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Legal Terms
Concepts and Processes
Environment courts/tribunals - problems of complex technology
The uncertain nature of scientific opinions
The precautionary principle and the new burden of proof - The Vellore Case
The precautionary principle replaces the assimilative capacity principle
The special burden of proof in environment cases
Brief survey of judicial and technical inputs in environmental appellate authorities/tribunals
The duty of the present generation towards posterity : principle of Inter-generational Equity--rights of the future against the present
Whether the Supreme Court while dealing with environmental matters under Article 32 or Article 136 or High Courts under Article 226 can make reference to the National Environmental Appellate Authority under the 1997 Act for investigation and opinion
A written declaration made under oath before a notary public or other authorized officer.
This entails asking the court for relief or asking the court to consider issues not raised, and it is at the discretion of the justices to allow it.
This is a petition filed to bring the court's attention to a violation of a court order.
One who is charged with contempt in the court.
This application is filed during a case so that a new respondent may become a party to the case or to seek immediate relief on a particular issue. Industries file interlocutory applications to oppose court orders or stall proceedings. Industries often file IAs in large numbers and bog down the court process.
Locus standi is the process whereby individuals or groups take out actions as representatives of citizen groups. The right to a standing under India’s constitutional provisions are subject to a very liberal reading.
Mandamus is a judicial remedy in the form of an order from a superior court to any government, court, corporation or public authority. The order requires the mentioned party to do some specific act which that body is obliged under law to do or refrain from doing what is not allowed.
Precautionary principle is still evolving though it is accepted as part of the international customary law - It applies according to the situation and circumstances of each case.
Widespread toxic pollution is a major threat to essential ecological processes. It is appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to environment . They are to discharge this burden by showing the absence of a reasonable ecological or medical concern. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainity, then the presumption should operate in favour of environmental protection. (source: http://www.supremecourtonline.com)
This is an allowance awarded under article 136 which states:
Special leave to appeal by the Supreme Court. The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
When an affidavit and counter affidavit have been filed, the first respondent has a right to file a reply to the counter affidavit.
This is the first petition that the court receives in a case. In India, writ petitions can take the form of regular legal writs, letters written to the court or newspaper reports.
The Courts do not possess the expertise in all technical and scientific matters of extreme complexity. The Tribunals or the appellate authorities dealing with such matters must be manned by technical personnel well versed in environmental laws in addition to judicial members. Such defects in the constitution of these bodies can certainly undermine the very purpose of the legislations.
While dealing with environmental matters the Supreme Court and the High Courts can make a reference to the expert bodies/tribunals having expertise in scientific and technical aspects for investigation and opinion. Any opinion rendered by such bodies would be subject to the approval of the Court. In a petition filed by the Pollution Control Board against M/s Surana Oils and Derivatives (India) Ltd., the Supreme Court referred the following questions to the Appellate Authority under the National Environmental Appellate Authority Act, 1997 :-
(a) Is the respondent industry a hazardous one and what is its pollution potentiality, taking into account, the nature of the product, the effluents and its location ?
(b) Whether the operation of the industry is likely to affect the sensitive catchment area resulting in pollution of the Himayat Sagar and Osman Sagar lakes supplying drinking water to the twin cities of Hyderabad and Secunderabad ?
