This article is written by Jisha Garg, a student currently pursuing B.A.LLB (Hons.) from Rajiv Gandhi National University of Law, Punjab and Ayush Tiwari, a student of Symbiosis Law School, NOIDA. This is an exhaustive article dealing with the establishment of the National Green Tribunal. The article includes the need and the objectives of the tribunal, its composition, contribution and the need for reforms in it.
The Stockholm Declaration of 1972 recognised the necessity for the formation of a central specialised body to resolve environmental issues in a timely manner. The declaration was approved at the Rio de Janeiro conference. The summit agreed that nationalised courts/tribunals were needed to appropriately handle the issue of environmental protection. The Supreme Court recognised the need for a national tribunal to hear environmental cases when it heard the cases of M.C. Mehta and anr v. Union Of India & Ors (1986), Indian Council for Enviro-Legal … v. Union Of India and Ors (1996), A.P. Pollution Control Board v. M.V. Nayudu, (1999) and A.P. Pollution Control Board v. M.V. Nayudu II (2001) and the Law Commission agreed in its 186th report in 2003.
The need for a national tribunal to dispose of matters related to environmental protection was first felt in 1986 by the Supreme Court in the Oleum gas leak case and later by the law commission in its 186th report in 2003. The National Green Tribunal was formed in the year 2010 under Section 3 of the National Green Tribunal Act, 2010. It is a statutory body formed for the expeditious disposal of disputes relating to environmental protection and conservation of natural resources.
The formation of this specialised agency was guided by the provisions of Article 21 of the Indian Constitution. Article 323(B) of the Indian Constitution provides for the establishment of tribunals in the country. The National Green Tribunal is not bound by either the Code of Civil Procedure (1908) or the Indian Evidence Act (1872) but works on the principles of natural justice.
The working of the NGT is guided by two basic principles- ‘the polluter pays’ principle and ‘sustainable development’ principle. It was formed in furtherance of India’s commitment towards establishing a national forum for the redressal of environment related disputes at the Rio de Janeiro summit. The summit was convened in 1992 by the United Nations Conference on Conservation of Environment and Development. After the establishment of NGT, India became the third country, after Australia and New Zealand, to come up with a national forum for addressing issues of environmental protection.
Since its inception, National Green Tribunal has contributed a lot to the protection of the environment and this article is written to explain the recent instances of how it has helped to protect the environment.
The NGT was formed with the objective of a special focus on environmental related incidents including the protection of forest and natural resources. Following are the major objectives of the tribunal:
- To ensure that environment related laws are obeyed and act as a watchdog in case of any violations.
- To ensure the safety and conservation of forest and forest animals.
- To prevent the harm caused to the environment due to government or private actions.
- To ensure proper implementation of environmental related laws as listed in Schedule I of the National Green Tribunal Act.
- To provide compensation to those who are victims of environmental degradation and who have suffered damages as a result of it.
- To work towards spreading awareness about various environment related laws and the issues prevalent in the society.
Section 4 of the NGT Act provides for the composition of the tribunal. The members of the National Green Tribunal can be divided under three heads: the chairperson, the judicial members and the expert members. For a person to be qualified to become the chairperson of NGT, he should either be a present/retired judge of the Supreme Court or Chief Justice of a High Court, in consultation with the Chief Justice of India. The current chairperson of NGT is A.K. Goel.
For a person to become a judicial member, he should be a present/retired judge of a high court. Wangdi, Justice Raghuvendra Singh Rathore and Justice K. Ramakrishnan are the current judicial members. In order to be appointed as the expert member of NGT, the person should either have a PhD. In science with environment experience or he should possess Masters in Engineering and technology.
The expert members should also have fifteen years experience in the relevant field including a practical experience of 5 years. The current expert members of NGT are Satyawan Singh Garbyal, Nagin Nanda, Siddhanta Das and Saibal Dasgupta. The minimum limit on the number of expert and judicial members is 10 with the maximum limit being 20. However, currently, the commission only has 7 members as opposed to the minimum limit of 10.
