approach” inadequate. The courts had to go beyond “pure reason” and “policy”.

Special Environmental Courts

Special environmental courts were intended to overcome the limits of the traditional judicial approach in deciding environment-related cases. The need for an integrated institutional device in environmental adjudication has been globally accepted. There are 354 specialised courts/tribunals scattered over 41 countries. Between 2007-2009 alone, over 130 specialised institutions were established, according to George Pring and Catherine Pring.2 They also visualised “a paradigm shift from a purely legalistic decisional approach to one combining law with a ‘creative problem solving’ approach necessitating new legal thinking and development of new precedents, remedies and options”. The attitudinal change was reflected in international declarations regarding environment. While the Stockholm Declaration (1972) emphasised the principles of conservation, the Rio de Janeiro Declaration (1992) focused on “effective access to judicial and administrative process” in environmental matters.

 In M C Mehta vs Union of India 1986, 3 the Supreme Court called for decentralised environmental courts.  The need for such specialised courts was stressed in Indian Council for Enviro-Legal Action vs Union of India 19964 and A P Pollution Control Board vs MV Nayudu 2001. 5 Following these judgments, the Law Commission submitted its 186th report in September 2003. In response to this report, which recommended the setting up of environmental courts, the central government passed  the National Green Tribunal (NGT) Act, 2010. As mandated by the Act, the National Green Tribunal was established on 18 October 2010 for

effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

It was therefore a statutory manifestation of a judicial prescription.

Flaws in the Law Commission Report

Judicial activism, however, need not necessarily lead to a fault-free legislation.  An unimaginative statute may come into being for various reasons. The Law Commission report6 had its limitations, as abundantly reflected in the NGT Act. That in turn had the effect of undermining the  rights of people. Earlier various individuals and NGOs, through private and social action litigations, were able to assert their fundamental rights in the ecological context by moving the high court of a state in which they resided. The environmental litigation was therefore also a public affair. The Law Commission, while pleading for a common specialised court for the entire country, did not examine the merits of the existing decentralised system. 

The mechanical reference to environmental courts in other countries in Chapter IV of the Law Commission report does not carry a realistic and comparative analysis. While laying emphasis on the technical and scientific components in environmental litigation, the report failed to acknowledge  people’s demands in a federal system comprising 29 states and 24 high courts. Though Chapter II of the report talks about the need for establishment of environmental courts in each state, this recommendation  is not insisted upon in the concluding section of the report.

While taking away the jurisdiction of the high courts and civil courts in environmental matters, it was obligatory to ensure better institutional access. Access to justice is a constitutional promise as indicated by the Supreme Court in Salem Bar Association, Tamil Nadu v. Union of India (AIR 2005).7 Lord Woolf visualised a specialised court as a “multi-faceted and multi skilled body” acting as a “one stop shop” without compromising the virtues of existing legal devices. The decision to set up specialised environmental courts in India was motivated by green courts like the Land and Environmental Court in New South Wales, Australia and the New Zealand Environment Court. 

However in the process of setting up these specialised courts, we failed to preserve the virtues of the existing system. The NGT has its headquarter in Delhi and four regional benches at Bhopal, Calcutta, Pune and Chennai. It is structurally and functionally inadequate to satisfy  people’s needs in a vast country, that were better met by a well-established network of high courts. Due to lack of access, thousands of grievances related to environmental issues do not reach the adjudicatory mechanism at all. This is an unprecedented situation in the history of environmental justice in the country. This is also antithetical to the concept of “just, quick and cheap” judicial remedy offered by the Land and Environmental Court in New South Wales, Australia.

National Green Tribunal

The National Green Tribunal began  functioning on 4 June 2011. According to World Wildlife Fund, 35 cases were decided by the NGT in 2011 and 91 in 2012. In 2013, the NGT disposed of 154 cases. This is only a small fraction of the volume that would have been otherwise decided by the high courts in the country by conventional means. Section 29 of the NGT Act also prohibits the civil courts in the country  from exercising original or appellate jurisdiction in environmental matters.  This has led to a jurisdictional alteration at the grass root level. Though one has to acknowledge that the NGT has made certain landmark interventions in a few significant issues, but efficacy of environmental justice system cannot be seen in context of a few macro level sensational cases. Its quality, is rather determined in terms of unknown litigations fought by equally unknown litigants.  

Right from its inception, the NGT Act invited criticism on several counts. The period of limitation for claiming compensation under Sections 14, 15 and 16 is even termed as “arbitrary”. Section 14 of the act is assailed for stating that any matters involving “substantial question relating to environment” would fall under the NGT’s jurisdiction. This jurisdictional dilemma remains unresolved.

Efficiency, cost effectiveness, better people’s participation and confidence, scientific and judicious prioritsation of issues, possibility for adoption of devices of alternate dispute resolution and inter-disciplinary approach are some of the proclaimed advantages of specialised environmental courts elsewhere in the world. However, due to geographic and structural limitations, perpetuated by political apathy, the NGT has been struggling. A relatively centralised and  specialised court is a misfit for a vast country, due to its inaccessibility to majority of people.

