08050

LEADLawEnvironment and

DevelopmentJournal

VOLUME

4/1

GREEN COURTS IN INDIA: STRENGTHENING ENVIRONMENTAL GOVERNANCE?

Raghav Sharma

STUDENT NOTE

LEAD Journal (Law, Environment and Development Journal)is a peer-reviewed academic publication based in New Delhi and London and jointly managed by the

School of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).

LEAD is published at www.lead-journal.orgISSN 1746-5893

The Managing Editor, LEAD Journal, c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Châtelaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, [email protected]

This document can be cited asRaghav Sharma, ‘Green Courts in India: Strengthening Environmental Governance?’,

4/1 Law, Environment and Development Journal (2008), p. 50,available at http://www.lead-journal.org/content/08050.pdf.

Raghav Sharma, 4th year Student, National Law University, Jodhpur, RajasthanEmail: [email protected]

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

STUDENT NOTE

GREEN COURTS IN INDIA: STRENGTHENINGENVIRONMENTAL GOVERNANCE?

Raghav Sharma

TABLE OF CONTENTS

1. Introduction 52

2. India’s Green Constitution: From ‘Enviromyopicity’ to ‘Envirosensitivity’ 52

3. ‘Green’ Courts: Theoretical Justifications and Practical Necessity 57

4. An Overview of Environmental Courts in Other Jurisdictions 614.1 The Land and Environment Court, Australia 614.2 The New Zealand Environment Court 62

5. An Overview of Law Commission of India’s Recommendations 635.1 The Composition of ‘Green’ Courts 635.2 Jurisdiction and Powers of ‘Green’ Courts 645.3 Locus Standi and Procedural Issues 65

6 The Dark Side of Law Commission of India’s Recommendations 656.1 Executive Interference in Functioning of ‘Green’ Courts 666.2 Why Create Toothless Institutions? 69

7 Conclusion 71

1INTRODUCTION

The Indian judiciary is set to turn ‘green’ with theLaw Commission of India (hereafter ‘LCI’)recommending, in its 186th Report, the constitutionof specialised Environmental Courts to strengthenand revitalise environmental governance.1 Theproposal has its roots in the call that emanated fromthe corridors of the apex Constitutional Court, thatis, the Supreme Court of India, in numeroussignificant cases.2 The Law Ministry has formulatedthe required draft legislation which awaits legislativesanction.3 The Supreme Court has elevated the ‘rightto healthy environment’ to the status of afundamental human right under Article 214 of theConstitution in the process of progressive enrichmentof the environmental jurisprudence with principleslike sustainable development, polluter pays, publictrust doctrine, precautionary principle andintergenerational equity. This extension ofconstitutional umbrella over environmental issuesthrough dynamic judicial activism has augured wellfor environmental governance in India. Theconstitution of a ‘green’ branch of judiciary toadjudicate environmental matters will be a further

significant step towards improving the quality ofenvironment at a time when India has been caughtin a tussle between developmental and sustainabilityissues. Improvement in institutional arrangements toprovide easily accessible environmental justice topeople is a part of the international agendahighlighted in instruments like Rio Declaration onEnvironment and Development, 1992 and theAarhus Convention, 1998. Such institutional changescarry a greater significance in case of emerging marketeconomies like India where trade and developmentissues are set to clash with environmental imperatives.

Keeping the development of environmentaljurisprudence in India as the background, this articlehighlights the problems afflicting the Indian judicialsystem which have led to a call for a specialisedjudiciary. I propose to showcase the LCI’s significantrecommendations regarding various dimensions ofthe ‘green’ court project in light of the internationalexperience concerning such courts in Australia andNew Zealand. In light of this appraisal, I argue thatthe Law Commission Report (hereafter ‘186th LCR’),though exhaustive and comprehensive on familiardimensions of the issue, fails to comprehend andexplore the relatively obscure anomalies that plaguethe idea of having Environmental Courts in therecommended form - a lacuna which renders theproposed institutional arrangements myopic and statusquoist. This article highlights that the constitution of anew court system may not be such a ‘green’ plan after all,unless it is made capable of adjudicating in an atmosphereindependent of dominating political interests plaguingsuch specialised courts and thus, as an alternative, itadvocates for the establishment of specialist divisionswithin the existing Indian High Courts.

2INDIA’S GREEN CONSTITUTION:FROM ‘ENVIROMYOPICITY’ TO‘ENVIROSENSITIVITY’

Environment related rights were conspicuouslyabsent from the original version of the Constitutionof India, which was prominently dominated by

Law, Environment and Development Journal

52

1 Law Commission of India, ‘186th Report on Proposal toConstitute Environment Courts’, September 2003,available at http://lawcommissionofindia.nic.in/reports/186th%20report.pdf and Dewan Vohra, ‘Special ‘Green’Courts Set up to Rule over Environmental Disputes’,Financial Express, 2 June 2007.

2 M.C. Mehta v Union of India, Supreme Court of India,Judgement of 17 February 1986, (1986) 2 SCC 176, 201-202, Indian Council for Enviro Legal Action v Union ofIndia, Supreme Court of India, Judgement of 13 February1996, (1996) 3 SCC 212, 252, A.P. Pollution Control Boardv Prof. M.V. Nayadu (Retd.) & Ors, Supreme Court ofIndia, Judgement of 27 January 1999, (1999) 2 SCC718,730-731[hereafter A.P. Pollution Control Board I case]and A.P. Pollution Control Board v Prof. M.V. Nayudu(Retd.) & Ors., Supreme Court of India, Judgement of 1December 2000, (2001) 2 SCC 62, 84-85 [hereafter A.P.Pollution Control Board II case].

3 Kalpana Sharma, ‘Who will benefit from ‘green’ courts?’,The Hindu, 23 March 2007.

4 Article 21 reads as: Protection of life and personalliberty -No person shall be deprived of his life or personalliberty except according to procedure established by law.

business and property rights. Consequently,environmental jurisprudence was also an unknownappellation for the Indian judiciary. The 42nd

constitutional amendment, made in 1976, changedthis landscape by inducting Article 48-A5 and Article51A (g)6 into this ‘enviromyopic’ document.Simultaneously, the Supreme Court of Indiaembarked on a ‘creative’ activist phase ofconstitutional interpretation in the aftermath of thefiasco in A.D.M. Jabalpur v Shivakant Shukla 7 whereit found itself helpless in defending the basic civilliberties of the citizens against executive excesses.8Starting from early 1980s, the Court has developed abody of ‘green constitutional law’ to safeguard thecitizens’ health from the deleterious affects ofenvironmental degradation. In M.C. Mehta v Unionof India9 (Oleum Gas Leakage case), the SupremeCourt propounded the standard of ‘absolute liability’for payment of compensation to those affected bythe accident in case of industries engaged in hazardousor inherently dangerous activities as opposed to theprevalent notion of ‘strict liability’ under the Rylandsv. Fletcher10 standard. The Court has adopted anexpanded view of ‘life’ under Article 21 and enrichedit to include environmental rights by reading it alongwith Articles 4711, 48-A and 51A(g) and declaring:

Article 21 protects right to life as afundamental right. Enjoyment of lifeand its attainment including their rightto life with human dignityencompasses within its ambit, theprotection and preservation ofenvironment, ecological balance freefrom pollution of air and water,sanitation without which life cannotbe enjoyed. Any contra acts or actionswould cause environmental,ecological, air, water, pollution, etc.should be regarded as amounting toviolation of Article 21.12

By 1990s, it categorically declared that ‘issues ofenvironment must and shall receive the highestattention from this court’.13 India’s ‘GreenConstitution’ now guarantees a right to healthyenvironment,14 right to clean air,15 right to cleanwater,16 enjoins the State and its agencies to strictlyenforce environmental laws17 while disclosing

Green Courts in India

53

5 Article 48-A reads as: Protection and improvement ofenvironment and safeguarding of forests and wild life- The State shall endeavour to protect and improve theenvironment and to safeguard the forests and wild life ofthe country.

6 Article 51A(g) reads as: Fundamental Duties- It shall bethe duty of every citizen of India- (g) to protect andimprove the natural environment including forests, lakes,rivers and wild life, and to have compassion for livingcreatures.

7 Supreme Court of India, Judgement of 28 April 1976,(1976) 2 SCC 521.

8 S.P. Sathe, ‘Judicial Activism: The Indian Experience’, 6Wash. U. J.L. & Pol’y 29, 40 (2001).

9 Supreme Court of India, Judgement of 20 December1986, (1987) 1 SCC 395.

10 Court of Exchequer Chamber, Judgement of 14 May1866, (1865-66) L.R. 1 Ex. 26.

11 Article 47 reads as: Duty of the State to raise the levelof nutrition and the standard of living and to improvepublic health- The State shall regard the raising of thelevel of nutrition and the standard of living of its peopleand the improvement of public health as among itsprimary duties and, in particular, the State shallendeavour to bring about prohibition of the consumptionexcept for medicinal purposes of intoxicating drinks andof drugs which are injurious to health.

12 Virender Gaur & Ors. v State of Haryana & Ors., SupremeCourt of India, Judgement of 24 November 1994, (1995)2 SCC 577 [hereafter Virender Gaur’s case].

13 Tarun Bharat Sangh, Alwar v Union of India, SupremeCourt of India, Judgement of 11 October 1991, 1992 Supp(2) SCC 448.

14 Subhash Kumar v State of Bihar, Supreme Court of India,Judgement of 9 January 1991, (1991) 1 SCC 598, 604[hereafter Subhash Kumar’s case]; M.C. Mehta v Union ofIndia, Supreme Court of India, Judgement of 15 May 1992,(1992) 3 SCC 256, 257 and Virender Gaur’s case, note 12 above.

15 M.C. Mehta v Union of India, Supreme Court of India,Judgement of 12 May 1998, (1998) 6 SCC 60 & Judgementof 18 November 1998, (1998) 9 SCC 589, M.C.Mehta vUnion of India, Supreme Court of India, Judgement of16 April 1999, (1999) 6 SCC 9 [matter regarding dieselemissions] and Murli S. Deora v Union of India, SupremeCourt of India, Judgement of 2 November 2001, (2001)8 SCC 765.

16 A.P. Pollution Control Board II case, note 2 above, at 82,Mrs. Susetha v State of T.N. & Ors., Supreme Court ofIndia, Judgement of 8 August 2006, (2006) 6 SCC 543,Narmada Bachao Andolan v Union of India, SupremeCourt of India, Judgement of 18 October 2000, (2000)10 SCC 664[hereafter Narmada Bachao Andolan case] andSubhash Kumar’s case, note 14 above.

