International Journal of Academic Research

ISSN: 2348-7666 Vol.1 Issue 2(3), July-September, 2014

Critical Appraisal of National Green Tribunal Act, 2010

Muhammad Riyazul Ameen , B.A. LL. B (Hons.), Hidayatullah National Law

University, Raipur.
Abhinav Dahariya B.A. LL. B (Hons.), Hidayatullah National Law University,
Raipur.




        
          

M C Mehta v Union of India


       Indian Council for
Enviro-Legal Action v Union of India      



       



Chapter: 1- object, origin & including enforcement of any legal

introduction of national green right relating to environment and
tribunal Act 2010.
giving relief and compensation for
Object:
damages to persons and property
An Act to provide for the and for matters connected
establishment of a National Green therewith or incidental thereto. It
Tribunal for the effective and would deal with all environmental
expeditious disposal of cases laws on air and water pollution, the
relating to environmental Environment Protection Act, the
protection and conservation of Forest Conservation Act and the
forests and other natural resources Biodiversity Act. With this effort,

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International Journal of Academic Research
ISSN: 2348-7666 Vol.1 Issue 2(3), July-September, 2014

India would join Australia and New The concept of

Zealand, which have such environmental courts was initially
specialized environment tribunals. and positively addressed in two
It would monitor the major judgments of the Supreme
implementation of environment Court of India. In    
laws.  the Supreme Court
stated that as environmental cases
Origin:
frequently involve assessment of
In India some initial scientific data, it was desirable to
legislative support for creating the set up environmental courts on a
National Green Tribunal already regional basis with a legally
existed in the form of the National qualified judge and two experts, to
Tribunal Act 1995, though this undertake relevant adjudication.
went unimplemented, and also the Similarly, in   
National Environmental Appellate     
Authority Act 1997. The 1997 Act   the Supreme Court again
authorises the limited role of floated the establishment of
examination of the complaints environmental courts with both
regarding environmental civil and criminal jurisdiction in
clearances. However, since 2000, no order to deal with environmental
judicial members have been issues in a speedy manner. Again,
appointed under the 1997 Act. in the judgment of   
During the Rio De Janeiro summit      
of United Nations Conference on  the Court referred to the
Environment and Development in need for established environmental
June 1992, India vowed the courts. Such courts would have the
participating states to provide benefit of expert advice from
judicial and administrative technically qualified environmental
remedies for the victims of the scientists, as part of the judicial
pollutants and other environmental process. It was suggested that the
damage. Law Commission of India should
examine this matter in detail.

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There lies many reasons the National Environmental

behind the setting up of this Tribunal Act and the National
tribunal. After India's move with Environment Appellate Authority
Carbon credits, such tribunal may Act were repealed. The legislate Act
play a vital role in ensuring the of Parliament defines the National
control of emissions and Green Tribunal Act, 2010 as
maintaining the desired levels. This follows,
is the first body of its kind that is
An Act to provide for the
required by its parent statute to
establishment of a National Green
apply the "polluter pays" principle
Tribunal for the effective and
and the principle of sustainable
expeditious disposal of cases
development.
relating to environmental
Introduction: protection and conservation of
forests and other natural resources
National Green Tribunal
including enforcement of any legal
Act (NGT) was established in 2010,
right relating to environment and
under India's constitutional
giving relief and compensation for
provision of Article 21, which
damages to persons and property
assures the citizens of India, the
and for matters connected
right to a healthy environment
therewith or incidental thereto1.
under Article 2 of the Charter of
Fundamental Rights of the Parliament passed the
1
European Union, which affirms the NGTA in June 2010 . The NGTA
right to life. The tribunal itself, is a implements the commitments of
special fast-track court to handle India made in the Stockholm
the expeditious disposal of the cases Declaration of 1972 and in the Rio
pertaining to environmental issues. Conference of 1992. India
The National Green Tribunal committed to take appropriate
(NGT) was officially passed by the steps for the protection and
legislature on 19 October 2010 with improvement of the human
its Chairperson, Justice Lokeshwar environment and to provide
Singh Panta taking charge of his effective access to judicial and
office here. By virtue of this law, administrative proceedings,

