Environment and Climate: Law and Policy
NEAA – National Environment Appellate Authority
NETA – National Environment Tribunal Act
NGT – National Green Tribunal
NGTB – National Green Tribunal Bill
CPC – Civil Procedure Code
CrPC – Criminal Procedure Code
SPCB – State Pollution and Control Board
CPCB – Centre Pollution Control Board
SECTION I: INTRODUCTION
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.
The Government of India introduced The National Green Tribunal Bill, 2009 in the Lok Sabha on 31st July 2009. The bill provides for the establishment of a Green Tribunal, which is a special court dealing with cases related to environmental protection and conservation of natural resources and forests. It would replace the existing National Environment Tribunal and the National Environment Appellate Authority. The tribunal, which would function under the Supreme Court, shall have jurisdiction over all civil cases relating to environment and have powers to order relief and compensation to victims of pollution and other environmental damage, including accidents occurring while handling hazardous substances.
The bill, however, had faced criticism from different quarters, owing to its loopholes and limitations. The hon. Minister for Environment and Forests Jairam Ramesh accepted some key amendments to the proposed legislation that the parliamentarians and the Standing Committee. The bill was finally passed, in May 2010, and became The National Green Tribunal Act, 2010.
The National Green Tribunal has finally been launched on 19th October, 2010. Justice Lokeshwar Singh Panta has been named the Chairperson of the Tribunal. There will also be 10 other members in the Tribunal, each either a judicial or environmental expert. It would now hear all the pending cases dealing with environmental issues and the genuine Public Interest Litigations, also the Tribunal would decide the high profile Posco and Vedanta cases. The tribunal would have benches all over the country. The minister however hopes to set up the main bench of the tribunal at Bhopal, the city that has witnessed one of our countries most horrific man-made environmental disasters. Anybody and everybody can approach the Tribunal to claim civil damages arising out of inadequate implementation of environment laws. By setting a Green Tribunal India becomes the third country that has specialized courts to deal with environment related cases following Australia and New-Zealand, which already have such specialized courts.
Before the Green Tribunal was set up, the normal courts were responsible for deciding on cases arising due to environmental issues. Due to this approximately 5000 cases, in various High Courts and District Courts, were awaiting judgement. Such cases would now be transferred to the Green Tribunal.
The previous adjudicatory framework included:
Civil Procedure Code (CPC)
Criminal Procedure Code (CrPC)
Criminal prosecutions before Judicial Magistrate under various laws.
Appellate Authority’s provision in some statutes to hear appeals against the order of the State Pollution Control Boards (SPCB)
The National Environment Tribunal Act, 1995: The Act provides for strict liability for damages, caused by accident occurring while handling hazardous substance and to provide relief and compensation to the victims. (The Act, however, could not be enforced due to limited mandate) (now repealed)
The National Environment Appellate Authority Act, 1997. The Act provides a judicial forum for hearing appeals against order of grant of environmental clearances under the Environment (P) Act, 1986. (now repealed)
SECTION II: National Green Tribunal Bill, 2009
Highlights of the Bill proposed in Lok Sabha.
The National Green Tribunal Bill, 2009 aims to set up specialised environmental courts in the country.
It would replace the National Environmental Appellate Authority and the National Environment Tribunal Act.
It would consist of both judicial and expert members
It would hear only ‘substantial’ questions relating to the environment, which affect the community at large, and not just individuals or groups of individuals, cause significant damage to the environment and property or bring any harm to public health.
Major criticisms of the Bill:
A ‘substantial’ question relating to environment could be interpreted in various ways.
The tribunal would have benches only at five locations initially and this would significantly reduce the access to justice, as civil courts would not deal with such cases anymore.
The bill did not provide the tribunal the power to deal with some laws related to environment, which ruined the whole point of having such a body.
Particular method of selecting members of the Tribunal was not explained in the bill.
The bill does not provide any information on the minimum number of members of the Tribunal and the Selecting Committee.
The bill was then revised by the Department Related Parliamentary Standing Committee on Science and Technology, Environment and Forests. Dr. T. Subbarami Reddy was the Chairman of the committee which had members from both the houses. They proposed certain changes in the bill in their report dated 24th November, 2009.
