“A critical Appraisal of the National Green Tribunal Act, 2010” 2010”
Submitted by: Athira S Kumar 584 9TH Semester NUALS
INTRODUCTION In the aftermath of various environmental disasters and cases, there was a need to step up a mechanism for Environmental Justice. The Bhopal gas disaster in 1984, had led the Supreme Court to emphasize on the need for constitution of environmental courts. In Charan Lal Sahu v. Union of India 1 the court opined that “under the existing civil law damages are determined by the civil Courts, after a long drawn litigation, which destroys the very purpose of awarding damages so in order to meet the situation, to avoid delay and to ensure immediate relief to the victims, the law should provide for constitution of tribunals regulated by special procedure for determining compensation to victims of industrial disaster or accident, appeal against which may lie to this Court on the limited ground of questions of law only after depositing the amount determined by the Tribunal.” The Supreme Court of India at various instances also has opined that as environment cases involve assessment of scientific data it would be desirable to have the setting up of “environmental courts on a regional basis with a professional judge and two experts keeping in view the expertise required for such adjudication.”2 Again in the judgment of Indian Council for Enviro- Legal Action v. Union of India3, the Supreme Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner. The Parliament of India enacted two specific laws- the National Environment Tribunal Act, 1995 for adjudicating on claims and compensation for victims of environmental disasters and the National Environment Appellate Authority Act, 1997. The National Environment Tribunal never came into functioning while the National Environment Appellate Authority (herein referred as NEAA) functioned with full composition only for 3 years4. The NEAA had a very limited mandate and served as an appellate body against the decision of the Ministry of Environment and Forest granting environment clearance to a project. These two tribunals were nonfunctional and existed only on paper. This issue was also considered by the Law Commission of India and dealt at length in its 186th Report. 4 Law Commission was guided by the model of environmental court established in New Zealand and the Land and
1 2
AIR 1990 SC 1480 M.C. Mehta v. Union of India, AIR 1987 SC 965-967; Indian Council for Enviro Legal Action v. Union of India,
1996 (3) SCC 212; AP Pollution Control Board v. M V Nayudu, 1999 (2) SCC 718; A P Pollution Control Board v. M V Nayudu II, 2001 (2) SCC 62 3 4
(1996) 3 SCC 212 Law Commission of India, 186th Report, Proposal to Constitute Environment Courts, September 2003
Environmental Court of New South Wales and also the observations of the Supreme Court in four judgments, namely, M.C. Mehta v. Union of India 5, Indian Council for Environmental Legal Action v. Union of India 6; A.P. Pollution Control Board v. M.V. Nayudu 7 and A.P. Pollution Control Board v. M.V. Nayudu II 8. To give effect to these exhortations contained in the global declarations on environment and to provide for a specialized forum for effective and expeditious disposal of cases arising out of enforcement of environmental laws in the country, the Indian Parliament has enacted, the National Green Tribunal Act, 2010 which has come into force on 2 June 2010.
OBJECTIVE The National Green Tribunal Act, 2010 is an Act passed by the Indian Parliament for the establishment of National Green Tribunal (NGT) for the effective and expeditious disposal of cases that relate to environmental protection and conservation of forests and other natural resources. 9 It aims at the enforcement of any legal right relating to environment and granting relief and compensation for damages to persons or property and other matters connected to the safety and preservation of the environment. 10 The tribunal repeals and replaces the earlier National Environment Tribunal Act, 1995 and the National Environment Appellate Authority 1997 and all cases pending before them stand transferred to this tribunal. This act was enacted as a result of the application of Article 21 of the Constitution of India.11 The idea of a dignified life and not mere animal existence was celebrated in the
landmark case of Francis Corallie v Union of India, 12 following which cropped up much case law that extended the ambit of Article 21.