The general term of the members of NGT is 5 years with no provision of reappointment. The members should not hold any other office other than the NGT. The chairperson is conferred with administrative and financial powers. There are 5 grounds on the basis of which the members of the NGT can be removed:
- If the person becomes insolvent.
- If the person commits the crime of moral turpitude.
- If the person is physically or mentally incapable.
- If there is any financial or other interest of the member which is likely to affect his other functions.
- If the member has abused his position at the interest of public.
The principal bench of the tribunal is located at New Delhi. There are five benches of the NGT across the country with each bench enjoying its own geographical jurisdiction. These five benches are located at Delhi, Bhopal, Pune, Chennai and Kolkata.
Recent instances of the contribution of the National Green Tribunal towards environment protection
Baghjan oil well fire
In May 2020, a blowout was reported by a government-owned company Oil India Limited (OIL), the blowout was reported at one of its gas-producing wells in Tinsukia, Assam, near the Dibru Saikhowa National Park. After a few days, the damaged Baghjan oil well, which had been gushing gas uncontrollably for a few days, was engulfed by a large fire. This resulted in three deaths, widespread local evacuations, environmental damage to the surrounding Dibru-Saikhowa National Park (DSNP) and Maguri-Motapung Wetland. Furthermore, the chemicals discharged as a result of the disaster are said to have devastated land and plants, are dangerous to people’s health, and have harmed the livelihoods of individuals who work primarily in agriculture, fishing, and animal husbandry.
The National Green Tribunal took cognizance of this matter when few NGOs approached the tribunal. The National Green Tribunal’s primary bench, chaired by Justice AK Goel, formed a committee, led by retired Justice BP Katakey, to look into the cause and consequences of the disaster. OIL was also directed to deposit an initial amount of Rs. 25 Crores with the District Magistrate, Tinsukia District, Assam, and to abide by any further orders of the Tribunal, in light of the prima facie case made out against OIL on the extent of damage caused to the environment and biodiversity, damage to both human and wildlife, and public health.
The Bench also constituted an eight-member committee to investigate this disaster and had to submit its preliminary report to the Tribunal within 30 days. The committee was asked to inspect the following details:
- The cause of the leakage,
- The harm caused to the public;
- The magnitude of pollution due to oil spill to the Dibru river’s water;
- Whether OIL implemented any mitigating measures to counteract accidents like Baghjan;
- Any kind of pollution to the water, air or soil in the region of the oil well and its surrounding region;
- The extent of the loss and devastation to human life, animals, and the ecosystem;
- To get air quality monitoring, samples of the Dibru river oil spill, soil, and also groundwater of the area tested;
- People responsible for the fire and blowout and reasons for their failure to prevent it;
- Assessing the compensation for victims and the cost of reparation for property and environmental damage;
- Preventive and remedial measures.
A few days later, a report was submitted by Justice Katakey on the continuing inquiry into the source and consequences of the gas leak. In this report, Justice Katakey recommended legal action against OIL for violating the Air, Water, and Environmental Protection Acts. The mandatory consents, such as the Consent to Establish/No Objection Certificate and/or the Consent to Operate under the Water Act, Air Act, and/or the Hazardous Waste [Management, Handling, and Transboundary Movement] Rules, 2016, were not obtained by OIL. OIL claims to have obtained the essential environmental and industrial permits to operate near the DSNP, but OIL was found to have broken the terms of the clearance it had received from the Supreme Court to extract hydrocarbons from the area.
The Katakey Committee also reported that The Assam State Biodiversity Board have confirmed that OIL was unable to perform the Biodiversity Impact Assessment Study as mandated by the Hon’ble Supreme Court. The Committee asked to take an action whether through the Assam State Biodiversity Board or any other agency, as OIL continued the contempt of the directives given by Honourable Supreme Court of India to OIL which gave conditional clearance to continue extracting hydrocarbons from the authorized wells, including the Baghjan-5 well.
