The establishment of the National Green Tribunal was the outcome of the commitment of the Indian legal system to environmental Justice. The Supreme Court while adjudicating environmental cases felt the need, and the NGT came into existence after much deliberation, both by the legislature and the judiciary. Find out more about the NGT which has recently completed five years
When the Indian Express carried a news report ‘death by breadth’ in April this year, the National Green Tribunal (NGT), the crusader for environmental justice in India, banned the entry of diesel trucks which were ten years old into Delhi. The Principal Bench headed by Justice Swatanter Kumar directed in Vardhaman Kaushik Vs. Union of India & Ors and Sanjay Kulshrestha Vs. Union of India & Ors that all diesel vehicles (heavy or light) which were more than 10 years old will not be permitted on the roads of NCR, Delhi. It ordered that the registering authorities in the state of Haryana, U.P. and NCT, Delhi would not register any diesel vehicle which was more than 10 years old and shall file the list of vehicles before the Tribunal and provide the same to the Police and other concerned authorities. The petrol vehicles which are more than 15 years old and diesel vehicles that are more than 10 years old shall not be registered in the NCR, Delhi, the bench also held.
The judgment cited the slackness and casual attitude of the authorities of the state Government for increase in air pollution reaching to an alarming level making make it difficult for the people of Delhi even to breathe freely much less fresh air. It said the Tribunal had passed diverse directions for preventing and controlling pollution and for improvement of the air quality in Delhi with regard to all the three major sources of air pollution. Unfortunately, the implementation remained question of concern.
However, the NGT’s order imposing the ban was challenged by a PIL in the Supreme Court of India. It argued that the NGT cannot exercise powers of a constitutional court and issue directives to the centre for implementing its order in National Capital Region (NCR) or across the country. The Supreme Court however, lent its support to the NGT saying that the tribunal was empowered to issue directives to the Centre for banning vehicles more than 15 years old from plying on Delhi roads. “Yes, it can…it certainly can (issue such orders). We see nothing wrong with the tribunal issuing directions to the Union of India,” said the bench while declining to admit the PIL. The bench headed by the Chief Justice HL Dattu said that the judgment by the tribunal in July 2014 which declared the NGT to be a “court”, having “all the trappings” of a judicial body holds good. “This order by the NGT has not been stayed by this court or any court and so it holds good. The tribunal gave a comprehensive judgment saying it has all the powers of a court…powers of a civil court as well as a high court. Since this judgment has not been stayed, it still holds good,” the bench emphasised.
However, subsequently, the NGT passed another order in which it ordered that the trucks and heavy vehicles entering Delhi would pay environmental compensation which would be in addition to the toll tax otherwise payable by the trucks in accordance with law in force. The amounts collected on account of the environmental compensation would be paid to the Delhi Pollution Control Committee (DPCC), which shall utilize it for taking steps for improving the air quality in Delhi and a separate account in that behalf would be maintained. The amount will be collected by the NCT of Delhi toll posts and diverted to the DPCC.
What is interesting to note that even after this order by the NGT, the noted lawyer, Harish Salve, who has been appointed as an Amicus Curiae in a PIL related to the rising pollution of Delhi, asked the Supreme Court, where he was present in the hearing of PIL, to pass the order related to green tax on trucks. He said that the Supreme Court should pass orders as somebody may go to a high court and get a stay on the order of the NGT after raising issues of jurisdiction of the green tribunal.
The NGT has turned five and during this period it has relentlessly passed orders to save environment from the catastrophes. But some questions relating to its power and jurisdiction remain unclear. NGT has always been accused of transgressing its jurisdiction and taking actions, even by the Union Ministry of Environment, Forests & Climate Change (MOEF). The issue of jurisdiction of the NGT has been a bone of contention.
However, noted environmentalist, MC Mehta, while talking to this magazine two years ago, had said that the pre-emption of an environment disaster was not just NGT’s statutory duty but also their constitutional obligation. “It is part of inherent jurisdiction of every court/tribunal to do complete justice. If there is an incident violative of environmental statutes and there is no complainant then do you expect NGT not to do anything in that regard because it has no suo motu powers? I think that will not be consistent with the mandate of the Tribunal,” Mehta had said.
The NGT has taken many times suo motu cognizance of the matters related to environmental problems. This includes the cases such as NGT Vs State of HP &Ors, Own Motion Vs Ministry of Environment &Ors, suo motu Vs. State of MP & Ors. In the case of NGT Vs State of HP & Ors, the tribunal took suo moto the issues relating to the adverse impact of heavy and unregulated tourism in the Kullu-Manali and Rohtang Pass area. The tribunal directed the government to take measures to preserve the environment.
