This article is written by Richa Singh of Faculty of Law, Aligarh Muslim University, on the powers and functions of National Green Tribunal and Apoorv Singh Chauhan, B.A. LL.B (Hons.) student at NALSAR University of Law, Hyderabad. The article has been compiled by Subodh Asthana. In this article, they have discussed the origin, the National Green Tribunal Bill of 2009 and the National Green Tribunal Act of 2010 in detail along with its jurisdiction, functions, and challenges faced by it while deciding cases with the help of some of the important judgements.
The Constitution of India through its directive principles of state policy (DPSP) mentions that “it is the duty of the state to protect and improve the environment and to safeguard the forests and wildlife of the country and bestow upon the citizens the duty to protect the environment”.
In reality the implementation of DPSPs immediately after independence was a difficult task for the government as there were many other problems that were given priority over the environment. To overcome the basic problems of poverty, illiteracy, unemployment and to provide basic health care facilities, environment issues were not given that much importance. In order to increase the production in the economy more and more industries were set up. This has led to the degradation of environment at a large scale in India and the priority in the last decade had gradually shifted to protection of the environment.
In 2010, the government enacted the National Green Tribunal (NGT) Act which enabled the creation of a special green tribunal that would handle the cases concerning environmental issues. The inspiration for this came from Article 21 of the Constitution of India which guarantees the citizens of India a right to a clean and healthy environment.
After the enactment of the National Green Tribunal Act, 2010, India became the third country in the world after New Zealand and Australia which has special fast-track courts and quasi-judicial bodies that deal with environment-related cases.
Since its establishment, the National Green Tribunal (NGT) has emerged as a powerful unit for the enforcement or implementation of Environmental legislation made in India. Further, the National Green Tribunal adds one more variation by providing a strict penalty for disregarding the orders given by the tribunal. Thus, the implementation of these judgements of the tribunal results in dealing with such cases in an effective manner as compared to other civil courts which used to deal with environmental issues as well.
Origin of the idea of establishing environmental courts in India
In 1992, the United Nations Conference on Environment and Development was held in Rio de Janeiro, India pledged to provide administrative and judicial remedies for the victims who have suffered problems due to different pollutants and other environmental damage.
The Supreme Court of India suggested that there should be environmental courts on regional basis with professional judges and 2 experts keeping in mind the kind of expertise needed to deal with such issues. This was emphasized by the Supreme Court as there was a need for speedy justice for environmental protection and to reduce the burden on the High courts which were not able to do quick disposal of cases involving environmental issues as they were overburdened by cases.
As a result of this dire need for speedy justice The National Green Tribunal (NGT) was founded on 18th October, 2010 under the National Green Tribunal Act, 2010. It is a statutory tribunal which was enacted by the parliament specially for hearing the matters concerning to environmental issues. 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.
The Supreme Court than in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialized environmental court. 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. Vimal Bhai.
The legislate Act of Parliament defines the National Green Tribunal Act, 2010 as “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”.
Difference between a Court and a Tribunal
The Supreme Court has given an answer to this question in the form of this statement that “Every Court may be a Tribunal but every Tribunal is not a Court”.
For instance, a High Court may issue writs and has wide-ranging powers under which it can hear cases on different matters but the Nation Green Tribunal can only deal with the cases involving the environment and other natural resources and the laws which are mentioned under Schedule I of the National Green Tribunal Act, 2010.
Composition of National Green Tribunal
The tribunal shall consist of minimum of 10 members and not more than 20 members. This will be in accordance with the notification given by the central government. The members will be a mix of judges and expert members on environmental issues. In case of any deadlock i.e. the tie between number of judges against and in favor of a decision the authority will remain in the hands of chairperson to decide the case and break the deadlock. Every bench of tribunal must consist of at least one expert member and one judicial member
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 composition of the National Green Tribunal is given in Section 4 of Chapter II of the National Green Tribunal Act, 2010.
- The tribunal shall consist of the following people:
- A full-time Chairperson;
- At least 10 members and not more than 20 members consisting of full-time Judicial officials as notified by the Central Government from time to time;
- At least 10 members and not more than 20 members consisting of Experts as notified by the Central Government from time to time.
- The Chairperson may, anytime, invite anyone who has specialized knowledge and experience regarding environmental issues filed before the Tribunal for the purpose of assistance.
- By notification, the Central Government can anytime specify the sitting place of the Tribunal and the territorial jurisdiction falling under all the places.
