Prof. Malcolm Grants' Project Report published in May 2000 recommended six possible alternative arrangements ranging from a 'Planning Appeals Tribunal' to an 'Environmental Court' as a division of the High Court.
As regards discussions within Town and Country Planning systems, the Royal Commission no doubt stated in its 23rd Report on Environmental Planning (March 2002) (para 5.35) that what was needed was "a system that commands public confidence, improves consistency, is effective at reaching decisions and is not unduly costly. Our main consideration is with merits appeals. With the Administrative Court now established within the High Court, we are not convinced that there is any need for a specialist environmental court dealing with judicial review or statutory appeals on legal grounds so far as the Town and County planning systems were concerned. Criminal offences concerning planning and environmental matters are probably best left to the ordinary criminal courts, though there is a case for improved guidance on sentencing and more training, especially for magistrates".
84Finally, the Royal Commission recommended establishment of Environmental Courts so far as environmental matters outside the Town and County planning systems, for establishment of an Environmental Court, as follows:
"...there is a great deal of inconsistency at present, both in whether there is a right of appeal on merits and in who decides any such appeal. Some appeals are made to the Secretary of State. Others, such as those concerning contaminated land or statutory nuisances, are made to the magistrate's Courts, which often lack the expertise to handle the considerable technicalities involved. In many contexts, for example, the granting of consents in relation to genetically modified organisms, there is no right of appeal on merits. Procedures have grown up haphazardly with no apparent underlying principle, and we consider they fail to provide a system appropriate for contemporary needs. We recommend the establishment of Environmental Tribunals to handle appeals under environmental legislation other than the town and country planning system, including those now handled by planning inspectors." (para 5.36) The Royal Commission observed (para 5.37) that establishing an Environmental Tribunal would be a significant contribution to a more coherent and effective system of environmental regulation. As to its constitution, and scope of appeals from it, the Commission said:
"We envisage such a Tribunal would consist of a legal chairperson and members with appropriate specialized expertise. It would rapidly 85 develop the authority and understanding needed to handle complex environmental cases. We envisage several tribunals would be established to cover England and similar tribunals for Wales, Scotland and Northern Ireland. On points of law, there would be right of appeal from the Tribunal to the High Court. Applications for judicial review or environmental matters would not be considered by the High Court unless the applicant had exhausted any remedy available from the Environmental Tribunal or from other sources."
The 'alternative remedy' principle as exercised by our High Courts in India in jurisdiction under Art. 226 is clearly accepted here.
As to the jurisdiction and powers of the Environmental Courts, the Royal Commission stated (para 5.38):
"The precise jurisdiction of the Environmental Tribunal would be a matter for government, but we have indicated in box 5B various areas that would be appropriate. We envisage civil litigations will continue to be handled by the civil courts and criminal matters by the criminal courts. The new Tribunals would take over such functions as the present jurisdiction of magistrates' courts on such subjects as contaminated land and statutory nuisance. Although, in general, the Tribunal should have the final rights of decision on appeals submitted to it, there may be cases of acute policy sensitivity where it ought to make a recommendation to the Minister rather than the final decision, and the Alconbury decision implies that such a mechanism would be consistent with the Human Rights Act. It also would then be similar 86 to that of a planning inspector where a planning appeal is received by the Secretary of State. The Tribunal's main concern would be with appeals, but it might have some original jurisdiction, for example, in deciding statutory nuisance cases currently taken by complaints to a magistrate's court."
Thus, the proposal is for the Environmental Court would have 'appellate' as well as 'original' jurisdiction. They would not oust the normal civil and criminal jurisdiction of ordinary Courts but would remain special Courts for environmental issues.
The Box 5B contains a chart at the bottom of which we have the 'New Regional Environmental Tribunals' which will hear appeals on 'environmental matters'. These are appeals from (a) decisions of Environmental Agencies (in respect of IPPC, discharge to water courses waste licences etc.) (b) appeals, currently heard by magistrate's courts, from notices served by local authorities in relation to contaminated land and statutory nuisances, (c) designation of sites of special scientific interest and Habitat Regulations, (d) decision of Secretary of State on licences for genetically modified organisms and other government decisions where there is no right of appeal at present other than by judicial review.
In UK, the Criminal Courts would deal with environmental offences in the same way as at present; one Court in each County might be designated to deal with environmental offences. The Civil Courts would continue to deal with environmental disputes between private parties on issues such as nuisance or negligence.
87The Commission went on to recommend (see para 5.39) to combine the Environmental Tribunal with the Planning Inspectorate to establish a 'Planning and Environmental Tribunal' (on the lines of some of the options considered by Professed Grant). That would resolve the doubts remaining about the position of planning inspectors in relation to the Human Rights Act. It would be an advantage to have a firm institutional linkage between the appeals system for land use and the procedures for a more specialized environmental regulation. Such a development, the Royal Commission said, may come after some time. But the Commission's view was that it was preferable for a tribunal to start by taking over and consolidating the wide variety of other procedures for environmental regulation, rather than risk being swamped by the much greater volume of appeals.
As to locus standi, so far as judicial review matters are concerned, the Royal Commission had a liberal view when it stated (see para 5.40) that a "very important distinction between appeals on merits and judicial review is that appeals by way of judicial review are not restricted to the applicant. Third parties such as a neighbour or amenity groups may also bring judicial reviews against, say, the decision of a local planning authority to grant planning permission, the Environmental Agency to grant an IPPC licence, or the decision of the Secretary of State on a merits appeal. To do so, they have to satisfy the Court that they have 'sufficient interest'.... Contemporary practice is far more liberal. Local amenity groups and national environmental 88 organizations have frequently been granted leave to bring judicial review, particularly if they made representations concerning the original applications."
The Royal Commission then referred to the 1990 E.C. Directive on the freedom of access to information on environment as implemented in U.K. by the Environment Information Regulations 1992 and the 1998 Convention on 'Access to Information, Public Participation in Decision Making and Access to Justice' on Environmental Matters (see paras 5.41 to 5.47) and to several aspects as to locus standi of individual and environmental organizations in respect of planning and development as well as environmental matters.
U.K. has not yet established Environmental Tribunals for environmental issues, but it appears to us that the country is in the process of establishing such Courts soon.
The following is the further literature on the subject in respect of U.K.:
(i) William Birties: "Why we need an Environment Court' (Legal Week, 2000, 2(1), 19
(ii) Freshfields: "The Environmental Courts Concept"
(Comm LJ 2000 17(28-31))
(iii) Editorial: "The case for an environmental court"
((2000) JPL 453) 89
(iv) Editorial: "The Govt's response to the Grant Report on an Environmental Court" ((2000) JPC B 95)
(v) Paula de Prez: 'An environmental court: the case for inclusion of a criminal law jurisdiction' (Environmental Law and management (2000, 12(5), 191)
(vi) Martyn Day, Richard Stein and William Birties:
"An Environmental Court Part-I" [(2001) 151 New LJ 630; Part II (2001) 151 New LJ 672].
(vii) "Do we need an environmental court?"
(In House Lawyer No. 81, June 2000, 64.) Canada, Europe and USA We shall not go into details but briefly state that the environmental disputes are being decided by the following Courts in Canada, Europe and USA.
(A) Canada:
(a) Alberta: Environmental Appeals Board
(b) Ontario: Environmental Assessment and Appeals Boards
(B) Europe:
(a) Denmark: Environmental Appeals Board.
(b) Irish Republic: The Planning Appeals Board.
90
(c) Sweden: Environmental Courts and the Environmental
Court of Appeal (see the new Environmental Code)
See also James Hurst: "Sweden: the Environmental Code. EELR (1999)8 (5) pp 134-135 (C) U.S.A. : The Vermont Environmental Court.
91Chapter V Environmental Courts or appellate environment bodies in India as at present General jurisdiction of various civil, criminal and constitutional Courts:
We have referred, in detail in Chapter III, to the case law showing the wide range of powers exercised by the High Courts and the Supreme Court on a variety of environmental issues under Art. 226 and Art. 32 respectively. Apart from these superior Courts, the subordinate civil courts exercise powers in regard to public and private nuisances. (See sec. 9 and also sec. 91 of the Code of Civil Procedure Code, 1908). Criminal Courts exercise powers under various sections of the Indian Penal Code (IPC) dealing with offences relating to environment. Chapter XIV of the IPC refer to offences under sections 269, 270 (neglecting or doing malignant acts likely to spread infectious diseases dangerous to life, disobedience of quarantine rules (sec. 271), fouling water of public spring or reservoir (sec.
277), making atmosphere noxious to health (sec. 278), negligent conduct with respect to poisonous substances, fire or combustible matter, explosive substances, machinery, and pulling down or repairing buildings; animals (sec. 291), endangering life or personal safety of others (sections 336 to
338), mischief (sec. 425), mischief by injury to works of irrigation or by wrongly diverting water (sec. 430), mischief by injury to public road, bridges, river or channel (sec. 431), mischief by causing inundation or obstruction to public drainage, attended with damage (sec. 432), and culpable homicide (sec. 299 to 304A). Chapter X of the Code of Criminal 92 Procedure, 1973 also contains provisions for enforcement of various provisions of the substantive law (for e.g. sec. 133 CrPC).
In addition, new offences are created by sections 41 to 50 (Chapter VII) of the Water (Prevention and Control of Pollution) Act, 1974; sections 37 to 46 (Chapter VI) of the Air (Prevention and Control of Pollution) Act, 1981, sections 14 to 18 of the Public Liability Insurance Act, 1991, sec. 3A, 3B of the Forest (Conservation) Act, 1980; sec. 51 to 58 (Chapter VI) of the Wild Life (Protection) Act, 1972; sec. 15 to 17 of the Environment (Protection) Act, 1986. All these offences today go for trial before the ordinary criminal courts. The appropriate criminal court will deal with the matter and is identified on the basis of the territorial jurisdiction and depending upon its power to award sentence of imprisonment to any person for particular number of years. The appeals on the criminal side are governed by the laws relating to criminal procedure.
Obviously, whether the matter is one of civil nature or criminal nature, once it is taken cognizance by any Court subordinate to the High Court, it will be dealt with by the said civil or criminal court along with the other cases before it and environmental cases are not normally given any priority in the matter of disposal. Of course, if the issue comes before the High Court or the Supreme Court under writ jurisdiction whether the matter is one brought by the affected party or parties or in a Public Interest litigation, these Courts take up these matters faster but the cases are not taken up day by day as may be done by an Environmental Court dealing exclusively with such cases.
93What we mean to say is that none of the above Courts are courts having exclusive jurisdiction as regards environmental issues and the result is that there is delay in their disposal as compared to the time within which any special Environmental Court dealing only with issues relating to environment could have taken. It cannot be disputed that environmental matters have to be taken up early, monitored from time to time and be finally disposed of by a procedure quicker than that obtaining now. Further, the Courts today lack independent expert advice on environmental matters by a statutory panel attached to the Court and depend mostly on the expert evidence that may be adduced by the parties. We have already pointed in the previous chapters, the need for experts in environment to be associated with the Courts dealing with these cases.
Special Acts and appellate powers:
Environment (Protection) Act & Rules made thereunder:
Section 3(3) of the Environment (Protection) Act, 1986 enables the Central Government to constitute an authority or authorities for the purpose of exercising and performing such of the powers and functions of the Central Government under that Act (including the power to give directions under sec. 5 of that Act) and for taking measures with respect to the matters referred to in sec. 3(2) and subject to the supervision and control of the Central Government.
