National Green Tribunal: Journey of a decade, Issues, Way Forward

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Recently, The National Green Tribunal (NGT) Completed 10 years of its existence. As a specialist environmental court, it holds a critical place in environmental protection actions in India. It has in the past decade given some important directives, passed environmentally sound judgments. But in recent years, its working has been questioned on many counts. In this article, we will analyze the working of NGT in detail.

Contents

What is the National Green Tribunal?

The NGT was established on 18.10.2010 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.
The NGT act was passed by the parliament in May 2010 which directs and gives powers to the central government to form an NGT to deal with environmental issues.
The NGT is specialized agency equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.
India Was the third country after New Zealand and Australia to institute a full-fledged green tribunal for environmental protection and law enforcement through tribunal.
It’s working also includes enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property and matters connected or incidental to it.
Since its inception, it has protected a vast area of forest land, taken action against polluting industries, denied clearances for environmentally harmful government projects.

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How NGT came to being?

After the UN Conference on Human Environment in 1972, the world over, national actions for environmental started gathering pace.
In India to many laws such as the Wildlife Protection Act was passed.
In 1986, in M.C. Mehta and Anr. Etc Vs Union of India case, the then Chief Justice of India, Justice P.N. Bhagwati had suggested to the central government that it might be desirable to set up Environmental Courts on a regional basis.
Justice Bhagwati had recognized the nature of environmental cases as requiring assessment and evolution of scientific and technical data. Hence in the judgment, he gave a rough idea of the structure of court with one professional judge along with two experts drawn from the ecological sciences Research group for expert adjudication.
These observations were recalled in 1999 by the SC in a landmark case A.P. Pollution Control Board Vs Prof. M.V. Nayudu. The court again emphasized the need for a court that was a combination of judges and technical experts. The Appeal from Such court could be made to the SC.
In the Earth Summit of 1992, India vowed that it will provide judicial and administrative remedies for the victims of pollution and other environmental damages.
The parliament itself had passed laws about the establishment of the National Environmental Tribunal (1995) and a National Environmental Appellate Tribunal (1997). The appellate tribunal in this act was envisaged to award compensations in case of environmental damages.
Finally, the NGT act was passed in the parliament in 2010 and in October 2010 the NGT was instituted.
The formation of NGT was not without any difficulties as many petitions against it were filed but the final institutionalization was done in 2010 and it started working in early 2011.

What are the features of NGT?

It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.
NGT draws its inspiration from Article 21 of the constitution which protects the right to life. SC has included the right to a healthy environment to live under the right to life.
The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.
One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.”
Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision-making process” and not the “merits” of the decision.
As a merit court, the NGT becomes the primary decision-maker and therefore can undertake in-depth scrutiny into not just the law but also the technical basis of a particular decision.
The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same.
Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.
New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata, and Chennai shall be the other four places of sitting of the Tribunal.
The Chairman of NGT shall be a retired Judge of the Supreme Court of retired Chief justice of High court. There shall be 10 members with judicial and expert participation.
The Chairperson or members cannot be removed by the central government except an order made by the central government after an inquiry made by a judge of the SC in which the chairperson or member is given a reasonable opportunity to be heard. Hence, the act provides ample independence to the NGT working body.

Which laws come under the jurisdiction of NGT?

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.

Has NGT been effective in doing its legal duty?

Since its inception, the NGT has created a new breed of legal practitioners. It has protected forests, penalized companies for pollution and environmental damage, and errant officials for turning a blind eye towards environmental law.
It has protected the rights of tribal communities and ensured the enforcement of the ‘polluter pays’ principle in letter and spirit.
The expert members with specific scientific expertise and experience bring in an insider view to the handling of environmental cases.
As a tribunal, it can have various regional benches bringing in decentralization and wider reach.
The time-bound disposal of cases negates denial of justice to the victims and fast tracks the environmental justice system.

Some of the landmark judgments of NGT can be mentioned as follows.

