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Specialized Justice and Environmental Courts

Paper Details 

Paper Code: AIJACLAV3RP052023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Dr. Jayamol PS. & Dr. Rangaswamy D., “Specialized Justice and Environmental Courts", 3, AIJACLA, 42, 42-48 (2023), <https://www.aequivic.in/post/specialized-justice-and-environmental-courts>

Author Details: Dr. Jayamol PS., Assistant Professor, Vaikunta Baliga College of Law, Udupi, Karnataka & Dr. Rangaswamy D., Assistant Professor (Senior) Karnataka State Law University, Hubbali, Karnataka





Abstract

The environment is one of the most important aspects of the sustenance of living beings. The development of science and technology and the ever-increasing world population brought about tremendous changes in the earth’s environment. Environmental pollution made the life of living beings difficult on this earth's planet. Since the matters involved with environmental issues became so technical due to the advancement of science and technology, it became imperative for the judiciary to think of specialized courts in environmental matters. In its quest for rendering justice, the apex court has insisted on establishing Environmental Courts(ECs) which would have the benefit of expert advice from environmental scientists and technically qualified persons, as part of the judicial process. The court has relied on the experiences of different countries that have globally established separate Green Courts or Green Tribunals or Environmental Courts to deal with environment-related litigations. It has culminated in the establishment of the National Green Tribunals in India. Against this backdrop, this paper discusses the need for specialized courts and their efficacy in rendering justice. The paper is divided into three parts. The first part analyses the background of specialized courts in environmental matters. The second part is an overview of the national and international environmental courts and discusses the efficacy of such institutions in rendering justice. Finally, the paper concludes with observations and suggestions in this regard.

Keywords

Environmental Courts; Environmental Pollution; Law Commission; Tribunals


Introduction

Justice, which has been equated with Dharma in our Shasta’s, is the basis of the entire universe. It has been given a supreme place in every legal system. It is the fundamental law that governs our life and whenever there is any deviation from the basic law there is the likelihood of crisis.[1] Environmental justice is a concept that addresses the unfair exposure of poor and marginalized communities to harm associated with resource extraction, hazardous waste, and other land uses.[2] It is the fair distribution of environmental benefits and pollution burdens regardless of wealth, income, status, race, or nationality. This is based on the observation that the poor and disadvantaged are often exposed to environmental hazards, risks, and stresses. The advancement in science and technology and the developmental activities that have accelerated in the 20th century have brought drastic degradation of the natural environment. These changes upset the ecological laws, thereby shaking the balance of human life.[3]

Generally, while imparting the duty to ensure justice, courts cannot treat all cases equally. All cases do not require the same processes or the same types of resources. Courts have long recognized this and have initiated various methods of differentiated case flow management including the creation of specialized courts and divisions. Specialized courts are those courts that are created with limited jurisdiction in one particular field of law. It includes civil, criminal, and family courts, tax courts, industrial courts, environmental courts, intellectual property courts, small claims courts, traffic tribunals, drug courts, land tribunals, etc.[4] The increasingly technical nature of environmental cases influenced the need for special courts for the protection of the environment and to uphold environmental justice.[5] environmental decision-making power entirely on scientists and administrators is untenable in a rule-of-law society. The fusion of diverse expertise in planning, science, technology, environment, law, and public policy into a new institution for environmental decision-making is essential for integrating environmental values with developmental issues.[6]


The Background of Environment Courts (ECs)

The first-ever international conference on the environment, the United Nations Conference on the Human Environment, 1972, commonly known as the Stockholm Declaration[7]  addressed the global need for appropriate steps to protect and improve the environment.[8] Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called ‘Our Common Future.’[9] The second Rio Conference of 1992 stressed the need for judicial and administrative access to the citizens of all countries.[10] It also emphasized national law regarding liability and compensation for environmental damages for the victims of pollution.[11] Moreover, at the International level, Australia[12] and New Zealand[13] have taken the lead in establishing Environmental Courts which are manned by Judges and Commissioners. The world has witnessed a steady growth of ECs with the number of operational ECs standing at 2,115 in 67 countries in the year 2021.[14]


History of ECs in India

In India, the era of legal protection for the environment started after the Stockholm Conference in the form of the Forty Second amendments Act, of 1976.[15] It was followed by many statutory enactments to protect nature. However, the idea of a forum exclusively to redress and relieve environmental cases was missing in those legislations. The task was taken up by the Indian Judiciary. The Hon'ble Supreme Court of India in M.C. Mehta v. Union of India[16] advised the Government of India to establish environmental courts. The court said that:

"since cases involving issues of environmental pollution, ecological destruction, and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evaluation of scientific and technical data, it might be desirable to set up environmental courts on the regional basis with one professional judge and two experts drawn from the Ecological Science Research Group keeping in view the nature of the case and the expertise required for its adjudication.”

