In this blog post, Disha Pareek, a student of RGNUL, Punjab discusses the need for the establishment of the National Green Tribunal, its aims and objectives and the role of the judiciary in this regard.
Introduction
Human beings have always been a meddling entity. For his convenience, man has time and again brought changes to his natural habitat which has resulted in harmful impacts on the environment and has also swiped off many of the living species from the earth. Environmental Law, as the name suggests, is a body of rules and regulations relating to the environment, which functions to achieve the objectives of environmental protection. It includes all the treaties, statutes, rules, guidelines, customs, etc. which governs the conduct of a human being in their day-to-day lives as well as ensures its protection.
In the present scenario, we see environmental law as a wide term which encompasses various legislations, treaties, customs, etc., but initially, it emerged as a set of laws with specific objectives, for example, prevention of nuisance, strict liability principle, etc. The development of the different subject specific laws in the field of the environmental law has led to its development and has not only given enlarged its scope but has also added to its quality.
One such enactment is the National Green Tribunal Act, 2010 which has both long term and short term objectives. The long-term objective lies in the protection of the environment, and the short-term objective involves setting up of a tribunal for the resolution of disputes in a speedy and effective manner.
National Green Tribunal Act, 2010
If we take a look at the present scenario in India, we find that the higher judiciary and the constitutional courts are always burdened with a backlog of cases. It was recently realized that the present set of environment-related complaints are on a rise due to a high level of environmental degradation done in the country. To have the effective disposal of the cases, the National Green Tribunal Act, 2010 was enacted to create the National Green Tribunal for the facilitation of the judicial administration.
The Supreme Court of India was of the view that regional courts should be set up as environmental courts and should have a professional judge and two experts. A single judicial forum with jurisdiction under the Environment Act and other related environmental Acts over both criminal prosecutions and civil claims for violation of the laws should be established.
Thus, to clearly understand the aims and objectives of the National Green Tribunal Act, we need to understand the underlying aspects which were kept in mind while the above legislation was enacted. To bring out the social dimension of the Act, it is highly pertinent to delve into the aims and objectives thus reflecting the ideology of the lawmakers.
India’s stand in international documents
India, being not only a signatory and effective participant in the international conferences but also as a faithful follower of the dicta laid down by the participating States ,has enacted many legislations. While responding to the Supreme Court’s recommendation in 2003,[1] the Law Commission proposed the construction of specialized environment courts, recently implemented through The National Green Tribunal Act, 2010.The Act strengthens the framework of Global Environmental Governance.
Courts are still overburdened with environmental litigation, including the Green Benches that were specifically created speedy disposal of environmental cases. India remains a small minority, following New Zealand and Australia, to adopt Green Court legislation. The National Green Tribunal Act was enacted to fill the gaps in existing adjudicatory framework.
National Green Tribunal is in a way following the 17th principle of Stockholm Declaration, which states that “appropriate national institutions must be entrusted with the task of managing or controlling the environmental resources to (or “intending to”) enhance environmental quality”[2]. International concern for the protection of the environment is not a recent issue but more than a century old which shows that for a long time, international summits did contribute a lot to the national legislations of environmental law all over the world.
The need for the National Green Tribunal
The National Green Tribunal Act, 2010 specifically aims at the creation of a National Green Tribunal which would help in the reduction of the burden of cases from the higher judiciary and effectively and efficiently dispose of issues relating to the environment, including basic rights of the individual for free and safe environment, protection of the flora and fauna, etc.
This act was created in consonance with the need to effectively manage and divert the increasing chunk of pending cases from the other organs of the judiciary. This tribunal was also created so that the basic right of the individuals to a safe environment can be safeguarded as part of Article 21 of the Constitution.
As the aims of the National Green Tribunal suggest, there is a huge importance attached to Article 21 of Constitution concerning environmental matters. The Supreme Court in Subhash Kumar v. State of Bihar[3] observed that “Right to Live is a fundamental right under Article 21 of Constitution and includes right of enjoyment of pollution-free environment and if anything impairs that quality of life, a citizen has the right to have recourse under Article 32 by way of a petition.” Rights provided under Article 21 are basic rights and it cannot and should not be overlooked. Protection and preservation of the environment, ecological balance free from pollution of air and water comes within the ambit of the right to life and so ecological, environmental, air and water pollution should be regarded as a violation of Article 21.[4]
Through the above examples, it can be seen that Supreme Court has made a single contribution to the welfare of the people by using Article 21 for the improvement of the environment. [5] In the case of Charan Lal Sahu v. Union of India[6], it was observed that Right to Life also includes quality of life and the right to a wholesome environment. The hygienic environment is an integral facet of healthy life (a fundamental right). Right to live with human dignity becomes meaningless in the absence of humane and healthy environment.[7]
Part IV of the Constitution includes Directive Principles of State Policy, which although are not enforceable but are nonetheless very important and the court has now and then depended upon such principles[8] which are given in Article 47 and 48 of the Constitution. Supreme Court opined that all environmental courts, tribunals and appellate authorities should be have a judge of the rank of a High Court or the Supreme Court, and a scientist or a group of scientists of high rank and experience for fair adjudication of environmental related disputes[9] which precisely is the NGT is essential, keeping in view this requirement.