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Cases referred :- 1. Vellore Citizens' Welfare Forum v. Union of India and others, 1995(5) SCC 647. 2. Ashburton Acclimatisation Society v. Federated Farmers of New Zealand, 1988(1) NZLR 78. 3. M.C. Mehta v. Union of India and Shriram Foods and Fertilizers, 1986(2) SCC 175. 5. Paramjit Kaur v. State of Punjab, 1998(5) SCALE 219 : 1998(6) J.T. 338. |
Environment courts/tribunals - problems of complex technology
The difficulty faced by environmental courts in dealing with highly technological or scientific data appears to be a global phenomenon. Lord Woolf, in his Garner lecture to UKELA, on the theme "Are the Judiciary Environmentally Myopic ?" (See 1992 J. Envtl, Law Vol. 4, No. 1, P1) commented upon the problem of increasing specialisation in environmental law and on the difficulty of the Courts, in their present form, moving beyond their traditional role of detached "Wednesbury" review. He pointed out the need for a Court or Tribunal:
"having a general responsibility for overseeing and enforcing the safeguards provided for the protection of the environment ...... The Tribunal could be granted a wider discretion to determine its procedure so that it was able to being to bear its specialist experience of environmental issues in the most effective way"
Lord Woolf pointed out the need for:
"a multi-faceted, multi-skilled body which would combine the services provide by existing Courts, Tribunals and Inspectors in the environmental field. it would be a `one stop shop', which should lead to faster, cheaper and the more effective resolution of disputes in the environmental area. It would avoid increasing the load on already overburdened lay institutions by trying to compel them to resolve issues with which they are not designed to deal. It could be a forum in which the Judges could play a different role. A role which enabled them not to examine environmental problems with limited vision. It would however be based on our existing experience, combining the skills of the existing inspectorate, the Land Tribunal and other administrative bodies. It could be an exciting project."
According to Lord Woolf, "while environmental law is now clearly a permanent feature of the legal scene, it still lacks clear boundaries." It might be "preferable that the boundaries are left to be established by Judicial decision as the law developed. After all, the great strength of the English Law has been its pragmatic approach". Further, where urgent decisions are required, there are often no easy options for preserving the status quo pending the resolution of the dispute. If the project is allowed to go ahead, there may be irreperable damage to the environment; if it is stopped, there may be irreperable damage to an important economic interest. (See Environment Enforcement : The need for a specialised court - by Robert Cranworth QC (Jour of Planning and Environment, 1992 p. 798 at 806). Robert Cranworth advocates the constitution of a unified tribunal with a simple procedure which looks to the need of customers, which takes the form of a Court or an expert panel, the allocation of a procedure adopted to the needs of each case - which would operate at two levels - first tier by a single Judge or technical person and a review by a panel of experts presided over by a High Court Judge - and not limited to `Wednesbury' grounds.
In the USA the position is not different. It is accepted that when the adversary process yields conflicting testimony on complicated and unfamiliar issues and the participants cannot fully understand the nature of the dispute, Courts may not be competent to make reasoned and principled decision. Concern over this problem led the Carnegie Commission of Science and Technology (1993) and the Government to undertake a study of the problems of science and technology in judicial decision-making. In the introduction to its final report, the Commission concluded :
"The Courts' ability to handle complex science-rich cases has recently been called into question, with widespread allegations that the judicial system is increasingly unable to manage and adjudicate science and technology (S&T) issues. Critics have objected that judges cannot make appropriate decisions because they lack technical training, that the jurors do not comprehend the complexity of the evidence they are supposed to analyze, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations. If these claims go unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public becomes convinced that the courts as now constituted are incapable of correctly resolving some of the more pressing legal issues of our day."
The uncertain nature of scientific opinions
In the environment field, the uncertainity of scientific opinions has created serious problems for the Courts. In regard to the different goals of science and the law in the ascertainment of truth, the U.S. Supreme Court observed in Daubert v. Merrel Dow Pharmaceuticals Inc., (1993) 113 S.Ct 2786, as follows :
"..... there are important differences between the quest for truth in the Court-room and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."
It has also been stated by Brian Wynee in `Uncertainity and Environment Learning, (2. Global Envtl. Change 111) (1992) :
"Uncertainity, resulting from inadequate data, ignorance and indeterminacy, is an inherent part of science."
Uncertainty becomes a problem when scientific knowledge is institutionalised in policy making or used as a basis for decision-making by agencies and courts. Scientists may refine, modify or discard variables or models when more information is available; however, agencies and Courts must make choices based on existing scientific knowledge. In addition, agency decision making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainty or insufficient knowledge may not be properly considered. (The Status of the Precautionary Principle in Australia : by Charmian Barton (Vol. 22) (1998) (Harv. Envtt. Law Review p. 509 at pp 510-511).
