A Critical Review of the Functioning of National Green Tribunal

Abstract

The establishment of National Green Tribunal (hereinafter referred to as NGT) was indeed a step forward for Green Courts and environment justice in India. The NGT has successfully completed a decade of its existence and this paper analyzes how the functioning of the tribunal has changed and affected the overall course of justice. It can be seen that during the early years of its establishment, the tribunal gave some landmark judgments which were in the interest of environment and ecology. However, as years passed by, the tribunal is losing its grip. One of the common yet alarming practices that is followed by the tribunal is forming committees and disposing off cases to them. This paper explores how the functioning of NGT has evolved over the years and is the tribunal delivering what it promised to deliver.

Introduction

The National Green Tribunal was finally established in 2010 after many failed attempts by the Government. The need for setting up special environmental courts was highlighted by the Hon’ble Supreme Court through a series of judgments and the first one being in as early as 1986 through the Oleum Gas Leak Case[1]. Subsequently, the 186th report of the Law Commission of India[2] also stressed on the fact that setting up special environmental courts is the way forward for India. Both the Hon’ble Supreme Court and the Law Commission of India were of the opinion that issues related to environment must be delegated to a separate body which would comprise of experts, people with technical knowledge and a platform where one can ensure speedy disposal of cases with continuous monitoring[3].

Taking these suggestions into account, the parliament passed the National Environmental Tribunal Act in 1995[4], but it was never implemented. Consequently, the National Environment Appellate Authority Act, 1997 was enacted under which National Environment Appellate Authority was set up[5]. The authority faced countless number of problems out of which the major ones comprised of its limited mandate and crucial vacancies which the government did not take care of. The authority, however, was replaced by the National Green Tribunal in October 2010.

The National Green Tribunal (hereinafter referred to as the NGT) was set up under the National Green Tribunal Act, 2010 (hereinafter referred to as the NGT Act)[6]. The objective of the NGT act is to provide effective and speedy disposal of cases related to the environment. The jurisdiction of the NGT has an all-encompassing scope which includes forests, climate change, environment, and coastal protection[7]. It is imperative to note here that two important acts, which is the Wildlife (Protection) Act, 1972 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept away from the NGT’s jurisdiction[8]. An important aspect of the Tribunal is that it is not bound by the Code of Civil Procedure, 1908 but is guided by the principles of Natural Justice[9]. The NGT is a topic which is of contemporary relevance owing to the fact that we live in an era where the imminent threats are climate change, carbon emissions, air pollution and polluted rivers. The NGT has completed a decade of its existence and the author, through this paper, aims to analyze the effectiveness of the tribunal and seeks to find out whether the tribunal has been able to succeed in what it mandated to be.

Remarkable Pronouncements of the NGT

The NGT is considered to be an outstanding example of an environmental court which is functioning in the backdrop of a constitutional safeguard under the right to healthy environment as a fundamental right to life provided under Article 21 of the Constitution of India. The NGT has passed some truly remarkable judgments through which it can be seen as a pioneer and a true champion of environment. One of the landmark judgments of the NGT has to be the POSCO case[10]. It is indeed one of the most important cases in NGT’s history. POSCO was the world’s fourth largest steelmaker, and it signed an MoU with the Odisha government to set up a 12 million tons capacity steel project in Jagatsinghpur. This was the biggest foreign direct investment in India and was an attraction for the global media. The NGT, however, keeping its objective of establishment intact, suspended the Odisha government’s order for the establishment of the plan on the ground to support sustainable development and valued local communities above the economic profit from the said project. This was considered to be a radical step in favor of the local communities and forests.

Another landmark case by the NGT has to be the Goa Foundation Case[11]. It would not be wrong to say that this was the case through which NGT’s jurisdiction was established in all civil cases involving a considerable issue of environment. In this case, a petition was filed for the protection of Western Ghats and the Tribunal directed the MoEF (Ministry of Environment and Forest) to file its reply within four weeks. Also, in the Art of Living Festival, which was held on Yamuna Plain, NGT found that the organizers of Art of Living Festival had violated the environmental norms and had caused severe damage to the food plain area at the Yamuna Banks. Taking this into account, the learned panel of NGT imposed a Rs. 5 Crore penalty on the Art of Living Foundation as environmental compensation after heavily criticizing the foundation for its said actions[12]. Furthermore, in an attempt to minimize air pollution in Delhi, the NGT has put a ban on diesel vehicles which are a decade old[13]. Also, in the case of Almitra H Patel v. Union of India[14], the NGT had directed states to implement rules regarding solid waste management and had prohibited open burning of waste on lands.

It is to be noted here that the NGT has intervened in almost all the matters relating to environment and climate change. India has been trying to combat air pollution since the last decade and we have seen a major depletion in the quality of air. However, the NGT in a bench headed by its Chairperson Justice A.K Goel, owing to this issue, had given a notice to the Central government to ban firecrackers during the Diwali time[15]. These are some of the landmark pronouncements by the NGT over the decade, but the looming question still remains the same- has the NGT truly been a champion of the environment in its full potential? Are these judgments enough for us to decode that the NGT is indeed functioning smoothly? Or are there more aspects to it? These questions shall be explored in the paragraphs to come.

