Environment, Law and The People: Analyzing The Background and Provisions of The National Green Tribunal Act, 2010

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Abstract:

The National Green Tribunals (the Tribunal) were established under the National Green Tribunal Act of 2010, across the nation to solely deal with questions pertaining  to the environment, and to promote sustainable development. Entrusted with the myriad of responsibility ranging from ensuring a safe and healthy environment to establishment of sustainable development principle and the principles of natural justice. The paper will discuss to the historical and philosophical underpinnings of the act and critically analyse it.

Introduction

In the recent times the protection of the environment and maintenance of the ecological balance has become a pressing duty of every government.

The solution to this was put down in the concept of ‘Sustainable Development’. This concept was first conceived at the United Nations Conference on the Human Environment at Stockholm in June, 1972 (‘the Stockholm Conference’)which resulted in the Stockholm Declaration of 1972.[1]

The concept was given a categorical shape by the World Commission on Environment and Development in its Report titled “Our Common Future”, also known as the Brundtland Report which defines ‘Sustainable Development’ as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[2]

Various international conferences like, United Nations General Assembly Resolutions, and Reports have discussed, adapted, and reiterated the concept of Sustainable Development.[3]

The Environment (Protection) Act, 1986 was passed by Parliament, as a legislation which aimed  to incorporate and implement the principles evolved from the Stockholm Conference.[4] Thus, the Environment (Protection) Act, 1986 is a statutory recognition of the principle of Sustainable Development, which all Courts and Tribunals in the country are bound to implement.

Case Laws Which Paved Way For The Establishment Of National Green Tribunals

In India, the need for environmental court was first advocated by former P.N. Bhagawati J in Oleum Gas Leak case.[5] It was pointed out that cases involving issues of environmental pollution, ecological destruction and its conflicts over natural resources involved assessment and evolution of scientific data and, therefore, there was an urgent need of involvement of experts in the administration of justice.[6] This view was reiterated in Indian Council for Enviro-Legal Action, where it has been laid down that the dictum that the necessity to preserve the environment must be seen as compatible with economic and other developments.[7]

The Supreme Court has, in its landmark judgment in Vellore CitizensWelfare Forum v. Union of India,[8] (Vellore Citizens Welfare Forum) held that the traditional concept that development and ecology are opposed to each other is no longer acceptable. It has been accepted that Sustainable Development is the balancing concept between development and ecology, and that the concept is part of customary international law.

The Supreme Court, in its judgment in Essar Oil Ltd. v. Halar Utkarsh Samiti,[9] (‘Essar Oil Ltd.’) has held that the objective of all laws on the environment should be to create harmony between development and environment, as neither one can be sacrificed at the altar of the other

Other challenges excluding constraints of judicial time and pendency of cases, faced by the Constitutional courts was the lack of expertise to assess and evaluate complex scientific and technical data, which is an essential factor in dealing with environment-related litigation. Thus, the Supreme Court, in a series of judgments,emphasized on the need to establish ‘Environment Courts’ across the country, manned by judicial members and technical/scientific experts, to exclusively deal with matters relating to the environment.[10]

As a result of these judgements, the Law Commission of India undertook a detailed study on the subject of Environmental Courts which culminated in the 186th Report of the Law Commission of India on the Proposal to Constitute Environment Courts. In the said report, the Law Commission recommended the establishment of Environment Courts in each State or for a group of States, manned by persons with judicial or legal experience, and assisted by persons having technical and scientific knowledge, and possessed with expertise on matters relating to the environment.[11]

Following the report, the Parliament enacted the National Green Tribunal Act, 2010, for the establishment of National Green Tribunals across the nation, which would exclusively deal with substantial questions relating to environment.