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including redress and remedies. Bhopal in recognition of the city’s

1
This included also the development disastrous industrial history .
of national laws regarding liability There will be four regional
and compensation for the victims of counterparts across the country.
pollution and other forms of According to the Environment
environmental damage. In addition, Minister; the main bench of the
and for the first time, the Act tribunal will be in Bhopal. This way
recognises the judicial exegesis of the government and parliament
the right to environment as part of could show some sensitivity to the
1
the right to life . In consequence, people of Bhopal, the site of the
the Act provides for the worst industrial disaster. We can
establishment of the National never obliterate that tragedy from
Green Tribunal (NGT). The our memories but by setting the
Tribunal aims to adjudicate national green tribunal in Bhopal, I
environmental protection and think we would send a signal that
forest-conservation cases in an we mean business. A circuit
effective and expeditious manner, approach would be followed to
which includes enforcement of any enable access for people. The court
legal right relating to the will go to the people. People would
environment together with not come to the court1.
available relief and compensation
Chapter:2- composition &
for damages to persons and
jurisdiction of NGT
property.
composition:
The Tribunal is ‘one
A remarkable feature of the
element’ of a reformist approach to
NGT is its composition. In view of
environmental governance. There
earlier debate as to the specialist
are some 5,600 environmental
nature of environmental law and
related cases pending throughout
the multi-disciplinary issues
India. Consequently, the
relating to the environment, the
government proposes to create a
Tribunal will consist of both
circuit system for the new tribunal.
judicial and expert members. The
The main bench is to be situated at

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judicial members will have been or committee in such manner as may

will be judges of the Supreme Court be prescribed by the central
1 1
or the High Court of India . This government .
reflects the significant, perceived
Although the ‘appointment
status of the Tribunal and
of members’ provision appears
constitutes a commitment that the
appropriate there is a caveat.
judicial bench will have the
Action by the government to
requisite legal expertise and
implement these provisions is
experience. Expert members will
essential. Hopefully, there will be
include either technical experts
no repetition of its inactivity
from life sciences, physical science,
concerning the National
1
engineering or technology .
Environmental Appellate Authority
Interestingly, there appears to be
(NEAA) as described above.
no room for social scientists with
Although the NEAA was
appropriate specialisation or
constituted as a quick-redress
familiarity with environment or
process for public grievances in
occupational risk. Members will
relation to environmental
need practical experience of not less
clearances, without leadership it
than five years or will be an
remained ineffective.
administrative expert with not less
than 15 years experience of dealing The ‘administrative
with environmental matters. The experience of 15 years’ clause also
minimum number of full-time raises significant issues based on
judicial and expert members will the historic field performance of
not be less than 10 with a such officers. The mismanagement
maximum of 20 to each bench1. The and frequent failure to enforce the
Chairperson of the Tribunal will be relevant legislative norms
appointed by the central concerning the protection of the
government in consultation with environment has contributed
the Chief Justice of India 1
. significantly to the backlog of
Members will be appointed on the complaints and current state of the
recommendation of a selection environmental indifference. Had
the enforcement officials proved

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diligent and effective in their original jurisdiction covers all civil