The Union Ministry of Environment, Forests & Climate Change (MOEF) has maintained that taking up suo moto cases is not within NGT’s jurisdiction. Despite persistent requests, the MoEF declined to give the NGT the authority to take suo motu cognizance, reminding that it is a tribunal. In an affidavit to the SC, the MoEF even said the NGT was causing “embarrassment” by not acting as per the Act. However, in July 2014, NGT ordered that the tribunal was like a civil court and satisfied all the stated features for acting as an “independent judicial tribunal with complete and comprehensive powers. It also said that NGT can exercise the powers of judicial review and examine the validity of notifications passed under different laws.The Hon’ble Supreme Court on the inherent powers of the Tribunals held in Cellular Operators Association of India and Ors. vs. UoI, (2003) 3 SCC 186 that“ no person shall wrongly challenge jurisdiction of courts, unless expressly provided in statute, andillegal and arbitrary”. It has also held in UoI vs. Paras Laminates that tribunal has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers.
According to Moatoshi Ao, Assistant Professor, Campus Law Centre, University of Delhi, “ The tribunal has three jurisdictions – Original, Special and Appellate. The jurisdiction of the Tribunal is very wide and extensive and can be exercised ex debito justitiae. The Tribunal is also vested with jurisdiction to examine both question of law and fact, however power of judicial review is limited. The Tribunal in exercise of this power of judicial review only performs the functions which are supplemental to the higher judiciary but do not supplant them. The Tribunal is vested with same powers as are in a civil court under CPC, 1908 but it is not bound by the procedure laid down under the CPC, however it is guided by principles of natural justice.”
The NGT was formed in October 2010 for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
The Supreme Court of India in four judgments, namely, M.C. Mehta vs. Union of India, 1986 (2) SCC 176; Indian Council for Environmental-Legal Action Vs Union of India: 1996(3)SCC 212; A.P. Pollution Control Board Vs M.V. Nayudu:1999(2)SCC 718 and A.P. Pollution Control Board Vs M.V. Nayudu II: 2001(2)SCC62, felt the need for a specialized courts which could deal with environmental related disputes as it required specialized expertise in the field of science, engineering, environment, geology, etc. The SC envisaged a court which also had the expert members from different field along with judges to adjudicate the cases.
The Law Commission of India in its 186th report in 2003, under the chairmanship of Justice M Jagannadha Rao, recommended setting up special green court. The Commission in the report said, “We recommend that a law be made by Parliament under Article 253 for constitution of Environmental Courts in each State (or group of States) having original and appellate jurisdiction as stated in this Chapter and having jurisdiction on environmental issues. The Courts will be manned each by three embers with judicial or legal experience as stated and a panel of expert commissioners. An appeal against the judgment shall be to the Supreme Court of India”.
Following the recommendation, the government came up with National Tribunal Bill in 2009 and after much deliberation the National Tribunal Act was passed and the NGT came into existence in the year 2010 as a specialized court equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues.
There are several provisions which require the State and the citizens to protect environment. Though in the Constitution as it stood on 26.1.1950, there was no specific provision for environmental protection, there were other significant provisions.
The following provisions in the Constitution as it originally stood, have a bearing on environment:
“Art 21: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. Art 42: Provision for just and humane conditions of work and maternity relief: The State shall make provisions for security just and humane conditions of work and for maternity relief.
Art. 47: Duty of the State to raise the level of nutritional and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Art. 49: Protection of monuments and places and objects of national importance: It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament, to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”
The Stockholm Declaration of 1972, however, resulted in several amendments to the Constitution. Under the Constitution (Forty-second Amendment) Act, 1976 (which came into force on 3.1.1977), Art. 48A was introduced in Part IV which is the chapter dealing with Directive Principles. It read as follows:
“Art. 48A. Protection and improvement of environment and safeguarding of forests and wild-life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”
Art 51A (g) was brought into Part IVA of the Constitution which deals with ‘Fundamental Duties’. That Article reads as follows:
“Art. 51A: Fundamental Duties: It shall be the duty of every citizen of India – (a) to (f): …………
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”
Under the same Forty-Second Amendment, Forest and protection of wild animals and birds were brought into the Concurrent List as entries 17A and 17B.
Since its establishment on the 18th October 2010, NGT has considerably achieved the mandate of speedy justice and has gained the faith of the society in delivering environmental justice. According to data available, as of 31st March 2014, the Principal Bench at Delhi has disposed 1749 cases out of 2625. There is also steep increase in filing cases and the NGT has accordingly increased its pace in disposal of cases to achieve its motto of ‘expeditious disposal’ of cases.
