This assignment argues how the emergence of the National Green Tribunal (Green Court) has led to environmental conservation which has subsequently established Environmental Justice in the Country. India’s record as a progressive jurisdiction in environmental matters through its proactive judiciary is internationally recognized. The neoteric National Green Tribunal of India (NGT) – officially described as a ‘specialized body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues’ – is a forum which offers greater plurality for environmental justice. The NGT, in exercising wide powers, is staffed by judicial and technical expert members who decide cases in an open forum. The experts are ‘central’, rather than ‘marginal’, to the NGT’s decision-making process.
This assignment draws insights on the role of India’s National Green Tribunal (NGT) which was established on 18 October 2010 as a dedicated environmental court under the National Green Tribunal Act 2010 and became fully operational with effect from 4 July 2011. The NGT was constituted as a multidisciplinary body with the necessary expertise for the effective and speedy disposal of cases relating to environmental protection, forest conservation and enforcement of legal rights relating to environment protection.
The assignment brings out the jurisdiction, powers and functions of the tribunal for effecting environmental justice, the significant cases adjudicated by it in the 10 years of its existence, the principles applied, the accessibility and value addition to environmental jurisprudence through innovative application of law and the objectivity demonstrated by the tribunal in balancing the protection of the environment and sustainable development. The tribunal, with its specific mandate constitutes an important step in the access to justice on matters concerning the environment.
Methodology: The assignment draws upon and examines field work data collected by the research scholars, independent research agencies (erc.org) and interviews available by the various Environment Experts and Judicial Experts published and available online by the date March 29, 2020 further a considerable reference has been to “Environment Impact Assessment” by Ritwick Dutta.
Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16 ‘to provide access to justice for all and build effective, accountable and inclusive institutions at all levels’, to accomplish this goal, establishing specialized courts and tribunals dealing exclusively with environmental matters is becoming essential. All over the world, more than 1200 environmental courts and tribunals are functioning in various countries, and more such courts have been planned for the future.1
As far as India is concerned, the need for establishing environmental courts in India arose in different circumstances and in different times. In the cases of M.C. Mehta Vs. Union of India2, Indian Council for Enviro-Legal Action Vs. Union of India (1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V. Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996, 2001) observed that as environmental cases frequently involve assessment of scientific data, setting up environmental courts on a regional basis with a legally qualified judge and two experts would help speed the judicial process.
The Law Commission of India (186th Report 2003) recommended the establishment of environmental courts in India.3 This recommendation was based on a review of the technical and scientific problems that came before the courts and the inadequacy of judicial knowledge on the scientific and technical aspects of environmental issues.
ESTABLISHMENT OF N.G.T
The NGT was established in the year 2010 under the National Green Tribunal Act of 2010 to dispose of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights related to the environment (National Green Tribunal.4 The Act was enacted through the Parliament of India, under the provision of Article 21 of the Constitution of India, which emphasizes the right to live in a clean and healthy environment.
The NGT replaced the existing National Environment Appellate Authority of the Ministry of Environment and Forest. The tribunal, according to the NGT Act of 2010, shall have the ‘jurisdiction over all civil cases where a substantial question relating to environment5 (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I’, namely The Water (Prevention and Control of Pollution) Act of 1974, the Water (Prevention and Control of Pollution) Cess Act of 1977, The Forest (Conservation) Act of 1980, The Air (Prevention and Control of Pollution) Act of 1981, The Environment (Protection) Act of 1986,The Public Liability Insurance Act of 1991 and The Biological diversity Act of 2002.
At present, the NGT is functional in five locations. New Delhi is the principal seat of the Tribunal (Principal Bench) and Bhopal (Central Zone), Pune (West Zone), Kolkata (East Zone) and Chennai (South Zone) are the other seats of the tribunal as zonal benches. By establishing zonal benches, people from different parts of the country can have access to the tribunal. Each tribunal will have Judicial and Expert Members. Additionally, the NGT constituted circuit benches to convene in places, viz. Shimla, Shillong, Jodhpur and Kochi, to hear cases pertaining to particular states. This was mainly to reduce the constraints of accessibility, especially for the poor and tribal populations living in remote areas of the country.6
4 https://greentribunal.gov.in/ last viewed on 28/3/20.
