Environment courts of Bangladesh in comparison with Indian court
The realization of the importance of environment has opened a new area of thoughts and activates, states have come to the point where they accepted the reality of overwhelming demand as the main challenge to cope with on the way to sustainable development. Comparatively new principals have adopted, policies have been ratified and agreements have been made to overcome this unique problem altogether. At this point another challenge becomes visible; the application of those principles and agreement where the traditional legal system is quite reluctant to understand the new realisation for the normative vacuum of judicial activates on the field, the lucas stundi has challenged time to time. Therefore a new judicial system was needed to address the causes from the root. The 21st century has thus witnessed an astonishing growth of Environmental Courts and Tribunals, as of September 2010, around 360 environmental courts and tribunal are in place all around the world. No surprise Bangladesh and India has also adopted the trend but the question remains in the de jure and de facto functionality of these courts, whether they are successful or not? A simple comparison between Bangladeshi and Indian Environmental Courts may help us to realise the in-depth understanding of the present approach and their lacking as both are framed over the same historical skeleton of the legal system.
The present stand of both the Bangladeshi court system and Indian court system (Environmental) developed almost simultaneously thus the embracement and approach of these court has made the court system too remarkable to compare and these remarkable differences have significantly contributed to the outcome of the result. India thought its development relied on the judicial activism, adopted their guideline, significantly observed the Environmental courts of other country and adopted an appropriate legal system for them. The adopted the specialised court model following the Environmental court system of Austria and Sweden. This court has a wide range of power to try almost any (civil) suit by any aggrieved party which is dealt with a specialized panel consisting both judicial and experienced technical (scientists, administrative, experts, etc.) to determine the suit. Whereas, Bangladesh played more back and forth role deciding their court system and later established Special Environment court via Environmental Court Act 2010. This Special court has only one positive speciality; that is it only deals with Environmental Issues, moreover, the procedure is often complex and dependent on other institutions.
For the convenience of understanding a factual comparison between National Green Tribunal of India and Environmental Court of Bangladesh shall be better to find the glitch in the system.
National Green Tribunal of India basically stand with two structure, 1) National Green Tribunal and it’s 2) appellate forum the principal bench of which is in New Delhi with regional few branches (can also be temporary) but in Bangladesh we have several fora 1) one or more Environment Court/s in each district 2) Special Magistrate Court/s.
National Green Tribunal of India (NGT) consists both of judicial members and experts from the scientific and technical disciplines. The minimum composition of the Tribunal will vary from 21 to 41 members (s: 4) includes 10- 20 full time judicial members and 10-20 expert chaired by a chairperson (judicial); the judicial members shall be mixed as per their experience and the experts must have Masters in Science with at list 15 years’ experience in the field of which 5 must be practical experience (s:5(2)), moreover, the court could take help from any other Governmental or non-governmental organization and appoint a special expert on a case to case basis. On the other hand, Environment Court (district) is empowered by a Joint District Judge and the said judge shall in addition to his ordinary functions dispose of the cases that fall within the jurisdiction of an Environment Court, thus no separate court is intended and the previous three special courts are the separate court specially dedicated to bringing justice on environmental matters on the other hand. 2) Special Magistrate Courts with the Magistrates of the first class or Metropolitan Magistrates in each District to deal with offences.
NGT of India has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include seven laws relating to water, forest, air, public liability, biological diversity, environment etc. The NGT accepts both original and appellate jurisdiction from any aggrieved person where there is a clear violation of the law or substantial question to the environment or due to any action the environment is likely to be affected.(s: 2(m),14 ). It can interfere with the matters of environmental clearance, NGT can take suo motu actions as well, and the appointment of amicus curiae is also practised in the court. There are also examples that the court himself visit the contentious matter and make an appropriate rule to upheld justice. The greatest power of all that the NGT can declare certain rights or violation of law by interpretation or provide a guideline.
Contrarily, the jurisdiction of the Environmental court is pretty weak, No court can take cognizance of an offence or receive any suit for compensation without a written report from the inspector of the DoE(s:6()3,7(4) of the Act), though there is an alternative which is even more complex, it simply send back the case to the Inspector or Director General, hear them and then it there is no objection by them the case is taken. The court also provides for Alternative Dispute Resolution (ADR) for some offences under the BECA during the pendency of a case.(s:18) and the magistrate court can only deal with an offence punishable with less than 5 (five) years imprisonment or 5 (five) lac taka as fine or both.
By understanding the basic working functionality of the courts of India and Bangladesh the outcome is easily foreseen, for the optimal implementation of environmental law Bangladesh can follow India where the court is a specialized one compromised with experts of various field with judicial mind. The scope of implementation of laws and principle should be wider with the collaboration of administration and government policy. Based on this findings we may recommend;
- The main purpose of the act is to ensure environmental justice therefor the public participation must be ensured, the complexity must withdraw and a new mechanism should be implemented.
- Socio-political issues and economic concerns should be emphasized, special legal assistance must be introduced to root people so that they can know their right and come before law without any limitation.
- Laws like evidence act, and procedural laws must be up-to-date with the adoption more reasonable and scientific method. Moreover, ADR process must be clear.
- The government should appoint special environmental and legal experts besides government must not be hostile towards the existing NGO’s of concerned field.
- The court must be empowered to, interoperate laws, declare laws, adopt new principles, rule over the administrative body, appoint amicus curiae and others experts.
- The Speedy trial should not be hampered for the bureaucratic process, the burden of proof should be shifted to the corporation, and law of tort should be introduced.
Following these guidelines we may hope a more balanced and comprehensive legation which may be regarded as truism, we might be late but it is often said, it is better later than never. Considering the remarkable development of Indian Green Tribunal we are not very far to achieve the desired goal of the Environmental Court, only if the government takes proper initiative.
 G.Pring – C. Pring, Specialized Environmental Courts and Tribunals at the Confluence of Human Rights and the Environment, 2010, available at www.law.uoregon.edu/org/oril/docs/11-2/Pring.pdf
 Separate criminal court is also there.