National Green Tribunal: A new beginning for environmental cases?
National Green Tribunal or the Environmental Court is not a new concept. Different courts in the country have recommended the establishment of Environmental Court to take up the cases related to environmental degradation. In M.C Mehta vs. Union of India case in 1986, Supreme Court observed that environmental cases involve assessment of scientific data. Setting up of environmental courts on regional basis would require professional judge and experts, keeping in view the expertise required for such adjudication. In an another judgement ‘Indian Council for Enviro-Legal Action vs. Union of India, 1996 the Supreme Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner.
Supreme Court of India in A.P. Pollution Control Board vs. M.V. Nayudu: 1999 referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as a part of the judicial process, after an elaborate discussion of the views of jurists of various countries.
The 186th Report of Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003, stated, that the "National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It appears that since the year 2000, no judicial member has been appointed. So far as the National Environmental Tribunal Act 1995, is concerned, the legislation is yet to be notified after eight years of enactment. Since it was enacted by Parliament, the tribunal under the Act is yet to be constituted. Thus, these two tribunals are non-functional and exist only on paper". In its recommendation, the Commission proposed for setting up of environmental courts with judicial members and technical experts.
After years of deliberation, the National Green Tribunal Bill was introduced in the Indian Parliament on July 29, 2009. The bill provides for the establishment of a Green Tribunal, which will offer effective and fast redressal of cases related to environmental protection and conservation of natural resources and forests. “National Green Tribunal Act is a path breaking legislation which is unique in many ways. It will provide a new dimension to environment adjudication by curtailing delays and imparting objectivity. The Tribunal, given its composition and jurisdiction, including wide powers to settle environment dispute and providing relief, compensation including restitution of environment, is envisaged to be a specialized environmental adjudicatory body having both original as well as appellate jurisdiction,” says Dr Abraham P Meachinkara, Advocate, High Court, Kerala.
Key provisions in the Act
Establishment of the Tribunal: The tribunal shall consist of a full time chairperson, judicial members and expert members. The minimum number of judicial and expert member prescribed is ten in each category and maximum number is twenty in each category. Another important provision included in the law is that the chairperson, if find necessary, may invite any person or more person having specialized knowledge and experience in a particular case before the tribunal to assist the same in that case.
A judge of the Supreme Court of India or Chief Justice of High Court are eligible to be Chairperson or judicial member of the Tribunal. Even existing or retired judge of High Court is qualified to be appointed as a Judicial Member. A person is qualified to be an expert member if he has Master of Science 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 experiences in the field of environment and forests in a reputed National level institutions. Anyone who has administrative experience of fifteen years including experience of five years in dealing with environment matters in the Central Government or a State Government or in National or State level institution is also eligible to be an expert member.
Section 16 says, “Any person aggrieved by” order or decision made under
Section 18(2) specifies who can file an application for relief or compensation or settlement
Water (Prevention and Control of Pollution) Act, 1974.
The Water 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.
The Biological Diversity Act, 2002
a) the person, who has sustained injury b) the owner of the property to which damage has been caused c) where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased d) any agent duly authorised by organisation functioning in the field of environment, with permission of the tribunal e) the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority or any environmental authority constituted under the Environment (Protection) Act 1986
The Chairperson is appointed by the Central Government in consultation with the Chief Justice of India. The judicial members and the expert members of the Tribunal shall be appointed on the recommendations of such selection committee.
To avoid conflict of interest, it is included explicitly in the Act that the chairperson, judicial members and expert members of the tribunal shall not hold any other office during their tenure. In addition, for a period of two years from the date on which they cease to hold office, accept any employment in or connected with the management or administration of, any person who has been a party to a proceeding before the tribunal. Doors are opened for them to be appointed by Central Government or State Government.
Standing to sue: Section 16 of the Act is grant broad standing for appeals. The section provides opportunity for any “aggrieved person” to “prefer an appeal” to the tribunal from orders, decisions, directives or determinations entered by agencies administering ten different laws or regulations with a period of thirty days from the date on which the order or decision or direction or determination is communicated to him. In case the Tribunal feels the person was prevented from approaching the court, thirty days period can be extended to sixty days.
The Act also puts a restriction on ninety days for filing an appeal to the Supreme Court against any award, decision or order of the tribunal. Again there is a clause which states that Supreme court may entertain any appeal after expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal.