5 http://moef.nic.in/rules-regulations/national-green-tribunal-ngt/ last viewed on 28/3/20.
6 http://moef.nic.in/downloads/public-information/NGT-fin.pdf last viewed on 28/3/20.
The NGT is a ‘quasi-judicial body’ and has limited power. It has authority similar to law- enforcement agencies, but it is not like a normal court. The courts have the power to adjudicate all types of disputes, but NGT has the power of enforcing laws on administrative agencies. NGT was created to ease the burden on the normal courts. NGT’s actions may be appealed to a court of law. For example, in cases of crime and other offences, NGT can only issue recommendations for punishment, depending on the nature and gravity of the offence. However, such punishment can be challenged in a court of law, which is the final authority.7 In this context also, the NGT’s role appears limited.
Considering NGT, its jurisdiction, powers, functions, significant cases, principles applied, accessibility and value addition to environmental jurisprudence, it can be observered that NGT has had an important role in providing access to justice on matters concerning the environment. Reviewing the provisions of the NGT Act one can categorize the cases that are adjudicated by the NGT into five types, which include8 (i) original applications filed by aggrieved persons arising under those legislations within the purview of the NGT Act, (ii) original applications seeking compensation, (iii) applications from the implementing authorities seeking enforcement and legitimacy of conditions imposed on polluters, (iv) appeals from industries against the decision of the implementing authorities and (v) appeals from NGO’s/aggrieved persons regarding non-compliance to rules/notifications/clearances/etc.
POWERS AND PRINCIPELS OF JUSTICE ADOPTED BY NGT.
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, 9
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. 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. You 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.
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.10
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.
To highlight the history of environmental justice in India since 1970. It can be observed that environmental justice was promoted, considering the environment and development; the emergence of a red-green environmentalism during the 1980s and 1990s, and the Bhopal Gas Tragedy and its implications. It is believed that environmental justice has become significant with the existence of a vibrant civil society and its capacity to inform state policy and engender institutional evolution in Indian democracy.
Twelve key characteristics were found to be appropriate for assessing the successful operation of environmental courts and tribunals (ECT).11 These include (i) status and authority; (ii) independence; (iii) centralized jurisdiction; (iv) knowledge of judges and members; (v) operating as a multi-door courthouse; (vi) access to scientific and technical expertise; (vii) facilitating access to justice; (viii) quick and cheap resolution of disputes; (ix) responsiveness to environmental problems; (x) development of environmental jurisprudence; (xi) underlying ethos and mission and (xii) flexible, innovative and provides value-adding function.
With the application of international environmental law principles, such as sustainable development, and precautionary and ‘polluter pays’, up to the year 2016, 2051 judgments were delivered by the NGT (including zonal benches) in total for various cases of environmental matters across the nation. It is agreed that all of them are related to the environment from a broad perspective. However, there is a need to know the predominant areas in the Environment, such as water, air, waste, noise and environmental compensation, on which appeals or petitions were made to the tribunal and Judgments were delivered.
OBSERVATIONS ON THE ENVIRONMENTAL JUDGMENTS OF THE NGT
The number of environmental judgments delivered by the NGT from its inception is on an increasing trend, indicating the growing environmental concerns in a developing country like India. Based on analysis of the judgments of NGT, so far, a total of 2051 judgements were delivered by the NGT (including zonal benches) from the inception year 2011 to the year 2016, for various cases of environmental matters across the nation. The minimum was seen in the year 2011 (28 orders) and the maximum was seen in the year 2015 (821 orders) (Fig. 1). Further, a majority of the judgments were from the Southern Zone (318), followed by the Principal bench- New Delhi (79), West Zone (78), East Zone (25) and Central zone (10) (Fig. 2)
Environmental Judgments delivered by the NGT from 2011 to 2016.
Judgments from different Zones of N.G.T SZ Zone, EZ East Zone, CZ Central Zone, WZ West Zone
Examining the NGT judgments, considering the year 2016 as a case study, to understand the petitions behind the judgements.12 There were 510 judgements delivered by NGT in 2016 and they were classified under different sectors of environmental law. This was done considering the jurisdictions of the NGT. When NGT was established, it was defined that NGT would adjudicate on the matters coming under the various Acts, viz. 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 and The Biological Diversity Act, 2002. Accordingly, the judgements were classified into different environmental sectors, namely Air, Water, Waste, Noise, Nature, Industry Operations, Thermal Power Plants, Mining Operations, Environmental Compensations and Others.
