What is National Green Tribunal?

By Surbhi Jain

Introduction

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

In the 1992 summit of the United Nations Conference on Environment and Development, India vowed the taking part to offer judicial and administrative treatments to the sufferers of the pollution and different environmental damage.

There lie many motives at the back of the putting in place of this tribunal. After India’s flow with Carbon credits, such tribunal might also additionally play a critical function in making sure the manipulate of emissions and retaining the preferred levels. This is the primary frame of its type this is required via way of means of its figure statute to use the “polluter pays” principle and the principle of sustainable development.

This court can rightly be called ‘special’ due to the fact India had this system following Australia and New Zealand. Delhi Pollution Control Committee (DPCC) functions under the act of (NGT).

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.

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.

National Green Tribunal (NGT)

• It is a specialised body set up under the National Green Tribunal Act (2010) for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.
• With the establishment of the NGT, India became the third country in the world to set up a specialised environmental tribunal, only after Australia and New Zealand, and the first developing country to do so.
• NGT is mandated to make disposal of applications or appeals finally within 6 months of filing of the same.
• The NGT has five places of sittings, New Delhi is the Principal place of sitting and Bhopal, Pune, Kolkata and Chennai are the other four.

Structure of NGT

• The Tribunal comprises of the Chairperson, the Judicial Members and Expert Members. They shall hold office for term of five years and are not eligible for reappointment.
• The Chairperson is appointed by the Central Government in consultation with Chief Justice of India (CJI).
• A Selection Committee shall be formed by central government to appoint the Judicial Members and Expert Members.
• There are to be least 10 and maximum 20 full time Judicial members and Expert Members in the tribunal.

Composition

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. 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 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

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.

Qualification 

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.

Resignation

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.

Powers

The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:

• 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 pertaining only to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT. Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc.

Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located.

Procedure for filing an Application or Appeal

The NGT follows a very simple procedure to file an application seeking compensation for environmental damage or an appeal against an order or decision of the Government. The official language of the NGT is English.

For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. In case where compensation is being claimed, the fee will be one percent of the amount of compensation subject to a minimum of Rs. 1000/-.

A claim for Compensation can be made for:

• Relief/compensation to the victims of pollution and other environmental damage including accidents involving hazardous substances;
• Restitution of property damaged;
• Restitution of the environment for such areas as determined by the NGT.

No application for grant of any compensation or relief or restitution of property or environment shall be entertained unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.

Penalty (Sec 26)

This Act bestows ample power on the Green Tribunal if its orders are not complied with; to impose penalty which may be either three years prison or up to ten crores and for companies it may extend up to twenty five crores. The act adopts a tough posture against companies.

If it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall liable to be proceeded against and punished accordingly. T

his is a commendable inclusion in the bill and at least it will in still a sense of fear among higher officials of company to pay due attention to environmental performance of their company. But the accused can take defence that he did not have the knowledge or he has taken all the due care to prevent the commission of the offence. Hence, this strong inclusion is diluted.

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.,^[1]  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.,^[2] 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.

Save Mon Region Federation and Ors. vs. Union of India and Ors^[3]

In this case, an appeal was filed through an organization named Save Mon Region Federation in conjunction with a social activist in opposition to the grant of Environmental Clearance given to an INR 6,400 crore hydro venture.

The stated task was located near the wintering site for a bird named Black-necked Crane, which is a Schedule one species under the Wildlife Protection Act, 1972 and comes under in the ‘Threatened Birds of India’ literature produced via way of means of the Appellants.

Apart from the birds, the vicinity turned into domestic to numerous different endangered species inclusive of the snow leopard, red panda, Arunachal macaque, etc.

The Tribunal proactively suspended the Environmental Clearance granted to the Project.

The Tribunal directed the EAC to make a fresh appraisal of the thought for environmental clearance furnish and requested the Ministry of Environment and Forest to make a separate take a look at the safety of the stated bird.

Art of living case on Yamuna Floodplain

Fact

• Sri Sri Ravishankar’s Art of Living Foundation (AoL) organised a 3 day World Culture Festival (WCF) in March 2016.
• The event is said to have caused severe environmental & ecological damaged to the Yamuna floodplains.
• National Green Tribunal (NGT) has now given its final verdict on the matter and has upheld the guilt of AoL.

How did the issue evolve?

• AoL was initially granted permission for organising the event WCF event on the banks of river Yamuna.
• The permission was on the condition that AoL would be held responsible for restoration of the allocated space after the event.
• The event had caused “serious pollution on the floodplain of the river” as nearly 35 lakh people had gathered.
• A case was initiated in the NGT with stress on the ‘Polluters Pay Principle’.

What were the expert committee findings?

• Initially, the NGT had levied Rs 5 crores as damage compensation.
• Subsequently, NGT-appointed expert committee noted that the damages would cost over Rs 42.02 crores.
• It was also estimated that restoration could take up to 10 years.
• The expert committee had found that about 420 acres of floodplains of the Yamuna had suffered adverse ecological impact.
• Further, “changes in topography, habitat, and loss of wetlands, vegetation and biodiversity” have been observed.
• Also, degradation in the nature of soil, toxic substances and substrata degradation have been established.

Judgement

• AoL argument that lack of notified wetlands around Yamuna, was rejected as not being notified doesn’t mean absence of wetlands.
• Notably, in large parts of the country the wetlands as of now have neither been identified nor notified in accordance with law.
• The Delhi Development Authority (DDA) has also been pulled-up as it had failed to oversee compliance with the environmental laws.
• But despite this comprehensive estimate of damages, NGT has resisted from enhancing the fine amount from the earlier 5 crores.
• While, the tribunal has ruled for proceeding with the restoration work, AoL has stressed that it intends to go on appeal to the SC.

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.

Interestingly, in its judgement, the tribunal did not determine the right of the organizers to organize the occasion. It focused on the pollutants that resulted from the occasion and the way this trouble might be settled according to the law.

Conclusion

National Green Tribunal is thus a new beginning for India’s struggle between development and environment. Despite some inherent flaws, NGT is a significant initiative by the Government and the rightful implementation of the law would certainly usher the country towards the path of Sustainable Development and guarantee a harmonious relationship between the environment and society.

Reference

webinar: National Green Tribunal and its Functioning” by Prof. Dr. Gitanjali Gill

scribd.com

1. Ms. Betty C. Alvares vs. The State of Goa and Ors.186Th Report on Proposal to Constitute Environment Courts ↑
2. Almitra H. Patel & Ors. vs. Union of India and Ors SLP (civil) No(s). 12065/2009 ↑
3. Save Mon Region Federation and Ors. vs. Union of India and Ors on 14 March, 2013 ↑