And a pleasant consequence was the many
acclaimed environmental cases that highlighted the need for the preservation of the environment to also be a right under Article 21. Thereby Article 21 also assures the citizens of India the right to a healthy environment. The tribunal so established by the Parliament 5
AIR 1987 SC 965 (1996) 3 SCC 212 7 [1999] 2 SCC 718 8 [2001] 2 SCC 62 9 http://www.indiaenvironmentportal.org.in/node/296384 6
10
Report: 203rd report on NGT bill, 2009 by Parliamentary standing committee on S &
http://www.indiaenvironmentportal.org.in/node/300742 11
“
No person shall be deprived of his life or liberty.” 1981 AIR 746
12
through the usage of Article 21 is a special fast- track court to handle the expeditious disposal of other cases pertaining to environmental issues. On 18 October 2010, Justice Lokesh Singh Panta, became its first Chairman. Currently, the chair is presided over by Justice Sawanter Kumar since 20 December 2012. The Act is also an endeavor of the Parliament under Article 253 of the Constitution read with Entry 14 of List I of Schedule VII to fulfill the obligation of India towards Stockholm Declaration, 1972 13 in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment and Rio Declaration, 199216in which India participated, calling upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage.
Salient Features of the Act ESTABLISHMENT AND COMPOSITION OF THE TRIBUNAL The Act empowers the Central Government to establish, by notification with effect from such date as may be specified therein, the Green Tribunal to exercise jurisdiction, powers and authority that may be conferred on such Tribunal by or under this Act. 14 The Central Government is empowered to specify, by notification, the ordinary place or places of sitting of the sitting. The NGT comprises a chairperson, judicial officers and environmental expert members which will hear the cases regarding infringement of environmental protection and rights around in the country and have the powers to decide and disperse compensations. The Tribunal shall consist of not less than ten but subject to maximum of twenty full- time expert members as the Central Government may notify from time to time. 15 The chairperson has been authorized to invite one or more expert members to assist the court in a particular case before the Tribunal.16 The Act stipulates that a person shall not be qualified for appointment as the Chairperson or judicial member of the T nmribunal unless he is, or has been, a judge of the Supreme Court of India or Chief Justice of a High Court. However, a person who is or has been a judge of a High Court can be appointed as a judicial member. 17 The Act states that the 13
15.Stockholm Declaration of United Nations Conference on Human Environment, June 5-16, 1972, UN Doc A/Conf.48/14/Rev.1 [1973] 14 Section 3, National Green Tribunal Act, 2010 15 Section 4(1), National Green Tribunal Act, 2010 16 Section 4(2), National Green Tribunal Act, 2010 17 Section 5(1), National Green Tribunal Act, 2010
Chairperson of the Tribunal may be appointed by the Central Government in consultation with the Chief Justice of India.18 The other members shall be appointed by the Central Government on the recommendation of such Selection Committee as may be prescribed. 19 Initially, the NGT is proposed to be set up in five places- Delhi, Bhopal, Pune, Kolkata and Chennai. It is been criticized that the institutional structure is framed in such a way that the qualifications for a technical member are more favourable to bureaucrats. The act considers higher degrees in Science, Technology and Administrative experience but no provision for ecologist, sociologist, environmentalist, civil society or NGO etc.
