The National Green Tribunal, also known as the ‘Environment Court’ is considered as a protector of an Indian citizen’s fundamental right to a healthy, and safe environment, which forms a vital part of fundamental rights of the citizens under Article 21 of the Indian Constitution. It is evident that India ranks third on the world’s list of the most polluted countries. In such an event, the National Green Tribunal must exercise its jurisdiction and power to penalise and incriminate the entities and individuals responsible for environmental pollution. However, after a decade of the genesis of the National Green Tribunal, the Tribunal has faced severe interferences by Government authorities and itself has formulated policies which violate the right to a healthy and safe environment. The present article summarizes the aspects which have led to the shift of the Tribunal to a mere oversight body on account of such interferences and policies.
India’s most grave ecological issues are land damage, water deficiencies, and air and water contamination. Regardless of three many years of flood-control programs that had just cost an expected $10 billion, floods in 1980 had claimed nearly 2,000 lives, massacred tens of thousands of cattle, and impacted 55 million individuals on 11.3 million hectares (28 million sections of land) of land. Because of uncontrolled dumping of synthetic and modern waste, manures, and pesticides, 70% of the surface water in India is contaminated.
Safe drinking water is accessible to 95% of urban and 79% of rural inhabitants. Air contamination is generally serious in urban areas. Yet, even in rural areas, the consuming of wood, charcoal, and fertilizer for fuel, combined with dust from wind erosion during the dry season, poses a significant problem. Industrial air contamination undermines a portion of India’s architectural fortunes, encompassing the Taj Mahal in Agra, some portion of the exterior of which has been dulled and pitted via airborne acids.
The most noticeably awful modern catastrophe in India was a harmful gas spill from a Union Carbide pesticide plant in Bhopal, the capital of Madhya Pradesh, killed over 1,500 people and harmed tens of thousands of others in December 1985. In 1992 India had the world’s 6th most elevated level of modern carbon dioxide emanations, which totalled 769 million metric tons, a for per capita level of 0.88 metric tons.
The above statistics find its relevance from the Nations Encyclopaedia describing the environmental conditions of India in a brief and summary manner. Environmental hazards are a concern and the process of tackling the same has been a journey for the Government as well as for the judicial bodies.
Genesis Of The Environmental Tribunals In India
Since the mid-1970s-80s, India adopted a pro-active approach towards the developing and ensuing hazards in the wake of industries, development of government projects, urbanization, measures for improving the standard of living of citizens, etc. which ultimately lead to the implementation of the important environmental laws viz. The Environment (Protection) Act, 1986; The Forest (Conservation) Act, 1980; The Wildlife Protection Act, 1972; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981 and the recent Noise Pollution(control and regulation) rules, 2000. The Constitution under Part IVA (Art 51A-Fundamental Duties) casts an obligation on each citizen of India to ensure and improve the indigenous habitat including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.
Moreover, the Constitution of India under Part IV (Art 48A-Directive Principles of State Policies) stipulates that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Furthermore, in 1992, India became a signatory to the convention on sustainable development and the Rio Declaration on Environment and Development, which emphasized on national law regarding liability and compensation for environmental damages for the pollution victims.
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, every individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”.Principle 10 of the Rio Declaration of 1992
Further, after the advent of the famous LPG (Liberalisation, Privatization and Globalization) the issues of ecology and social justice came into sharp focus along with the surge of several social movements for the protection of human rights and environment and on account of the same, National Environmental Tribunal Act (NETA) was passed in 1995. The main objective of the said Act was to accommodate exacting obligation for damages emerging out of any accidents materializing while handling any hazardous substance. And for the institution of a National Environment Tribunal for effective and expeditious disposal of cases emerging from such accidents; with the end goal of providing help and compensation for damages to people, property and the environment and issues associated in addition to that or accidental to that.