National Green Tribunal Act, 2010

  • The Statement of Objects and Reasons of the Act posit that the risk to human health and environment arising out of “hazardous activities” has become a matter of concern. It also talks about Rio Conference which implies that source of legislative power of the present Act may come under Entry 14, List I read with Article 253 of the Constitution of India.
  • The act takes a conscious acceptance that the right to a healthy environment is a part of the right to life under Article 21 of the Constitution of India.[12]
  • The Act provides that the central government shall by notification establish a tribunal to be known as the National Green Tribunal.[13] The tribunal shall consist of a full time chairperson and not less than ten but subject to maximum of twenty full-time judicial along with expert members as the central government may from time to time notify.
  • The number of judicial and expert members are delicately balanced with the Chairperson being entitled to break a deadlock. There are provisions to invite any one or more persons having specialized knowledge and experience in a particular cases before the tribunal to assist it in that case.[14]
  • Section 4(3) provides for the seat of the tribunal which will be specified by the central government by notification. Further section 4(4) empowers the central government to make rules in consultation with the Chairperson of the tribunal for the regulation of the practices and procedure of the tribunal extending to include rules as to the persons who shall be entitled to appear before the tribunal, the procedure for hearing applications and appeals and alike.
  • Specifications are also made regarding the qualifications for appointment of chairperson, judicial member and expert member. These include
    • A person shall not be qualified for appointment as the Chairperson or judicial member of the tribunal unless he is, or has been, a judge of the Supreme Court of India or Chief Justice of a High Court.
    • A person shall not be qualified to be appointment as an expert member unless he has a degree in Master of Science – Physical Sciences or Life Sciences with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management and biological diversity management and forest conservation) in a reputed national level institution, or has administrative experience of fifteen years including practical experience of five years in dealing with environmental matters in the central or a state government or in a reputed national or state level institution.
    • The manner of appointment of the Chairperson, judicial member and expert member is also provided to include that the Chairperson shall be appointed by the central government in consultation with the Chief Justice of India and the judicial members and expert members of the tribunal shall be appointed on the recommendations of the selection committee in such manner as may be prescribed.

It may be noted that we have adopted parliamentary form of government under which President of India has been authorized to make such appointment.[15]

In the Sampath Kumar case,[16] it was suggested by P.N Bhagwati to constitute a high-powered selection committee, which would beheaded by Chief Justice of India and other sitting judges of the Supreme Court and High Court also nominated by Chief Justice of India.

However, the Act provides that members of the committee shall be appointed by the central government. It can also be concluded that the above procedure in the appointment of judicial members is incorrect as there is a lack of criteria which can be adopted by the bureaucrats in selecting a judicial member without consultation with the Chief Justice of India. Along with this, allowing the civil servants a major say in the appointment can affect the legal output.

  • The NGT Act provides that 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. However, it is important to note that they shall not be eligible for re-appointment.
    • Once appointed, a person will hold the office till he attains the age of seventy years and in case a person who is or has been Chief Justice of a High Court and appointed as the Chairperson or judicial member, he shall hold office as such till the age of sixty-seven years.
    • Section 18(1) provides that each application under sections 14 and 15 or appeal under section 16 shall be made to the tribunal in such form which would contain such particulars and be accompanied by such documents and fees as may be prescribed.

It may be noted that minimum fee has not been prescribed under the Act.

  • The Act provides that the court shall not take cognizance of any offence under this Act[17] except on a complaint made by the central government or any authority or officer authorized in this behalf by that government
    • or any person who has given notice of not less than sixty days in the manner prescribed, of the alleged offence and of his intention to make a complain, to the central government or the authority or officer authorized as aforesaid.
    • It further provides that any court inferior to that of a metropolitan magistrate or, a judicial magistrate of the first class shall not try any offence punishable under this Act.
  • The Act confers on the tribunal”, the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act.[18]
    • It further provides a time-limit of six months within which the applications for adjudication of disputes under this section shall be entertained by the tribunal.
  • Appellate jurisdiction against certain orders or decisions or directions under 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 and the Biological Diversity Act, 2002, has also bee provided under the above sections and Schedule III[19].
    • It further provides a time-limit of thirty days within which appeals may be filed before the tribunal.
    • It also empowers the tribunal to allow such appeals to be filed within a further period not exceeding sixty days if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period.[20]

The period of filling the appeal is too short and should be extended to 60 days as often individuals are prevented by unavoidable situation from filling appeal within 30 days.

