The Financial Express (Mumbai, India), June 2, 2007

SPECIAL 'GREEN' COURTS SET UP TO RULE OVER ENVIRONMENTAL DISPUTES

[Rachel's introduction: Under the precautionary principle, the statutory authorities must prevent and attack the causes for environmental degradation where there are threats of irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environment degradation and the 'onus of proof' is on the developer to show that his action is environmentally benign. Then there is the public trust doctrine which rests on the ancient Roman belief that resources like air, sea, water and forests have such a great importance to the people as a whole that it would be unjustified to make them a subject of private ownership.]

By Dewan C. Vohra

Fifth day of June each year is observed as World Environment Day by India, among the comity of nations to renew the pledge that economic development shall follow the environment parameters and regulate human activity within the limits of eco-systems of the planet.

The Indian Government has now come out with the idea of mooting green courts to deal exclusively with the adjudication of the disputes relating to violation of environmental laws. Such Courts were suggested by the Law Commission during 2003 but no action had followed till date. This is a part of a bill finalized by the law ministry on a new scheme under which a national tribunal and regional tribunals will be set up to adjudicate on all cases under all the laws enacted to ensure economic development within the eco-systems, aimed at "a singular regulator for environmental laws so that justice is not delayed".

In terms of a proviso in the proposed enactment, no other court will have the power to have any jurisdiction in matters concerning pollution and environment, though appeals shall lie against the judgments of these tribunals before their Lordships of the Supreme Court, as the tribunals shall have status of High Courts.

The proposed two-tier enactment is based on the recommendations of the Law Commission; while some cases will come directly under the purview of the national tribunals and its various benches, other cases will be entertained by the regional tribunals. A tribunal under the new enactment shall comprise a chairperson from judicial background and members shall consist of experts from different fields like engineering, economics and other social sciences, forestry, physics, chemistry, botany and zoology. The new legislative dispensation when in place, shall result in the repeal of National Environment Tribunal Act, 1995 and National Environment Appellant Authority Act, 1977 under which cases are heard by the High Courts as well as by the subordinate judiciary. But for the last 12 years, the machinery under the Tribunals Act of 1995 is hanging fire because of bureaucratic wrangling over the composition of the Tribunals throwing cases of relief and compensation to the pollution victims in tracks.

However, the new scheme appears to be stillborn because the exclusion of High Courts which are constitutional courts with vast writ powers under Article 226 of the Constitution will not stand the test of judicial review as has been case in Tribunals in other fields. Environment laws are an area in which the Government of India has been indulging in mere platitude because over the past three decades and three years since the first enactment on water prevention and control of pollution in 1974, precious little has been done at the ground level.

Except for the proposed procedure of settling issues, the new scheme, too, seems only a rehash of the existing legislative set up beginning with the Water (Prevention and Control of Pollution) 1974. In the wider legislation titled Environment Protection Act 1986 (29 of 1986), the State was still indulging in pious hopes as amply reflected in the statement of objects and reasons of this enactment as to how the environmental issues were reviewed quarter century ago and the recent history of their implementation is a testimony of the manner how the environmental laws they have been violated without any let or hindrance with total impunity.

The prefatory note to the 1986 Act has said: "Concern over the state of environment has grown, the world over since the sixties, The decline in environmental quality has been evidenced by increasing pollution, loss of vegetable cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threat to the support systems. The world community's resolve to protect and enhance the environmental quality found expression in the United Nations Conference on the Human Environment held in Stockholm in June 1972.

Government of India participated in the Conference and strongly voiced the environmental concerns. While several measues have been taken for environmental protection both before and after the Conference, the need for general legislation further to implement the decisions of the Conference has become increasingly evident..." During the past decade and a half, their Lordships of the Supreme court has in a catena of judgments evolved principles which help in the implementation of environmental laws. Under the precautionary principle, the statutory authorities must prevent and attack the causes for environmental degradationl where there are threats of irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environment degradation and the 'onus of proof' is on the developer to show that his action is environmentally benign.

Then there is the public trust doctrine which rests on the ancient Roman belief that resources like air, sea, water and forests have such a great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The apex Court held that the trusteeship doctrine "enjoins upon the government to protect the resources to the enjoyment of the public."

**The author is a Supreme Court advocate

Copyright 2007: Indian Express Newspapers (Mumbai) Ltd.