2510
Views & Citations1510
Likes & Shares
The environmental disputes are typical and
complicated in nature so it requires an expertise in different fields (like
biology, sociology, economics, administration, management and law etc.) to
resolve the environmental matters in effective and expeditious manner which is
not possible with a regular judicial and administrative set up in India. The
need for environmental courts has long been felt for other reasons also like
the higher judiciary in India is overburdened with a large backlog of cases.
Thus, in order to have effective prevention of environmental pollution
environmental complaints should be decided expeditiously which is not possible
in the present context of judicial administration. Therefore, there was an
urgent need for an alternative forum so that environmental cases were decided without
much delay. India is a party to the decisions taken at Stockholm Conference
1972 and Rio De Janerio Conference, 1992, wherein the participating states were
called upon to provide effective assess to judicial and administrative
proceedings and to develop national laws regarding the liability and
compensation for the victims of pollution and other environmental damage.
INTRODUCTION
The environmental
disputes are typical and complicated in nature so it requires an expertise in
different fields (like biology, sociology, economics, administration,
management and law etc.) to resolve the environmental matters in effective and
expeditious manner which is not possible with a regular judicial and
administrative set up in India. The need for environmental courts has long been
felt for other reasons also like the higher judiciary in India is overburdened
with a large backlog of cases [1]. Thus, in order to have
effective prevention of environmental pollution environmental complaints should
be decided expeditiously which is not possible in the present context of
judicial administration. Therefore, there was an urgent need for an alternative
forum so that environmental cases were decided without much delay [2]. India is a party to the
decisions taken at Stockholm Conference 1972 and Rio De Janerio Conference,
1992, wherein the participating states were called upon to provide effective
assess to judicial and administrative proceedings and to develop national laws
regarding the liability and compensation for the victims of pollution and other
environmental damage [3].
Prominent jurists
of the country also expressed the similar views [1]. The Rio Declaration on
Development and Environment states that “states shall develop the national law
regarding liability and compensation for the victims of Pollution and other
environmental damage” [2].
The Law Commission of India in its 186th Report
recommended that the government needs to constitute special Environmental
Courts, to deal with multidisciplinary issues relating to protection of
environment, which would have members with judicial or legal experience
assisted by members with technical knowledge. Since the advice of environmental
experts is required in deciding cases related to the environment it would be
feasible to include environmental experts in this specialised body. Setting up
such a body would help in fast disposal of cases. Environmental Courts in
various states or group of states would have original jurisdiction in all civil
cases where a substantial question relating to environment is involved and
Appellate jurisdiction under various other statutes [3].
To give effect to the above directive and to
provide for a forum for effective and expeditious disposal of cases arising
from any accident occurring while handling any hazardous substance, the Indian
Parliament enacted the National Green Tribunal Act, 2010 [4].
To give effect to these exhortations contained
in the global declarations on environment and to provide for a specialized
forum for effective and expeditious disposal of cases arising out of
enforcement of environmental laws in the country, the Indian Parliament has
enacted, recently, the National Green Tribunal Act, 2010 which has come into
force on 2 June 2010.
The Act
seeks to replace the National Environment Tribunal Act, 1995 and the National
Environment Appellate Authority Act, 1997 which have been in operation for some
time in the country. The Act has been enacted in response to the
recommendations of the Law Commission of India and the Indian Supreme Court
which highlighted the large number of environment-related cases pending in the
courts.
OBJECTIVES
The objectives of establishing a National Green
Tribunal are as follows [5]:
·
To provide 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 the
environment.
·
Giving relief and compensation for damages to persons
and property
·
And other related matters.
SALIENT
FEATURES
The Act seeks to establish specialized Green Tribunal with five benches located at different regions in the country [6]. The Act confers on the Green Tribunal to hear initial complaints [7] as well as appeals from decisions of authorities under various environmental laws [8]. The Tribunal, when established, would not be bound to follow the procedure laid down in the Code of Civil Procedure 1973. Instead, it is allowed to follow the abstract principles of natural justice [9]. However, the Tribunal will have the powers of a civil court under the civil procedure code [10]. Its decisions are binding on the parties [11]. 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 [1].
The NGT is not bound by the procedure laid down
under the Code of Civil Procedure, 1908, but shall be guided by principles of
natural justice. NGT is also not bound by the rules of evidence as enshrined in
the Indian Evidence Act, 1872.
·
It will be relatively easier for conservation groups
to present facts and issues before the NGT, including pointing out technical
flaws in a project, or proposing alternatives that could minimize environmental
damage but which have not been considered.
·
While passing Orders, decisions, awards, the NGT will
apply the principles of sustainable development, the precautionary principle
and the polluter pays principles. However, it must be noted that if the NGT
holds that a claim is false, it can impose costs including lost benefits due to
any interim injunction.
JURISDICTION
As per Section 14 (1) The National Green
Tribunal has 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 of the National Green Tribunal Act 2010.
The acts listed in Schedule 1 are:
·
The Water (Prevention and Control of Pollution) Act,
1974;
·
The Water (Prevention and Control o[Pollution) Cess
Act, 1977;
·
The Forest (Conservation) Act,
·
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.