Penalty:The act empowers the Green tribunal to award compensation and unlike other environmental protection Acts, this Act bestows ample power on the Green Tribunal if its order are not complied with; the penalty may be either three years prison or upto ten crores penalty and for companies it may extend upto twenty five crores [Section 26(1)]. Section 27 of the bill adopts a tough posture against companies. It says, “if its proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” This is a commendable inclusion in the bill and atleast it will instill sense of fear among higher officials of company to pay due attention to environmental performance of their company. Section 27, however is diluted. On further reading, it says, the person is not liable for punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. This simply means that the senior in the company has to prove his innocence and guilt will eventually fall on junior staff.
The bill has also put a scanner on Department of Governments. Section 28 of the bill recommends action against Head of the Department. It says, “if Department of Government fails to comply with any order or award or decision of the tribunal under this act, the Head of department shall be deemed to be guilty of such failures and shall be liable to be proceeded against for having committed an offence under this Act and punished accordingly. ”
Despite some excellent provisions, the Act suffers from certain discrepancies. There are certain words and clauses in the Act which needs to be rectified for just and speedy redressal of environmental grievances. Some of the confounds are as follows.
Confusing words:Section 14 of the Act says, “the Tribunal shall have jurisdiction over all civil cases where a substantial question relating to environment.” The usage of word “substantial” is very subjective. It will vary from person to person to define what is substantial with respect to environmental degradation. There is no tangible method by which the gravity of the damage to environment and public health can be measured in general. Though the Act tries to define the word substantial, but still doubts hover as to how the word substantial is interpreted by different experts. The Act says that an action can be taken if there is a direct violation of specific statutory environmental obligation and community at large is affected. What if, there is direct violation of specific statutory environmental obligation and community at large is not affected. The Act should have simply stated if there is direct violation of statutory environmental obligation, it becomes legal wrong and an individual or group of individual can approach NGT. In addition, the Act says if there is direct violation of specific statutory environmental obligation by which environmental consequences relate to specific activity or point source. The "environmental consequences" cannot be restricted to either "specific activity or to a point source of pollution" as is being provided in the Act, because non-point source of pollution and a bundle of industrial activities are also a major contributor to pollution load.
Limited time frame: The Act prescribes differential time frames for approaching the Tribunal:
a) Section 16 states 30 days for challenging an order under the Tribunal's appellate jurisdiction b) Section 14(3) states six months on disputes of substantial questions related to environment c) Section 15(3) states five years for seeking compensation and relief.
Such arbitrary and limited time frame defeats the whole purpose of the Act. Impact on environment is a continuous process. It will be difficult to ascertain a time frame to gauge or understand the impact on environment. Impact of air pollution on agricultural activity may take a number of years or because of some activity a lake is destroyed gradually over the year or deterioration of health due exposure to hazardous substances/industries such as asbestos, silicosis, radiation etc takes years to manifest them. “Once environment has been recognized as part of Article 21 of the Constitution of India, issues relating to environment fall in public domain and each and every person has the duty to protect the environment and a corresponding right to question the adverse impact on environment and human health,” says Dr Meachinkara.
Inclusion of scientific community:The Act in its nascent form is explicit of the composition of Tribunal and adequate qualification is required to be a member of the tribunal. Supreme Court in the past had expressed its reservation to handle environmental cases which required technical knowledge. They suggested separate courts to hear environmental cases. Adhering to this, the Act proposed a 20 member Tribunal, out of which half will have legal background and the rest half will be technical experts. The tribunal will be chaired by a “Full Time Chairman,” who will be appointed by Central Government in Consultation with Chief Justice of India. This is a good initiative by SC to have technical experts in panel. But crux of the problem is who could be appointed as technical experts. The Act states clearly that desirable qualification is required to become a member of tribunal. This clause in the bill has led to certain unrest among civil society who believes this will facilitate back-door entry for retired bureaucrats. The bill should have opted for a transparent procedure for selecting expert members. The Act considers higher degrees in Science, Engineering, Technology and experience in Administration only as technical qualifications. It has also gone one step ahead and mentioned that degree should be from a reputed national level institution. On the flip side, there is no provision for ecologists, sociologists, environmentalists, expert in public health, occupational health and civil society / NGO's who have been proactive in the field of environment protection. “The current composition of the tribunal merits critical scrutiny for it follows a tried, tested and failed track. It has been a constant concern of the Supreme Court, which has been expressed in several orders that an expert body should consist of experts in relevant fields and not the bureaucrats. All earlier attempts in handling the environmental problems through Pollution Control Boards/National Environment Appellate Authority etc. have failed because their control was given in the hands of bureaucrats or to political appointees,” says Dr. Meachinkara. He further added "this is not an Administrative Tribunal, where people from administrative side are required. If at all people with administrative experience are required, it should be restricted by a definite number. Otherwise people from administrative side will be more and people from scientific side will be only for name sake. Even the Judicial Members should have some experience from the environmental side."