Two years later, in 1997, the Government passed the National Environment Appellate Authority Act, 1997 (NEAA), to provide for appeals only against orders granting environmental clearance by the Central or State governments. NEAA was passed specifically to determine whether specific industries, operations or processes or class of industries, operations or processes shall be or shall not be carried out under the Environment (Protection) Act, 1986. The Ministry of Environment and Forests, Government of India established NEAA to address the environment clearances and related issues required in some restricted regions.
However, the authority became defunct, and the Act repealed with the enactment of the National Green Tribunal Bill 2009. This lead to the genesis of the National Green Tribunal (NGT) Act, 2010 and ultimately the formation of the National Green Tribunal (NGT) in India for the effective and expeditious disposal of cases relating to environmental protection, protection of forests and other natural resources.
The NGT was meant to deal exclusively with the environmental laws and to provide citizens with the right to environment. Initially, it was decided in the bill that the principal bench of the Tribunal will be set up in Bhopal along with four other circuit Benches. However, the principal bench of NGT is in Delhi, the national capital of India. The other branches are in Bhopal, Chennai, and Kolkata. Recently, the NGT started its Pune Circuit Bench. Pune Bench will have its jurisdiction over Maharashtra, Gujarat, Goa and Daman & Diu. Setting up of court in different parts of the country serve as an example of global principles of environmental justice translated at the local level. 1Swapan Kumar Patra & V. V. Krishna, National Green Tribunal and Environmental Justice in India, Geo-Marine Science J. Vol. 44(4) (2014)
Adjudication By The NGT
NGT has given its verdict in many significant environmental issues. The judgments include challenges to environment clearances, permission to start big projects and so on. There are several significant judgments, including the ban on the burning of plastics in open space, idol immersion and so on. The keyword analysis of cases shows that majority of cases are related to the objections on different environment clearances.
Section 14 of the NGT Act, 2010 imposes a mandate on the Tribunal to have jurisdiction over all civil cases where a substantial question relating to environment is involved. Such question consists of the implementation of the provisions of the enactment namely the Air Act, 1981, Water Act, 1974, Forest Act, 1980, Environment Protection Act, 1986 and the Biological Diversity Act, 2002. As the right to life under Article 21 also includes a right to a free and healthy environment, it is undoubtedly an obligation on the Tribunal to uphold this fundamental right.
However, as we complete a decade of the formulation of the National Green Tribunal, the question which arises is whether the Tribunal has been an effective champion in curbing environmental problems in India. In 2018, the Chairperson of the NGT, Mr Justice Adarsh Kumar Goel said the Tribunal would deal with only those cases which have significant questions relating to environment and ecology. While dealing with a petition seeking a stay on the construction of 70-storey Vrindavan Chandrodaya Mandir in Mathura by ISKCON (International Society for Krishna Consciousness) and asked the petitioner to approach authorities for its grievances.
While the merits and demerits of the petition are apparent on the face of it, the matter was adjudicated, a concern arose. Which is pertinent to note, where the Tribunal would hit the can down the road by selectively dealing with petitions relating to environmental problems. This leads to the Tribunal dismissing many cases at the first instance without going into the merits of the case. This would thereby cause curbing of the rights of citizens to have access to environmental justice.
Furthermore, the National Green Tribunal Act, keeps outside its ambit several other environmental hazards and dangers which need proper attention and focus by courts in India. For instance, in the case of Bio-medical Waste in India, the Government had passed the Bio-Medical Waste (Management and Handling) Rules, 1998 which provides for the constitution of 2 authorities known as the ‘Prescribed Authority’ and ‘Advisory Committee’. Reports state that Bio-medical waste in India has been poorly managed despite the prescribed authorities and several parts of the country lack proper Biomedical waste management system.
This had also led to an emergence of health hazards amongst citizens, and there is an urgent need to take actions for strengthening the existing system capacity, increase the funding and commitment toward safe disposal of Bio-Medical Waste. In such an event, bringing Biomedical waste treatment under the authority of the NGT would allow the NGT to keep a check and balance on entities which are involved in biological and medical activities. It will also give the power to the NGT to impose high costs on defaulting entities to deter from biomedical waste pollution.