17 Indian Council for Enviro Legal Action v Union of India,Supreme Court of India, Judgement of 18 April 1996,(1996) 5 SCC 281 [The Court took upon itself the dutyto intervene in all such cases] and N. D. Jayal v Union ofIndia, Supreme Court of India, Judgement of 1 September2003, (2004) 9 SCC 362 [hereafter N. D. Jayal’s case].

information in respect of decisions which affecthealth, life and livelihood18 and disallowsinadequacy of funds and resources as a pretext forthe evasion of obligations by the State.19 Significantenvironmental principles like polluter pays,20

precautionary principle,21 sustainabledevelopment,22 public trust doctrine23 andintergenerational equity24 have become entrenchedin the Indian law without explicit incorporation inany legislative framework. In Vellore Citizens’Welfare Forum v Union of India & Ors.,25 the Courtemployed the ‘precautionary principle’ to invent thespecial principle of burden of proof in environmentalcases where burden as to ‘the absence of injuriouseffect of the actions proposed, is placed on those whowant to change the status quo’ viz. polluter or theindustrialist. In the process, the apex Court has gonebeyond the statutory texts to refer extensively tointernational conventions and obligations of India26

and even to the historical environmental valuesreflected in the edicts of Emperor Ashoka27 and

verses of Atharva Veda.28 The Supreme Court has,in clear terms, advised the State to shed its‘extravagant unbridled sovereign power’ and topursue a policy to maintain ecological balance andhygienic environment.29 The activist attitude rangesacross a gamut of environmental issues viz. banningaquaculture industries in coastal areas to preventdrinking water from becoming saline,30 issuingdirections for improving quality of air in theNational Capital Territory of Delhi31 and protectingTaj Mahal,32 prohibiting cigarette smoking in publicplaces,33 addressing issues of solid wastemanagement34, proscribing construction activitiesin the vicinity of lakes35 and directing the lowercourts to deal strictly with environmental offences.36

In respect of forest governance, the Supreme Courthas made an enormous contribution through the caseof T.N. Godavarman Thirumulpad v. Union ofIndia.37 The case was set in the backdrop of criticalstate of national forest cover, appalling apathy ofgovernments towards forest management and

Law, Environment and Development Journal

54

18 Essar Oil Ltd. v Halar Utkarsh Samiti & Ors,. SupremeCourt of India, Judgement of 19 January 2004, (2004) 2SCC 392.

19 Almitre H. Patel v Union of India, Supreme Court ofIndia, Judgement of 16 January 1998, (1998) 2 SCC 416and B.L. Wadhera v Union of India, Supreme Court ofIndia, Judgement of 1 March 1996,(1996) 2 SCC 594.

20 M.C. Mehta v Kamal Nath, Supreme Court of India,Judgement of 12 May 2000, (2000) 6 SCC 213.

21 Vellore Citizens’ Welfare Forum v Union of India, SupremeCourt of India, Judgement of 28 August 1996, (1996) 5SCC 647.

22 Narmada Bachao Andolan case, note 16 above, GoaFoundation v Diksha Holdings Pvt. Ltd., Supreme Courtof India, Judgement of 10 November 2000, (2001) 2 SCC97 and N. D. Jayal’s case, note 17 above.

23 K.M. Chinnappa & T.N. Godavarman Thirumulpad v Unionof India, Supreme Court of India, Judgement of 30 October2002, AIR 2003 SC 724 and Intellectuals Forum, Tirupathiv State of A.P. and Ors., Supreme Court of India, Judgementof 23 February 2006, (2006) 3 SCC 549.

24 State of Himachal Pradesh v Ganesh Wood Products,Supreme Court of India, Judgement of 11 September1995, (1995) 6 SCC 363.

25 Supreme Court of India, Judgement of 28 August 1996,(1996) 5 SCC 647 and A.P. Pollution Control Board IIcase, note 2 above.

26 K.M. Chinnappa & T.N. Godavarman Thirumulpad vUnion of India, Supreme Court of India, Judgement of30 October 2002, AIR 2003 SC 724.

27 State of Bihar v Murad Ali Khan, Supreme Court of India,Judgement of 10 October 1998, (1988) 4 SCC 655.

28 Rural Litigation & Entitlement Kendra v State of UP,Supreme Court of India, Judgement of 30 August 1988,1989 Supp (1) SCC 504.

29 Virender Gaur’s case, note 12 above.30 S. Jagannath v Union of India, Supreme Court of India,

Judgement of 11 December 1996, (1997) 2 SCC 87.31 M.C. Mehta v Union of India, Supreme Court of India,

Judgement of 14 February 1996, (1998) 8 SCC 648[Introduction of lead free petrol] and M.C. Mehta v Unionof India, Supreme Court of India, Judgement of 12September 1998, (1998) 8 SCC 206 [Phasing outcommercial vehicles older than 15 years].

32 M.C. Mehta v Union of India, Supreme Court of India,Judgement of 10 May 1996, (1996) 8 SCC 462 [TajTrapezium Case].

33 Murli S. Deora v Union of India, Supreme Court of India,Judgement of 2 November 2001, (2001) 8 SCC 765.

34 Almitre H. Patel v Union of India and B.L. Wadhera vUnion of India, note 19 above.

35 M.C. Mehta v Union of India, Supreme Court of India,Judgement of 11 October 1998, (1997) 3 SCC 715 [matterrelating to Badkal and Surajkund Lakes].

36 U.P. Pollution Board v Mohan Meakins Ltd., Supreme Courtof India, Judgement of 27 March 2000, (2000) 3 SCC 745.

37 T.N. Godavarman Thirumulpad v Union of India & Ors,Supreme Court of India, Judgement of 12 December1996, (1997) 2 SCC 267 [The Court interpreted the word‘forest’ under the Forest Conservation Act, 1980, to havea dictionary meaning and thus, included all forestsirrespective of their notification as Reserved or Protectedforests under the Indian Forest Act, 1927. This hasbrought all such tracts under the government approvalwindow in respect of non-forest purposes].

conservation and open violations of forestlegislations by illegal felling in North-EasternStates.38 A three judge bench of the Court, knownas the ‘Green Bench’ or the ‘Forest Bench’, issued a‘continuing mandamus’,39 operative for past twelveyears,40 and has been using it to deal with prominentissues including conversion of forest land for non-forest purposes,41 illegal felling,42 potentiallythreatening mining operations,43 afforestation andcompensation by private user agencies for usingforest land.44 In pursuance of the orders, theGovernment has constituted several High PoweredCommittees, a Compensatory AfforestationManagement and Planning Authority and a CentralEmpowered Committee.45 The enormous

significance of this single writ petition is evidentfrom the fact that about 2000 interlocutoryapplications relating to forest issues have beendisposed under it.46

Of late, the apex Court has been confronted withintricate cases requiring resolution of the tensionbetween the ‘right to development’ and the ‘rightto environment’.47 The anxiety to resolve thistension and adopt a balanced approach is apparentin N.D. Jayal v Union of India,48 a case involvingconstruction of a large dam at Tehri in Himalayanfoothills, where the Court refused to interfere byemphatically declaring the symbiotic relationbetween both these rights in the following words:

Right to environment is afundamental right. On the otherhand, right to development is alsoone. Here the right to ‘sustainabledevelopment’ cannot be singled out.Therefore, the concept of ‘sustainabledevelopment’ is to be treated as anintegral part of ‘life’ under Article 21.Weighty concepts likeintergenerational equity, public trustdoctrine and precautionary principle,which we declared as inseparableingredients of our environmentaljurisprudence, could only be nurturedby ensuring sustainable development.

Green Courts in India

55

38 See Armin Rosencraz & Sharachchandra Lele, ‘SupremeCourt and India’s Forests’, Vol. XLIII, No.5, Economic& Political Weekly 11, 12 (February 2-8, 2008).

39 Where the mere issue of a one-time mandamus would befutile against a public agency guilty of continuous inertiain failing to perform its public duties, then a continuingmandamus can be issued by the court. Vineet Narain vUnion of India, Supreme Court of India, Judgement of18 December 1997, (1998) 1 SCC 226.

40 The orders of the Court are available at http://www.forestcaseindia.org//f2/.

41 T.N. Godavarman Thirumulpad v Union of India & Ors,Supreme Court of India, Judgement of 17 September1998, AIR 1999 SC 2420 [hereafter Godavarman case].

42 The Godavarman case, note 41 above, Supreme Courtof India, Judgement of 12 December 1996, (1997) 2 SCC267, Judgement of 15 January 1998, (1998) 2 SCC 59,Judgement of 23 February 1998, (1998) 9 SCC 660,Judgement of 10 December 1998, (1999) 9 SCC 151 andM.C. Mehta v Union of India & Ors., Supreme Court ofIndia, Judgement of 18 March 2004, (2004) 12 SCC 118.

43 The Godavarman case, note 41 above, Supreme Court ofIndia, Judgement of 7 January 1998, (1998) 2 SCC 341,Judgement of 15 April 1998, (1998) 6 SCC 190, Judgementof 13 January 1998, (2000) 10 SCC 579, Judgement of 3April 2000, (2002) 10 SCC 641, Judgement of 15 December2006, (2006) 10 SCC 491 and K.M. Chinnappa & T.N.Godavarman Thirumulpad v Union of India., Supreme Courtof India, Judgement of 30 October 2002, AIR 2003 SC 724.

44 The Godavarman case, note 41 above, Supreme Court ofIndia, Judgement of 26 September 2006, (2006) 1 SCC 1.

45 The Central Empowered Committee has been constitutedby the Government of India through a GazetteNotification dated 17 September, 2002. Its functionsinclude monitoring the implementation of Court’s ordersand placing reports of non-compliance before the Courtin respect of encroachments, removals, working plans,compensatory afforestation, plantations and otherconservation issues and to examine pending interlocutoryapplications in the said Writ petitions.

46 See ‘SC forest panel has heard 2,000 cases till date’, TheTimes of India, 20 March 2008 and See Armin Rosencraz& Sharachchandra Lele, note 38 above [The authors havecriticised the Supreme Court for assuming ‘the roles ofpolicy maker, law maker and administrator’ byprogressively indulging into micromanagement of forestissues which should have been done by the executive andby centralising the forest management through wideningof the government approval window in respect of non-forest uses and working plans for timber felling].

47 Narmada Bachao Andolan case, note 16 above, GoaFoundation v Diksha Holdings Pvt. Ltd., Supreme Courtof India, Judgement of 10 November 2000, (2001) 2 SCC97 [The case dealt with construction of a hotel in Goafor a sea-beach resort] and M.C. Mehta v Union of India,Supreme Court of India, Judgement of 5 April 2002,(2002) 4 SCC 356.