duties, it might be argued that the cases in which a substantial
need for a new procedure and question relating to the
tribunal might not have been so environment is involved and which
apparent. It remains to be seen arises out of enactments specified
whether this ‘administrative in Schedule 1 of the National Green
experience’ can be utilised more Tribunal Act1.
effectively within the new
A substantial question
parameters and procedures laid
relating to the environment may be
down in the NGT. There is a
of two kinds. The first is where the
concern that these qualifications
community at large is affected or is
will allow the Tribunal to become a
likely to be affected by
potential retirement home for
environmental consequences or
senior civil servants who are not
where the gravity of damage to the
necessarily best placed to curb
environment or property is
environmental maladministration.
substantial or there is damage to
Much will depend upon the
public health as a result of direct
selection process, which must
violation of a specific statutory
ensure that there is both
environmental obligation. The
transparency and accountability in
second relates to the environmental
the selection of tribunal
consequences that relate to a
membership. Public scrutiny
specific activity or point to the
minimises the possibility of
source of pollution1.
cronyism and will encourage
independent and impartial The Act confers significant
decisions leading to effective jurisdictional powers to the
environmental governance Tribunal but these require
clarification. For example,
Jurisdiction:
substantial damage to the
The Tribunal has original environment needs to be quantified
and appellate jurisdiction to settle and public health should be defined
environmental disputes. The in a tangible form whereby a
consistent and uniform approach

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can be followed by the Tribunal. If environmental protection the court

precedent or guidelines are applied, has often subordinated those rights
this will reduce the likelihood of to environmental protection. On
subjective and possibly the other hand, when
contradictory conclusions in the environmental protection comes
determination of what constitutes into conflict with what is perceived
the term ‘substantial’. As by the court to be ‘development
unreported administrative issues’ or powerful commercial,
decisions are prone to vested interests, environmental
inconsistency, this is a matter of protection is often sacrificed at the
some importance. For example, altar of ‘development’ or similar
there have been numerous grand powerful interests 1 . The Tribunal
judicial pronouncements cannot entertain an application for
concerning the environment but adjudication unless it is made
also some subjective statements by within a period of six months from
members of the judiciary which do the date on which the cause of
not sit well with the overarching action in such a dispute first arose1.
commitment to protect the However, where there is sufficient
1
environment . cause, the Tribunal may allow a
further period not exceeding 60
Prashant Bhushan has
days. This time-limitation clause
rightly argued that: the right to
appears to be unduly restrictive in
environmental protection has thus
certain situations relating to health
been whimsically applied by
and pollution. The effects of
individual judges according to their
pollution are sometimes subtle and
own subjective preferences usually
may take years to develop. For
without clear principles guiding
instance, the effects of asbestos
them about the circumstances in
fibres take around 20 years to
which the court could issue a
manifest illness and evoke
mandamus for environmental
reactions. Consequently, the NGT
protection. It appears that when
should be aware of long timescales
socio-economic rights of the poor
before damage becomes apparent
come into conflict with

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and must consider carefully issues property to which damage has been
of manifestation and discovery. caused or the legal representatives
of the deceased where death has
The Tribunal will have
resulted from environmental
appellate jurisdiction against orders
damage. However, any person
or decisions under the enactments
1 aggrieved has standing including,
specified in Schedule 1 . In
with the permission of the
contrast, civil courts will have no
Tribunal, a representative body or
jurisdiction to entertain appeals in
organisation functioning in the
respect of any matter which the
field of the environment, making
Tribunal is empowered to
the provisions sufficiently wide to
determine under its appellate
1 allow enforcement by non-
jurisdiction . Significantly, this
governmental organisations
places government departments
(NGOs) of all legal rights relating
under the scrutiny of the NGT in
to the environment. In the original
clearing projects having
Bill, the provision in regard to
environmental impacts. An
access was limited in that it was
important power granted to the
silent on the right of individuals to
Tribunal is its ability to impose
approach the Tribunal as an
damages for the restitution of the
aggrieved party. This evoked
environment and order
criticism from activists, particularly
compensation for the damage
NGOs 1 . It was also believed that
inflicted on property and on the
the original Bill diluted the
environment1.
objectives of both the Stockholm
Access: Declaration and the Rio
The Act provides access for all Conference. The later changes to
aggrieved parties to approach the the Bill have ensured compliance,
Tribunal to seek relief or therefore, with international
compensation or the settlement of commitments.
1
environmental disputes . This
obviously includes a person who
has sustained injury or an owner of

