This article is written by Jisha Garg, a student currently pursuing B.A.LLB (Hons.) from Rajiv Gandhi National University of Law, Punjab. 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 and the need for reforms in it.
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.
Need for tribunal
The need for the establishment of a central specialised agency for the timely disposal of environmental disputes was first realised in the Stockholm Declaration of 1992. The declaration was adopted at the Rio de Janeiro summit. It was held in the summit that there was a need to establish nationalised courts/tribunals so that the issue of environmental protection was adequately addressed.
Also, after the Supreme Courts’ pronouncement of four historical judgements (namely the M.C. Mehta v. Union of India, 1986, Indian Council for Environmental-Legal Action v. Union of India, 1996, A.P. Pollution Control Board v. M.V. Nayudu, 1992 and A.P. Pollution Control Board v. M.V. Nayudu, 2001) the need for a specialised court for environmental protection was felt more than ever before. It was felt that the interpretation of environmental laws requires a different agency consisting of experts in the relevant field.
Before the NGT Act, 2010 came into force; there were two Acts that existed for the establishment of specialised environmental courts in the country. These two were the National Environmental Tribunal Act, 1995 and National Environmental Appellate Authority, 1997. However, soon these authorities failed in achieving its objectives and became defunct. The need for a more strengthened and empowered authority was felt to dispose of environmental related disputes. Therefore, the National Green Tribunal was established under the NGT Act, 2010.
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.
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 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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