48 Supreme Court of India, Judgement of 1 September 2003,(2004) 9 SCC 362.

zone to maintain a ‘green area’ around the peripheryof a village.55 In the absence of any evidence, itadjudged that these directions would have hinderedland acquisition for industrial development.

Justice P.N. Bhagawati once made a insightfulobservation: ‘We need judges who are alive to thesocio-economic realities of Indian life’.56 Thisstatement explains the gradual shift in the judicialapproach while dealing with the issues of sustainabledevelopment. These new cases have been set againstthe backdrop of a radically different socio-economicbackground of national life. The annual GDPgrowth rate of the Indian economy has catapultedto the levels of 8 to 9 per cent against a meager 5 to6 per cent in the previous two decades57 and theannual growth rate of the industrial sector hasskyrocketed from the range of 5 to 7 per cent to11.6 per cent during the period of 2002 to 2007.58

Thus, industrial development has become a pressingneed in the current phase of economictransformation. In such a scenario, it is impossiblefor the higher judiciary to remain oblivious of thiscritical facet of national life59 and therefore, thereis an increased probability of a pro-development biascreeping into the judgments where courts arerequired to review choices made betweenenvironment and development.

However, a gamut of recent cases seemingly projectsan impression of Court’s growing pro-industry tiltwhile dealing with intricate issues of sustainabledevelopment. In Deepak Nitrite Ltd. v State of Gujarat& Ors.,49 a case dealing with determination ofstandard of compensation in respect of industrieswhich had flouted the norms laid down by the StatePollution Control Board, the Court held that merenon-compliance with these norms does not implythat environmental damage would result thereby; astrange and inexplicable conclusion indeed.50

Confronted with the issue of oil pipelineconstruction through Jamnagar Marine NationalPark and Sanctuary, the apex Court in Essar Oil Ltd.v Halar Utkarsh Samiti & Ors.,51 permitted suchlaying of pipelines on the ground that it cannotinvariably lead to the destruction or removal of thewild life in these ecologically sensitive areas. TheCourt, instead of taking independent expert evidenceon the issue like it has done in all other cases, deferredto the State’s judgment of possible damage and thefailure of respondent to place any contrary reportsbefore it.52 Furthermore, given a choice betweenenvironment and development, in ResearchFoundation for Science Technology and NaturalResource Policy v Union of India & Ors.,53 the Courtseemed unequivocal of its choice to err on side ofdevelopment. It clearly displayed that it was infavour of continuance of hazardous industry subjectto safeguards being followed and seemingly tookIndia’s economic growth rate of 9 per cent andeconomic interests in ship wrecking industry asoverriding considerations. Lastly, in KarnatakaIndustrial Areas Development Board v Sri. C.Kenchappa & Ors.,54 the Court overturned adirection by the Karnataka High Court to theappellant to leave a land of one kilometer as a buffer

Law, Environment and Development Journal

56

49 Supreme Court of India, Judgement of 5 May 2004, (2004)6 SCC 402, 407.

50 Later, in Research Foundation for Science Technology andNatural Resources Policy v Union of India & Anr. SupremeCourt of India, Judgement of 5 January 2005, (2005) 13SCC 186, the Court has held Deepak Nitrite’s case to beconfined to its own facts.

51 Supreme Court of India, Judgement of 19 January 2004,(2004) 2 SCC 392, 408.

52 Id, at pp. 409-415.53 Supreme Court of India, Judgement of 11 September

2007, 2007 (11) SCALE 75.54 Supreme Court of India, Judgement of 12 May 2006,

(2006) 6 SCC 371.

55 The directions were on lines of M.C. Mehta v Union ofIndia, Supreme Court of India, Judgement of 11 October1996, (1997) 3 SCC 715, following the precautionaryprinciple.

56 Supreme Court of India, Judgement of 30 December1981, (1981) Supp SCC 81, 223.

57 Economic Survey 2007-2008, State of Economy, Chapter1, p.1, available at http://indiabudget.nic.in/es2007-08/chapt2008/chap11.pdf.

58 Economic Survey 2007-2008, Industry, Chapter 8, p.182,available at http://indiabudget.nic.in/es2007-08/chapt2008/chap81.pdf.

59 State of Punjab & Anr. v Devans Modern Breweries Ltd. &Anr., Supreme Court of India, Judgement of 20November 2003, 2003 (10) SCALE 202, 289-294, ResearchFoundation for Science Technology and Natural ResourcePolicy v Union of India & Ors. Supreme Court of India,Judgement of 11 September 2007, 2007 (11) SCALE 75,80, J.K. Industries Ltd. & Anr. v Union of India & Ors.,Supreme Court of India, Judgement of 19 November2007, 2007 (13) SCALE 204, 290 and Maharashtra AgroIndustries Development Corporation Ltd. & Ors. v State ofMaharashtra & Anr., High Court of Bombay, Judgementof 25 October 2005, (2006) 3 LLJ 102, 121.

An important ingredient of environmental litigationis the element of procedural convenience. On theprocedural side, locus standi requirements have beendiluted in environmental actions and courts allowcitizens to file Public Interest Litigation (hereafter‘PIL’) for addressing violations of statutory mandatesby the executive and private parties or situationswhere legal lacunae still persist.60 PILs have emergedas the most potent tool in the hands of Indianjudiciary. The Court has the power to refer scientificand technical aspects for investigation and opinionto expert bodies such as the Appellate Authorityunder the National Environmental AppellateAuthority Act, 199761 and the power to direct theCentral Government to determine and recover thecost of remedial measures from the polluter under Section3 of the Environment (Protection) Act, 1986.62

To sum up this section, despite all its downsides thelong journey of environmental jurisprudence inIndia, when viewed in a holistic manner, can be bestdescribed in Supreme Court’s own words as: ‘Thishas been an interesting judicial pilgrimage for thelast four decades. In our opinion, this is a significantcontribution of the judiciary in making seriousendeavour to preserve and protect ecology andenvironment, in consonance with the provisions ofthe Constitution’.63

3‘GREEN’ COURTS: THEORETICALJUSTIFICATIONS AND PRACTICALNECESSITY

The theoretical foundations of the advocacy forEnvironmental Courts can be traced in thearguments proposed by the proponents of specialised

courts in the renowned generalist versus specialisedcourts debate. Specialised forums, it is contended,are able to evolve superior procedural norms anddevelop better quality of jurisprudence throughexpert judges who have greater exposure to ahomogeneous legal policy regime. They bringuniformity, consistency and predictability indecision making which enhances public confidenceand helps in development of a rich body ofjurisprudence. Incidental benefits include time andcost savings as the requirement of massivedocumentation for understanding technical pointsof law in the special field is averted and streamlinedprocedures make litigation easier and quicker.64

Though there are pitfalls like tunnel vision65 andcapture by interest groups,66 yet, in view of thepractical necessity, specialisation appears to be aninevitable phenomenon and the field of environmentallaw has produced two excellent examples of successfulforums in Australia and New Zealand.

Green Courts in India

57

60 See Subhash Kumar’s case, note 14 above.61 A.P. Pollution Control Board I case, note 2 above.62 Indian Council for Enviro Legal Action v Union of India,

Supreme Court of India, Judgement of 18 April 1996,(1996) 5 SCC 281.

63 Karnataka Industrial Areas Development Board v Sri. C.Kenchappa & Ors., Supreme Court of India, Judgementof 12 May 2006, (2006) 6 SCC 371.

64 See The American Bar Association Central and EastEuropean Law Initiative (CEELI), ‘Concept Paper onSpecialised Courts’, 25 June 1996, Edward K. Cheng, ‘TheMyth of the Generalist Judge: An Empirical Study ofOpinion Specialisation in the Federal Courts of Appeals’,available at http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=edward_chengand Jeffrey W. Stempel, ‘Two Cheers For Specialisation’61 Brook. L. Rev. 67, 88-89 (1995) [The benefits aredocumented as: improved precision and predictability ofadjudication; more accurate adjudication; more coherentarticulation of legal standards; greater expertise of thebench; economies of scale that flow from division oflabor, particularly including speed, reduced costs andgreater efficiency through streamlining of repetitive tasksand wasted motions].

65 Edward K. Cheng note 64 above, Yu Wang, ‘The Impactof Specialised Courts on the Federal Judicial System 1925-1981: A Study of Federal Circuits’ Decision of Reversal’,available at http://law.bepress.com/expresso/eps/1977,Simon Rifkind, ‘A Special Court for Patent Litigation?The Danger of a Specialised Judiciary’, 37 A.B.A. J.425(1951) and Sarang Vijay Damle, ‘Specialise The Judge,Not The Court: A Lesson From The GermanConstitutional Court’, 91 Va. L. Rev. 1267 (2005) [Arelated problem is a lack of ‘cross- pollination’ of ideasin the common law when relying on specialisedjudiciaries. Common-law judges benefit from their broadexposure to legal problems in a variety of fields becauseinsights from one area of the law can be used in otherareas of the law].

66 Id.

The practical need for a ‘Green’ Court has been bestarticulated by Lord Woolf, in his Garner lecture toUnited Kingdom Environmental Law Association,on the theme ‘Are the Judiciary EnvironmentallyMyopic?’,67 based on the extreme inadequacy of thegeneral courts to deal with increasing specialisationin environmental law68 and the need to movebeyond their traditional role of detachedWednesbury review. Thus, he proposed a ‘multi-faceted, multi-skilled body which would combinethe services’ provided by existing forums in theenvironmental field to act as ‘one stop shop’ forfaster, cheaper and more effective resolution ofenvironmental disputes because scientificallyunsound or delayed decisions may wreak havoc interms of irreversible environmental damage andirreparable economic loss.

The objective of securing ‘environmental justice’through adoption of flexible and people orientedprocedures offers another justification for suchforums. Internationally, the concept of easy accessto a fair, equitable, timely and inexpensive justicesystem has been recognised as an important facet ofenvironmental governance.69 In the Indian context,the Constitution guarantees the right to speedyaccess to justice;70 a facet of which is necessarilyrelated with environmental rights.71 The most

Law, Environment and Development Journal

significant facets of environmental justice are ‘equaljustice’ and ‘social inclusion’,72 that is, simplificationof structures and procedures for potential claimantsin order to improve access to justice to those whoare socially excluded due to the labyrinthinecomplexity of the present system. Article 39A73

mandates the Indian State to secure a legal systemwhich is socially inclusive and equally accessible toall people and the jurisprudence of PIL stems fromthis recognition of the rights of the deprived,illiterate and the poor.74 The constitution ofenvironmental courts is thus a sacred constitutionalobligation upon the Indian State.