Several rules have been framed under section 25 of the Environment (Protection) Act, 1986. These rules provide for 'authorities' who implement 94 the rules and also provide for 'appellate authorities' who are all officers or Departments of Government. Various rules have been made under sec. 25. Some rules framed under the Act regarding appointment of 'authorities' do not prescribe appellate authorities.
In the Hazardous Wastes (Management and Handling) Rules, 1989, Rule 18 provides for an appeal against any order of grant or refusal of an authorization by the Member-Secretary, State Pollution Control Board (or any officer designated by the Board) - to the Secretary, Department of Environment of the State Government.
In the Rules of 1989 relating to Manufacture, Storage and Import of Hazardous chemicals, Rule 2(b) refer to the 'authority' mentioned in Col. 2 of Schedule 5 as being the authority which will perform various functions under Rule 3. The said Schedule 5 designates various authorities or persons to exercise the functions such as (1) Ministry of Environment and Forests under Environment (Protection) Act, 1986; (2) Chief Controller of Imports and Exports under the Import and Export (Control) Act, 1947; (3) The Central Pollution Control or the State Pollution Control Board or Committee under the Environment (Protection) Act, 1986; (4) Chief Inspectors of Factories under the Factories Act, 1948; (5) Chief Inspector of Dock Safety appointed under the Dock Workers (Safety, Health and Welfare) Act, 1987; (6) Chief Inspector of Mines appointed under the Mines Act, 1952; (7) Atomic Energy Regulatory Board appointed under Atomic Energy Act, 1972; (8) Chief Controller of Explosives appointed under the Explosives Act and Rules, 1973. No provision is made for an appeal in these Rules.
95In the Municipal Solid Wastes (Management and Handling) Rules, 2000, various functions are to be performed by the Municipal Authority, State Governments, Union Territories, Central Pollution Control Board and State Pollution Control Board or Committee. No appeal provision is made.
In the Ozone Depleting Substances (Regulation & Control) Rules, 2000, various functions have to be performed by the authority specified in Schedule V thereof. Here, in Col (4), the Schedule specifies the 'authority' and Col. 6 specifies the appellate Authority also. The appellate authorities are Secretary, Ministry of Environment and Forests, or in certain cases, the Dy. Secretary in the same Ministry.
In the Noise Pollution (Regulation & Control) Rules, 2000, Rule 2(c) defines 'authority' as an authority or officer authorized by the Central Government or the State Government, as the case may be, in accordance with the laws in force and includes a District Magistrate, Police Commissioner or any officer not below the rank of a Deputy Superintendent of Police. There is a definition of 'Court' in Rule 2(d) but the Rules do not deal with the functions of the 'Court'. No appellate authority is referred.
Bio-Medical Waste (Management & Handling) Rules, 1998 defines 'Prescribed Authority' under Rule 7 for enforcement of the Rules and designates the authority as the State Pollution Control Board in States or such Committees in Union Territories. Rule 13 defines the appellate authority as the authority to be notified by the State Government or Union Territory.
96Thus, it will be seen that in the various Rules made under sec. 3 of the Environment (Protection) Act, 1986, there are authorities/(or in some cases) appellate authorities constituted but there is no appeal to a judicial body. Nor do the appellate authorities, wherever they are constituted, have any expert assistance. They are all bureaucrats.
Water (P&CP) Act, 1974 and Rules made thereunder:
The Water (P&CP) Act, 1974 contains provisions for 'appeals' to an appellate authority, to be constituted by the State Governments to deal with appeals by persons aggrieved by orders of State Board and then a revision to the State Government. (See sec. 25 and 26).
The Union Territory of Chandigarh, on 11.4.88, appointed three officers of Government as the appellate authority for purposes of sec. 28 of the Water (P & Co of P) Act, 1974. The Pondicherry Government, on 5.4.88, appointed its Chief Secretary as the appellate authority. The Delhi Administration appointed a single person appellate authority on 18.2.92 who is the Financial Commissioner.
Haryana (Prevention and Control of Water Pollution) Rules, 1978 (22.12.78) state in Rule 23 that the appellate authority shall consist of two persons to be nominated by the Government and must have the following qualifications with qualification of graduate in Engineering and a third person who is a law graduate with 3 years experience as a lawyer.
97Maharashtra Water (Prevention & Control of Pollution) Rules, 1983 prescribe an appeal to the 'appellate authority' to be designated by the State Government. Punjab Water (Prevention & Control of Pollution) Appeal Rules, 1978 provide for an appeal to the appellate authority. It is not clear who is designated under these Rules.
Uttar Pradesh Water (Consent for Discharge of Sewerage and Trade Effluents) Rules, 1981 provides for an appeal to an appellate authority specified by the Government.
Only in Andhra Pradesh, the appeal under sec. 28 of the Water Act, 1974 read with AP (Water P & P) Rules, 1977 lies to a High Court Judge. (See A.P. Pollution Control Board vs. Prof. M.V. Nayudu 1999(2)SCC 718 at 735.) Thus, except in Andhra Pradesh, there is no appeal to a body which consists of a Judicial Member. There are also no experts to assist the appellate authority.
Air (P&CP) Act, 1981 and Rules made thereunder:
The Air (P&CP) Act, 1981, contains provision in sec. 31 for 'appeals' to an appellate authority to be constituted by the State Government.
The Andhra Pradesh Air (Prevention and Control) Rules, 1982 Rule 37 speaks of an appeal to the appellate authority against orders of the State Board. Gujarat Rules, 1983 also provide in Rule 18 for an appeal. So does 98 Rule 24 of the Haryana Rules, 1983. Rule 25 of the Karnataka Rules, 1983 provide for an appeal. Kerala Rules, 1984, provide for an appeal under Rule 34 to the appellate authority. Rule 21 of Madhya Pradesh Rules provide for the appeal. Rule 32 of the Maharashtra Rules deal with appeals. Tamil Nadu Rules, 1983, provide for appeal in Rule 35. West Bengal Rules, 1983 provide for appeal in Rule 17. The Union Territories Rules, 1983 provide for appeal in Rule 17. We do not have any evidence before us to say that the appeals lie to a Court or a judicial officer who is also having expert advice.
Summary of the appeal provisions in the above Acts and Rules (Lack of judicial and expert inputs):
It will be noticed that several of the special statutes e.g. Environment (Protection) Act, 1986, Water (P&CP) Act, 1974, Air (P&CP) Act, 1981, delegate power to the State Governments/Union Government to designate appellate authorities. The appeals lie generally, as can be seen from the above paragraphs, to various officers of government or Departments of Government. Except in one or two cases, the appeals do not lie to a judicial body comprising a judicial officer. In no case does the appellate authority have the assistance of experts in the field of environment.
In the light of the discussion in the earlier chapters and experience of establishment of Environmental Courts abroad, the Law Commission is of the opinion that the present system is not satisfactory so far as disposal of these appeals are concerned. The appeal is practically the first opportunity for a party or even third parties affected by pollution, to seek relief. In the 99 view of the Commission, such appeals must lie to an appellate Court having special jurisdiction and must comprise of persons who have or had judicial qualifications or have considerable experience as lawyers. They must also be assisted by experts in environmental science. As stated in the earlier chapters, it is now well recognized in several countries that the appeals must lie to Court manned by persons with judicial knowledge and experience, assisted by experts in various aspects of environmental science.
100Chapter VI Two other statutory Environmental Tribunals and Defects therein National Environment Tribunal Act, 1995:
This enactment was made by Parliament, as stated in the preamble, to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto. Liability under sec. 3 is to be on basis of 'no fault' and under sec. 4 compensation is payable. Under sec. 9(1), the Tribunal shall consist of a Chairperson and such members as Vice- Chairpersons/Judicial Members and Technical members as the Central Government deems fit. It can sit in Benches but each Bench must consist of a Judicial and Technical member. Chairman shall be person who is or has been a Judge of the Supreme Court or High Court, or has at least been Vice- Chairman for 2 years. A Vice-Chairman should be a person (a) who is or has been a Judge of a High Court or was a Secretary to Government of India for at least 2 years or has held any other post in Central or State Government, carrying a scale of pay which is not less than that of a Secretary to Govt. of India or (c) held post of Addl. Secretary in Govt. of India for 5 years and has acquired knowledge of or experience in legal, administrative, scientific or technical aspects of the problems relating to environment, or has at least 3 years experience as a Judicial member or a 101 Technical member; or (3) a Judicial Member must be one who is or has been qualified to be a Judge of a High Court or has been a member of the Indian Legal Service and has held a post in grade I of that service for at least 3 years. A Technical Member is a person who has adequate knowledge of or experience in or capacity to deal with administrative, scientific or technical aspects of the problems relating to environment. No appointment of the Chairperson or Vice-Chairperson can be made without consultation of the Chief Justice of India. No appointment of a Judicial or Technical Member can be made except on the recommendation of a Selection Committee appointed by the Central Government consisting of
(a) Chairperson of the Tribunal.
(b) Secretary, Govt. of India, Ministry of Environment and Forests.
(c) Secretary, Ministry of Law, Justice and Company Affairs.
(d) Director-General, Council of Scientific and Industrial Research.
(e) An Environmentalist to be nominated by the Central Government.
Term of office of Chairperson, Vice-Chairperson and other Members is 5 years. Appeals lie to Supreme Court on question of law.
It may be stated that so far as the National Environmental Tribunal is concerned, since the Act itself has not been notified, the Tribunal has not been constituted in that last eight years. The fact remains that neither the Chairperson, nor Vice-Chairman nor Judicial or Technical Members have been appointed to this Tribunal in the last eight years. Such an important environmental Tribunal envisaged by Parliament has unfortunately not come into being. In fact, if there is tragedy like the Bhopal one, there is now no Tribunal which would grant damages expeditiously.
102There are other aspects concerning the powers of the above Tribunal. It can only award compensation. It should have been given all powers which a Civil Court enjoys - so that it can grant declarations, permanent and mandatory injunctions, possession etc. No doubt, there is provision for the Tribunal sitting in Benches but the scheme does not envisage Court in each State. Further, the Members other than Judicial Members, are not always or necessarily experts in environmental matters. For example, under sec. 10(2)
(b), if a Secretary to Government is appointed as Vice-Chairman, he need not possess any experience in environmental matters. It is not clear why only in the case of an Addl. Secretary who could be appointed as Vice- Chairman under sec. 10(2)(c), experience in environmental matters is a condition precedent. Similarly under sec. 10(3)(b), it is not stated that a member of the Indian Legal Service who can be appointed as a Judicial member need be person who has done some work in the field of environment. Again, so far as Technical members under sec. 10(4) are concerned, they can be persons only with administrative or scientific knowledge without any experience in problems relating to environment.
If one looks at the consistent pattern in other countries, as pointed out in Chapter IV, the Environmental Court should consist of Judicial Members and Environmental experts. The reason is that if they are expected to exercise normal judicial function of a Civil Court (as now proposed), or as a Court of original and appellate jurisdiction, there is no scope for appointing administrative officials or public servants other than judicial officers/members of the Bar with considerable experience. The Commission is of the view therefore that the Environmental Court must be 103 manned by persons with judicial experience in the High Court and Members of the Bar with at least 20 years standing and have to be assisted by Environmental experts.
The National Environmental Appellate Authority Act, 1997 This Act was, as stated in the preamble, intended to provide for the establishment of a National Environmental Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operation or process (or class of industries, operation or processes) shall be carried out or shall not be carried out subject to safeguards under the Environmental (Protection) Act, 1986.