- In consultation with the Chairperson of the Tribunal, the Central Government can make rules regarding the procedures and practices followed by the Tribunal which includes the following:
- The rules regarding the persons who shall be entitled to appear before the Tribunal;
- The rules regarding the procedure by which the Tribunal hears applications and appeals and any other matter related to such applications or appeals.
- The rules regarding the number of members who can hear the appeals and applications – with respect to their class or classes. The number of experts hearing an appeal or application should be equal to the number of Judicial members hearing the same appeal or application.
- The rules related to the shifting of a case from one place to another by the Chairperson.
National Green Tribunal Chairman
Justice Lokeshwar Singh Panta became its first Chairman. Justice Swatanter Kumar retired on 20 December 2017. After him, the acting Chairman of the National Green Tribunal was Justice Jawad Rahim, retired Justice Adarsh Kumar Goel is the incumbent chairman of the National Green Tribunal.
Appointment of Chairperson
- According to Section 5 of the National Green Tribunal Act, the Chairperson, Judicial Members and Expert Members of the Tribunal shall be appointed by the Central Government.
- The Chairperson is appointed by the Central Government after consulting with the Chief Justice of India.
For the post of Chairperson, a person should be one who is or has been a Supreme Court’s Judge or a High Court’s Chief Justice.
In order to resign from the office of the Chairperson, he can give a notice in writing addressing the Central Government.
Removal and Suspension
The Chairperson can be removed from his office on the following grounds, if:
- He is an insolvent; or
- He has been convicted for anything which involves moral turpitude.
- He has become mentally or physically incapable.
- He has acquired a financial interest or any other interest which is likely to affect his functions prejudicially.
- He has abused his position as to render his continuance to the public interest prejudicially.
Term of office
The Chairperson of the National Green Tribunal is appointed for a period of five years.
The Chairperson, if he is or has been a Supreme Court Judge shall not hold office after 70 years of age. In case, if he is or has been a High Court judge then he shall not hold office after 67 years of age.
Objectives of the National Green Tribunal
There are three important objectives of the National Green Tribunal, they are:
- The speedy and effective disposal of all the cases related to environmental protection and other natural resources. All the previous pending cases will also be decided by the Tribunal.
- Its main aim is to legally enforce all the rights relating to the environment.
- It accounts for providing compensation and justice to all the affected people in case of any damage.
Structure of National Green Tribunal
The National Green Tribunal (NGT) has been established on 18th October 2010, under the National Green Tribunal Act, 2010, so that the cases associated with environmental protection and other natural resources like forests, etc. can be settled effectively and expeditiously by giving compensation and relief to all those who suffered damages for the matters connected therewith or incidental thereto. It has replaced the National Environment Appellate Authority.
Going by the enactment of the national green tribunal act, New Delhi has been chosen as the principal bench of the NGT, 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 Central Zone bench, which is based in Bhopal, can decide to have sittings in other places like Gwalior or Jaipur. Specifying jurisdiction of each bench.
National Green Tribunal Bill 2009
- The Government of India introduced The National Green Tribunal Bill, 2009 on 31st July 2009.
- The bill provides for the establishment of a Green Tribunal to deal with environmental cases specifically related to environmental protection and conservation of natural resources.
- This Tribunal would replace the National Environment Tribunal and the National Environment Appellate Authority.
- The Tribunal would function under the Supreme Court of India and have jurisdiction over all civil matters related to the environment. It will have powers to order relief and compensation to the victims of environmental damage.
- The bill had some loopholes due to which it faced criticisms but, after some amendments, the bill was finally passed in May 2010 in the form of the National Green Tribunal Act, 2010.
- Before the tribunal came into existence, the normal courts used to hear environmental issues. After the establishment of the Green Tribunal, approximately 5000 pending cases were transferred to the Green Tribunal.
- The previous adjudicatory framework included:
- The Civil Procedure Code (CPC)
- The Criminal Procedure Code (CrPC)
- Criminal prosecutions under various laws.
- The appellate authority to hear appeals against the order of the State Pollution Control Boards (SPCBs).
- The National Environment Tribunal Act, 1995. (now repealed)
- The National Environment Appellate Authority Act, 1997. (now repealed)
Highlights of the Bill
- The Bill was proposed for setting up specialized environmental courts in the country.
- It would replace the National Environment Tribunal Act and the National Environmental Appellate Authority.