A summary of the recommendations made and proposed to be accepted by the Ministry of Environment and Forests is as follows:
All of Act to Come into force simultaneously
The Central Government had the discretion to allow for different dates for different sections to come into force.
The Act shall come into force on a date decided by the Central Government, by notification in the Official Gazette
Number of Members
The number of Judicial/Expert members to be appointed to the Tribunal was not mentioned.
The minimum number of full time Judicial Members and Expert Members shall be not less than 10; subject to a maximum of 20 each
Expansion of Rules to include Circuit Procedure, transfer of cases etc.
In the Bill, this section defined
the rule-making powers of the Central Government in consultation with the chairperson of the Tribunal.
Rule-making power has been further defined to include:
(i) The procedure for hearing applications and appeals and other matters like hearing at a place other than the ordinary place of its sitting falling within the jurisdiction.
(ii) The number of Expert Members and Judicial Members should be equal while listening to an appeal.
(iii) Rules relating to transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to the other place of sitting.
Post Tenure Debarment
No member, judicial or expert, could take employment with any company or undertake such activity for any person, who had been a involved in a dispute before the Tribunal, for a period of 1 year.
This time period was increased to two years in the proposed amendment.
Section 18 (2)(e)
Expansion of Definition
of Person Aggrieved
Any representative body or organisation functioning in the field of environment could file an application for relief. It did not mention whether any other person affected could approach the Tribunal.
Any aggrieved person can approach the tribunal and seek justice and compensation.
Principles to be Applied
Tribunal had to apply the principles of sustainable development, the precautionary principle and the polluter pays principle while passing any order, decision or award.
Power of Chairperson/Other
Member to hear in case of a deadlock
According to the original bill the decision taken by a majority of the members was final and binding
In case there is a difference of opinion between the members hearing the application and the opinion is equally divided, then the Chairperson (if he has not been part of the hearing) will hear the matter and decide. If the chairperson has been a part of this bench then he shall refer the matter to another member of the Tribunal who shall hear the application and decide.
Appeal to Supreme Court
The decision made by the Tribunal was Final and Binding on the parties.
The aggrieved party can make an appeal within 90 days from the date of communication of the order/award on one or more of the grounds specified under section 100 of the CPC 1908. The Supreme Court may allow an appeal even after 90 days if it is satisfied that sufficient cause exists.
Amendments to the Bill
Based on the suggestions of the members of the parliament and the report of the standing committee the Minister for Environment and Forests made the following amendments in the bill:
An Amendment to Clause 18 (2) (e) provides an equal opportunity to any citizen of India to approach the National Green Tribunal.
An Amendment to Section 19(a), ensures that the tribunal takes into consideration principles of Sustainable Development, Precautionary principles, Polluter Pays Principles and Intergenerational Equity while hearing any appeal and giving judgements.
The Third important Amendment was that the entire Act would come into force simultaneously and not Section by Section.
The Fourth Amendment gave the aggrieved person/party an opportunity to approach the Supreme Court if they are not satisfied by the judgement given by the Green Tribunal.
The Fifth Amendment is about the place of sitting, territorial jurisdiction is included in the Amendment as well.
In the Sixth Amendment the number of the judicial and expert members was fixed to a minimum of 10 and maximum 20.
The Seventh Amendment dealt with breaking a deadlock in case there was a difference in opinion between the members of the Tribunal regarding the judgement. It gave the Chairperson the authority to make the final decision to break such a deadlock.
A Selection Committee would be set up to select the members of the Tribunal in a fair and just manner. Environmentalists and people with background in environment conservation will be made members of the National Green Tribunal. Activists may not be members but if activists have the requisite educational qualifications, they would not be debarred from being a member of the National Green Tribunal.
After all these amendments were made the Bill was finally passed by both houses of the parliament and signed by the President of India.
