By Amol Pushp
Published On : August 19, 2021 12:52 IST
Introduction
With the increase of economic growth, and environmental awareness in the post liberalization period, the issues of ecology and social justice has come in the forefront of the social moments.
The Constitution of India, is embedded with the principles of Social and economic Justice. It also provides for environmental Protection under the Directive Principle of State Policy, wherein it is provided that “it is the duty of the state to protect the environment and to safeguard the forests and wildlife of the country and bestow upon the citizens the duty to protect the environment”[i]
Various International declarations, has time and again called for judicial specialization, of courts, with trained judges and lawyers to advance rule of law in environmental cases and to promote sustainable development.[ii]
The National Green Tribunal is a new green tribunal to exclusively deal with the environment related litigations. It was established by a statute[iii]in the year 2010 after a series of judgements by the Supreme Court of India, projecting a need for specialized courts having both the judicial as well as technical expertise, to protect and enhance the quality of environment.
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.”
In the wake of Covid-19 Pandemic, a rift has been created between NGT and Municipal Organisations as they have been finding it difficult to prioritize environment friendly measures over responding and protecting the residents of the Country.
Recently the Supreme Court refused to stay in the NGT proceedings in the matter of discharge of untreated sewage in sea and water bodies and directed that Municipal Corporation must make every effort to comply with the directions of the NGT by setting up the required facilities and upgrading existing facilities.
What was the need to establish National Green tribunal?
Although India had stringent and comprehensive environmental policies especially in the wake of 1984 Bhopal Gas tragedy, there have been gaps in the actual implementation of these laws due to institutional incompetency. Factors including corruption, negligence or
Under-performance by enforcement authorities, and lack of will to tackle superior industrial interests lead to poor performance of the machinery.
Due to this legislative incompetency, the judiciary had to step in to prevent environmental degradation. Various environmentalists, NGOs and affected citizens knocked the door of judiciary by filing Public Interest Litigations.
In the case of Indian Council for Enviro-Legal Action Vs Union of India(1996)[iv]. The court held the following: –
- The enactment of environmental protection laws is not enough to prevent environmental degradation.
- The enforcement of the said laws has been tardy.
- Even though it is an executive function to see the day-to-day enforcement of the laws, the courts out of necessity have to pass orders for enforcement of the same for the protection of the fundamental rights of the people.
The Court gave effect to Articles 48A, 51A(g) and 21 by citing them as mutually complementary, and issued directions in environmental cases. In continuance with this the Court expanded on the constitutional provisions with Human rights and the environment to develop a new environmental jurisprudence. This on done on the premise that no one can fully enjoy human life if he or she lacks the essentials for a reasonably healthy and active life.[v]
Along with this, there was a need to establish specialized courts to deal was first posited in the case of M C Mehta Vs Union of India (1986)[vi]and further influenced from the judgement of Indian Council for Enviro Legal Action Vs Union of India (1996)[vii]wherein the SC emphasized that the present judicial mechanism to deal with the environmental challenges and leads to years and years of delay, therefore there is a need for the creation of specialised courts to deal with all civil relating to environment. The courts would consist of trained persons/judicial officers and adopt summary procedures, and deal with the cases in an informed manner.
This decision was further supported in the case of AP Pollution Control Board Vs M V Nayudu (1999)[viii]where in the court held their previous dicta by upholding the importance of environmental courts for providing adequate judicial and scientific inputs.
As a result of this the Law commission undertook a study and strongly advocated to establish ‘Environment Courts’ providing various reasons:
- The inadequacy of the judges to provide the scientific and technical aspects of environmental issues,
- Maintain a proper balance between sustainable development and regulation of pollution by industries;
- The need to develop jurisprudence in the branch of environmental laws in accordance standards, scientific and technological developments, treaties and conventions.
- To uphold the principles enshrined in Articles 21, 47, 48A and 51A (g) of the Constitution of India.
Thus,India established an environmental courts after taking referring to few developed countries like Australia, Sweden, UK.
How does National Tribunal operate?
- Structure
The National Green Tribunal was established on 18thOctober 2010, by National Green Tribunal Act, 2010 replacing the former National Environmental Appellate authority and has wider Powers. The principle bench is set up in New Delhi, the other benches are in Bhopal, Chennai and Kolkata. Each bench has specified jurisdiction covering different states.
- Composition
The Chairperson is appointed from the judges of the Supreme Court or High Court, who has the authority to invite experts in related fields if the case requires. The Chairperson along with the central government has the authority to make rules governing the procedures of the tribunal. The tribunal consist of minimum 10 and maximum 20 members appointed usually from different high courts and Supreme Courts , The same number of Subject experts are also appointed, with professional qualification and minimum 15 years of experience.
