The judicial administration system of India has been overwhelmed by a huge backlog of cases. Particularly, cases involving technical issues like effective protection of environment pollution have to be dealt with in an expeditious manner which is not possible in such a scenario of backlogs. This very problem entailed an urgent need of an alternative forum for deciding matters related to environment without much delay. Supreme Court in the case of M.C. Mehta v. Union of India (1997) 2 SCC 411, for the first time, deliberated upon the issue and pointed out that “cases involving issues of environmental pollution, ecological destruction and its conflict over natural resources involved assessment and evolution of scientific data and, therefore, according to the court, there was an urgent need of involvement of experts in the administration of justice.” The Court further suggested that there is a need for ‘neutral scientific expertise’ and so, environment courts should be set up on a regional basis with one professional judge and two experts.
This view was reiterated in the cases of Vellore Citizens’ Welfare Forum v. Union of India (1996) 5 SCC 647; Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212; and in A.P. Pollution Control Board v. M.V. Nayudu (1999) 2 SCC 718, whereby the need for an Environmental Court having civil and criminal jurisdiction for the purpose of speedy justice was emphasized upon.
The intricate environmental issues require a more stern attention and trained manpower for apt appreciation. In certain cases, the method for scrutinizing of such issues require a lot of time. These time constraints and distinctiveness of the nature of disputes compelled setting up of “Green Benches” in several High Courts of India.
Later, on the request of the Court, Law Commission of India examined the question in detail and in its 186th Report (2003), recommended the setting up of environmental courts having original and appellate jurisdiction related to environmental laws. It further noted that the National Environment Appellate Authority (1997) and National Environmental Tribunal (1995) were non-functional statutory bodies. Apart from the aforementioned judgments, the study was guided by the Land and Environment Court of New South Wales, Model of Environmental Court in New Zealand, idea of a ‘multi-faceted’ Environmental Court with technical and judicial inputs formulated by Lord Woolf in England and the Environmental Courts in Australia and other nations.
In 1989, Maneka Gandhi, the then Union Minister of Environment, had advocated the idea of environment courts. However, it was only on 31 July 2009 that the National Green Tribunal Bill, 2009 was presented in the Lok Sabha. The Bill was referred to the Parliamentary Standing Committee on Science and Technology, Environment and Forests for examination and reports. After holding a series of meetings with the concerned officials, the Committee presented 203rd report on National Green Tribunal Bill on 16th November 2009. The Parliament passed the National Green Tribunal Act, 2010 [hereinafter referred to as ‘the Act’] which came into effect on 18th October 2010. Justice Lokeshwar Singh Panta, former judge of the Supreme Court, took charge as the chairman of the National Green Tribunal.
Object and purpose of the Act
The Act provides for the establishment of a National Green Tribunal [hereinafter referred to as ‘NGT’ or ‘the tribunal’]. The objective behind establishment of NGT is the expeditious and efficient disposal of cases involving issues of environmental protection, conservation of natural resources like
forests, and also the enforcement of related rights of the individuals. The object entails relief and compensation for damages to persons and property and for other related matters.
As follows, NGT is a specialized body, with the necessary proficiency to attend and dispose of environmental disputes involving multi-faceted issues. Furthermore, its specificity in environmental issues caters speedy justice, reducing the burden of backlogs. Moreover, the Tribunal is sanctioned to endeavor for disposal of applications or appeals finally within 6 months of filing of the same (Section 14).
The Act further endeavors to implement the judicial pronouncements that “the right to healthy environment is a part of the right to life under Article 21 of the Indian Constitution” as held in case of Subhash Kumar v. State of Bihar, AIR 1992 SC 4200.
Moreover, the Act is an endeavor of the Parliament under Article 253 read with Entry 14 of the Union List under Schedule VII of the Constitution to fulfill the obligation of India towards Stockholm Declaration, 1972 in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment and Rio Declaration, 1992 in 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.
Features of the Tribunal
The NGT Act has certain salient features pertaining to its specificity in environmental issues and objective deemed to be the judicial proceedings within the meaning of Sections 193, 219 and 228 for the purposes of Section 196 of the Indian Penal Code and the Tribunal shall be deemed to be.
Jurisdiction of the Tribunal [Chapter III]
The Act confers upon the NGT, the jurisdiction to hear initial complaints as well as appeals from decisions of authorities under various environmental laws. Thus, the Tribunal has been vested with wide jurisdiction, and it can hear matters in the form of original, appellate, review and miscellaneous petitions as enshrined under Chapter III of the Act.
Under Section 14, the Tribunal exercises jurisdiction in respect of all civil cases where a substantial question relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act. Here, civil cases encompass all legal proceedings except criminal cases, which are governed by the provisions of the Criminal Procedure Code, 1973. Furthermore, “substantial question of law” has been explained under Section 2(m) to include an instance where there is a direct violation of a specific environmental obligation by a person whereby the community at large is affected or likely to be affected by environmental consequences, or the
gravity of damage to the environment or property is substantial, or the damage to public health is broadly measurable.
The legislations included in Schedule I are:
Section 14 of the Act provides a time-limit of six months within which the applications for adjudication of dispute under this section shall be entertained by the Tribunal. It also empowers the Tribunal to allow such applications to be filled within a further period not exceeding sixty days, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period.
Further, Section 16 of the Act provides the appellate power to the Tribunal against the order of various judicial/quasi-judicial forums mentioned in the section. Moreover, according to the Act, from the date of establishment of the Tribunal, no civil court shall have jurisdiction to entertain any case/appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.
