Report No. 186

Chapter VI

Two other statutory Environmental Tribunals and Defects therein

National Environment Tribunal Act, 1995:

This enactment was made by Parliament, as stated in the preamble, to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto. Liability under section 3 is to be on basis of 'no fault' and under section 4 compensation is payable.

Under section 9(1), the Tribunal shall consist of a Chairperson and such members as ViceChairpersons/Judicial Members and Technical members as the Central Government deems fit. It can sit in Benches but each Bench must consist of a Judicial and Technical member. Chairman shall be person who is or has been a Judge of the Supreme Court or High Court, or has at least been ViceChairman for 2 years.

A Vice-Chairman should be a person (a) who is or has been a Judge of a High Court or was a Secretary to Government of India for at least 2 years or has held any other post in Central or State Government, carrying a scale of pay which is not less than that of a Secretary to Govt. of India or (c) held post of Addl. Secretary in Govt. of India for 5 years and has acquired knowledge of or experience in legal, administrative, scientific or technical aspects of the problems relating to environment, or has at least 3 years experience as a Judicial member or a 100Technical member; or (3) a Judicial Member must be one who is or has been qualified to be a Judge of a High Court or has been a member of the Indian Legal Service and has held a post in grade I of that service for at least 3 years.

A Technical Member is a person who has adequate knowledge of or experience in or capacity to deal with administrative, scientific or technical aspects of the problems relating to environment. No appointment of the Chairperson or Vice-Chairperson can be made without consultation of the Chief Justice of India. No appointment of a Judicial or Technical Member can be made except on the recommendation of a Selection Committee appointed by the Central Government consisting of

(a) Chairperson of the Tribunal.

(b) Secretary, Govt. of India, Ministry of Environment and Forests.

(c) Secretary, Ministry of Law, Justice and Company Affairs.

(d) Director-General, Council of Scientific and Industrial Research.

(e) An Environmentalist to be nominated by the Central Government.

Term of office of Chairperson, Vice-Chairperson and other Members is 5 years. Appeals lie to Supreme Court on question of law.

It may be stated that so far as the National Environmental Tribunal is concerned, since the Act itself has not been notified, the Tribunal has not been constituted in that last eight years. The fact remains that neither the Chairperson, nor Vice-Chairman nor Judicial or Technical Members have been appointed to this Tribunal in the last eight years. Such an important environmental Tribunal envisaged by Parliament has unfortunately not come into being. In fact, if there is tragedy like the Bhopal one, there is now no Tribunal which would grant damages expeditiously.

There are other aspects concerning the powers of the above Tribunal. It can only award compensation. It should have been given all powers which a Civil Court enjoy.- so that it can grant declarations, permanent and mandatory injunctions, possession etc. No doubt, there is provision for the Tribunal sitting in Benches but the scheme does not envisage Court in each State. Further, the Members other than Judicial Members, are not always or necessarily experts in environmental matters. For example, under section 10(2) (b), if a Secretary to Government is appointed as Vice-Chairman, he need not possess any experience in environmental matters.

It is not clear why only in the case of an Addl. Secretary who could be appointed as ViceChairman under section 10(2)(c), experience in environmental matters is a condition precedent. Similarly under section 10(3)(b), it is not stated that a member of the Indian Legal Service who can be appointed as a Judicial member need be person who has done some work in the field of environment. Again, so far as Technical members under section 10(4) are concerned, they can be persons only with administrative or scientific knowledge without any experience in problems relating to environment.

If one looks at the consistent pattern in other countries, as pointed out in Chapter IV, the Environmental Court should consist of Judicial Members and Environmental experts. The reason is that if they are expected to exercise normal judicial function of a Civil Court (as now proposed), or as a Court of original and appellate jurisdiction, there is no scope for appointing administrative officials or public servants other than judicial officers/members of the Bar with considerable experience.

The Commission is of the view therefore that the Environmental Court must be 102manned by persons with judicial experience in the High Court and Members of the Bar with at least 20 years standing and have to be assisted by Environmental experts.