Twenty-six years after the world's worst industrial disaster in Bhopal, India has a new National Green Tribunal Act, for “effective and expeditious disposal of cases relating to environment protection” and giving relief and compensation for damages. Environmental activists and those faced with haphazard development cannot be blamed if they view this new law with a sense of déjà vu. The country already has a National Environment Appellate Authority (NEAA) which is a paper tiger. Justice (retd.) N. Venkatachala of the Supreme Court, who headed the NEAA for three years, demands the new Green Tribunal should be scrapped. He holds out that sections 14 to 17 which relate to the powers and jurisdiction of the new Act undermine its purpose. At a state- level consultation held on June 19 in Mumbai, Mr. Venkatachala was scathing about the ambiguities in the Act which does not fix responsibility on who should pay damages in case of an accident and limits complaints to five years since the inception of the problem. The new act also allows industries to appeal before the Tribunal if they fail to get environmental clearance. How green then is this tribunal?

For nearly 30 years Pramila washed her husband's clothes, little knowing she would one day contract a fatal disease. Her husband was a sweeper in an asbestos factory in a Mumbai suburb. Pramila was diagnosed with asbestosis, a fatal disease, which has a latency period of ten to 15 years. The asbestos fibres from her husband's clothes were the culprit. Goa-based lawyer Krishnendu Mukherjee who is dealing with a case on behalf of such victims argues that Pramila and others like her will find it difficult to approach the National Green Tribunal, created by the new Act passed by Parliament which received Presidential assent on June 2, 2010. Under section 15 (3) of the Act, applications for compensation, relief or restitution of property or environment have to be made within a period of five years from the date on which the cause for such compensation or relief first arose. Or to put it simply, Pramila whose disease took over ten years to manifest probably, has no chance before this specially created Tribunal.

Before Pramila the thousands of people maimed by the Bhopal gas leak or other environmental disasters did not have any chance of justice from the Indian government. As a country we shy away from fixing liability and bringing criminals to book. And when we do bring laws, mostly without discussion or debate, to redress the situation, they remain on paper. Barring three consultations on the National Green Tribunal bill before it was passed, organised by NGOs, there was no public debate. The government's past record in creating a Green Tribunal reeks of wilful neglect and a singular lack of political will. In the first state-level consultation in Mumbai after the new Act was passed, organised by the School of Habitat Studies, Tata Institute of Social Sciences (TISS) and The Access Initiative (TAI), New Delhi, lawyers, activists and scientific experts discussed how this flawed piece of legislation could be made effective.

The National Environment Tribunal Act 1995 was meant to provide for strict liability for damages arising out of any accident occurring while handling hazardous substances and for establishing a National Environment Tribunal for effective disposal of cases arising from such accidents. Mr. Venkatachala regretted that the government had put such a law which had stringent provisions in cold storage for 15 years to oblige the powers that be. Two years later, in 1997, the government passed the National Environment Appellate Authority Act, to provide for appeals only against orders granting environmental clearance by the Central or State governments. A retired judge of the Supreme Court would head the Appellate Authority. Mr. Venkatachala points out that the dilution of service conditions of the chairperson ensured that after him, no one was appointed for over ten years and the authority functions with retired bureaucrats.

Even if you ignore the experience of the past Tribunal, the new Act is far from ideal. For Ritwick Dutta, TAI coordinator and environmental lawyer, the single most damaging aspect of the Act is the fact that aggrieved industries too can approach the Tribunal. Now whenever the Ministry of Environment and Forests (MOEF) rejects environmental clearance, it can be challenged under section 16 (i) of the new Act. Dutta says that less than one per cent applications for clearance are rejected by the MOEF in any case. The whole purpose of positive discrimination gets defeated, he points out.

There is no doubting the necessity of a green tribunal. It functions in 134 countries. The government has to treat a grievance redressal body with more respect. However, there is also the risk of “tribunalising” this country with a plethora of tribunals to decide each controversial sector that affects the environment, says R. Sreedhar of Environics Trust, a part of TAI. The issue goes beyond the Tribunal as many of the projects that come up for clearance may not be required, he adds, giving the example of the proposed Renuka dam on the Giri river which will displace 32 villages in Himachal Pradesh so that New Delhi gets enhanced drinking water supply.

In addition shoddy environment Impact assessments (EIAs) are conducted, often not even remotely appraising the projects in question.

It is not EIAs but cumulative impact assessments that are assuming importance specially in critical areas like Konkan in Maharashtra and in the Himalayas where a number of projects are proposed. Expert opinion relied upon by the government also came for wide criticism at the consultation. A case in point that was cited was that of Dr. C.R. Babu, vice chairperson of the Expert appraisal committee on environment impact assessment of thermal power and coal mine projects. According to the minutes of the 60th meeting held in New Delhi on December 11, 12, 2009, Dr. Babu who is heading a sub group told the Committee of the findings during the visit to Ratnagiri district to assess the impact of the thermal power plant (TPP) at Jaigad on the ecosystem. The minutes say, “He [Dr. Babu] stated that emission from TPP can be drawn more or less parallel with vehicular emissions. Hence in the absence of existing operating TPPs in Ratnagiri, the Sub-Group observed that Mango plantations in the vicinity of major roads where heavy vehicular traffic are present seem very healthier than those further away from town. It was felt that the reason could be SO{-2} emission gets converted into sulphate and NO{-x} into nitrate form, which may be good for the mangoes or other vegetations. Prof. Babu also stated that impact on flowering and fruiting due to vehicular emissions even if drawn parallel to TPP emission however need to be studied for which Konkan Krishi Vidyapeeth is to complete the study.” An ill informed co-relation by Dr. Babu to say the least.

The Act does not fix the responsibility of who is liable to pay compensation in case of an accident and has a number of other ambiguities. While the MOEF says that the rules for Act will be ready soon, Supreme Court advocate Sanjay Parikh says that all these issues should have been clarified in the main act itself and it cannot be left to the rules. Another sticky point is the location of the Tribunal which Union environment Minister Jairam Ramesh feels should be in Bhopal. Mr. Ramesh made a statement to this effect in Parliament. Environmental activists say that the road to justice got a little longer with this. First they would have to travel to Bhopal and in case of an unfavourable order, they would have to go to New Delhi to appeal to the Supreme court. There is also vehement opposition to staffing the Tribunal with retired bureaucrats.

The government has only itself to blame if there is an overwhelming feeling that the new green tribunal is not going to deliver justice. There is little point in locating the tribunal in Bhopal even for historical or emotional reasons. Bhopal remains the worst example of an industrial accident coupled with a criminal lack of sensitivity in compensating victims. This is not the time to pay lip service to industrial accidents or environment protection. The government has the onus to set right past wrongs and ensure the tribunal means business and does not degenerate into another tool to deny people their legitimate rights.

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