Breaking News this morning of a Government effort to strip the Supreme Court of its power over environmental matters. This would abolish, among other things, all cases before the courts, the Dahanu Environment Protection Authority, and the Delhi CNG Vehicular group. The Act still must make its way through the political process, however.
Govt’s green courts to take on SC
Nitin Sethi & Mahendra Singh
[ 19 Mar, 2007 0112hrs IST TIMES NEWS NETWORK ]
NEW DELHI: The government has put stealth in its armour to take on the green powers of the Supreme Court.
The ministry of environment and forests (MoEF) has finally drafted a bill that will wind up all the special authorities the Supreme Court has set up to deal with over a thousand environment-related cases.
The bill, doing the rounds of other ministries for comments, proposes to set up separate green courts that shall be appointed directly by the central government and shall be empowered to handle all new cases as well as cases pending before the SC that relate to environmental laws.
The government, which has been smarting under the SC’s active involvement in environment-related decision-making over the past several years, finally seems prepared to take on the court on its own turf.
The bill, called the Environment Tribunal Act, 2006, proposes to set up regional tribunals and one Central, National Environmental Tribunal in Delhi to handle cases relating to the Indian Forest Act, Forest Conservation Act, Environment Protection Act, Water and Air Act and several other laws relating to environment.
The tribunals will be the one-stop shop for all aggrieved against any order given under any of these acts. Some of the high profile authorities to be done away with, like EPCA and CEC set up by the SC, have helped the court make significant decisions, like in the case of CNG buses of Delhi or the Kudremukh mining ban in Karnataka.
While some quarters have welcomed such orders, there has been pressure on the government from others, including ndustries and tribal activists, to snatch back the space for executive decision-making.
But another set has constantly argued that it was bureaucratic inertia that allowed the court the space to show such active involvement in environmental issues.
While setting up of separate green courts was suggested by the Law Commission in 2003 too, the government proposes to not only set up the tribunals, but also appoint members. The bill provides for a selection panel of the Union government that will appoint the chairman and other members of the regional and national environment tribunals who will have five-year terms.
In what is bound to limit the powers of the Chief Justice of India, he will only be consulted on the selection and neither his approval nor concurrence will be required in the selection process.
SC ticks off govt for his ‘sermonising’ arguments
[ 16 Dec, 2006 0221hrs IST TIMES NEWS NETWORK ]
NEW DELHI: When the Supreme Court stayed the MoEF notification constituting a statutory forest advisory committee (FAC), the additional solicitor-general curiously was seen advising the Bench not to get emotional and pass such orders.
“It will send a wrong signal about court’s interference in the executive domain. The FAC was constituted validly by following the provisions of the law,” he said. “It will send a correct signal to the concerned. Unfortunately, some people (in the government) have started thinking that Supreme Court is an impediment in various aspects of their lives,” the Bench retorted, clearly hinting at the discomfort of officials over constant scrutiny of their work by the apex court.
After ticking off the ASG for his sermonising arguments, the Bench then put MoEF secretary Pradipto Ghosh on a sticky wicket by asking him to explain by January 3 the basis on which the ministry cast aspersions on the amicus curiae and CEC as also doubting the environmentalists’ credentials.
The Bench said that it was distressing to note that the ministry, which should have known the credentials of the well-known environmentalists, was doubting their bonafide instead of appreciating the suggestions. While putting matters for further hearing on January 5, the Bench extended the temporary working permits given to mining activity in forest areas till further orders.
Recent SC ruling that riled executive.
Sealing: The executive tried its best to overcome SC orders on sealing drive against illegal commercial set-ups in the Capital. It issued notifications and even enacted a law to protect traders. Finally, the court gave in and diluted the drive.
CNG: The drive for conversion of Delhi’s public transport to CNG led to a similar response from the executive. Though the CM took credit in international fora for reducing pollution in the city, her government had actually tried its best not to implement the court orders citing hardship to vehicle owners and dangers of using CNG.
Strike: SC ruling that government servants have no “fundamental, moral or equitable right to strike” had angered babus and the executive over the interference of the judiciary in curtailing labour rights.
Campus elections: Banning money, muscle and political influence in college elections had irked as the ruling parties as well as the opposition are known to use student leaders to their advantage.
Green courts will limit CJI’s powers
Nitin Sethi & Mahendra Singh
[ 19 Mar, 2007 0016hrs IST TIMES NEWS NETWORK ]
NEW DELHI: While setting up of separate green courts was suggested by the Law Commission in 2003 too, government now proposes not only to set up tribunals but also to appoint members.