The inadequacies of science result from identification of adverse effects of a hazard and then working backwards to find the causes. Secondly, clinical tests are performed, particularly where toxins are involved, on animals and not on humans. That is to say, they are based on animal studies or short-term cell testing. Thirdly conclusions based on epidemiological studies are flawed by the scientist's inability to control or even accurately assess past exposure of the subjects. Moreover, these studies do not permit the scientist to isolate the effects of the substance of concern. The latency period of many carcinogens and other toxins exacerbates problems of later interpretation. The timing between exposure and observable effect creates intolerable delays before regulation occurs. (See Scientific Uncertainty in Protective Environmental Decision making - by Alyson C. Flournay (Vol. 15) 1991 Harv. Envtt. Law Review P. 327 at 333-335).
It is the above uncertainty of science in the environmental context, that has led International Conferences to formulate new legal theories and rules of evidence.
The precautionary principle and the new burden of proof - The Vellore Case :
The `uncertainity' of scientific proof and its changing frontiers from time to time has led to great changes in environment concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India and others, 1995(5) SCC 647, a three Judges Bench of this Court referred to these changes, to the `precautionary principle' and the new concept of `burden of proof' in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of `Sustainable Development', stated that the Precautionary Principle, the Polluter Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore case in this behalf read as follows :
"In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country."
The Court observed that even otherwise the above-said principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law. In fact on the facts of the case before this Court, it was directed that the authority to be appointed under section 3(3) of the Environment (Protection) Act, 1986 shall implement the `Precautionary Principle' and the `Polluter Pays Principle'.
The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industrialist who is proposing to alter the status quo, has also become part of our environmental law.
The Vellore judgement has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.
The precautionary principle replaces the assimilative capacity principle
A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the Concept was based on the `assimilative capacity' rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the `Precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows :
"Principle 15 : In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific certainity shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation."
In regard to the cause for the emergence of this principle, Charmian Barton, in the article earlier referred to in Vol. 22, Harv. Entt. L.Rev. (1998:547) says :
"There is nothing to prevent decision makers from assessing the record and concluding there is inadequate information on which to reach a determination. If it is not possible to make a decision with "some" confidence, then it makes sense to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research. This ensures that greater caution is taken in environmental management; implementation of the principle through Judicial and legislative means is necessary."
In other words, the inadequacies of science are the real bases that have led to the Precautionary Principle of 1982. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainity. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case." (See First Report of Dr. Sreenivasa Rao Pemmaraju, Joint Secretary and Legal Adviser, Ministry of External Affairs, New Delhi. Special - Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72).
The special burden of proof in environment cases
We shall elaborate the new concept of burden of proof referred to in the Vellore case at p. 658 (1996(5) SCC 647). In that case, Kuldip Singh, J. stated as follows :
"The `onus of proof' is on the actor or the developer/industralist to show that his action is environmentally benign."
It is to be noticed that while the inadequacies of science have led to the `precautionary principle', the said `precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo (Wynne, Uncertainity and Environmental Learning, 2 Global Envtl. Change 121 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law p. 891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519, 550).
The precautionary principle suggested that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61).
It is also explained that if the environmental risks being run by regulatory inaction are in some way "uncertain but non-negligible", then regulatory action is justified. This will lead to the question as to what is the `non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a `reasonable ecological or medical concern'. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainity, then the presumption should operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Farmers of New Zealand, 1988(1) NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a `reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol. 22) (1998) Harv. Env. L.Rev. 509 at 549).
Brief survey of judicial and technical inputs in environmental appellate authorities/tribunals
We propose to briefly examine the deficiencies in the judicial and technical inputs in the appellate system under some of our existing environmental laws.