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Chapter:3- procedure might prove restrictive to

principles & of the tribunal impoverished individuals or
Procedural issues: organisations seeking to address
the concerns of communities and
The Act provides for an appeal to
affected peoples.
the Supreme Court of India by any
aggrieved person concerning the The NGTA provides a penalty for
award or order passed by the not complying with the Tribunal’s
1
Tribunal . This right of appeal is orders both for individuals and
limited to a period of 90 days from companies. Failure on the part of
the date of communication of a an individual attracts
decision. It can be on one or more imprisonment for three years or a
grounds specified under s 100 of fine of rupees 10 crores or both 1 .
the Civil Procedure Code 1908 1 , Corporate bodies are punishable by
although the Supreme Court may a fine of rupees 25 crores and
allow an appeal even after 90 days relevant company officials may face
if it is satisfied that sufficient cause personal liability1. The adequacy of
exists. The appeal clause seeks to corporate liability here needs re-
ensure that the Tribunal functions examination in an era of corporate
in accordance with the principles of crime. The amount of rupees 25
fairness and does not act in a crores seems to act as an
manner contrary to the public insufficient deterrent in relation to
interest. irreparable environmental damage,
biodiversity loss or serious injury to
The Tribunal has the power to
public health. In a situation similar
make such orders as to costs as it
to Bhopal, the inadequacy of a fixed
may consider necessary, including
penalty of rupees 25 crores, unless
where the claim is not maintainable
accompanied by very strict
or false or vexatious1. On the one
remediation conditions, may dilute
hand, this may act as a deterrent to
the very purpose of the Act which
those seeking to use the Tribunal
seeks to penalise the companies in
for improper personal or economic
proportion to the damage caused to
reasons but equally, imposing costs
present and future generations.

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Foundational principles: essential features of ‘Sustainable

Development’.
It is mandatory for the Tribunal to
apply the foundational principles of According to the Supreme Court in
India’s environmental that case, both the ‘precautionary
jurisprudence, namely, the principle’ and the ‘polluter pays
principles of sustainable principle’ are accepted as part of
development, precaution and the the law of the land since Article 21
1
polluter pays principle . The of the Constitution of India
Supreme Court has declared and guarantees protection of life and
reinforced this commitment in liberty1. The Court also elaborated
several cases. For example, in what is meant by these principles
     and in particular ruled that the
, popularly known as ‘polluter pays principle’ should be
the Tamil Nadu Tanneries Case 1 interpreted as meaning that: the
the Court dealt with the concept of absolute liability for harm to the
‘sustainable development’ and environment extends not only to
specifically accepted ‘the compensate the victims of pollution
precautionary principle’ and ‘the but also the cost of restoring the
polluter pays principle’ as part of environmental degradation.
India’s environmental law. Remediation of the damaged
According to the Supreme Court: environment is a part of the process
We have no hesitation in holding of ‘sustainable development’ and as
that sustainable development as a such the polluter is liable to pay the
balancing concept between ecology cost to the individual sufferers as
and development has been accepted well as cost of reversing the
as a part of the customary damaged ecology. Similarly in  
international law though its salient     the court
features have yet to be finalised by observed that ‘It is thus settled by
the international law jurists. We this Court that one who pollutes
are, however, of the view that ‘The the environment must pay to
Precautionary Principle’ and ‘The reverse the damage caused by his
Polluter Pays Principle’ are the acts’. When combined with the

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provisions of the Act, this case law any public record or document or
ought to provide clear guidelines copy of such record or document
and limits to the Tribunal members from any office;
and have the overall effect of
() Issuing commissions for the
strengthening the environmental
examination of witnesses or
regime.
documents;
Chapter:4- power & functions
() Reviewing its decision;
of the tribunal Power of the
tribunal: () Dismissing an application for
default or deciding its ;
Section 19 (4) is concern with the
power of the National Green () Setting aside any order of
Tribunal Act 2010. According to it dismissal of any application for
following are the power vested default or any order passed by it 
upon the tribunal: ;

