During November 2015, as the headline-grabbing power tussle between the executive and the judiciary in the judicial appointments case was played out across national media, a less high-profile, but equally crucial, battle between the same institutions was also being enacted on the sidelines. The Ministry of Environment, Forests and Climate Change (MoEFCC) published the draft Environment Laws (Amendment) Bill 2015 in early October.
The bill, which may be discussed in the upcoming budget session of the parliament, was only allowed a rushed fortnight for public comments. The changes it proposes, however, have serious implications for the balance of power between the executive and the judiciary in environmental matters. Much of the language of the bill strenghtens the executive at the expense of the National Green Tribunal (NGT), a powerful independent judicial body that was set up in 2010. The bill proposes that the central government set up new quasi-judicial bodies that will hold the power to assess environmental damage and to penalise polluters, but it is not clear about the relationship of these bodies with other existing institutions, particularly the NGT. Nor does it clarify how these bodies will be appointed. The bill also provides the categories based on which the environmental damage would be assessed, but refrains from clearly defining these categories. Coupled with the government’s uninspiring ways of dealing with environmental issues and its established pro-business stance, in its current form, the Environment Laws Amendment Bill is definite cause for worry.
The draft bill aims to amend two existing acts: the Environment (Protection) Act, 1986 (EPA), and the National Green Tribunal Act, 2010 (NGT Act). One of the key changes the bill proposes to the EPA is the setting up of “adjudicating authorities” that will have the power to hold inquiries into, and make determinations about different categories of environmental damage—“substantial,” “non-substantial” and “minor”—which are vaguely defined by the bill. In its text, the bill defines “non-substantial damage” as damage that is “neither a minor violation or a substantial damage and shall be determined in the manner as may be prescribed.” Depending upon the type of damage, as well as its physical distance from the source, the adjudicating authorities will have the power to impose penalties that are significantly heavier than those under the existing law. The only amendment that the bill proposes to the NGT Act is that appeals from orders of the adjudicating authorities will lie with the NGT. (This amendment has been introduced despite assurances made by the MoEFCC, in response to an RTI query in October 2014, that it had no such plans.)
On the face of it, this sounds like a reasonable, even well meaning suggestion. If implemented well, the adjudicating authorities seem designed to administer civil penalties, and bring polluters to account much faster than the current system. However, the bill is a particularly poor specimen of legislative drafting and lacks clarity. The adjudicating authorities form the centerpiece of the bill, yet the provisions of the bill dealing with their appointment are drafted in such a convoluted way that it is difficult to grasp the extent of the authorities’ jurisdiction, or even the number of authorities that the bill contemplates.
For instance, Clause 2(a) of the bill appears to suggest that adjudicating authorities may be appointed either by the central government or by authorities already constituted under Section 3(3) of the EPA. The authorities set up under this section vary widely in their composition, functions and powers. They include authorities with a very narrow, region-specific remit (such as the Dahanu Taluka Environmental Protection Authority, a Supreme Court-appointed body to ensure environmental conservation in Dahanu Taluka, an ecologically fragile site near Mumbai) as well as the more powerful Central Empowered Committee that supervises the implementation of Supreme Court orders in forest-related matters. It would be logistically absurd for each of these authorities to appoint, in turn, their own adjudicating authorities, as a bare reading of the bill currently seems to suggest.