“The Tribunal has completed only 5 years but it has been making its presence felt even at the international level in a short span of time. It has opened doors to easier access of environmental justice to the citizens of India,” said Ao.
Even on the issue of delay in bringing matters to the notice of the tribunal, the NGT has adopted a liberal position. It has in the high profile case against Adani Power Limited condoned the delay in filing the plea by activist Medha Patkar and others. The tribunal relied on the decisions of the Supreme Court advocating a liberal approach which considers bona fide delay as no delay. In this case, the applicant justified the delay because of the delay in getting the information under RTI.
“The NGT works with the twin purposes of litigant satisfaction and sustainable development with due protection of environment. The Tribunal since its establishment has been unceasingly contributing substantially to the development of the environmental jurisprudence globally. The Sterlite case, Meghalaya rat hole mining case and the recent judgement on ban on 10 year old diesel vehicles in Delhi, etc. are some judgements in which the tribunal has exhibited its presence in the legal galaxy in the sphere of environmental law and jurisprudence,” says Ao.
In a significant judgement the NGT in 2012 suspended South Korea’s Pohang Iron and Steel Company’s (POSCO) environmental clearance and ordered a fresh review. The tribunal, in a PIL filed by environmentalist Prafulla Samantray, said that the clearance granted for the proposed project at this point required to be set aside as ‘arbitrary and illegal’. The bench of Justice C.V. Ramulu held, “A close scrutiny of the entire scheme reveals that a project of this magnitude particularly in partnership with a foreign country has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered.” Since then the NGT has constantly given orders to preserve the natural heritage and the livelihoods of the lacs of people in that coastal area in Odish where POSCO’s mega steel plant is to be set up.
In the recent months, coming heavily on illegal constructions across the country, the NGT imposed a penalty of Rs 76.192 crore on seven private builders for raising unauthorised structures. Quashing two Office Memorandums of the environment ministry that it found to be in violation of the Environment Protection Act 1986, the Tribunal held that seeking of prior environmental clearances in accordance with the Environment Impact Assessment (EIA) Notification 2006 was “mandatory”. The Tribunal has also come heavily on illegal sand mining in country. In August this year, after finding out that sand is being mined illegally from the banks and bed of the Yamuna, NGT directed the Delhi government to ensure sand mining was not permitted anywhere on the banks of the river and its surrounding areas. “No illegal and unauthorised mining will be permitted anywhere on the river bank and its surrounding areas without proper compliance, permissions and particular environmental clearance,” said the Bench, headed by NGT Chairperson Justice Swatanter Kumar.
Similarly, NGT gave ordered to stop sand mining in Goa. The NGT’s western region bench in Pune directed authorities to take strict action, including arrest, confiscation of vessels’ licences and use of armed police, against illegal sand miners in Goa. The bench of Justice V R Kingaonkar took strong exception to the inability of the coastal zone management and security authorities in Goa to curb such illegal mining and transportation of sand by vessels, especially during night hours. The activities violated the NGT principal bench’s nationwide ban on illegal sand and minor mineral extraction and directions of the Bombay High Court bench in Panaji for preventive action. However, in another significant judgement NGT set aside a Goa Coastal Zone Management Authority order which had held that Vedanta Group firm and iron-ore miner Sesa Goa had illegally expanded its jetties set up for loading ore in the northern district of the state. The tribunal bench headed by Justice Swatanter Kumar said, “… there has been denial of fair opportunity to the applicants (Sesa Goa and others). The principles of natural justice have been violated.”
“Despite criticisms that it has exceeded its jurisdiction in giving non-technical judgements, the judgements delivered so far are the need of hour for our nation so as to guarantee the right of clean and healthy environment to all of us enshrined by the Constitution under Article 21,” says Ao.
The NGT has given many orders for the preservation of the environment, biodiversity of the Western Ghats, Wildlife protection in Kazirangha Park in Assam. Today, the NGT has emerged as the most effective environmental courts in the world in terms of the number of cases it decides as well as the range of issues that come before it, despite hindrance by the executive and also by the various High Courts, says Ritwick Dutta of the NGT Bar. It is a complex world of development, justice and environment protection. The NGT has to tread the path keeping in mind its mandate the concerns of those who are at the receiving end of the mindless pursuit of some people. At the same it has to stand for those who do not get justice at the hand of the authorities. It is therefore believed that the NGT would deliver environmental justice ensuring sustainable development within the framework of the constitution, the NGT Act and other domestic and international environmental legal instruments.
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