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A comparative approach by NGT and Judiciary in dealing with environmental cases – iPleaders

This article is written by Vinayak Gupta, of Dr Ram Manohar Lohia National Law University, Lucknow. In this article, the author has talked about the importance and role of NGT and the judiciary both in terms of saving and protecting the environment.

In today’s world, it is not a hidden truth that the earth is suffering and is in very poor condition. Time and again it has been warned by scientists, activists, and by nature itself that the environment is degrading and it is degrading fast. It is clearly very evident in the Indian metropolitan cities where breathing has become difficult due to the polluted air, rivers are turning black and sound pollution is at peak. It is clearly evident from the fact that forests are being cut adding to the atrocities of the environment. 

The Judiciary of India has always been an active participant and defender of the environment. There’s been active monitoring and implementation of measures laid down by the judiciary to prevent pollution and harm to the environment. Devices such as PIL and suo moto cognizance of the judiciary have immensely helped in preventing the degradation of the environment. Time and again through its decision in the cases related to the environment, the judiciary has proved that it is concerned with the welfare of the environment. 

In order to tackle the issues related to the environment, all three wings of the government namely, legislative wing, executive wing, and judiciary wing together work to alleviate the suffering of the earth through their ruling, statute, and execution. One such body set up under a statute passed by legislation in 2010 is the National Green Tribunal (NGT). The main purpose behind setting up of NGT is easing up the load of the judiciary by handling matters related to the environment specifically and providing speedy justice in the cases. In this article, we will see the working of both the judiciary and the NGT in a comparative perspective in regards to the environment. 

Time and again in various cases, arose a need for establishing separate courts that could solely deal with the cases concerning the environment. The need arose due to the technical nature of environmental cases because they involved lots of science and precision of experts. In the case of M.C Mehta vs. Union of India case, 1987 it was observed by the Hon’ble Supreme Court that setting up of regional courts specifically for the purpose of environmental law would require judges with some prior knowledge of environment and experts in that field. In another case Indian Council for Enviro-Legal Action vs. Union of India, 1996 Supreme Court observed in it’s hearing that separate civil and criminal environment courts should be set up that could result in speedy dismissal of cases related to the environment.

Finally, in the year 2003 law commission chaired by Justice M. Jagannadha Rao came with its 186th law report wherein it proposed to constitute ‘environment courts’. The main purpose of the report was to fill the void between theoretical existence of courts and tribunals dedicated to the environment and actual courts and tribunals working solely for the environment  It was said in the report that due to complex scientific and specialized issues that relate to the environment, the environment courts needs to be manned by not only judicial officers but also people who have a scientific qualification or any experience in the field relating to the environment.

The 186th report of the law commission also reported in its report that a statutory body National Environmental Appellate Authority established under the National Environmental Appellate Authority Act, 1997 to help with environmental cases had very little to no work. It was not really proving to be of any help to the judiciary in sharing its workload related to environmental cases. It was also stated in the report that since 2000 no judicial member had been appointed in the authority. Another tribunal related to the environment cases was set up in accordance with the National Environmental Tribunal Act, 1995, and was deemed to be ineffective in the report of the commission, thereby declaring these two tribunals non-functional.

The commission conducted extensive research on setting up of ‘environment courts’ came up with certain recommendations in its report:

  • To achieve the aim of quick, accessible to all and speedy justice the environment courts should be constituted and set up by the central government in every state. However, in the case of a small state or union territory, one court may serve the purpose for more than one state or union territory.
  • In view of the power vested to parliament under Article 253 read with entry 13 of union list contained in VII schedule, parliament has exclusive jurisdiction to work on the law that could establish the environment courts in India because various decisions regarding protection and improvement of environment and preservation of natural resources of the earth, were taken in International Conferences held at Stockholm in 1972 and at Rio-de-Janeiro in 1992
  • The constitution of the environment courts was recommended in a way that the court shall consist of a chairman and at least two other judicial members. The qualification required to be the chairman of the court was that of a retired Judge of the Supreme Court or High Court or having at least 20 years’ experience of practising as an advocate in any High Court. Each environment court shall be assisted by at least three scientific or technical experts known as Commissioners. However, their role will be advisory only.
  • The powers of High Courts under Article 226 and under Article 227 of the Constitution of India and of the Supreme Court under Article 32 of the Constitution of India shall not be ousted.
  • The National Environment Tribunal Act, 1995 and The National Environmental Appellate Authority Act, 1997 may be repealed and provisions regarding functions and powers of the Tribunal and the Appellate Authority contained in those Acts be suitably transferred in the proposed enactment for the establishment of the Environment Court.

These were some of the significant recommendations made under the 186th report of the law commission to set up environment courts in India that would go on easing the burden of the judiciary as well as efficiently tackle the cases relating to the environment.