Under sec. 4 of the Act, the Appellate Authority was to consist of a Chairperson, a Vice-Chairperson and such other Members not exceeding three, as the Central Government may deem fit. Under sec. 5, the qualification for appointment as Chairperson is that a person who has been
(a) a Judge of the Supreme Court
(b) the Chief Justice of High Court A person cannot be appointed as Vice-Chairman unless he has (a) held for two years the post of a Secretary to Govt. of India or any other post under the Central/State Govt. carrying a scale of pay which is not less than that of a Secretary to Govt. of India and (b) had expertise or experience in administrative, legal, management or technical aspects of problems relating to environmental management law or planning and development.
104It will be noticed that there is some difference between the above provisions and those under the National Environment Tribunal Act, 1995. But here too, the Secretary to Govt. need not necessarily have experience in environmental matters to be appointed as Vice-Chairman.
The term of office is three years.
It is understood that the Appellate Tribunal did not have much work in view of the narrow scope of its jurisdiction as per notification issued. It dealt with very few cases. After the term of the first Chairman was over, no appointment has been made.
Thus these two National Environmental Tribunals are today unfortunately non-functional. One had only jurisdiction to award compensation and never actually came into existence. The other came into existence but after the term of the first Chairman ended, none has been appointed.
It is in the background of this experience with the laws made by Parliament with regard to Environmental Tribunals that we propose to make appropriate proposals in chapter IX for constitution of environmental courts which can simultaneously exercise appellate powers as a Civil Court, and original jurisdiction as exercised by Civil Courts. These proposals will be contained in Chapter IX.
105CHAPTER VII Can a law made by Parliament under Art. 252 (like the Water (P&CP) Act, 1974), be amended by Parliament under a law made under Art. 253? What is the purpose of Art. 247?
An important issue that arises when we are contemplating a Central Act on 'Environmental Courts' by Parliament, revolves round Arts. 252 and 253 of the Constitution of India. As explained below, the said Articles enable Parliament to make laws with respect to matters falling under List II (State List) in the Seventh Schedule of the Constitution in regard to which the State Legislature is entitled to make legislation.
We shall initially refer to Art. 252 and Art. 253.
Art. 252 deals with the power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. It reads as follows:
"Art. 252: (1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the House of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other States 106 by which it is adopted afterwards by resolution in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislatures of that State.
(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the legislature of that State."
Art. 253 contains a non-obstante clause. It reads as follows:
"Art. 253. Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
Entry 13 of List I of Schedule VII reads as follows:
"Participation in international conferences and associations and other bodies and implementing decisions made thereat"
The above entry enables Parliament to make laws under this entry even though the subjects may fall within the domain of the State Legislatures. Art. 253 gives overriding power to Parliament in this behalf. In S. Jagannath vs. Union of India: 1997 (2) SCC 87, the Supreme Court observed that Art. 253 is in conformity with the object declared by Art. 51 107
(c) (fostering respect for international law and treaty obligations), Treaty- making and implementing of treaties etc. and is subject to Union legislation, under Entry 14, List I. Art. 253 (entering into treaties and agreements and conventions) by the use of the words "notwithstanding the foregoing provisions", empowers the Union Parliament to make laws with regard to entries in List II, insofar as that may be necessary for the purpose of implementing the treaty obligations of India. Thus, an enactment made under Entry 13, List I, Schedule VII (participation in international conferences etc.) read with Art. 253 to implement an international agreement would override and prevail over any inconsistent State enactment.
We shall next refer to the entries in List I (Union List), List II (State List) and List III (Concurrent List) of the Seventh Schedule which contain the list of legislative powers of Parliament and the States, in so far as some environmental related matters are concerned.
List I (Union List): Atomic energy and mineral resources (Entry 6); industries declared necessary for defence (Entry 7); shipping and navigation (Entry 24); maritime shipping and navigation (Entry 25); industries expedient in national interest (Entry 52); regulation and development of oil field and mineral oil resources (Entry 53); regulation and development of mines and minerals (Entry 54); regulation and development of inter-state river or river valleys (Entry 56); fishing and fisheries (Entry 57).
List II (State List): Public health and sanitation (Entry 6); agriculture (Entry
14); preservation, protection and improvement of animal stock (Entry 15);
108water, water supplies, irrigation, canal, drainage and embankment (Entry
17); fisheries (Entry 21); regulation of mines and mineral development (subject to the provisions of List I with respect to regulation and development under the control of the Union) (Entry 23); industries subject to the provisions of Entries 7 and 52 of List I (Entry 24).
List III (Concurrent List): Prevention of cruelty to animals (Entry 17); forests (Entry 17A); protection of wild animals and birds (Entry 17B).
The Tiwari Committee appointed by Government for "Recommending Legislative Measures and Administrative Machinery for Ensuring Environment Protection" (1980) (Dept. of Science and Technology, New Delhi), recommended that a new entry as 'environmental protection' be introduced in List III to enable the Central as well as State Governments to legislate on environmental subjects. This has not been done so far.
But, it is undoubted that under various Articles, such as Arts. 252 and 253, Parliament has power to pass central legislations on subjects in the State List (List II) of the Seventh Schedule, in certain circumstances.
So far as prescribing an appellate Court like the proposed Environment Court by law to be made by Parliament under Art. 253 by amending the Air (P&CP) Act, 1981, the Environment (Protection) Act, 1986, there is no difficulty because these two laws have also been made by Parliament in exercise of its legislative powers under the same Art. 253. The issue arises only so far as the Water (P&CP) Act, 1974 is concerned 109 which was made by Parliament in exercise of its legislative powers under Art. 252(1) and not under Art. 253. Question is whether it can be amended only by following the procedure of State Legislatures passing resolutions or whether, without following such a procedure, the Water (P&CP) Act, 1974 can be amended by Parliament by passing an amending law under Art. 253 for the purpose of providing appellate jurisdiction to the proposed Environmental Court under the Water (P&CP) Act, 1974?
The Water (P&CP) Act, 1974 was enacted after some States desired Parliament to enact law under Art. 252(1) on the subject of 'water' etc. which are in List II (State List) for the purpose of uniformity. Those State Legislatures had passed resolutions for that purpose. After Parliament passed those laws, several other States adopted the Water (P&CP) Act, 1974. In view of Art. 252(2), if such a law is passed by Parliament under Art. 252(1) in respect of a matter in List II for the purpose of amendment in the said law, it is necessary to follow the same procedure envisaged by Art. 252(1) by way of State resolutions. Clause (2) of Art. 252 requires such a procedure to be followed.
But, the Air (P&CP) Act, 1981 was, however, passed by Parliament not under Art. 252 but under Art. 253 which enables Parliament to make laws in respect of subjects in List II, if it is for the purpose of implementing "any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
110The Air Act (P&CP) Act, 1981 in its Preamble, expressly refers to the "decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972, in which India participated", and the decision was that countries should 'take appropriate steps for the preservation of the national resources of the earth which, among other things include the preservation of the quality of air and control of air pollution'. The preamble further states that 'it is considered necessary to implement the decisions aforesaid insofar as they relate to the preservation of the quality of air and control of air pollution'. Thus, Parliament resorted to Art. 253 rather than to Art. 252 while passing the Air (P&CP) Act, 1981. That Act can be amended by another law by Parliament under Art. 253.
The Environment (Protection) Act, 1986 was also passed by Parliament under Art. 253 and the preamble refer to the decisions taken at UN Conference on the Human Environment held at Stockholm in June 1972 on the protection and improvement of human environment. The preamble states that "it is considered necessary further to implement the decisions aforesaid insofar as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property". The above Act can, therefore, also be amended by Parliament under another law if passed under Art. 253.
The National Environment Tribunal Act, 1995 in its preamble squarely relies on the 'United Nations Conference on Environment and Development' held at Rio de Janeiro in June 1992, in which India participated, calling upon States to develop national laws regarding liability and compensation for the victims of pollution and other environmental 111 damages. It also states that it was considered expedient "to implement the decisions of the aforesaid Conference so far as they relate to the protection of environment and payment of compensation for damage to persons, property and environment while handling hazardous substances". This Act can, therefore, be amended or repealed by another law if made by Parliament under Art. 253.
The National Environment Appellate Authority Act, 1997 is an Act to provide for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any "industries, operation or process", "or class of industries, operations or processes" shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 and for matters connected therewith or incidental thereto". In view of its linkage with the above Act of 1986, there is thus no difficulty in amending or repealing this Act by an Act to be made by Parliament under Art. 253.
Thus, so far as constituting an Environment Courts with appellate powers, there is no difficulty with regard to amending the Air (P&CP) Act, 1981 (passed expressly for the purpose of implementing the decision taken at the Stockholm Conference, 1972) or in regard to the Environment (Protection) Act, 1986 (passed for the same purposes of the 1972 Conference). These two Acts are also referable to Art. 253 and the new law conferring such appellate powers on the proposed Environment Court can be made by Parliament under Art. 253, by amending or repealing provision in the three enactments, namely, the Air (P&CP) Act, 1981, the Environment (Protection) Act, 1981 and the National Environment 112 Appellate Authority Act, 1997, under Art. 253 once again. Similarly, the National Environment (Tribunal) Act, 1995 can also be repealed or amended under Art. 253.
Question, however, arises, as stated earlier, with reference only to the Water (P&CP) Act, 1974 which was expressly passed under Art. 252, whether it would require, in view of clause (2) Art. 252, passing of fresh resolutions by the State Legislatures as envisaged by that clause for the purpose of deleting sec. 28 which enables appellate powers to be conferred by the State Government and transfer the appellate powers to the proposed Environmental Court. This has become necessary because, as at present, the States (except A.P.) have constituted appellate authorities consisting of bureaucrats.
This question is, however, not difficult to answer.
We shall first explain the scope of Art. 253. Parliament chooses to exercise powers under Art. 253, where Parliament feels it necessary to make a law for implementing international agreements, or treaties or decisions taken at international conferences in which India has participated. This power of Parliament is an independent power and is not controlled by Art.
252. Further, Art. 253 opens with the words, "Notwithstanding anything in the foregoing provisions of this Chapter". The non-obstante clause puts the matter beyond doubt and is applicable not only for making a law by Parliament on the subject for the first time under Art. 253 (e.g. Air (P&CP) Act, 1981) when no law on the subject was made earlier by Parliament either under Art. 252 or under any other of the foregoing Articles preceding 113 Art. 253 (i.e. Art. 245 to 252), but also where Parliament wants to exercise its special powers under Art. 253 even where it had passed a law under Art. 252 based on the resolutions of State Legislatures. In other words, where, under Art. 252 pursuant to desire of the States which passed resolutions (e.g. the Water (P&CP) Act, 1974), Parliament had passed an Act under Art. 252, still Parliament if it later feels that such a law requires to be amended or repealed for the purpose of "implementing international agreements or treaties or decisions taken at international conferences" in which India has participated, it is, in the opinion of the Commission, clearly permissible for Parliament to exercise its special powers under Art. 253 to pass an amending or repealing Act (under Art. 253) for the purpose of amending or repealing such earlier law made by Parliament under Art. 252, in regard to a matter falling under List II. The Parliament's power under Art. 253 is an independent power and is not confined to a law made for the first time but is also applicable for the purpose of amending or modifying a law made by Parliament under Art. 252. The power of Parliament under Art. 253 to do so is further clearly safeguarded by the non-obstante clause in the opening part of Art. 253. The words "foregoing provisions of this chapter" in the opening clause, "Notwithstanding anything in the foregoing provisions of this Chapter" permit Art. 253 to override Articles 245 to 251 of the Chapter but also to override both the clauses (1) or (2) of Art. 252 in that Chapter, which precede Art. 253.
