A National Green Tribunal that would judge environmental disputes is on the anvil. It would deal with the "substantial question relating to environment" and its ambit "shall include an instance where, there is a direct violation of a specific statutory environmental obligation by a person". However, the term 'person' seems manifestly inadequate because the National Green Tribunal Bill, 2009 further mentions, "the community at large other than an individual or group of individuals (which) is affected or likely to be affected by the environmental consequences" alone is deemed eligible to file application of complaints. Such an approach to environmental questions and affected persons is quite parochial.
The Bill deals with the eligibility or locus standi of the person to file an application before the Tribunal and envisages that "any representative body or organisation functioning in the field of environment, with permission of the Tribunal" can file an application for grant of relief or compensation or settlement of dispute to the Tribunal. This is very problematic. The locus of an individual or a body of individuals irrespective of the field they are working or living in should be recognized by the Tribunal. These could include individuals, group of individuals working in the field of public health, human rights, workers rights, resident welfare associations and others. It is necessary to define the person aggrieved mentioned in the Bill. Once environment has been recognized as part of Article 21, issues relating to environment fall in public domain and each and every person has the human duty to protect the environment and a corresponding right to question the adverse impact on environment and human health.
The Bill fails to note that if there is a direct violation of a statutory environmental obligation, it becomes a legal wrong and therefore, any individual or group of individuals can take action. Otherwise it would mean that though the statutory environmental obligation is violated, no action can be taken since it has not affected the community at large. There is no tangible method by which the gravity of the damage to environment and public health can be measured in general. The environmental questions cannot be left to the subjective assessment of an individual nor can the "environmental consequences" be restricted to either "specific activity or to a point source of pollution" as is being proposed in the Bill because non-point source of pollution and a bundle of industrial activities are also a major contributor of pollution load. Therefore, the definition of environmental questions and the aggrieved person must be suitably amended.
This Bill was introduced in the Lok Sabha by Jairam Ramesh, Environment Minister on 31st July, 2009 after it got approval from the Cabinet. The Ministry had submitted a note for the Cabinet on 17th July, 09 proposing establishment of the Tribunal. It will have the same powers as a civil court. It will subsume various state-level authorities that address environmental issues as well as committees created by the Supreme Court for the purpose. It provides for the establishment of a Tribunal for the 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 with it. A draft of the Bill has been around since the year 2006.
The Bill comes in response to the 186th Report of Law Commission of India which noted that the existing National Environment Appellate Authority had limited scope of work and remained mostly non-functional; whereas the National Environmental Tribunal Act, 1995 existed only on paper in the absence of any legislation. Thus the introduction of this new Tribunal Bill seems to be a step in the right direction, but there are valid concerns that need to be addressed before it is deemed fit for its passage from the Parliament as an Act.
A detailed reading of the 32-page-Bill makes one wonder whether the Tribunal is meant to be a club of retired bureaucrats and technocrats. While the Bill keeps referring to public health concerns, it neither defines public health nor intends to include social scientists with specialization or familiarity with enviro-occupational health aspects. Current composition of the Tribunal merits critical scrutiny for it follows a tried, tested and failed track. The Supreme Court has expressed in its several orders that an expert body (Tribunal in the present case) should consist of experts from relevant fields and not the bureaucrats. All earlier attempts in handling the environmental problems through Pollution Control Boards/National Environment Appellate Authority, etc have failed primarily because their control was given in the hands of bureaucrats or to political appointees.
The Bill, however, doesn't think beyond 'expertise' of bureaucrats. It defines the expert member as the one with "administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or State Government or in a reputed National or State level institution". Had government officials been eager and willing to act, the departments or institutions where they served would have surely been instrumental in protecting the environment, and there would not have been need of yet another Tribunal. In fact it is the colossal failure of administrators that has created the compelling logic for the Tribunal.
While the Bill mentions about expert members of technical and scientific background, it has failed to include experts from the fields of public health, occupational health and social science.
The Bill makes reference of "workman" as defined in the Workmen Compensation Act. It must be ensured that the definition is comprehensive enough to include casual workers, daily wage workers, contract workers besides regular workers.
As to Tribunal's jurisdiction, powers and proceedings, a time period of six months is sought to be fixed to ascertain if environmental and public health damage has happened. Given the fact that environmental damage is a continuous process, no time period can be fixed because its impact also affects the quality of life under Article 21 or human environment as such, as mentioned in the Stockholm Declaration. For example, if a lake or pond is destroyed, or construction is made in the forest area or unacceptable level of blood contamination is noticed, under the stipulated position in the current form of the Bill, no challenge can be made after six months. That means the mankind would lose the natural resource forever. Will this position not benefit the violators of environment?
The Bill has reference to the Environment Protection Act but not to the rules there under. Therefore, the Bill should explicitly mention it and the amendments ought to be made to include rules pertaining to biomedical and radioactive waste, fly ash, hazardous chemicals, substances and wastes, and municipal solid waste.
Surprisingly, the Bill stipulates that "No application of grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause of such compensation or relief first arose." The adverse effects of silicosis, asbestosis, radiation exposure, chemical exposure, for instance, take many years to manifest and therefore, this limit of five years should be done away with.
Dealing with the appellate jurisdiction of the Tribunal in the matter of "any person aggrieved" by orders or decisions of the Tribunal or National or State Biodiversity Authority/Board, under the stipulated provision of the Bill, it provides that the person aggrieved can file an appeal "within a period of 30 days from the date on which the order or decision or direction is communicated to him". Here, the period of filing the appeal should be extended to 60 days since the 30 days period is too short if there are unavoidable situations.
The Bill reads: "Where the Tribunal holds that a claim is not maintainable, or false or vexatious, and such claim is disallowed, in whole or in part, the Tribunal may, if it so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunction." This provision is quite discouraging. The courts (Tribunal in this case) always have a general right to impose costs. There is no need to include Section 22 (2) in the Bill. This will deter the concerned citizens to bring in environmental issues before the Tribunal fearing the imposition of heavy cost in case their claim is disallowed.
The Bill seems to confine itself to relatively non-serious offences for it envisages that "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code." This is insufficient to deal with serious cases of violation such as Bhopal Gas Leak. Grave offences of this nature must be made cognizable on a complaint. In the light of the above, the Bill merits immediate attention of environmental as well worker groups which it has not received so far.
The Bill deals with the offences by the companies and government departments. The role of companies and government departments and the provisions of penalty for their acts of omission and commission are of huge significance in the era of corporate crimes. The National Green Tribunal Bill imposes penalty for failure to comply with the orders of the Tribunal. Its adequacy must be examined threadbare. In a context where giant corporations are capable of contaminating the entire gene pool, reclaiming land from a living river and causing irreparable damage to public health, the penalty amount of Rs 25 crore for such corporates is quite low.
The million-dollar question is: Are only monetary penalties sufficient to deter offenders like Warren Anderson and Dow Chemicals for instance, who are responsible for Bhopal disaster? The Bill must answer categorically as to whether or not it would be able to stop another industrial disaster. The usefulness of any such Bill lies in its affirmative response.