Appellate Authorities under Pollution Control Laws in India: Powers, Problems and Potential

Over the last four decades, courts in India have developed a rich jurisprudence on environmental issues. The large body of environmental case-law reflects the judiciary’s predominant approach to environmental grievance redressal – directing regulatory institutions to take action against persistent violations and injustices, expanding the scope of environmental regulation and recommending special environmental adjudicatory mechanisms to make environmental justice more accessible.

However, apart from a few judgments there has been less judicial attention, and resultant executive action, to strengthen existing structures and processes for effective redressal against administrative arbitrariness or inaction.

This paper focuses on an often overlooked aspect of environmental grievance redressal, viz., the effectiveness of existing redressal forums. Such assessments of the National Green Tribunal [NGT] are already emerging.  But, here the authors evaluate the effectiveness of a set of much older environmental redressal forums viz., the Appellate Authorities constituted under the Water (Prevention and Control of Pollution) Act 1974 [the Water Act] and the Air (Prevention and Control of Pollution) Act 1981 [Air Act] on two broad dimensions -  ability to deliver good quality decisions and  accessibility.

How effective are the existing Appellate Authorities in discharging their mandate, and are they conducive forums to facilitating effective environmental redressal? Although the statutory basis for these authorities has existed since 1974 (when the Water Act was enacted), there is no systematic study on their working across the country. This paper is an initial attempt to fill this gap in understanding how these authorities are currently functioning and also highlights the potential role these authorities could play.

Ideally, the effectiveness of such a forum should be judged by analysing the cases heard (and not heard), decisions delivered, time taken to decide appeals, and the extent of implementation of the decisions.

However, across states, decisions of Appellate Authorities are currently not available in the public domain. So the analysis of their effectiveness is based upon factors known to affect effectiveness, starting with the simplest question of whether these authorities have been set up at all, who heads them, whether they comprise expert members, whether they are accessible in general, whether they recognise locus standi of all ‘aggrieved’ parties and the number and types of cases being heard.

 To obtain this information, the authors used a combination of internet-based research, data obtained through applications filed under the Right to Information Act 2005 [RTI Act] with all states, interviews with members of a few Appellate Authorities and one civil society petitioner.

What did these cross-state findings tell about the current effectiveness and future potential of the Appellate Authorities?

First, it was truly astonishing that four out of 26 states have not even constituted Appellate Authorities. Second, even where the authorities were constituted, it appeared that the State Governments were not very concerned about the quality of the adjudicatory process. Majority of the Appellate Authorities were not headed by judges, but by ex-officio appointments. Ex-officio appointments are problematic as there is no way of ensuring that the incumbent has the necessary credentials to appropriately engage with the issues, nor of an individual continuing in the same position long enough to gain the necessary knowledge and experience.

Third, the law permits any person who is aggrieved by the grant of a consent to approach the Appellate Authority. However, the paper indicated that the Appellate Authority was not a popular grievance redressal mechanism for affected citizens. This could be due to lack of public awareness about the existence of these authorities, and in particular, about the wider construction of ‘aggrieved persons.’

And finally, according to the authors as the country grapples with escalating environmental crises, the government must recognise that environmental justice is not limited to judicial, or even statutory, recognition of certain rights and duties. It includes environmental grievance redressal mechanisms that are accessible widely, and that have the ability to deliver good quality orders.

They also state that there is demand for specialised environmental adjudicatory mechanisms and state governments on their part, without any time-consuming legislative effort, can ensure that Appellate Authorities become such a mechanism.