- The council would consist of both experts and judicial members for settling the environment-related matters.
- The task of the Tribunal would be to hear ‘substantial’ questions related to environmental problems which affect not only individuals or groups but also the community at large because environment related issues affect public and not just individuals.
- A ‘substantial question’ related to the environment can be interpreted in many ways.
- The tribunal would have only five benches which would reduce the access to justice.
- The bill did not give any power to the tribunal to deal with some laws related to the environment.
- The method of selecting members of the tribunal was not specified in the bill.
- There was no information regarding the minimum number of members and the Selecting Committee of the tribunal.
The Bill was then revised by a Standing Committee on Science and Technology, Environment and Forests under the chairmanship of Dr. T. Subbarami Reddy and the committee had members from both houses of the parliament. Certain changes were proposed by the committee in their report on 24th November 2009 and they are as follows:
The enforcement of the Act
The Central Government had the power to set different dates for different sections to come into force.
The date on which the Act shall come into force shall be decided by the Central Government by notifying the same in the Official Gazette.
Number of members
The limit regarding the number of members the tribunal can appoint was not mentioned.
At least 10 members shall be appointed which can be extended to 20 members (includes both judicial members and experts).
Expansion of rules to include the transfer of cases, Circuit procedure, etc.
The rules to be made by the Central government in consultation with the Chairperson of the tribunal.
The rule-making power has been further defined to include:
It can hear any application or appeal at someplace other than its ordinary place of sitting and it falls under its jurisdiction.
The number of experts and judicial members should be equal while deciding any case.
The rules related to the transfer of cases from one place of sitting to another.
No member (judicial or expert) could take employment with someone else, who had been involved in a dispute before the tribunal for a period of one year.
The proposed amendment recommended the increase in the time period from one year to two years.
Definition of a person aggrieved
Any organization or representative body which is working for the environment could file an application but it did not include whether a person who suffered the same could approach the tribunal or not.
Any aggrieved person can approach the tribunal to seek justice and claim compensation in cases.
The principles of sustainable development, precautionary guidelines ad the ‘polluter pays’ should be considered while deciding cases.
The decision taken by the majority is final and binding.
If there is a deadlock while deciding any case and the member favouring the judgement and opposing are equal then the matter will be decided by the chairperson if he is not part of the hearing.
If he has been a part of the hearing then he will refer the case to another member who shall decide the case.
Appeal to the Supreme Court
The decision taken by the tribunal is final and binding on both the parties in a case.
The aggrieved party, within 90 days of the communication of the order, can file an appeal in the Supreme Court.
If a sufficient cause of delay exists, then the Supreme Court can hear an appeal even after 90 days.
Amendments to the Bill
After all these amendments the bill was finally passed by both the houses of the parliament after getting the approval of the President it became the National Green Tribunal Act, 2010.
- An amendment in Clause 18(2)(e) gives an opportunity to all the citizens of India to approach the National Green Tribunal.
- An amendment to Section 19(a) ensures to consider all the important principles like sustainable development, the polluter pays, etc. while deciding any case.
- The entire act would come into force at once and not section-wise.
- The aggrieved party can file an appeal in the Supreme Court of India if he is not satisfied by the decision of the Tribunal.
- The provisions regarding the place of sitting and territorial jurisdiction also changed as per the recommendations of the committee.
- The number of members in the council was fixed to a minimum of ten and no more than twenty.
- The recommendations regarding the deadlock between the members while deciding a case was also approved and was changed accordingly.
- A selection committee would be made for selecting the members of the Tribunal in a fair manner. People working in the field of environment and its conservation will be made its members.
National Green Tribunal Act 2010
This act is known as the National Green Tribunal Act, 2010. The first Green Tribunal which got established officially was notified on 19th October 2010.
Qualifications for Appointments
The Qualifications for the Chairperson and other Judicial and Expert members of the Tribunal is given in Section 5 of the Act.
A person who is or has been a Supreme Court’s Judge or a High Court’s Chief Justice.
A person who is or has been a High Court’s Judge.
Experience and qualification in the technological and scientific field or practical experience in matters related to the environment.
Term of Office
The term of office for all members including Chairperson is given in Section 7 of the Act.
The Chairperson, Judicial and Expert members are appointed for five years.
The Chairperson and Judicial member, if he’s a Supreme Court Judge, shall not hold office after 70 years of age. In case, if he’s a High Court judge then he shall not hold office after 67 years of age.
