Report No. 186
Proposals for Environmental Courts in India
As pointed out in Chapter I, Environmental Courts manned by a Judge and two experts at the regional level was advocated by the Supreme Court in M.C. Mehta vs. Union of India, 1986 (2) SCC 176 (at 202). This was reiterated by the Supreme Court in Indian Council for Enviro-Legal Action vs. Union of India, 1996 (3) SCC 212. Finally, the need for such Environment Courts was referred to in A.P. Pollution Control Board vs. M.V. Naidu, 1999 (2) SCC 718 and in the follow up case in A.P. Pollution Control Board II vs. M.V. Naidu, 2001 (2) SCC 62 , the Court required the Law Commission to go into this question.
We have referred, in Chapter V, to the existing Court-system in India in regard to environmental issues and also to the scheme of appointment of bureaucrats as appellate authorities by the State Governments under section 28 of the Water (P&CP) Act, 1974 or section 31 of the Air (P&CP) Act, 1981 or by the Central government under section 25 of the Environment (Protection) Act, 1986. These appeals under the special Acts at present are being disposed of by senior public servants nominated by the Governments. Presently, appeals are neither to a judicial body (except under the Water (P&CP) Act, 1974 in Andhra Pradesh) nor to an expert in the field of environment.
For the first time, when the National Environment Tribunal Act, 1995 was passed, Parliament thought that the Tribunal should be manned by a member of the superior Judiciary. Similarly, in 1997 when the National Environment Appellate Authority, 1997 was constituted, the authority was to consist of a retired Supreme Court Judge and Members having scientific experience etc. But, these Tribunals are now non-functional.
In our view, it is necessary that all the appellate powers now conferred under the (a) Water (P&CP) Act, 1974, (b) the Air (P&CP) Act, 1981 and (c) the appellate authority constituted under various Rules made under the Environment (Protection) Act, 1986 must go before the proposed Environment Court, which shall consist (in each State or a group of States) of three Judicial Members, who are (a) either sitting or retired Judges of a High Court or (b) experienced Members of the Bar (with not less than 20 years standing).
These three Judicial Members have to be assisted by three environmental experts (to be called Commissioners) in each Environmental Court. It will be permissible to have one Environmental Court for more than one State. Union Territories may avail the Environment Court of the neighbouring State. Delhi can perhaps have a separate Environment Court.