THE ADMISSIBILITY OF EXPERT TESTIMONY IN ENVIRONMENTAL LITIGATION: LEGAL AND SCIENTIFIC CHALLENGES

This article is written by Abhilipsa Kar of 10^th Semester of Birla Global University, Bhubaneswar, an intern under Legal Vidhiya

ABSTRACT

The article contends that while acknowledging the uncertainty in research, involving technical experts in decision-making improves environmental outcomes. India is known throughout the world for its proactive judiciary and track record as a progressive jurisdiction when it comes to environmental issues. Greater diversity for environmental justice is provided by the National Green Tribunal of India (NGT), an official body that is defined as a “specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues.” Staffed by judicial and technological experts, the NGT has extensive authority and makes decisions in a public forum. Instead of being “marginal,” the experts have a “central” role in the NGT’s decision-making process. This article also focuses on the definition and role of ‘Expert’ as per The Indian Evidence Act,1872. And highlights certain landmark cases relating to environmental issues.

Keywords

Expert, environment, testimony, NGT, science, admissibility

INTRODUCTION

Environmental issues are becoming more complicated and globally oriented. It makes the case that having technical specialists at the centre of legal decision-making improves environmental outcomes based on fieldwork data collected in India. Academic work supports expert participation by highlighting their input into decision-making. Science may play a role in environmental decision-making; as a result, scientific knowledge can offer suitable answers to complex or technical environmental issues. Procedural values that integrate expert input and provide collective and effective solutions for problem solving, like transparency, inclusiveness, deliberation, and participation, are essential for effective environmental governance. It is believed that these procedural principles are essential to the legitimacy of the procedures and the organisation that aims to provide environmental justice. By providing expert information, an expert decision maker plays a crucial role in furthering the ideals and objectives of institutions, organisations, and legislation. Although it is still up for debate, this function is generally accepted. India is known throughout the world for its proactive judiciary and track record as a progressive jurisdiction when it comes to environmental issues.[1] The National Green Tribunal of India, sometimes known as the Tribunal, provides more options for environmental justice. It is formally defined as a “specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues.” Staffed by judicial and technical expert members who determine cases in an open forum, the NGT has extensive powers. Throughout the decision-making process, it employs investigative, adversarial, investigative, and supportive techniques.

EXPERT UNDER THE INDIAN EVIDENCE ACT

The Indian Evidence Act’s Chapter II addresses the applicability of a third party’s opinion. It is also known as an expert’s opinion, and the act’s Sections 45 through 51 extensively provide for it. The rules in this part deviate from the natural norm of evidence law in that they only consider facts provided by witnesses based on their knowledge and beliefs. According to this exemption, the court is not permitted to provide an opinion on complex or technical topics that call for specialised knowledge from a person with relevant work experience. One of the requirements for requesting expertise is when the matter cannot be resolved without the expert’s assistance. The witness offering their view is a specialist in the relevant topic.

Section 45 of the Indian Evidence Act provides a definition of an expert. An expert is defined as a person who possesses knowledge or skill in any topic, such as foreign law, science, art, handwriting identity, or finger expressiveness, and who has acquired this information via studies, practice, and observation.[2]

Expert witnesses have a main duty to support the court in cases that fall within their area of competence. They are not required to force the parties who appointed them to pay their fees. There is a widespread belief that clients that hire experts tend to favourably influence their experts, which helps them present their case. The expert’s independence may be compromised, which could result in the appointment being declined.[3]

Opinion in the case of science

• In practical usage, the term “science” is fairly broad and does not solely refer to the higher sciences. The following tests can be used to determine whether any expertise is inside the definition of “science.”
• The nature of the injury is such that people with no experience are unable to make an informed decision without the help of specialists.
• Because of the nature of the discipline, one must take a course or conduct research in order to become competent in the field.
• The scope of the research covered in this section includes the study of specific tribal and caste customs and manners, as well as the regions they inhabit and other related topics.
• The following tests can be used to establish whether a given question is of a scientific nature and, in turn, whether knowledgeable witnesses can render a judgement on it: Books discussing the customs and manners of various castes and tribes are admissible in evidence to prove them. The subject matter of inquiry is such that inexperienced men are unlikely to prove capable a correct judgement upon it without the assistance of the experts.
• Every science has its terminology, much of it is above the ordinary juror’s comprehension and is either Greek or Hebrew.