Composition of the Tribunal [Section 4]
The Tribunal shall consist of a full time chairperson. Along with him, there are ten to twenty full time judicial and expert members as the Central Government may notify from time to time notify. The Act has balanced the number of judicial and expert members with the authority to break an impasse vested with chairperson of the Tribunal. The Tribunal is empowered to invite any one or more persons having
specialized knowledge and experience in a particular type of cases before the Tribunal to assist the Tribunal in a particular case.
Qualifications of members [Section 5]
The qualifications for appointment of Chairperson, Judicial Member and Expert Member are specified in Section 5 of the Act. It provides that:
Procedure for appointment of Members [Section 6]
The Act has authorized the Central Government to appoint the members of the Tribunal, subject to the fulfillment of the above prescribed qualifications. The Act provides that the Chairperson of the Tribunal may be appointed by the Central Government in consultation with the Chief Justice of India. The other members shall be appointed by the Central Government on the recommendation of such Selection Committee as may be prescribed.
Term of Office [Section 7]
The Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment. This is subject to the provisions which states that:
Grounds of removal of the Members [Section 10]
According to the Act, The Central Government may, in consultation with the Chief Justice of India, remove from office of the Chairperson or Judicial Member of the Tribunal, who,-
However, the Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. similarly, the Expert Member shall not be removed unless he has been given an opportunity of being heard in the matter.
Eligibility for filing application before tribunal [Section 18]
The Act provides that without prejudice to the provisions contained in Section 16, an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by—
Procedure for filing and remedies under the Act
The Tribunal 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 Tribunal is English. For every application/appeal where no claim for compensation is involved, a fee of INR 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 INR 1000/-.
Further the detailed specific procedure has been provided under National Green Tribunal (Practice and Procedure) Rules, 2011.
Remedy/relief under the Act (Section 15)
Tribunal may in its order grant the following reliefs to the applicant:
However, 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 for non-compliance (Section 26)
Important Judgments of the Tribunal
Wilfred J. v. Ministry of Environment and Forests In this case, the NGT expressed its autonomy. It pointed out that “there is nothing in the provision of the NGT Act that directly or even by necessary implication is indicative of any external control over the National Green Tribunal. The Ministry of Environment and Forests is merely an administrative ministry for the National Green Tribunal to provide for means and finances. Once the budget is provided, the Ministry cannot have any interference in the functioning of the National Green Tribunal.” In fact, the entire process of appointment and removal is under the effective control of the Supreme Court of India. The administration is merely an executing agency within the framework of the Act.
Sudiep Shrivastava v. State of Chhattisgarh, (Appeal No. 73 of 2012 dated 24-3-2014)
In this case, the Central government went against the recommendations of Forest Advisory Committee, (FAC) which rejected the proposal of diversion of forest, and granted approval to the project. The power of Central Government to reject the proposal/recommendations of the FAC and the validity of order were to be scrutinized by the Tribunal. The question was whether the Government is bound by the recommendations of FAC. The tribunal opined that ‘advice’ would not make it binding stricto sensu on the Central Government. However, the Central Government remains under an obligation to duly consider the advice of the FAC and pass a reasoned order either accepting with or without condition or rejecting the same based on facts, studies and such other authoritative material, if necessary gathered from further enquiry. The tribunal finally asked the Government to reconsider the entire matter afresh in accordance with law.
M.P. Patil v. Union of India, (Appeal No. 12 of 2012 dated 13-3-2014)
In this case, environment clearance granted to the thermal project of NTPC was challenged by the local citizens on the ground that proper disclosures were not made in the Environment Impact Assessment and Rehabilitation and Resettlement Plan was not disclosed in advance. The Tribunal which explaining the importance of R&R Plan opined that “the concept of sustainable development is to drive a balance between environment on the one hand and development on the other. One of the essential facets of this balancing approach is to find out the impact of development upon civilization, particularly with reference to human beings. If as a result of establishment and operation of any project, a large chunk of land belonging to a large number of persons is expected to be acquired and they are likely to be displaced in one form or the other from their livelihood, R & R scheme would be one of the most pertinent aspects to be considered by the EAC”. “An appropriate R&R scheme was not available at the time of the public hearing. Also, the other objections raised at the public hearing were not properly answered during the public hearing.”
Further, it was reiterated that the onus of proving that the proposed project was in compliance with goals of sustainable development was on the party proposing the project and public participation was emphasized by the court.
Vardhaman Kaushik v. Union of India; (Original Application No. 21 of 2014)
In this case, the Tribunal took cognizance of the growing pollution levels in Delhi. It directed a Committee to prepare an action plan. In the interim, it directed that vehicles more than 15 years old not be allowed to ply or be parked on the roads; that burning plastics and other like materials be prohibited; that a web portal and a special task force be created; that sufficient space for two way conveyance be left on all market-roads in Delhi; that cycle tracks be constructed; that overloaded trucks and defunct buses not be allowed to ply; that air purifiers and automatic censors be installed in appropriate locations. Further, it directed that a fine of Rs. 1000 be levied on all cars parked on metaled roads and that multi-level parking be constructed in appropriate areas.
Manoj Misra v. Union of India; (Original Application No. 6 of 2012)
In this case, an application was filed before the tribunal against the debris and other solid waste dumped in the Yamuna river bed and effective measures for restoring the natural water body to its original form. Taking cognizance of the application the tribunal gave a set of twenty eight directions, ranging from prohibition on dumping debris to restricting silviculture and floriculture activities, preparation of Action Plan by concerned agencies, timely completion of project ‘Maily Se Nirmal Yamuna’, setting up of Common Effluent Treatment Plants and many others in the interest of protecting and restoring the River Yamuna.
Obstacles and hindrances faced by the NGT
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