Different statutes in our country relating to environment provide appeals to appellate authorities. But most of them still fall short of a combination of judicial and scientific needs. For example, the qualifications of the persons to be appointed as appellate authorities under section 28 of the Water (Prevention and Control of Pollution) Act, 1974, section 31 of the Air (Prevention and Control of Pollution) Act, 1981, under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, 1989 are not clearly spelled out. While the appellate authority under section 28 in Andhra Pradesh as per the notification of the Andhra Pradesh Government is a retired High Court Judge and there is nobody on his panel to help him in technical matters, the same authority as per the notification in Delhi is the Financial Commissioner (see notification dated 18.2.19920 resulting in there being in NCT neither a regular judicial member nor a technical one. Again, under the National Environmental Tribunal Act, 1995, which has power to award compensation for death or injury to any person (other than workmen), the said Tribunal under section 10 no doubt consists of a Chairman who could be a Judge or retired Judge of the Supreme or High Court and a Technical Member. But section 10(1)(b) read with section 10(2)(b) or (c) permits a Secretary to Government or Additional Secretary who has been a Vice-Chairman for 2 years to be appointed as Chairman. We are citing the above as instances of the grave inadequancies.
Principle of good governance : Need for modification of our statutes, rules and notifications by including adequate judicial and scientific inputs
Good Governance is an accepted principle of international and domestic law. it comprises the rule of law, effective state institutions, transparency and accountability in public affairs, respect for human rights and the meaningful participation of citizens - (including scientists) - in the political processes of their countries and in decisions affecting their lives. (Report of the Secretary General on the work of the Organization, Official records of the UN General Assembly, 52 session, Suppl. I (A/52/1) (para 22). It includes the need for the State to take the necessary `legislative, administrative and other actions' to implement the duty of prevention of environmental harm, as noted in Article 7 of the draft approved by the Working Group of the International Law Commission in 1996. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur of the International Law Commission dated 3.4.1998 on `Prevention of transboundary damage from hazardous activities') (paras 103, 104). Of paramount importance, in the establishment of environmental Courts, Authorities and Tribunals is the need for providing adequate Judicial and scientific inputs instead of leaving complicated disputes regarding environmental pollution to officers drawn only from the Executive.
It appears to us from what has been stated earlier that things are not quite satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all times, the appellate authorities or tribunals consist of judicial as well as technical personnel well versed in environmental laws. Such defects in the constitution of these bodies can certainly undermine the very purpose of those legislations. We have already referred to the extreme complexity of the scientific or technology issues that arise in environmental matters. Nor, as pointed out by Lord Woolf and Robert Cranworth, should the appellate bodies be restricted to Wednesbury limitations.
The Land and Environment Court of New South Wales in Australia, established in 1980, could be the ideal. It is a superior Court of record and is composed of four Judges and nine technical and conciliation assessors. Its jurisdiction combines appeal, judicial review and enforcement functions. Such a composition in our opinion is necessary and ideal in environmental matters.
In fact, such an environmental Court was envisaged by this Court in at least in two judgments. As long back as 1986, Chief Justice Bhagwati in M.C. Mehta v. Union of India and Shriram Foods and Fertilizers Case, 1986(2) SCC 175 (at page 202) observed :
"We would also suggest to the Government of India that since cases involving issues of environmental pollution, ecological destructions and conflicts over national resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up Environmental Courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right of appeal to this Court from the decision of the Environment Court."
In other words, this Court not only contemplated a combination of a judge and technical experts but also an appeal to the Supreme Court from the Environmental Court.
Similarly, in the Vellore case, 1996(5) SCC 647, while criticising the inaction on the part of Government of India in the appointment of an authority under section 3(3) of the Environment (Protection) Act, 1996. Kuldip Singh, J. observed that the Central Government should constitute an authority under section 3(3) :
"headed by a retired judge of the High Court and it may have other members - preferably with expertise in the field of pollution control and environmental protection - to be appointed by the Central Government."