Later in the Indian Council for Environmental-Legal Action v. Union of India,[17] the court expressed the view that it should be handled by legally trained persons or judicial officers. For a review of environmental decisions, it is necessary to have a mechanism of environmental courts or tribunals competent enough to analyze, in an objective manner environmental, legal, and policy issues. In another landmark judgment, A.P. Pollution Control Board v. M.V. Nayudu[18], and A.P. Pollution Control Board v. M.V. Nayudu II[19], it was realized that for environment-related lawsuits a separate court is necessary. The apex court suggested amendments to the existing laws and constitution of environment courts consisting of judicial and technical personnel.


Law Commission of India

The Law Commission of India [20] was assigned to undertake a detailed study of the subject for the establishment of “Environment Courts” in India. The Commission expressed the view that, if there is a single appellate authority as proposed, at Delhi, it will be almost inaccessible to the citizens of the country in remote parts and serious issues relating to the environment will remain un-addressed since there will not be an effective right of access to Courts. The Commission has suggested that Environmental Courts must be established to reduce the pressure and burden on the High Courts and Supreme Court. These Courts will be Courts of fact and law, exercising all powers of a civil court in its original jurisdiction. [21]

They will also have appellate judicial powers against orders passed by the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and The Environment (Protection) Act, 1986 with an enabling provision that the Central Government may notify these Courts as appellate courts under other environment-related Acts as well. Such a law can be made under Art. 253 of the Constitution of India read with Entry 13A of List I of Schedule VII to give effect to decisions taken in the Stockholm Conference of 1972 and Rio Conference of 1992. The commission also recommended that the proposed Environment Courts will be established initially at the State level and later many more courts may be established in another part of the country.  In order to substantiate the need for ECs in India, the Court has pointed out the instances from Australia and New Zealand where the ECs started functioning way back from 1979 onwards.


The National Green Tribunal (NGT) Act, 2010

The Rio de Janeiro Conference made it compulsory for the State parties to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. As a result, it was considered expedient to implement the decisions of the Conference so far as they relate to the protection of the environment and payment of compensation for damage to persons, property, and the environment while handling hazardous substances.[22] Even though, the National Environment Tribunal Act has been enacted by the Parliament to constitute Green Tribunals it became defunct after some time. The Parliament of India has again enacted the National Green Tribunal, Act, 2010 in view of the involvement of multi-disciplinary issues relating to the environment. It is an Act to provide 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 including enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property and for matters connected to that. It was the result of the Stockholm conference and the Rio Conference in 1992, calling upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy, and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage.[23]

The NGT comprises a chairperson and 10 to 20 judicial members and 10 to 20 expert members. NGT has both original and appellate jurisdiction. The former allows it to hear all substantial questions relating to the environment, whereas the latter allows it to hear appeals against decisions made by central and state government agencies.[24] No application for the adjudication shall be entertained by the Tribunal unless it is made within six months from the date on which the cause of action arises.[25] The Tribunal may provide relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I,[26] for restitution of property damaged and for the restitution of the environment for such area or areas, as the Tribunal may think fit.[27] The Tribunal has the power to order compensation in certain cases.[28] In case of death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation, or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, as may be determined by the Tribunal. If the death, injury, or damage caused by an accident or the adverse impact of an activity or operation, or process under any enactment specified in Schedule I cannot be attributed to any single activity or operation, or process but is the combined or resultant effect of several such activities, operations, and processes, the Tribunal may apportion the liability for relief or compensation amongst those responsible for such activities, operations and processes on an equitable basis and the Tribunal shall, in case of an accident, apply the principle of no fault. The Act has given wide powers to the Green Tribunal. The Tribunal shall have, to discharge its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908.[29]  The decision of the majority members will prevail in the Tribunal.[30] For executing the orders of the Tribunal, it has the powers of a civil court.[31]


