NATIONAL GREEN TRIBUNAL BILL, 2009
The establishment of Green Tribunal is a historical step towards ‘Sustainable Growth’ by India. The basic aim to establish tribunals is to give speedy disposal of Environment cases (also suggested by Supreme Court). The bill will repeal two acts National Environment Tribunal Act, 1995 & NEAA, 1997 Act. India is the 3rd country after Canada & New Zealand to establish environment courts.
Tribunal & its Members
- The Tribunal consist of Chairperson, judicial members & expert members as they are permanent members can’t hold any other office during their tenure. But Chairperson can invite anyone with specialized knowledge/experience in particular case if necessary.
- The various ordinary places of sitting of Tribunal are Delhi (Principal Place), Bhopal, Mumbai, Kolkata & Chennai as notify by central govt divided as per their terrestrial jurisdiction. If a judicial member is satisfied that circumstances exist which render it necessary to sit at another place within its terrestrial jurisdiction then by approval of Chairperson he may sit at that place.
- Qualifications for
- Chairperson – current/retired Judge of SC & CJ of High Court.
- Judicial Member (strength 10-20) – current/retired Judge of SC & High Court.
- Expert Member (strength 10-20) – M.sc+Ph.d (Life Sciences)/M.tech + 15 year experience in relevant field include 5 years in field of environment & forests in a reputed national level institution. Or 15 year administrative experience includes 5 years in environment matters.
- The term of office will be 5 years and not eligible for re-appointment (provided max age limit to hold office for SC judge 70yrs, HC judge 67 yrs & expert member 65yrs).
- At least 1 Judicial & 1 expert member shall be present for hearing as the case may be. For any special case more than 2 members can be present if chairperson considered it necessary.
- The member of Tribunal can be removed from office by Central Govt in consultation with CJI in case of misuse of power, physically/mentally incapable, insolvent etc.
- The Tribunal has Original Jurisdiction on matters of “substantial question relating to environment” (i.e. a community at large is affected, damage to public health at broader level) & “damage to environment due to specific activity” (such as pollution). However there is no specific method is defined in Law for determining “substantial” damage to environment, property or public health. There is restricted access to an individual only if damage to environment is substantial.
- The powers of tribunal related to an award are equivalent to Civil court and tribunal may transmit any order/award to civil court have local jurisdiction. The Bill specifies that an application for dispute related to environment can be filled within six months only when first time dispute arose (provide tribunal can accept application after 60 days if it is satisfied that appellant was prevented by sufficient cause from filling the application).
- Also Tribunal is competent to hear cases for several acts such as Forest (Conservation) Act, Biological Diversity Act, Environment (Protection) Act, Water & Air (Prevention & control of Pollution) Acts etc and also have appellate jurisdiction related to above acts after establishment of Tribunal within a period of 30 days of award or order received by aggrieved party.
- The Bill says that decision taken by majority of members shall be binding and every order of Tribunal shall be final. However an appeal against order, award of Tribunal shall lie to Supreme Court provided appellant shall make an appeal within 90 days of commencement of award but Supreme Court can entertain appeal even after 90 days if appellant satisfied SC by giving sufficient reasons.
Fee & Penalty
- An application or appeal on which compensation has been claimed shall be accompanied by a fee of 1% of claim subject to a minimum of Rs 1000 and fee for applications/appeals other than compensation one’s shall be Rs 1000 (provided there shall be no fee charges for person below poverty line).
- The person who fails to comply with any order or award of tribunal shall be punishable with maximum imprisonment of 3 years or fine of Rs 10 crore and in case of failure continues with additional fine of maximum Rs 25000/day (same can be extended to 25 crore rupees in case of a company and further delays cost to additional fine of Rs 1lakh/day).
- Also an offence committed by a company, every person who at time of offence committed was responsible for conduct of business of company shall be liable to proceed against & punished accordingly (provided offence committed with his knowledge). If an offence committed by Govt department then Head of dept will be responsible for offence and proceed & punished accordingly except offence committed without his knowledge & he exercised enough due diligence to prevent the offence.
- No court shall take cognizance of any offence under this act except authorized by Central government. Also no court below rank of a Metropolitan Magistrate or a Judicial Magistrate of 1st class shall try any offence punishable under this act.
- No Member of Tribunal, any employee of central/state govt/statutory authority shall be liable for any legal proceedings for any action taken which is in good faith or intended to be done in pursuance of this act/rule.
- The Central Govt have power to amend Schedule I ( jurisdiction under various acts) and can make some rules by notification such as minimum numbers of member who shall hear appeal, procedure for hear applications etc.
- Restricted access of Individual only in substantial questions related to environment is a big question for sustainable growth because in tribal areas people can’t understand what is substantial or not.
- Also there are no criteria to define ‘substantial question’ or ‘community at large’ under this act. So this can create ambiguous situations by different interpretations of different benches and ultimately concept of speedy disposal can become null & void by increasing pressure on higher courts against these kinds of ambiguous situations.