The Expert members can hold office only till 65 years of age.
Appointment of Chairperson, Judicial Member and Expert member
The manner of appointment in which the Chairperson and other members including Judicial members and Experts are given in Section 6 of the Act.
The Chairperson, Judicial members and Expert members of the Tribunal shall be appointed by the Central Government. The Chairperson shall be appointed by the Central Government after consulting with the Chief Justice of India. The Judicial members and Experts of the Tribunal shall be appointed by the Selection Committee in the manner as may be prescribed.
The manner of resigning from the Tribunal is given in Section 8 of the Act.
In order to resign from their office, the Chairperson, Judicial Member and Expert member can give a notice in writing addressing the Central Government.
Salaries & Allowances
The salaries and other allowances to the members of the tribunal are given in Section 9 of the Act.
The salaries and allowances payable to the Chairperson, Judicial Member and Expert Member of the Tribunal and other terms and conditions which include pension, gratuity and other benefits, shall be such as may be prescribed.
Neither the salary and allowances nor the other terms and conditions shall be varied to their disadvantage after the appointments.
Removal and Suspension
The process of removal and suspension of the Chairperson, Judicial Member and Expert is given in Section 10 of the Act.
The Central Government, in consultation with the Chief Justice of India, can remove a member from the office of the Chairperson, Judicial Member and Expert Member of the Tribunal if:
- He is an insolvent; or
- He has been convicted for anything which involves moral turpitude.
- He has become mentally or physically incapable.
- He has acquired a financial interest or any other interest which is likely to affect his functions prejudicially.
- He has abused his position as to render his continuance to the public interest prejudicially.
No member can be removed from his office without an order made by the Central Government after an inquiry by a Judge of the Supreme Court related to the ground on which he is getting removed from his position. Such a person must be informed of the charges against him and should be given a reasonable chance of being heard in respect of the charges against him.
The provisions regarding vacancy are given in Section 11 of the Act.
In the case of any vacancy in the Office of the Chairperson of the Tribunal by reason of his death or resignation, a Judicial Member of the Tribunal as the Central Government may think fit to act on the Chairperson’s behalf, shall be appointed as the acting Chairperson until a new Chairperson is appointed according to the provisions mentioned under the Act.
Staff of Tribunal
The staff of Tribunal given in Section 14 of the Act.
- The Central Government shall mention the categories of the Officers and other employees needed by the Tribunal to help them in discharging its functions.
- The recruitment of the officers and other employees of the Tribunal shall be done by the Chairperson in accordance with the manner prescribed for the same.
- All the officers and other employees of the Tribunal shall discharge their functions under the supervision of the Chairperson.
- The salaries and allowances and all the other terms and conditions of service of the officers and employees shall be such as may be prescribed.
Application to the Tribunal
An application to the Tribunal can be filed by anyone who:
- Has sustained the injury
- Is the owner of the property damaged
- Is the legal representative of the deceased person
- Is an agent authorized by the person affected
- Is a person aggrieved and it also includes a representative body or an organization.
- The Government/CPCB/SPCBs/PCCs or any other environmental authority constituted under the Environment Act.
The application or appeal has to be decided quickly after hearing both the parties which a period of 6 months from the date of filing that appeal or application.
Jurisdiction and Powers of the National Green Tribunal
- The National Green Tribunal has the power to hear all civil cases relating to environment that are linked to the implementation of all the laws listed in Schedule I of the Act. These are mentioned below:
This means that in case of any infringement of these laws or any order given by the Government under these laws which is not proper can be challenged in the National Green Tribunal and will be decided there.
- Most importantly, the National Green Tribunal has not been given the powers to hear any cases relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation and various other laws.
- The National Green Tribunal has jurisdiction to decide all the cases which involve substantial questions regarding the environment and its protection and any legal rights in connection with it.
- The tribunal, being a statutory authority, not only exercises original jurisdiction on filing an application but also has appellate jurisdiction through which it hears appeals as a Court.
- The tribunal is not bound by the procedure mentioned under the Civil Procedure Code, 1908 and it applies the principles of natural justice while deciding any matter.
- All the principles such as sustainable development, polluter pays and precautionary principles, are considered by the tribunal before deciding any case.
- The National Green Tribunal, by an order can provide the following:
- Compensation and relief to all the people who are the victims of pollution and environmental damage and it also includes accidents which happen while handling hazardous substances.
