Matters concerned with Environment

Wednesday, November 3, 2010

On National Green Tribunal

Can India's New Green Court Get the Job Done?

AP Photo/Sondeep Shankar

Two men carry children blinded by the 1984 Union Carbide chemical pesticide leak to a hospital in Bhopal, India

India has launched a new “green” court this week in the latest push from Environment Minister Jairam Ramesh to toughen up the nation's environmental laws. The National Green Tribunal, as it's called, will be composed of 20 judiciary and environmental expert members who will hear cases regarding environmental protection and rights around the country, and have the power to dispense compensation from environmental negligence as they see fit. The legal body is part of the National Green Tribunal Act passed by India's parliament in June, and follows the example of similar tribunals that have been set up in Australia and New Zealand, says the government. (Read TIME's recent interview with Ramesh.)

A green court, particularly for a vast, growing nation with a catastrophic industrial disaster like Bhopal on its books, sounds like a good idea, but the plan's critics are worried it will deliver more of the same. That is, nothing.

That's because India has created similar bodies before — the National Environment Tribunal in 1995, established to handle cases arising from accidents during the handling of hazardous materials, and the National Environment Appellate Authority (NEAA) in 1997. “We have not seen these two active, and I have not seen any diagnostic study of why they failed in the first place,” says Sanjay Upadhyay, the founder of India's first environmental law firm. The effect of the bodies' failures, says Upadhyay, has been that grievances in environmental cases that should have been filed at the appellate level have often leapfrogged to the higher court systems, including the Supreme Court. That court has been praised for its proactive approach in environmental cases; the court's interpretation of the Indian constitution's guarantee of the "Right to Life" includes the right to a healthy, pollution-free environment. (See pictures of Bhopal's legacy.)

However, Upadhyay says, the high courts' rulings on sweeping environmental issues like sustainable development and the precautionary principle are often too broad to be properly managed at the ground level. “The court system has given draconian orders and judgments which are not implementable. We have laws that are so lofty, but there is no operational arrangement after that,” he says. He fears the new green court may suffer from the same disease, passing judgments that are not supported by sufficient infrastructure to carry them through. “The view that I have had personally is that we've always been jumping the gun without really getting into the administrative first step required.”

A July op-ed in the Indian daily the Hindu argued that, whatever the failures of the past bodies, the new tribunal is sure to have its own shortcomings, including the voice that it gives industry (companies can also appeal their cases), ambiguities about who will pay compensation the court awards, and how the time limit on cases the court will hear could leave some victims, whose symptoms take years to materialize, out of luck. It also notes that Ramesh's stated plan of symbolically headquartering the tribunal in Bhopal, where thousands were killed after a Union Carbide plant manufacturing pesticide malfunctioned and released poisonous gas over the area in 1984, could in fact delay the already long-delayed justice in the case of an unfavorable ruling there that would then send them back to the Supreme Court. (Read TIME's 1984 cover story about the Bhopal disaster.)

All that said, it's hard to say this doesn't seem like a step in the right direction. India remains a model for its neighbors in Asia for making the legal system a place where environmental justice can be found. It will be up the government moving forward with this new tool as to how easily, and how often, even more Indians find it.

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