Furthermore, it has also been argued thatenvironmental law has grown as a specialised areaof law requiring separate adjudication due to certainunique features75 viz. (1) existence of complextechnical/scientific questions; (2) overlapping of civiland criminal remedies as well as public and privateinterests in any environmental adjudication; (3) rapidevolution of a substantial body of internationalenvironmental instruments spanning across a gamutof issues like trade in endangered species, ocean andmarine pollution , transnational shipments ofhazardous wastes and global climate change; and (4)

67 4 J.Envtl. Law 1(1992).68 See Whitney, ‘The Case for Creating A Special

Environmental Court System-A Further Comment’, 15WM. & Mary L. Rev. 33 (1973).

69 Article 9, Convention on Access to Information, PublicParticipation in Decision Making and Access to Justice inEnvironmental Matters, 1998, Johannesburg Principles onthe Role of Law and Sustainable Development (adoptedat the Global Judges Symposium, Johannesburg, SouthAfrica) 18-20 August 2002 [hereafter ‘The JohannesburgPrinciples on the Role of Law and SustainableDevelopment’] and Principle 10, Rio Declaration onEnvironment and Development; Agenda 21, in Report ofthe United Nations Conference on Environment andDevelopment, Rio de Janeiro, UN Doc. A/CONF.151/26/Rev.1 (Vol. 1), Annex II (1992), Chapter 8, Paragraph 2.

70 Salem Advocates Bar Association v Union of India,Supreme Court of India, Judgement of 2 August 2005,(2005) 6 SCC 344.

71 The Indian Parliament has already included variousCitizens’ Initiative Provisions viz. Section 49 of Water(Prevention and Control of Pollution) Act, 1974 andSection 43 of Air (Prevention and Control of Pollution)Act, 1981.

58

72 See The Johannesburg Principles on the Role of Law andSustainable Development, 2002, note 69 above [‘Werecognise that the people most affected by environmentaldegradation are the poor, and that, therefore, there is anurgent need to strengthen the capacity of the poor andtheir representatives to defend environmental rights, soas to ensure that the weaker sections of society are notprejudiced by environmental degradation and are enabledto enjoy their right to live in a social and physicalenvironment that respects and promotes their dignity’].

73 Article 39A reads as: Equal justice and free legal aid-The State shall secure that the operation of the legalsystem promotes justice, on a basis of equal opportunity,and shall, in particular, provide free legal aid, by suitablelegislation or schemes or in any other way, to ensurethat opportunities for securing justice are not denied toany citizen by reason of economic or other disabilities.

74 Guruvayur Devaswom Managing Committee v C.K. Rajan,Supreme Court of India, Judgement of 14 August 2003,(2003) 7 SCC 546 and People’s Union for Democratic Rights& Ors. v Union of India & Ors., Supreme Court of India,Judgement of 18 September 1982, (1982) 3 SCC 235.

75 Professor Richard Macrory & Michael Woods,‘Modernising Environmental Justice: Regulation and theRole of an Environmental Tribunal’, 2003, p.20, availableat http://www.ucl.ac.uk/laws/environment/tribunals/index.shtml.

development of fundamental environmentalprinciples such as the precautionary approach,polluter-pays, sustainable development, preventionat source, and procedural transparency.

However, the present efforts in India have beentriggered by the call from the Supreme Court toconstitute such courts. The practical necessity stemsfrom (1) lack of expertise with the courts, includingthe Constitutional Courts, to judge merits of anenvironmental issue plagued with scientificuncertainty;76 and (2) labyrinthine routes providedfor review and appeals under the statutes to non-expert bureaucrats leading to delay in adjudication.The Supreme Court has, at least in three landmarkcases, expressed the difficulties arising out of lack ofexpertise with the judges,77 which is best expressedin the following words:

The cases involve the correctness ofopinions on technological aspectsexpressed by the Pollution ControlBoards or other bodies whoseopinions are placed before the Courts.In such a situation, considerabledifficulty is experienced by this Courtor the High Courts in adjudicatingupon the correctness of thetechnological and scientific opinionspresented to the Courts or in regardto the efficacy of the technologyproposed to be adopted by theindustry or in regard to the need foralternative technology or modificationsas suggested by the Pollution ControlBoard or other bodies.78

This inexpertise has thwarted judicial review as theCourt has started paying increased deference to theopinion of expert bodies. In cases involvingFundamental Rights under Article 21, theappropriate standard has always been ‘primaryreview’ of the merits of State action.79 However, oflate, the Court has started moving towards the‘secondary review’ standard80 of Provincial PictureHouses v Wednesbury Corporation.81 Primary reviewby an expert judicial body is a necessity in view ofthe shoddy nature of Environment ImpactAssessment in India82 where the authorities underthe statute tend to favour big industrial houses.83

Professor Richard Macrory explains the importanceof such a merits appeal in the following words worthreproducing here: ‘A regulatory appeals systemwhich can deliver effective, consistent, andauthoritative rulings on the interpretation andapplication of regulatory requirements can thereforebe seen as an essential building block - though notthe only one - in ensuring improved compliancewith, and the enforcement of environmentallegislation’.84

The second significant factor, contributing to the‘practical necessity’ argument, is the fragmented

Green Courts in India

59

76 The Johannesburg Principles on the Role of Law andSustainable Development, 2002, note 69 above [‘Weexpress our conviction that the deficiency in theknowledge, relevant skills and information in regard toenvironmental law is one of the principal causes thatcontribute to the lack of effective implementation,development and enforcement of environmental law’].

77 M.C. Mehta v Union of India, Supreme Court of India,Judgement of 16 February 1986, (1986) 2 SCC 176, 202,Indian Council for Enviro Legal Action v Union of India,Supreme Court of India, Judgement of 13 February 1996,(1996) 3 SCC 212 and A.P. Pollution Control Board I case,note 2 above.

78 A.P. Pollution Control Board I case, note 2 above.

79 Bachan Singh v State of Punjab, Supreme Court of India,Judgement of 9 May 1980, (1980) 2 SCC 684, Om Kumar& Ors v Union of India, Supreme Court of India,Judgement of 17 November 2000, (2001) 2 SCC 386 andUnion of India & Ors. v Ganayutham, Supreme Court ofIndia, Judgement of 27 August 1997, (1997) 7 SCC 463.

80 Tehri Bandh Virodhi Sangarsh Samiti & Ors. v State ofU.P. & Ors., Supreme Court of India, Judgement of 7November 1990, 1992 Supp(1) SCC 44, Narmada BachaoAndolan case, note 16 above and N.D. Jayal’s case, note17 above.

81 English Court of Appeal, Judgement of 7 November1947, [1948] 1 KB 223.

82 Sanjay Jose Mullick, ‘Power Game in India:Environmental Clearance And The Enron Project’, 16Stan. Envtl. L.J. 256 (1997) and Aruna Murthy &Himansu Sekhar Patra, ‘Environment Impact AssessmentProcess In India And The Drawbacks’, September 2005,available at http://www.freewebs.com/epgorissa/[Highlighting the poor quality of EIA Reports whichare generally incomplete due to omission of significantinformation and provided with false data].

83 P. Devarajan, ‘Is nature not worth any notice?’, HinduBusiness Line, 8 June 2007.

84 Professor Richard Macrory & Michael Woods, Paragraph4.4, note 75 above.

nature of remedies under the current dispensationwhich provides for multiple appeal routes underdifferent statutes.85 The proposed EnvironmentalCourts would act as ‘one stop shop’ or single windowfor all environmental adjudication. Rationalisationof such fragmented and diversified jurisdictions of anumber of authorities has been an important aim ofsuch courts in New South Wales, Australia and NewZealand. In the United Kingdom, the idea has beentoyed with mainly because the system has grown‘too complex, unintelligible to the general public,lacking any underlying coherence and thus failingto reflect contemporary developments inenvironmental law’.86 Moreover, the existingauthorities, in the Indian context, lack thecombination of judicial and technical expertise, forexample, the qualifications of the persons to beappointed as appellate authorities under section 28of the Water (Prevention and Control of Pollution)Act, 1974, section 31 of the Air (Prevention andControl of Pollution) Act, 1981 and under Rule 12of the Hazardous Wastes (Management andHandling) Rules, 1989, are not clearly spelt out. TheSupreme Court has noted regional disparities createdby such open provisions viz. while the appellateauthority under section 28 in the State of AndhraPradesh as per the notification of the AndhraPradesh Government is a retired High Court Judgewith no expert to help him in technical matters andthe same authority as per the notification in State ofDelhi is the Financial Commissioner who is neithera regular judicial member nor a technical expert.87

Going further, under the National EnvironmentalTribunal Act, 1995, the Tribunal may either have aJudge/ retired Judge of the Supreme or High Courtor a Secretary to Government or AdditionalSecretary who has been a Vice-Chairman for twoyears as Chairman of the Tribunal. This involvementof executive authorities deprives the process ofprocedural fairness due to lack of public hearings,restricted procedural rights and lack of transparencyand consequently, such a system fails to contributeto the development of a body of legal principles

which is indispensable for the development ofefficient environmental governance system.88

To crown it all, the Constitutional Courts are facedwith the Sisyphean task of clearing a burgeoningdocket of cases reaching them through multifariousappellate routes under the Constitution and otherstatutes. The 124th Report of the LCI describes thependency of cases in the High Courts as ‘catastrophic,crisis ridden, almost unmanageable, imposing animmeasurable burden on the system’.89 Thus, theyare not able to devote requisite time and attention topressing issues of environmental concern in the faceof a manifold rise and high visibility of environmentallitigation. Lastly, the presence of a specialist courtwill also increase public, government and industryawareness of environmental issues as witnessed inNew South Wales.90 From a holistic perspective, therational for a ‘green’ court can be best articulated inthe following words:

The costs and administrative changesinvolved in setting up such a Tribunalto handle the majority of existingappeals would be modest comparedto the policy gains to be made. Such aTribunal would bring a greaterconsistency of approach to theapplication and interpretation ofenvironmental law and policy. Theimprovements in authority andspecialist knowledge would also fosterincreased confidence in those subjectto environmental regulation, theregulatory authorities, and the generalpublic. The Environmental Tribunalwould lead to the better application

Law, Environment and Development Journal

60

85 Robert Carnwath, ‘Environmental Enforcement: TheNeed for a Specialist Court’, [1992] J.P.L. 799.

86 Professor Richard Macrory & Michael Woods, note 75above.

87 A.P. Pollution Control Board I case, note 2 above and A.P.Pollution Control Board II cases, note 2 above.

88 Justice Paul L. Stein, ‘New directions in the Preventionand Resolution of Environmental Disputes - SpecialistEnvironmental Courts’, Speech at The South-East AsianRegional Symposium On The Judiciary And The Law ofSustainable Development 1999, Paragraph 11, available athttp://www.bocsar.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_stein_060399a.

