At a time when the Supreme Court is regularly presiding over environmental disputes raised as public interest litigations (PILs), the quasi-judicial body set up to deal with such cases has received only 32 appeals. Critics see this as deliberate inaction on the part of the 10-year-old National Environment Appellate Authority.
“It has been a decade of deliberate (inaction) by the ministry of environment and forests to ensure that the bureaucracy is not answerable to the judiciary. The low number of appeals is no surprise,” says Leo Saldanha, coordinator, Environment Support Group, a registered, not-for-profit body, which researches and provides training on environmental issues.
In comparison, the central empowered committee (CEC) on forestry and wildlife matters, set up by the Supreme Court five years ago and housed right next to the appellate, has received and heard more than 1,000 applications. Despite repeated efforts, ministry officials declined to comment on the issue.
“There are two main reasons for appeals not being filed in the appellate. One is, of course, awareness. Look at the other regulatory authorities. The telecom one, for instance, receives so many applications. But more importantly, people don’t know about it (the appellate authority) because almost 100% of the appeals have been rejected without any orders being passed. Whereas everyone knows about the CEC, which has consistently heard and passed orders,” says Ritwick Dutta, an environmental lawyer, who has filed 18 appeals at the authority.
The appellate, which was notified in 1997, has been operating without a chairman for the last seven years. It has rejected or dismissed 28 of the 32 appeals that it has received.
The appellate authority is a statutory body that is empowered to hear appeals challenging environmental clearances. Industries, power plants, dams and mining projects, depending on their individual capacities, have to get environmental clearance from the ministry of environment and forests before they can go ahead with the project.
Within 30 days of a clearance, an affected individual or group can challenge it before the authority. This can be extended to 90 days if the applicants can prove they didn’t have access to information on the clearance.
The authority also has judicial exclusivity over environmental cases as no other civil court or authority can hear such appeals.
“After a rejection from the appellate authority, the affected party can file a writ petition at the high court,” says Dutta. It was on the basis of such a petition in the Delhi high court that the ministry was directed in October 2005 to fully constitute the body within 45 days.
But two years later, that is yet to happen. The appellate authority, which is also the only body that hears appeals challenging both state and Central government clearances, has “never functioned fully.
Till 2005, the appellate operated only with one vice-chairman. Moreover, the number of appeals getting filed in the authority was abysmally low and it was practically not functioning,” says Kanchi Kohli, member, Kalpvriksh Environment Support Group, a non-governmental organization that deals with ecological and biodiversity issues.
Currently, the authority is functioning with just three members, of which two are Indian Forest Service officers and one is an Indian Administrative Service officer.
The body is supposed to include technical, administrative and judicial expertise. “However, if you look at the constitution right now, it is inadequate. IFS officers are trained to understand forestryissues, not environmental clearance matters. Even the environmental wing of the ministry does not include IFS officers,”says Dutta.
And, “The role of a chairman is critical because in the case of diverse opinions among the members, the chairman takes the final decision. Plus, the chairman is the only judicial authority in the body, as he or she has to be a former highcourt or Supreme Court judge,” adds Dutta.
“The appellate authority is the only one in the country, which is authorized to address such grievances and in 10 years, it has not happened. The quick remedy to such issues is lost. The only one that remains is the PIL route,” says Saldanha of Environment Support Group.