- Restitution of a damaged property
- Restitution of the environment for areas which the tribunal may think fit.
- An appeal against any order given by the tribunal can be made before the Supreme Court of India within ninety days from the date of communication of the order regarding the case.
Strengths of National Green Tribunal
- Over the years the National Green Tribunal has emerged as a critical role player in regulating environmental issues ranging from waste management to deforestation.
- By setting up an Alternative Dispute Resolution mechanism it helps in the evolution of environmental jurisprudence.
- It helps in reducing burdens on higher courts as it specifically deals with environmental cases that were decided by the civil courts earlier.
- It settles cases with lesser expenses and is less formal and a faster way of settling cases is also followed by the tribunal.
- It plays an important role in curbing damage to the environment.
- The Chairperson and the other members are not eligible for reappointment so they can give judgments without any pressure.
- It ensures whether the Environment Impact Assessment process is strictly observed.
Functions of the National Green Tribunal Act
- It is a body that has expertise in handling the disputes related to the environment which includes multi-disciplinary issues as well.
- The Code of Civil Procedure, 1908, shall not bind the Tribunal as it is to be guided by natural justice principles.
- The jurisdiction of the Tribunal shall provide speedy trials of the environment-related matters and help in reducing the burden of cases pending in the higher courts.
- The tribunal is mandated to dispose off environment-related issues within 6 months of filing the complaint.
- The National Green Tribunal need not follow all that is given under the Civil Procedure Code but can regulate the procedure by itself and applies the principle of natural justice in administering justice.
- It is required to apply principles such as sustainable development at the time of awarding compensation or giving orders.
- It should have in mind the principle that whoever is found polluting will have to pay i.e. the principle of ‘Polluter Pays’.
- The National Green Tribunal is not bound by the rules mentioned in the Indian Evidence Act.
- All the proceedings before the National Green Tribunal shall be accorded to the proceedings within the sections of the IPC.
- The tribunal is allowed to be a civil court to settle the matters.
- The Wildlife Protection Act, 1972 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 are out of the jurisdiction that is exercised by the tribunal. In this way, it hampers the functioning of the NGT and forest and wildlife are directly connected to the environment.
- One of the weaknesses of the Act is that any decision given by the tribunal can be challenged in various High courts under Article 226 through which it issues writs. It asserts the superiority of High Courts over the NGT and a case can be heard by the Supreme Court as well as a challenge to the decision given by the NGT.
- Some of the decisions of the NGT have also been criticized due to their reverberations on economic development and growth.
- There is no formula based calculation of the compensation claimed by anyone which also creates problems.
- The decisions pronounced by the NGT, sometimes, do not fully comply by the government and the stakeholders.
- The lack of financial resources has led to the pendency of cases within the tribunal due to which it is not able to dispose off cases within six months.
- Limited benches are there which serves as a hindrance in the justice delivery mechanism of the tribunal.
- The NGT suspended an order in which a steel maker company signed an MoU with the government of Odisha to set up a steel plant. It was done for the local communities and forest life in the area.
- It gave a judgement on the complete prohibition of open burning of wastelands including landfills for dealing with the issue of solid waste management in the country.
- It has applied the principle of ‘polluter pays’ directly while deciding cases.
- It ordered that all the diesel vehicles which are 10 years old will not be permitted in Delhi due to alarming air pollution.
- It never hesitated in imposing high penalties. For instance, a penalty of Rs. 5 crores was imposed in a case which came before the NGT.
- It imposed an interim ban on the polythene bags which were less than 50-micron thickness in Delhi.
- In a case, it held that even a foreign national can approach the NGT.
Can someone personally argue a matter before the NGT?
Yes, you can argue your case personally before the NGT without hiring a lawyer but it applies only when you are well acquainted with the circumstances and facts of the case. You need to have some knowledge about the law and its procedures. You can only use English while pleading your case before the National Green Tribunal and there are some guidelines regarding the dress, you need to follow all that to argue your matter.
Penalty for non-compliance of an NGT Order
In case of non-compliance with any direction issued by the NGT or any of its judgements, a penalty can be imposed in which the person may be given imprisonment for about three years or fine which may extend to Rs. 10 crores or even both. If someone still continues to disobey the orders given by the Tribunal then in such cases a fine of Rs. 20,000 may be imposed on a daily basis. The NGT is really strict when it comes to the non-compliance of its orders.