Is the Tribunal Losing Its Grip?

We can see winds of change blowing through the tribunal and changing the way it is functioning. The NGT, of late, has adopted a new modus operandi, which is the 4-D approach to dealing with cases – “dismiss, dispose, delegate and de-reserve”[16]. This is a highly regressive step taken by the NGT and it contravenes its very objective of existence. By dismissing petitions outrightly, the Chairperson of NGT made a statement that only cases which have an important question relating to the environment and ecology would be dealt with. What is to be taken note of here is that the NGT Act always said that the tribunal would only deal with pertinent questions relating to the environment, but the method of dismissing cases without giving due reasons and notice is seen to be a new trend followed by the NGT, and this in turn is not only affecting environmental justice but is going against the very principles of Natural Justice, which the Tribunal is guided by.

Excluding the dismissals which have taken place after the Chairperson’s declaration, the NGT, in addition has dismissed over 700 cases since July 2018[17]. The orders have been largely generic, and they are mostly directing the concerned authorities to look into the matter and take appropriate action. What the Tribunal is failing to see here that by redirecting all the cases to the executive authorities, who are themselves defaulters in the majority of cases, the Tribunal is undermining its purpose of existence and is going against its very purpose of enactment. It is indeed difficult to believe that this is the same Tribunal which suspended a Rs. 6400 crore hydro project to save the habitat of a bird in the Save Mon federation case[18], is now dismissing cases without any notice or explanation.

Another problem with the Tribunal is that its orders are increasingly being challenged in the Courts and this is indeed a growing concern. It is observed that over the years, the NGT decisions have been challenged in various High Courts by invoking Article 226 and many High Courts are entertaining these appeals[19]. Additionally, there are appeals filed in the Supreme Court as well and this makes the issues to be in litigation for years without reaching to any conclusion. This is not only detrimental for the environmental justice but also is against the main reason for the establishment of the NGT being speedy and effective dismissal of cases.

Excessive Dependence on Committees

The NGT has established various outside advisory groups to investigate different parts of cases, to administer and screen the consistence of various laws and rules, and to present a report from that point. There are up to 90 committees set up as of now, of which almost 37 committees are being headed by retired Judges of the Supreme Court or of different high courts, including even panels headed by former members from the Tribunal itself[20]. This technique of designating the entirety of its basic powers and capacities to committees, with comparative structure and arrangement as the Tribunal, gives the view that the NGT is annulling its own purview on cases relating to environmental and ecological security. The High Courts have since quite a while ago denounced the act of Tribunals assigning their essential part to leader experts for their assessment on issues, as not commendable[21]. In this way, such inordinate appointment of committees by the NGT must be checked.

In addition, the “committee- raj” assuming control over the Tribunal likewise represents an unnecessary weight on the taxpayer’s money, which is presently being used towards payments made to the committee individuals. Such abuse of public cash could be kept away from and rather the money could be utilised for improving and reestablishing the climate. Further, the NGT as of now, has additionally passed requests to re-hear some of its own cases that had just been heard and saved for judgment already by various seats of the Tribunal, without giving any substantial explanations to such a phenomenal move[22].

It is clear from the abovementioned facts that the NGT has undergone a paradigm shift the way it functions. The NGT has shown preference towards taking Suo motu cognizance of cases originating from newspapers, letters, emails and are admitting them are petitions. This is a laudable bold move which is aimed to act as a deterrent for polluters by imposing considerable number of fines on them but neither corporations nor governments pay these damages and are instead challenging these orders in Supreme Court, resulting in prolonged litigation, and leaving the environment to be the real sufferer.

Administrative And Logistical Issues

Section 4 of the NGT Act[23] states that the tribunal shall consist of a full time chairperson and not less than 10 judicial and 10 expert members but subject to maximum of twenty full-time judicial and expert members. However, in the last ten years, the NGT has never got its minimum strength of members to address the increasing number of environmental and ecological issues in the country. Usually with only two to four members, the NGT is rather paralysed[24]. Also, the four zonal benches of the NGT have been shut owing to the fact that there have been no appointments made. The hearing of the zonal bench is now done only via video conferencing litigation[25] and that too for a maximum of two hours resulting in a pile up of cases which are not resolved within the mentioned time of six months.

Environment, being the eminent concern of the 21st century, has not been given due importance in India as the government has not shown any seriousness in appointing judicial members and expert members in the Tribunal. There are many complex issues which we need to combat such as treatment of nuclear waste, climate change, carbon emission etc. and for this, we need experts appointed duly who can tackle such issues[26]. There seems to be too much orientation towards the Judiciary in the Tribunal and it is suggested by the author that by appointing a chairperson who is an expert in environment or in a certain area of it might help the functioning of the Tribunal. We must also look at setting up more benches of the NGT and making the zonal benches operational as a Judge sitting in Delhi and hearing an issue from Kerala does not make any logical sense. By setting up more benches and appointing adequate number of experts, the Tribunal can surely do justice to the environment.