When Art. 253 thus overrides clause (2) of Art. 252, there is no difficulty in stating that though the Water (P&CP) Act, 1974 was one expressly passed by Parliament under Art. 252 in respect of a matter in List II (after resolutions were passed by State Legislatures), the said law made 114 by Parliament can be amended or modified or repealed under Art. 253, without following the procedure indicated in clause (2) of Art. 252 for the purpose of implementing decisions taken in international conferences 'for protection of environment'. All that is necessary is that while passing such amending or repealing Act, amending the Water (P&CP) Act, 1974, Parliament must state in the preamble that Parliament is passing the amending law for giving effect to international agreements, treaties or decisions taken at international conferences. In the present context, such conferences are the 1972 Stockholm Conference and the Rio de Janeiro Conference of 1992.
We have to refer here to another aspect concerning the Water (P&CP) Act, 1974. The said Act was passed by Parliament pursuant to resolutions passed by the legislatures of the State of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, J&K, Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal. The Act was adopted under Art. 252 by the States of Sikkim ((1989), Meghalaya (1977), Maharashtra (1989), Manipur (1988)).
It appears to us that the Water (P&CP) Act, 1974 has not been adopted in some States as such.
We are also aware that certain amendments made by Parliament by Act 53/78 following the procedure under Art. 252(2) to the Water (P&CP) Act of 1974 are yet to come into force in some States which had passed resolutions for enacting the Principal Act or which had adopted it later, because some of those States have not yet passed fresh resolutions adopting 115 the Amending Acts. Such a situation has arisen because the Amending Act of 1978 was not specifically passed by Parliament under Art. 253 for giving effect to international agreements, treaties or decisions taken at international conferences. If Parliament had passed the amending law of 1978 under Art. 253, there would have been no need for the States to pass resolutions in their Legislatures or to adopt the amending law of 1978 amending the Water (P&CP) Act, 1974. After all, the idea is to have uniform laws in all the States if they are made to implement decisions taken at international environment-related conferences.
Two proposals can be considered here.
(1) One is that sec. 28 of the Water (P&CP) Act, 1974 be substituted under the proposed Act, prescribing an appeal to the Environment Court. The said amendment will then get incorporated in the parent Act and will substitute sec. 28 in all those States where the Water Act is in force, either because of its original resolution or because of subsequent adoption. But, in those States where the Water (P&CP) Act, 1974 has not come into force at all, it is possible to make a provision in the proposed Act that the proposed sec. 28 giving a right of appeal to the Environment Court shall alone be applicable whenever the Water (P&CP) Act, 1974 is adopted in those States, or (2) We may, instead, provide that notwithstanding anything in sec. 28, Water (P&CP) Act, 1974, the person aggrieved by an order of Pollution Board passed under sec. 25 or 26 of Water Act, can appeal to the Environment Court. Such a provision would apply 116 to Water (P&CP) Act, 1974 where it is now in force or where it will be adopted in future.
In our view, the second proposal is preferable inasmuch as it will be referable to Art. 253 and will have overriding effect over the Act passed under Art. 252, even where the States, which have not so far adopted the Act, would opt to adopt the parent Act of 1974 or the Act as amended in 1978 or in some other manner.
Summarising our conclusion,- the Air (P&CP) Act, 1981 and the Environment (Protection) Act, 1986 were passed by Parliament with reference to the Stockholm Conference of 1972 (i.e. under Art. 253) and the National Environment Tribunal Act, 1995 was passed by Parliament by referring to the Rio de Janeiro Conference, 1992 and the National Environment Appellate Authority Act, 1997 was passed specifically for the purpose of enforcing the safeguards under the Environment (Protection) Act, 1986. Therefore, there is no difficulty for Parliament passing a law relating to Environment Courts in exercise of its powers under Art. 253 to amend or repeal the Air (P&CP) Act, 1981, The Environmental (Protection) Act, 1986, National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997. Similarly, such a law made under Art. 253 can override the provisions of sec. 28 of the Water (P&CP) Act, 1974 which enables the State Government to constitute the appellate authorities. The power which was given to the State Government under the Water (P&CP) Act, 1974 in sec. 28 to constitute appellate authorities can be superceded by fresh provisions of law proposing Environment Courts, as the 117 appellate Court, in the manner stated above. Such a law can be passed under Art. 253 of the Constitution.
Art. 253 and special law for Environment Courts: Does it flow from any decision in an International conference to which India is a party?
The question is whether the constitution of separate Environment Courts by a statute of Parliament under Art. 253 could be justified by tracing this as an act of implementation of any decision taken at an International Conference? If it is so, invoking Art. 253 to make such a law will be permissible for Parliament.
There are two answers to this question.
(A) The fact that the National Environment Tribunal Act, 1995 and the National Environmental Appellate Authority Act, 1997 were passed by Parliament (as analysed earlier in this chapter), for the purpose of implementing the decisions at the Rio Conference of 1992 and Stockholm Conference of 1972 show that the proposed Environmental Courts Act can also be similarly passed by Parliament. All these Acts are intended to provide speedy adjudicatory bodies in respect of disputes arising in environmental matters.
(B) The Rio Declaration of 1992 expressly refers to 'remedies' to achieve the objects of the Declaration made at the Conference.
118Principle 10 of the Rio Declaration on Environment and Development, 1992 refers to effective access to 'judicial and administrative proceedings including redress and remedy' and states that they 'shall be provided'.
Principle 10 reads as follows:
"Principle 10: 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 process. 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."
Principle 10 of the Rio Declaration, clearly requires Judicial remedies to be provided. There is, therefore, no difficulty in Parliament invoking its special powers to make a law on the subject of 'Environmental Courts' under Art. 253, even if it be that there is an encroachment into the entries in List II of Schedule VII relating to 'Water', which is a State subject.
The proposed Courts will also be referable to Art. 247 read with Entry 13 of List I 119 The Central Government can establish 'additional Courts' for purposes of implementation of statutes made by Parliament or for implementation of pre-existing statutes as on 26.1.1950, referable to List of VII Schedule under Art. 247.
Art. 247 reads as follows:
"Art. 247: Power of Parliament to provide for the establishment of certain additional Courts - Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional Courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List."
Entry 13 of List I reads: "Participation in international conferences, associations and other bodies and implementing of decisions made thereat".
Text of Art. 247 is drawn from the Canadian Constitution. The Calcutta High Court dealt with this Article elaborately in Indu Bhushan De vs. State: (AIR 1972 Cal). But the words 'additional Courts' have not come for interpretation. In our view, the words 'additional Courts' must be construed widely and apply also to special Courts like the proposed Environment Courts. The word 'additional', in our view, mean additional to the overall number of Courts existing and it is not necessary that there should be an existing class of such Courts. In fact, whenever the Central Government establishes Courts for a particular class of cases for the first time, this provision is attracted and it is not an argument to say Art. 247 120 cannot be invoked unless there are existing Courts for that class of cases. Otherwise, Art. 247 can never be invoked at all. When such Courts are and can be established for the first time, it cannot be argued that there were no such Courts earlier and hence they cannot be established even initially. Some day or other, they must be established for the first time.
Further, in view of Art. 11A in List III, inserted by the 42nd Constitution (Amendment) Act, 1976, deleting these words from Art. 3 of List II, Parliament can establish these proposed Environment Courts under the head 'Administration of Justice'. The word 'Courts' in that Article cover the proposed Environmental Courts which are Civil Courts. See Re Special Courts Bill, 1978 = AIR 1979 SC 69.
Right of Appeal to Supreme Court The right to a statutory appeal to the Supreme Court is referable to Entry 77 of List I of VII Schedule. Such a right of appeal is now available against orders of the CEGAT, the MRTP Tribunal, Consumer (Protection) Act, 1986, and POTA (see Chapter IX for a detailed discussion) and new amendments to the Companies Act, 1956.
121Chapter VIII Environmental Courts to follow certain fundamental principles We are of the view that the Environment Court must follow the following principles. These principles must be part of the proposed statute dealing with Environmental Courts.
Polluter Pays Principle The Polluter Pays Principle was first adopted at international level in the 1972 OECD Council Recommendation on Guiding Principles concerning the International Aspects of Environmental Policies. The 1974 principle experienced revival by OECD Council in 1989 in its Recommendation on the Application of the Polluter Pays Principle to Accidental Pollution, and the principle was not to be restricted to chronic polluter. In 1991, the OECD Council reiterated the Principle in its Recommendations on the Uses of Economic Instruments in Environmental Policy.
The European Council adopted it in its Recommendation 75/436 in 1975 and reiterated in the Fifth Environmental Action Programme and in the 2001 EC Guidelines and in the Waste Framework Directive 1991 and Art. 10 of the Directive 1999/31/EC and Art. 99 Directive 2000/Cr/EC. It was adopted in single European Act (SEA) by Art. 130 R(Z) (new Article 174(2)) and Art. 130 of the EC Treaty.
122National laws in Belgium, France, Germany have adverted to this principle.
In international law, the principle is incorporated in the 1980 Athen Protocol, the 1992 Helsinki Convention on the Transboundary Effects Industrial Accidents, the 1993 Lugano Convention on Civil Liability for Damage Resulting From Activities Dangerous to Environment. A host of other treaties and conventions are set out (at pp. 23, 24) in 'Environmental Principles' (by Nicolas de Sadeler, Oxford 2002).
This principle was first stated in the Brundtland Report in 1987. This principle was also adverted to in Indian Council for Enviro-legal Action vs. Union of India 1996(3) SCC 212. It was stated; (p 246 at para 65) "...we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country.......... Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity".
123In Vellore Citizens' Welfare Forum vs. Union of India: 1996(5) SCC 647, (at 659), Kuldip Singh J stated:
"The 'Polluter Pays Principle' as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of 'Sustainable Development' and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology."
This principle of compensating the victim as well as the environment is laid down in sec. 3 of the National Environment Tribunal Act, 1995. Section 3(1), as already stated, refers to the compensation payable and it will be as per the heads specified in the Schedule. The Schedule contains items (a) to (n) out of which items (a) to (e) relate to the individual affected by the polluter while items (f) to (n) relate to the environmental damage, including that to the flora and fauna.
Hazardous substances - Absolute liability Absolute or strict liability is one where fault need not be established. It is no-fault liability.
Initiatives such as the 1993 Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to Environment; the European 124 Commission Green Paper on environmental liability (1993) and the Chapter on liability for contaminated land of the Swedish Environment Code (2000), suggest that the polluter pays principle calls for the establishment of a strict liability regime. There are four Nuclear Conventions, one of 1960, two of 1963 and another of 1971 which lay down strict liability. There are others dealing with oil spill-overs of 1969, 1971 and 1992 which too impose strict liability. More recently, in its White Paper on Environmental Liability, the European Commission stressed that liability independent of fault must be favoured for two reasons: first, it is very difficult for plaintiffs to establish fault in environmental liability cases; and secondly, it is the person who undertakes an inherently hazardous activity, rather than the victim or society in general, who should bear the risk of any damage that might ensue.
Our Courts or statutes have, however, not extended the principle of strict liability to all cases where 'Polluter Pays Principle' applies, but have confined such absolute liability only to cases where injury to person or property is occasioned by use of 'hazardous' substances.