JURISDICTION AND POWERS The NGT shall hear the disputes arising from the enforcement of any legal right relating to environment and shall also include violation of specific statutory environmental obligations by an individual firm, company, local authority etc. The jurisdiction to hear a case involving environmental matters is wider than the one conferred on the National Environmental Appellate Authority which has now been replacing by the new Act. The Act confers on the Green Tribunal to hear initial complaints 20 as well as appeals21 from decisions of authorities under various environmental laws. The NGT will also function as appellate authority to persons aggrieved by any order or decision made under the following Acts: a. Water (Prevention and Control of Pollution) Act, 1974 b. Water (Prevention and Control of Pollution) Cess Act, 1977 c. Forest (Conservation) Act 1980 d. Air (Prevention and Control of Pollution) Act, 1981 e. Environment (Protection) Act, 1986 and f. Biological Diversity Act 2002. Power is given to the Central Government under Section 34 to either to add a new Act to or delete any Act from, this by notification amending the same. The Act doesn’t provide jurisdiction to Tribunal over all laws related to environment such as Wildlife Protection Act (1972), Indian Forest Act 1927, Scheduled Tribes (Recognition of Forest Rights Act) 2005 and various other state legislations. It has been criticized that the Tribunal doesn’t have
18
Section 6(2), National Green Tribunal Act, 2010 Section 6(3), National Green Tribunal Act, 2010 20 Section 14 and 15, the National Green Tributnal Act, 2010 21 Ibid, Section 16 19
any Suo motto power to initiate a proceedings against anyone even if matters of national interest.
The Tribunal is not bound by the procedure laid under the Code of Civil Procedure, 1908, but would be guided by the principles of natural justice 22 and sustainable development. However, the Tribunal will have all the powers of a civil court 23 under the Civil Procedure Code, 1973. Also, it is to be noted that civil court shall not entertain cases which the Tribunal is competent to hear. 24 It is a tribunal and hence a quasi judicial court (though deemed to be judicial proceedings) 25 with the authority to pronounce judgments on the basis of evidence. It is also not bound by the Indian Evidence
Act, 1872. The principle of precautionary principle and the polluter pays principle is also to be applied while passing a judgment in the NGT. Also, the decision of the NGT is binding on the parties.26 Further no injunction in respect of any action taken or to be taken by or before the Tribunal shall be granted by civil court. 27 The compliant so filed before the tribunal must be disposed within six months. Further, it can only deal with civil cases and it excluded criminal offences. The NGT has the power compensation to the victims of environmental degradation or damage and there is no limit for the compensation so granted . This compensation or relief so ordered to be paid by the tribunal is to be credited to the Environmental Relief Fund 2008 established under the Public Liability Insurance Act 1991. As for a person who fails to comply with the order so passed by the tribunal shall be punishable with imprisonment, which may extend to 3 years or with a fine, which may extend to Rs. 10 crores. If the concerned person is a company, the penalty may extend to Rs. 25 crores. A further appeal lies from these tribunals to Supreme Court if a person feels he has been aggrieved by any of the decision of the NGT .28
22
Id. Section 19(1) Section 19(4), National Green Tribunal Act, 2010 24 Section 29, National Green Tribunal Act, 2010 25 A Primer on National Green Tribunal Act, Mr. S. Ganesan, Chairman of International Treaties Expert Committee, Indian Chemical Council (ICC) 26 Section 21, National Green Tribunal Act, 2010 27 Rio Declaration, supra note 19, Principle 15 and 16; Agenda 21, June 14 1992, UN Doc A/Conf.151/26 (1992). 23
28
Section 22, National Green Tribunal Act, 2010; Act: National Environment Appellate Authority act,
1997 , http://envfor.nic.in/legis/others/envapp97.html ;Act: Environment (Protection) Act, 1986, http://www.envfor.nic.in/legis/env/env1.html
The application of for adjudication of the dispute is made within a period of six months from the date on which the cause of action for such dispute first arose. However, the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. 29 Under the Act, the Proceedings before the Tribunal shall be deemed to be judicial proceedings.30 While the Act envisages the conferment of wide jurisdiction on the Green Tribunal, it also, at the same time, seeks to restrict the scope of its jurisdiction only to matters involving substantial, questions, relating environment. The term ‘substantial question relating to environment’ is defined under the act 31 shall include an instance where:(1) There is a direct violation of a specific statutory environmental obligation by a person by which,a. the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or b. the gravity of damage to the environment or property is substantial; or c. the damage to public health is broadly measurable; (2) The environmental consequences relate to a specific activity or a point source of pollution. One criticism that has cropped up in relation to the NGT Act is that while the right to Article