SECTION III: The National Green Tribunal Act, 2010
Due to the increasing complexity of environmental litigations, lack of dedicated jurisdiction and the rigidity of existing court procedures to deal with environmental cases there was an urgent need to establish specialised courts dealing only with environment related cases, in order to clear the long list of pending cases. The NET Act, 1995 could not be enforced due to its limited mandate and thus it could not help at all in dealing with environmental cases. There is a rapid increase in industries and consumption of natural resources therefore the number of the environment related cases is also constantly increasing. It is very essential to maintain a proper balance between sustainable development and environmental regulations which can be achieved only if a body like the Green Tribunal is set up which is solely concerned with environmental issues. The Access to Justice would then be easier.
Main objectives of the National Green Tribunal
There are 3 major objectives of the Green Tribunal
The effective and speedy disposal of the cases relating to environment protection and conservation of forests and other natural resources. All the previous pending cases will also be heard by the Tribunal.
It aims at enforcing all the legal rights relating to the environment
It also accounts for providing compensation and relief to effected people for damage of property.
SECTION IV: National Green Tribunal
The Green Tribunal has been set up by the Central Government. The first Green Tribunal was officially notified on 19th October, 2010. Justice Lokeshwar Singh Panta was appointed as the chairperson of the Tribunal.
Composition of the National Green Tribunal
Members of the Green Tribunal include the Chairperson, full time Judicial Members (not less than 10 and maximum 20) and full time Expert Members (also not less than 10 and more than 20). The chairperson has been given the freedom on inviting any expert, from outside, to assist the Tribunal in any particular case. The chairperson is appointed by the Central Government in consultation with the Chief Justice of India. Judicial and expert members are appointed on recommendations by the Selection Committee.
Qualifications for Appointments
Chairperson: A person who is or has been a Judge of the Supreme Court or Chief Justice of a High Court.
Judicial Member: A person who is or has been a Judge of a High Court
Expert Member: Qualification and experience in relevant scientific and technological field or practical experience in dealing with environmental matters
Term of Office
The Chairperson, Judicial and Expert Member are appointed for a period of five years. The Chairperson and Judicial Member, if a judge of Supreme Court, shall not hold office after the age of 70 years. In case of High Court they shall not hold office after 67 years of age. The Expert Members can hold office only till 65 years.
The Tribunal shall have jurisdiction on all civil cases where a ‘substantial’ question relating to environment is involved; and such question arises out of the implementation of the enactments specified in Schedule I appended to the NGT Act. The Tribunal shall settle disputes, provide relief & compensation and may order restitution of damaged environment.
Schedule I includes:
The Water (P & CP) Cess Act, 1977;
The Forest (Conservation) Act, 1980;
The Air (P&CP) Act,1981;
The Environment (Protection) Act, 1986;
The Public Liability Insurance Act, 1991;
The Biological Diversity Act, 2002.
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.
As defined in the act a ‘substantial question’ includes an instance where there is direct violation of a specific statutory environmental obligation whereby the community at large is affected or likely to be affected by the environmental consequences. Or the gravity of damage to the environment or property is substantial or there is a broadly measurable damage to public health. The environmental consequences relate to specific activity or point source of pollution.
Appeal may be preferred before NGT against:
Order of Appellate Authority u/s 28 of Water Act,1974
Order of State Govt. u/s 29 of Water Act,1974
Directions by the SPCBs u/s 33A of Water Act,1974
Decision of Appellate Authority u/s 13 of Water Cess Act,1977
Order of State Govt. u/s 2 of Forest (Conservation) Act, 1980
Order of Appellate Authority u/s 31 of Air Act,1981
Directions u/s 5 of Environment (P) Act,1986
Grant or Refusal of Environmental Clearance Under Environment (P) Act, 1986
Order or determination of benefit sharing, made by National Biodiversity Authority State Biodiversity Board, under the Biological Diversity Act, 2002
Award for Relief, Compensation and restitution of damaged environment
The tribunal may provide relief and compensation to the victims of pollution and for other environmental damage arising under the enactment specified in the schedule I including accident while handling any hazardous substance. It also takes care of restitution of property damaged and the restitution of environment of the areas, as the Tribunal may think fit.
