National Green Tribunal of India—an observation from environmental judgements

Environmental Science and Pollution Research, Mar 2018

Sridhar Rengarajan, Dhivya Palaniyappan, Purvaja Ramachandran, Ramesh Ramachandran

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National Green Tribunal of India—an observation from environmental judgements

National Green Tribunal of India-an observation from environmental judgements Sridhar Rengarajan 0 Dhivya Palaniyappan 0 Purvaja Ramachandran 0 Ramesh Ramachandran 0 0 National Centre for Sustainable Coastal Management, Ministry of Environment, Forests & Climate Change, Anna University Campus , Chennai , India 1 Sridhar Rengarajan Responsible editor: Philippe Garrigues Introduction Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16—‘to provide access to justice for all and build effective, accountable and inclusive institutions at all levels’, according to Pring and Pring (2016) . To accomplish this goal, establishing specialised courts and tribunals dealing exclusively with environmental matters is becoming essential. All over the world, more than 1200 environmental courts and tribunals are functioning in various countries, and more such courts have been planned for the future, as discussed by Pring and Pring (2016) . As far as India is concerned, the need for establishing environmental courts in India arose in different circumstances and in different times. In the cases of M.C. Mehta Vs. Union of India (AIR 1987 SC 965), Indian Council for Enviro-Legal Action Vs. Union of India (1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V. Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996, 2001) observed that as environmental cases frequently involve assessment of scientific data, setting up environmental courts on a regional basis with a legally qualified judge and two experts would help speed the judicial process. The Law Commission of India (186th Report 2003) recommended the establishment of environmental courts in India. This recommendation was based on a review of the technical and scientific problems that came before the courts and the inadequacy of judicial knowledge on the scientific and technical aspects of environmental issues. ( 20report.pdf). Establishment of environmental courts The NGT was established in the year 2010 under the National Green Tribunal Act of 2010 to dispose of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights related to the environment (National Green Tribunal n.d.). The Act was enacted through the Parliament of India, under the provision of Article 21 of the Constitution of India, which emphasises the right to live in a clean and healthy environment. The NGT replaced the existing National Environment Appellate Authority of the Ministry of Environment and Forest. The tribunal, according to the NGT Act of 2010, shall have 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’, namely The Water (Prevention and Control of Pollution) Act of 1974, the Water (Prevention and Control of Pollution) Cess Act of 1977, The Forest (Conservation) Act of 1980, The Air (Prevention and Control of Pollution) Act of 1981, The Environment (Protection) Act of 1986,The Public Liability Insurance Act of 1991 and The Biological diversity Act of 2002. At present, the NGT is functional in five locations. New Delhi is the principal seat of the Tribunal (Principal Bench) and Bhopal (Central Zone), Pune (West Zone), Kolkata (East Zone) and Chennai (South Zone) are the other seats of the tribunal as zonal benches. By establishing zonal benches, people from different parts of the country can have access to the tribunal. Each tribunal will have Judicial and Expert Members. Additionally, the NGT constituted circuit benches to convene in places, viz. Shimla, Shillong, Jodhpur and Kochi, to hear cases pertaining to particular states. This was mainly to reduce the constraints of accessibility, especially for the poor and tribal populations living in remote areas of the country. The NGT is a ‘quasi-judicial body’ and has limited power. It has authority similar to law-enforcement agencies, but it is not like a normal court. The courts have the power to adjudicate all types of disputes, but NGT has the power of enforcing laws on administrative agencies. NGT was created to ease the burden on the normal courts. NGT’s actions may be appealed to a court of law. For example, in cases of crime and other offences, NGT can only issue recommendations for punishment, depending on the nature and gravity of the offence. However, such punishment can be challenged in a court of law, which is the final authority. In this context also, the NGT’s role appears limited. Very few studies have been conducted on the functioning and effectiveness of NGT. An empirical analysis of NGT judgements from its inception in October 2010 to December 2013 analysed the impact of NGT and the locations of conflicts in India (Patra and Krishna 2015) . While discussing the subject of environmental justice in India, Gill (2016) argued that ‘the involvement of technical experts in decision-making promotes better environmental results while simultaneously recognizing the uncertainty in science’ and also stated that ‘India’s record as a progressive jurisdiction in environmental matters through its proactive judiciary is internationally recognized’. Shrotria (2015) discussed the NGT, its jurisdiction, powers, functions, significant cases, principles applied, accessibility and value addition to environmental jurisprudence, and stated that NGT has had an important role in providing access to justice on matters concerning the environment. It also realised that a review on the provisions of the NGT Act is needed with a view toward removing obstacles to making the NGT more effective. Shrotria (2015) also categorised the cases that are adjudicated by the NGT into five types, which include (i) original