21 of the constitution is a fundamental right guaranteed to individuals, the Act seeks to deny to the same individuals and groups of individuals the right to question any environmental consequence that affects them unless it also affects the community at large or public health. It means NGT Jurisdiction is confined to where community at large is affected by specific form of activity such as pollution excluding individual or Group of individuals who deserves as much protection as to Community at Large. However, individuals can approach the court when the damage to the environment or property is substantial. It is submitted that the definition of the expression “substantial question relating to environment “as given in the Act which provides for statutory exclusion of individuals may not stand judicial scrutiny, for, the right to healthy environment, in its wide amplitude, subsumes all aspects of environmental
29
Section 14(a), National Green Tribunal Act, 2010 Ibid, Section 19(5) 31 Sec 2[m], National Green Tribunal Act, 2010 30
degradation.32 Again, it is doubtful whether the jurisdiction of the High Courts which are constitutional courts can be excluded either by ordinary legislation or by a constitutional amendment as their power of judicial review is a part of the basic structure of the Constitution.33
JUDICIAL REMEDY The Act envisages various reliefs. It says that the Tribunal may, by an order, provide relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule-I to the Act, including accident occurring while handling any hazardous substance. It may also order the restitution of the property damaged and the restitution of the environment for that areas as the Tribunal may think fit. 34 The relief under this Act is an addition to the relief given under the Public Liability Insurance Act, 1991.35 The Act seeks to discourage delayed applications for relief. If stipulates that no application for the above mentioned categories of relief would be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such relief first arose. However, the Tribunal may allow further sixty days for the application to be filed if it is satisfied that the applicant was prevented by sufficient cause from filing such application.36 The Act obligates the claimants under the Act to intimate to the Tribunal about the application filed to, or as the case may be, compensation or relief received from, any other court or authority. 37 The Act provides for an expeditious relief and obligates the Tribunal to endeavor to dispose of the application or, the case may be, an appeal finally within six months from the date of filing the application, or, as the case may be, the appeal, after providing the parties an opportunity to be heard. 38 The Act provides that an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by — (a) any person who has sustained the injury; or (b) the owner of the property to which the damage has been caused or (c) all or any of the legal representatives of the deceased where death has resulted from the environmental damage or
32
National Green Tribunal Act, Chapter 11 The National Green Tribunal Act, 2010: An Overview, Aruna B Venkat, Associate Professor of Law, NALSAR University of Law, Hyderabad 34 Section 15(1), National Green Tribunal Act, 2010 35 Section 15(2), National Green Tribunal Act, 2010 36 Section 15(3), National Green Tribunal Act, 2010 37 Section 15(5), National Green Tribunal Act, 2010 38 Section 18(3), National Green Tribunal, 2010 33
(d) any agent duly authorized by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or (e) any person aggrieved ; including any representative body or organization. In addition, the Central Government or a State Government, or a Union Territory administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local Authority or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time in force, can also move the Tribunal. 39
PENALTY 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. 40 The act adopts a tough posture against companies. 41 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 be liable to be proceeded against and punished accordingly. This is a commendable inclusion in the bill and at least it will instill sense of fear among higher officials of company to pay due attention to environmental performance of their company. But the accused can take defense that he did not have the knowledge or he has taken all the due care to prevent the commission of the offence. 42 Hence, this strong inclusion is diluted.
