ChauhanNidhi's Profile and details
Balaji Law College Pune
National Green Tribunal
During theRio de Janeirosummit ofUnited Nations Conference on Environment and Developmentin June 1992, India vowed the participating states to provide judicial and administrative remedies for the victims of the pollutants and other environmental damage.
There lie many reasons behind the setting up of this tribunal. After India's move with Carbon credits, such tribunal may play a vital role in ensuring the control of emissions and maintaining the desired levels. This is the first body of its kind that is required by its parent statute to apply the "polluter pays" principle and the principle of sustainable development. This court can rightly be called ‘special’ because India is the third country following Australia and New Zealand to have such a system.
The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
II. Major Concern
The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same. It was a result of long procedure and the demand for such tribunal started long back in the year 1984 after the Bhopal gas tragedy. Then the Supreme Court specifically mentioned the need for such tribunals in the case where the gas leaked from Shriram food and fertilizers limited in Delhi.
Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India v.s Vimal Bhai
III. National Green Tribunal Bill, 2009
The Bill was introduced in the Lok Sabha on July 31, 2009 by the Ministry of Environment and Forests. The Bill was referred to the Standing Committee on Science & Technology, Environment & Forests (Chairman Dr. T. Subbarami Reddy) on September 15, 2009.
In order to provide quick clearance for cases related to environmental damage, this Bill sets up the National Green Tribunal. The tribunal will hear cases related to major environmental damage as well as appeals under various environmental Acts.
a) Highlights of the Bill
i. The National Green Tribunal Bill, 2009 aims to set up specialised environmental courts in the country.
ii. The Bill replaces the existing National Environmental Appellate Authority and has wider jurisdiction than the NEAA. It will hear initial complaints as well as appeals from decisions of authorities under various environmental laws.
iii. The Tribunal shall consist of both judicial and expert members. Judicial members must have been judges of the Supreme Court or High Courts. Expert members have to possess technical qualifications and expertise, and also practical experience.
iv. The Tribunal shall hear only ‘substantial question relating to the environment’. Substantial questions are those which (a) affect the community at large, and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.
b) Key Issues and Analysis
i. The criteria to determine what a ‘substantial question related to the environment’ are open to interpretation.
ii. The Bill may reduce access to justice in environmental matters by taking away the jurisdiction of civil courts. All cases under laws mentioned in the Bill will now be handled by the Tribunal which will initially have benches at only five locations.
iii. The Bill does not give the Tribunal jurisdiction over some laws related to the environment.
iv. The qualifications of judicial members of the Tribunal are similar to that of the NEAA. The government has been unable to find qualified members for the NEAA for the past three years. The Green Tribunal Bill gives an explicit option to the government to appoint members with administrative experience as expert members.
v. The Bill does not specify the minimum number of members the Tribunal and also does not mention of the composition of the Selection Committee for selecting members. Some other laws that establish tribunals specify the persons who shall decide, or be consulted.
III. National Green Tribunal Act, 2010
National Green Tribunal Act, 2010(NGT)is an Act of theParliament of Indiawhich enables creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues.It was enacted under India's constitutional provision ofArticle 21, which assures the citizens of India the right to a healthy environment.
The legislate Act of Parliament defines the National Green Tribunal Act, 2010 as follows,
"An Act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto".
The sanctioned strength of the tribunal is currently 10 expert members and 10 judicial members although the act allows for up to 20 of each. The Chairman of the tribunal who is the administrative head of the tribunal also serves as a judicial member. Every bench of tribunal must consist of at least one expert member and one judicial member. The Chairman of the tribunal is required to be a serving or retired Chief Justice of a High Court or a judge of theSupreme Court of India. Members are chosen by a selection committee (headed by a sitting judge of the Supreme Court of India) that reviews their applications and conducts interviews. The Judicial members are chosen from applicants who are serving or retired judges of High Courts. Expert members are chosen from applicants who are either serving or retired bureaucrats not below the rank of an Additional Secretary to the Government of India (not below the rank of Principal Secretary if serving under a state government) with a minimum administrative experience of five years in dealing with environmental matters. Or, the expert members must have a doctorate in a related field.
