Why need Green Benches are needed in India?
- Advocacy for Environmental Courts can be traced in the arguments proposed by the proponents of specialised courts in the debates of generalist versus specialised courts.
- Specialised forums, it is argued that they are able to evolve superior procedural norms and develop better quality of jurisprudence through expert judges who have greater exposure to a homogeneous legal policy regime.
- They bring uniformity, consistency and predictability in decision making which enhances public confidence and helps in development of a rich body of jurisprudence. Incidental benefits include time and cost savings as the requirement of massive documentation for understanding technical points of law in the special field is averted and streamlined procedures make litigation easier and quicker
- In the field of environmental law has produced two excellent examples of successful forums in Australia and New Zealand
- The objective of securing ‘environmental justice through adoption of flexible and people oriented procedures offers another justification for such forums.
- Part IV-A was added to the Constitution by the Constitution (42nd Amendment) Act, 1976 and Article 51-A(g) thereof specifically says that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
- Therefore to enforce these directive principles and fundamental duties, the need for Green benches in Supreme Court arose.
Evolution of Green Courts In India
- The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country’s economic policies had thrust the responsibility of environmental protection upon the judiciary.
- This has meant that in India, the Judiciary in some instances has had to not only exercise its role as an interpreter of the law but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts.
- A series of cases were filed before the Supreme Court in 1980’s and there was a dynamic change in the whole approach of the courts in matters concerning environment.
- The Supreme Court of India interpreted Article 21 which guarantees the fundamental right to life and personal liberty, to include the right to a wholesome environment and held that a litigant may assert his or her right to a healthy environment against the State by a writ petition to the Supreme Court or a High Court.
- By the second half of 1970s, the public interest litigation became a model litigation relaxing the standard of standing. The public interest litigation altered the landscape and the role of the higher judiciary in India and the outcome was Green benches in Supreme courts.
Unique features for the need of Green Benches
- It has also been argued that environmental law has grown as a specialised area of law requiring separate adjudication due to certain unique features
- existence of complex technical/scientific questions;
- overlapping of civil and criminal remedies as well as public and private interests in any environmental adjudication;
- Rapid evolution of a substantial body of international environmental instruments spanning across a gamut of issues like trade in endangered species, ocean and marine pollution , transnational shipments of hazardous wastes and global climate change; and
- development of fundamental environmental principles such as the precautionary approach, polluter-pays, sustainable development, prevention at source, and procedural transparency
Composition of the ‘Green’ Court
The Court shall consist of
- three Judicial Members, who are either
(a) sitting or retired Judges of a High Court or
(b) experienced Members of the Bar with not less than 20 years standing.
- In the appointment process, it is proposed to provide preference to those who have had experience in environmental matters as judges or lawyers.
- judges will be appointed by the Central Government in consultation with the State Government, the Chief Justice of the State/Union Territory concerned and the Chief Justice of India
- assisted by three environmental experts, to be known as the ‘Commissioners. Each Commissioner must have
(1) a degree in environmental sciences together with at least five years experience as an environmental scientist or engineer; or
(2) adequate knowledge of and experience to deal with various aspects of problems relating to environment, and in particular the scientific or technical aspects of environmental problems, including the protection of environment and environment impact assessment
Jurisdiction and Powers of ‘Green’ Court
a) protection of the right to safe drinking water and the right to an environment that
is not harmful to one’s health or well being; and
b) power to have the environment protected for the benefit of present and future
generations so as to:
i) prevent environmental pollution and ecological degradation;
ii) promote conservation; and
iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. Such jurisdiction shall specifically extend to the following matter
a) the protection of natural environment,forests, wild life, sea, lakes, rivers, streams,
fauna and flora;
b) preservation of natural resources of the earth;
c) prevention, abatement and control of environmental pollution including water,
air and noise pollution;
d) enforcement of any legal or constitutional rights relating to environment and pollution under the Constitution of India or under an other law for the time being in force; and
e) protection of monuments and places, objects of artistic or historical interest of
national importance as declared by the law made by Parliament.
Principles followed by the Indian Judiciary to protect the environment
- public trust doctrine
- precautionary principle
- polluter pays principle
- the doctrine of strict and absolute liability
- the exemplary damages principle
- the pollution fine principle
- Inter-generational equity principle apart from the existing law of the land
- adopting a model of sustainable development.
- The most significant facets of environmental justice are ‘equal justice’ and ‘social inclusion
- development and proper utilization of our natural resources for the betterment of our society not at the expense of the environment.
- Access to justice to those who are socially excluded
Benefits of having Green Benches
- Decrease in multiple proceedings arising out of the same environmental dispute
- Reduced litigation with consequent savings to the community
- A single combined jurisdiction is administratively cheaper than multiple separate tribunals
- A greater degree of certainty in development projects
- Reduction in costs and delays may lead to cheaper project development and cost for consumers