Establishment of the National Green Tribunal

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National Green Tribunal

After decades of unchecked exploitation and deterioration of natural resources now is the time for the National Green Tribunal’s role in addressing the problem of environmental pollution and degradation. The National Green Tribunal (NGT) was established on October 18, 2010 under the National Green Tribunal Act, 2010, passed by the Central Government. It is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. NGT was formed by legislative act of Parliament in order to safeguard Article 21 of Constitution (Right to Life) by providing citizen and coming generation healthy and pollution free environment. NGT had its first hearing on 4th July 2011. As envisaged by the Ministry of Environment and Forests, the NGT is to consist of expert members from the fields of environment and related sciences, who along with the judicial appointees have been empowered to issue directions for the compensation and restitution of damage caused from actions of environmental negligence. It would decide on a range of laws relating to pollution, diversion of forest land for non-forest use as well environmental clearances. The remedies that can be sought relate both to questioning the basis of the approvals as well as challenging the environmental and human health impacts of a project in operation. The Bhopal gas disaster in 1984, also led the Supreme Court to emphasize on the need for constitution of environmental courts. In Charan Lal Sahu v. Union of India the court opined that “under the existing civil law damages are determined by the civil courts, after a long drawn litigation, which destroys the very purpose of awarding damages so in order to meet the situation, to avoid delay and to ensure immediate relief to the victims, the law should provide for constitution of tribunals regulated by special procedure for determining compensation to victims of industrial disaster or accident, appeal against which may lie to this Court on the limited ground of questions of law after depositing the amount determined by the Tribunal.”

The objective of the Central Government was to provide a specialized forum for the effective and speedy disposal of cases pertaining to environment protection, conservation of forests and seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions. The tribunal is to apply the principles of sustainable development, the precautionary principle and the polluter pays principle passing any order or decision or award. These principles have been recognised and established under various International Conferences like Stockholm Conference 1972, Rio Conference 1992 and World Summit on Sustainable Development 2002 (Johannesburg Conference). The case of Indian Council for enviro legal action v. Union of India applied the principle of sustainable development and thus brought it into Indian environmental jurisprudence. Likewise case of Vellore Citizens Welfare Forum v. Union of India applied polluter pays principle and precautionary principle. This NGT act has given those principles statutory recognition.

The National Green Tribunal consists of a full time chairperson and not less than ten but subject to maximum of twenty full time Judicial and expert members as the Central Government may from time to time notify. The Tribunal is also empowered to invite any one or more persons having specialized knowledge and experience in particular cases before the Tribunal to assist the Tribunal in that case. The Chief Justice on the recommendations of the Selection Committee shall appoint the Chairperson, Judicial Member and Expert Member of the Tribunal who shall hold office for a term of five years from the date on which they enter upon their office but shall not be eligible for reappointment. The Chairperson is a retired Judge of the Supreme Court, Head Quartered in Delhi. Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise of at least one Judicial Member and one Expert Member. Expert members should have a professional qualification and a minimum of 15 years of experience in the field of environment or forest conservation and related subjects. The major drawback of this provision is that the composition of the tribunal follows a track, which has failed to yield results. It seems that tribunal is meant to be hub for retired bureaucrats and technocrats. NGT should consist of experts in the relevant field and not the bureaucrats.

The NGT 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 which include The Water (Prevention and Control of Pollution) Act, 1974; The Water (Prevention and Control of Pollution) Cess Act, 1977; The Forest (Conservation) Act, 1980; The Air (Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1986; The Public Liability Insurance Act, 1991; The Biological Diversity Act, 2002. This means that any violations pertaining only to these laws, or any order or decision taken by the Government under these laws can be challenged before the NGT. Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservations etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT.

NGT since its inception have taken various steps in order to reduce the menace of pollution and other activities adversely impacting the environment. Some of the recent steps by the tribunal include order of banning diesel vehicles older than 10 years in the national capital along with ban on burning of solid waste. These steps are taken owing to the rising pollution levels which is evident from the list of most polluted cities where the national capital stands on the top. Another example includes cancellation of coal block clearance in Hasdee-Arand forests overriding central government’s decision, Sterlite case and Meghalaya rat hole mining. However despite various proactive support being taken by the tribunal the pollution levels has been continuously rising over the years. This is due to lack of effective support from government both at the centre as well in states. Inefficiency of Central and State pollution control boards is another reason for it. This often results in delays in implementing the tribunal’s decision. Without adequate support from the government side NGT is unable to have vigilance throughout the country due to its limited capacity and staff. Further despite solving a long number of cases still there is a long list of pending cases in the tribunal which adds to the problem. Citing the increasing pollution levels in the country having an adverse impact on health the role of NGT gains more importance. The Central and State government should work in collaboration with NGT to secure the environment with better faster enforcement of NGT orders. Also, recently launched National Air Index can be used for monitoring the pollution levels.