In the Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086, the Supreme Court laid down that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non- delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to 125 say that it had taken all reasonable care and that the harm occurred without negligence on its part. The larger and more prosperous the enterprise, greater must be the amount of the compensation payable for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The principles laid down in Ryland vs. Fletcher: LR 3 H.L. 330 were modified. It is no longer permissible in the case of injury by use of hazardous substances, to prove merely that the injury was not foreseeable or that there was no unnatural use of the land or premises by the factory, as was the position under the law laid down in Rylands vs. Fletcher. This principle was reiterated in Indian Council for Environ-Legal Action vs. Union of India 1996(3) SCC 212 (see p 246, para 65) and other cases by the Supreme Court of India.
The above principle (called 'no fault' principle) was, in fact, incorporated in sec. 3 of the National Environmental Tribunal Act, 1995, read with the special definition of the words 'accident' in sec. 2
(a) and 'handling' in sec. 2(e) and 'hazardous substance' in sec. 2(f) of that Act. Sec. 2(a) and 2(e) refer to hazardous substances which are used or handled and which cause the 'accident'. Sec. 2(f) defines 'hazardous substance' as any substance or preparation which is defined as hazardous in the Environment (Protection) Act, 1986 and exceeding such quantity as specified by the Central Government under the Public Liability Insurance Act, 1991. Sec. 3 states as follows:
"Sec. 3: Liability to pay compensation in certain cases on principle of no fault:
126(1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident, the owner shall be liable to pay compensation for such death, injury or damage under all or any of the heads specified in the Schedule.
(2) In any claim for compensation under subsection (1), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person.
Explanation: (i) 'workman'.......
(ii) 'injuries'.....
(3) .................................................... ...........
.................................................... .........."
Clause (3) refers to apportionment of liability between different tort feasors. In the Schedule, there are clauses (a) to (n). Clauses (a) to (e) deal with damage to person or property, clause (f) to (n) deal with damage to ecology.
Precautionary Principle The precautionary principle had its origin in the mid-1980s from the German Vorsorgeprinzip. The decisions adopted by States within the North Sea Ministerial Conference mark the first use of this principle in international law. Explicit reference is made to it in the 1984 Bremen Ministerial Declaration of the International Conference on the Protection of 127 North Sea, the 1987 London Ministerial Declaration of the Second International Conference for the Protection of the North Sea, the 1990 Hague Declaration of the Third Conference on the Protection of the North Sea and the 1995 Declaration of the Fourth Conference on the Protection of the North Sea.
It was expanded in the field of marine pollution since 1980 and came to be set out in the 1990 OPRC Convention and various other Conventions. It was then extended to protection of coastal areas and fisheries sector and to atmospheric pollution. (See Environmental Principles, Oxford, 2002 by Nicolas de Sadeleer p 94-95).
It soon came to be included as a general principle of environmental policy in the U.N. Economic Commission of Europe in 1990 (UNECE) in Bergen; in 1989 by the Governing Council of the UN Environment Programme (UNEP); in 1990 by the Council of Ministers of the Organisation of African Unity (CAU); and of the 1990 Ministerial Conference on the Environment of the UN Economic Commission for Asia and Pacific (ESCAP) and finally in January 1991 in the Environment Ministers of the Organisation for Economic Co-operation and Development (OECD).
It then came to be accorded universal recognition in Principle 15 at Rio in the 1992 UN Conference on Environment and Development which resulted in the Declaration on Environment and Development. Similarly, the 1992 Framework Convention on Climatic Change (UNFCC) also refers 128 to it. So does the preamble to the 1992 Convention on Biological Diversity (CBD).
It has been accepted by the European Court of Human Rights and applied by WTO Dispute Resolution Bodies, the International Tribunal for the Law of the Sea, the European Community Law.
National legislations in the EC Member States (Germany, France, Belgium, Sweden) have adopted it. It is applied in UK because of Art 174 (2) of EC Treaty. It is applied also by US Courts and in Australia.
The Supreme Court of India, in the case of Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647 referred to the precautionary principle and declared it to be part of the customary law in our country.
The Principle is contained in Principle 11 of the Principles laid down in the UN General Assembly Resolution on World Charter for Nature, 1982 and was reiterated in the Rio Conference of 1992 in its Principle No. 15. It reads as follows:
"Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing cost effective measures to prevent environmental degradation".129
In the Vellore case, 1996 (5) SCC 647, Kuldip Singh J referred to this principle as part of our law: (p 660 para 14) "In view of the above mentioned constitutional and statutory provisions, we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country."
In the A.P. Pollution Control Board case 1999(2) SCC 718, the Supreme Court referred to an article (Vol 22 Harv. Envtt L Rev 1998 p 509 at 547) to this principle as follows (see para 34):
"There is nothing to prevent decision-makers from assessing the record and concluding that there is inadequate information on which to reach a determination. If it is not possible to make a decision with 'some' confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. To ensure that greater caution is taken in environmental management, implementation of the principle through judicial and legislative means is necessary".
The Principle of Prevention The Prevention Principle takes care of reckless polluters who would continue polluting the environment in as much as paying for pollution is a small fraction of the benefits they earn from their harmful acts or omissions.
130Prevention of pollution must therefore take priority over compelling the polluter to cough up.
The Train Smelter case was an international award which directed Canada to install protective measures to stop pollution in the neighbouring countries arising out of a foundry. This was treated as a transboundary obligation under international law. This principle was engrafted in Principle 21 of the 1972 Stockholm Declaration on Human Environment which stressed the 'responsibility (of States) to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction'. This was reiterated in Principle 2 of the Rio Declaration. This principle is incorporated in the 1979 LRATP Convention, the 1985 Vienna Convention for the Protection of the Ozone layer and the 1992 (B) and the Preamble of the UNFCCC. This is also a part of E.C. Law.
There are treaties based on this principle on the subjects of marine environment, highseas fisheries, protection of rivers, atmospheric pollution, the Alps, Antarctica etc. (See Environmental Principles by Nicolas de Sadeleer, Oxford 2002, pp 62 to 65.
The concept of sustainable development draws support from the Prevention Principle as stated in ICJ's ruling in Gabakovo-Nagymares case, relating to dam on the Danube.
National laws have also recognized this principle. Swiss, Danish, Belgian, French, Greek laws incorporate this principle. So does the US 131 Pollution Prevention Act, 1990 (ibid, Nicolas de Sadeleer, page 70 to 72). Best available Technologies (BAT) is another aspect of this principle. Environment Impact Assessment is the crucial procedure which seeks to ward off prevention. This is reiterated in Principle 17 of the Rio Declaration.
Principle of New Burden of Proof:
The UN General Assembly Resolution of 1982 on World Charter for Nature established this principle. It stated:
"Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits outweigh potential damage to nature..."
EC Law also demonstrates the shift in the burden in the case of use of drugs, pesticides, food products, additives, food stuffs etc. EC's new hazardous wastes lists 200 categories of listed wastes.
In US, though the Supreme Court in Industrial Union Department AFL - CIU vs. American Petroleum Institute 448 US at 632-635 (1980) put the initial burden on the regulator, several American statutes have shifted the burden of proof - as Federal Foods and Drug Act (21 U.S.C. sec. 348(c) (3)A), The Federal Insecticide, Fungicide and Rodenticide Act (FIFA) (21. USS sec. 360(a)(4)(B), Marine Mammal Protection Act. (16 USC sec. 1371) and the ESA. The WTO Appellate body has also applied this principle.
132Environmental Impact Assessment is intended to reduce the uncertainties attached to potential impacts of a project.
In the Vellore Case 1996(5) SC 647, Kuldip Singh J observed (see p
658)(para 11) as follows:
"(iii) the 'onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign."
In A.P. Pollution Control Board case: 1999 (2) SCC 718 (at p 734) it was explained that the 'precautionary principle' has led to the new 'burden of proof' principle. In environmental cases where proof of absence of injurious effect of the action is in question, the burden lies on those who want to change the status quo. This is often termed as a reversal of the burden of proof, because otherwise, in environmental cases, those opposing the change could be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden and the party who wants to alter it, must bear this burden.
Sustainable Development:
133Development of the countries and eradication of poverty must be balanced against conservation of environment. Principle 3 of the Earth Summit Declaration (1992) at Rio states that the 'right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations'. Principle 4 states that in order 'to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation of it'. Principle 5 states that all 'States and all people shall cooperate in the essential tasks of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better the needs of the majority of the people of the world'. Principle 6 requires that the special situation and needs of developing countries shall be given priority. Principle 7 requires that developed countries acknowledge the responsibility they bear in the international pursuit of sustainable development. Principle 8 requires that in order to achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies. Principle 9 requires improvement in capacity building for sustainable development. Principle 27 requires States and people to cooperate for the purpose of sustainable development.
In Gabakovo vs. Nagymares: the ICJ ruling on the dam on Danube (1997), the majority observed that the 'concept of sustainable development' arose out of the need to reconcile economic development with the protection of environment. Weeramantry J, went further and observed that the concept has become a principle of modern international law.
134Art. 37 of the December 2000 Charter of Fundamental Rights of the European Union refers specifically to the principle of 'sustainable development. The preamble to the WTO Agreement too refers to it. So does the WTO Ministerial Declaration of 2001. Art. 2 of the EC Treaty refers to it.
135This concept was mentioned in the Bruntland Report, 1987. The principle of 'sustainable development' is at the basis of the fundamental principles of the law of environment. The principle was referred to in Vellore Citizens' Welfare Forum case : 1996(5) SCC
647. It was stated that there is today no conflict between 'development' and 'safeguarding ecology'; it is a viable concept which has been developed after two decades from Stockholm to Rio; it is a principle which seeks to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystem. The Bruntland Report stated as follows:
"Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs."
It is a principle which balances development and ecology. The 'polluter Pays' principle is part of this concept as it requires the polluter to restore the status quo ante as it stood before the pollution.
In Narmada Bachao Andolan vs. Union of India 2000(10) SCC 664, it was pointed out that when the effect of a project is known, then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. "Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation."
136In fact, in several modern constitutions, the fundamental right to protect the environment from degradation is coupled with the right to sustainable development. The latest Constitution of South Africa is an example where Art. 24 deals with this aspect. It reads as follows:
"Article 24: Everyone has the right -
(a) to an environment that is not harmful to their health or well being; and
(b) to have the environment protected, for the benefit of present and future generation, through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and (iii) secure ecologically sustainable development and use of
national resources while promoting justifiable economic and social development."
The National Commission to Review the Working of the Constitution refers to the right to safe drinking water, clean environment and proposed the insertion of Art. 30D in the Constitution. Art. 30D as recommended by the Commission reads as follows:
"Art. 30-D. Right to safe drinking water, prevention of pollution, conservation of ecology and sustainable development.-
Every person shall have the right -137
(a) to safe drinking water; (b) to an environment that is not harmful to one's health or well being; and (c) to have the environment protected, for the benefit of present and future generations so as to - (i) prevent pollution and ecological degradation; (ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development."