ADMISSIBILITY OF EXPERT OPINION AS PER INDIAN EVIDENCE ACT

The expert’s opinion is not legally binding on the Court; rather, it is only advisory.[4] The expert opinion serves just as corroboration and cannot be utilised as the final evidence. Any insignificant data, however, may become significant if it aligns with the expert’s conclusion or the other way around.[5] Because experts are flawed like all witnesses, their documentary opinion and the evidence supporting it are insufficient, and the expert must be cross-examined in court. Expert testimony is admissible in the absence of examination, but it cannot be depended upon. The expert should also limit his discussion to pertinent information. Expert opinion is data evidence, not admissible over oral testimony unless there is a clear and substantial discrepancy between the two that would lead one to conclude that the oral testimony is false, and only then can the expert opinion be supported by impartial, trustworthy evidence. When two experts’ opinions clash, the court will adopt the expert’s opinion that is supported by direct evidence.[6]

CHALLENGES: LEGAL & SCIENTIFIC

Environmental Public Interest Litigation (PIL) is the outcome of the courts’ response to governmental inaction or misbehaviour by state agencies in carrying out their official obligations, which has put the people’s quality of life, as protected by Article 21 of the Indian Constitution, in jeopardy or diminished. In order to uphold this constitutional right, the state must create and carry out a comprehensive and well-coordinated plan for the general welfare of its citizens. Judges used the term “continuing mandamus” to grant temporary interim orders in response to the state’s failure. PIL is viewed in this context as a “wheel of transformation” that gives victims of environmental damage, among other things, access to justice. A significant change in India’s environmental landscape has resulted from the proactive judiciary’s role as a “amicus environment.” It has also declared and supported the ideas of sustainable development, precautionary principle, and polluter pays as aspects of fundamental law. However, the Indian judiciary’s strong involvement in enforcing environmental justice generated doubts regarding PIL’s efficacy. This was in reference to the issue of slipping jurisdiction, the quickly rising number of petitions, complicated technical and scientific issues, arbitrary court directives, and individual judicial preferences, which are frequently motivated more by personality than by collective institutionalized adjudication.

In three significant rulings, the Indian Supreme Court supported the creation of environmental tribunals. The Supreme Court noted in three cases—M.C. Mehta v. Union of India, Indian Council for Enviro-Legal Action v. Union of India, and A.P. Pollution Control Board v. Professor M.V. Nayudu—that since environmental cases often entail the evaluation of scientific data, it is preferable to establish environmental courts regionally, comprising two experts and a legally qualified judge, to expedite the judicial process by adjudicating pertinent cases. It was proposed that this be looked at by the Indian Law Commission.

Environmental courts should be established, according to the Law Commission of India’s 186th Report on the Proposal to Constitute Environment Courts (2003). This recommendation was made after a review of the scientific and technical concerns that were brought before the courts and an assessment of the judges’ lack of understanding regarding the scientific and technical facets of environmental challenges. The Commission believed that “environmental courts,” which would include both legal and scientific inputs, would be better equipped to render a fair ruling in such cases. These courts might have more authority to conduct local inspections and hear resident panels of environmental scientists’ oral testimony.

The National Green Tribunal (NGT) was proposed as “one element of a reformist approach to environmental governance” during the 2009 Parliamentary debate of the Green Tribunal Bill. The establishment of a circuit system for the new tribunal was suggested by the administration. The National Green Tribunal Act was passed in June 2010 and the NGT was established as a result of the need for innovation and change.