We have tried to find out the result of the said directions. We have noticed that pursuant to the observations of this Court in Vellore case, certain notifications have been issued by including a High Court Judge in the said authority. In the notification So.671(E) dated 30.9.1996 issued by the Government of India for the State of Tamil Nadu under Section 3(3) of the 1986 Act, appointing a `Loss of Ecology (Prevention and Payment of Compensation) authority, it is stated that it shall be manned by a retired High Court Judge and other technical members who would frame a scheme or schemes in consultation with NEERI etc. It could deal with all industries including tanning industries. A similar notification So. 704E dated 9.10. 1996 was issued for the `Environmental Impact Assessment Authority' for the NCT including a High Court Judge. Notification dated 6.2.1997 (No. 88E) under section 3(3) of the 1986 Act dealing with shrimp industry, of course, includes a retired High Court Judge and technical persons.
As stated earlier, the Government of India should, in our opinion, bring about appropriate amendments in the environmental statutes, Rules and notification to ensure that in all environmental Courts, Tribunals and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme Court Judge, - sitting or retired - and Scientist or group of Scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to environment and pollution.
There is also an immediate need that in all the States and Union Territories, the appellate authorities under section 28 of the Water (Prevention of Pollution) Act, 1974 and section 31 of the Air (Prevention of Pollution) Act, 1981 or other rules there is always a Judge of the High Court, sitting or retired and a Scientist or group of Scientists of high ranking and experience, to help in the adjudication of disputes relating to environment and pollution. An amendment to existing notifications under these Act can be made for the present.
There is also need for amending the notifications issued under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, 1989. What we have said applies to all other such Rules or notifications issued either by the Central Government or the State Governments.
We request the Central and State Governments to take notice of these recommendations and take appropriate action urgently.
We finally come to the appellate authority under the National Environment Appellate Authority Act, 1997. In our view it comes very near to the ideals set by this Court. Under that statute, the appellate authority is to consist of a sitting or retired Supreme Court Judge or a sitting or retired Chief Justice of a High Court and a Vice-Chairman who has been an administrator of high rank with expertise in technical aspects of problems relating to environment; and Technical Members, not exceeding three, who have professional knowledge or practical experience in the areas pertaining to conservation, environmental management, land or planning and development. Appeals to this appellate authority are to be preferred by persons aggrieved by an order granting environmental clearance in the areas in which any industries, operations or processes etc. are to be carried or carried subject to safeguards.
As stated above and we reiterate that there is need to see that in the appellate authority under the Water (Prevention of Pollution) Act, 1974, the Air (Prevention of Pollution) Act, and the appellate authority under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, 1989, under the notification issued under Section 3(3) of the Environment (Protection) Act, 1986 for National Capital Territory and under section 10 of the National Environment Tribunal Act, 1995 and other appellate bodies, there are invariably Judicial and Technical Members included. This Court has also observed in M.C. Mehta v. Union of India and Shriram Foods and Fertilizers Case, 1986(2) SCC 176 (at 262) that there should be a right of regular appeal to the Supreme Court, i.e. an appeal incorporated in the relevant statutes. This is a matter for the Governments concerned to consider urgently, by appropriate legislation whether plenary or subordinate or by amending the notifications.
The duty of the present generation towards posterity :principle of inter-generational equity--rights of the future against the present
The principle of Inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.
Principle 1 states :
"Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations ......"
Principle 2 :
"The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguards for the benefit of present and future generations through careful planning or management, as appropriate."
Several international conventions and treaties have recognised the above principles and in fact several imaginative proposals have been submitted including the locus standi of individuals or groups to take out actions as representatives of future generations, or appointing Ombudsman to take of the rights of the future against the present (proposals of Sands and Brown Weiss referred to by Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, paras 97, 98 of his report).
Whether the Supreme Court while dealing with environmental matters under Article 32 or Article 136 or High Courts under Article 226 can make reference to the National Environmental Appellate Authority under the 1997 Act for investigation and opinion
In a large under of matters coming up before this Court either under Article 32 or under Article 136 and also before the High Courts under Article 226, complex issues relating to environment and pollution, science and technology have been arising and in some cases, this Court has been finding sufficient difficulty in providing adequate solutions to meet the requirements of public interest, environmental protection, elimination of pollution and sustainable development. In some cases this Court has been referring matters to professional or technical bodies. The monitoring of a case as it progresses before the professional body and the consideration of objections raised by affected parties to the opinion given by these professional technical bodies have again been creating complex problems. Further these matters some time require day to day hearing which, having regard to other workload of this Court, (a factor mentioned by Lord Woolf) it is not always possible to give an urgent decision. In such a situation, this Court has been feeling the need for an alternative procedure which can be expeditious and scientifically adequate. The question is whether, in such a situation involving grave public interest, this Court could seek the help of other statutory bodies which have an adequate combination of both Judicial and technical expertise in environmental matters, perhaps like the Appellate Authority under the National Environmental Appellate Authority Act, 1997 ?