Delegation of power by NGT
In the recent times, it is observed that the NGT has constituted numerous external committees to investigate various aspects of cases, to oversee and monitor the compliance of different environmental laws and rules, and to submit reports after that. For instance, The NGT had constituted a committee headed by a former Delhi High Court judge to look in the matter of over 50,000 industries in the Capital state that are allegedly running illegally in residential areas Staff Reporter, NGT forms committee to look into illegal industries.
Similarly, a Central Monitoring Committee was formed to develop and implement a national plan to makeover 350 river stretches across the country contamination-free as it has created a serious peril to the safety of water and environment.
This committee comprised of a representative of NITI Aayog; secretaries of Ministry of Water Resources, Ministry of Urban Development and Ministry of Environment; the director-general of National Mission for Clean Ganga and the Central Pollution Control Board chairman. This method of delegating all its essential powers and functions to external committees, with comparable structure and creation as the Tribunal, gives the feeling that the NGT is repealing its purview on cases relating to natural assurance.
Furthermore, these committees have an inclusion of various members of the Executive and the members of different Government Bodies, which ultimately leads to the delegation of judicial power to non-judicial bodies.
This also leads to the payment of tax-payer’s money to a committee which decides matters detrimental to the environment, which according to the Constitutional framework is a fundamental right.
Furthermore, the Supreme Court of India in several cases have held that Judicial or quasi-judicial powers cannot be delegated. In such event, the formation of committees to adjudicate environmental matters would cause a paradigm shift in the image of the NGT, which is perceived as the environmental watchdog of the country. In September 2018, the NGT had also directed the re-hearing of around 18 cases which were already heard by different benches and reserved for orders.
Positive Approach Of The NGT
While the NGT has delegated several of its powers to various committees, certain bold movies by the NGT shall remain relevant for a long time. Between July 2018 to January 2019, the NGT got 1,691 letters/messages featuring differing ecological issues, of which 321 were conceded as petitions, where authorities were directed to take proper steps. As of late, the Tribunal has additionally clipped down vigorously on polluters, both industries and State Governments, by forcing hefty fines under the polluter pays principle.
In the previous four months alone, the NGT has ordered for almost Rs 800 crores to be paid as penalties for varied violations, to be utilized towards ecological rebuilding.
Such actions aimed at deterring the polluters of all kinds. On 6th May 2020, the NGT found Jindal Power Limited (JPL) and Coal India’s South Eastern Coalfields (SECL) blameworthy of causing environmental harm in Raigarh and ordered the organizations to pay a fine of Rs 160 crore. The majority of the fine – Rs 154 crore – is to be paid by JPL, which controlled the coal complex somewhere in the between 2005 and 2016, when the Apex Court cancelled prior coal block allocations. From that point, SECL has been in charge and has been fined Rs 6.6 crore for not giving effectual healthcare to occupants.
The NGT invoked the polluter pays principle while announcing the verdict by setting up an example that mining companies causing environmental hazards shall be held strictly liable for the damage and loss caused in the wake of their businesses. According to Ms Aruna Chandrasekhar, who has reported extensively on mining activities and has followed the JPL case closely, the NGT’s verdict is possibly the first time a company has had to pay for the hostile health effects of mining.
Additionally, in the recent tragic accident which took place on 7th May 2020, of the toxic gas leakage from LG Polymers facility located near Visakhapatnam in Andhra Pradesh, the NGT has opined and held that ‘leakage hazardous gas at such a scale antagonistically influencing general health and environment clearly attracts the principle of ‘Strict Liability’ against the enterprise occupied with perilous or innately hazardous industry. Such an entity is liable to reestablish and restore the harm caused under the Environment Law, aside from other legal obligation. In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh, 2Original Application No. 73/2020 (2020)
‘NGT furthermore has imposed a penalty of Rs. 50 crores on LG Polymers India Pvt Ltd for causing damage to life, public health, and environment.