But there are certain limitations in filing application and the heads for claiming relief and compensation. Firstly the application for relief and compensation or restitution has to be made within five years from the date on which the cause for such compensation or relief first arose.
The Compensation or relief payable under heads specified in Schedule II
Sch. – II: Heads of Compensation/Relief
Death, permanent or temporary disability or injury
Loss of wages and medical expenses
Damage to private or other property
Expenses incurred by the Government / Local Authorities in providing relief and rehabilitation to the affected persons
Compensation for environmental degradation and restoration of the quality of environment
Claim on account of damage or destruction of flora, fauna, crops, vegetables, trees, orchards, etc.
Loss of business or employment or both
Any other claim arising out of any activity of handling of hazardous substance
Application to the Tribunal
An application for settlement of disputes or relief or compensation may be made by any person who has sustained the injury; or the owner of the damaged property; or the legal representatives of the deceased; or any agent duly authorized by the person affected; or any person aggrieved including representative body or organization; or the Govt./CPCB/SPCBs/PCCs or any environmental authority constituted or established under the Environment (P) Act.
The application or appeal has to be decided speedily, after hearing the parties, within a period of six months from the date of the filing of the application or appeal.
Power and Procedure of National Green Tribunal
National Green Tribunal is not bound by the procedure laid down by Criminal Procedure Code but is guided by the principles of natural justice. It has the power to regulate its own procedure and is not bound by the Indian Evidence Act, 1872.
National Green Tribunal can exercise powers of a Civil Court. It can summon people, enforce attendance and examine on oath. It can also receive evidence on affidavits and decide matters ex-parte. It also has the power to grant interim orders, injunctions or stay.
The Civil Court has been given the responsibility to execute the order or award made by the NGT. Any payment or deposit of the amount directed by the NGT, as award, shall be recoverable as arrears of land revenue or of public demand. The decision taken by the NGT, by majority, shall be binding but an aggrieved person can make an appeal to the Supreme Court against the order of the NGT within 90 days. The Green Tribunal can also award cost for filing false or vexatious claims.
For non-compliance with the orders of the NGT there is a punishment of 3 years of imprisonment or a fine of not more than 10crore rupees, or both. If non-compliance continues there is an additional fine of 25000 rupees per day. For companies the fine can be 25crore rupees with additional fine of 1lac rupees per day.
Bar of jurisdiction
Civil courts cannot entertain any disputes which fall under the jurisdiction of the NGT and no sanction can be granted by any civil court with reference to any action or order of the NGT. Civil Court’s jurisdiction is debarred to hear appeals in cases which are appealable before the NGT.
The National Environment Tribunal Act, 1995 and The National Environment Appellate Authority (NEAA) Act, 1997 have been repealed with the establishment of the National Green Tribunal. Also the National Environment Appellate Authority (NEAA) has been abolished. The functions of the NEAA have been subsumed in the NGT and pending appeals have been transferred to NGT.
SECTION V: CONCLUSION
Ever Since the expansion of Industries and the beginning of ‘developmental’ activities in the country a large number of environmental issues have also come up. There are a number of instances where such human activities have caused immense damage to the environment.
India is one of the very few nations in the world who give immense amount of importance to environmental conservation. There are already a number of legislations that deal with environment and forest conservation and protection. The Green Tribunal adds another feather to India’s cap.
There have been other such bodies like the NEAA and NETA which have failed to serve the purpose they were constituted for but it will be unfair to compare them to the Green Tribunal. Failures in the past must not deter us from moving forward to new beginnings.
For a country that has faced one of the world’s most horrifying industrial disasters, setting up a body like the Green Tribunal obviously seems to be an excellent idea. The critics of the Tribunal however fear that it is going to deliver more of the same. That is, nothing!
Although the Act is still facing a lot of criticism, yet its basic framework appears reassuring and it is hard to say that it is not the step in the right direction. It would bring about the much needed reform in the way the courts deal with environmental issues and also the way people perceive environmental damage.
With the introduction of a legal system that supports and encourages environmental justice, the green tribunal shall make India a role model for its neighbouring nations of South-East Asia.
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