The main focus for NGT Act was to provide relief to High Court and Supreme Court of environmental cases and litigation, also to provide fast and speedy trial by setting 6 months deadline. NGT is a specialized body to handle environmental disputes which is bound under the Code of Civil Procedure, 1908 and principle of natural justice. It periodically sought response from centre and state for the respective action taken for implementation of NAPCC (Nation Action Plan on Climate Change). Article 48A of the Constitution of India states that the state shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. NGT has tried to balance the development with environment by inferring with its authority to regulate the environmental degradation. NGT passed some of the important orders like ‘Banning any diesel vehicle of more than 10 years old in Delhi and NCR (National Capital Region)’, ‘Cancelling clearance of CG Coal mine, Vedanta and POSCO (Pohang Iron and Steel Company) in Odisha’, ‘Penalising the construction companies in Bellandur wetland in Banglore’, ‘Cleaning of railway lines and station’, ‘Orders to remove illegal quarries on the fringes of the Sathyamahala Tiger Reserve, Tamilnadu’, Order to set up panel to monitor Sunderbans as NGT observed violation of Coastal Regulation Zone’, ‘Proposed plan for rejuvenating the Yamuna river for 52 km stretch in Delhi and UP region’ and ‘Cancelling clearance of a mining project by Gogte Minerals in Maharashtra’. NGT also enforces various laws relating to pollution, wildlife, environment and international conventions.

The violations by corporates for their mining, industrial or hydropower projects is mounting with the growth in investments. While more and more projects are being located in forests, ecologically sensitive areas and where marginalised communities live, the procedures for studying their impacts and granting clearances has been made quicker so as to not restrain or restrict the pace of investments. The efforts of the judiciary in resorting to the ‘Polluter Pays’ principle has only supported this trend as the ‘penalties’ have only helped to streamline this process rather than provide any justice to those aggrieved by such development. The NGT can only alter this trend and become a source of real justice if it takes bold decisions to penalise violations severely as well as look into the root causes of violations that are within the routine procedures of environmental decision-making.

The National Green Tribunal is bestowed with ample power to impose penalty if its orders are not complied with. The penalty which may be either three years prison or up to ten crores and for companies it may extend to twenty five crores. It adopts a tough posture against companies. If it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. This will at least instill sense of fear among higher officials of company to pay due attention to environmental performance of their company.

Nation Green Tribunal is brought in order to fulfill the long need of alternative forum to deliver speedy and inexpensive justice. NGT makes one more innovation by providing strict penalty for non-observance of the order of the tribunal. This will allow implementation of the order of the tribunal. Coming to dark side, the rules relating to constitution of selection committee tilts the balance of power in favour of Central Government. The present legislation provides interference and control by the Central Government in the affairs and processes of the tribunal which should be avoided to give tribunal an unrestricted hand to decide the inherent matter and proceedings.

In order to achieve more fruitful result, the environment court should be established in each state. However, in case of smaller States and Union Territories, on court for more than one State or Union Territory may serve the purpose. Also it is a constitutional duty and obligation of all those lovers of clean environment including the members of the Parliament and ‘We the people of India’, to see that the Parliament brings out necessary amendments ot correct flaws suggested above before much water runs down. It is hoped that the National Green Tribunal would fulfill the long felt need for an alternative forum to deliver speedy and inexpensive justice to victims of environmental pollution.

Ever Since the expansion of Industries and the beginning of ‘developmental’ activities in the country a large number of environmental issues have also come up. There are a number of instances where such human activities have caused immense damage to the environment. India is one of the very few nations in the world who give immense amount of importance to environmental conservation. There are already a number of legislations that deal with environment and forest conservation and protection. The Green Tribunal adds another feather to India’s cap. For a country that has faced one of the world’s most horrifying industrial disasters, setting up a body like the Green Tribunal obviously seems to be an excellent idea. The critics of the Tribunal however fear that it is going to deliver more of the same. That is, nothing! Although the Act is still facing a lot of criticism, yet its basic framework appears reassuring and it is hard to say that it is not the step in the right direction. It would bring about the much needed reform in the way the courts deal with environmental issues and also the way people perceive environmental damage. With the introduction of a legal system that supports and encourages environmental justice, the green tribunal shall make India a role model for its neighbouring nations of South-East Asia.


Sources:
AIR 1990 SC 1480
(1996) 3 SCC 212
(1996) 5 SCC 647

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