Access to Justice Victory in India

By Ritwick Dutta (Posted: February 19, 2009)

In a significant victory with respect to Access to Justice, the Delhi High Court comprising of the Chief Justice A.P Shah and Justice Dr S Muralidhar, by its order dated 11.2.2009 has come down heavily on the Ministry of Environment and Forests for not fully constituting the National Environment Appellate Authority despite clear directions from the court more than three years back. The High Court also was critical of the manner of functioning of the National Environment Appellate Authority (NEAA) with in its 11 years of existence has dismissed all appeals filed. The Court observed that “given the fact that all petitions have been dismissed the NEAA, it is at present neither an effective nor an independent mechanism for redressing the grievance of the public in relation to the environment clearances granted by State or Central Government”. The High Court imposed a fine of Rs 20,000 on the Ministry of Environment and Forest for non compliance of its order to be given to the petitioner. The order came in response of the petition filed by Vimal Bhai of Matu People’s organization

The National Environment Appellate Authority is established through an Act of Parliament (The National Environment Appellate Authority Act, 1997) and provides a forum to challenge the decision of the Ministry of Environment and Forest granting environment clearance to various projects. A five member body, it consists of a Chairperson, a Vice Chairperson and three technical member. At present there is no Chairperson, Vice Chairperson but three ‘technical member’. The post of chairperson has been lying vacant for more than last eight years and that of vice chairperson for the last three years. The NEAA at present is hearing a number of Appeals against various projects such as the three dams in Uttarakhand (Kothlibhel Projects), Thermal power Plant by Reliance Energy in Maharashtra among others. Except one case concerning Polavaram Project in Andhra Pradesh, it has dismissed every single appeal in the last eleven years of its existence.

The judgment states: “the court cannot be expected to remain a mute witness to the unfortunate rendering of a statutory body ineffective by an unwilling executive. The present case tests the limit of the scope of Court’s power in exercise of its extraordinary jurisdiction under Article 226”.

“the Government of India has by its unwillingness to take effective steps, rendered the NEAA and ineffective body, thus defeating the very purpose of the NEAA Act… the Union of India is not at all serious about having an effective functioning NEAA. That the Government has been lackadaisical is obvious”.

“The headless NEAA has thus been rendered and ineffective by an act of omission of the government… The intention of Parliament in requiring the government to constitute an independent body for quick redressal of public grievances in relation to grant of environmental clearances has thus been defeated.”

The Court did not even spare the current members comprising and concluded that “We are not happy with the manner of appointment of Members of the NEAA as they do not fulfill the requirements of possessing technical expertise as per Section 5(2) of the NEAA Act. The Court also directed that after the retirement of these members, the Government of India should appoint persons with special technical knowledge in the area concerning the environment as members of NEAA as required in Section 5 (2) of NEAA Act and the appointment of retired bureaucrat is contradictory to the letter and spirit of the NEAA Act. It further held that “in the absence of a properly constituted NEAA, persons aggrieved by the grant of EIA clearances do not perceive it to be an effective mechanism.”

Delhi High Court in its judgment analyzed the issue from a point of view of access to justice. The Court stated that “the NEAA Act is an enactment intended to provide an effective and efficacious remedy for citizens aggrieved by what they perceive to be adverse decisions of the government granting EIA clearance for various projects. The challenge to such decisions would invariably on the ground that it would adversely affect the right to clean environment and health, which are but facets of the right to life itself. The NEAA Act was intended to ease the burden of the High Courts and the Supreme Court thus enabling them to take up other equally important issues affecting the lives of citizens……by rendering the NEAA ineffective, the government has denied the citizens the right of access to effective and efficacious justice in matters concerning the environment. This Court, being a constitutional court charged with the responsibility of protecting and enforcing fundamental rights cannot be expected to be a mute spectator and permit the continued apathy of the government. The plenitude of its powers under Article 226 of the Constitution require it to issue mandatory directions by way of corrective measures to prevent the continued denial of the right of access to effective justice in matters concerning the environment. This Court would, by issuing further mandatory directions, be ensuring the protection and enforcement of the fundamental rights of persons of access to justice guaranteed under Articles 14 and 21 of the Constitution”

The Petitioner were represented before the Delhi High Court by Ritwick Dutta and Rahul Choudhary, members of the TAI India Coalition. For more information email at ritwickdutta@gmail.com