28 National Green Tribunal Act – 2010

Ashutosh Jaiswal

epgp books

    Structure

 

1.1 Introduction

 

1.2 Major Environmental Issues in India

 

1.3 Introduction to National Green Tribunal Act (NGTA) – 2010

 

1.4 Objectives of the NGTA – 2010

 

1.5 The Members and Chairs of the NGTA – 2010

 

1.6 Salient Features of NGTA – 2010

 

1.7 Amendments in the National Green Tribunal Bill

 

1.8 Criticism of the Act

 

 

Objectives:

  • To get familiar with major environmental issues in India
  • To understand the notion of National Green Tribunal Act (NGTA) – 2010
  • To discuss objectives and salient features of NGTA – 2010
  • To know Amendments in the National Green Tribunal Act (NGTA) – 2010
  • To examine drawbacks and criticism of National Green Tribunal Act (NGTA) – 2010

 

1.1 Introduction

 

As we all are well familiar with the environment, it is everything which surrounds us naturally and affects our daily lives on the earth. Everything comes under an environment, the air which we breathe every moment, the water which we use for our daily routine, plants, animals and other living things, etc around us. An environment is called healthy environment when natural cycle goes side by side without any disturbance. Any type of disturbance in the nature’s balance affects the environment totally which ruins the human lives. Now, in the era of advance living standard of the human being, our environment is getting affected to a great extent by the means of air pollution, noise pollution, deforestation, water pollution, soil pollution, acid rain and other dangerous disasters created by the human beings through technological advancement. We all must take an oath together to protect our natural environment to keep it safe as usual forever.

 

India is one of the oldest civilization in the world and seventh largest country with an area of 3287263 sq km. It is a country of multiple rivers (e.g. Ganga, Indus, Brahmaputra, Narmada, Tapti, Kaveri, Godavari, Krishna, Mahanadi etc.). Basically the earliest civilization of India was developed in the bank of several rivers. Human lives of India mostly depend on the river, because the development of agriculture and industry are impossible without water which supply from rivers. Last seven decades of the independence India has become self sufficient in agricultural production and is now the tenth industrialized country in the world and the sixth nation to have gone into outer space to conquer nature for the benefit of the people. India extends from the snow-covered Himalayan to the tropical rain forests of the south.

 

While India has gone through a rapid period of economic growth in recent years, critics say that growth has come at a severe cost to the country’s environment in the form of deforestation, pollution and threats to endangered species. A high standard of living in India has increased the demand for lumber and this has led to significant deforestation within the country. According to the World Wildlife Fund, overall industrial round wood usage in India could surpass 70 million square meters annually by 2020. Domestic supply would fall short of this number by approximately 14 million square meters. As the nation must count heavily on imports to meet this growing need, there is anxiety that this could cause loss of forests with high conservation values and significantly lower biodiversity. The problem is only made worse by the fact that some of the world’s most iconic and endangered species live in India. On the other hand the Government has the duty to protect the ‘exhaustible natural resources from rash reckless spoliation’. This duty is also base on the Professor Joseph Sax’s doctrine of public trust. Under this doctrine, Government, as the trustee for its citizen and unborn generation, has the enough competencies to control the polluter to prevent the natural resources or in much simpler term protect the environment. Indian Government is also aware of its responsibility. With being the signatory to UN Convention on Environment, 1972 and Constitutional provisions, legislations and administrative directions to protect the Environment, Indian Government has shown its seriousness about the environment.

 

1.2 Major Environmental Issues in India

 

The last 7 decades of the independence the huge development of Indian economy is leading to a number of environmental issues. Indian environment is decreasing its natural balance. The environmental issues in India are uncontrolled growth of urbanization, industrialization, massive intensification of agriculture, rapid growth of population which adversely affects the natural resources, pesticides and fertilizers, vehicles and industry emissions and the destruction of forests. Some of these environmental issues are discussed below in brief:

 

Population Growth and Pollution: The pressure of population on the environment has become more acute during past few decades. About 34 million people in 1947, the time of independence have swelled up to 86 million in 1991 and is likely to cross 100 million mark by the turn of this century and more than 200 crores by 2035. Concentration of people in the urban areas which are already polluted is becoming heavier. In our metropolitan cities where there is heavy concentration of people, the water resource is deeply polluted because of lavatory refuse, waste-bin refuse and washing soap refuse. Inspite of all out efforts to curb it, the increase continues nearly unabated because of socio-religious factors. Over exploitation of groundwater is an acute problem in the agriculturally important districts. Class I and Class II cities of India are generating enormous amount of sewage wastewater per day, but treat only a tenth. The total sewage generation from urban centres has grown 6-times in the last 50 years. The water requirement of major water-consuming industries has increased 40-times, but they are not treating the huge wastewater generation from their own. Production of municipal solid waste has grown 7-times while their collection, transport and disposal often remain unscientific and hazardous. Indoor and outdoor air pollution have caused about 2.5 million pre-mature deaths since Independence.

