Report No. 186

Criminal and judicial review jurisdiction kept out

We have deliberately kept criminal appellate jurisdiction and judicial review jurisdiction exercised today by the High Courts, beyond the purview of the proposed Courts. In respect of offences under the Penal Code or the Special Act like the Water (P&CP) Act, 1974 or the Air (P&CP) Act, 1981 and the Environment (Protection) Act, 1986 or any other offence connected with environment, parties or the State have therefore to go before the normal Criminal Courts and to the criminal appellate Courts having jurisdiction according to the procedural law applicable.

We have examined the matter in detail and felt that, in the abstract sense of power, Article 253 read with Entry 13 of List I (Schedule VII) would enable criminal 155appeals/revisions from the trial Courts, in so far as they are presently filed in High Courts.- whether in case of conviction or acquitta.- could be shifted to the Environment Court. In this context, Entry 13, 95 of List I and Entries 1, 2, 11A and 46 of List III would be relevant.

But, we have not come across any special law (except the TADA or the POTA) where the appellate jurisdiction of the High Court in criminal matters has been taken away from the High Court and vested in another Court at the State level, manned by retired judges. In order to avoid unnecessary litigation as to the competency of Parliament to make law transferring the criminal appellate jurisdiction to another Court at State level, we have decided not to touch the criminal appellate procedure as it now stands.

Likewise, we have not thought if fit to enable the Environmental Courts, to have judicial review powers exercised by the High Court under Article 226 of the Constitution of India. We have felt that it is sufficient to vest original civil jurisdiction as exercisable by a Civil Court, in the Environmental Courts. If we vest powers of Judicial review as under Article 226, then there may be need to subject the orders to the writ jurisdiction of High Courts as held in L. Chandra Kumar vs. Union of India, 1997 (3) SCC 261 .

No doubt, the Environment Court exercising powers of a Civil Court or as an appellate Court in civil jurisdiction, may be technically amenable to writ jurisdiction of the High Court but inasmuch as we are providing an appeal to the Supreme Court, the High Courts may decline to interfere on 156the ground that there is an effective alternative remedy of appeal on law and fact to the Supreme Court, as explained later in this Chapter.