The Bill provides for a selection committee to appoint the chairman and all other members of the regional and national environment tribunals. They will enjoy five-year terms.
In what is bound to limit his powers, the Chief Justice of India will only be consulted and neither his approval nor concurrence will be required in the selection process.
The National Environmental Tribunal will consist of two full-time judicial members, one of them officiating as chairman, and eight part-time technical members.
The judicial member will have the minimum requirement of either being an SC judge or possessing the qualifications to be one.
The technical members will be drawn from the fields of physics, chemistry, engineering, economics, social sciences, forestry, botany and zoology. They must have either 15 years of experience in the field or 10 years plus a doctorate.
The regional tribunals will also be constituted along the same lines except that the judicial member will be either a High Court judge or one qualified to become one.
No other court or authority will be allowed, if the Bill is passed, to hear any environmental case. However, the apex court can take up appeals against the National Environmental Tribunal.
The Bill comes after a long wait. In 2003, the cabinet had decided to wind up all committees set up by the Supreme Court.
Government believed the authorities were discharging varied executive, regulatory and, in some cases, judicial functions, although judicial functions are outside the scope of the relevant environmental acts.
The Union ministry of environment and forests is the nodal ministry for the Bill, though sources said the Prime Minister’s Office (PMO) has been taking a keen interest with the law and justice ministry too kept in the loop.
Latest Update from The Hindu:
The Hindu March 23, 2007
Who will benefit from “green” courts?
Kalpana Sharma
What is worrying is not just the precise nature of the proposed Environment Tribunal Bill but the motive behind it.
IT IS still under wraps. Despite an effort made through the Right to Information, no one outside government has seen it. The Ministry of Environment and Forests (MoEF) has proposed to introduce the Environment Tribunal Bill, which envisages the setting up of “green” courts to deal with environmental disputes. Why is this necessary? How will the “green” courts work? Who will benefit from them? These are just some of the questions people involved in the environmental movement are asking. The substance of the proposed law should be in the public domain and ought to be debated by people beyond those in government before it is presented in Parliament. But none of this will happen if the MoEF has its way.
For more than two decades, groups concerned at the environmental impact of infrastructure and industrial projects have had to turn to courts for redress. The results have been patchy. Court intervention has sometimes helped. At other times, even when the court laid down criteria to ensure that environmental considerations are incorporated, those implementing projects have blatantly ignored the suggestions. As a result, environmental groups have had to spend many frustrating years fighting the same issue in courts. The decade-long struggle of the Narmada Bachao Andolan against the Sardar Sarovar Project is a classic illustration.\nDespite the Supreme Court’s directive that rehabilitation and ameliorative steps to minimise environmental damage must precede the construction of the dam, this has not happened. Thousands await rehabilitation even as the dam\nnears completion. Environmental law in India\nhas developed partly in response to demands by environmental groups and partly\nas a result of international conventions. The laws to protect biodiversity were\na direct outcome of the International Convention on Biodiversity. After the\n1992 United Nations Conference on Environment and Development in Rio de Janeiro, a number\nof laws were changed or new rules drafted to conform to international\nagreements. Local environmental groups played an important role in bringing in\nthe Coastal Regulation Zone rules, an outcome of growing awareness of the\nimpact of development along the coasts on marine resources. \u003cbr\>\n\u003cbr\>\nSimilarly, campaigns by civil society groups led to changes in antiquated\nforest laws that had not heeded the presence of forest-dependent communities\nand viewed forests only as an economic resource. After the 1984 Bhopal Gas\ndisaster, there was much greater awareness of hazardous chemicals resulting in\nrules and laws governing their manufacture, use and transport. “,1] ); //–>
These are just some of the questions people involved in the environmental movement are asking. The substance of the proposed law should be in the public domain and ought to be debated by people beyond those in government before it is presented in Parliament. But none of this will happen if the MoEF has its way.
For more than two decades, groups concerned at the environmental impact of infrastructure and industrial projects have had to turn to courts for redress. The results have been patchy. Court intervention has sometimes helped. At other times, even when the court laid down criteria to ensure that environmental considerations are incorporated, those implementing projects have blatantly ignored the suggestions.