 

Garbage Disposal and Sanitation: According to a 2014 report by The Economist, about 130 million households (600 million population) in the country lack toilets.

 

Over 72 percent of India’s rural population defecate in the open. Ancient practices such as manual scavenging are still in vogue in the country. Lack of safe garbage disposal systems in the country make India one of the most unhygienic countries in the world. The rural regions of the country are worse off than urban tracts in this regard.

 

Rapid Urbanization: The urbanization and the rapid growth of industrialization are causing through environmental pollution the greatest harm to the plant life, which in turn causing harm to the animal kingdom and the human lives. Urbanization and industrialization has given birth to a great number of environmental problems that need urgent attention. Over 30 per cent of urban Indians live in slums. Out of India’s 3,245 towns and cities, only 21 have partial or full sewerage and treatment facilities.

 

Hence, coping with rapid urbanization is a major challenge.

 

Deforestation: The country has very diverse forest vegetation ranging from the moist evergreen forests in the North-East, along the West Coast and the Andaman & Nicobar Islands to the temperate and alpine vegetation in the Himalayas. However, this forest wealth is dwindling due to overgrazing, over exploitation, encroachments, unsustainable practices, forest fire and indiscriminate sitting of development projects in the forest areas. Withdrawal of forest products, including fuel wood, timber etc. is much beyond the carrying capacity of our forests. The current annual withdrawal of fuel wood is estimated at 235 million cubic meters against a sustainable capacity of about 48 million cubic meters.

 

Pollution: Most serious type of pollution in our country is water pollution. Many Industries are functioning in our country. Sewage from these industries are the main cause of water pollution. Most of the known rivers in India are nasty. This includes the holy rivers Ganges and Yamuna. Even small rivers like Bharathapuzha are deeply polluted. Air pollution is mainly due to burning of fossil fuels like coal and petrol which cause respiratory diseases. Usage of lead in petrol was banned in India recently. This shows the seriousness of the condition. Air pollution is common in the major cities and industrial areas like Mumbai and Bangalore. Due to emission of various acidic compounds from nearby industries world famous monument TajMahal is facing destruction.

 

Industrial activities:The industries all over the world that brought prosperity and affluence, made inroads in the biosphere and disturbed the ecological balances. The pall of smoke, the swirling gases, industrial effluents and the fall-out of scientific experiments became constant health hazards, polluting and contaminating both air and water. The improper disposal of industrial wastes is the sources of soil and water pollution. Chemical waste resulting from industry can pollute lakes, rivers and seas and soil too as well as releasing fumes.

 

Increasing numbers of Vehicles:The smoke emitted by vehicles using petrol and diesel and the cooking coal also pollutes the environment. The multiplication of vehicles, emitting black smoke that, being free and unfettered, spreads out and mixes with the air we breathe. The harmful smoke of these vehicles causes air pollution. Further, the sound produced by these vehicles produces causes noise-pollution.

 

   Use of Plastics: Unrestrained use of plastics is another major concern for the country. According to data from the Plastindia Foundation, India’s demand for polymers is expected to go up from 11 million tonnes in 2012-13 to about 16.5 million tonnes in 2016-17. India’s per capita plastic consumption went up from about 4 kg in 2006 to some 8 kg in 2010. By 2020, this is likely to shoot up to about 27 kg. To understand the damage that this can cause to the environment, it is important to understand that plastics are one of the least biodegradable materials. An average plastic beverage bottle could take up to 500 years to decompose naturally.

 

      Thus a need arise to save our environment through sustainable development and there are many Programmes and Acts which has been initiated at national and international level and from among these Acts National Green Tribunal Act (NGTA) 2010 has been discussed in detail below.