Of the total judgements delivered in 2016 (510 Nos.), the majority of petitions were related to Industry Operations (176) which was followed by the other environmental sectors namely, Nature (143), Mining Operations (61), Water (43), Waste (26), Environmental Compensations (12), Noise (11) and Air (9), as shown in Fig. 3. Depending on the nature of the cases, the Ministry of Environment, Forest and Climate Change (MoEF&CC) was made one of the Respondents. In the cases of 2016 taken for analysis, in the majority of petitions, the MoEF&CC became one of the Respondents
Appeals/Petitions to the NGT from various environmental sectors in 2016. A Air, WT Water, WS waste, N Noise, NT nature, IO Industry Operation, TPP Thermal Power Plant, MI Mining Operation, E.Comp Environmental Compensation, OT Others
As can be seen, the greatest number of petitions during 2016 concerned Industry Operations and secondly Nature issues. Here, the sector Industry Operations covers various appeals concerning Impact Assessment, Environmental Clearances, Small Industrial Units, Consent to Operate and Standards. The sector Nature covers those appeals about Nature Conservation, Forests, Tree Cutting, Green Belts, Wetlands, Landscape and Construction. Overall, the sector Industry Operations is based on the environmental clearances of projects and their monitoring activities.13 The present regulatory provisions for protecting our environment and institutional mechanism that are already in place to monitor these activities need to be reviewed from the awareness and implementation points of view, as the majority of cases are related to Industry Operations.
The MoEF&CC in the central government is the nodal agency for overseeing the implementation of the country’s environmental policy and programme relating to conservation and protection, taking the principle of sustainable development as the main guidance. The existing system for issuing environmental clearances for projects and their monitoring activities are well constituted. From the environmental protection point of view, prior environmental clearances are issued by the MoEF&CC before any developmental projects are implemented in the country, in accordance with the Environment Impact Assessment (EIA) Notification of 2006. Further, the environmental norms issued for developmental projects are monitored by the Regional Offices of the Ministry and the relevant State Pollution Control Boards and Pollution Control Committees of Union Territories. The process of prior environmental clearance includes screening, scoping, public consultation and appraisal. The process includes prescription of Terms of Reference, collection of data and preparation of draft EIA/EMP report, public consultation, finalisation of EIA/EMP report, appraisal by the Expert Appraisal Committee and examination in the MoEF&CC for grant of environmental clearance.14
Further, violation cases are taken in parallel by the MoEF&CC for appropriate action. The regional offices of the MoEF&CC are located at Bangalore, Bhopal, Bhubaneswar, Chandigarh, Chennai, Dehradun, Lucknow, Nagpur, Ranchi and Shillong, which inter-alia monitor the implementation of conditions and safeguards stipulated by the Ministry while granting clearances to development projects under rules specified under the provisions of the Environment (Protection) Act, 1986. In addition to the above, the MoEF&CC also engages the National Centre for Sustainable Coastal Management (NCSCM) for EIA studies and monitoring activities for environmental projects of CRZ nature.15
In the matter of Rajendra Singh Bhandari Vs State of Uttarakhand and Others (Original Application No. 318 of 2013), the NGT issued detailed guidelines to the State Governments/Union Territories for preventing and controlling water pollution through the State Pollution Control Boards. NGT also highlighted that the constitution of the Pollution Control Boards and eligibility criteria and appointment of Chairman/Member Secretary of the Boards/Committees should be in accordance with the Water Act and Air Act.
GREEN JUDICIAL ACTIVISM (SUO MOTU APPLICATIONS)
From the series of matters adjudged by the green court, it can be observed that, in several important environmental matters, the NGT takes suo motu appeals in the interest of environmental protection and public health. However, it was many times argued that NGT does not have power for suo motu appeals under the NGT Act, the answer to this question of ‘can NGT take Suo Motu cognisance of an environmental matter?’, citing examples of a few of the cases that the NGT dealt with. The act of suo motu by NGT was challenged in the Madras High Court, which disagreed with the argument made by the tribunal, i.e. the tribunal is empowered to evolve its own procedure and it can take suo motu cognisance of an environmental issue.