- Jurisdiction
The tribunal has original as well as appellate jurisdiction to hear all civil cases relating to environment as well as questions linked to implementation of laws listed in Schedule I of the NGT Act. This includes; –
- 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.
Any appeal against the order of the tribunal lies against the Supreme court, generally within ninety days from date of communication.
Cases relating to NGT
- Environmental Consequences Affecting the Community At Large
Rayons-Enlightening Humanity Vs Union of India[ix]
Wherein the application was filed by an NGO against the operation of Municipal solid waste, by MSW management plant at Rajau-Paraspur, Bareilly. The tribunal held that the plant was very close to the residential area and the housing societies, and the foul smell arising from the waste is affecting the air quality and the health of the residents.
- Damage To Environment Or Property
Goa Foundation Vs Union of India[x]
In this case two NGOs in Goa approached the tribunal to sought directions requiring the state government to take steps for the conservation and protection of another World Heritage Site, the Western Ghats. The Union of India urged that the case is not maintainable by the Tribunals, NGT lacked jurisdiction. The judgement held that Non-performance of the statutory obligation attracted the jurisdiction of the Tribunal under the NGT Act.
- Broad Damage To Public Health
Supreme Court Group Housing Society through its Secretary Vs All India Panchayat Parishad (2012) [xi]
This case brings out the ‘damageto public health’ aspect of the tribunal. Here the Noise Pollution (Regulation and Control) Rules 2000 was not implemented effectively by the state.It was put forward that the noise pollution from loudspeakers music and public-address systems during weddings, etc affected the health and limited the sleep of residents, particularly infants and the aged. The NGT decided that the Noise Pollution (Regulation and Control) Rules 2000 was breached and because of this people’shealth is affected and would therefore offend Article 21 of the Constitution if it exceeds a reasonable limit.
- Environmental Consequences Relating To Specific Activity Or A Point Of Source Of Pollution.
Vijay G Vaidya Vs Union of India (2014)[xii]
In this case the NGT allowed an application, where air pollution was caused due to improper handling of large quantity of coal by depots. The NGT ordered to adopt various precautionary measure to control the dust, and preventive measures to stop dust from coal-handling activities reaching school premises.
Conclusion
The establishment of the National green tribunal has undoubtedly been a positive step in the arena of accountability and transparency of environmental laws and furthering its implementation. With the appointment of judicial as well as technical members has not only improved the problem-solving but the policy-creation approach as well. The judicial and technical members of the NGT, uses their knowledge within judicially controlled forum to produce an accountability focused approach.
So that the balance of power sides with the human welfare and the ecology rather than governmental and local authorities, companies or multinational corporations.
It has also increased the Public access to environmental justice by widening the definition of ‘aggrieved party’. With the speedy disposal of cases, it is enhancing the public expectation in the judicial system.
However, the NGT still suffers from infrastructural challenges due to limited co-operation and hesitant operational commitment of both federal and state governments. The benches of NGT are more often than not understaffed, has inadequate logistic, and the housing is inappropriate for bench appointees.
The NGT has limited regional benches, only in big cities and therefore is less accessible to people in smaller regions. The decisions of NGT is also criticised for being obstacles in the way of growth in a developing country.
Therefore, measures to fill in those gaps should be taken for the smoother working of the tribunal, by necessitating immediate staffing of the vacancies, and expansion of regional benches. If The NGT is utilised in an effective way, perfect equilibrium could be reached between development and ecology.
[i]The Constitution of India, art. 48A.
[ii]United Nations Environment Programme (2005); United Nations Environment Programme (2015).
The national Green Tribunal Act, 2010; Johannesburg Principles (2002); Rome Symposium (2003); BhurbanDeclaration (2012); Asian Development Bank (2012); Asian Development Bank (2015).
[iii] The national Green Tribunal Act, 2010.
[iv]Indian Council for Enviro-Legal Action Vs Union of India(1996) 5SCC 28
[v]Shue, H (1996) Basic Rights (Princeton UP).
[vi]M C Mehta Vs Union of India (1986) 2 SCC 176.
[vii] Ibid. at 4
[viii]AP Pollution Control Board Vs M V Nayudu(1999) 2 SCC 718
[ix]Rayons-Enlightening Humanity Vs Union of India Application no. 86/2013 (Judgment 18 July2013)
[x]Goa Foundation Vs Union of India (2014) 6 SCC 590(Judgment 18 July 2013)
[xi]Supreme Court Group Housing Society through its Secretary Vs All India Panchayat Parishad (Judgment 18 December 2012)
[xii]Vijay G Vaidya Vs Union of India (Judgment 21 October 2014)