LANDMARK CASE LAWS

Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors.; Supreme Court of India[7]

Another name for this lawsuit is the “Dehradun Valley Litigation.” Quarries were being operated in the Himalayan hill range of Mussoorie. Dynamite was used to blast the slopes away in order to obtain limestone. Due to the illegal habit of digging deeply into hillsides, this technique has also resulted in slumping and cave-ins. Many landslides that resulted from the absence of vegetation killed villagers and ruined their homes, cattle, and agricultural land. The mining operators argued that the case ought to be dismissed by the court and that the matter ought to be handled by the administrative authorities under the Environment Protection Act. However, the court dismissed the miners’ arguments on the grounds that the litigation had already begun and that the court had issued important orders prior to the Environment Protection Act’s passage. A committee for monitoring was later formed. The Monitoring Committee gave the corporation specific instructions, but the lessee disregarded these instructions and kept quarrying limestone in an unprofessional manner. In a committee-filed application, the court determined that Vijay Shree Mines’ covert mining activities had severely damaged the region and ordered the company to contribute Rs. 3 lakhs to the Monitoring committee’s fund. After several years, the Indian Supreme Court ruled that pollution from quarries should be prohibited since it negatively impacts people’s health and safety. Article 21 of the Constitution guarantees the right to life and personal liberty, which includes the right to a wholesome environment. The Supreme Court had to weigh ecological integrity and the environment against industrial demands on forest resources for the first time in this case.
Directives mandating that the central department of Environment’s Eco-Task Force reclaims and reforest the area damaged by mining, and that jobs with the Eco-Task Force operations in the area be given preference to workers displaced by mine closure. 

Samit Mehta v. Union of India & Ors.; National Green Tribunal[8]

An environmentalist filed a claim in this instance citing the harm brought about by the sinking of a ship carrying diesel, fuel oil, and coal. The marine ecosystem suffered harm as a result of the sinking, which left a thick layer of oil on the sea’s surface. It was decided that this case dealt with issues of public concern and the relevance of environmental law. The incompetence was noted by the tribunal. Due to the Respondents’ carelessness and observance of the polluter pay principle, the ship sank. The Tribunal has also declared that it is authorised to pay the Central Government’s cleaning expenses for wrecks that could endanger marine life and navigation. As a result, the Court upheld the “Precautionary Principle” and the “Polluter Pays Principle,” and it acknowledged the right to a clean environment as a basic freedom under Article 21 of the Indian Constitution, which protects individual freedoms and life. According to the Tribunal, there are three reasons why the ship sinking accident is believed to have contaminated the marine environment: (a) the ship’s cargo, such as coal, was dumped into the sea; (b) fuel oil stored on board was released, resulting in an oil spill; and (c) the ship’s wreckage, which included the materials. The ship utilised in this instance is unseaworthy, and the respondents never ought to have utilised it for transportation. As a result, it is decided that in this instance, dumping is akin to the ship sinking. A 100-crore rupee environmental compensation was mandated. This represents one of the largest payments ever made to the government by a private entity.

Asim Sarode v. Maharashtra Pollution Control Board[9]

Asim Sarode v. Maharashtra Pollution Control Board established the application of professional expertise in a ruling that creates a methodical solution to the issue of used tire disposal. Based on the principles of sustainable development and the precautionary principle, this expert member evaluated the urgent need to develop regulations to deal with the issue in a systematic manner using the “life cycle approach,” taking into account the potential for pollution, data on the generation of tires, technology options, techno-economic viability, and social implications. The ruling takes into account the expert member’s scientific input and makes recommendations for strategies to guarantee the efficient collection and disposal of worn tyres, including increased producer responsibility, higher recycling fees, shared facilities, and the use of bar codes.

Ministry of Environment & Forests v. Nirma Ltd[10]

As part of its mission to address environmental problems, the NGT may choose to conduct an investigation, which would imply the instrumental application of knowledge. This process entails expert members inspecting the impacted places; the Supreme Court supported it in Ministry of Environment & Forests v. Nirma Ltd. Comparing and contrasting conflicting claims, viewpoints, and reports submitted by the various parties is the aim of the site inspection.[11]

CONCLUSION

The NGT experts employ a problem-solving and policy-creation strategy by providing ecological, technological, and scientific resource knowledge that is used to either design policies or support states in putting these policies into action. Legitimacy encompasses not only the accountability and transparency of the decision-making process, but also the means by which the “environment and public interest,” rather than the “economic development interest,” is considered to have an impact. In order to address environmental issues, the implementation of investigative and stakeholder consultative procedures enhances active engagement through discussion, disagreement, and norms for eliciting factual realities and expert knowledge. However, the scientific experts of the NGT and the application of their expertise in a judicially regulated forum provides an internalized, accountability-focused approach that prevents a wide range of actors, including governmental and local authorities, businesses, and multinational corporations, from jeopardizing the environment and the welfare of people.