  • Another important provision states that no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the tribunal is empowered to determine under its appellate jurisdiction.
    • The civil court shall hold no authority to settle or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment which may be adjudicated upon by the tribunal and no injunction in respect of any action taken or to be taken by or before the tribunal shall be granted by civil court.[21]

On 11th May, 2010, a constitution bench of Supreme Court in Union of India v. R. Gandhi, President, Madras Bar Association[22] held that “the creation of National Company Law Tribunal and National Company Law Appellate Tribunal” (under Parts IB and IC of the Companies Act, 1956) “and vesting in them, the powers and jurisdiction exercised by the High Court in regard to company law matters” is not unconstitutional. The bench further held that the “legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the constitution) to any tribunal.”[23]

  • Section 15 of the Act empowers the tribunal to provide for relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance) or for restitution of property damage or for restitution of the environment for such area or areas.
    • The relief or compensation for environment damage may be claimed, under Schedule II
    • It also provides that the relief and compensation and restitution of property and environment referred to in sub-sections (l)(a), (b) and (c) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.[24]
  • Application for grant of relief or compensation or settlement of dispute may be made to the tribunal by the person, who has sustained the injury or where death has resulted from the environmental damage, by all or any of the legal representations of deceased, as the case may be or any person aggrieved, including any representative body or organization[25] or by the central government or any such authority as prescribed by law.
  • It is also stated that the tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but will only be guided by the principles of natural justice.
    • The tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.[26]
    • It further provides that the tribunal shall have power to regulate its own procedure.
    • The rules of evidence contained in the Evidence Act, 1872 shall not bound the act in any way for the purposes of discharging its functions under the present legislation.
  • Section 27 of the NGT Act provides that where any offence under the present legislation has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly.
  • The act also postulates provisions relating to offences by the government departments and provides that in case where any department of the government fails to comply with any order or award or decision of the tribunal, the head of the department shall be deemed to be guilty of such failure and shall be liable to be proceeded against for having committed an offence under the present legislation and punished accordingly.
    • However, if it is proved that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence, he shall not be liable to any punishment.
  • Under section 26 of the Act, whoever fails to comply with any order or award or decision of the tribunal shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to 25 thousand rupees for every additional day.
  • It provides for remedy in case of false or vexatious claim and may make an order to award costs including lost benefits due to any interim injunction.[27]
  • Section 38 provides for repeal of the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997. It further provides that notwithstanding such repeal, anything done or any action taken under the aforesaid Acts shall be deemed to have been done or taken under the corresponding provisions of the present legislation.

Analysis & Conclusion

The NGT Act heralded a new ear of Green Justice. The provision with respect to tenure of members of the tribunal are commendable. It ruminates a bloomed and experienced person to act as presiding officer I.e the Chairperson of the tribunal. It is visible that the philosophy of public interest litigation is envisaged in the act, which is a welcome sight for those who are victims and are unable to knock the doors of judiciary. Another striking innovation of the act is providing strict penalty for non-observation of the orders of the tribunal which allows sincere implementation of the order of the tribunal.

However, it is important to understand that the act has several shortcomings which need to be addressed. An analysis of the working of the Tribunal reveals that much time is spent on issues relating to construction activities, which cause little harm, if any, to the environment, when compared to polluting industries and other activities.

To being with the act has not exempted the poor persons from the depositing required fee for filing a complain under the Act.

Incidentally, in Windsor Realty (P) Ltd. v. Ministry of Environment and Forest, the Hon’ble Bombay High Court rejected the argument that Section 14 of the act envisioned a continuous cause of action. It held that the cause of action cannot be deemed to have arisen as “late” when a certain individual becomes aware of the environmental violation in question.[28]

This is in view of the use of the expression “first arose”, and therefore, once the cause of action arises, it continues to run. A non-vigilant litigant will therefore be deprived of the right to approach the Tribunal.

An important issue is pertaining to awarding compensation. The Tribunal must also record the degradation or damage, caused to the environment. However, in case after case, it is seen that the Tribunal chooses to embark on a path of enquiry which are ex-facie and beyond the scope of an application and not envisaged within the provisions of Section 15,

Another important issue that requires analysis is in relation to whether the jurisdiction of the High Courts under Article 226 of the Constitution against orders of the Tribunal would be barred in view of an appeal being provided to the Supreme Court under Section 22 of the Act.

In L. Chandra Kumar v. Union of India.,[29] (‘L. Chandra Kumar’) the Supreme Court held that the power of the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution of India and that such power of superintendence cannot be taken away by any legislation.

The said judgment was rendered in the case of Administrative Tribunals constituted under Articles 323A of the Constitution of India, unlike in the present case, where the Tribunal is a statutory Tribunal. Thus, the High Courts under Articles 226 and 227 of the Constitution of India have jurisdiction to entertain petitions against orders of the Tribunal.