The Efficacy of NGT as a Specialized Court

In the short period after its establishment, the NGT in India has adjudicated a wide array of environmental disputes that came before it. In Paryawaran Sanrakshan Sangarsh Samiti Lippa v. State of Himachal Pradesh,[32] the NGT recognized the rights of forest-dwelling groups and tribes over forest land. The NGT expressed concern over the alarming scale at which hydroelectric projects were being approved in Himachal Pradesh, resulting in serious consequences to its ecology and environment, and the very life and livelihood of the villagers. Accordingly, the NGT mandated that Himachal Pradesh must consult with the Gram Sabha (a village assembly of all adults) of the villages of Lippa, Raring, Pangi and Telangi before they clear any forest for development. This was a significant order, empowering the local community with the right to participate in the hydroelectric project through the Forest Rights Act. In Ms. Betty C. Alvares v. The State of Goa and Ors, [33]regarding the question of maintainability of the petition which was filed by a foreign national, the court has said that the petition is maintainable without regard to the question of her nationality. The Tribunal ordered to cancellation of a clearance certificate given to the hydroelectric project which was close to wintering site of an endangered species bird.[34]

Recently it has ordered to Hyderabad Metropolitan Development Authority and Telangana State Pollution Control Board to protect Ameenpur Lake and 18 other water bodies in its vicinity from encroachments and pollution.[35] In another instance, the National Green Tribunal ordered five edible oil refinery units, to pay environmental compensation of Rs 5 core to a lady whose water sources were polluted due to these oil refinery units.


The Need to have ECs

ECS may take different forms and models, with no single best model or "one-size-fits-all" design. What is best for each country depends on what fits the country's unique ecological, historical, legal, judicial, religious, economic, cultural, and political conditions.[36]Through the enforcement of environmental laws and the settling of environmental disputes, ECs help countries meet the objectives of the United Nations 2030 Agenda for Sustainable Development and the Paris Agreement on Climate Change, among other international environmental instruments and commitments. They provide access to environmental justice and remedies, strengthen judicial systems to ensure accountability, and spur legal innovation and reforms.[37]The United Nations Environment Programme, 2016 (UNEP) pointed out the need to have more ECs. The currently 67 countries now have operational ECs all across the globe.[38] 

The NGT has played an important role in developing India’s environmental jurisprudence. Cumulative impact assessment and restitution have become important parts of Indian law because of the NGT. Thirdly, the NGT provides better access to justice compared to what the general courts can do. Persons may bring claims in the public interest even if they have no direct, personal connection to the matter. In addition, a person may bring a claim on behalf of a group of people. It can take suo motu actions


Figure 1: The Disposal of cases by NGT


Figure 1 shows the speedy disposal of cases by NGT. At the same time, it is being criticized for many reasons. In a recent order, SC blamed NGT for issuing “mechanical and pre-drafted” orders after a construction firm complained that it wasn’t heard before a hefty penalty of Rs 40 crore was imposed on it. The tribunal with exclusive jurisdiction over environmental protection and pollution control matters has arguably not lived up to its billing. Some months ago, another SC bench criticized NGT’s tendency to set up expert committees, noting that its adjudicatory functions cannot be delegated in this manner. Though several NGT rulings have held the field, some of its orders de-registering a 10-year-old diesel vehicle ban on firecrackers, RO-water purifiers, and sand-mining have had minimal impact in the absence of political support. NGT has ended up as another casualty of the messy "development v. environment” debate, which has no easy answers.  The NGT has to be more careful in delivering judgments as there is constant monitoring from all sections for assessing the functioning of these special courts.


Findings and Conclusion

To overcome the deficiencies that come across in its functioning ECs shall be a little more concerned about the objectives that have to be achieved for ensuring environmental justice. ECS shall not ultravirus its powers. Nowadays more judicial networks have been established globally among the judges of the ECS. This has made judges more aware of the demands, impacts, and visibility of their work, thereby spurring them to increase their environmental law capabilities. In India, we need more ECs than Green Tribunals. The existing ECs are blamed for the decisions without reasoning. Apart from enhancing the quality of environmental law jurisprudence at both national and transnational levels, the presence of more competent judges is also needed for public trust and participation in environmental justice.  If there is one thing the past has taught human civilization, it is that one needs to respect the environment and take every possible step to preserve it.