 

    1.3 Introduction to National Green Tribunal Act (NGTA) – 2010

 

Human beings have always been a meddling entity. For his convenience, man has time and again brought changes to his natural habitat which has resulted in harmful impacts on the environment and has also swiped off many of the living species from the earth. Environmental Law, as the name suggests, is a body of rules and regulations relating to the environment, which functions to achieve the objectives of environmental protection. It includes all the treaties, statutes, rules, guidelines, customs, etc. which governs the conduct of a human being in their day-to-day lives as well as ensures its protection. In the present scenario, we see environmental law as a wide term which encompasses various legislations, treaties, customs, etc., but initially, it emerged as a set of laws with specific objectives, for example, prevention of nuisance, strict liability principle, etc. The development of the different subject specific laws in the field of the environmental law have led to its development and have not only given enlarged its scope but has also added to its quality. One such enactment is the National Green Tribunal Act, 2010 which has both long term and short term objectives. The long-term objective lies in the protection of the environment, and the short-term objective involves setting up of a tribunal for the resolution of disputes in a speedy and effective manner. The tribunal itself is a special fast-track court to handle the expeditious disposal of the cases pertaining to environmental issues. By virtue of this law, the National Environmental Tribunal Act and the National Environment Appellate Authority Act were repealed. India committed to take appropriate steps for the protection and improvement of the human environment and to provide effective access to judicial and administrative proceedings, including redress and remedies.

 

Landmarks of National Green Tribunal Act (NGTA) – 2010

 

National Green Tribunal Act (NGT) was established in June 2010, under India’s constitutional provision of Article 21

 

It assures the citizens of India, the right to a healthy environment under Article 2 of the Charter of Fundamental Rights of the European Union, which affirms the right to life.

 

The National Green Tribunal (NGT) was officially passed by the legislature on 19 October 2010 with its Chairperson, Justice Lokeshwar Singh Panta.

 

The NGTA implements the commitments of India made in the Stockholm Declaration of 1972 and in the Rio Conference of 1992.

 

    1.4 Objectives of the NGTA – 2010

 

The objective of establishing a National Green Tribunal was as follows:

  • To provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental
  • Environmental protection and conservation of forests and other natural resources
  • Enforcement of any legal right relating to environment
  • Giving relief and compensation for damages to persons and property
  • For matters connected therewith or incidental thereto.

 

1.5 The Members and Chairs of the NGTA – 2010

 

The Act empowers the Central Government to establish the National Green Tribunal for the purpose of implementing jurisdiction and authority conferred under the Act. The Tribunal shall comprise of Chairperson, Judicial members and Expert members.

   Chairperson or Judicial Member: A person shall be eligible to be appointed as the Chairperson or Judicial Member of the Tribunal only if he is presently or retired Supreme Court Judge or Chief Justice of the High Court. A Judicial Member shall also be a person who is or retired High Court Judge. Chairperson shall be appointed on the advice of the Chief Justice of India.

 

Expert Members: A person shall be appointed as the Expert Member if he holds Masters Degree in Science with Doctorate degree or Masters in Engineering or Technology and has the specified experience in the field of environment and forests in the National level institution or has experience in the administrative field in the environmental matters. The members of the Tribunal shall be appointed by the Central Government. The Judicial Member and the Expert Members shall be appointed on the approval of the Selection Committee.

The members of the Tribunal shall continue to hold office for five years from the date of appointment but he shall not be reappointed. The members of the Tribunal shall resign from the office by notice in writing addressed to the Central Government. The Chairperson of the Tribunal is vested with financial and administrative powers under the rules formulated by the Central Government.

 

1.6 Salient Features of NGTA – 2010

 

§   The Act seeks to establish specialized Green Tribunalwith five benches located at different regions in the country.

 

§   The national capital has been chosen as the principal bench or the headquarter of the NGT, with four regional benches located in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench).Each Bench has a specified geographical jurisdiction covering several States in a region.

 

§   First jurisdiction to hear a case involving environmental matters is wider than the on conferred on the National Environmental Appellate Authority which has now been replace by the new Act.

 

§   The Act confers on the Green Tribunal to hear initial complaints as well as appeals from decisions of authorities under various environmental laws. These include 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 and The Biological Diversity Act, 2002.

 

§   The Tribunal, when established, would not be bound to follow the procedure laid down in the Code of Civil Procedure 1908 instead, it is allowed to follow the abstract principles of natural justice. However, the Tribunal will have the powers of a civil court under the Civil Procedure Code 1908.

 

§   Its decisions are binding on the parties. There can be appeals to the Supreme Court against the decisions, orders or awards of the Tribunal.

 

§   The Act also ordains that no civil court shall be allowed to entertain cases which Tribunal is competent to hear.

 

§   The most salient feature of the Act is that the Green Tribunal is enjoined to follow the internationally recognized and nationally applied environmental ‘Principles of Sustainable Development’. ‘Precautionary Principle’ and ‘Polluter Pays Principle’ while issuing any order, decision or award.