Fine for false or vexatious claims:Section 23 (2) of the legislation is included to stop false or vexatious claims, it reads “Where the Tribunal holds that a claim is not maintainable, or is false or vexatious, and such claim is disallowed, in whole or in part, the Tribunal may, if it so thinks fit, after recording its reasons for holding such claims to be false or vexatious, make an order to reward costs, including lost benefits due to any interim injunction.” The issue of cost to be awarded against losing party will act as a deterrent for the affected people in approaching Tribunal. This is a serious flaw in the Act as the aggrieved will live in a predicament that he may loose on technical grounds.
The Ministry of Environment and Forests came up with rules for National Green Tribunal in April 2011. Clause 12(1) of the rules has allotted a fee on applicant of one per cent of total compensation claimed. This move has created a lot of controversy because it may not always be possible for an applicant to pay the fees as demanded. Suppose an applicant has filed an appeal for compensation of one crore then according to the rules, he first has to pay a fee of Rs 1 lakhs, which does not seems feasible. However, the good news is that the ministry has held this clause back.
Green benches in other countries
The Land and Environment Court of New South Wales (established under the Land and Environment Court Act, 1979) 14 is a “mixed” model composed of judges and expert members (nine technical and conciliation assessors). It is a Court of record (comparable to the Supreme Court of New South Wales) having a jurisdiction that combines appeal, judicial review and enforcement functions, pertaining to environmental and planning law. The access to the Court is very easy and open to anyone complaining for violation of the statutes related to environmental and planning law. Another issue dealt wonderfully by this court is ensuring that the justice delivery system is affordable by one and all. Considerable efforts were made to ensure affordability. Sufficient court funding are made through a graduation of court fees, with due consideration to the nature of applicants and their ability to pay, the nature of the proceedings, the amount of compensation claimed, and the court fees for equivalent proceedings in other courts.
Another key factor in improving the system of Green Adjudication is spreading the much required awareness and transparency which would automatically promote the confidence of the appellants and tribunals. The Land and Environment Court of South Wales is known to for its transparency. It holds high the principles of accountability and transparency in all its functions. All of its decisions are published and is made accessible online free of charge, while more significant decisions are reported in the authorized law reports of the local governments, in Local Government and Environmental Reports of Australia, and occasionally in the New South Wales Law Reports. The court’s reasons for its decisions are provided in writing or, if given orally are recorded and reproduced in writing. The performance of the court is reported publicly in an annual review, and a court users group holds quarterly meetings to discuss the court’s performance and obtain feedback. The right to appeal and review also ensures accountability.
Mediation is a new trend that has been coming up in the field of environmental adjudication. The Vermont Environmental Court of USA, implemented it in 2005 now it has become an important and effective form of dispute resolution. Through this the parties can resolve their disputes in a manner more expeditious and less expensive than protracted litigation, thus conserving judicial resources and also making the system competent.
In the Case of New Zealand there is a presence of Section 268 of Resources Management Act effectively empowering Environment Courts to arrange for mediations and other forms of Alternative Dispute Resolution (ADR) methods. It specifically assigns the power of conducting these proceedings to Judges or Commissioners without any cost imposed on the parties. The court conducted 449 mediation events in 2005–2006 and 468 mediation events in 2006–2007. During 2006 –2007, 135 events resulted in agreements in full, 131 only reached agreements in part, and 96 did not reach any sort of agreement. In Thailand ADR is a very important system for the Green Adjudication Process. It is promoted as the first step in environment related cases. The government provides support to non-government organizations (NGOs) and environmental volunteers in their efforts to strengthen the role of ADR in resolving environmental disputes.
A new but half-hearted beginning
National Green Tribunal is thus a new beginning for India's struggle between development and environment. Despite some inherent flaws, NGT is a significant initiative by the Government and the rightful implementation of the law would certainly usher the country towards the path of Sustainable Development and guarantee a harmonious relationship between the environment and society. But the important question is will the NGT in current format serve the purpose it’s meant to be? As of now, the place of sitting is Delhi, which means people from different parts of the country would have to come to Delhi to file their cases which they could have easily filed in civil courts earlier. It means access to justice is denied because of NGT. Ministry of Environment and Forests needs to rethink and push for sitting places in each district of the country. Sitting Places only in Delhi and proposed sitting places at four other cities like Bhopal, Pune, Kolkata and Chennai will not achieve the desired result. The ministry needs to reconsider its approach to make sure access to justice is not denied. Otherwise formation of NGT concentrated only at few places will cause more problems than solutions.