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Environmental Justice must be seen to be delivered

At a time when climate change has become imminent and environmental issues have come to the forefront, environmental rule of law assumes a crucial place. Environmental justice is assumed to be underpinned by the fundamental tenets of effectiveness and accountability. To be credible, it must also be delivered by transparent institutions – that are responsive, inclusive and participatory. The need for institutional functioning has now caught the attention of the Supreme Court.

For decades, the revolutionary judgement in the Godavarman case – to protect the forests – has held the torch of hope for environmentalists. However, in the last decade, there has been a disarray in the way environmental bodies have provided redressal of contentious issues. That has also discouraged various environmental stakeholders. There is now light at the end of the tunnel from the Supreme Court – it has laid down guidelines for the effective functioning of environmental institutions.

In the context of permission that was sought from the Court to construct a Convention Centre at Patnitop, a three-judge bench of the Supreme Court comprising Justices B.R. Gavai, PS Narasimha and Prashant Kumar Mishra observed the functioning and constitution of the Central Empowered Committee (‘CEC’) that was originally constituted by an order of the Court in May 2002 in the Godavarman matter to monitor the implementation of the orders of the Court and to present cases of non-compliance, encroachment removals, implementation of working plans, compensatory afforestation, plantations and other conservation issues. Pursuant to that direction, the Central Government constituted the CEC as a statutory authority under Section 3(3) of the Environment (Protection) Act, 1986. Thereafter, by orders of the Court, the composition of the CEC was modified and the term of office for the new members was directed to be for a maximum of three years. It later came to light that almost for a period of two decades, the CEC had been functioning as an ad hoc body. The Court took note of the fact that some of the members of the Committee had crossed the age of 75 years and some of the members were living abroad, compelling it to seek members who were younger and, in a position, to deliver effectively.

The apex court also approved the Ministry of Environment’s action to constitute the CEC as a statutory body for the purposes of monitoring and ensuring compliance of the orders of the Supreme Court covering the subject matter of Environment, Forest and Wildlife.

The Supreme Court has given directions to the CEC to promote transparency and efficiency in its functioning. It has been asked to formulate guidelines for the conduct of its functions and internal meetings. It has also been directed to formulate the operating procedures delineating the roles of its members and the Secretary of the CEC and to formulate guidelines about the public meetings that it holds, ensure the publication of meeting agenda in advance on its website, maintain minutes of meetings, and set out rules regarding notice to parties. The CEC is also to prepare guidelines for site visits and, if necessary, hearing the public and affected parties such guidelines are to be posted on the official website of the CEC.

The Court said that the bodies, authorities such as the Central Pollution Control Board, State Pollution Control Boards, Animal Welfare Board of India, National Board for Wildlife, National Green Tribunal and such others must indeed be constituted with persons having expertise in the field because they constitute the backbone of environmental governance in India. Hence, the Court emphasized that there is a need for these bodies to function with efficiency, integrity and independence and are also subject to accountability.

It is correctly recognized that the effective functioning of environmental bodies is imperative for the protection, restitution, and development of ecology. The Court said that the role of the Constitutional Courts is to ensure that such environmental bodies function vibrantly and are assisted by robust infrastructure and human resources. The functioning of the institutions will be monitored so that the environment and ecology are not only protected but also enriched. The composition, qualifications, tenure, method of appointment and removal of the members of the authorities must be clearly laid down. Adequate funding and finances must be clear and certain. The role and mandate of each authority and body must be defined to avoid overlap and duplication. The rules, regulations, and other guidelines must be notified and made available and accessible on the websites, even in regional languages. These bodies must clearly lay down the applicable rules and regulations in detail and the procedure for application, consideration, grant of permissions, consent, and approvals. The norms of public hearings, the process of decision-making, prescription of right to appeal and timelines must be prescribed. The method of accountability must be prescribed by clear allocation of duties and responsibilities.

Because environmental governance emerges through these statutory bodies, the role and obligation of the Constitutional Courts is indeed significant. Therefore, it is just as well that the Courts will continue to exercise judicial review over the decisions taken regarding the environment and ecology. In particular, the Supreme Court has emphasized its interest to monitor the proper institutionalization of environmental regulatory bodies and authorities. That is a welcome step.

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