Author:- Janvi Vishnani
“If the Earth were our savings account, we would be on the brink of bankruptcy.”
The fact that the planet is struggling and in bad health is no longer a secret in today’s world. The world is degrading, and it is degrading quickly, as scientists, activists, and nature itself have repeatedly cautioned. It is prima facie evident in Indian metropolitan cities, where breathing has become difficult due to polluted air, rivers have turned black, and sound pollution has reached an all-time high. It is obvious from the fact that forests are being cut down, and all circumstances bring us close to environmental atrocities.
While pollution is not a recent phenomenon, it remains the world’s most important problem and one of the leading causes of mortality. Human practices such as urbanization, industrialization, logging, and discovery all lead to global environmental degradation. Despite the global focus on emissions, the repercussions of its extreme long-term consequences are still being felt. Thus, there is a concern that arises about the effectiveness of the Judiciary and NGT to safeguard the environment while still compensating those who have been harmed. To ensure the environment’s protection, India has a plethora of legislation covering different aspects of the environment. However, due to legal loopholes or even the slackness of the authorities enforcing the rules, this regulation has remained a set of powerless phrases that have lost their influence over time. Hence a specialized quasi-judicial body has been formed to deal only with environment-related issues known as National Green Tribunal.
How NGT comes into existence?
So, when United Nations Conference on Environment and Development was held in Rio de Janeiro in 1992 also known as Stockholm, India promised to offer regulatory and judicial redress to victims of harmful chemicals and other environmental damages.
The Supreme Court of India proposed that environmental courts be established on a regional basis with competent judges and also some advisors taking into account the level of competence needed to deal with such issues.
Further, in the interpretation of Subhash Kumar Vs. the State of Bihar, it was interpreted that also includes the right to live in a pollution-free environment, so this becomes the basis of creating the National Green Tribunal.
Further by the 42nd amendment, a DPSP was added which adds that the state must protect and preserve and also conserve the ecosystem and environment, and also in various cases, Supreme Court has emphasized the difficulties judges face in adjudicating complicated environmental cases and the need for a specialized environmental court to be created.
In the landmark Supreme Court cases of M.C. Mehta v. Union of India, 1986, Indian Council for Eco-Legal Action v. Union of India, 1996, A.P. Pollution Control Board v. M.V. Nayudu, 1992, and A.P. Pollution Control Board v. M.V. Nayudu, 2001, it was highlighted the need for the court which deals with the environment.
Thus finally Jairam Ramesh enacted the NGT Act in 2010, which was operational after the Supreme Court directions while hearing the Special Leave Petition “Union of India vs. Vimal Bhai”
In this way, a tribunal has been formed under the statute of NGT act 2010 under Article 323B of the Indian constitution, which says that the “Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences concerning all or any of the matters specified in clause (2).”
Powers and composition of NGT
The Tribunal’s composition is described in section 4 of the NGT act 2010. It says that Tribunal will have a full-time Chairperson, as well as many full-time Judicial Members. The minimum number of members as per this section is 10 but the members can’t exceed more than twenty.
Section 19 describes the function of NGT
This act gives the Tribunal powers over all civil lawsuits involving a substantive issue of environmental law (including the regulation of any environmental legal right) that emerges from the application of the enactments mentioned in Schedule I to the Act. It also establishes a six-month time period for the Tribunal to consider petitions for adjudication of disputes filed under this provision.
The expression “substantial environmental issue” is specified under the act, which reads: –
(1) There is a gross violation of a particular environmental statute obligation owed by a citizen to
a) the society as a whole, rather than an individuals or a group of individuals; and
b) the community as a whole, rather than an individual or a group of individuals b) the magnitude of the environmental or property destruction is substantial, or
c) the threat to the public’s welfare is quantifiable;
(2) The environmental effects are related to a particular act or a pollution source at a single location.
Section 16 of this act further grants the Tribunal appellate jurisdiction over such orders, decisions, or directions issued under 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; and the Biological Dissent Act, 1986.
Section 17 establishes a bar to civil court jurisdiction. It states that no civil court shall have authority to hear any appeal from the date of the Tribunal’s establishment in respect of any matter that the Tribunal is empowered to decide within its appellate jurisdiction. No civil court shall have authority to decide or entertain any matters concerning any complaint about providing any compensation, or recovery of property damaged or environment which may be adjudicated upon by the Tribunal, and no warrant shall be issued by a civil court because of any action taken or to be taken by or before the Tribunal.
The Act states that while taking the decision, the tribunal must apply the principles of “sustainable development”, “precautionary principle”, and “polluter pays principle”. Various international conferences, such as the Stockholm Conference in 1972, the Rio Conference in 1992, and the World Summit on Sustainable Development in 2002, have accepted these concepts (Johannesburg Conference).
Before this act, the Apex Court in India had already incorporated these ideas. The case of the Indian Council for Enviro Legal Action v. Union of India was the first to apply the concept of “sustainable development” to Indian environmental law. The polluter pays principle and the precautionary principle were both used in the case of “Vellore Citizens Welfare Forum v. Union of India“. These values now have legal recognition thanks to the NGT act.