The Committee also stated that OIL had disobeyed the Central Pollution Control Board’s directions (CPCB). As a result, further hydrocarbon production surrounding the DSNP was classified as a Red category project, and its designation as an eco-sensitive zone would put it in direct contravention of the Government of Assam’s notice. The Committee instructed PCBA to pursue legal action against OIL for breaking several environmental and industrial standards.
The Committee has recommended payment of Rs 25 Lakh to 173 families and Rs 20 lakh to 439 families identified by the district administration.
Vizag gas tragedy
A huge gas leak from a chemical facility in Visakhapatnam, Andhra Pradesh, happened early Thursday and quickly spread to areas within a five-kilometre radius, killing at least eleven people; children were also among the deceased. A large number of household animals, cattle, and plants were harmed as well. As they sought to flee the noxious fumes, several of them slumped to the ground. Hundreds of individuals were observed to be unconscious on the sidewalks, beside the ditches, and on the lane, hours after the leak, sparking worries of a huge industrial disaster. The manufacturing factory used styrene monomers to make expandable polymers and it should be kept at a temperature of less than 20°C. The factory was temporarily shut down due to the lockdown because of COVID-19 except for maintenance tasks that were completed within a defined time range.
The National Green Tribunal took a suo moto cognizance of this tragedy and registered a case. The National Green Tribunal formed a five-member committee to visit the site and submit a report to it within 10 days in response to the tragic chemical gas leak in Vizag, Andhra Pradesh. The Tribunal under the chairmanship of Justice Adarsh Kumar Goel also directed LG Polymers India Pvt. Ltd., the owner of the facility where the gas escaped, to deposit payment of Rs. 50 crore with the District Magistrate of Visakhapatnam. The Tribunal also said that leakage of hazardous gas at such a scale adversely affects public health and the environment, clearly attracts the principle of ‘Absolute Liability’ against the enterprise engaged in hazardous or inherently dangerous industry and for the loss of life and public health in the gas leak incident at its plant in Visakhapatnam.
The committee formed was asked to report on:
- The chain of events;
- The extent of damage to life, human and non-human; public health; and the environment – including, water, soil, air;
- Causes of failure and persons and authorities responsible, therefore;
- Steps to be taken for compensation of victims and restitution of the damaged property and environment, and the cost involved;
- Remedial measures to prevent recurrence; and
- Any other incidental or allied issues found relevant.
The five-member committee inspected the site and reported to the National Green Tribunal but it is yet to be published.
In the year 2020, the National Green Tribunal under the principal bench headed by Justice Adarsh Kumar Goel has directed a total ban on the sale and bursting of crackers in the cities where ambient air quality falls under the ‘poor’ and above category and also to limit the use of firecrackers to green crackers and for no more than two hours in cities/towns where air quality is ‘moderate’ or ‘lower’.
There are repeated confrontations witnessed between the government and NGT related to the rulings of NGT and a subsequent conflict of interests arising out of these judgments. The Ministry of Environment and Forests has often accused the NGT of overstepping its jurisdiction by pronouncing decisions which are beyond its scope. One of the recent cases of conflict was with the Government of Goa wherein the NGT had imposed a ban on sand mining in the state. The government contends that NGT lacks legal mandate and it does not have a right to act suo moto on certain environment related disputes.
There are increased questions that are raised on the method of manpower hiring by the NGT. Critics have pointed out that this method needs to be made more transparent and subject to review by various academicians, scholars and NGO’s. In order to make the process more transparent, the process of hiring should be made public so that all possibilities of ambiguities are ruled out.