The Supreme Court in R.K. Jain v. Union of India,[30] says that appeals from orders of all Tribunals ought to go to the High Court so that all facts and law can be considered appropriately in the statutory appeal.

It would thus be apposite to provide for an appeal from orders of the Tribunal before the respective High Courts and also provide for circumstances in which an appeal can be filed before the High Court. This will afford an effective forum for appeal to those parties/entities which may be aggrieved by any order passed by the Tribunal.

Environmental degradation poses an existential threat to mankind and its mere survival. There is no dispute that the Act and the Tribunal are the need of the hour for effective adjudication of environmental issues. These are just some of the issues postulated by NGT Act which require enquiry and revision . These issues also throw light to the comprehension and reflection by the Tribunal itself, on the exercise of its powers in correspondence with the provisions of the said Act, which would further enable in achievement of the laudable objectives of the Act.

A great amount of responsibility is solicited by the act to ensure that we leave behind a safe and healthy environment for our future generations. To fulfill this responsibility, the Tribunal must —

  1. harmonize environment and development through the principle of Sustainable Development;
  2. prevent abuse of the process of law;
  3. interpret and apply the provisions of the Act to ensure that justice is done to the environment, without any injustice being done to others

Bibliography

  1. Subramanian, T.N., and Rubin Vakil. “THE MECHANISMS OF THE NATIONAL GREEN TRIBUNAL.” National Law School of India Review 30, no. 1 (2018): 74-85. Accessed November 28, 2020. https://iproxy.inflibnet.ac.in:2096/stable/26743934.
  2. Mishra, Vinod Shankar. “NATIONAL GREEN TRIBUNAL: ALTERNATIVE ENVIRONMENT DISPUTE RESOLUTION MECHANISM.” Journal of the Indian Law Institute 52, no. 3/4 (2010): 522-52. Accessed November 27, 2020. doi:10.2307/45148537.
  3. KOHLI, KANCHI, and MANJU MENON. “The Nature of Green Justice.” Economic and Political Weekly 47, no. 15 (2012): 19-22. Accessed November 29, 2020. http://iproxy.inflibnet.ac.in:2060/stable/23214942.

[1] UN General Assembly, United Nations Conference on the Human Environment, UN Doc. A/ RES/2994 (December 15, 1972), http://www.refworld.org/docid/3b00f1c840.html.

[2] United Nations, Our Common Future – Brundtland Report (1987).

[3] United Nations, Gathering a Body of Global Agreements: Sustainable Development, http://www. un-documents.net/k-001303.htm.

[4] 5 Statement of Objects and Purpose of the Environment (Protection) Act, 1986 [Act No. 29 of 1986]

[5] M.C. Mehta v. Union of India , AIR 1987 SC 965.

[6] Id. at 982

[7] Indian Council for Enviro-Legal Action v. Union of India (1996) 2 SCC 212, 252.

[8] (1996) 5 SCC 647.

[9] Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392

[10] M.C. Mehta v. Union of India, (1986) 2 SCC 176; Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718; A.P. Pollution Control Board (2) v. M.V. NayuduI, (2001) 2 SCC 62

[11] Law Commission of India, 138th Report of the Law Commission of India on Proposal to Constitute Environment Courts, 132, 148 (September, 2003).

[12] A.P. Pollution Control Board (2) v. M.V. Nayudu, (2001) 2 SCC 62; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[13] S. 3 of the National Green Tribunal Act 2010. In e

[14] S. 4 of the National Green Tribunal Act 2010.

[15] See Article. 53(1), 74(1) and 75(3), 77(1), (2), (3) of the Constitution of India

[16] AIR 1987 SC 386, 392

[17] S. 30(1) (2) of NGT Act 2010

[18] S. 14(1) (3) of NGT act 2010

[19] Schedule III provides for making certain amendments to the enactments specified therein.

[20] S. 16 NGT Act

[21] S. 29 NGT Act

[22] Civil Appeal No. 3067 of 2004.

[23] The bench, however, tabulated a number of defects in Parts IB and IC of the Companies Act, 1956 and opined that Act “may be made operational by making suitable amendments.”

[24] S. 15 (2) NGT Act

[25] S. 18 (2) NGT Act

[26] See s. 20 of the NGT.

[27] See s. 22 of the NGT Act

[28] 2016 SCC OnLine Bom 5613, 133-36.

[29] (1997) 3 SCC 261.

