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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. M.Y. EQBAL & THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
M. Vetri Selvan
Versus
Union of India & Others
WRIT PETITION No. 14866 of 2010
Decided on : 22-07-2010
(B)Constitution of India-Art.14, 21- Environmental Protection Act, 1986(29 of 1986)-Sec.3, 25-Legislation-Enactment-Scrutiny-Hearing-Public hearing-Place of sitting-Public-Participation-Public hearing does not always mean public participation in a meeting held for any purposes-The main purpose of public hearing in the law making process is to allow citizens the chance to voice opinions and suggestions inter alia on a proposed legislation. This can be done by issuing notifications through news papers and inviting suggestions and opinions from the citizens.
The main purpose of a public hearing is to allow citizens the chance to voice opinions and concerns over a decision facing a legislature, agency, or organization. Public hearing does not always mean public participation in a meeting held for any purposes. The main purpose of public hearing is to allow citizens the chance to voice opinions and suggestions inter alia on a proposed legislation. This can be done by issuing notifications through news papers and inviting suggestions and opinions from the citizens. If this is done, it will amount to sufficient compliance of the term "public hearing"
Para 9
(C)Constitution of India-Art.14, 21, 118- Environmental Protection Act, 1986(29 of 1986)-Sec.3, 25-Separation of powers-Parliament-Standing Committee-Legislation-Enactment-Scrutiny-Hearing-Public hearing-Interference-Challenge-Court-Jurisdiction- A public hearing is required only when a specific statute requires one to be conducted, but it is always open to the Government to hold public hearings in other instances-In the process of law making, the theory of public hearing as stipulated under the Environment Protection Laws cannot be incorporated into the rules of procedure of Lok Sabha, which are already codified-The tests evolved to examine executive or administrative action cannot be made applicable to legislative process.
In our opinion a public hearing is required only when a specific statute requires one to be conducted, but it is always open to the Government to hold public hearings in other instances. In the process of law making, which are governed by a separate set of rule, the theory of public hearing as stipulated under the Environment Protection Laws cannot be incorporated into the rules of procedure of Lok Sabha, which are already codified. This Court has no jurisdiction to legislate or amend or vary the Rules of Procedure. The test which is normally required to be fulfilled in administrative or executive action is that the action should be free from arbitrariness and without discrimination thereby, it does not violate Article 14 or 21 of the Constitution of India. Though, the tests evolved to examine executive or administrative action cannot be made applicable to legislative process, it remains to be seen in the instance case, the Standing Committee of the Rajya Sabha, based on a reference, has issued a public notice calling for objections. … … The petitioner cannot import the theory of public hearing stipulated under a statute such as Environment laws in the matter of law making. Para 11
1. This writ petition has been filed as a public interest litigation by an Advocate, praying for issuance of a writ of mandamus to direct the respondents to arrange "public hearings" on the Civil Liabilities for Nuclear Damage Bill, 2010 at all State Head Quarters in the country and at all the places where the nuclear installations are in existence in the country before the introduction of the Bill in the parliament.
2. It is submitted by the petitioner that the second respondent published a advertisement in the English Daily "The Hindu" dated 24.06.2010, inviting written comments/suggestions either in English or in Hindi on the Civil Liabilities for Nuclear Damage Bill 2010 (for short, the bill). In the terms of the notification those, who are willing to appear before the committee for oral evidence, besides submitting the memoranda may indicate so, In the response to the notification the petitioner is stated to have submitted his memoranda through e-mail on 06.07.2010. The grievance expressed in the writ petition is that the notification does not make any provision for public hearings as available in matters relating to environmental clearance and therefore, in public interest the writ petition has been filed.
.3. According to the petitioner, "nuclear damages" as defined in clause 2 (f) of the Bill itself is incapable of defining the terms used in the Bill and since the ultimate sufferers are public, public hearings are essential. Failure to make provision for public hearings before the introduction of Bill of this nature is violative of Article 14 and 21 of the Constitution of India. In terms of clause 5 of the bill an "operator" shall not be liable for any nuclear damage, where such damage is caused by a nuclear incident directly, due to natural disaster or act of armed conflict, civil war etc. When the Government is the "operator", the liability of the Government to compensate those affected by nuclear disaster is two fold. As the "operator" of the nuclear installation, the Government is liable. Since the liability of the Government as "operator" is limited the liability of the Government as the Central Government is added to its liability, which is always discharged by means of public funds. Therefore, in terms of clause 5, the operation of the nuclear operation will not be liable, if the nuclear incident is directly due to terrorism and this exclusion would mean absence of effective remedy for the affected public and therefore public hearing before introduction of the Bill is essential. It is further submitted that fixation of time limit for claiming compensation for any nuclear damage is arbitrary and unreasonable. That, the bill does not provide for an appeal against the award passed by the Nuclear Damage Claims Commission and the Chairperson and members of the Commission are appointed by the Central Government, and the Government has complete control over the Commission and it is not an independent body. Further, it is submitted that the Union of India considered public hearings in matter touching environment and the Union held public hearings for introduction of genetically modified brinjal. Environment Clearance Regulation, 2006 provide for public hearing on commencement of nuclear power project and proposing of nuclear fuel. The term nuclear damage speaks about impaired environment caused by a nuclear incident, environment and nuclear incident are inter-related and therefore, public hearing prior to introduction of the Bill is essential.
4. Mr.M.Radhakrishnan, learned counsel appearing for the petitioner made elaborate submissions about the Bill pointing out that in case of a nuclear incident, the public are the sufferers and therefore, it is essential that a public hearing is conducted. It is further submitted by the learned counsel that seldom there is discussion in the Parliament about the Bill and from the press reports, it is understood that during 2008, the Parliament passed 16 of the 36 Bills i
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