Conclusion

The NGT is indeed the environmental watchdog of the nation. It is remarkable to see that how after numerous efforts, the Tribunal finally came into existence. The objectives of the Tribunal have been solely revolving around concerns of environment and a speedy dismissal of cases. In order to achieve this, the four zonal benches along with the principal bench being in Delhi were established. After a decade of its inception, the NGT seems to have lost touch to its very own objectives and the aims that it stands for. The promise of speedy trial was embarked by a time limit given to the Tribunal as six months, however, today as we see, due to numerous appeals and counter appeals, the matters lie in litigation for years. We, as a nation, need a redressal mechanism for this prolonged litigation and in my opinion, the Supreme Court must intervene to make sure that the cases are decided in the stipulated time period of six months.

Also, due to lack of expert members and other significant logistical issues, the tribunal has become paralysed. The government needs to appoint more members and experts in order for the Tribunal to function smoothly and fulfil what it mandated for initially. Furthermore, the 4-D approach of the Tribunal must change and it must at least give reasons for dismissing matters at the first level. A major change that is recommended is that the Chairperson must be an expert in the area of environment, in order to understand the complex problems and give a solution that balances both the environment and the economy. Lastly, it is perceived throughout the globe that Green Courts are the way to go forward and in such times, one must ensure that India’s Green Court is adequately equipped with all the factors in order to truly provide justice to the environment as we are all warriors of a larger fight to save the planet.

[1] M.C Mehta and Anr v. Union of India, 1986 AIR 1086, 1987 SCR (1) 819 [2] Proposal to constitute environment courts, Report no. 186 Law Commission of India, September 2003. [3] Ibid [4] National Environmental Tribunal Act in 1995, Act of Parliament, No. 27 of 1995 [5] National Environment Appellate Authority Act, 1997, Act of Parliament. [6] National Green Tribunal Act, 2010, Act of Parliament. [7] Drishti IAS “10 years of National Green Tribunal”. Accessed on 29 July 2021. https://www.drishtiias.com/daily-updates/daily-news-editorials/10-years-of-national-green-tribunal [8] Ibid [9] Ghosh, Shibani “Understanding the National Green Tribunal” Centre for policy Research 2016 https://www.cprindia.org/news/understanding-national-green-tribunal [10] Praffula Samantra v. Union of India and Ors., 2012 appeal no. 8/2011 [11] The Goa Foundation and Anr v. Union of India and Ors, 2013 M.A no 49 of 2013 [12] Ghosh, Shinjini “Art of Living Damaged Yamuna Foodplains :NGT” The Hindu 2017 https://www.thehindu.com/news/cities/Delhi/art-of-living-damaged-yamuna-floodplains-ngt/article21293122.ece [13] https://www.thehindu.com/news/cities/Delhi/ngt-reiterates-order-banning-10-year-old-diesel-vehicles/article24576587.ece [14] Almitra H Patel and Anr v. Union of India and Ors, 2000 [15] https://www.thehindu.com/news/national/air-pollution-ngt-notice-to-centre-to-ban-fire-crackers-from-november-7-to-30/article33004618.ece [16] Ramesh, Maya “Nearly a Decade old, is the NGT losing its bite?” The Wire 2019 https://thewire.in/environment/nearly-a-decade-old-is-the-national-green-tribunal-losing-its-bite [17] Ibid [18] Save Mon Region Federation & Anr v. Union of India & Ors, 2013. [19] Ghosh, Shibani “Environment Litigation in India” The Hindu Business Line 2012 https://www.thehindubusinessline.com/opinion/Environmental-litigation-in-India/article20390746.ece?homepage=true# [20] Ramesh, Maya “Nearly a Decade old, is the NGT losing its bite?” The Wire 2019 https://thewire.in/environment/nearly-a-decade-old-is-the-national-green-tribunal-losing-its-bite [21] https://www.thehindu.com/news/cities/mumbai/news/challenges-to-ngt-orders-in-courts-a-growing-concern/article8387736.ece [22] Supra note 20 [23] Section 4, National Green Tribunal Act, 2010. [24] Chauhan, Nidhi “A Machinery Safeguarding Environment: the NGT” Legal Service India http://www.legalservicesindia.com/article/2257/A-Machinery-Safeguarding-Environment:-National-Green-Tribunal.html [25] Sahu, Geetajoy “wither the national green tribunal?” Down to Earth 2019 https://www.downtoearth.org.in/blog/environment/whither-the-national-green-tribunal--66879 [26] Ibid

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About Author

Aparna Balachandra Iyer

Aparna is a 5th year BALLB student studying in O.P. Jindal Global University