[30] (1993) 4 SCC 119, 176.

Abstract:

The National Green Tribunals (the Tribunal) were established under the National Green Tribunal Act of 2010, across the nation to solely deal with questions pertaining  to the environment, and to promote sustainable development. Entrusted with the myriad of responsibility ranging from ensuring a safe and healthy environment to establishment of sustainable development principle and the principles of natural justice. The paper will discuss to the historical and philosophical underpinnings of the act and critically analyse it.

Introduction

In the recent times the protection of the environment and maintenance of the ecological balance has become a pressing duty of every government.

The solution to this was put down in the concept of ‘Sustainable Development’. This concept was first conceived at the United Nations Conference on the Human Environment at Stockholm in June, 1972 (‘the Stockholm Conference’)which resulted in the Stockholm Declaration of 1972.[1]

The concept was given a categorical shape by the World Commission on Environment and Development in its Report titled “Our Common Future”, also known as the Brundtland Report which defines ‘Sustainable Development’ as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[2]

Various international conferences like, United Nations General Assembly Resolutions, and Reports have discussed, adapted, and reiterated the concept of Sustainable Development.[3]

The Environment (Protection) Act, 1986 was passed by Parliament, as a legislation which aimed  to incorporate and implement the principles evolved from the Stockholm Conference.[4] Thus, the Environment (Protection) Act, 1986 is a statutory recognition of the principle of Sustainable Development, which all Courts and Tribunals in the country are bound to implement.

Case Laws Which Paved Way For The Establishment Of National Green Tribunals

In India, the need for environmental court was first advocated by former P.N. Bhagawati J in Oleum Gas Leak case.[5] It was pointed out that cases involving issues of environmental pollution, ecological destruction and its conflicts over natural resources involved assessment and evolution of scientific data and, therefore, there was an urgent need of involvement of experts in the administration of justice.[6] This view was reiterated in Indian Council for Enviro-Legal Action, where it has been laid down that the dictum that the necessity to preserve the environment must be seen as compatible with economic and other developments.[7]

The Supreme Court has, in its landmark judgment in Vellore CitizensWelfare Forum v. Union of India,[8] (Vellore Citizens Welfare Forum) held that the traditional concept that development and ecology are opposed to each other is no longer acceptable. It has been accepted that Sustainable Development is the balancing concept between development and ecology, and that the concept is part of customary international law.

The Supreme Court, in its judgment in Essar Oil Ltd. v. Halar Utkarsh Samiti,[9] (‘Essar Oil Ltd.’) has held that the objective of all laws on the environment should be to create harmony between development and environment, as neither one can be sacrificed at the altar of the other

Other challenges excluding constraints of judicial time and pendency of cases, faced by the Constitutional courts was the lack of expertise to assess and evaluate complex scientific and technical data, which is an essential factor in dealing with environment-related litigation. Thus, the Supreme Court, in a series of judgments,emphasized on the need to establish ‘Environment Courts’ across the country, manned by judicial members and technical/scientific experts, to exclusively deal with matters relating to the environment.[10]

As a result of these judgements, the Law Commission of India undertook a detailed study on the subject of Environmental Courts which culminated in the 186th Report of the Law Commission of India on the Proposal to Constitute Environment Courts. In the said report, the Law Commission recommended the establishment of Environment Courts in each State or for a group of States, manned by persons with judicial or legal experience, and assisted by persons having technical and scientific knowledge, and possessed with expertise on matters relating to the environment.[11]

Following the report, the Parliament enacted the National Green Tribunal Act, 2010, for the establishment of National Green Tribunals across the nation, which would exclusively deal with substantial questions relating to environment.