In Almitra H Patel Vs Union of India case, it directed states to implement solid waste management rules and prohibited open burning of waste on lands.
It suspended the clearance given to the South Korean steelmaker, POSCO, to set up a 12 million-tonne steel plant in Odisha.
Hearing the Save Mon Federation Vs Union of India case, the NGT suspended a ₹6,400-crore hydro project, to save the habitat of a bird.
A December 2016 amendment to EIA 2006 notification — the amendments sought to give local authorities powers to grant environmental clearance to builders was negated as it would have circumvented the 2006 rules.
Projects which were approved in violation of the law such as an Aranmula Airport, Kerala; Lower Demwe Hydro Power Project and Nyamnjangu in Arunachal Pradesh; mining projects in Goa; and coal mining projects in Chattisgarh were either canceled or fresh assessments were directed.
It became a force to reckon with for which credit goes to the second chairman Justice Swatanter Kumar. Until the setting up of NGT environmental laws were mostly followed in breach.
Earlier, the Supreme Court would follow a hands-off approach as it would see it as interference in executive matters. But NGT as a special body for environmental protection mostly followed law.
Despite such good cases, NGT has been criticized for its deficiencies.

What are the issues with NGT?

As an environmental protection regime, its job is to protect the environment from any harmful impacts of development. So, it’s working often comes in crossheads to the government projects.
The development vs environment debate lies at the heart of such confrontation with many criticizing NGT for its anti-development confrontationist stance.
Even though such criticism must be taken with a pinch of salt, there are many lacunae within the NGT set up and governments support and follow up in actions.
There has long been an apprehension that the government of the day tries to emasculate the NGT. Experts believe that NGT is merely a shadow of its past.
Since 2018, it has dismissed all but three petitions, mostly on procedural grounds. The NGT has also refused to question the wisdom of the executive in grant of environment and forest clearances.
The NGT has a limited jurisdiction. The important acts that don’t come under its jurisdiction are the Wildlife Protection Act, 1972, and the Forest Rights Act, 2006.
This limit on jurisdiction hampers its working and important forest issues that have an impact on the environment directly remain outside its ambit.
NGT though has a minimum sanctioned strength of 10 persons but the positions have not been filled by the government. There are only three judicial and expert members each.
All three experts today are from Indian Forest Services. Hence most of the technical work is outsourced. It delays the proceedings.
Though NGT has been established as a tribunal, SC has not barred itself from taking up appellate cases against NGT decisions under article 136. Also, as a principle of judicial review, respective High courts can take up NGT appeal cases.
NGT has no powers to follow-up and once the judgment is given, it remains for the governments to take appropriate actions that often do not follow directions.
The practice of taking Suo Motu cognizance of a case though beneficial in normal cases, in environmental cases, it results in the victim not being available to present its case for the lack of awareness about the case.
The reach of NGT though has been extended, it has benches only in big cities. Hence the decentralization argument does not stand scrutiny.
Hence, apart from defeating the purpose of NGT, it does not even lessen the case burden on HCs and SC.

What is the way forward?

First of all, the government must not see the NGT as a roadblock to its work. India is a supporter of environmental protection in global affairs. It must be followed within the country.
The NGT can be a facilitator in the sustainable development of the country minimizing the cost of environmental degradation.
But for that to happen the systemic issues with NGT must be removed.
The Wildlife act and forest rights act must be brought under the ambit of NGT to synergize the environmental adjudication process.
The vacancies of judges and experts must be filled steadfastly and the experts must be neutral with experience in environmental research and activism.
The NGT must be given tribunal powers to follow-up on the judgment and enforce its judgments for compete justice to take place.
NGT must be provided with intra-tribunal appeal in front of a larger bench instead of taking the case to HCs or SC.
The Supreme Court must use its special leave jurisdiction under article 136 very conservatively as Sc itself has declared in the past that environmental cases need special expertise.
More regional benches must be set up with balanced regional spread and North-East must get its regional bench as it is an ecologically sensitive area where large developmental work is going on.
Apart from these measures, NGT itself must become forthcoming by recognizing organizations, experts, activists working in environmental protection, and must collaborate with them.

Conclusion

NGT is a critical institution when it comes to the development vs environment debate as it provides authentic cases for the environment. Moreover, there is a global consensus to consider the environment as an integral part of the development process. NGT must be strengthened to empower it to protect the environment more effectively and enable the governments to follow a sustainable path of development.