The recent notification of the Ministry of Environment Forests and Climate Change transferring the jurisdiction over State of Goa to the principal place of the National Green Tribunal (NGT) at Delhi has caused much indignation and resentment among environmental and social activists alike. It is being described as a severe blow to the environmental movement in Goa.
The questions that come to mind are: Is the move ultra vires to the ground-breaking environmental legislation? Does it violate the right to access to justice that is a facet of the right to life guaranteed under the Constitution?
NGT is a court of fact and law, exercising all powers of a civil court in its original jurisdiction, besides appellate judicial powers against orders passed by the concerned authorities under specified environmental statutes. S. 4 (3) of NGT Act enables Central Government to specify the ordinary places or places of sitting of the Tribunal and territorial jurisdiction falling under each such place of sitting. While New Delhi was declared as the principal place of sitting, benches were established in Bhopal (Central Zone), Kolkata (Eastern Zone), Pune (Western Zone) and Chennai (Southern Zone).
The path to the establishment of NGT can be traced to the Rio Summit on Environment and Development (1992) followed by the Johannesburg Plan of Implementation (2002) that recognised the right of every individual to effective access to judicial and administrative proceedings, including redress and remedy. International conventions to which India is a signatory thus mandated the need for effective and meaningful access to judicial remedy in environmental matters to every individual.
The concept of environmental courts was initially and positively addressed in two major judgments of the Supreme Court of India. In the Shriram Food Fertiliser case, the Supreme Court held that as environmental cases frequently involve assessment of scientific data it was desirable to set up environmental courts on a regional basis with a legally qualified judge and two experts to undertake relevant adjudication. Again, in A P Pollution Control Board vs Prof. M V Nayudu, the Court referred to the need to establish environmental courts and reconstitution of appellate authorities at the State level, citing the example of the “Land and Environment Court of New South Wales” as a model to be followed. It suggested that Law Commission of India should examine this matter in detail.
Acting on this advice, the Law Commission of India reviewed a whole range of environmental law legislations including its objective, consolidation and codification. It recommended a law for constitution of multi-faceted environmental courts in each State having original and appellate jurisdiction over environmental issues, as they exist in Australia, New Zealand and other countries. The Commission counselled against Government’s proposal of a single appellate Court at Delhi that would be beyond the reach of affected parties.
The Parliamentary Standing Committee on Science & Technology, Environment & Forests recommended that Government should set up environmental courts in each and every State and Union Territory to deal exclusively with environmental related matters. In its report on the NGT Bill, it felt that limited spread of the Court at five places only may lead to serious constraints of accessibility in the long run, especially to the poor and the tribal people who live in far flung areas of our country. This problem had to be viewed in the light of the fact that the tribunal would have exclusive jurisdiction over all civil cases where a substantial question relating to environment is involved.
Thus, the poor and the tribal people living in remote areas will be deprived of the opportunity to approach civil courts for redressal of their grievances on substantial question relating to environment.
Recently in Anita Kushwaha vs Pushap Sudan, the Constitution Bench of the Supreme Court held that access to justice is a fundamental right guaranteed to every citizen by Arts. 14 and 21 of the Constitution. The Bench further observed that if “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of purview of right to life. The citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Art 14 both in relation to equality before law as well as equal protection of laws.
There is no doubt that the MoEFCC notification is incongruous to the object of the NGT Act and defeats the very purpose of its enaction. It violates the constitutional right of access to justice. The decision to shift the place of sitting from Pune to New Delhi smacks of arbitrariness and defies all logic. It must be reversed, the sooner the better.
So what is the way forward? In June 2012, Chief Minister Manohar Parrikar had reportedly sought a bench of the NGT in Goa as the State could not “afford” to send its officers to Pune time and again to attend proceedings. The NGT (Practices & Procedures) Rules provide for adoption of ‘circuit’ procedure. Circuit benches have been established at Shimla, Jodhpur, Shillong and Kochi to hear cases of the respective States or regions. Considering the large number of Goa related cases in the NGT, the State Government ought to recommend establishment of a circuit bench at Panjim in interest of accessibility of people of Goa.
(The author is an
independent researcher in
environmental law and Member, Goa Environmental Protection Council)