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National Environment Appellate Authority Act, 1997 be repealed and powers and jurisdiction of the tribunals thereunder be vested in the proposed State Environmental Courts?

These and various other aspects concerning Environmental Courts are proposed to be discussed in the following Chapters.

Chapter II UNCERTAINTY OF SCIENCE AND PROBLEMS OF ENVIRONMENTAL COURTS While the advances in science and technology in the last few decades have been extraordinary, the fact remains that in certain areas concerning environment, where the data play a crucial role, results of experiments conducted by scientific institutions have remained tentative. The results are accurate in proportion to the accuracy of data and to the extent that experiment by use of technology has been able to eliminate all chances of inaccurate conclusions. In a recent book, it is stated:

Complex issues of science and technology arise in court proceedings concerning water and air pollution. For example, we have serious problems of cleansing our rivers, streams and lakes, and cleansing, disposal or recycling of waste and sewage, disposal of toxic waste, hospital waste, nuclear waste, radio active material, removal of the effect of detergents, waste-oils, dealing with genetically modified organisms, adverse effects of pesticides, asbestos etc. A variety of industries like steel, textiles, leather pose different types of problems of pollution. Air pollution from industries and from traffic today is quite grave. Then we have problems of climatic changes, depletion of ozone etc. We have serious problems of noise both at the work place and in residential areas. There are no proper systems for Environment Impact Assessment. There are problems faced in the matter of protection of forests and wild life. The list of issues is unending.

Technical and scientific problems today arise in a variety of ways and at various stages before the Courts. Some questions arise at the stage of initial establishment of an industry. Other issues arise when the effluent- prevention/cleansing mechanisms or the pollution-prevention or pollution- reduction systems are installed by the industry. The industry would say that these safeguards are sufficient but the Pollution Control Boards may say that they are not sufficient. Even where both may agree that the safeguards are sufficient, members of the public may still find water pollution or air pollution unbearable to bear. Then the question would arise whether the running industry has to be closed or be allowed to continue with better safeguards. There would be need for short-term as well as long term remedies. The point here is that if the industry is closed, it may lead to unemployment of hundreds of employees. It may also result in loss of excise duty or sales tax to the Government. If the industry is to be shifted out, land elsewhere may have to be provided, though for a price. In many cases, the plant itself may have to be shifted. Enormous costs will be involved. If the polluting industry is not shifted, there could be serious danger to the health and well being of citizens in that locality. The Supreme Court in several cases has been going into all these aspects and giving directions for shifting of industries outside the cities, by framing schemes for payment of compensation for workmen, and for their re-employment and providing land for the industry elsewhere etc. Prevention of pollution and environmental damage is one side of the story. But, we cannot, at the same time, lose sight of the need for development of our industries, irrigation and power projects. Nor can we ignore the need to improve employment opportunities. There is also the need for generation of revenue by way of excise duties or sales tax and increase our exports to other countries. The Courts must therefore be able to perform a balancing task. That cannot be done effectively, unless the Court gets judicial as well as scientific inputs. The Courts cannot simply close down industries based on the evidence produced by the industry concerned We may here advert to another problem. There are also many who file public interest cases (PILs) against industries as a measure of black- mail. There are industrialists who would think of abusing the legal procedures for their own gain. Some polluting industries would like to close down under Court orders and would thereby want to escape the statutory procedures which otherwise have to be followed for "closure" of industries as contained in the Industrial Disputes Act, 1947 and want to escape paying compensatory wages to workmen. Some others would like to close down or dismantle the plant and sell away prime land to builders. Some others would want concessions from government for shifting their industries to other places. These problems which are like under-currents, should also be taken care of by the proposed Environmental Court.

Chapter VI Two other statutory Environmental Tribunals and Defects therein National Environment Tribunal Act, 1995:

This enactment was made by Parliament, as stated in the preamble, to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto. Liability under sec. 3 is to be on basis of 'no fault' and under sec. 4 compensation is payable. Under sec. 9(1), the Tribunal shall consist of a Chairperson and such members as Vice- Chairpersons/Judicial Members and Technical members as the Central Government deems fit. It can sit in Benches but each Bench must consist of a Judicial and Technical member. Chairman shall be person who is or has been a Judge of the Supreme Court or High Court, or has at least been Vice- Chairman for 2 years. A Vice-Chairman should be a person (a) who is or has been a Judge of a High Court or was a Secretary to Government of India for at least 2 years or has held any other post in Central or State Government, carrying a scale of pay which is not less than that of a Secretary to Govt. of India or (c) held post of Addl. Secretary in Govt. of India for 5 years and has acquired knowledge of or experience in legal, administrative, scientific or technical aspects of the problems relating to environment, or has at least 3 years experience as a Judicial member or a Technical member; or (3) a Judicial Member must be one who is or has been qualified to be a Judge of a High Court or has been a member of the Indian Legal Service and has held a post in grade I of that service for at least 3 years. A Technical Member is a person who has adequate knowledge of or experience in or capacity to deal with administrative, scientific or technical aspects of the problems relating to environment. No appointment of the Chairperson or Vice-Chairperson can be made without consultation of the Chief Justice of India. No appointment of a Judicial or Technical Member can be made except on the recommendation of a Selection Committee appointed by the Central Government consisting of