89 Law Commission of India, ‘124th Report on a Fresh Lookat High Court Arrears’, available at http://lawcommissionofindia.nic.in/101-169/Report124.pdf[herafter 124th LCR].

90 Professor Richard Macrory & Michael Woods, note 75above.

construction, management of natural resources andurban design or heritage.94

The Court exercises a combinatorial appellatejurisdiction95 under planning and production statuesand a ‘reviewing and enforcement jurisdiction’ inrelation to environmental and planning statutes. Itsjurisdiction extends to matters ancillary to a matterthat falls within its jurisdiction;96 thus enabling itto adjudicate matters which incidentally affectenvironment. The Court’s doors are open to anyonecomplaining of violation of the relevant statutes.Section 22 empowers the Court to grant all remediesof any nature, conditionally or unconditionally, sothat all controversy is completely and finallydetermined and multiplicity of proceedings isavoided.97 On the procedural plane, the Court is notbound to follow rules of evidence and may obtainassistance of any person having professional ortechnical qualifications relevant to any issue.98

Justice Paul Stein, Judge, LCE, has highlighted thefollowing benefits arising out of the Court’sintegrated jurisdiction over the last 20 years:99

(1) Decrease in multiple proceedings arisingout of the same environmental dispute;

(2) Reduced litigation with consequent savingsto the community;

(3) A single combined jurisdiction isadministratively cheaper than multipleseparate tribunals;

(4) A greater degree of certainty indevelopment projects;

(5) Reduction in costs and delays may lead tocheaper project development and cost forconsumers;

of current environmental law andpolicy, a more secure basis foraddressing future challenges,increased public confidence in howwe handle environmental regulation,and the improved environmentaloutcomes which should follow.91

4AN OVERVIEW OF ENVIRONMENTALCOURTS IN OTHER JURISDICTIONS

Two important precedents of Environmental Courtsare furnished by the Land and Environmental Court(hereafter ‘LEC’) in New South Wales, Australia andthe New Zealand Environment Court (hereafter‘NZEC’). A brief description of the structure,powers and procedure of both these courts isindispensable for a critical understanding of LCI’srecommendations as both the Supreme Court92 andthe LCI, characterising these experiments as ‘ideal’,have heavily relied on them to define the proposedIndian system.

4.1 The Land and EnvironmentCourt, Australia

The LEC, established under the Land andEnvironment Court Act, 1979, is a superior courtof record having same jurisdiction as the SupremeCourt of New South Wales93 and is composed ofJudges and nine technical and conciliation assessors.The Judges and Commissioners are appointed by theGovernor and the Commissioners are required tohave the widest possible qualifications viz. specialknowledge or qualification in town planning,environmental planning, environmental scienceincluding matters relating to protection of theenvironment and environmental assessment,architecture, engineering, surveying or building

Green Courts in India

61

91 Id, at Paragraph 17.1.92 A.P. Pollution Control Board I case, note 2 above.93 Australia, Land and Environment Court Act, 1979

(NSW), Section 20 (2).

94 Id, Section12.95 Id, Sections 17 and 18 [appeals under statutes relating to

local government], Section 21A (class 6) [appeals fromconvictions relating to environmental offences] andSection 2IB (class 7) [other appeals relating toenvironmental offences].

96 Id, Section 16.97 Id, Section 22.98 Id, Section 38.99 Justice Paul L. Stein, Paragraph 91, note 88 above.

(6) Greater convenience, efficiency andeffectiveness in development controldecisions.

The efficient and timely disposal of cases by LEC isa well recognised fact and the available figures100

reveal that the Court has an ideal clearance ratio101

of 100 per cent. It has established consultativecommittee in form of ‘Court Users Group’ whosemain function is to recommend to the Chief Judgeimprovements in the functioning and servicesprovided by the Court and act as a communicationchannel to disseminate court related information.The Group has a wide range of membership acrossengineering, architectural, planning, surveyingstreams along with representatives of the legalprofession.102 In overall terms, the LEC has beenan outstanding success in terms of efficiency andeffectiveness.103

4.2 The New Zealand EnvironmentCourt

The NZEC, established under the ResourceManagement Act, 1991 (hereafter ‘RMA’), is anindependent specialised court consisting ofEnvironment Judges and EnvironmentCommissioners acting as technical experts. TheGovernor-General appoints them for a period of fiveyears on the recommendation of the Minister ofJustice, while ensuring a mix of knowledge andexperience including commercial and economicaffairs, local government, community affairs,planning and resource management, heritageprotection, environmental science, architecture,engineering, minerals and alternative disputesresolution processes.

The RMA enjoins the Court with a general duty ofpromoting sustainable management in accordancewith the Act and the duty of avoiding, remedyingor mitigating adverse effects on the environment.The Court exercises a wide spectrum of powers overenvironmental issues104 which include threeprominent areas viz. (1) power to make declarationsof law;105 (2) power of appellate review on a denovo106 basis of resource consents and proposeddistrict and regional plans/ policy statements;107 and(3) power to enforce duties under the RMA throughcivil and criminal proceedings.108

The Court can make declarations on questionsregarding division of authority between regionalauthorities and conformance of policy plans/statements and acts of government entities withRMA or the policy plans.109 Under its appellatejurisdiction, it reviews planning instruments likeregional policy statements/ plans and resourceconsents on merits. It has the power to eitherconfirm or direct the local authority to modify,delete, or insert any provision referred to it and suchauthority is enjoined to effectuate the decision ofthe Court.110 Lastly, it can issue ‘enforcementorders’ on application of any person on any of thefour grounds specified underneath, that is:111

Law, Environment and Development Journal

62

100 The Land and Environment Court of NSW, ‘AnnualReview, 2005’, available at http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_annualreviews.

101 A measure of whether the Court is keeping up with itsworkload. It is the number of finalisations divided bythe number of lodgments/registrations (multiplied by100 to convert to a percentage).

102 Dennis A. Cowdroy, ‘The Land and Environment Courtof New South Wales - A Model For The UnitedKingdom’, [2002] J.P.L. 59.

103 Justice Paul L. Stein, Paragraph 91, note 88 above.

104 See Ministry of New Zealand, ‘Your Guide to EnvironmentCourt: An Everyday Guide to the RMA Series 6.1’,available at http://www.mfe.govt.nz/publications/rma/everyday/court-guide-jun06/html/page2.html.

105 New Zealand, Resource Management Act, 1991, Sections310- 313.

106 A de novo review entails that not only does the Courtdecide the ultimate merits of the decisions it reviews,but it does so based on evidence that is adduced anewbefore the court, rather than on the evidence that wasbefore the Council from which the appeal or referenceis made to it. Section 290 (1) specifies that in exercisingits appeal powers, the Environment Court ‘has the samepower, duty, and discretion . . . as the person againstwhose decision an appeal or inquiry is brought’. Thiscan be contrasted with the Indian standard of reviewwherein the Court determines only the legality andpropriety of the decision making process withoutinterfering with merits of the decision itself.

107 RMA, Sections 120, 292, 293.108 Id, Sections 314-321 and 338 -343.109 Id, Section 310 (b) and (c) and Bret C. Birdsong,

‘Adjudicating Sustainability: New Zealand’sEnvironment Court’, 29 Ecology L.Q. 1, 26-38 (2002).

110 Id, Sections 120 and 290 (2).111 Id, Sections 314 and 316.

a. Injunction against actions contrary to theprovisions of the RMA, regulations, rulesin regional or district plans, or resourceconsents; or

b. Injunction against action that ‘is likely tobe noxious, dangerous, offensive, orobjectionable to such an extent that it hasor is likely to have an adverse effect onthe environment’; or

c. Directing a person affirmatively to complywith the RMA and other instruments orto avoid, remedy, or mitigate adverseeffects on the environment caused by oron behalf of that person; or

d. Compensating others for reasonable costsassociated with avoiding, remedying ormitigating effects caused by a person’sfailure to comply with one of severalinstruments, including rules in plans orresource consents.

With the consent of the parties, at any time afterproceedings are lodged, the Court may ask one ormore of its Environment Commissioners to conductmediation or conciliation to resolve the dispute.112

The mediation service of the Court is regarded as‘innovative’ and cost-effective as its own technically-oriented Commissioners act as mediators.113 On theprocedural side, limitations on rules of evidence arenon-existent114, proceedings are less formal and itencourages individuals and groups to representthemselves. Third parties may also apply to it foran order to enforce the RMA against anyone else.Its decisions may be appealed to the High Court onquestions of law only.115 In view of its overarchingpowers, it has been rightly characterised as the‘adjudicator of sustainability’.116

Initially, the Court was confronted with delays indisposal of mounting caseload. However, in 2003,the Government provided additional financialresources after a thorough review of this issue.117

Since then, the case pendency has halved and the‘clearing ratio’ has improved to a level above 90 percent which speaks volumes about its efficiency.118

5AN OVERVIEW OF LAW COMMISSIONOF INDIA’S RECOMMENDATIONS

The LCI undertook the study of EnvironmentalCourts in pursuance of the call by the apex Courtto do so. It has proposed a structure in whichEnvironmental Courts will be established at the statelevel with flexibility to have one Court for morethan one State.119 The 186th Report summarises themajor recommendations relating to the composition,powers and procedures of the proposed courts whichcan be delineated systematically under the followingheads:

5.1 Composition of the ‘Green’Court

The Court shall consist of three Judicial Members,who are either (a) sitting or retired Judges of a HighCourt or (b) experienced Members of the Bar withnot less than 20 years standing.120 In theappointment process, it is proposed to providepreference to those who have had experience inenvironmental matters as judges or lawyers. Thejudges will be appointed by the Central Government

Green Courts in India

63

112 Id, Section 268.113 Stephen Higgs, ‘Mediating Sustainability: The Public

Interest Mediator in The New Zealand EnvironmentCourt’, 37 Envtl. L. 61 (2007).

114 New Zealand, Resource Management Act, 1991, Sections274 (1) and 276.

115 Id, Section 287.116 See Birdsong, note 109 above, at p. 38.

117 Ministry for the Environment, ‘Reducing the Delays:Enhancing New Zealand’s Environment Court’, March 2003, available at http://www.mfe.govt.nz/publications/rma/reducing-the-delays-mar03.pdf.

