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Report No. 186

Qualification of Judicial Members

So far as the persons who man the proposed Environment Court are concerned, as stated earlier, there will be three Judicial Members assisted by three expert Commissioners. In the light of the fact that the proposed Court will have all powers of a Civil Court, original and appellate, we are of the view that the Courts should be manned only by Judicial Members drawn 152from the Judiciary or the Bar.

We are not dealing here with the constitution of Tribunals like the Administrative Tribunals or Tax Tribunals which were established to decide dispute in service matters or tax matters. We are here dealing with a Court which is exercising powers of a regular Civil Court in its original jurisdiction and in its appellate jurisdiction while dealing with environmental matters. It will not be permissible or appropriate to appoint members lacking judicial or legal expertise.

Provision relating to qualification must be on the following lines:

"(1) The qualification for appointment of Chairman and Members shall be that they must be persons;

(a) who are or who have been Judges of a High Court ;

(b) advocates of a High Court or two or more of such High Courts in succession with a standing of not less than twenty years.

Explanation: Preference shall be given to those who have had experience in environmental matters whether as Judges or lawyers."

We have proposed a three Judge Court, inasmuch as very complicated and important questions (affecting the entire State in which the proposed Court is located), would come before the Court and we have felt that it is not sufficient to empower a Single Member Court to deal with such important and grave issues. As of now such matters are dealt with by a Bench of two or more Judges in the High Courts and Supreme Court. There must therefore be at least two Judicial Members but, in order to deal with 153situations where there is a difference of opinion, it will be necessary to have an odd number of Judicial Members, namely, three. The quorum must be two Judicial Members.

The Court must also be assisted by a statutory panel of Technical/Scientific personnel called Commissioners as is done in Australia and New Zealand. Having regard to the variety of issues that come before Environment Courts, it will be necessary to have a panel of at least three such Commissioners. Their role will be advisory and they have to be present in the Court during the course of the hearings.

They are not Members of the Court but are a statutory panel intended to independently advise and assist the Court in analyzing and assessing scientific or technological issues. At least one Commissioner must always be present in the Court. In case the Court feels that any other expert in a different branch than those in the panel is to be examined, the Court may on its own or in consultation with the panel of Commissioners, refer the matter for opinion to other expert/experts in the particular field under consideration.

Proposal to Constitute Environment Courts Back

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