Why would the government want to rush through a badly drafted law, full of ambiguities? This is the question worrying R. Sreedhar, director of the Academy of Mountain Environics, a well-known trust promoting sustainable development solutions, about the National Green Tribunal Bill, 2009.
Like Sreedhar, other leading environmental research and activist organisations are questioning the rationale for the new law. The Green Tribunal is a key component of the new architecture of environmental governance laid out by Minister of Environment and Forests Jairam Ramesh. While the core of his plan, the establishment of an autonomous National Environment Protection Authority (NEPA) that will grant clearances and ensure compliance, has run into a storm of protest, the Green Tribunal is viewed with even less favour by environmentalists.
In a rare instance of unity shown by the green lobby, 30 organisations and activists belonging to institutions such as the Tata Institute of Social Sciences in Mumbai have come together to protest against the Bill, which is designed to provide expeditious disposal of cases relating to environmental protection and conservation of forests. The tribunal, with the powers of a civil court, will subsume various state-level authorities and also the institutions created by the Supreme Court for dealing with the environment.
Introduced in the House on July 31, the Bill was been referred to a Parliamentary Standing Committee, which had suggested about a dozen changes. It had also said that amendments should be passed by Parliament and not by notification. The Union Cabinet did not accept this condition while approving the setting up of the tribunal but offered to place the draft notification in Parliament.
Activists complain that just two organisations were asked to make presentations to the committee and allege that the manner in which the legislation was drafted and introduced could count as “one of the most secretive actions in recent times” of the Ministry of Environment and Forests (MoEF). No public consultation took place and no notice was issued inviting public comments on the Bill.
The main complaint relates to restrictions on who can approach the tribunal as aggrieved parties and how they can approach the Green Tribunal. “It limits access and disturbs the meaning of locus standi,” points out Videh Upadhyay, a Delhi High Court lawyer who has made a study of India’s environmental regulations. “Access is the high point of our environmental laws because India recognises the environment as a fundamental right, which provides direct access to all aggrieved parties.” Not even the US has enshrined environment as a fundamental right.
The open letter to Ramesh from the activists reflects this concern. It says the provisions of the Bill with regard to access are both regressive and contradictory. While locus standi, on the one hand, has been broadened to include industries and companies as ‘aggrieved persons’ if any action is taken against them, NGOs, on the other, have to prove that they are an ‘environmental group’ and ‘representative’ in nature. Strangely, the Bill says permission from the Tribunal is necessary before complaints are field before it!
Neither Ramesh nor MoEF has responded to queries about the concerns raised in the open letter.
Sreedhar says the intention of the government is questionable since a similar law, the National Environment Tribunal Act, was enacted in 1995 but was never notified. His contention is that it would be far better that existing institutions, such as the National Environmental Appellate Authority (NEAA), which the tribunal intends to replace, were made independent bodies instead of functioning with nominated officials.
The tribunal is not likely to be any better than the NEAA because the rules have been framed to bring on board bureaucrats, since the rules stipulate that members should have at least 15 years of administrative experience. “It is better if there are no intervening bodies and that aggrieved parties are allowed to approach the courts directly,” says Sreedhar, whose Academy for Mountain Environics has been waging several legal battles and has rarely got a verdict that favoured the environment. His contention, as that of several other environmentalists, is that the revamp proposed by MoEF only changes the nomenclature without changing the basic structure.
Upadhyay, however, has a good word for the Bill. The Green Tribunal can impose damages for restitution of the environment and order compensation for damage inflicted on property and the environment. “That is a positive feature, a first,” says the legal expert. But he foresees litigation against the Bill because a host of laws that come under the purview of the states, such as the Air, Water and Forest Acts would have to be amended.
A law that affects the functioning of all environmental laws of the country except the Wildlife Protection Act demands far greater transparency in its drafting and dialogue, say environmentalists. Indications are that the Green Tribunal Bill is headed for a legal challenge.