National Green Tribunal Act, 2010

  • The Statement of Objects and Reasons of the Act posit that the risk to human health and environment arising out of “hazardous activities” has become a matter of concern. It also talks about Rio Conference which implies that source of legislative power of the present Act may come under Entry 14, List I read with Article 253 of the Constitution of India.
  • The act takes a conscious acceptance that the right to a healthy environment is a part of the right to life under Article 21 of the Constitution of India.[12]
  • The Act provides that the central government shall by notification establish a tribunal to be known as the National Green Tribunal.[13] The tribunal shall consist of a full time chairperson and not less than ten but subject to maximum of twenty full-time judicial along with expert members as the central government may from time to time notify.
  • The number of judicial and expert members are delicately balanced with the Chairperson being entitled to break a deadlock. There are provisions to invite any one or more persons having specialized knowledge and experience in a particular cases before the tribunal to assist it in that case.[14]
  • Section 4(3) provides for the seat of the tribunal which will be specified by the central government by notification. Further section 4(4) empowers the central government to make rules in consultation with the Chairperson of the tribunal for the regulation of the practices and procedure of the tribunal extending to include rules as to the persons who shall be entitled to appear before the tribunal, the procedure for hearing applications and appeals and alike.
  • Specifications are also made regarding the qualifications for appointment of chairperson, judicial member and expert member. These include
    • A person shall not be qualified for appointment as the Chairperson or judicial member of the tribunal unless he is, or has been, a judge of the Supreme Court of India or Chief Justice of a High Court.
    • A person shall not be qualified to be appointment as an expert member unless he has a degree in Master of Science – Physical Sciences or Life Sciences with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management and biological diversity management and forest conservation) in a reputed national level institution, or has administrative experience of fifteen years including practical experience of five years in dealing with environmental matters in the central or a state government or in a reputed national or state level institution.
    • The manner of appointment of the Chairperson, judicial member and expert member is also provided to include that the Chairperson shall be appointed by the central government in consultation with the Chief Justice of India and the judicial members and expert members of the tribunal shall be appointed on the recommendations of the selection committee in such manner as may be prescribed.

It may be noted that we have adopted parliamentary form of government under which President of India has been authorized to make such appointment.[15]

In the Sampath Kumar case,[16] it was suggested by P.N Bhagwati to constitute a high-powered selection committee, which would beheaded by Chief Justice of India and other sitting judges of the Supreme Court and High Court also nominated by Chief Justice of India.

However, the Act provides that members of the committee shall be appointed by the central government. It can also be concluded that the above procedure in the appointment of judicial members is incorrect as there is a lack of criteria which can be adopted by the bureaucrats in selecting a judicial member without consultation with the Chief Justice of India. Along with this, allowing the civil servants a major say in the appointment can affect the legal output.

  • The NGT Act provides that 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. However, it is important to note that they shall not be eligible for re-appointment.
    • Once appointed, a person will hold the office till he attains the age of seventy years and in case a person who is or has been Chief Justice of a High Court and appointed as the Chairperson or judicial member, he shall hold office as such till the age of sixty-seven years.
    • Section 18(1) provides that each application under sections 14 and 15 or appeal under section 16 shall be made to the tribunal in such form which would contain such particulars and be accompanied by such documents and fees as may be prescribed.

It may be noted that minimum fee has not been prescribed under the Act.

  • The Act provides that the court shall not take cognizance of any offence under this Act[17] except on a complaint made by the central government or any authority or officer authorized in this behalf by that government
    • or any person who has given notice of not less than sixty days in the manner prescribed, of the alleged offence and of his intention to make a complain, to the central government or the authority or officer authorized as aforesaid.
    • It further provides that any court inferior to that of a metropolitan magistrate or, a judicial magistrate of the first class shall not try any offence punishable under this Act.
  • The Act confers on the tribunal”, the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act.[18]
    • It further provides a time-limit of six months within which the applications for adjudication of disputes under this section shall be entertained by the tribunal.
  • Appellate jurisdiction against certain orders or decisions or directions under 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 and the Biological Diversity Act, 2002, has also bee provided under the above sections and Schedule III[19].
    • It further provides a time-limit of thirty days within which appeals may be filed before the tribunal.
    • It also empowers the tribunal to allow such appeals to be filed within a further period not exceeding sixty days if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period.[20]

The period of filling the appeal is too short and should be extended to 60 days as often individuals are prevented by unavoidable situation from filling appeal within 30 days.