A similar question arose in Paramjit Kaur v. State of Punjab, 1998(5) SCALE 219 : 1998(6) J.T. 338, decided by this Court on 10.9.1998. In that case, initially, W. Petitions (Crl.) No. 447 and 497 of 1995 were filed under Article 32 of the Constitution of India alleging flagrant violations of human rights in the State of Punjab as disclosed by a CBI report submitted to this Court. This Court felt the need to have these allegations investigated by an independent body. This Court then passed an order on 12.12.96 requesting the National Human Rights Commission to examine the matter. The said Commission is headed by a retired Chief Justice of India and other expert members. After the matter went before the said Commission, various objections were raised as to its jurisdiction. It was also contended that if these issues were to be otherwise inquired into by the Commission upon a complaint, they would have stood time barred. These objections were rejected by the Commission by an elaborate order on 4.8.1997 holding that once the Supreme Court referred the matters to the Commission, it was acting sui Juris, that its services could be utilised by the Supreme Court treating the Commission as an instrumentality or agency of the Supreme Court, that the period of limitation under the Protection of Human Rights Act, 1993 would not apply, that in spite of the reference to the Commission, the Supreme Court would continue to have seisin of the cases and any determination by the Commission, wherever necessary or appropriate, would be subject to the approval of the Supreme Court.
Not satisfied with the above order of the Commission, the Union of India filed clarification application Crl.M.P. No. 6674 of 1997 etc. This Court then passed the order aforementioned in Paramjit Kaur v. State of Punjab, 1998(5) SCALE 219 : 1998(6) J.T. 332 (SC) on 12.12.1998 accepting the reasons given by the Commission in rejecting the objections. In that context, this Court held that (i) the Commission was an expert body consisting of experts in the field (ii) if this Court could also request the expert body to investigate or look into the allegations, unfettered by any limitations in the Protection of Human Rights Act, 1993, (iii) that by so referring the matters to the Commission, this Court was not conferring any new jurisdiction on the Commission, and (iv) that the Commission would be acting only in aid of this Court. In our view, the above procedure in Paramjit Kaur v. State of Punjab is equally applicable in the case before us for the following reasons.
Environmental concerns arising in this Court under Article 32 or under Article 136 or under Article 226 in the High Courts are, in our view, of equal importance as Human Rights concerns. In fact both are to be traced to Article 21 which deals with fundamental right to life and liberty. While environmental aspects concern `life', human rights aspects concern `liberty'. In our view, in the context of emerging jurisprudence relating to environmental matters, -as it is the case in matters relating to human rights, it is the duty of this Court to render Justice by taking all aspects into consideration. With a view to ensure that there is neither danger to environment nor to ecology and at the same time ensuring sustainable development, this Court in our view can refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997. The said authority comprises a retired Judge of the Supreme Court and members having technical expertise in environmental matters whose investigation, analysis of facts and opinion on objections raised by parties could give adequate help to this Court or the High Courts and also the needed reassurance. Any opinions rendered by the said authority would of course be subject to the approval of this Court. On the analogy of Paramjit Kaur's case, such a procedure, in our opinion, is perfectly within the bounds of the law. Such a procedure, in our view, can be adopted in matters arising in this Court under Article 32 or under Article 136 or arising before the High Courts under Article 226 of the Constitution of India.
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Sources:
Chawla Publications (P) Ltd, Chandigarh, India.
Revised: March 15, 1999Field research by Kelly D. Alley