118 New Zealand Environment Court, ‘Annual Report ofthe Registrar, 2005’, at p.8, ‘Annual Report of theRegistrar, 2006’, at p.9, and ‘Annual Report of theRegistrar, 2007’, at p.8, available at http://www.justice.govt.nz/environment/reports/default.asp.

119 186th LCR, at p.142.120 Id, at p.142.

in consultation with the State Government, theChief Justice of the State/Union Territoryconcerned and the Chief Justice of India.121

In respect of each court, the judicial members willbe assisted by three environmental experts, to beknown as the ‘Commissioners’. Without being a partof the bench itself, they will constitute a statutorypanel for proffering independent advice andassistance to the court in analysing and assessingscientific or technological issues. It has beenrecommended to have a mandatory presence of suchexperts during the course of the hearings. EachCommissioner must have (1) a degree inenvironmental sciences together with at least fiveyears experience as an environmental scientist orengineer; or (2) adequate knowledge of andexperience to deal with various aspects of problemsrelating to environment, and in particular thescientific or technical aspects of environmentalproblems, including the protection of environmentand environment impact assessment. Theappointment will be made by the concerned StateGovernment in consultation with the Chief Justiceof the State High Court and Chairman of theconcerned Environmental Court. The tenure of boththe Judges and Commissioners will be five years.122

5.2 Jurisdiction and Powers of‘Green’ Court

The proposed court will have jurisdiction over allenvironmental issues with specific inclusion of thefollowing:123

a) protection of the right to safe drinkingwater and the right to an environment thatis not harmful to one’s health or well being;and

b) power to have the environment protectedfor the benefit of present and futuregenerations so as to:

i) prevent environmental pollutionand ecological degradation;

Law, Environment and Development Journal

64

ii) promote conservation; and

iii) secure ecologically sustainabledevelopment and use of naturalresources while promotingjustifiable economic and socialdevelopment.

Such jurisdiction shall specifically extend to thefollowing matters:124

a) the protection of natural environment,forests, wild life, sea, lakes, rivers, streams,fauna and flora;

b) preservation of natural resources of theearth;

c) prevention, abatement and control ofenvironmental pollution including water,air and noise pollution;

d) enforcement of any legal or constitutionalrights relating to environment and pollutionunder the Constitution of India or under anyother law for the time being in force; and

e) protection of monuments and places,objects of artistic or historical interest ofnational importance as declared by the lawmade by Parliament.

It has been proposed that the new Act shouldincorporate the definition of ‘environment’ and‘environmental pollution’ as provided in Section 2(a)and Section 2(c) of the Environment (Protection)Act, 1986 respectively. The proposed court shallhave original jurisdiction on environmental disputeswith all powers of a Civil Court and shall have thepower to grant all reliefs which the latter can grantunder the Code of Civil Procedure, 1908 or otherstatutes like the Specific Relief Act, 1963.125 It willhave all appellate powers now conferred under theWater (Prevention & Control of Pollution) Act,1974, the Air (Prevention & Control of Pollution)Act, 1981, and on the appellate authoritiesconstituted under the various Rules made under the

121 Id, at pp. 153-154.122 Id, at pp. 154- 155.123 Id, at p. 146.

124 Id, at p. 146.125 Id, at p. 145.

Environment (Protection) Act, 1986.126 In additionto this, the jurisdiction of the tribunal under theNational Environment Tribunal Act, 1995 and theauthority under the National EnvironmentalAppellate Authority Act, 1997, is proposed to betransferred to the Environment Court.127

The Law Commission has not proposed any reviewrole for the Court and has shunned the method ofextensive classification of cases into different classesadopted in New Zealand. In addition to the strictlyjudicial functions, the Court will be bestowed withwide ‘policy making’ powers to frame schemes,monitor them and modify them suitably.128

However, these powers are distinct from executivepolicy making powers and limited to directions forshifting or closure of polluting industries, workmencompensations schemes, making provision for waterin new localities or securing justice inter partes. Theywill have power to mould relief like ConstitutionalCourts according to facts and circumstances of thecase as opposed to civil courts which grant only therelief asked for.129

However, the LCI has thought it fit to deprive the‘Green’ Courts of the writ powers exercised by theHigh Courts under Article 226 of the Constitutionof India. The recommendation has been in view ofthe judgment of Supreme Court in L. ChandraKumar v Union of India130; an issue which has beendiscussed in detail underneath. Similarly, criminaljurisdiction has been excluded from the court’spurview solely because of lack of precedent in termsof any special law where the appellate criminaljurisdiction of the High Court has been transferredto another court at the state level, manned by retiredjudges.131 The decisions of the Court may be appealedagainst in Supreme Court only on points of law andthe LCI argues that the presence of this efficaciousremedy will make the High Courts refrain frominterfering with the new courts in exercise of theirpowers under Articles 226 and 227.132

5.3 Locus Standi and ProceduralAspects

The locus standi requirements in case of originalpetitions will be as flexible and wide as in case of PILbefore the Constitutional Courts. Any person ororganisation who or which is interested in the subjectmatter or in public interest may approach the courtsubject to the exception that the courts may inflictexemplary costs in case of frivolous or vexatiouslitigation.133 On the procedural side, ‘Green’ Courtswill not be bound by rules of evidence laid down inIndian Evidence Act, 1872, and would be able toformulate their own procedural norms. They willbe able to consult experts outside the statutory bodyof Commissioners. The Judges and Commissionerswill have the necessary powers to make spotinspections and record oral evidence.134 Conciliationand mediation at any stage of the proceeding, originalor appellate, shall be encouraged.135 However, in allcases, the fundamental principles of natural justicewill be adhered to.

6THE DARK SIDE OF LAW COMMISSIONOF INDIA’S RECOMMENDATIONS

John S. Hammond, in his seminal work titled ‘TheHidden Traps in Decision Making’, has enumeratedvarious psychological clogs and prejudices, called‘traps’, which subtly operate to cloud the mind of adecision maker and prevent him from adopting thebest course amongst the possible alternativechoices.136 Though originally applied in context ofbusiness decision making, the ‘trap hypothesis’extends even to recommendatory bodies and lawmakers in the legal field. The LCI does not seem tobe an unaffected decision maker while endorsing theneed for constitution of specialised EnvironmentalCourts as though the aforesaid recommendations

126 Id, at pp. 142-144.127 Id, at p. 149.128 Id, at p. 150.129 Id, at p. 151.130 Supreme Court of India, Judgement of 18 March 1997,

(1997) 3 SCC 261.131 186th LCR, at pp. 155-156.132 Id, at p. 157, 159.

133 Id, at p. 152.134 Id, at p. 148.135 Id, at p. 148.136 John S. Hammond et al., ‘The Hidden Traps in Decision

Making’ (September-October 1998) Harv. Bus. Rev. 47.

Green Courts in India

65

combine the essential attributes of comprehensivityand clarity, yet they fail to (a) secure theindependence of courts from executive and; (b)ensure potent enforcement powers to them bymaking them a part and parcel of the lower judiciary.

Specialised judicial authorities for environmentaladjudication have already been created in India. TheNational Environment Tribunal Act, 1995, wasenactment to provide for strict liability for damagesarising out of any accident occurring while handlingany hazardous substance and for the establishmentof the Tribunal for effective and expeditious disposalof cases arising from such accidents, with a view togiving relief and compensation for damages toperson, property and the environment. However,the Act has not been notified by the executivegovernment and thus, during the last twelve years,no Tribunal is in existence. The LCI itself hasexpressed anguish over the gross failure of the Actnoting that if a tragedy like the Bhopal Gas Disasterreoccurs today, there is no Tribunal which wouldgrant damages expeditiously.137 The NationalEnvironmental Appellate Authority Act, 1997,intended to provide for the establishment of aNational Environmental Appellate Authority tohear appeals with respect to restriction of areas inwhich any industries, operation or process or classof industries, operation or processes shall be carriedout or shall not be carried out subject to safeguardsunder the Environmental (Protection) Act, 1986.However, the LCI has noted that the narrowjurisdiction of the authority was ineffectual and therehave been no appointments after the retirement ofthe first Chairman to the Authority.138

Thus, both the Tribunals have been rendered non-functional due to the laxity of the executiveGovernment. However, even in face of such grossfailures, the LCI has failed to envisage a scheme fortotal independence of the future ‘Green’ Courtsfrom government control. The reasons forchartering a new course and treading a new path inrespect of ‘Green’ Courts have been articulated inthe following section with suggestions of appropriatemodifications and it is necessary to emphasise thatthe broader premises articulated apply to all national

systems which genuinely desire such an overhaul ofjudicial administration.

6.1 Executive Interference inFunctioning of ‘Green’ Courts

The makers of the Indian Constitution never soughtto leave the judiciary at the mercy of the otherbranches.139 Independence of judiciary is the bulwarkof the Indian democratic system140 and forms a partof the basic structure141 of the Constitution.142 The

137 186th LCR, at p.101,104.138 Id, at p.104.

139 M. P. Singh, ‘Securing The Independence of TheJudiciary-The Indian Experience’, 10 Ind. Int’l & Comp.L. Rev. 245 (2000).

140 Union of India v Sankal Chand Himatlal Sheth & Anr.,Supreme Court of India, Judgement of 19 September1977, (1977) 4 SCC 193 [The Court declared that ‘.. theindependence of judiciary is a fighting faith of ourConstitution. Fearless justice is a cardinal creed of ourfounding document....’].

141 The Basic Structure doctrine was propounded by theSupreme Court in Keshavananda Bharati v Union ofIndia, Supreme Court of India, Judgement of 24 April1973, (1973) 4 SCC 225 and postulates that elemental orbasic features like democratic governance, secularism,federalism, independence of judiciary, separation ofpowers, fundamental rights like right to life, theharmonic balance between fundamental rights andDirective Principles of State Policy, cannot be abrogatedby the Parliament through a constitutional amendment.Any constitutional amendment which runs contrary tothese principles is unconstitutional and void. See IndiraGandhi v Raj Narain, Supreme Court of India,Judgement of 7 November 1975, (1975) Supp SCC 1,Minerva Mills v Union of India, Supreme Court of India,Judgement of 9 May 1980, (1980) 3 SCC 625, WamanRao v Union of India, Supreme Court of India,Judgement of 13 November 1980, (1981) 2 SCC 362,L. Chandra Kumar v Union of India, Supreme Court ofIndia, Judgement of 18 March 1997, (1997) 3 SCC 261and Andreas Buss, ‘Dual Legal Systems and the BasicStructure Doctrine of Constitutions: The Case of India’,19 NO. 2 Can. J.L. & Soc’y 23, 38-39 (2004).