Role of Judiciary
Judiciary in its various pronouncements has highlighted the need for creation of the specific environmental courts which would not only effectively solve the disputes but also devise its mechanism of dispute resolution, thus safeguarding the interests of the general public.
In the case of M.C. Mehta v. Union of India[10], the Supreme Court observed that environmental courts must be established for the fast adjudication of the cases relating to the environmental law. In Charan Lal Sahu v. Union of India[11], the court opined that “under the existing civil law, damages are determined after a long litigation, which ultimately destroys the very purpose of awarding damages.”
In the case of Indian Council for Enviro-Legal Action v. Union of India[12], the suggestion for the establishment of environment courts is a commendable one. From 1990 onward, the need for this kind of forum began. And in Vellore Citizen Welfare Forum v. the Union of India[13], it was observed that “the Central Government should mandatorily constitute an Authority under Section 3 (3) of the Environment Protection Act’ headed by a retired Judge of the High Court and it may have other members preferably with expertise in the field of pollution control and environment protection – to be appointed by the Central Government’.
Conclusions and Suggestions
The National Green Tribunal has undoubtedly proved to be a panacea, and it has achieved its objectives effectively. It is not bound by procedure and does not include any structural formalities. There is no delay in the resolution of cases and has fulfilled all the objectives for which it was created. Environmental protection, being the most important concern of the nation, the creation of the tribunal seems to be an appropriate step taken at an appropriate time. Its constitution has not only led to fruitful results in the national context but has also marked its image as a rising star on the international front. Since time immemorial, India has been a country supporting environmentalism and its tendency to conserve nature and its gifts cannot be overlooked.
This legislation has proved to be a great success due to its accuracy in provisions of its dispute resolution mechanism, in providing adequate remedy and at the same time not taking away the remedies of other courses of law. NGT has the power to hear the initial complaints and also the appeals from lower courts.
A good piece of work is the one which accommodates in itself a scope for improvement. Environmental regulations are an example of scientific approach applied to law. An example to understand this aspect is that public health is defined in a tangible or more of a lucid form to include safe, healthy and wholesome environmental milieu but the variability of the actual environmental conditions doesn’t allow it to be as simple as it seems and rather makes it more of a hideous monster. The approximation used in the methods of calculating the quantum of pollution etc. is not as helpful as it might look.
The variability not only lies in the climate but also in the ethnicity or the population. With divergent cultural and social lifestyles, it is difficult to determine the quantum of harm that is caused to an individual. Society starts with an individual, and social dynamics allow it to flourish. The environment being a concern of the society must also include various social experts who can devise effective solutions to the problems. Anything that is perceived from law must also involve a bird’s eye view of a sociologist or a representative of society at large.
The position of tribunal benches to be established only at five places is a drawback altogether since it is not feasible to relate measures concerning all the disputes in the same manner. Thus, a wholesome approach must be adopted by involving social dimensions to the problem-solving mechanism including effects to be analyzed before the actual decision is made. The laws must be effectuated in such a manner that the punishment or the remedy is persuasive in nature and not punitive. The scientific methodologies and effective control mechanisms must be adopted from different parts of the world as an inspiration since India is a country which can adopt any approach to be made applicable to its surrounding conditions.
Footnotes:
[1]Law Commission of India, ‘186th Report on Proposal to Constitute Environment Courts, September 2003.
[2]Supra, note 15.
[3]Subhash Kumar v. the State of Bihar, (1991) 1 SCC 598.
[4]Virendra Gaur v. the State of Haryana, (1995) 2 SCC 577.
[5]M.P. Jain’s Indian Constitutional Law, Lexis Nexis, (7th Ed).
[6]CharanLalSahu v. The Union of India, AIR 1990 SC 1480.
[7]The State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 10 SCC 389.
[8]Research Foundation for Science Technology National Resource Policy v.The Union of India, (2002) 8 SCC 481.
[9]A.P. Pollution Control Board v. M.V. Nayadu, AIR 1999 SC 812.
[10]Supra notes 1.
[11]Supra notes 25.
[12]Indian Council for Enviro-legal action v. the Union of India, (1996) 3 SCC 216.
[13]Vellore Citizen Welfare Forum v. The Union of India, 1996(5) SCC 647.