The qualification required by the person to become a chairperson is that he should have been a Supreme Court judge or chief justice of a High Court and to become eligible for becoming a judicial member of the tribunal the person should have been a judge of the High court. To be qualified as an expert member of the tribunal a person shall possess a degree of master of sciences whether physical sciences or life sciences with a doctorate degree or masters of technology or masters of engineering having fifteen years of experience in that field with a five year experience in fields of environment and forests.
The Tribunal has Original Jurisdiction on matters of “substantial question relating to environment” (i.e. a community at large is affected, damage to public health at broader level) & “damage to environment due to specific activity” (such as pollution). However there is no specific method is defined in Law for determining “substantial” damage to environment, property or public health. There is restricted access to an individual only if damage to environment is substantial. The powers of tribunal related to an award are equivalent to Civil court and tribunal may transmit any order/award to civil court have local jurisdiction. However, the tribunal does not follow civil law. it follows principles of natural justiceThe Bill specifies that an application for dispute related to environment can be filled within six months only when first time dispute arose (provide tribunal can accept application after 60 days if it is satisfied that appellant was prevented by sufficient cause from filling the application).
Also Tribunal is competent to hear cases for several acts such as Forest (Conservation) Act, Biological Diversity Act, Environment (Protection) Act, Water & Air (Prevention & control of Pollution) Acts etc. and also have appellate jurisdiction related to above acts after establishment of Tribunal within a period of 30 days of award or order received by aggrieved party. The Bill says that decision taken by majority of members shall be binding and every order of Tribunal shall be final. Any person aggrieved by an award, decision, or order of the Tribunal may appeal to the Supreme Court within 90 days of commencement of award but Supreme Court can entertain appeal even after 90 days if appellant satisfied SC by giving sufficient reasons.
Following the enactment of the said law, the Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region. There is also a mechanism for circuit benches. For example, the Southern Zone bench, which is based in Chennai, can decide to have sittings in other places like Bangalore or Hyderabad.
The Chairperson of the NGT 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’ experience in the field of environment/forest conservation and related subjects
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. These include the following:
1.The Water (Prevention and Control of Pollution) Act, 1974;
2.The Water (Prevention and Control of Pollution) Cess Act, 1977;
3.The Forest (Conservation) Act, 1980;
4.The Air (Prevention and Control of Pollution) Act, 1981;
5.The Environment (Protection) Act, 1986;
6.The Public Liability Insurance Act, 1991;
7.The Biological Diversity Act, 2002.
This means that any violations pertaining only to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT and it shall have the same powers as that of a Civil Court.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 preservation etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. One will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the Taluk where the project that you intend to challenge is located.
Anything which is not covered under these seven acts the NGT is not competent to admit the suit for that matter. The major drawback of this limitation is that a person cannot approach the NGT for every environmental issue. For instance NGT cannot admit a suit for cutting of trees in a forest even though it is related to environment.This is because the protection of forest act is not within the jurisdiction of NGT. So in a way it is ambiguous for a common person to comprehend when to and when not to go to NGT to seek remedy. This is a reform which NGT needs that there should be inclusion of all acts related to environment degradation.
Procedure for filing an Application or Appeal
The NGT follows a very simple procedure to file an application seeking compensation for environmental damage or an appeal against an order or decision of the Government. The official language of the NGT is English.
For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. In case where compensation is being claimed, the fee will be one percent of the amount of compensation subject to a minimum of Rs. 1000/-.
A claim for Compensation can be made for:
1.Relief/compensation to the victims of pollution and other environmental damage including accidents involving hazardous substances;
2.Restitution of property damaged;
3.Restitution of the environment for such areas as determined by the NGT.
No application for grant of any compensation or relief or restitution of property or environment shall be entertained unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.
Principles of Justice adopted by NGT
The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.Further, NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. Thus, it will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered.
While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles.
However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.
Review and Appeal
Under Rule 22 of the NGT Rules, there is a provision for seeking a Review of a decision or Order of the NGT. If this fails, an NGT Order can be challenged before the Supreme Court within ninety days.
IV. Remarkable Judgments
Yamuna Conservation Zone
On 25 April 2014, The NGT said that the health ofYamunawill be affected by the proposed recreational facilities on the river. The NGT also recommended the Government to declare a 52km stretch of the Yamuna in Delhi and Uttar Pradesh as a conservation zone.
