Comment
From Green Bench to Green Courts
THE last three decades in Indian legal history has evidentially been of the court adjudicating on a number of social issues beyond the traditional frontiers of civil and criminal law. Significant to this development is the innovative activism by the judiciary on environmental issues. The pro-active stance of the courts has enabled legal space to green rights and aroused environmental imagination in society, in turn creating a process of engaged dialogue with stakeholders on environmental issues, though arguably more in the urban landscape. The court has not only defined and interpreted constitutional rights to include environment but also introduced institutional changes – such as relaxation in rules of standing, departure from proof of injury approach, amicus curiae – to assist social participation.
Further, unlike in other common law cases, the judiciary has even stepped into the executive terrain to rule and administer on varied issues of pollution and conservation as in the Ganga pollution case, Delhi CNG case, Taj trapezium case, the Godavarman case and so on. This has resulted in transgression from conventional boundaries of adjudication to scrutinize the administrative process. In the course, tensions have emerged between executive and legislative branches of the government on the institutional limits of the counter-majoritarian institution, steering debates in the political realm on the courts’ jurisdiction to administer environmental rights and on how best to resolve our environmental problems.
The Green Court initiative of the Ministry of Environment and Forests (MoEF), as drafted in a proposed bill, is seemingly an effort in this direction. At the outset, the initiative seems to be an executive response to curb judicial interference and, therefore, raises critical questions of autonomy and capacity of the courts. On the other, the draft bill claims, it will reduce the workload of courts and ensure speedy justice. It is in this context that the new draft bill on creation of environmental tribunals needs to be analyzed – whether it ensures institutional autonomy to deal with the diverse contests over environmental policy, and if it will be a viable alternative to adjudication. This requires an examination of the proposed bill in light of the developments in environmental jurisprudence. More pertinently, the question remains if the Green Courts promise to be an effective resource in addressing environmental claims.
The proposed Environmental Tribunal Bill of the Ministry of Environment and Forests envisages setting up separate green courts – Regional Environmental Tribunals and a National Environmental Tribunal – based on the recommendations of the 2003 Law Commission Report. It aims to establish a single window redressal entity for settlement of all environmental law cases, even those currently under judicial scrutiny. The tribunals will retain exclusive jurisdiction over all environmental law matters vis-ŕ-vis any other judicial body, except the appellate jurisdiction of the Supreme Court. The draft bill proposes to abolish the special authorities constituted by the Supreme Court to deal with environmental cases – notably the Centrally Empowered Committees (CEC), and the Environmental Pollution Control Authority (EPCA). Arguably, the tribunals will shift the terrain of environmental dispute settlement to the executive arena and curtail the jurisdiction of courts.
It is proposed that the constitution of the tribunals will be the prerogative of the central government; the members are to be selected and appointed by the Centre with optional/non binding opinion of the Chief Justice. Such a selection process of members of the proposed green court, however, casts doubt on the relative autonomy of the institution. Besides, the decision to choose the members of the tribunal from the scientific and legal community alone is problematic. While the proposed composition reflects serious thinking on the need to evolve better solutions to environmental challenges, its emphasis on scientific and technical inputs to resolution of environmental disputes, oblivious of social perspectives, reveals a subjective model of environmental adjudication. It may well limit the capacity and efficacy of the institution to engage with society on issues of environmental importance outside the executive domain. This is particularly pertinent in the Indian context where most claims on environmental issues have multiple scripts and are represented by diverse struggles over livelihood and life issues typical to the social context. Arguably, it is critical that the law incorporates an understanding of the diverse social relations with nature in interpreting environmental challenges. The question remains if adjudication on environmental issues can be independent of the social milieu.
Legal advocacy on environmental issues in recent times has built on the foundation of public engagement and social discussion. While the development of environmental law in other common law systems has been based on a regulatory private law approach, the Indian jurisprudential developments are public oriented. The conspectus of environmental case law in recent years suggests that the framing of environmental rights in India is contingent on the social and cultural contexts that necessitate incorporation of social positions on the issue. Unlike dominant western ecological conceptions, a technological and scientific evaluation of environment is unsuitable to India due to the many interests that are interlinked to people’s perspective on nature, such as development, livelihood, and cultural concerns. Environmental jurisprudence in recent years elicits that, through a number of procedural and substantive changes, the court has carved a space for public engagement on environment. On the one, the Supreme Court devised Public Interest/Social Action Litigation allows third party litigations on green matters where individuals/groups can approach the courts for constitutional remedies for violation of fundamental rights (under Article 226 in a High Court and under Article 32 in a High/Supreme Court). Further the court has relaxed locus standi or standing, permitting petitions to the court on behalf of the disadvantaged. An extension of this definition could be used as a legal claim to protect nature’s rights. As a result academics, groups, individuals, lawyers, social interest litigants, hitherto non-actors in the judicial arena, have acquired legitimate voice to claim/contest environmental rights.
Administratively, the court accorded primacy to environmental issues by setting up green benches. Though an internal organizational issue, this reflects the importance ascribed to green issues. Additionally, the adjudication by the green bench of the court has relied on specialized expert committees to obtain societal perspectives leading to constructive constitution of laws and to monitor implementation. These committees drew in specialists from various fields – judges, lawyers, journalists, bureaucrats, social practitioners, scientists, and so on. The creation of these committees – be it the Centrally Empowered Committees (CEC), or the Environment Pollution Control Authority (EPCA) – to a certain extent, facilitated tabling of views and concerns critical to local communities’ life, livelihood, land and culture.
For instance, in the ongoing Godavarman case, the court appointed the CEC to advise and monitor its ruling on the conservation issue, take up complaints of the stakeholders in the conservation case, and review affidavits and petitions in the case. The CEC’s activities also included field visits, public hearing and meetings with NGOs, and so provided a forum to NGOs, communities, dedicated forest officers and the forests and its inhabitants to address a range of environmental issues. The proceedings in this case have steered a review of various aspects of forest and tribal policy in the country and facilitated representation of social perspectives on forest, livelihood and protection of the environment. Enhanced social engagement in conceptualizing and contesting conservation has led to integrative positions on environmental issues, though this is not to deny that contestations on the lines of wildlife vs livelihood vs development have surfaced in the process, as in the cases on forest conservation. Consequently, the disputes over interpretation and recognition to norms of ecological protection necessitate an engaged dialogue, which arguably stipulates a relatively autonomous legal forum.
At the same time, the effectiveness of the court remains limited due to institutional problems of delay in delivery of justice. Criticism has been voiced by various stakeholders impacted by the law and, as some say, the delay has imperilled businesses that await environmental clearance on projects. While some quarters approve of the Green Court, especially those in industry, as it would quicken the process of getting environmental clearance, others remain sceptical. The efficacy of the shift from the green bench of the courts to the green court of the Ministry of Environment and Forests therefore needs to attend to concerns of public representation and institutional autonomy. Pertinently, the question remains as to whether the tribunals are being set up to have an effective agency for resolution of disputes, or are they essentially a political act to counteract judicial interference in executive matters.
Sanghamitra Padhy