 

§   While the Act envisages the conferment of wide jurisdiction on the Green Tribunal, it also, at the same time, seeks to restrict the scope of its jurisdiction only to matters involving substantial, questions, relating environment.

 

§   The expression a substantial question has been defined as an instance where there is a direct violation of specific environmental obligation affecting either the community at large other than an individual or group of individuals by its environmental consequence or where the gravity of the damage to the environment or property is substantial or (iii) where the damage to public health is broadly measurable.

 

§   It is interesting to note while the right to Article 21 of the constitution is a fundamental right guaranteed to individuals, the Act seeks to deny to the same individuals and groups of individuals the right to question any environmental consequence that affects them unless it also affects the community at large or public health. However, individuals can approach the court when the damage to the environment or property is substantial. It is submitted that the definition of the expression “substantial question related to environment” as given in the Act which provides for statutory exclusion of individuals may not stand judicial scrutiny, for, the right to healthy environment, in its wide amplitude, subsumes all aspects of environmental degradation.

 

§   Again, it is doubtful whether the jurisdiction of the High Courts which are constitutional courts can be excluded either by ordinary legislation or by a constitutional amendment as their power of judicial review is a part of the basic structure of the Constitution.

 

   

1.7Amendments in the National Green Tribunal Bill

 

This bill was passed in the LokSabha only after some necessary reforms were incorporated by the environment minister Jairam Ramesh. Earlier, the bill had faced many objections from various political parties and other civil society groups. A major amendment in the bill was incorporating benches of the tribunal on circuit basis and mobilizing these benches to make them approachable to the people living in far flung places. Another amendment incorporated in the bill was modification of the criteria regarding those who can lodge a complaint with the tribunal. Earlier, the bill allowed only a representative association working in the field of environment to file a case. At present, any person aggrieved, which also includes any representative organization, can file a case and claim for relief from the tribunal. The environment ministry has also included the three founding principles, which include:

 

The tribunals will adjudicate against a framework of precautionary measures.

 

The liability to pay for any financial loss arising from an incident is put on the offender or the polluter.

 

The tribunal shall put the liability on the person or the group of persons under inquiry, to prove that their act will not cause any damage to the public or environment.

   

1.8 Criticism of the Act

 

Some of the important criticisms are listed below:

 

High Court of Chennai has been approached with a Public Interest Litigation challenging the National Green Tribunal Act, 2010. A Division Bench of Madras High Court comprising Justice Elipe Dharma Rao and Justice D. Hariparanthamanhave issued notice on the same just. The petition has been filed by M. Naveen Kumar, a student pursuing B.A., B.L (Hons.) Course at the School of Excellence in Law, Dr. Ambedkar Law University, Chennai. The petition has sought a declaration that the National Green Tribunal Act 2010 is unconstitutional. The National Green Tribunal Act, 2010 enacted by the Parliament provides for constitution of the National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection. Naveen Kumar appearing in person submitted that the constitution of the Green Tribunal and exclusion of all environmental matters from ambit of the jurisdiction of High Court and the Civil Courts would severely affect the right of access to justice to the poor and needy. It was further submitted that Section 3 of NGT Act only provides for constitution of a National Level Tribunal and Section 4(4) provides for circuit benches. It has been contended that there is no provision under the Act for providing a Tribunal for each state. This would also make it difficult for the litigants to approach the tribunal as the redressal process would be expensive, burdensome and complicated, added the petitioner.

 

The qualifications for a technical member are more favorable to bureaucrats (especially retired) and to irrelevant technocrats. The act considers higher degrees in Science, Technology and Administrative experience but no provision for Ecologist, Sociologist, Environmentalist, Civil Society or NGO, etc.

 

The Act is silent on provision that who is liable to pay compensation or cost of damage to public health or environment. The MOEF state that it shall be notified in rules but this substantial concern shall be included in act only not on will of executive.

 

The Act doesn’t provide jurisdiction to Tribunal over all laws related to environment such as Wildlife Protection Act (1972), Indian Forest Act 1927, Scheduled Tribes (Recognition of Forest Rights Act) 2005 and various other state legislations.

 

NGT though is regular in scheduling hearings, typically with time gaps of two to three weeks between two consecutive hearings. Despite the high percentage of cases being disposed of, there is also an increasing backlog of cases in NGT.

 

NGT’s critics have also questioned the “lack of environmental finesse” of its expert members. “Usually, the expert members are experts of one particular field and not of environment as a whole. For instance, an expert member who has been working on forests for many years would not be able to comprehend the issues arising out of industrial pollution. Thus, the judgments are vague and not relevant in some cases.

 

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References

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