Various types of relief are also available under the Act. It states that the Tribunal can, by direction, provide redress and restitution to victims of pollution and other environmental harm caused by enactments included in Schedule-I of the Act, The Tribunal’s process and powers are outlined in this Act. Section 19 of this act states that the Tribunal will not be bound by the Code of Civil Procedure, 1908, and will instead be governed by the ideals of natural justice. It also states that the Tribunal has the authority to regulate its procedure, according to the Act’s provisions. Section 26 of this act gives the Green Tribunal authority to enforce penalties, including three years in jail or a fine of up to ten crores for individuals and up to twenty-five crores for businesses, if its directives are not followed.
Analysis of Journey of NGT
The National Green Tribunal was developed to accelerate environmental trials and easing the pressure on the judiciary in such cases. It would be inaccurate to say that NGT has outdone itself in terms of preserving biodiversity, and also made a remarkable judgment.
In” Pramod Kumar Tyagi Vs. Art of Living International Centre & Ors‘, in this, Sri Ravi Shankar’s Art of Living was fined Rs. 5 crores by the National Green Tribunal (AOL). The tribunal found that AOL’s world culture festival had harmed the Yamuna floodplains. The tribunal ordered that the fine be used by the Delhi Development Authority (DDA) to repair the affected area.
“Prafulla Samantha Vs Union of India and Others” (POSCO case), “POSCO” (Pohang Iron and Steel Corporation) is a Korean company that is the world’s fourth-largest steel producer. It signed a Memorandum of Understanding with the Odisha government to construct a steel plant in the Orissa district of Jagatsinhpur. The project’s total stated investment was 51,000/-crore”. The plant is expected to manufacture 12 million tonnes of steel per year. It was a major source of global media attention because it was one of the largest foreign direct investments made by a foreign firm in India. However, the NGT, true to its mission of establishment and its policy of environmental protection, ordered the Odisha Government to suspend the contract, thus relieving the locals and the local ecosystem of the serious harm to the ecology system of that region.
The decision which caught the eye of everyone was the judgment on the Kaleshwaram project. Kaleshwaram is a multi-irrigation lift project of Rs 80,500 Cr. In 2017 it gets clearance by the NGT but in 2020 Telangana government increases the capacity of the project from 2TMC to 3TMC. NGT has passed an injunction order and observed that: – ‘ major changes in the project mainly because of large tracts of forest and another land on where massive infrastructure will build will impact the environment”. The NGT directed the MoEFCC to constitute a seven-member Expert Committee within one month which will assess the damages and also give measures this all will be done within six months. NGT also directed the Telangana government to stop all the activity except the drinking water component.
The ban on plastic bags bigger than 50 microns, Ganga rejuvenation, silence on Amarnath, and various other landmark decision given to save the environment, no matter how profitable the deal was if the deal is violating the norms or is pernicious to the environment or biodiversity, NGT quashes the deal as it’s onus. To safeguard the Fundamental Right of the citizen is the work of the SC and also the Indian judiciary, but in many instances, it has been found that NGT also not lagging behind in protecting them. While deciding the case of the Uttarakhand government where waste landfill dump yards set up illegally on the bank of the Khoh river in Kotdwar.
NGT mentioned that “citizens have a fundamental right to a safe climate under article 21, and the lack of funds cannot be seen as a justification for not ensuring it”. In some cases, NGT has taken Suo moto cognizance following the path of SC. At Yamuna’s disposal where SC has taken the Suo moto cognizance of river pollution. Former CJI SA Bobde mentioned that article 21 also includes the right to live in a free environment and here sewage is directly discharged in the river and not treated through a plant. Hereby doing these activities is creating to all human beings as well as those who are dependent on the surface water.
In India, we can see that there is no paucity of legislation and the NGT has been working to achieve the target of a clean world, which is part of the UN’s Sustainable Development Goal 30. The National Green Tribunal was established to protect the environment. A society with a cleaner environment is always a goal for the future, and we’ll have to see what the NGT will do to help keep our environment cleaner and stronger. There have been some recent stances and acts that have caused the NGT to lose legitimacy. In the future, we’ll have to see if NGT rebounds from its setbacks and proves to be much more successful in cleaning up our climate while still distinguishing itself from the rest of the authorities. As per my opinion, there is legislation but the judiciary should not handle appeals that have already been heard by the NGT since it defeats the purpose of the NGT. The function and jurisdiction of the NGT must also be extended to be taken seriously and to be at par with the judiciary in handling environmental cases. The efficacy of the NGT suffers as a result of certain significant environmental actions falling outside of its jurisdiction, and the key purpose for which the NGT was founded remains partially unfulfilled. Furthermore, NGT should be given the right to enforce harsher penalties, and its jurisdiction should be increased to cover sentences longer than three years.
Janvi Vishnani is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus, currently pursuing BA.LL. B (Hons).