As a result, environmental groups have had to spend many frustrating years fighting the same issue in courts. The decade-long struggle of the Narmada Bachao Andolan against the Sardar Sarovar Project is a classic illustration. Despite the Supreme Court’s directive that rehabilitation and ameliorative steps to minimise environmental damage must precede the construction of the dam, this has not happened. Thousands await rehabilitation even as the dam nears completion.
Environmental law in India has developed partly in response to demands by environmental groups and partly as a result of international conventions. The laws to protect biodiversity were a direct outcome of the International Convention on Biodiversity. After the 1992 United Nations Conference on Environment and Development in Rio de Janeiro, a number of laws were changed or new rules drafted to conform to international agreements. Local environmental groups played an important role in bringing in the Coastal Regulation Zone rules, an outcome of growing awareness of the impact of development along the coasts on marine resources.
Similarly, campaigns by civil society groups led to changes in antiquated forest laws that had not heeded the presence of forest-dependent communities and viewed forests only as an economic resource. After the 1984 Bhopal Gas disaster, there was much greater awareness of hazardous chemicals resulting in rules and laws governing their manufacture, use and transport.
Although by no means perfect, India’s environmental laws have the potential to make a difference if they are properly implemented. To implement them, apart from regulatory bodies such as the Pollution Control Boards, the MoEF had set up “expert” committees that looked at projects and evaluated their impact on the environment. These committees included representatives of non-governmental organisations with a long track record of monitoring environmental impact. Even if the government did not accept all the suggestions made by the NGO members, several important interventions were accepted over the years. More important, these members were considered as “expert” as anyone with formal qualifications in one of the sciences or in economics.
In addition, on specific issues, monitoring groups were established that had the authority to check if a particular project, or development in a particular area, conformed to the environmental laws and regulations. For instance, an ecologically fragile area like Dahanu, north of Mumbai along the western coast, had the Dahanu Taluka Environment Protection Authority (DTEPA). It was set up following a long battle by local farmers and environmentalists against the 500-MW coal-fired power plant located in the area. Although the power plant was built and is functioning today, it was compelled to take measures to limit its polluting impact on the environment, and the DTEPA continues to monitor its performance. Similarly, the Mahabaleshwar Panchgani Monitoring Committee played a crucial role in protecting the popular hill stations from being destroyed by unchecked construction. The committee’s term ran out in January 2005 and since then it has not been renewed.
This, in fact, seems to be the emerging pattern, indicative of the Ministry’s approach to such committees. It seems unconcerned and unimpressed with their work and probably prefers that they be wound up.
The most important of such groups is the Central Empowered Committee (CEC), which has made many significant interventions where forestlands are concerned. It has not always agreed with the Ministry and, more often than not, rejected proposals that would endanger India’s already dwindling forest cover. The term of the CEC is due to end in May and it is generally believed that the MoEF will not renew its mandate. Even if it is done, the committee will probably be reconstituted.
The excuse being used to set up an environmental tribunal is that there are too many cases pending in courts. A Central tribunal in Delhi and regional ones, it is argued, will take the burden off the courts. The plan is based on the assumption that the groups presently taking matters to court will be satisfied with the civil remedies that the environmental tribunal will offer. What is not so well known is that apart from communities with grievances, proponents of projects can use the tribunals to clear their projects if they feel aggrieved that they have been denied permission on environmental grounds. The government would argue that such a set-up would obviate the need for specific committees as the tribunal could set up its own committees to look into specific projects.
On the surface, this appears reasonable. But people selected by the government will man the tribunals. When the majority of the cases that land up in court concern government policy and the perception of groups and communities that the government is violating its own laws, how can such tribunals be viewed as impartial?
Fortunately, people’s fundamental rights to turn to courts and use public interest litigation cannot be affected by this new set-up. Environmental groups have used this to fight for environmental justice, although the outcome has not always been positive. But the avenue remains open and if the tribunals turn out to be what environmentalists suspect they will be, a process to rubber-stamp government proposals, these groups will have to continue to use the courts to seek justice.
Definition of `expert’
It is also significant that the Ministry wants to change the definition of the word “expert.” It restricts it to people with certain educational qualifications as well as people with experience in administration. In other words, people with science and economics degrees will qualify as also retired bureaucrats but people with decades of experience in understanding and monitoring the environment and the inter-linkages between different aspects of the environment will be kept out. This appears a deliberate attempt to exclude the activists who have served with distinction on numerous “expert” committees over the last two decades and who have also been the ones asking uncomfortable questions.