The tribunal has been facing a crunch in terms of the number of members appointed. The tribunal is working with only 7 members as opposed to a minimum limit of 10 members. Also, according to the recent data available for the year 2019, the regional benches of the tribunal have been vacant for 2 years and are operating through video conferencing. There is an urgent need for filling the vacancies that have been pending for two years now. The vacancies are not only leading to a halt in the redressal of environmental related disputes but also leading to lack of accountability and efficiency in the working of the tribunal.
The time limitation clause mentioned in Section 14(3) of the NGT Act, 2010 is very ambiguous and needs a change. Section 14(3) mentions that the complaint regarding environmental protection should be filed within 6 months when the cause of action arises and this time period can be extended for another 6 months only in exceptional cases. This provision fails to envisage the possibilities of long-term effects of environmental damage. It does not acknowledge that there are certain instances wherein the effects of environmental degradation take time to surface. The most relevant example of this can be the harmful effects of the use of radioactive substances. This section needs to be done away with.
Some analysts have also pointed out that jurisdiction of the tribunal needs to extend. Currently, the tribunal enjoys power relating to the implementation of the following Acts:
- 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 by the government relating to the provisions of the above mentioned acts can be challenged before the court. This meant that relevant questions relating to the provisions of any other act cannot be challenged. Certain acts such as the Wildlife Protection Act, 1972 and the Indian Forest Act, 1927 are not covered under the ambit of the tribunal. There are various stakeholders who have been advocating making the jurisdiction of the tribunal wider and taking into its ambit certain crucial acts.
There is a severe lack of resources with the NGT. The tribunal lacks resources needed for the speedy redressal of the disputes that come up before it. There is an urgent need for a comprehensive legal framework in order to interpret various acts and provisions relating to environmental protection. There is a need to review the acts that have been operating since the pre-independence times and update those to meet modern problems.
The most important reform relates to the implementation of the orders of the tribunal. There have been various instances wherein the orders of the tribunal have not been enforced due to a lack of institutionalization. The recent examples of non-compliance include the ban imposed on polythene bags, the orders on the odd-even scheme in Delhi, ban on various construction and industrial activities etc. There is a need to devise mechanisms through which the orders of the tribunal are obeyed and implemented in order to maintain its accountability.
The National Green Tribunal is a fast-track judicial body formed with the objective of addressing the issues about the environment at the national level. So far the NGT has been able to dispose of 90% of the registered cases which means it has addressed 28000 out of the total 31000 cases. But there are serious questions that are raised on the unregistered cases with many claiming that the majority of the cases do not get reported due to lack of awareness.
NGT has given various path-breaking judgments and directives to the authorities since its inception including a ban on noise pollution and illegal mining, orders for wildlife protection and the preservation of biodiversity at various places. Apart from that, NGT is diligently working towards ensuring proper implementation of its orders. It has also played a crucial role in addressing environmental issues in the post-industrial period.
The National Green Tribunal is a fast-track judicial organisation established with the goal of resolving environmental disputes at the national level. So far, the National Green Tribunal has been able to resolve 90% of the registered cases, or 28,000 out of roughly 31,000 total cases. The way the matters were handled and justice was delivered by the National Green Tribunal demonstrates that justice is there for every common man as part of his Right to live in a pollution-free environment, as stated in Article 21 of the Indian Constitution. This has highlighted the necessity of the public trust theory, which requires the government to act as a trustee of natural resources for the benefit of all people. As studied above, we can see why the National Green Tribunal is regarded as “Responsive to Environmental Problems,” which is one of the qualities of any successful environmental court.
The establishment of the tribunal was undoubtedly a noble step in addressing environmental disputes in Indian society. But every step comes with its own loopholes and challenges. The tribunal is facing a severe crunch of manpower and lack of resources. It is also not properly equipped to address the modern time issues related to environmental protection and conservation. These loopholes need to be addressed so that NGT becomes a path-breaking institution offering dispute resolution in environment-related issues. Once these issues are successfully resolved, it will certainly benefit the Indian natural landscape to a great extent.
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