  • Another important provision states that no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the tribunal is empowered to determine under its appellate jurisdiction.
    • The civil court shall hold no authority to settle or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment which may be adjudicated upon by the tribunal and no injunction in respect of any action taken or to be taken by or before the tribunal shall be granted by civil court.[21]

On 11th May, 2010, a constitution bench of Supreme Court in Union of India v. R. Gandhi, President, Madras Bar Association[22] held that “the creation of National Company Law Tribunal and National Company Law Appellate Tribunal” (under Parts IB and IC of the Companies Act, 1956) “and vesting in them, the powers and jurisdiction exercised by the High Court in regard to company law matters” is not unconstitutional. The bench further held that the “legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the constitution) to any tribunal.”[23]

  • Section 15 of the Act empowers the tribunal to provide for relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance) or for restitution of property damage or for restitution of the environment for such area or areas.
    • The relief or compensation for environment damage may be claimed, under Schedule II
    • It also provides that the relief and compensation and restitution of property and environment referred to in sub-sections (l)(a), (b) and (c) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.[24]
  • Application for grant of relief or compensation or settlement of dispute may be made to the tribunal by the person, who has sustained the injury or where death has resulted from the environmental damage, by all or any of the legal representations of deceased, as the case may be or any person aggrieved, including any representative body or organization[25] or by the central government or any such authority as prescribed by law.
  • It is also stated that the tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but will only be guided by the principles of natural justice.
    • The tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.[26]
    • It further provides that the tribunal shall have power to regulate its own procedure.
    • The rules of evidence contained in the Evidence Act, 1872 shall not bound the act in any way for the purposes of discharging its functions under the present legislation.
  • Section 27 of the NGT Act provides that where any offence under the present legislation has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and liable to be proceeded against and punished accordingly.
  • The act also postulates provisions relating to offences by the government departments and provides that in case where any department of the government fails to comply with any order or award or decision of the tribunal, the head of the department shall be deemed to be guilty of such failure and shall be liable to be proceeded against for having committed an offence under the present legislation and punished accordingly.
    • However, if it is proved that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence, he shall not be liable to any punishment.
  • Under section 26 of the Act, whoever fails to comply with any order or award or decision of the tribunal shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to 25 thousand rupees for every additional day.
  • It provides for remedy in case of false or vexatious claim and may make an order to award costs including lost benefits due to any interim injunction.[27]
  • Section 38 provides for repeal of the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997. It further provides that notwithstanding such repeal, anything done or any action taken under the aforesaid Acts shall be deemed to have been done or taken under the corresponding provisions of the present legislation.

Analysis & Conclusion

The NGT Act heralded a new ear of Green Justice. The provision with respect to tenure of members of the tribunal are commendable. It ruminates a bloomed and experienced person to act as presiding officer I.e the Chairperson of the tribunal. It is visible that the philosophy of public interest litigation is envisaged in the act, which is a welcome sight for those who are victims and are unable to knock the doors of judiciary. Another striking innovation of the act is providing strict penalty for non-observation of the orders of the tribunal which allows sincere implementation of the order of the tribunal.

However, it is important to understand that the act has several shortcomings which need to be addressed. An analysis of the working of the Tribunal reveals that much time is spent on issues relating to construction activities, which cause little harm, if any, to the environment, when compared to polluting industries and other activities.

To being with the act has not exempted the poor persons from the depositing required fee for filing a complain under the Act.

Incidentally, in Windsor Realty (P) Ltd. v. Ministry of Environment and Forest, the Hon’ble Bombay High Court rejected the argument that Section 14 of the act envisioned a continuous cause of action. It held that the cause of action cannot be deemed to have arisen as “late” when a certain individual becomes aware of the environmental violation in question.[28]

This is in view of the use of the expression “first arose”, and therefore, once the cause of action arises, it continues to run. A non-vigilant litigant will therefore be deprived of the right to approach the Tribunal.

An important issue is pertaining to awarding compensation. The Tribunal must also record the degradation or damage, caused to the environment. However, in case after case, it is seen that the Tribunal chooses to embark on a path of enquiry which are ex-facie and beyond the scope of an application and not envisaged within the provisions of Section 15,

Another important issue that requires analysis is in relation to whether the jurisdiction of the High Courts under Article 226 of the Constitution against orders of the Tribunal would be barred in view of an appeal being provided to the Supreme Court under Section 22 of the Act.

In L. Chandra Kumar v. Union of India.,[29] (‘L. Chandra Kumar’) the Supreme Court held that the power of the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution of India and that such power of superintendence cannot be taken away by any legislation.

The said judgment was rendered in the case of Administrative Tribunals constituted under Articles 323A of the Constitution of India, unlike in the present case, where the Tribunal is a statutory Tribunal. Thus, the High Courts under Articles 226 and 227 of the Constitution of India have jurisdiction to entertain petitions against orders of the Tribunal.

The Supreme Court in R.K. Jain v. Union of India,[30] says that appeals from orders of all Tribunals ought to go to the High Court so that all facts and law can be considered appropriately in the statutory appeal.