Sec. 19() The Tribunal shall have, () Pass an interim order (including
for the purposes of discharging its granting an injunction or stay)
functions under this Act, the same after providing the parties
powers as are vested in a civil court concerned an opportunity to be
under the Code of Civil Procedure, heard, on any application made or
1908, while trying a suit, in respect appeal filed under this Act;
of the following matters, namely:— () Pass an order requiring any
() Summoning and enforcing the person to cease and desist from
attendance of any person and committing or causing any
examining him on oath;. violation of any enactment specified
in Schedule I;
() Requiring the discovery and
production of documents; () Any other matter which may be
prescribed.
() Receiving evidence on affidavits;
Functions of NGT
() subject to the provisions of
sections 123 and 124 of the Indian The Tribunal would have 4
Evidence Act, 1872, requisitioning circuit Benches. The Tribunal shall

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consist of both judicial and expert Supreme Court. The Act now
members. Judicial members must specifies territorial jurisdiction.
have been judges of the Supreme It balances the number of
Court or High Courts. Expert judicial and expert members, 10
members have to possess technical each, with the authority to
qualifications and expertise, and break a deadlock vesting the
also practical experience. The chairperson of the tribunal.
Tribunal members would be chosen
Key amendments in the
by a committee.
national green tribunal bill:
The Tribunal shall hear only
This bill was passed in the
'substantial question relating to
Lok Sabha only after some
environment'. Substantial
necessary reforms were
questions are those which,
incorporated by the environment
(a) affect the community at large, minister Jairam Ramesh. Earlier,
and not just individuals or the bill had faced many objections
groups of Individuals, or from various political parties and
other civil society groups.
(b) cause significant damage to the
environment and property, or A major amendment in the
bill was incorporating benches of
(c) cause harm to public health
the tribunal on circuit basis and
which is broadly measurable.
mobilizing these benches to make
"Persons aggrieved" who can them approachable to the people
move the courts allow for living in far flung places.
individuals to approach the
Another amendment incorporated
given tribunal. It also outline
in the bill was modification of the
the "foundational principles" of
criteria regarding those who can
polluter pays principle and
lodge a complaint with the tribunal.
principle of equity that would
Earlier, the bill allowed only a
given the tribunal. The
representative association working
decisions of the tribunal can be
in the field of environment to file a
appealed against in the
case. At present, any person

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International Journal of Academic Research
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aggrieved, which also includes any Hariparanthaman have issued

representative organization, can notice on the same just.
file a case and claim for relief from
The petition has been filed
the tribunal. The environment
by M. Naveen Kumar, a student
ministry has also included the three
pursuing B.A., B.L (Hons) Course
founding principles, which include:
at the School of Excellence in Law,
The tribunals will adjudicate The Tamilnadu Dr. Ambedkar Law
against a framework of University, Chennai. The petition
precautionary measures. has sought a declaration that the
National Green Tribunal Act 2010
The liability to pay for any
is unconstitutional. The National
financial loss arising from an
Green Tribunal Act, 2010 enacted
incident is put on the offender
by the Parliament provides for
or the polluter.
constitution of the National Green
The tribunal shall put the Tribunal for the effective and
liability on the person or the expeditious disposal of cases
group of persons under inquiry, relating to environmental
to prove that their act will not protection. Naveen Kumar
cause any damage to the public appearing in person submitted that
or environment. the constitution of the Green
Chapter:5- problems & Tribunal and exclusion of all
suggestions of the tribunal environmental matters from ambit
Criticism: of the jurisdiction of High Court
and the Civil Courts would severely
High Court of Chennai has
affect the right of access to justice
been approached with a Public
to the poor and needy. It was
Interest Litigation challenging the
further submitted that Section 3 of
National Green Tribunal Act, 2010.
NGT Act only provides for
A Division Bench of Madras High
constitution of a National Level
Court comprising Justice Elipe
Tribunal and Section 4(4) provides
Dharma Rao and Justice D.
for circuit benches. It has been
contended that there is no

