The National Green Tribunal Bill, introduced in late July, promises to deal with multidiscipline issues involved in environmental cases. A tribunal is often created to expedite conflict resolution outside the formal court system on specific and specialized issues. The green tribunal Bill, too, seeks to address specific environmental issues and, more importantly, seeks to replace, first, the never constituted National Environmental Tribunals (NET) created under a 1995 Act and, second, the narrow mandate of the National Environmental Appellate Authority (NEAA) Act of 1997. However, the framework for the new tribunal leaves much to be desired both in terms of structure and substance.
Some say that the earlier tribunals were never established because NET had a limited mandate. But that’s too simplistic. There are numerous environmental liability cases, such as gas victims, industrial labourers retrenched due to closure on environmental grounds, disputes on forest, environment and coastal regulation zone clearances which are ongoing and which could potentially be resolved even if the mandate was limited—provided such tribunals were created in the first place. India lost the opportunity of 14 years worth of experience of running such specialized tribunals on the environment. And NEAA, despite its limited workload, takes as long as an average of five-six months to handle one case. The fundamental question therefore is whether it is the tribunal’s limited mandate which was responsible for its institutional failure or whether there were other systemic reasons. Such a rigorous examination is needed before embarking on yet another ambitious green tribunal.
But the proposed green tribunal Bill starts off so flawed that similar problems may arise. First, it limits the jurisdiction to “substantial questions relating to environment” which only includes instances where the community at large is affected or likely to be affected—but excludes individuals or groups of individuals. It is, therefore, unclear whether this law only seeks to promote class actions. If this is the case, such a structure would be undesirable. Environmental impact and conflict need not be only limited to the “community at large” but may also affect groups of individuals and individuals—who deserve as much protection—in equal measure as the “community at large”, which itself is not defined.
Second, only those pieces of legislation under the ministry of environment and forests are the subject matter of the Bill. Two more key laws, the recently enacted Forest Rights Act and tribal self rule law, which are giving rise to numerous conflicts, have been ignored.
Third, the Bill also limits the application for adjudication of a dispute to six months from the date of cause of action. Considering our country’s complexity, this would be unfair—to say the least—for a large number of rural poor can be prevented from approaching such a tribunal on mere technicality. Fourth, the Bill’s provisions for relief, compensation and restitution aren’t great. While the concept of restitution is a positive one, where it is not only the complainant’s loss that is calculated but the violator’s gain that is considered, it is equally important to add the concept of restorative justice in environmental violations. It is the restoration of the original ecological status that is the biggest challenge.
Fifth, the Bill assumes that a number of appellate authorities are functional and active under various environmental laws such as the air, water and the environment protection Act. The truth is that there are no guidelines as to how such appellate authorities function and what administrative mechanisms are available to affected citizens. Unless such administrative mechanisms are put in place in a simple and easy-to-understand format with clear responsibilities, the tribunal may end up being another paper body.
Sanjay Upadhyay is an advocate, Supreme Court of India, and managing partner, Enviro Legal Defence Firm. Your comments are welcome at firstname.lastname@example.org