Report No. 186

Chapter X

Recommendations

On the basis of our discussion in previous chapters, we recommend the following, namely:

1. In view of the involvement of complex scientific and specialized issues relating to environment, there is a need to have separate 'Environment Courts' manned only by the persons having judicial or legal experience and assisted by persons having scientific qualification and experience in the field of environment.

2. In order to achieve the objectives of accessible, quick and speedy justice, these 'Environment Courts' should be established and constituted by the Union Government in each State. However, in case of smaller States and Union Territories, one court for more than one State or Union Territory may serve the purpose.

3. (a) In view of the provisions contained in Article 253 read with Entry 13 of List I of VII Schedule to the Constitution of India, Parliament is having exclusive jurisdiction to enact a law for the purpose of establishment of Environment Courts, because various decisions relating to protection and improvement of environment and preservation of natural resources of earth, were taken in International Conferences held at Stockholm in 1972 and at Rio-de-Janeiro in 1992, in which India also participated.

(b) The following words in Article 253, "Notwithstanding anything in the foregoing provisions of this Chapter", enable the Parliament to enact a law even on subjects falling in State List. Article 253 is having overriding effect over Articles 245 to 252.

(c) In view of the non-obstante clause in Article 253, Parliament while enacting a law exercising power under Article 253, may touch or enter into an enactment made under Article 252(1) without following the procedure prescribed in Article 252(2). Therefore, the provisions of the Water (Prevention and Control of Pollution) Act, 1974, which were enacted by the Parliament under Article 252(1), can be altered by a subsequent law made by the Parliament under Article 253 without following the procedure laid under Article 252(2).

4. (a) The proposed Environment Court shall consist of a Chairperson and at least two other members. Chairman and other members should either be a retired Judge of Supreme Court or High Court, or having at least 20 years experience of practicing as an advocate in any High Court. The term of the Chairperson and members shall be 5 years.

(b) Each Environment Court shall be assisted by at least three scientific or technical experts known as Commissioners. However, their role will be advisory only. The qualifications of the Commissioners is given in Chapter IX (supra).

5. (a) The proposed Environment Court shall have original jurisdiction in the civil cases where a substantial question relating to 'environment' 165including enforcement of any legal or constitutional right relating to environment is involved. Details of this aspect are given in Chapter IX.

(b) The jurisdiction of civil courts is not ousted.

(c) The proposed Environment Court shall also have appellate jurisdiction in respect of appeals under:

(i) The Environment (Protection) Act, 1986 and rules made thereunder;

(ii)The Water (Prevention and Control of Pollution) Act, 1974 and rules made thereunder:

(iii) The Air (Prevention and Control of Pollution) Act, 1981 and rules made thereunder;

(iv)The Public Liability Insurance Act, 1991. The Central and State Governments may also notify that appeal under any other environment related enactment or rules made thereunder, may also lie to the proposed Environment Court.

6. (a) The proposed Court shall not be bound to follow the procedure prescribed under the Code of Civil Procedure, 1908, but will be guided by the principles of natural justice. The Court shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.

(b) The proposed Court shall have all powers of civil court including power to punish for contempt, as discussed in Chapter IX.

(c) The minimum quorum for hearing a case, shall be two members including the Chairperson. At least one Commissioner should also remain present during the hearing of a case. The proposed Court can pass all kinds of orders, final or interlocutory. It can also award damages, compensation and can also grant injunctions (permanent, temporary and mandatory). Details are given in Chapter IX.

(d) The proposed Environment Court shall follow the principle of strict liability in case of hazardous substance, polluter pays principle, precautionary principle, preventive principle, doctrine of public trust, Intergenerational equity and sustainable development.

(e) The locus standi before the proposed Environment Court in original jurisdiction shall be as wide as it is today before High Court/Supreme Court in the writ jurisdiction in environmental matters.

(f) The proposed Environment Court shall also have power to frame schemes relating to environmental issues, monitor them and modify the schemes.

7. The proposed enactment for establishment of these Environment Courts should also contain other ancillary and miscellaneous provisions which are necessary, for example provisions regarding other staff, funds, place of sitting etc.

8. (a) In view of the appellate powers of the proposed Environment Court, provisions relating to appeals contained in:

(i) Environment (Protection) Act, 1986 and rules made thereunder;

(ii)The Air (Protection and Control of Pollution) Act, 1981 and rules made thereunder;

(iii) The Public Liability Insurance Act, 1991 are required to be suitably amended.

(b) The proposed enactment should also contain a provision, namely,

"Notwithstanding anything contained in section 28 of the Water (Prevention and Control of Pollution) Act, 1974, any person aggrieved by the order passed by the State Board under section 25, 26 or 27 may prefer appeal to the Environment Court".

9. The National Environment Tribunal Act, 1995 and The National Environmental Appellate Authority Act, 1997 may be repealed and provisions regarding functions and powers of the Tribunal and the Appellate Authority contained in those Acts be suitably transferred in the proposed enactment for establishment of the Environment Court.

10. Appeal against the orders of the proposed Environment Court, shall lie before the Supreme Court on the question of facts and law.

11. The powers of High Courts under Articles 226, 227 of the Constitution of India and of the Supreme Court under Article 32 of the Constitution of India shall not be ousted.

We acknowledge the extensive contributions made by Dr. S. Muralidhar, Part-time Member of Law Commission of India in preparation of this Report.

We recommend accordingly.

Justice M. Jagannadha Rao
Chairman

Dr. N.M. Ghatate
Vice-Chairman

T.K. Vishwanathan
Member-Secretary

Dated: 23.09.2003