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provision under the Act for unconstitutional and is against well

providing a Tribunal for each state. settled principles of law.
This would also make it difficult for
Noticeably, another
the litigants to approach the
litigation arising out of an order of
tribunal as the redressal process
the Delhi High Court is pending
would be expensive, burdensome
before the Supreme Court of India
and complicated, added the
where the government has assured
petitioner.
the Apex Court to make
Pointing out that the appointments at the tribunal to
procedure for appointment of the make it functional. However, In
members of the tribunal, especially exercise of the powers conferred by
the expert members is not in sub-section (2) of Section 1 of the
accordance with the well settled National Green Tribunal Act, 2010
principles of law, the petitioner (19 of 2010), the Central
sought the High Court to grant Government hereby appoints the
interim direction thereby directing 18th day of October, 2010, as the
the Union Government not to date on which all the provisions of
appoint any further members, the said Act shall come into force.
including expert members in
Suggestions:
constituting the National Green
Tribunal and not to transfer any According to a critique by The
pending or fresh matters from the Access Initiative-India (TAI-India),
High Court to the Tribunal. a global civil society coalition, the
National Green Bill suffers the
The petitioner contended
following limitations. The
that the exclusion of the power
problems, along with their
vested in the High Court under
suggested solutions, include:
Article 227 to exercise judicial
superintendence over decision of all The name “National Green
courts and tribunals within their Tribunal,” as provided in
respective jurisdiction by Section Clause (1) must be changed to
22 of the Act is also illegal, “National Environmental
Tribunal Bill.”

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There must be a tangible misuse. Hence, the suggestion

method for measuring or for deleting this clause.
substantiating the impact on
Clause 21 states that the
environment or public health -
decision of the tribunal is final.
Clause 2 (1) (m).
This, however, must be changed
The bill must mention a fixed to provide for an appeal against
time period for the law to come its decision before the Supreme
into effect. Court.

The bill must specify that the Imposing of cost against

tribunal can be considered litigants should be removed,
functional only if it has a mix of since this may discourage
judicial and technical members, people from approaching the
the chairperson included. body.
(Clause 3 and 4)
In fact, the bill requires complete
Bill must have the power to reconsideration, deliberation and
revoke clearance granted in redrafting so that it meets the aims
terms of compensation of of securing environmental justice
damaged property and offering relief to those affected
by environmental degradation.
Clause 16 (i) refers to
“aggrieved person” as someone Conclusion:
affected by action under the
It is interesting that the
Forest (Conservation) Act and
debate in India has focused on the
Water Act. However, this may
technical and scientific content of
end up benefiting violators,
the subject matter before the courts
such as mining companies and
in environmental cases. The
industrialists. Hence, this
composition of the National Green
provision must be deleted.
Tribunal itself reflects this
Clause 18 (2) e vests too much approach. One might argue that the
discretion in the Tribunal, thus technical content is no greater in
increasing chances of its this area than other areas of law

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(such as intellectual property or National Green Tribunal is

1
competition law) . However, the unlikely to be a panacea for all
true case in India may be that environmental ills, but it could
scientific expertise on the Tribunal provide a lead in terms of new
itself produces an equality of arms forms of environmental dispute
and prevents powerful, corporate resolution and do much to further
interests from outgunning the lead already given by the Sup
claimants in producing expertise development, the extent to which
which claimants cannot match in environmental issues can be ring-
what is often public interest fenced from wider social and
litigation. economic concerns.

It will be interesting to see References:

both the type and volume of cases
coming forward to the National
Green Tribunal in India. This
experience will also test the
drawing of the boundaries in the
Act in terms of what can be seen as
‘environmental’ and also, in an era
of sustainable development, the
extent to which environmental
issues can be ring-fenced from
wider social and economic concerns.
Finally, as suggested by comments
on the composition of the National
Green Tribunal, there is no
guarantee of resolution of wider
systemic problems of
environmental enforcement in
India or of freedom from capture of
the Tribunal by narrow sectoral
interests. This suggests that the

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