applications filed by aggrieved persons arising under those legislations within the purview of the NGT Act, (ii) original applications seeking compensation, (iii) applications from the implementing authorities seeking enforcement and legitimacy of conditions imposed on polluters, (iv) appeals from industries against the decision of the implementing authorities and (v) appeals from NGO’s/aggrieved persons regarding non-compliance to rules/notifications/clearances/etc. Rajan (2014) attempted to highlight the history of environmental justice in India since 1970. He discussed the ways environmental justice was promoted, considering the environment and development; the emergence of a red-green environmentalism during the 1980s and 1990s, and the Bhopal Gas Tragedy and its implications. It is believed that environmental justice has become significant with the existence of a vibrant civil society and its capacity to inform state policy and engender institutional evolution in Indian democracy. Twelve key characteristics were found to be appropriate for assessing the successful operation of environmental courts and tribunals (ECT) (Preston 2014) . These include (i) status and authority; (ii) independence; (iii) centralised jurisdiction; (iv) knowledge of judges and members; (v) operating as a multi-door courthouse; (vi) access to scientific and technical expertise; (vii) facilitating access to justice; (viii) quick and cheap resolution of disputes; (ix) responsiveness to environmental problems; (x) development of environmental jurisprudence; (xi) underlying ethos and mission and (xii) flexible, innovative and provides value-adding function. The application of international environmental law principles, such as sustainable development, and precautionary and ‘polluter pays’, to the NGT was discussed by Gill (2014) . The ‘pros’ and ‘cons’ of the establishment of green tribunals were discussed in the Indian context from a comparative perspective, and it was concluded that green tribunals appear to be very useful tools to satisfy the growing needs of environmental protection and sustainable development in the Asian region, in terms of efficacy and social legitimacy of sustainable laws (Amirante 2012) . While commenting on the establishment of NGT, Sharma (2008) argued that the constitution of a new court system may not be such a ‘green’ plan unless it is made capable of adjudicating in an atmosphere independent of dominating political interests, and suggested the establishment of specialist divisions within the existing Indian High Courts as an alternative. Up to the year 2016, 2051 judgements were delivered by the NGT (including zonal benches) in total for various cases of environmental matters across the nation. It is agreed that all of them are related to the environment from a broad perspective. However, there is a need to know the predominant areas in the Environment, such as water, air, waste, noise and environmental compensation, on which appeals or petitions were made to the tribunal and Judgements were delivered. This is needed to understand the areas of greatest conflict that NGT faces. In view of the above-mentioned limited studies on the functioning and effectiveness of NGT, the present work was formulated to address the research question: How do the effects of sensitive environmental issues emerge from natural and man-made causes, which lead the NGT to pronounce various directions? The present study also made observations on the environmental judgements of the NGT, with special emphasis on cases in the year 2016, to reveal the priority areas regarding the environment that can be strengthened with appropriate environmental monitoring mechanisms. Methodology For the present study, all the judgements for the year 2016 (Total no. of judgements: 510) were collected from the NGT Website ( Each judgement was carefully examined to learn the details of the Appellants and Respondents, main petition by the Appellant, background of the case and the judgement given by the tribunal. Based on the petition of the appellants and the core point of the order, the judgements were classified and grouped under several sectors concerning the environment. The judgements were also grouped based on the zonal representations in India. Further, the judgements of the NGT for each year from 2011 to 2016 were also counted from the NGT website to observe their increasing or decreasing trends. Results and discussion The number of environmental judgements delivered by the NGT from its inception is on an increasing trend, indicating the growing environmental concerns in a developing country like India. Based on analysis of the judgements of NGT, so far, a total of 2051 judgements were delivered by the NGT (including zonal benches) from the inception year 2011 to the year 2016, for various cases of environmental matters across the nation. The minimum was seen in the year 2011 (28 orders) and the maximum was seen in the year 2015 (821 orders) (Fig. 1). Further, a majority of the judgements were from the Southern Zone (318), followed by the Principal bench-New Delhi (79), West Zone (78), East Zone (25) and Central zone (10) (Fig. 2). We examined the NGT judgements, taking the year 2016 as a case study, to understand the petitions behind the judgements. There were 510 judgements delivered by NGT in 2016 and they were classified under different sectors of No. of cases handled and judgements delivered 1000 ts 800 n e em600 g d fJu 400 o o N 200 0 2011 2012 2013 2014 Year 2015 2016 Fig. 2 Judgements from different zones of NGT. SZ South Zone, EZ East Zone, CZ Central Zone, WZ West Zone environmental law. This was done considering the jurisdictions of the NGT. When NGT was established, it was defined that NGT would adjudicate on the matters coming under the various Acts, viz. 