We
have had two absolutely useless Bills before this on the same lines
which never matured into anything. We
need to have one good Bill. The National
Green Tribunal Bill that would judge environmental issues was introduced in
July 2009. There is this feeling that it
was done for the establishment of a National Green Tribunal for the effective
and expeditious disposal of cases relating to environmental protection and
conservation of forests and other natural resources, but 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 that purpose.
This new Bill that he is bringing in is flawed120 in parts.
Some of the amendments have already been made by the Minister. Some of them seem simply cosmetic140 like changing one year to two years and
three of them seem all right The intent of most appointed bodies can160 be judged from its composition and on that
score the Bill fares poorly. The
proposed composition of the Tribunal follows a tried, tested and failed
track. Anybody who has read the Bill is
bound to wonder, whether it is meant to be a club for the retired IAS officers
and technocrats. As it stands, the
expert members of the Tribunal would need administrative experience of
fifteen years including five years’ experience in dealing with environmental
matters in the Central or240 State
Government or in a reputed national or State level institution. People who have
actually done a huge amount of work in environmental protection cannot join the
Tribunal even though they have the experience, and even though they
have280 the passion. After all, Supreme Court Judges are not born
knowing the law. What they do sitting at the Supreme Court is to have an eye
for truth, an eye for justice, and common sense which is what anybody working
on320 the ground has. But you have excluded us from this by
bringing a condition of administrative experience of 15 years, including five years’
experience in dealing with environmental matters in the Central or State
Government. What would you count as360 experience?
Bureaucrats are changed every three years. They are neither learned nor educated in
anything they do. It is simply a matter
of passing files around. Why do you not
give an appointment or the window of opportunity to people who have actually
worked?
All
earlier attempts in handling environmental problems have failed because their
control was420 left in the hands of
bureaucrats. Had such appointees been
competent, those Government departments or institutions where they
served would surely have been instrumental in protecting the environment, which
is clearly not the case, and that is why you need a Tribunal. In fact, it is the colossal failure of
the administration that is creating the compelling logic for the Tribunal. 480 What would be infinitely better is for the
Tribunal expert members to be of technical and scientific background,
experts in public health, occupational health, social science with relevant
experience in environmental and occupational health or with qualifications for
its membership. There is no provision
in this Bill for ecologists, hydrologists and anybody from
civil society or NGOs who have been active in the field of environment,
to become a member. This should be
changed. Moreover, a Tribunal member560 can join a corporate house whose case he
might have dealt with within two years of demitting office. You have changed it from one year to
two years. It is a dangerous proposition
that harms transparency and impedes the Tribunal’s independence. The600
House panel feels that judges should not be allowed to take up directorship
of any concern or be associated with any industrial house. Even worse, the shortlisting of candidates
will be done by the Ministry of Environment and Forests. 640 We know the kind of pressure that is
put on them to select weak or vicious people with no integrity or value,
retired bureaucrats or technocrats in search of re-employment. This is what should be amended. There should be a transparent process
of appointment of members and Chairman.
There should be a noted environmental lawyer or jurist as a700 member.
No bureaucrats should be there as expert members. In fact, a specific clause that anyone
working in Ministry of Environment and Forests720 or any Ministry whose decisions are subject
matter before the court, cannot be included.
If we need these great experts, they can be called in for
advice.
One
of the honourable Members has talked about amicus curiae. No doubt, they can be amicus curiae. The word
‘expert’ as qualified by the Bill is expert in science, engineering,
technology, and having administrative experience. Is it the only thing that makes you an expert? How about people who have spent their800 lives in the field working with cold logic
to get justice? The field should be open
to anyone who has dealt with environmental matters in the field. What amendment can you put in to include
people like me? Then I840 come to the second phase, that is,
restrictions on who can approach the Tribunal.
There is an amendment here, which is a good amendment. It says that any person aggrieved including
any representative body can file an application. The earlier provision was that judicial and quasi-judicial
institutions cannot be strong if only a few people conveniently selected by
the authorities are allowed to approach them.
Moreover, since the courts have recognized that since environment falls
within the purview of Article 21, it is clear that all persons have a duty to
protect the environment and a corresponding right to question the adverse
impact on environmental health. The Bill
ignores this principle. In Clauses 14 to
16, it is given that960 the Tribunal
is only allowed jurisdiction in those cases which are considered ‘substantial’. The word ‘substantial’ has been qualified to
mean the980 community at large rather
than individual or a group of individuals, and the damage should be grave. That
is an extremely serious error. The
Tribunal can judge what is ‘substantial’ without any qualification. When does a
group of individuals become a community? Would 50 remaining Jarawa tribals
qualify as a community or a group of individuals when their forests are cut
down by loggers? Does the individual not
deserve protection or does he have to wait until everyone suffers as much as
him? Leaving the judging of the issue to
the Tribunal to decide whether the group is large enough1080 or the issue is grave enough is
ridiculous. Let us suppose I live in a
lane of six houses which has three peepal trees and a company comes in and cuts
them down. This would seem so
small to the1120 Tribunal but it
is life and death to that lane.
What
should the Bill add? All issues arising
out of non-implementation or compliance of approval conditions should be a
subject of the Bill. This is one of the
main grievances, as you have with all the mining cases that you have taken
action on. They take the approvals for a
small patch of land and then destroy an entire district as in Karnataka, Andhra
Pradesh and Rajasthan. You have no compliance1200
mechanisms. Why do you not make
this Bill one of your instruments?
Why is the Bill in Clause 15 restricting itself to just providing
compensation and perhaps restitution of property? Does this make sense? After
the companies have finished mining, the tribals will get some money from
them and black empty holes in the ground laid waste as restitution? The1260 Bill has cut off prospective activity which
includes environmental damage. An
amendment is needed here to include prospective damage rather1280 than simply retrospective
jurisdiction. Has the Ministry not heard
of the word ‘precautionary’? Obviously
it has, because that is one of the amendments that it has brought in,
and that is well done. But prevention of
pollution is the most important way to protect the country. The Ministry has protected itself by refusing
to give the Tribunal the teeth to challenge its decisions. Therefore,
the Bill should be amended to give it powers to review a statutory authority’s
exercise of judgement. The courts are
subject to review of their decisions.
Why should a Ministry or an Expert Appraisal Committee not be subject to
review? Please bring in an amendment for
review of abuse of authority or failure of application of1400 mind. Then, you will see that Government
clearances will survive vested interests.
According
to Clause 15, the Tribunal can give compensation to the victim but it cannot
quash the approval granted. What does
this mean? So, I can keep giving1440
money in the air notionally to the forest dweller but I cannot stop the mining
licence. In that case, what is the point
of this Bill? On the one hand,
the Bill can give compensation to individuals; on the other hand, it
prevents them from approaching the Tribunal because the licence cannot be
cancelled. So, basically this Bill is
neither fish nor fowl and will help polluters carry on their business while
giving money to the victims. Either the
drafting is poor or this is a deliberate attempt to make something
useless again. Has the Bill got any real power? The proposed enactment does not have the power
to stall any project that caused damage to environment. It can act only when the damage is done by
dealing with the origin of pollution. It
also fails to hold the polluting companies criminally liable for their acts
of omission and commission such as Bhopal’s industrial disaster. One of the
significant amendments1600 proposed
in the new draft is that the decisions of the Tribunal can be challenged in the
Supreme Court.