It would thus be apposite to provide for an appeal from orders of the Tribunal before the respective High Courts and also provide for circumstances in which an appeal can be filed before the High Court. This will afford an effective forum for appeal to those parties/entities which may be aggrieved by any order passed by the Tribunal.

Environmental degradation poses an existential threat to mankind and its mere survival. There is no dispute that the Act and the Tribunal are the need of the hour for effective adjudication of environmental issues. These are just some of the issues postulated by NGT Act which require enquiry and revision . These issues also throw light to the comprehension and reflection by the Tribunal itself, on the exercise of its powers in correspondence with the provisions of the said Act, which would further enable in achievement of the laudable objectives of the Act.

A great amount of responsibility is solicited by the act to ensure that we leave behind a safe and healthy environment for our future generations. To fulfill this responsibility, the Tribunal must —

  1. harmonize environment and development through the principle of Sustainable Development;
  2. prevent abuse of the process of law;
  3. interpret and apply the provisions of the Act to ensure that justice is done to the environment, without any injustice being done to others

Bibliography

  1. Subramanian, T.N., and Rubin Vakil. “THE MECHANISMS OF THE NATIONAL GREEN TRIBUNAL.” National Law School of India Review 30, no. 1 (2018): 74-85. Accessed November 28, 2020. https://iproxy.inflibnet.ac.in:2096/stable/26743934.
  2. Mishra, Vinod Shankar. “NATIONAL GREEN TRIBUNAL: ALTERNATIVE ENVIRONMENT DISPUTE RESOLUTION MECHANISM.” Journal of the Indian Law Institute 52, no. 3/4 (2010): 522-52. Accessed November 27, 2020. doi:10.2307/45148537.
  3. KOHLI, KANCHI, and MANJU MENON. “The Nature of Green Justice.” Economic and Political Weekly 47, no. 15 (2012): 19-22. Accessed November 29, 2020. http://iproxy.inflibnet.ac.in:2060/stable/23214942.

[1] UN General Assembly, United Nations Conference on the Human Environment, UN Doc. A/ RES/2994 (December 15, 1972), http://www.refworld.org/docid/3b00f1c840.html.

[2] United Nations, Our Common Future – Brundtland Report (1987).

[3] United Nations, Gathering a Body of Global Agreements: Sustainable Development, http://www. un-documents.net/k-001303.htm.

[4] 5 Statement of Objects and Purpose of the Environment (Protection) Act, 1986 [Act No. 29 of 1986]

[5] M.C. Mehta v. Union of India , AIR 1987 SC 965.

[6] Id. at 982

[7] Indian Council for Enviro-Legal Action v. Union of India (1996) 2 SCC 212, 252.

[8] (1996) 5 SCC 647.

[9] Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392

[10] M.C. Mehta v. Union of India, (1986) 2 SCC 176; Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212; A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718; A.P. Pollution Control Board (2) v. M.V. NayuduI, (2001) 2 SCC 62

[11] Law Commission of India, 138th Report of the Law Commission of India on Proposal to Constitute Environment Courts, 132, 148 (September, 2003).

[12] A.P. Pollution Control Board (2) v. M.V. Nayudu, (2001) 2 SCC 62; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[13] S. 3 of the National Green Tribunal Act 2010. In e

[14] S. 4 of the National Green Tribunal Act 2010.

[15] See Article. 53(1), 74(1) and 75(3), 77(1), (2), (3) of the Constitution of India

[16] AIR 1987 SC 386, 392

[17] S. 30(1) (2) of NGT Act 2010

[18] S. 14(1) (3) of NGT act 2010

[19] Schedule III provides for making certain amendments to the enactments specified therein.

[20] S. 16 NGT Act

[21] S. 29 NGT Act

[22] Civil Appeal No. 3067 of 2004.

[23] The bench, however, tabulated a number of defects in Parts IB and IC of the Companies Act, 1956 and opined that Act “may be made operational by making suitable amendments.”

[24] S. 15 (2) NGT Act

[25] S. 18 (2) NGT Act

[26] See s. 20 of the NGT.

[27] See s. 22 of the NGT Act

[28] 2016 SCC OnLine Bom 5613, 133-36.

[29] (1997) 3 SCC 261.

[30] (1993) 4 SCC 119, 176.


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