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. Accordingly, the judgements were classified into different environmental sectors, namely Air, Water, Waste, Noise, Nature, Industry Operations, Thermal Power Plants, Mining Operations, Environmental Compensations and Others. The classification details of different sectors analysed in the present study are given in Table 1. Of the total judgements delivered in 2016 (510 Nos.), the majority of petitions were related to Industry Operations (176) which was followed by the other environmental sectors namely, Nature (143), Mining Operations (61), Water (43), Waste (26), Environmental Compensations (12), Noise (11) and Air (9), as shown in Fig. 3. Depending on the nature of the cases, the Ministry of Environment, Forest and Climate Change (MoEF&CC) was made one of the Respondents. In the cases of 2016 taken for analysis, in the majority of petitions, the MoEF&CC became one of the Respondents. As can be seen, the greatest number of petitions during 2016 concerned Industry Operations and secondly Nature issues. Here, the sector Industry Operations covers various appeals concerning Impact Assessment, Environmental Clearances, Small Industrial Units, Consent to Operate and Standards. The sector Nature covers those appeals about Nature Conservation, Forests, Tree Cutting, Green Belts, Wetlands, Landscape and Construction. Overall, the sector Industry Operations is based on the environmental clearances of projects and their monitoring activities. The present regulatory provisions for protecting our environment and institutional mechanism that are already in place to monitor these activities need to be reviewed from Details of sector Air pollution, emissions/smoke from vehicles, etc. Drinking water, ground water, etc. Solid waste, liquid waste, sewage, ETPs, etc. Noise pollution Nature conservation, forest, tree cutting, green belt, wetland, landscape, construction, etc. Impact Assessment, Environmental clearances, small industrial units, consent, standards for operation, etc Impact of Thermal Power Plants and related Quarrying activities of sand, coal, mineral, stone, etc. Compensations The applications are not in proper format or no representation from the appellants when hearing, etc. the awareness and implementation points of view, as the majority of cases are related to Industry Operations. The MoEF&CC in the central government is the nodal agency for overseeing the implementation of the country’s environmental policy and programme relating to conservation and protection, taking the principle of sustainable development as the main guidance. The existing system for issuing environmental clearances for projects and their monitoring activities are well constituted. From the environmental protection point of view, prior environmental clearances are issued by the MoEF&CC before any developmental projects are implemented in the country, in accordance with the Environment Impact Assessment (EIA) Notification of 2006. Further, the environmental norms issued for developmental projects are monitored by the Regional Offices of the Ministry and the relevant State Pollution Control Boards and Pollution Control Committees of Union Territories. The process of prior environmental clearance includes screening, scoping, public consultation and appraisal. The process includes prescription of Terms of Reference, collection of data and preparation of draft EIA/EMP report, public consultation, finalisation of EIA/EMP report, appraisal by the Expert Appraisal Committee and examination in the MoEF&CC for grant of environmental clearance. Further, violation cases are taken in parallel by the MoEF&CC for appropriate action. The regional offices of the MoEF&CC are located at Bangalore, Bhopal, Bhubaneswar, Chandigarh, Chennai, Dehradun, Lucknow, Nagpur, Ranchi and Shillong, which inter-alia monitor the implementation of conditions and safeguards stipulated by the Ministry while granting clearances to development projects under rules specified under the provisions of the Environment (Protection) Act, 1986. In addition to the above, the MoEF&CC also engages the National Centre for Sustainable Coastal Management (NCSCM) for EIA studies and monitoring activities for environmental projects of CRZ nature. In the matter of Rajendra Singh Bhandari Vs State of Uttarakhand and Others (Original Application No. 318 of 2013), the NGT issued detailed guidelines to the State Fig. 3 Appeals/Petitions to the NGT from various environmental sectors in 2016. A Air, WT Water, WS Waste, N Noise, NT Nature, IO Industry Operation, TPP Thermal Power Plant, MI Mining Operation, E.Comp Environmental Compensation, OT Others 40 35 Governments/Union Territories for preventing and controlling water pollution through the State Pollution Control Boards. NGT also highlighted that the constitution of the Pollution Control Boards and eligibility criteria and appointment of Chairman/Member Secretary of the Boards/Committees should be in accordance with the Water Act and Air Act. Suo motu applications From the study, we observed that, in several important environmental matters, the NGT takes suo motu appeals in the interest of environmental protection and public health. In the context that NGT does not have power for suo motu appeals under the NGT Act, the question of ‘can NGT take Suo Motu cognisance of an environmental matter?’ was discussed by Shrotria (2015) , citing examples of a few of the cases that the NGT dealt with. The act of suo motu by NGT was challenged in the Madras High Court, which disagreed with the argument made by the tribunal, i.e. the tribunal is empowered to evolve its own procedure and it can take suo motu cognisance of an environmental issue. In the year 2016, there were a total of eleven (11) suo motu appeals taken by the NGT. Among them, the Water sector ranked first (5) and both Industry Operations (2) and Nature (2) sectors ranked second and Mining and Waste sectors, having one appeal each, ranked third. In the matter of suo motu proceedings initiated on a petition received from Sri.K.J. Poulose, Ernakulam (Application No.389 of 2013), the NGT issued directions to the State Pollution Control Board (SPCB) for prevention of pollution of the river Periyar by Industries and to take appropriate action in case of violation, including closure of the units, after following due process of law. We noted that in one of the suo motu appeals (Application No. 182 of 2013 in the matter of suo motu Vs. The Secretary to Government, Municipal Administration and Water Supply Department, Government of Tamil Nadu), the tribunal took a complaint of poor quality of government tap water in Chennai City and issued directions to the authorities concerned. From the above facts, we can understand that the NGT is functioning effectively, and the NGT is seen as ‘Responsive to Environmental Problems’, as one of the characteristics of successful environmental courts and tribunals. Coastal Regulation Zone issues From the judgements of the year 2016, there were 17 judgements related to the Coastal Regulation Zone (CRZ). In such CRZ matters, the NGT handled the applications and dealt with them after examining the nature of the individual case. We noted that in several cases of CRZ nature, the NGT made the following observations and directions: (i) NGT stressed that the public hearing process is necessary before finalising a Coastal Zone Management Plan. (ii) In appropriate cases, NGT refers cases back to the respective coastal zone management authorities to examine the matter for appropriate action in accordance with the provisions of CRZ Notification. (iii) In some cases, NGT will also hold the clearances issued, until an action is taken by coastal zone management authorities. (iv) NGT issues directions to the MoEF&CC and CZMA to carry out inspections to ensure compliance to CRZ/EC conditions and Environmental Regulations. Environmental compensations Under the category of environmental compensation, the NGT provides relief and compensation to the victims of pollution and other environmental damage as well as for restitution of property damaged and for restitution of the environment. In several judgements, NGT has directed environmental compensations to be made on the basis of the ‘polluter pays principle’. In the matter of Samir Mehta Vs. Union of India and Others, as per the judgement dated 23-08-2016, the NGT directed that an environmental compensation to be paid by the Respondent of concern for the damage caused to the ecosystem, loss to ecology and livelihood in accordance with the ‘Polluter Pays Principle’. In the matter of Manoj Mishra Vs. Union of India and Others, as per the Judgement dated 13-01-2015 pertaining to the clean and rejuvenated Yamuna River, Delhi, the NGT issued directions to the Civic and Municipal authorities of Delhi to charge every household an environmental compensation fee as part of the property/house tax. Similarly, in the case of Krishan Kant Singh Vs. National Ganga River Basin Authority (2014), NGT directed, in its judgement delivered on 16 October 2014, the defaulting industrial unit to pay a compensation of Rupees Five Crores to the concerned State Pollution Control Board based on the Polluter Pays Principle for undertaking remedial activities to ensure river conservation. In another judgement (R K Patel Vs. Union of India, judgement delivered 18 February 2014) , the NGT directed for environmental compensation of Rupees Ten Lakhs to the aggrieved farmers at Vapi, Gujarat due to the hazardous waste pollution. Conclusion The progress of environmental justice in India has been on increasing trend, with effective usage of NGT. While this reflects that there is a growing trust in NGT by the people, there may be enormous pressure on NGT, which needs more manpower, probably in the context that NGT aims to dispose of cases within 6 months. The effects of sensitive environmental issues that emerge from natural and man-made sources have caused the NGT to pronounce various directions for the benefit of environment protection, and for justice to victims affected by environmental damages. From the judgements examined for the cases of the year 2016, the majority were from two major sectors, namely Industry Operations and Nature. These sectors c o v e r v a r i o u s i s s u e s s u c h a s I m p a c t A s s e s s m e n t , Environmental clearances, small industrial units, consent, standards for operation, Nature conservation, forests, tree cutting, green belts, wetlands, landscape and construction. As a recommendation based on the present research work, we can suggest that since more petitions for environmental justice were from the sectors of Industry Operations and Nature, there needs to be more attention given to the related matters of environmental clearances and monitoring activities. The way in which the issues have been handled and justice given by the NGT shows that the judiciary is there for each and every common man as his right to live in a pollution-free environment, as emphasised in Article 21 of the Constitution of India. This has stressed the importance of the doctrine of public trust, which enjoins the State to act as a trustee of the natural resources for the benefit of all human beings. From the above study, we can understand that NGT is seen as ‘Responsive to Environmental Problems’, as one of the characteristics of any successful environmental court. Acknowledgements We wish to thank the Director, NCSCM, Chennai for providing support for the research work. 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Sridhar Rengarajan, Dhivya Palaniyappan, Purvaja Ramachandran, Ramesh Ramachandran. National Green Tribunal of India—an observation from environmental judgements, Environmental Science and Pollution Research, 2018, 1-6, DOI: 10.1007/s11356-018-1763-2