142 Sub-Committee of Judicial Accountability v Union of India,Supreme Court of India, Judgement of 24 October 1991,(1991) 4 SCC 699, All India Judges Association & Ors. vUnion of India & Ors, Supreme Court of India, Judgementof 24 August 1993, (1993) 4 SCC 288, Supreme CourtAdvocates on Record Ass’n v Union of India, SupremeCourt of India, Judgement of 6 October 1993, (1993) 4SCC 441, Registrar (Admn.), High Court of Orissa, Cuttackv Sisir Kanta Satapathy, Supreme Court of India,Judgement of 16 September 1999, (1999) 7 SCC 725 and Stateof Bihar & Anr. v Bal Mukund Sah & Ors., Supreme Courtof India, Judgement of 14 March 2000, (2000) 4 SCC 640.

Law, Environment and Development Journal

66

Indian Constitution specifically directs the state ‘toseparate the judiciary from the executive in the publicservices of the State’.143 The concept of independencesignifies lack of powers of the government to ‘abolishthis institution, replace it, or make significant changesin its structure’.144 The Supreme Court has wrestledback power of appointment of judges of the superiorjudiciary from the executive despite a clearconstitutional mandate entrusting wide powers withthe executive.145 The Court has struck a resoundingnote in this aspect:

Judicial independence cannot besecured by making mere solemnproclamations about it. It has to besecured both in substance and inpractice. It is trite to say that thosewho are in want cannot be free. Self-reliance is the foundation ofindependence. The society has a stakein ensuring the independence of thejudiciary, and no price is too heavy tosecure it. To keep the judges in wantof the essential accoutrements andthus to impede them in the properdischarge of their duties, is to impairand whittle away justice itself.146

Thus, the basic concern is to obtain a more effectiveand vital judicial system so as to secure andstrengthen the imperative confidence of the peoplein the administration of justice. The Constitutionprovides recognition and constitutional protectionto the subordinate courts147 in respect ofrecruitment and appointment of judges through acomplete code in form of Chapter VI of Part VI- animpenetrable insulation from the interference of any

other outside agency.148 The power of appointmentto subordinate judiciary belongs to High Courts andneither the Parliament of India nor the Executive(President or Governor) can usurp this functionthrough either legislation or executive orders.149

In view of this, it is important to visualise thepositioning of the proposed Environmental Courtswhich, though equivalent to civil courts in all otherrespects, will be set up under a statute of theParliament. They will adjudicate on matters relatingto crucial Fundamental Rights of the citizens but willstill be denied of constitutional protection andguarantee of independence.150 The status, as Iperceive it, will not be more than that of a statutorytribunal under the guise of a ‘court’. It is an opensecret that the entrustment of powers of appointmentof judges of any court/tribunal with the executivehas led to hindrance in the functioning of thoseinstitutions by a spate of improper and illegalappointments which have eventually been challengedin the Constitutional Courts. The plight of thesetribunals in respect of their judicial manpower isbetter left unsaid. In view of this bitter experience, itis necessary to ensure that the ‘Green’ Courts shouldnot meet the same fate by failing to inspire publicconfidence. The reason is crystal clear: the inferiorstatus of such courts/tribunals.

Environment laws are an area in which theGovernment of India has been indulging in mereplatitude as is evident from the fact that over thepast six decades of independence precious little hasbeen done at the ground level. From the recentevents in respect of the Godavarman case, it isevident that the executive branch reckonsenvironmental governance as its sole domain.151 The

143 India, Constitution of India, 1950, Article 50.144 Eli M. Salzberger, ‘A Positive Analysis of The Doctrine

of Separation of Powers, or: Why Do We Have AnIndependent Judiciary?’, 13 Int’l Rev. L. & Econ. 349,351 (1993).

145 M. P. Singh, ‘Securing The Independence of TheJudiciary - The Indian Experience’, 10 Ind. Int’l & Comp.L. Rev. 245 (2000) and Supreme Court Advocates onRecord Ass’n v Union of India, Supreme Court of India,Judgement of 6 October 1993, (1993) 4 SCC 441.

146 All India Judges’ Association & Ors v Union of India &Ors., Supreme Court of India, Judgement of 24 August1993, (1993) 4 SCC 288.

147 India, Constitution of India, 1950, Articles 233-237.

148 State of Bihar & Anr. v Bal Mukund Sah & Ors., SupremeCourt of India, Judgement of 14 March 2000, (2000) 4SCC 640.

149 Id.150 Laifan Lin, ‘Judicial Independence in Japan: A Re-

Investigation for China’,13 Colum. J. Asian L. 185, 191,198 (1999) [‘The most important aspect in theindependence of the judiciary is its constitutionalposition….The constitution must ensure a constitutionalposition of dignity to the judiciary’].

151 See Dhananjay Mahapatra, ‘Centre wants Green Benchdisbanded’, 21 July 2007, available at http://www.forestcaseindia.org/f9/document.2007-08-13.2179904688.

Green Courts in India

67

Central Government has vehemently urged theSupreme Court to wind up its Forest Bench.152 Thegovernment has opined that the ad hoc orders passedby the Forest Bench, on basis of the opinion ofpersons not qualified in scientific forestry, have ledto usurpation of executive’s powers and havecontributed to growing poverty, social unrest andspurt in Naxal activities.153 Furthermore, theMinistry of Environment and Forest has been atloggerheads with the apex Court over thecomposition of the Forest Advisory Council154 andhas refused to include persons recommended by theCourt in the Council.155 The Ministry is also tryingto overturn Court’s wide definition of ‘forest’ byrestricting it to ‘legally notified forests’.156 Over thepast twelve years, the authorities have consciouslyviolated the orders of the Court regarding ban onsawmill licencing.157

Such attitude of Government puts a big question onthe independence of the proposed EnvironmentCourt. The Law Ministry is already surreptitiouslytampering with the LCI’s proposal to induct retired

bureaucrats onto the ‘green’ benches.158 The Bill isunder wraps but news reports reveal that it proposesto establish a two-tier structure, a NationalEnvironment Tribunal (NET) at the Centre andRegional Environment Tribunals (RET) for groupsof states. The NET will have a chairperson and ninemembers. Besides the chairperson and one member,who are judicial members, eight experts from thefields of physics, chemistry, botany, zoology,engineering, environmental economics and socialsciences (either sociology or cultural anthropology)and forestry would form the NET. Such a shift from‘court’ to ‘tribunal’ will erode the whole efficacy ofthe exercise.

The independence of the judiciary from politicalpressures is an essential aspect of justice at anylevel.159 It is advisable to scrap the proposal ofstatutory constitution of Environmental Courts inthe present form. The more appropriate way is toconstitute them in form of a specialised division ofthe existing High Courts. To make, environmentaljustice more people-oriented, the existing DistrictCourts should also have such divisions from whichthe appeal will lie to the High Court divisions. It ishighly significant, at this juncture, to stop repeatingthe mistake of executive involvement is judicialappointments. It will be beneficial to entrust thepower of appointment to the Higher Courts whichwill at once ensure the quality of appointment andthe independence of judiciary.160

152 See J. Venkatesan, ‘Wind up Forest Bench: Centre’, TheHindu, 21 July 2007, ‘Centre Urges Apex Court to WindUp “Forest Bench”’, available at http://www.forestcaseindia.org/f9/document.2007-08-13.2788121453 and See Honorable Justice SobchockSukharomna, ‘Establishing Green Bench within theSupreme Court of Thailand’, Asia Pacific RegionalConference on the Environmental Justice andEnforcement, January 2008, available at http://w w w . r o a p . u n e p . o r g / p r o g r a m / D o c u m e n t s /Law08_presentations/Day1/Green_Bench_THA.pdf[On the contrary, Thailand has formally established aGreen Bench within its Supreme Court].

153 Dhananjay Mahapatra, note 151 above and ArminRosencraz & Sharachchandra Lele, note 38 above, at pp.13-14.

154 FAC is the highest Government-appointed advisorybody constituted under Section 3 of the Forest(Conservation) Act, 1980, which is responsible for allclearances related to any diversion of forest land for non-forest purposes.

155 See ‘Govt, SC disagree over forest panel members’,Indian Express, 6 January 2007 and Sonu Jain, ‘We needexperts, not activists, said Govt, rejecting all 9 namesproposed by SC panel’, Indian Express, 10 January 2007.

156 Sharachchandra Lele, ‘‘Defining’ Moment for Forests’,Vol. XLII, No.25, Economic & Political Weekly, 2379(23 June 2007).

157 Armin Rosencraz & Sharachchandra Lele, note 38 above,at p 12.

158 Kalpana Sharma, note 3 above.159 J. Clifford Wallace, ‘An Essay on Independence of The

Judiciary: Independence From What And Why’ 58N.Y.U. Ann. Surv. Am. L. 241 (2001).

160 Maria Adebowale, ‘Using the Law: Access toEnvironmental Justice Barriers and Opportunities’,available at http://www.defra.gov.uk/environment/enforcement/pdf/ejureport.pdf [stressing ontransparency in judicial appointment to environmentalcourts to enhance public confidence], Jeffrey W.Stempel, ‘Two Cheers For Specialisation’, 61 Brook. L.Rev. 67 (1995) [‘Regardless of whether the critics orproponents of specialisation are correct, specialisedcourts will work best if they are not granted second-class status. Insofar as possible, specialised courts shouldhave parity with the generalist bench’.] and TheAmerican Bar Association Central and East EuropeanLaw Initiative (CEELI), Concept paper on SpecialisedCourts, 25 June 1996 [arguing for minimisation of thepotential for reduced judicial stature and importance tomake specialised court effective].

Law, Environment and Development Journal

68

Furthermore, even the most pious utterances for theestablishment of an independent and effectivejudicial system are mere empty rhetoric without a‘guaranteed source of funding to carry out thosetasks’.161 Hamilton has argued that ‘[n]ext topermanency in office, nothing can contribute moreto the independence of the judges than a fixedprovision for their support. . . . In the general courseof human nature, a power over a man’s subsistenceamounts to a power over his will’.162 Countries likeJapan have secured financial independence of thejudiciary through a budget allocation systemspecifically designed for the judiciary.163 Under theIndian system, the Government controls the financesthrough the legislature without any say of thejudiciary.164 Given the necessity of collection ofindependent expert evidence through spotinvestigations coupled with the duty of these newcourts to settle environmental disputes in a timebound manner and actively promote settlementthrough conciliation and mediation, it is anaxiomatic truth that adequate and guaranteedfinances will be conditio sine qua non for them tofunction efficiently. Court fees cannot be used tofinance the system as it will restrict access and, thus,defeat the very rationale behind such an exercise.Hence, it is imperative to make a constitutionalcommitment of adequate funds for the functioningof ‘green’ benches. Though it may seem to place alittle constraint on the maneuverability ofgovernment finances, but this little sacrifice is worthmaking for the huge benefit people will reaptranscending current generations.