The above Commission states in paras 3.22.1 and 3.22.2 (Vol. 1) that the right to healthy environment and its protection and the right to development are "group rights" now loosely described as "third generation rights". The right to "sustainable development" has been described by the UN General Assembly as an inalienable right. The Declaration recognizes that "Human being is the central subject of the development process and that the development policy shall make the human being the main participant and beneficiary of development". "Development" is defined as "a comprehensive, economic, social, cultural and political process, which aims at the constant improvement of the well being of the entire population in development and in the fair distribution of benefits therefrom". The Rio Conference of 1992 declared human beings as centers of concern for sustainable development. Human beings are, it is said, entitled to a healthy and protective life in harmony with nature (Principle 1). "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation of it". The 1997 Earth Summit meeting of 100 nations in New York affirmed these principles.138
Public trust doctrine:
The 'public trust' doctrine was referred to by the Supreme Court in M.C. Mehta vs. Kamal Nath: 1997 (1) SCC 388. The doctrine extends to natural resources such as rivers, forests, sea shores, air etc., for the purpose of protecting the eco-system. The State is holding the natural resources as a trustee and cannot commit breach of trust. In the above case, the State's order for grant of a lease to a motel located on the bank of the river Beas which resulted in the Motel interfering with the natural flow of the water, was quashed and the public company which got the lease was directed to compensate the cost of restitution of environment and ecology in the area.
Inter-generational equity:
Principles 1 and 2 of the 1972 Stockholm Declaration refer to this concept. Principle 1 states that Man bears solemn responsibility to protect and improve the environment for the present and future generations. Principle 2 states that the national resources of the Earth must be safeguarded for the 'benefit of the present and future generations through careful planning or management, as appropriate'.
Principle 3 of the Rio Declaration, 1992 also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.
139The UN General Assembly Resolution 37/7 of 1980 also refers to the need for maintaining the balance between development and conservation of nature in the interest of present and future generations.
Over-exploitation of earth, water and other natural resources by the present generation must be prevented so as to preserve them for the benefit of future generations.
The Philippines Supreme Court entertained a case by a group of citizens representing the future generations for preservation of the ecology. (Minors Oposa vs. Secretary of the Dept. of Environment and Natural Resources (DENR) (1994) 33 ILM 173 (see Right of Future Generations by K.I. Vibhuti Vol. 21 Academy Law Review p. 219-235.) The Constitution of Philippines of 1987 confers in Art. 11, sec. 16 a fundamental right to a balanced and healthful ecology and mandates the State 'to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature'. The then President of the Philippines issued an executive order in 1987 in that behalf which specifically referred to the right so conferred 'not only for the present generation but for future generation as well'.
In Minors Oposa, a group of Filipino minors named OPASA, joined by their respective parents, representing their own generation as well as generations yet unborn, urged the Supreme Court to enforce their and their unborn successors' constitutional right to a balanced and healthful ecology guaranteed under Art. 11, sec. 16 and sought cancellation of all existing 140 logging permits issued by the Dept. of Environment and Natural Resources (DENR) to different companies on the basis of the Timber Licence Agreements (TLAs) and for restraining the DENR from accepting, processing, reviewing or approving the TLAs.
The Supreme Court allowed the applicants to file the case and emphasized the duty of the State as parens patriae. The Court observed that the petitioner's 'personality to sue on behalf of the succeeding generations can only be based on the concept of intergenerational responsibility'. The Court said:
"Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put differently, the minors' assertion of their right to sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for generations to come. The present generation, the Court opined, is a trustee and guardian of the environment for succeeding generations. Or else, the future generations would inherit nothing but 'parched earth'".
These and other principles must be required to be applied by the Environment Courts and provision must be made therefor in the statute.
141CHAPTER IX Proposals for Environmental Courts in India As pointed out in Chapter I, Environmental Courts manned by a Judge and two experts at the regional level was advocated by the Supreme Court in M.C. Mehta vs. Union of India, 1986 (2) SCC 176 (at 202). This was reiterated by the Supreme Court in Indian Council for Enviro-Legal Action vs. Union of India, 1996 (3) SCC 212. Finally, the need for such Environment Courts was referred to in A.P. Pollution Control Board vs. M.V. Naidu, 1999 (2) SCC 718 and in the follow up case in A.P. Pollution Control Board II vs. M.V. Naidu, 2001 (2) SCC 62, the Court required the Law Commission to go into this question.
We have referred, in Chapter V, to the existing Court-system in India in regard to environmental issues and also to the scheme of appointment of bureaucrats as appellate authorities by the State Governments under sec. 28 of the Water (P&CP) Act, 1974 or sec. 31 of the Air (P&CP) Act, 1981 or by the Central government under sec. 25 of the Environment (Protection) Act, 1986. These appeals under the special Acts at present are being disposed of by senior public servants nominated by the Governments. Presently, appeals are neither to a judicial body (except under the Water (P&CP) Act, 1974 in Andhra Pradesh) nor to an expert in the field of environment.
142For the first time, when the National Environment Tribunal Act, 1995 was passed, Parliament thought that the Tribunal should be manned by a member of the superior Judiciary. Similarly, in 1997 when the National Environment Appellate Authority, 1997 was constituted, the authority was to consist of a retired Supreme Court Judge and Members having scientific experience etc. But, these Tribunals are now non-functional.
In our view, it is necessary that all the appellate powers now conferred under the (a) Water (P&CP) Act, 1974, (b) the Air (P&CP) Act, 1981 and (c) the appellate authority constituted under various Rules made under the Environment (Protection) Act, 1986 must go before the proposed Environment Court, which shall consist (in each State or a group of States) of three Judicial Members, who are (a) either sitting or retired Judges of a High Court or (b) experienced Members of the Bar (with not less than 20 years standing). These three Judicial Members have to be assisted by three environmental experts (to be called Commissioners) in each Environmental Court. It will be permissible to have one Environmental Court for more than one State. Union Territories may avail the Environment Court of the neighbouring State. Delhi can perhaps have a separate Environment Court.
Appellate Jurisdiction It is now proposed, as stated earlier, that there will be an Environment Court in each State (or group of States) and will have appellate jurisdiction. It will have appellate jurisdiction which is now being exercised by officers of the Government under the special Acts. Pending appeals under the Water (P&CP) Act, 1974, Air (P&CP) Act, 1981 and under the Rules 143 framed under the Environment (Protection) Act, 1986 must be transferred to the proposed Environment Court in each State and all future appeals must be filed in the said Court. Sec. 28 of the Water (P&CP) Act, 1974 and sec. 31 of the Air (P&CP) Act, 1981 must be amended, as stated earlier, stating that the appeals shall hereafter lie to the Environment Court under the proposed Act and that pending appeals shall stand transferred to the said Court. Similarly, a provision must be inserted in the Environment (Protection) Act, 1986 stating that all appeals against orders passed by the various authorities under the Rules made under that Act shall be filed in the concerned Environment Court at the level of each State (or group of States) and that pending appeals before appellate authorities constituted under the said Rules shall also stand transferred to the Environment Court.
A provision may also have to be made in the proposed Environment Courts Act enabling the Central Government to issue notifications from time to time, notifying that the Environment Court will be the appellate authority in respect of orders passed under any other Central Act and also enabling the State Governments, with the approval of the Central Government, to notify, from time to time, the Environmental Court as the appellate Court for purposes of other State Acts.
The National Environment Tribunal Act, 1995 was a law intended to award compensation to those affected by hazardous substances and we propose that this relief of damages which was to be granted by the National Environment Tribunal - for injury on a strict liability basis - should be a relief which will be granted by the proposed Environment Court. This will 144 necessitate repeal of the National Environment Tribunal Act, 1995 and bringing those provisions into the proposed Act.
It is also proposed that the relief which could have been granted by the Environment Appellate Authority under the National Environment Appellate Authority Act, 1997 should now be granted by the proposed Court, in respect of violation of safeguards under the Environment (Protection) Act, 1986 and the appellate powers contemplated by sec. 11 of that Act be now granted to the proposed Court. This will require repeal of the National Environment Appellate Authority Act, 1997 and transfer of those provisions into the proposed Act.
We are also of the view that the appeals against awards passed by the Collector under sec. 8 of the Public Liability Insurance Act, 1991 (which deals with compensation payable for injury to person or property on account of hazardous substances) should lie to the proposed Environment Court. Sec. 8 of that Act contemplates that the compensation payable and paid under sec. 7 shall go in reduction of any compensation payable "under any other law".
The proposed Environment Court will be entitled to pass interlocutory orders, including ad interim and ex parte orders pending the appeals.
The appeals by the proposed Court must be entertained on payment of a fixed court fee of Rs.500.
145Original Jurisdiction The proposed Court shall have original jurisdiction on environmental disputes with all powers of a Civil Court and shall grant (apart from the damages contemplated under the National Environment Tribunal Act, 1995 in the case of injury on account of use of hazardous substances in its original jurisdiction) all reliefs which a Civil Court can grant under the Code of Civil Procedure, 1908 or other statutes like the Specific Relief Act, including declaration, setting aside of orders by public authorities or the State, permanent injunction, mandatory injunction, appointing receivers to manage the property, damages or compensation, possession etc. The Court can be approached by way of an original petition. The proposed Court shall also be entitled to pass all interlocutory orders - both ad interim and final, pending disposal of the original petitions. A fixed court fee of Rs.1000 should alone be payable in the original petitions that may be filed before the proposed Court. The Court must have powers to award exemplary costs if frivolous or vexatious original petitions are filed.
Definition of 'environment' as in sec. 2(f) of the Environment (Protection) Act, 1986 can be engrafted into the proposed Act as follows:
"'environment' includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings; other living creatures, plaints, micro-organism and property."
We can have a provision defining 'environmental pollution' as in sec.
2C(b)(c) of the 1986 Act.
146So far as the jurisdiction of the Court is concerned, it must be provided that the Court will have jurisdiction
(a) to protect the right to safe drinking water and the right to an environment that is not harmful to one's health or well being and
(b) to have the environment protected for the benefit of present and future generations so as to
(i) prevent environmental pollution and ecological degradation
(ii) promote conservation and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Explanation has to be added to the above (proposed) provision that the jurisdiction shall include
(a) the protection of natural environment, forests, wild life, sea, lakes, rivers, streams, fauna and flora;
(b) preservation of natural resources of the earth;
(c) prevention, abatement and control of environmental pollution including water, air and noise pollution;
(d) enforcement of any legal or constitutional rights relating to environment and pollution under the Constitution of India or under any other law for the time being in force;
(e) protection of monuments and places, objects of artistic or historical interest of national importance as declared by the law made by Parliament.
147Jurisdiction of ordinary Civil Court and conflict of decisions We have already stated that we are not ousting the jurisdiction of the Civil Courts to entertain environment related disputes. As of now, for example, if a chimney in a neighbour's house is releasing polluted air or a small sewage channel from one house or land is creating pollution to a neighbour's house or land, parties in villages are able to approach the nearest munsif Courts which are quite accessible to these villages. If we oust the jurisdiction of these Courts, villagers cannot be expected to go all the way to the seat of the Environment Court for each adjournment and contest the same. (May be, if a large section of people is involved, they may be able to contest the case in the Environment Court, even if it is located at a distant place.) In fact, even in Australia and New Zealand, the jurisdiction of ordinary Courts is not ousted. Proposals in UK are also likewise. We are here only proposing to provide special Courts,- like the Consumer fora - which parties may easily approach, if they want a speedy or specialist Court. In fact, the Consumer (Protection) Act, 1986 states that the Act is in addition to the remedies under ordinary law.
But, on the question of finality, it has to be provided that if an adjudication has become final in the Civil Court (or in the Environmental Court) it should be binding on the parties and parties cannot be allowed to move the Environmental Court (or Civil Court) which has not yet been approached.
148If a dispute on some subject matter is pending in the Environment Court and another similar case is filed later in the Civil Court, or vice versa, parties can always obtain stay of the latter proceeding from the Court where the latter case is filed by filing an application on the same principle as in sec. 10 of Civil Procedure.