Clarifications needed

There is a need to clarify that mere involvement of environmental issues need not necessarily lead to transfer of cases from the high courts to the NGT. Nor should there be an embargo in moving the high court in such matters. “Substantial involvement of environmental issues” needs a pragmatic and realistic interpretation.

Even otherwise, the reasoning proposed in the celebrated decision in L Chandrakumar vs Union of India (AIR 1997)8 is capable of resolving the issue, provided the Supreme Court clarifies the law and the high courts assimilate its logic. 

In the Chandrakumar case, the constitutional validity of provisions under Articles 323A and 323B of the Constitution, which exclude the jurisdiction of “all courts except the Supreme Court”, was discussed. The Supreme Court held that tribunals are not substitutes for the high courts, and they can carry out only a “supplemental, as opposed to substitutional role”, since the “power of the High Courts and Supreme Court to test the Constitutional validity of legislations can never be ousted or excluded”. The tribunals are therefore not vested with the power of judicial review. The Supreme Court also maintained that notwithstanding the establishment of the tribunals, the high courts could continue to review decisions of administrative authorities and tribunals under Articles 226 and 227 of the Constitution.  Therefore decisions of the government or authorities like the Pollution Control Board, Tribunal for Local Self Institution etc, can be subjected to judicial review by the high courts, even after establishment of the NGT.

In the Indian legal context, the high courts are more significant by virtue of their power of judicial review.  In the words of the Supreme Court, they “possessed of a hoary past enabling them to win the confidence of the people” and this “promoted the framers of our constitution to vest (such) constitutional jurisdiction in them”. Such power of the high court is part of the “basic structure” that cannot be altered or sacrificed.  

The NGT, however takes away the jurisdiction of the high court by following the doctrine of “efficacious alternate” remedy. However, in the absence of an express bar, by adopting the reasoning put forward in the Chandrakumar case, the power of judicial review of the high courts cannot be disarmed even in environmental cases. There would be hundreds of cases that could be decided on the basis of affidavits by exercising the power of judicial review.

 The high courts can also call for an expert opinion, if required. The requirement in Section 14 of the NGT Act—“substantial question relating to environment”—should be taken to mean those cases that involve considerable scientific/technical examination or collection of evidence or spot visit. The high courts may refer only such matters to the NGT. Such a system would combine the merits of both conventional judicial review system and specialised tribunals. This would help in effective case management. According to Justice Krishna Iyer, interpretive jurisprudence requires imaginative application of the law. Section 14 of the NGT Act is no exception.

In the Green Lagoon Resort case, 9 the Supreme Court justified the action of the Kerala High Court which “entertained the Writ Petition taking into consideration the large public interest” and held that “the contention that the matter should have been referred to the National Green Tribunal cannot be accepted”. The decision would, however need a clarification and elaboration in legal terms.

Other Limitations

The NGT has adopted the opaque practices of the Indian judiciary in the matter of appointments.  It is high time that the judiciary evolves a system of public notification and an open process of selection and appointment of decision makers. This would ensure equality of opportunity and fair selection. The NGT Act is “cleverly” designed and lays down only the qualifications of the chairman, judicial member and technical member and does not elaborate on the method of their appointment. Section 6 states that the chairperson shall be appointed by the central government in consultation with the Chief Justice and the judicial and technical members will be appointed on the recommendations of the selection committee. Consultation and recommendations need not necessarily lead to a selection of the meritorious.

Travelling courts as found in Brazil or flying judges as found in Australia may not be suitable or even necessary in India. However, India can learn a lot from alternate dispute resolution systems prevailing elsewhere. Referred mediations in Vermont Court, party paid mediations in Netherlands, volunteer mediation in Colorado are fine examples that can be adopted with some modifications. Brazil’s system of environmental prosecutors with vast powers, both in terms of civil and criminal laws, is also an impressive model that could be emulated by the NGT. Assimilation of such systems by the NGT need not undermine the fundamental virtues of a federal Constitution.

Notes

1. Eagleton, Terry (2005): “The ultimate postmodern spectacle”, The Guardian, 25 May.

2. Pring, George (Rock) and Catherine (Kitty) Pring (2009): Greening Justice (The Access Initiative).

3. M C Mehta v. Union of India 1986 (2) SCC 176

4. Indian Council for Enviro-Legal Action v. Union of India 1996(3) SCC 212

5. A P Pollution Control Board v. M.V. Nayudu 2001(2) SCC 62

6. Law Commission of India (2003) 186th Report on Proposal to Constitute Environment Courts

7. Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2005 SC 3353

8. L. Chandrakumar v. Union of India AIR 1997 SC 1125

9. M/s Vaamika Island (Green Lagoon Resort) 2013(8) SCC 760

10. Tempest Williams, Terry - Testimony before the Senate Subcommittee on Forest & Public Lands Management regarding the Utah Public Lands Management Act of 1995. Washington, D.C. July 13, 1995.

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