INSTANCES The National Green Tribunal (NGT) recently criticized the two-stage forest clearance granted by the Union Ministry of Environment and Forests (MoEF) to the proposed steel plant of South Korean steel giant, POSCO, in Odisha. The present NGT Chairperson Justice Swatanter Kumar observed that “The Forest (Conservation) Act does not have any provision on two-stageforest clearance. It will have a far-reaching effect.” The initial environment clearance to the plant was granted in 2007 by MoEF. Following allegations that the ministry
39
Section 18(2) Section 26(1) 41 Section 27 42 Proviso to Section 27 40
had not adhered to Forest Rights Act, MoEF set up the N C Saxena committee in July 2010 to review the clearance. Despite the committee’s report indicating that provisions of the Forest Rights Act had been violated, MoEF issued final order on January 31, 2011 and gave environment clearance to POSCO. The present appeal against MoEF’s clearance to the steel project was filed before the National Green Tribunal (NGT) Act of 2010 and challenges the final order of the MoEF, which imposes additional conditions to the original environmental clearance granted in respect of steel-cum-captive power plant project On sand mining Reaffirming February 27, 2012, Supreme Court’s order 43 banning any kind of mining of minor minerals, including sand, without environmental clearance from the Union Ministry of Environment and Forests, the NGT on 5 August 2013 issued a restraint order against all sand mining activity being carried out across the country without environmental clearance. The bench comprising justices Swatenter Kumar, U D Salvi, S N Hussain, and experts, D K Agarwal and Ranjan Chatterjee said that removal of minerals from river beds is posing a serious threat to the flow of rivers, survival of forests upon river banks and most seriously to the environment of river banks, especially those of the Yamuna, Ganga, Chambal, Gaumti and Revati rivers. The NGT bench also observed that “majority of persons carrying out mining activity of removing mineral from the river bed have no license to extract sand; they also have not obtained clearance from Ministry of Environment and Forests or the State Environment Impact Assessment Authority (SEIAA) at any stage in terms of the Environment (Protection) Act, 1986 (EP Act, 1986) as well as Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) act, 1974. 44 While the bench initially restrained illegal sand mining on the beds and banks of rivers Yamuna, Ganga, Hindon, Chambal, Gomti, amongst others, but later modified its order saying the issue of illegally removing sand has nationwide implications. 45 On August 14, 2013, The National Green Tribunal (NGT) decided to set up an expert committee on illegal sand mining to carry out any orders that it may pass in future and to prepare a comprehensive report on the issue. The committee will also carry out a comprehensive zoning and mapping to delineate areas where mining could be permitted and to what extent. The tribunal specifically banned beach 43
"MoEF's clearance must for mining minor minerals, too: Supreme Court". Down to Earth. Mar 7, 2012. Retrieved 05 August , 2013. 44 "No sand mining without environment clearance: NGT ".Down to Earth. Aug 5, 2013. Retrieved 05 August , 2013. 45 "NGT Restrains Sand Mining Across The Country ".Tehelka. Aug 5, 2013. Retrieved 05 August , 2013.
sand mining in the coastal States citing specific instances of State of Tamil Nadu - where 2,30,000 tonnes beach sand mineral has been quarried in Vaippar village without permission of any Government Authority and State of Kerala. 46
CONCLUSION and SUGGESTION The Act is considered a critical step in capacity development because the Act strengthens the framework of global environmental governance. The judiciary has been the backbone for developing a large body of environmental jurisprudence, even though policy enforcement has been weak. A National Environment Protection Authority is also to be established shortly to monitor the implementation of environment laws. Coming to dark side of the Act, the rules relatin g to constitution and composition of selection committee tilts the balance of power in favor of Central Government. Keeping in view the repeal of the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 by the present Act 47, it is submitted that legislation should become operational in letter and spirit to provide much needed relief against offences/complaints for degradation of environment. It is further suggested that in order to achieve more fruitful result the environment court should be established in each state however, in case of smaller States and Union Territories, one court for more than one State or Union Territory may serve the purpose. It is not uncommon for a statute to take a few years before it grows into a strong and extensive statute. It is only through interpretations and implementation over the years that the strength and shortcomings become clear. The National Green Tribunal Act, 2010 is in a nascent stage now and it is only with time that its practicality and efficiency will be exposed. .
46
"Green Tribunal bans beach sand mining". The Hindu. August 14, 2013. Retrieved 15 August 2013. Sec 38(1), National Green Tribunal Act, 2010
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