Rules of evidence and Conciliation/Mediation The proposed Court will not be bound by rules of evidence and can lay down its procedure. It can entertain oral and documentary evidence and consult experts. It shall, however, have to observe principles of natural justice. The Judicial Members and the Commissioners may, if necessary, make spot inspections and record oral evidence.
The proposed Environment Court should encourage Conciliation and Mediation at any stage of the proceeding - be it an appeal or an original petition.
Environmental Principles to be applied Obviously, the proposed Court will have to apply the fundamental principles of environmental law as stated in Chapter VIII.
The statute must state that the Environment Court must keep in mind the Precautionary Principle, Polluter Pays Principle, New Burden of Proof Principle, Prevention Principle, Strict Liability so far as hazardous 149 substances are concerned, Public Trust doctrine, Concept of inter- generational equity and the Concept of Sustainable Development.
Repeal of the National Environmental Tribunal Act, 1995 and the National Environment Appellate Tribunal Act, 1997 The National Environmental Tribunal Act, 1995 and the National Environment Appellate Tribunal Act, 1997 must be repealed and provisions relating to the jurisdiction and powers of those Tribunals must be incorporated in the proposed Act.
Amendments to the Water (P&CP) Act, 1974, the Air (P&CP) Act, 1981 and the Environment (Protection) Act, 1986 Sec. 31 of the Air (P&CP) Act, 1981 be suitably amended for providing appeals to the Environment Court and a separate section must be introduced in the Environment (Protection) Act, 1986 that appeals shall lie to the proposed Environment Courts.
An extra provision must be made in the proposed Act so far as the Water (P&CP) Act, 1974 is concerned that, notwithstanding anything in the Water (P&CP) Act, 1974 appeals shall lie to the proposed Environment Court, not only in the States where the principal Act is in force but also in States in which it may be brought in force in future.
Power to frame schemes and monitor them 150 The Environment Court, in our view, must have power to frame schemes and monitor them and also have power to modify the schemes from time to time. If one looks at the problems raised in several cases and the directions issued by the Supreme Court, it will be observed that such a power is necessary to be vested in these Courts. Take the case of air, water pollution, which are caused by an industry or a group of similar industries located in an area. Directions may have to be issued for their shifting, for closure of the industry temporarily and for directing payment of wages to the employees to cover two or three years of their wages; for directing local authorities to provide necessary amenities at the new location, like water and electricity, or to direct the industries to install effluent plants etc. A variety of issues arise simultaneously, involving several departments of the Central/State Government or local authorities. The Environment Court must be able to provide an "environmental solution" to grave problems like the one mentioned above and unless it has power to frame comprehensive schemes which will involve issuing directions to various departments, the solution cannot be implemented. Such a comprehensive jurisdiction is now being exercised both by the Supreme Court and High Courts. In our view, the proposed Courts must have similar powers. They will also have to monitor the schemes till they are successfully implemented on ground and, if necessary, modify the schemes from time to time.
Execution of orders and contempt procedure It was prescribed in sec. 25 of the National Environment Tribunal Act, 1995, that whoever fails to comply with an order of the proposed 151 Tribunal should be liable for imprisonment upto a term of 3 years or with fine which may extend upto Rs.10 lakhs or with both. (We are aware that sec. 19 of the National Appellate Authority Act, 1997 prescribed imprisonment upto seven years and fine upto rupees one lakh or both.) Obviously, the punishment could be awarded only by the normal criminal courts competent to award such punishment. This could take a pretty long time.
So far as execution of its orders are concerned, proposed Courts must have all powers which a Civil Court has for execution and should also be able to exercise contempt jurisdiction. There is no difficulty in conferring such a power on these Courts. The Commission is of the view that having regard to the fact that big industries which pollute the environment (or our streams, lakes and rivers or air) come before the Court, there is need to invest the Court with contempt powers so that the Court can, by way of summary proceedings, see that its orders are effectively implemented instead of taking out lengthy proceedings by way of execution or proceedings under the criminal law. Parliament can invest these proposed Courts with such a power by law made under Entry 14, List III of the VII Schedule.
Power to mould appropriate relief Normally, Civil Courts do not grant relief which is not prayed for. But, like Writ Courts, these environment Courts must be able to mould any relief appropriate to the facts and circumstances of the case.
152Therefore, we are of the view that, in the original petitions or in appeals, the proposed Courts should have power to grant any other relief other than what is sought for, which is suitable in facts and circumstances of the case.
Locus standi So far as locus standi before the proposed Court in original petitions is concerned, it must be as wide as it is today before High Courts/Supreme Court in the writ jurisdiction in environment matters. This is the position in Australia and New Zealand also. Any person or organization who or which is interested in the subject matter or in public interest must be able to approach the Court. As stated earlier, the Court must be permitted to impose exemplary costs in case of frivolous or vexatious litigation.
Amicus curiae There must be provision for intervention by individuals/organization and also power in the Court to appoint amicus curiae.
Qualification of Judicial Members So far as the persons who man the proposed Environment Court are concerned, as stated earlier, there will be three Judicial Members assisted by three expert Commissioners. In the light of the fact that the proposed Court will have all powers of a Civil Court, original and appellate, we are of the view that the Courts should be manned only by Judicial Members drawn 153 from the Judiciary or the Bar. We are not dealing here with the constitution of Tribunals like the Administrative Tribunals or Tax Tribunals which were established to decide dispute in service matters or tax matters. We are here dealing with a Court which is exercising powers of a regular Civil Court in its original jurisdiction and in its appellate jurisdiction while dealing with environmental matters. It will not be permissible or appropriate to appoint members lacking judicial or legal expertise.
Provision relating to qualification must be on the following lines:
"(1) The qualification for appointment of Chairman and Members shall be that they must be persons;
(a) who are or who have been Judges of a High Court ; (b) advocates of a High Court or two or more of such High Courts in
succession with a standing of not less than twenty years.
Explanation: Preference shall be given to those who have had experience in environmental matters whether as Judges or lawyers."
We have proposed a three Judge Court, inasmuch as very complicated and important questions (affecting the entire State in which the proposed Court is located), would come before the Court and we have felt that it is not sufficient to empower a Single Member Court to deal with such important and grave issues. As of now such matters are dealt with by a Bench of two or more Judges in the High Courts and Supreme Court. There must therefore be at least two Judicial Members but, in order to deal with 154 situations where there is a difference of opinion, it will be necessary to have an odd number of Judicial Members, namely, three. The quorum must be two Judicial Members.
The Court must also be assisted by a statutory panel of Technical/Scientific personnel called Commissioners as is done in Australia and New Zealand. Having regard to the variety of issues that come before Environment Courts, it will be necessary to have a panel of at least three such Commissioners. Their role will be advisory and they have to be present in the Court during the course of the hearings. They are not Members of the Court but are a statutory panel intended to independently advise and assist the Court in analyzing and assessing scientific or technological issues. At least one Commissioner must always be present in the Court. In case the Court feels that any other expert in a different branch than those in the panel is to be examined, the Court may on its own or in consultation with the panel of Commissioners, refer the matter for opinion to other expert/experts in the particular field under consideration.
Qualification of Commissioners The Members in the panel of three Commissioners which is advisory and which is attached to each Environment Court must, in our view, be qualified in the following manner. Each commissioner must have "(1) a degree in environmental sciences together with at least five years experience as an environmental scientist or engineer, or 155 (2) adequate knowledge of and experience to deal with various aspects of problems relating to environment, and in particular the scientific or technical aspects of environmental problems including protection of environment and environment impact assessment."
We also recommend an Explanation to be inserted on the model of sec. 12 of the NSW land and Environment Act, 1979, with a slight modification, as follows:
"In appointing Commissioners, it must be ensured, as far as practicable, that they are persons who hold qualifications and experience across the range of areas in regard to which issues of environment or ecology arise"
Criminal and judicial review jurisdiction kept out We have deliberately kept criminal appellate jurisdiction and judicial review jurisdiction exercised today by the High Courts, beyond the purview of the proposed Courts. In respect of offences under the Penal Code or the Special Act like the Water (P&CP) Act, 1974 or the Air (P&CP) Act, 1981 and the Environment (Protection) Act, 1986 or any other offence connected with environment, parties or the State have therefore to go before the normal Criminal Courts and to the criminal appellate Courts having jurisdiction according to the procedural law applicable. We have examined the matter in detail and felt that, in the abstract sense of power, Art. 253 read with Entry 13 of List I (Schedule VII) would enable criminal 156 appeals/revisions from the trial Courts, in so far as they are presently filed in High Courts, - whether in case of conviction or acquittal - could be shifted to the Environment Court. In this context, Entry 13, 95 of List I and Entries 1, 2, 11A and 46 of List III would be relevant.
But, we have not come across any special law (except the TADA or the POTA) where the appellate jurisdiction of the High Court in criminal matters has been taken away from the High Court and vested in another Court at the State level, manned by retired judges. In order to avoid unnecessary litigation as to the competency of Parliament to make law transferring the criminal appellate jurisdiction to another Court at State level, we have decided not to touch the criminal appellate procedure as it now stands.
Likewise, we have not thought if fit to enable the Environmental Courts, to have judicial review powers exercised by the High Court under Art. 226 of the Constitution of India. We have felt that it is sufficient to vest original civil jurisdiction as exercisable by a Civil Court, in the Environmental Courts. If we vest powers of Judicial review as under Art. 226, then there may be need to subject the orders to the writ jurisdiction of High Courts as held in L. Chandra Kumar vs. Union of India, 1997 (3) SCC
261. No doubt, the Environment Court exercising powers of a Civil Court or as an appellate Court in civil jurisdiction, may be technically amenable to writ jurisdiction of the High Court but inasmuch as we are providing an appeal to the Supreme Court, the High Courts may decline to interfere on 157 the ground that there is an effective alternative remedy of appeal on law and fact to the Supreme Court, as explained later in this Chapter.
Appeal to Supreme Court We are also of the view that Parliament can, under Entry 13 of List I read with Art. 253 or Entry 95 of List I or Entry 11A and 46 of List III, provide for a statutory appeal direct to the Supreme Court.
Remuneration Remuneration of Members and Commissioners shall be as may be prescribed by the Central Government.
Method of appointment and other matters The method of appointment of the Judicial Members shall be by the Central Government in consultation with State Government, the Chief Justice of the State/Union Territory concerned and the Chief Justice of India. The method of appointment of the Commissioners shall be by the State Government/Union Territory concerned in consultation with the Chief Justice of the State concerned and the Chairman of the proposed Environment Court.
A Commissioner who has a pecuniary interest direct or indirect or is connected with the subject matter or any of the parties to a dispute shall not 158 be entitled to give any report in regard to the dispute. Every Commissioner shall inform the Chairman of the Court if he has any such connections.
The three Members of the Commission (i.e. the three retired Judges of High Court) and the three Commissioners in the panel must have five years tenure.
The Court shall have a Registrar and such other officers and staff as may be decided by the Rules made by the Central Government, in consultation with the Chief Justice of India.
The procedure for resignation and removal of Members (i.e. the three retired Judges of the High Court) will be on the same model as in sec. 13 of the National Environment Tribunal Act, 1995.
So far as the Commissioners are concerned, the proviso for resignation may be on the model of sec. 13(1) of the above Act of 1995. So far as removal is concerned, it shall be on the basis of such rules as may be prescribed by government, but the inquiry must be by a retired Judge of a High Court.