In the year 2016, there were a total of eleven (11) suo motu appeals taken by the NGT. Among them, the Water sector ranked first (5) and both Industry Operations (2) and Nature (2) sectors ranked second and Mining and Waste sectors, having one appeal each, ranked third.16 In the
matter of suo motu proceedings initiated on a petition received from Sri.K.J. Poulose, Ernakulam (Application No.389 of 2013), the NGT issued directions to the State Pollution Control Board (SPCB) for prevention of pollution of the river Periyar by Industries and to take appropriate action in case of violation, including closure of the units, after following due process of law.
It was further noted in one of the suo motu appeals (Application No. 182 of 2013 in the matter of suo motu Vs. The Secretary to Government, Municipal Administration and Water Supply Department, Government of Tamil Nadu), the tribunal took a complaint of poor quality of government tap water in Chennai City and issued directions to the authorities concerned. From the above facts, we can understand that the NGT is functioning effectively, and the NGT is seen as ‘Responsive to Environmental Problems’, as one of the characteristics of successful environmental courts and tribunals.
In 2019 with regard to whether National Green Tribunal has a power to take Suo Muto Cognizance? Supreme Court observered that a Environment court of such stature must have the power to take Suo moto Cognizance and agreed to examine this issue and appointed Advocate Anand Grover as amicus curiae.17
Under the category of environmental compensation, the NGT provides relief and compensation to the victims of pollution and other environmental damage as well as for restitution of property damaged and for restitution of the environment. In several judgments, NGT has directed environmental compensations to be made on the basis of the ‘polluter pays principle’. In the matter of Samir Mehta Vs. Union of India and Others, as per the judgment dated 23-08-2016, the NGT directed that an environmental compensation to be paid by the Respondent of concern for
the damage caused to the ecosystem, loss to ecology and livelihood in accordance with the ‘Polluter Pays Principle’.
In the matter of Manoj Mishra Vs. Union of India and Others, as per the Judgment dated 13-01- 2015 pertaining to the clean and rejuvenated Yamuna River, Delhi, the NGT issued directions to the Civic and Municipal authorities of Delhi to charge every household an environmental compensation fee as part of the property/house tax. Similarly, in the case of Krishan Kant Singh Vs. National Ganga River Basin Authority (2014), NGT directed, in its judgment delivered on 16 October 2014, the defaulting industrial unit to pay a compensation of Rupees Five Crores to the concerned State Pollution Control Board based on the Polluter Pays Principle for undertaking remedial activities to ensure river conservation.18 In another judgment (R K Patel Vs. Union of India, judgment delivered 18 February 2014), the NGT directed for environmental compensation of Rupees Ten Lakhs to the aggrieved farmers at Vapi, Gujarat due to the hazardous waste pollution.
Polluter Pays Principle has become a popular catchphrase in recent times. ‘If you make a mess, it’s your duty to clean it up’- this is the main basis of this slogan. It should be mentioned that in environmental law, the ‘polluter pays principle’ does not refer to “fault.” Instead, it favors a curative approach which is concerned with repairing ecological damage.19 It’s a principle in international environmental law where the polluting party pays for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organization for Economic Co-operation and Development (OECD) and European Community (EC) countries. International environmental law itself mentions little about the principle.
The progress of environmental justice in India has been on increasing trend, with effective usage of NGT. While this reflects that there is a growing trust in NGT by the people, there may be enormous pressure on NGT, which needs more manpower, probably in the context that NGT aims to dispose of cases within 6 months. The effects of sensitive environmental issues that emerge from natural and man-made sources have caused the NGT to pronounce various directions for the benefit of environment protection, and for justice to victims affected by environmental damages. From the judgments examined for the cases of the year 2016, the majority were from two major sectors, namely Industry Operations and Nature. These sectors cover various issues such as Impact Assessment, Environmental clearances, small industrial units, consent, standards for operation, Nature conservation, forests, tree cutting, green belts, wetlands, landscape and construction. As a recommendation based on the present research work, we can suggest that since more petitions for environmental justice were from the sectors of Industry Operations and Nature, there needs to be more attention given to the related matters of environmental clearances and monitoring activities.