The Tribunal shall hear the disputes arising
from the questions referred to in sub- section (I) and settle such disputes and
pass orders thereon. Appellate jurisdiction under section 16 of the Act. As per
Section 15 (1) of the Act, the Tribunal may, by an order, provide,-
a. Relief and compensation to the victims of pollution and other
environmental damage arising under the enactments specified in the Schedule 1
(including accident occurring while handling any hazardous substance);
b. For restitution of property damaged;
c.
For restitution of the environment for such area or
areas, as the Tribunal may think fit.
REVIEW
AND APPEAL [2]
Orders can be appealed to the Supreme Court
within 90 days.
Criticism
There is the lack proper infrastructure as it
functions from two different premises. The body should have minimum 10 judicial
and expert members, out of which only 2 judicial members and 4 expert members
have been appointed till date. The number of environmental cases has been on
the rise but due to lack of benches and infrastructure, the body is unable to
pronounce its judgment on time [3].
Despite various proactive supports being taken by the tribunal the pollution
levels has been continuously rising over the years. This is due to lack of
effective support from government both at the centre as well in states. The
inefficiency of Central and State pollution control boards is another reason
for it. This often results in delays in implementing the tribunal’s decision [4].
The tribunal is not having suo-moto powers which also restrict its ambit in the
area of environment.
Some significant laws are not included for
example the Wildlife (Protection) Act, 1972 which prevents any sort of
destruction inside sanctuaries without permission. Another example is the
Scheduled Tribes (Recognition of Forest Rights) Act, 2005 which gives rights to
forest dwelling Scheduled Tribes to protect and conserve forest resources. NGT
Jurisdiction is confined to where community at large is affected by specific
form of activity such as pollution. It excludes individual or Group of
individuals who deserves as much protection as to Community at Large. 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. 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. NGT’s critics have also questioned the “lack of environmental finesse” of its expert members [1].
“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 [2].
Access to justice is denied by two means in
NGT: firstly, by the provision of limitation period and secondly, by virtue of
NGT being located in only big cities spread across India. For a tribal trying
to stop pollution from an iron ore mine in Bastar, this means filing and
fighting a case in Bhopal. This is neither easy nor affordable [3].
NGT has been accused of overstepping its
jurisdiction and taking actions for which it has not been empowered under the
NGT Act. Conflicts are brewing between NGT and the high courts. As per the NGT
Act, appeals from NGT can only go to the Supreme Court, thus by-passing the
high courts. Backlog of cases in NGT as another reason for the institution’s
failure to address environmental matters [4].
CONCLUSION
The National Green Tribunal was constituted to
provide for effective and expeditious disposal of the cases involving
multi-disciplinary issues relating to environment protection. From the
inception of NGT till 31st January, 2015, a total number of 7768
cases were filed before the NGT out of which 5167 cases stood disposed of,
thus, leaving a pendency of 2601 cases in all the NGT benches. This is the
first body of its kind that is required by its parent statute to apply the
“polluter pays” principle and the principle of sustainable development [5].
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. Since more than 8 years has been passed after the
enactment of this Act, the NGT still has to travel a long path for winning the
confidence of the people.
NGT has done well so far but many improvements
are still required to make accessible, speedy and effective resolution of
environmental disputes a practical reality. The Central and State government
should work in collaboration with NGT to secure the environment with better,
faster enforcement of NGT orders. In the act, there is a provision for appeal
to the tribunal within a period of 6 months of origin of the cause of an
environmental problem. This is small time for reflection of negative impacts of
environmental changes. This shall be increased to considerable time. The
government should make it more autonomous and efficient in a view to the
growing concern regarding the environment and climate change. However, India is
doing well when it comes to the environmental or climate change issue as
compared to other developed and developing countries of the world.
Need for Further Reforms
·
We must strengthen it by giving it more powers and by
investing in strengthening its infrastructure.
·
Judicial review is an important power that must be
given to NGT.
·
We should include other environment-related laws
within NGT’S ambit.
·
NGT also needs to put certain systems in place for
transparent decision-making.
·
NGT needs to establish principles and criteria to
estimate fines, damages and compensation.
·
It should also identify institutions and experts who
can help it to scientifically estimate environmental damages/compensation/fines
on a case-to-case basis.
·
NGT must put internal checks and balances for
efficient and transparent delivery of justice.
·
Suo-motu jurisdiction has to be an integral feature of
NGT for better and effective functioning.
· There is a need for the central and state governments to work in collaboration with the NGT for an effective outcome.
QUICK LINKS
- SUBMIT MANUSCRIPT
- RECOMMEND THE JOURNAL
-
SUBSCRIBE FOR ALERTS
RELATED JOURNALS
- International Journal of AIDS (ISSN: 2644-3023)
- International Journal of Clinical Case Studies and Reports (ISSN:2641-5771)
- Journal of Renal Transplantation Science (ISSN:2640-0847)
- International Journal of Anaesthesia and Research (ISSN:2641-399X)
- Stem Cell Research and Therapeutics (ISSN:2474-4646)
- Journal of Clinical Trials and Research (ISSN:2637-7373)
- International Journal of Surgery and Invasive Procedures (ISSN:2640-0820)