The National Green Tribunal (Practices and Procedure) Rules, 2011 provides for strict rules with respect to the judicial review of the order or penalty imposed by the NGT on an entity or a person. Under Rule 22, the application for review must be filed within 30 days, and it will be decided by the members who passed the order by circulation. There is no power to condone the delay as section 5 of the Limitation Act is not applicable in cases adjudicated by the NGT. In such events, companies and entities found with statutory violations and environmental damage shall be held liable and imposed with high costs.
Interference Of The Government
In 2019, the Union Ministry of Personnel, Public Grievances and Pension appointed two serving officers of the Ministry of Environment, Forest, and Climate Change to be expert members of the NGT. The Order states: “Period of 03 years w.e.f the date of assumption of the charge of the post, or until further orders, whichever is earlier”.
A bare perusal of the abovementioned lines, with a primary focus on the words “until further orders” or “whichever is earlier” imply that these expert members shall be at the pleasure and whims of the Government, which ultimately interferes in the quasi-judicial functioning of the Tribunal. Very often, taking into account non-compliance with its orders, the NGT either summons senior officials or charges them with a financial penalty. On the off chance that such a circumstance emerges, the Government can pull back its ‘pleasure’ and end the arrangement even before the fulfilment of three years.
In such a situation, it is far-fetched that any solid choices will originate from individuals whose job is at the mercy of the Government. The power of the Government to evacuate the individuals dependent on their contentment is again in contradiction to the National Green Tribunal Act, 2010.
While the Government interference is still uptight, the NGT has been lagging in acknowledging several environmental hazards and destruction cases which have arisen lately. Several environmental problems arising with regards to forests do not get due attention from the Tribunal, which comprises of several environmentalists as their members.
Recently, Chief Minister B.S. Yediyurappa appears to have pulverized the State Board for Wildlife and cleared the ecologically disastrous Hubballi-Ankola railway line in a hurriedly convened meeting. Railway authorities claim that the undertaking includes felling of 1.78 lakh to 2.2 lakh trees. Be that as it may, as indicated by a report presented by an expert committee, these figures are a gross underestimation given the high canopy density along the track arrangement stretching a 168 km.
While the institution of the Tribunal and its performance in the course of the most recent couple of years has been praised by petitioners, lawyers and civil society groups, the journey so far has been a long way from smooth. Interference of Government authorities, a delegation of judicial powers, failure to fill in the vacant position of the members of Tribunal and lack of acknowledgement of environmental cases seems to have made the NGT, a mere oversight body.
Since its inception, NGT has given many fast-track judgments in various cases and has passed several orders to the respective authorities. Like the ban on illegal sand mining, against noise pollution in Delhi, preservation of biodiversity of Western Ghat Mountains, wildlife protection in Kaziranga National Park in Assam, suspended many environmental clearances and so on. The NGT certainly has the potential to provide a lead, in the new forms of environmental dispute resolution.
Suo Motu jurisdiction must be an integral feature of NGT for the better and effective functioning of the institution. In one of the suo-moto cognizance taken by the NGT, NGT Vs State of HP and Ors 3(Original Application No. 237/2013(THC) the case was related to the increasing vehicular traffic in Himachal Pradesh particularly in Kullu-Manali and Rohtang Pass areas. The court was concerned with the degradation of natural habitat and snow cover on the mountains.
The increasing tourist influx and vehicle emits hydrocarbon in the highly eco-sensitive zone. The court directed the state government to initiate scientific forestation program to preserve the environment. The court also directed Government to collect fees forms the vehicles to pay in the “Green Tax Fund” to be used in environmental restoration programs. It is necessary in the recent times of urbanization, where environmental hazards are at an increase, NGT should be allowed to take more suo-moto cognizance of environmental hazards.