Other provisions like sec. 15, 16, 17 of the National Environment Tribunal Act, 1995 can be enacted so far as the position after expiry of tenure, financial and administrative powers, staff of Court.
Provision like secs. 25, 26, 27, 28, 29 and 31 of the said Act of 1995, can be added to take care of 'offences', 'protection' etc. Protection against 159 legal proceedings for acts performed in good faith must be there for the Judicial Members and the Commissioners.
Oath of office to the Judicial Members has to be administered by the Governor of the State in which the proposed Court is located or by his delegate. If a Court is established exclusively for a Union Territory, such oath may be administered by the Lt. Governor or his delegate.
Resignation by the Judicial Members or the Commissioners may be submitted to the Central Government. The Commissioners can submit resignations to the State Government.
Appeals to Supreme Court will persuade High Court not to interfere normally on the principle of 'alternative effective remedy' As stated earlier, the proposal for a statutory appeal to the Supreme Court of India, both on fact and law, will be an important reason as to why the High Court will not normally interfere with the orders of the Environment Court. The case in L. Chandra Kumar vs. Union of India, AIR 1997 SC 1125 referred to earlier, is distinguishable because there the statute (the Administrative Tribunals Act) made under Art. 323A sought to transfer judicial review power of the High Courts under Art. 226 to a statutory Tribunal and excluded the power of the High Court to interfere. Further, the statutes of the Administrative Tribunals Act did not provide for any statutory appeal to the Supreme Court in the manner we are now proposing. It was because of the above scheme of that Act, the Supreme Court felt that the powers of the High Court under Art. 226, 227, which are part of the 160 basic structure of the Constitution, could not be taken away and, therefore, the orders of the Administrative Tribunal would be amenable to Art. 226 before our Division Bench. The above decision does not apply here inasmuch as our proposal is not to take away any judicial review powers of the High Court either specifically or remotely, nor to vest such powers in the proposed Courts. Firstly, the proposed Court is a Civil Court with original jurisdiction in environmental matters and an appellate jurisdiction against orders passed by public authorities under three enactments (or other enactments to be notified). Secondly, we are proposing an affective alternative remedy of a statutory appeal to the Supreme Court on law and fact. The Court which we are proposing is not a Tribunal under Art. 323A nor one under Art. 323B, even on the basis that the list of subjects referred to in Art. 323B for constituting such special Tribunals is not exhaustive.
We may point out that the Monopolies and Restrictive Trade Practices Act, in sec. 55 provides appeals against the orders of the Commission to the Supreme Court. Likewise, sec. 130E of the Customs Act, 1962 and sec. 35L of the Central Excise and Salt Act, 1944 provides for appeal to the Supreme Court. The Consumer (Protection) Act, 1986 provides appeal for the District Forum to the State Forum and from the State Forum to the National Forum. From National Forum judgments in certain cases, appeal lies to Supreme Court. The High Courts, within whose territorial jurisdiction these Courts are located do not normally entertain writ petitions. Further, it is held that they will not ordinarily interfere under Art. 226 or 227 in respect of order of Consumer fora because the Consumer (Protection) Act, 1986 provides an effective alternative remedy of appeal. (see long list of judgments of High Court referred to in Commentary on the 161 Act by J.N. Barowalia (2nd Ed., 2000) (pp. 195 to 206) and Commentary by Shri Dilip K. Sheth (2001) (pp.66 to 69).
The Supreme Court has held, in a number of cases, that High Court will not normally interfere if there is an effective alternative right of appeal: S. Jagadeesan vs. Ayya, AIR 1984 SC 1512; Titagarh Paper Mills vs. State of Orissa, AIR 1983 SC 603.
Apart from this, when issues of environment raise serious disputes of fact, where oral as well as expert evidence is necessary, the High Courts are ill-suited to decide the issues on the basis of affidavits alone: Jai Singh vs. Union of India, AIR 1977 SC 898; Than Singh vs. Supat, AIR 1964 SC 1419.
It is, therefore, proposed that appeals against the orders of the Environmental Court shall lie to the Supreme Court of India. We are here adopting the appeal procedure that was contained in sec. 24 of the National Environment Tribunal Act, 1995. Further, the scheme of the Consumer (Protection) Act, the Monopolies and Restrictive Practices Act, Customs and Excise Act, Companies Act and other statutes is similar, where a right of appeal direct to the Supreme Court is given. Appeals under the proposed Act must be on fact and law.
This is a legislation by Parliament under Art. 253 of the Constitution for the purpose of implementing the decisions in regard to protection to environment taken in the Stockholm Conference, 1972 and the Rio de Janeiro Conference of 1992 and in national interest. Further, the Courts are 162 appellate bodies for purpose of Central Acts, Water Act, 1974, Air Act, 1985, Environment (Protection) Act, 1986 etc. Therefore, it is the duty of the Parliament to provide for the establishment of additional Courts and the Central Government has to bear the cost of establishing and maintaining these Courts under Art. 247 of the Constitution of India. Art. 247 reads thus:
"Art. 247. Power of Parliament to provide for the establishment of certain additional Courts: Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional Courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List."
These Courts obviously come within the words in the first part of the last clause of Article 247, namely, "better administration of laws made by Parliament". (The second part of the clause deals with existing laws as on 26.1.50 which are with respect to matters in List I). There can be Environment Court for more than one State as stated earlier. Union Territories could avail of the Court in the neighbouring State. Delhi can have a separate Court.
We, therefore, recommend that a law be made by Parliament under Art. 253 for constitution of Environmental Courts in each State (or group of States) having original and appellate jurisdiction as stated in this Chapter and having jurisdiction on environmental issues. The Courts will be manned each by three members with judicial or legal experience as stated 163 and a panel of expert Commissioners. An appeal against the judgment shall be to the Supreme Court of India. The procedure to be followed by the Court will be as stated in this Chapter.
Other formal provisions like power of appointment of staff, rule- making power, laying in the Houses of Parliament, can be made on the same lines as those contained in the recent amendment to Companies Act, 2002 or as in the Administrative Tribunals Act, 1985.
164CHAPTER X RECOMMENDATIONS On the basis of our discussion in previous chapters, we recommend the following, namely:
1. In view of the involvement of complex scientific and specialized issues relating to environment, there is a need to have separate 'Environment Courts' manned only by the persons having judicial or legal experience and assisted by persons having scientific qualification and experience in the field of environment.
2. In order to achieve the objectives of accessible, quick and speedy justice, these 'Environment Courts' should be established and constituted by the Union Government in each State. However, in case of smaller States and Union Territories, one court for more than one State or Union Territory may serve the purpose.
3.(a) In view of the provisions contained in Art. 253 read with Entry 13 of List I of VII Schedule to the Constitution of India, Parliament is having exclusive jurisdiction to enact a law for the purpose of establishment of Environment Courts, because various decisions relating to protection and improvement of environment and preservation of natural resources of earth, were taken in International Conferences held at Stockholm in 1972 and at Rio-de-Janeiro in 1992, in which India also participated.
165(b) The following words in Art. 253, "Notwithstanding anything in the foregoing provisions of this Chapter", enable the Parliament to enact a law even on subjects falling in State List. Art. 253 is having overriding effect over Arts. 245 to 252.
(c) In view of the non-obstante clause in Art. 253, Parliament while enacting a law exercising power under Art. 253, may touch or enter into an enactment made under Art. 252(1) without following the procedure prescribed in Art. 252(2). Therefore, the provisions of the Water (Prevention and Control of Pollution) Act, 1974, which were enacted by the Parliament under Art. 252(1), can be altered by a subsequent law made by the Parliament under Art. 253 without following the procedure laid under Art. 252(2).
4.(a) The proposed Environment Court shall consist of a Chairperson and at least two other members. Chairman and other members should either be a retired Judge of Supreme Court or High Court, or having at least 20 years experience of practicing as an advocate in any High Court. The term of the Chairperson and members shall be 5 years.
(b) Each Environment Court shall be assisted by at least three scientific or technical experts known as Commissioners. However, their role will be advisory only. The qualifications of the Commissioners is given in Chapter IX (supra).
5.(a) The proposed Environment Court shall have original jurisdiction in the civil cases where a substantial question relating to 'environment' 166 including enforcement of any legal or constitutional right relating to environment is involved. Details of this aspect are given in Chapter IX.
(b) The jurisdiction of civil courts is not ousted.
(c) The proposed Environment Court shall also have appellate jurisdiction in respect of appeals under:
(i) The Environment (Protection) Act, 1986 and rules made thereunder;
(ii)The Water (Prevention and Control of Pollution) Act, 1974 and rules made thereunder:
(iii) The Air (Prevention and Control of Pollution) Act, 1981 and rules made thereunder;
(iv)The Public Liability Insurance Act, 1991.
The Central and State Governments may also notify that appeal under any other environment related enactment or rules made thereunder, may also lie to the proposed Environment Court.
6.(a) The proposed Court shall not be bound to follow the procedure prescribed under the Code of Civil Procedure, 1908, but will be guided by the principles of natural justice. The Court shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.
(b) The proposed Court shall have all powers of civil court including power to punish for contempt, as discussed in Chapter IX.
167(c) The minimum quorum for hearing a case, shall be two members including the Chairperson. At least one Commissioner should also remain present during the hearing of a case.
The proposed Court can pass all kinds of orders, final or interlocutory. It can also award damages, compensation and can also grant injunctions (permanent, temporary and mandatory). Details are given in Chapter IX.
(d) The proposed Environment Court shall follow the principle of strict liability in case of hazardous substance, polluter pays principle, precautionary principle, preventive principle, doctrine of public trust, Inter- generational equity and sustainable development.
(e) The locus standi before the proposed Environment Court in original jurisdiction shall be as wide as it is today before High Court/Supreme Court in the writ jurisdiction in environmental matters.
(f) The proposed Environment Court shall also have power to frame schemes relating to environmental issues, monitor them and modify the schemes.
7. The proposed enactment for establishment of these Environment Courts should also contain other ancillary and miscellaneous provisions which are necessary, for example provisions regarding other staff, funds, place of sitting etc. 168 8(a) In view of the appellate powers of the proposed Environment Court, provisions relating to appeals contained in:
(i) Environment (Protection) Act, 1986 and rules made thereunder;
(ii)The Air (Protection and Control of Pollution) Act, 1981 and rules made thereunder;
(iii) The Public Liability Insurance Act, 1991 are required to be suitably amended.
(b) The proposed enactment should also contain a provision, namely, "Notwithstanding anything contained in sec. 28 of the Water (Prevention and Control of Pollution) Act, 1974, any person aggrieved by the order passed by the State Board under sec. 25, 26 or 27 may prefer appeal to the Environment Court".
9. The National Environment Tribunal Act, 1995 and The National Environmental Appellate Authority Act, 1997 may be repealed and provisions regarding functions and powers of the Tribunal and the Appellate Authority contained in those Acts be suitably transferred in the proposed enactment for establishment of the Environment Court.
10. Appeal against the orders of the proposed Environment Court, shall lie before the Supreme Court on the question of facts and law.
11. The powers of High Courts under Arts. 226, 227 of the Constitution of India and of the Supreme Court under Art. 32 of the Constitution of India shall not be ousted.
169We acknowledge the extensive contributions made by Dr. S. Muralidhar, Part-time Member of Law Commission of India in preparation of this Report.
We recommend accordingly.
(Justice M. Jagannadha Rao) Chairman (Dr. N.M. Ghatate) Vice-Chairman (T.K. Vishwanathan) Member-Secretary Dated: 23.09.2003