Coal Blocks In Chhattisgarh forests
The National Green Tribunal has cancelled the clearance given by the then Union Environment and Forests Minister, Jairam Ramesh, to the Parsa East and Kante-Basan captive coal blocks in the Hasdeo-Arand forests of Chhattisgarh, overruling the statutory Forest Advisory Committee.
The forest clearance was given by Mr. Ramesh in June 2011, overriding the advice of the Ministry’s expert panel on the two blocks for mining by a joint venture between Adani and Rajasthan Rajya Vidyut Utpadan Nigam Limited. The blocks requiring 1,989 hectares of forestland fell in an area that the government had initially barred as it was considered a patch of valuable forest and demarcated as a ‘no-go’ area.
The order is bound to have a more far-reaching impact, with the tribunal holding that “mere expression of fanciful reasons relating to environmental concerns without any basis, scientific study or past experience would not render the advice of FAC — a body of experts — inconsequential. Under the Forest Conservation Act, 1980, the FAC is required to appraise projects that require forestlands and advise the Environment Ministry to grant approval or reject the proposals.
But in this case, the NGT noted, the Minister had taken all of one day and relied upon his “understanding and belief” without any “basis either in any authoritative study or experience in the relevant fields.” The Minister, while clearing the coal blocks, had given six reasons for doing so, including that the coal blocks are linked to super-critical thermal power plant, which is imperative to sustain the momentum generated in the XI Plan for increasing power production. These ‘anthropocentric’ considerations, the NGT held, were not valid to evaluate the project.
Ban on Decade Old Diesel Vehicles at Delhi NCR
An attempt to minimize air pollution at capital of India and NCR. PM 2.5 particles have reached alarming level. As per this order, 10 yrs old vehicles are not allowed to ply. However, as per Media report, central Government exploring to appeal against the order at Supreme Court, especially for personal vehicles.
V. Criticism of NGT
As soon as the NGT came into action after October 2010 it got stuck in number of controversies and was critics because of following lacunas stated herein below:
Lacks Judicial Independence
The first criticism it faces is that it lacks judicial independence from the government. The rules of the NGT act allowed the bureaucrats to be appointed to the tribunal while holding their post in the government. This is problematic in the sense that a government official will never rule against the government because he is also a part of government and faces various kinds of pressure to not to rule against the central government.
Lack of Legal Knowledge
The concept of Tribunals is in itself problematic as they are funded by the parent ministry and hence it exercises control over the tribunal and its decisions. The need for experts in the tribunal is also problematic concept because the NGT has to decide the question of law and does not have to do fact finding. The expert knowledge is not needed in granting compensation or awarding punishment. For this there needs to be a knowledge of law. The Indian evidence act provides specifically for the statement of expert witness in cases where some special knowledge is required than what is the need for appointing experts in the tribunal itself.
The tribunal also faces a lack of resources for its proper functioning. The NGT was operating from a guest house earlier. Also the members of the tribunal were not given houses and were living in government guest house. The funds were decreased further without taking into consideration the fact that NGT is already suffering from lack of adequate funding. The law commission report on the environmental courts suggested that one such court should be established in every state. But the NGT has only 5 benches. This has created problem for common citizens asking for justice as it is difficult to approach a court which is in different state and far from their home. The establishment of NGT also took away the right of civil courts to admit cases regarding environmental issues. So it is now compulsory to file the case before the NGT in these cases. Now even a PIL cannot be filed in the High Court of the state for environmental issues as all environmental litigation shall be dealt only by the five benches of NGT. There is a need for environmental tribunal on district bases but present system is not even providing it on state basis.
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.
There have been other such bodies like the NEAA and NETA which have failed to serve the purpose they were constituted for but it will be unfair to compare them to the Green Tribunal. Failures in the past must not deter us from moving forward to new beginnings.
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.
# SLP (civil) No(s). 12065/2009
# Section 4, National Green Tribunal Act, 2010
# Section 5, national green tribunal act, 2010
# Citizens welfare forum v. union of India(1996) 5 SCC 647
# Section 18(2), national green tribunal act, 2010