[1] Inamur Rahman, ‘Search of justice: Problems and Prospects in Law’, D.R. Saxena (ed.) Justice and Social Change, (Deep& Deep Publications New Delhi1996).

[2] John Spacey,‘25 Examples of environmental Justice’, https://simplicable.com/new/environmental-justice#:~:text=Environmental%20justice%20is%20the %20fair%20distribution%20o accessed on 15 July 2022.

[3] P. Leela Krishnan, Environmental Law in India (Lexis Nexis 2012) p.1.

[4] Specialized courts/Divisions, http:///just project.org/Specialized Courts/Divisions - JURIST Project accessed 14 July 2022.

[5] P.S Jaswal and Nishta Jaswal, Environmental Law(Allahabad Law Agency,2010).

[6] Supra note 3.

[7] The Stockholm Declaration of 1972, or the Declaration of the United Nations Conference on the Human Environment, is the first United Nations declaration on the global environment.

[8] Principle 1 of the Stockholm Declaration stated that people have “the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing and it bears a solemn responsibility to protect and improve the environment for present and future generations.

[9] The Commission was chaired by the then Prime Minister of Norway, Ms. G.H. Brundtland and as such, the report is popularly known as 'Brundtland Report'.

[10] The United Nations Conference on Environment and Development (UNCED), also known as the Rio de Janeiro Earth Summit, the Rio Summit, the Rio Conference, and the Earth Summit (Portuguese: ECO92), was a major United Nations Conference held in Rio de Janeiro from June 3 to June 14.

[11] Principle 10 of the Rio Declaration stated that “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

[12] In Australia, in the State of New South Wales, the Land and Environmental Court was established by legislation in 1980 under the Land 53 and Environment Court Act 1979.

[13] The N.Z. Environment Court was established under the Resource Management (Amendment) Act, 1996 by amending the 1991 Act and it replaced the former Planning Tribunal.

[14] Environmental Courts and Tribunals, A Guide for Policymakers, https://www.unep.org/resources/report/environmental-courts-tribunals. accessed13July2022. 

[15] The Forty-second Amendment added Articles 48-A and 51-A to the Constitution of India.

[16] AIR 1987 SC 965.

[17] 1996(3) SCC 212.

[18] 1999(2) SCC 718.

[19] 2001(2) SCC 62,),

[20] Law Commission of India, Proposal to Constitute environmental Courts(Law Common No 186, New Delhi).

[21] Ibid.

[22] The preamble of the National Environment Tribunal Act, 1995.

[23] The Preamble of the National Green Tribunal Act, 2010.

[24] Section 14 of the NGT Act, 2010.

[25] Ibid, Section 14.

[26] . The Water (Prevention and Control of Pollution) Act, 1974; The Water (Prevention and Control of Pollution) Cess Act, 1977; The Forest (Conservation) Act, 1980; The Air (Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986; The Public Liability Insurance Act, 1991; The Biological Diversity Act, 2002.

[27] Ibid, Section 15.

[28] Ibid, Section 17.

[29] Ibid, Section 19: It has powers in summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents,  receiving evidence on affidavits,  requisitioning any public record or document or copy of such record or document, issuing commissions for the examination of witnesses or documents, reviewing its decision, dismissing an application for default or deciding it ex parte, setting aside any order of dismissal of any application for default or any order passed by it ex parte, pass an interim order after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act.

[30]  Supra note 29, Section 21.

[31] Ibid, Section 25.

[32] Decided on 4th May 2016.

[33] Misc Application No. 32/2014(WZ).

[34] Save Mon Region Federation and Ors. v. Union of India and Ors, MANU/GT/0150/2016.

[35] U Sudhakar Reddy, Telangana: NGT orders HMDA and PCB to protect Ameenpur lake, NGT report - Search (bing.com) accessed13 July 2022.

[36] Supra note 14.

[37] Ibid.

[38] Id.



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