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Opinion

Access to justice curbed

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Author(s): Sumana Narayanan
Sep 15, 2009 | From the print edition

A bill to create a green tribunal was tabled in the Lok Sabha on July 31. Will it ease the burden of courts like the government claims? Lawyers
and activists Sumana Narayanan spoke to believe the bill in its present form will centralize legal recourse to environmental matters




Down to Earth

Sanjay Parikh,
Advocate, Delhi

The bill talks of the tribunal dealing with "substantial questions relating to environment". This is defined as when there is a direct violation of law
which affects the community at large or causes substantial damage or the damage to public health is broadly measurable. At what point does a
damage become substantial has not been defined clearly. The environment is protected by Article 21 of the Constitution so any violation is
substantial.

The criteria for an expert member seem designed to bring in bureaucrats.The current system already has enough of them. Had they been
competent, the government departments or institutions where they served would have protected the environment.

Finally, the tribunal has a provision to declare a claim untenable and impose a penalty on the person appealing. This will deter concerned citizens
from bringing environmental issues before the tribunal.

This is unnecessary; when granting interim injunction, the court weighs the facts and the law. Only when a prima facie case is
established and balance of convenience and interest of justice is in favour of the applicant that injunction is granted. The applicant cannot be
saddled with the costs.

Down to Earth
Sanjay Upadhyay,
Enviro Legal Defence Fund, Delhi

Before embarking on yet another ambitious green tribunal a scrutiny of why two earlier attempts failed would have been worthwhile. The National
Environment Tribunals were not established even after 14 years of existence purportedly because of its limited mandate. There are numerous
cases which are ongoing that could have been resolved by these tribunals.

The National Environment Appellate Authority (neaa), which has been without a chairperson for eight years, despite
its limited workload, takes on an average five to six months to handle one case.

The bill ignores two key legislations--the Schedule Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 and
Provisions of Panchayats (Extension to Scheduled Areas) Act of 1996.

These legislations are giving rise to numerous conflicts due to competing interests in natural resources. Though two legislations are not under the
environment ministry's jurisdiction, it would be prudent to link such potential conflicts with a national tribunal. Such a green tribunal would impact
most of rural India; it would also open up an easier and cheaper justice dispensation option to the rural poor.

Down to Earth
Gopal Krishna,
Ban Asbestos Network India, Delhi

Such a tribunal is required but its current form has too many loopholes. The penalty for violations is set at Rs 25 crore. That is hardly adequate for
a tragedy like Bhopal that have to be taken into account while fixing damages. Anyone who wants to file an application for compensation with the
tribunal must do so within five years of the environmental damage beginning. This has to be removed; environmental damages occur over the
long term and is not always immediately noticeable or traceable to the source.

The tribunal will also have the power to impose penalties on the complainant if it feels that the complaint was irrelevant or vexatious.
This will discourage people from approaching the tribunal; who knows what they will find vexatious?

Then there is the specific mention of environmental organizations filing complaints. Why only environmental groups? Any organization should have the option of complaining to the tribunal. The tribunal won't look at non-point sources of pollution. Why not?

Down to Earth
Rajeev Dhavan
Advocate, Delhi

The tribunal will deal with "the implementation" of the air, water and biological diversity statutes as also the vast areas of the Environment
Protection Act and the post-Bhopal Public Liability Insurance Act. Some of these have their own mechanisms of enforcement. Appeals are
allowed from statutory authorities to the tribunal. The civil courts which are geographically accessible have a limitation period of three years as
opposed to six to eight months of the green tribunal. No jurisdiction has been fuzzier in its definition. Civil courts have failed because of this
fuzziness.

The tribunal is neither fish nor fowl. It will not help those who will be denied geographic access and be a pain for both complainants and
bureaucrats. The spiral of litigation will remain.

Liability for company heads has been diluted to actual connivance, consent or neglect. Warren Anderson of Union Carbide is out of the shadows
of liability.

Down to Earth
G Mohan Gopal,
Director, National Judicial Academy, Bhopal

This bill, if passed, would limit the recourse available to people. Since all environmental cases will fall under the tribunal's jurisdiction, people will
not be able to approach local courts. I think it is better to make civil courts more effective.

What exactly will the tribunal do? This mix of judicial and non-judicial members will result in a shift in focus from protecting rights to doing a
balancing act; the tribunal will end up deciding how much toxin is acceptable and ignoring whether the rights of communities have been upheld.
Adjudication should be the job of the judiciary.

Down to Earth
Kanchi Kohli,
Kalpavriksh, ngo, Delhi

It is not clear where the tribunal will be located and how many will be set up. If there is only one tribunal, the backlog would be tremendous and
would also mean centralization of appeals.

The bill completely misses non-compliance of environment and forest clearance conditions. At present there is no forum where non-compliance
can be challenged and punished.

While there is a mention of impacts of pollution, it is not linked to the fact that some of that might be due to the complete disregard for clearance
conditions laid out by the environment ministry; their non-compliance makes the clearance liable to be revoked. This is a big gap.

Down to Earth
Madhu Sarin,
Forest rights activist, Chandigarh

The bill focuses on the technical aspects of environment cases in terms of the tribunal's mandate and the qualifications of its members. There is
no mention of the socio-economic aspect of environmental protection. In India most projects are located in tribal and rural areas. So, invariably,
there is a conflict between the livelihood and rights of the community and the access to resources for the project. No environment tribunal can
ignore these factors. It is surprising that the bill has no provision for a sociologist or economist on its panel.

The bill calls for expert members of the tribunal whose qualifications are to be a bureaucrat with so many years of experience.
This is no
different from the current situation--the Central Empowered Committee and the neaa are full of retired
bureaucrats and forest officials. So what then is different about this tribunal? It's just another way for bureaucrats to extend their career. The bill
also says that for one year after their term, members cannot be employed by any company that appeared before them in the tribunal. It should be
at least five years, if not for life.

The bill's definition of who can appeal is bizarre; why list a Hindu undivided family? Are other families not allowed to appeal? And the definition
of a community at large is not given.

Key features of the bill

The environment tribunal will replace the NEAA and the National Environment Tribunals. The latter was never constituted. The tribunal will have
the powers of a civil court. No other civil court will be able to try cases which fall under the tribunal's mandate.

It will adjudicate on matters where there has been substantial environmental damage. This is defined as when someone has violated the law and
this violation has affected the community at large (not an individual or a group of individuals) or the damage is substantial or the damage to public
health is broadly measurable. The damage should be caused by a point source of pollution.

Applications for adjudication of disputes must be filed within six months of the cause of action for the dispute.

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