REFERENCES

1. https://www.cambridge.org/core/journals/transnational-environmental-law/article/environmental-justice-in-india-the-national-green-tribunal-and-expert-members/2E26B50742FFB8BB743557132DC7DD66, (last visited on 24^th February,2024).
2. Peiris, G.L., ‘Public Interest Litigation in the Indian Subcontinent: Current Dimensions’ (1991) 40(1) International and Comparative Law Quarterly, pp. 66–90CrossRefGoogle Scholar. See also Anderson, M.R., ‘Individual Rights to Environmental Protection in India’, in A.E. Boyle & M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1998), pp. 1–23 Google Scholar.
3. https://www.cambridge.org/core/journals/transnational-environmental-law/article/environmental-justice-in-india-the-national-green-tribunal-and-expert-members/2E26B50742FFB8BB743557132DC7DD66, (last visited on 24^th February,2024).
4. Peiris, G.L., ‘Public Interest Litigation in the Indian Subcontinent: Current Dimensions’ (1991) 40(1) International and Comparative Law Quarterly, pp. 66–90CrossRefGoogle Scholar. See also Anderson, M.R., ‘Individual Rights to Environmental Protection in India’, in A.E. Boyle & M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1998), pp. 1–23Google Scholar.
5. Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, CRIMINAL APPEAL NOS. 1191-1194 OF 2005, The Supreme Court of India, August 07, 2009.
6. Indian Evidence Act, 1872, § 46, No 1, Acts of Parliament, 1872 (India).
7. https://www.mondaq.com/india/trials-amp-appeals-amp-compensation/1258928/examination-of-expert-opinion-relevancy-admissibility-and-the-framework, (last visited on 24^th February,2024).
8. https://indiankanoon.org/doc/73077916/, (last visited on 24^th February, 2024).
9. https://indiankanoon.org/doc/91443903/, (last visited on 24^th February,2024).
10. https://www.cambridge.org/core/journals/transnational-environmental-law/article/environmental-justice-in-india-the-national-green-tribunal-and-expert-members/2E26B50742FFB8BB743557132DC7DD66, (last visited on 24^th February,2024).

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[1] Peiris, G.L., ‘Public Interest Litigation in the Indian Subcontinent: Current Dimensions’ (1991) 40(1) International and Comparative Law Quarterly, pp. 66–90CrossRefGoogle Scholar. See also Anderson, M.R., ‘Individual Rights to Environmental Protection in India’, in A.E. Boyle & M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1998), pp. 1–23Google Scholar.

[2] Indian Evidence Act, 1872, § 45, No 1, Acts of Parliament, 1872 (India).

[3] https://blog.ipleaders.in/opinion-of-third-person-under-the-indian-evidence-act/#:~:text=Section%2045%20of%20the%20Indian%20Evidence%20Act%20provides,been%20gathered%20by%20him%20by%20practice%2C%20observation%2C%20studies., last visited on 24^th February,2024.

[4]  Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, CRIMINAL APPEAL NOS. 1191-1194 OF 2005, The Supreme Court of India, August 07, 2009.

[5] Indian Evidence Act, 1872, § 46, No 1, Acts of Parliament, 1872 (India).

[6] https://www.mondaq.com/india/trials-amp-appeals-amp-compensation/1258928/examination-of-expert-opinion-relevancy-admissibility-and-the-framework, last visited on 24^th February,2024.

[7] https://indiankanoon.org/doc/1949293/, last visited on 24^th February, 2024.

[8] https://indiankanoon.org/doc/178052422/, last visited on 24^th February, 2024.

[9] https://indiankanoon.org/doc/73077916/, last visited on 24^th February, 2024.

[10] https://indiankanoon.org/doc/91443903/, last visited on 24^th February,2024.

[11] https://www.cambridge.org/core/journals/transnational-environmental-law/article/environmental-justice-in-india-the-national-green-tribunal-and-expert-members/2E26B50742FFB8BB743557132DC7DD66, last visited on 24^th February,2024.

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