Lastly, the constitution of these courts should notbe delegated to the Government by means of aconditional legislation clause as the government may

keep the power in suspension even forever and theproposal may never materialise just like the NationalEnvironment Tribunal. Undeniably, theindependence of ‘green’ benches from the executivebranch is an essential and indispensablerequirement.165

6.2 Why Create ToothlessInstitutions?

The main reason for creation of EnvironmentalCourts is the lack of expertise with theConstitutional Courts in cases involving scientificissues. However, the proposal seeks to constitutethem in form of civil courts and thus leave themvulnerable to greater interference by theseinexperienced forums. The power to issue writsunder Article 226 is the most potent weapon in thehands of the High Courts and these new courts, ifnot equipped to exercise these powers, will betoothless. The history of environmental cases isreplete with instances where the Governmentalagencies and Government have not been interestedin cooperating even with the superior courts.166 Insuch a scenario, how much deference will such aSovereign pay to a civil court where the governmentis often a party to litigation in such cases? Theattitude of Central Government to Supreme Court’sforest bench, alluded to above, is a clear indicationof its intention to avoid judicial monitoring of itsdiscretion under environmental legislations.

The example of National Information Commissionshows how the Government Ministries refuse toagree with the special forums in order to subserve

161 Basic Principles on the Independence of the Judiciary,adopted by the Seventh United Nations Congress onthe Prevention of Crime and the Treatment ofOffenders, Held at Milan (26 August to 6 September1985), Paragraph 7.

162 Alexander Hamilton, ‘The Federalist No. 79’.163 Laifan Lin, ‘Judicial Independence in Japan: A Re-

Investigation for China’, note 150 above.164 Even the Supreme Court has found itself powerless to

do anything in respect of provision of finances for thejudiciary. State of U.P. & Ors. v Jeet S. Bisht & Anr.,Supreme Court of India, Judgement of 18 May 2007,(2007) 6 SCC 586.

165 Justice Paul L. Stein, Paragraph 91, note 88 above andThe Johannesburg Principles on the Role of Law andSustainable Development, 2002, note 69 above [‘Weaffirm that an independent judiciary and judicial processis vital for the implementation, development andenforcement of environmental law’].

166 D.D. Vyas v Ghaziabad Development Authority,Allahabad High Court, Judgement of 13 April 1992, AIR1993 All. 57 [The Government intentionally omitted tosubmit counter affidavits], Ashok v Union of India,Supreme Court of India, Judgement of 2 May 1997,(1997) 5 SCC 10 and M.C. Mehta v Union of India,Supreme Court of India, Judgement of 21 April 1998,AIR 1999 SC 1501.

Green Courts in India

69

their political interests.167 In view of this armtwisting, it is required that the new courts should begiven a constitutional status and should be constitutedas divisions of the High Courts. The purpose ofcreating modern ‘green’ judiciary will be defeated ifthe ‘green’ courts do not have adequate mechanismslike issuance of writs to ensure compliance with theirdirections. The instance of Godavarman petition isparticularly instructive wherein the apex Court hasbeen using its extensive power under Article 32through a continuing mandamus to ensuremanagement of forests according to the existing forestlegislations and the principle of sustainabledevelopment, to prevent the rapid deforestation andits concomitant environmental impact and topromote afforestation. The Court has been able toensure compliance of its orders through the CentralEmpowered Committee. Further, under Article 144,all government authorities are constitutionally boundto assist the Court and it exercises extensive powersof contempt to discipline them. It is unimaginablethat Environmental Courts, in their proposed form,will ever be able to ensure such compliance from evenregional or local authorities.

In respect of the New South Wales EnvironmentCourt, Honourable Justice Paul L. Stein has pointedout that its greatest strength lies in its position as apart of the superior judiciary by virtue of which itis able to secure obedience to its orders throughcontempt procedures, thus enhancing its ability toprotect the environment.168 In that country as well,there has been a temptation for Governments to seekto overrule court decisions or exclude the Court’sjurisdiction but this has resulted in a public backlash-mainly because the court occupies the position inthe superior judiciary.169 He further notes:

The court’s wide-ranging jurisdictionenables it to administer social justicein the legislative scheme ofenvironmental laws, which travel farbeyond justice inter partes. Its statusas a superior court, with an integratedjurisdiction, means that it can, as faras is possible, completely resolve allmatters in controversy between theparties and avoid multiplicity oflitigation……Indeed, theestablishment of a specialist superiorcourt (with judicial independence)has, I have no doubt, served as abulwark against political attack.

The substance of environmental law cases isindubitably that of Public Law and the judicialpronouncements have implications, not only for theimmediate parties, but for the broader communityand the environment itself and only a superior courtcan perform this function effectively. The courts intheir proposed forms cannot be given writ powersas ultimately, they will again be subject to the writjurisdiction of High Courts as declared by theSupreme Court in L. Chandra Kumar’s case;170 thusresulting in more delays due to the two tier systemand providing a relevant and germane ground to theGovernments to eventually abolish them.171

Secondly, in the model proposed here, there shouldbe no reason for exclusion of criminal jurisdictionrelating to environmental offences as the division ofHigh Court could act as appellate body without any

167 The National Information Commission has come atloggerheads with the Government over the issue ofallowing public access to file notings in GovernmentDepartments and cabinet papers. The Government is arm-twisting the Commission in order to maintain secrecyand has proposed to amend the Right to Information Act,2005, to overcome its decision. See Siddharth Narrain,‘The Information Commission’s Role is to act as a Non-Government Arbiter’, The Hindu, 4 November 2005,Siddharth Narrain, ‘Government flayed on file notings’The Hindu, 9 December 2005 and Vidya Subrahmaniam,‘A Commission under Siege’, The Hindu, 31 March 2007.

168 Justice Paul L. Stein, Paragraph 93, note 88 above.169 Id.

170 The Supreme Court declared the power of judicialreview vested in High Courts under Article 226 to bean integral and essential feature of the basic structure ofthe Indian Constitution. The Court held, in respect ofAdministrative Tribunals, that they should entertain anddecide upon constitutional issues involved in servicematters as the exclusion of such issues from theirjurisdiction will defeat the purpose of their constitutionviz. reduction of the mounting caseload of High Courts.However, tribunals cannot exercise power of issuingwrits to the exclusion of High Courts and will be subjectto the latter’s powers under Article 226.

171 M.P. High Court Bar Association v Union of India & Ors.,Supreme Court of India, Judgement of 17 September2004, (2004) 11 SCC 766 [ The case presented a situationwherein Administrative Tribunals were abolished by theState on the pretext of increased delay and this movewas held to be constitutional by the Apex Court].

Law, Environment and Development Journal

70

controversy. The ‘green’ benches will be better able toappreciate the environmental policy behind the offencesand would raise the standard of regulatory compliancethrough proper sentences. The New South Wales

Court is exercising such an integrated jurisdictionand there is no reason why such an ideal practice172

should not be adopted in India. In the words ofProfessor Richard Macrory, the vesting of criminaljurisdiction in the green court would ‘…alsocommand greater confidence from those chargedwith enforcement responsibilities, as well asproviding greater assurance to the majority ofindustries and individuals who comply withenvironmental requirements, that transgressors arebeing treated in an effective and consistent manner’.

Another significant objection relates to thecomposition of the proposed forum. It is essential toensure more public participation in the process andthe panel of judges should include activists workingin the field of environment protection, understandingand monitoring the environment and the inter-linkages between different aspects of the environmentand who have manned many expert committees. Theproper bench composition should be two membersof judiciary and one environmental activist assistedby three expert Commissioners as proposed.

7CONCLUSION

In the proposed form, the ‘Green’ Courts will benothing more than tribunals under disguise. Therecommendation for institutional changes in theexisting High Courts as proposed here is not a newproposition. The LCI in its 124th Report hadproposed for constitution of separate divisions ofthe High Courts for different branches of law andappointment of more Judges to man the separatedivisions while using the existing infrastructure.173

A very significant example of specialisation withinthe Constitutional Court is that of the FederalConstitutional Court of Germany which is dividedinto two Senates- both handling different issues ofconstitutional law and thus the dual-Senate systemis akin to creating two constitutional courts oflimited and exclusive jurisdiction.174

The proposed model will bring greater advantagesand efficiencies. Firstly, it will enhance the reputationof the Environmental Courts by making themeffective instruments of environmental governance.Secondly, it will solve the problem of boundarydisputes, such as determining the point at which atangential or peripheral environmental issue in apending case becomes sufficiently important tosuggest that the case be litigated in an EnvironmentalCourt. In recent years, some Governments have alsobegun to make significant changes in the institutionalstructures of government in order to enable moresystematic consideration of the environment whendecisions are made on economic, social, fiscal, energy,agricultural, transportation, trade and other policies,as well as the implications of policies in these areas forthe environment.175 In such cases there cannot beany ‘slicing of issues’ as such an approach has already beenfrowned upon by the Supreme Court in L. ChandraKumar’s case. A High Court division is the bestcompetent forum to adjudicate all such mixed disputes.

The environmental justice scenario in India presentsa picture of near anarchy except for the rareinterventions by the Supreme Court itself. The ironyis that more than at any other time, India now needsclarity of thinking, farsighted policies and an efficientregulatory and judicial framework in the area ofenvironment as the Indian economy is growing at arate of 8 to 9 per cent annually and is evolving asone of the fastest growing Emerging MarketEconomies of the world riding on wave of extensiveindustrial growth. The need for effective, powerfuland technically expert ‘superior’ Green Courts istoo obvious to be distinctly emphasised.

174 See Sarang Vijay Damle, ‘Specialise The Judge, Not TheCourt: A Lesson From The German ConstitutionalCourt’, 91 Va. L. Rev. 1267, 1298 (2005).

175 Agenda 21, in Report of the United Nations Conferenceon Environment and Development, Rio de Janeiro, UNDoc. A/CONF.151/26/Rev.1 (Vol. 1), Annex II (1992),Chapter 8, Paragraph 2.

172 See Dennis A. Cowdroy, ‘The Land and EnvironmentCourt of New South Wales - A Model For The UnitedKingdom’, [2002] J.P.L. 59.

173 124th LCR, note 89 above.

Green Courts in India

71

LEAD Journal (Law, Environment and Development Journal) is jointly managed by theSchool of Law, School of Oriental and African Studies (SOAS) - University of London

http://www.soas.ac.uk/lawand the International Environmental Law Research Centre (IELRC)

http://www.ielrc.org