National Green Tribunal Judgements
Some of the important judgments of the NGT are as follows:
In Ms. Betty C. Alvares vs. The State of Goa and Ors., a complaint was made regarding the illegal construction in Goa. It was being done by a person of foreign nationality. The maintainability of the case was challenged even before the decision came. There were two objections raised in this case, they were:
- The person has no locus standi in the matter as she was not from India and thus he cannot file the petition before the tribunal under Article 21 of the constitution because she has not been given any of these rights as a non-citizen.
- The matter was barred by the limitation law and should be dismissed. The case was initiated in Goa but was then transferred to the National Green Tribunal.
The tribunal disagreed from the first objection in the case. The scope of Article 21 should not be narrowed. The court held that even if the complainant was not Indian then also the application was maintainable. A foreigner national can also approach the National Green Tribunal.
In Almitra H. Patel & Ors. vs. Union of India and Ors., Mrs. Amrita Patel had filed a PIL under Article 32 of the Constitution in which the petitioner sought the urgent improvement in the practices followed for the treatment of solid waste or garbage in India. The tribunal considered it one of the major problems faced by India over the last few years as lakh tonnes of garbage go without proper treatment and just dumped outside the city in the outskirts.
The tribunal noted the requirement to solve this problem and make it a source of power for the benefit of society. After hearing the case the tribunal issued over 25 directions. The tribunal asked all the states and UTs to strictly follow and implement the Solid Management Rules, 2016. A complete prohibition on open burning of waste on lands was made after the case.
In Samit Mehta vs. Union of India and Ors., an environmentalist filed an application regarding the damage caused by the sinking of a ship which was carrying coal, fuel oil and diesel. Due to the sinking, a thick oil layer was formed on the surface of the sea which caused damage to the marine ecosystem. The tribunal was of the view that negligence could be attributed to some of the respondents and they had not adhered to the pre-voyage principles. In this case ‘Polluter Pays’ principle was invoked.
In Save Mon Region Federation and Ors. vs. Union of India and Ors., an organization named Save Mon Region Federation filed an appeal along with a social activist for the clearance given to a hydro project worth INR 6,400 crore. The project was close to a wintering site for a bird Black-necked Crane, which is included under Schedule I species under the Wildlife Protection Act of 1972. It also comes under the ‘Threatened Birds of India’ literature by the appellants in this case.
It also had other endangered species such as the red panda, snow leopard, etc. The tribunal gave orders to suspend the clearance for the project. It also directed the EAC to make a new proposal for environmental clearance. The tribunal also directed the Ministry of Environment and Forest in the country to prepare a study on the protection of the bird involved in the case.
In the case of Srinagar Bandh Aapda Sangharsh Samiti & Anr. v. Alaknanda hydro Power Co. Ltd. & Ors., the principle of no-fault liability got invoked. In this judgement, the NGT relied on the ‘polluter pays’ principle and made a private entity liable to pay compensation. They were made the subjects to a code of environmental jurisprudence.
Criticism of National Green Tribunal
As soon as the NGT came into action after October 2010 it got stuck in number of controversies. 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.
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 a 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.
The fast expansion of Industries and the beginning of developmental activities in the country a large number of environmental issues have begun to come up. There are a number of instances in which these human activities have caused damage to the environment which in some cases cannot be recovered.
India is one of the nations in the world who give a high amount of importance to environmental conservation and its protection. There are already a number of legislations which have been passed by the Parliament to deal with the environment and forest conservation and their protection. The Green Tribunal adds another feather to this by specifically dealing with environmental issues.
There have been other such bodies like the NEAA and NETA which have failed to serve the purpose for which they were established but it will be unfair to compare them to the Green Tribunal. Failures committed in the past must not stop us from moving forward to new future beginnings.
For a country that has faced one of the world’s most horrifying industrial disasters i.e. the Bhopal Gas Tragedy, the setting up of a body like the National Green Tribunal obviously seems to be a brilliant idea. The critics of the Tribunal fear that it is going to deliver more of the same.
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 evoke the much-needed reform within the method the courts contend with environmental problems and additionally the method individuals understand environmental harm.
With the introduction of a system that supports and encourages environmental justice, the inexperienced assembly shall create the Indian nation a task model for its neighbouring nations of South-East Asia.
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186Th Report on Proposal to Constitute Environment Courts.
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