The National Green Tribunal is basically a specialized body equipped with the necessary expertise to deal with environmental disputes. For example, if there arises any issue due to the vitiating activity of a factory that leads to damage to the environment and affects people as well, it would be dealt with in the National Green Tribunal. It was established under the National Green Tribunal Act, 2010. The tribunal has 5 branches divided into zones namely north, central, east, west, and south. Each zone has a bench of NGT situated in them. 

What distinct NGT from other tribunals and courts is that it runs on the principle of ‘polluter pays’. It simply means that whosoever is polluting the environment should pay for the damages. NGT draws inspiration from Article 21 (right to a healthy environment) of the Constitution. NGT can impose a fine as well as sentence a jail term if anyone violates Article 21 that has the right to a healthy environment enshrined in it.

Composition of NGT

As per Section 4 of the act, NGT has to have a full-time chairman; and not less than ten and a maximum of twenty full-time judicial members. It also provides for a maximum of twenty and a minimum of ten full-time expert members who could give advice on the cases brought to the NGT. 

Powers and jurisdiction of NGT

NGT has been given some powers under the act. The power includes the enforcement of any legal right related to the environment. It means that if a person wants to enforce his right in relation to the right to a healthy environment he/she can do so by approaching NGT. A person can file a civil case with NGT under the following Acts:

The tribunal has jurisdiction granted under the act to hear an appeal against various authorities under the above acts and any appeal under these acts shall be filed within 30 days in NGT. Section 19(4) of the act says that the tribunal for the purpose of doing its duty has been vested with the same power as the civil court under the Code of Civil Procedure, 1908 while trying any suit.  

Relief, Compensation and Restitution

Section 15 of the act talks about relief, compensation, and restitution. It is written in section 15(1) that the tribunal by the order can provide for the following things:

  • Relief and compensation to the victims of pollution and other environmental damage.
  • Restitution of property damaged and
  • Restitution of environment damage.

The relief, compensation, and restitution mentioned in section 15 may be in addition to the relief paid under the Public Liability Insurance Act, 1991.

The National Green Tribunal is famous for dealing with cases that subsequently tend to become famous case laws. NGT deals with various case laws and there are some famous cases that you might have heard in the news but failed to acknowledge that the decision, in that case, was passed by NGT. 

One such case is Manoj Mishra v. Delhi Development Authority & Others, 2016 (‘the Art of Living Case). NGT imposed a fine of Rs. 5 crores on Sri Sri Ravi Shankar’s Art of Living (AoL). It was held by the tribunal that the world culture festival conducted by AoL has caused damage to the Yamuna floodplains. It was directed by the tribunal that the amount of fine would be utilized by the Delhi Development Authority (DDA) for the restoration of the affected area.

Another case is Prafulla Samantray Vs. Union of India and Others, 2011 (POSCO case). Pohang Iron and Steel Company (POSCO) is a Korean company and it is the world’s 4th largest steel maker company. It signed an MoU with the Odisha government to set up a steel plant in Jagatsinhpur district of Orissa. Total stated investment of the project was 51,000/-crore (approximately 12 million US Dollars) and it was projected that the plant would produce 12 million tons of steel per annum. It was a very big attraction for the media coverage of the whole world because it was one of the biggest Foreign Direct Investment done by a foreign company in India. But NGT being true to its objective of establishment and keeping its agenda for saving the environment intact ordered a suspension of Odisha Government’s order of establishing the plant thereby relieving the locals and the local environment of the acute damage to the ecology system of that area. 

In Re: Water Pollution by Tanneries at Jajmau, Kanpur, Uttar Pradesh WITH In Re: Water Pollution at Rania, Kanpur Dehat & Rakhi Mandi, Kanpur Nagar, Uttar Pradesh a bench led by the chairman A. K. Goel Directed the government of Uttar Pradesh to pay the fine of Rs. 10 crores as compensation for causing damage to the environment. The case was related to the release of toxic material discharge of untreated sewage containing toxic Chromium into River Ganga. The NGT being true to its working and dedication to save the environment imposed fine on the government as well as strictly ordered closing down of all the tanneries that caused damage to the River Ganga. 

In Ms. Betty C. Alvares vs. The State of Goa and Ors., 2014 the NGT made clear that foreign nationals too have locus standi in the court against matters filed under article 21. The reason cited by the court behind this decision was that applicant Ms. Betty Alvarez had already previously filed other writ petitions and contempt applications before she filed an application in the present case. Another reason behind maintaining her locus standi in the court was found by the tribunal in Section 2(j) of the act. Interpreting this section, the Tribunal found that the word ‘person’ deserves to be construed in a broad sense to include an individual, whether a national or a person who is not an Indian citizen. The Court noted that going into the details of Betty’s nationality is not required.

NGT was brought with the aim of speedy trials related to the environment and easing the burden of the judiciary in relation to environmental cases. Another main reason behind setting up of the NGT was to save the environment from getting degraded because of various vitiating practices done by people, organizations, and sometimes even the government itself. It will not be correct to say that NGT has totally outdone itself in doing so, in saving nature but it has still made a mark in doing some of it. There are drawbacks of NGT, there are times when NGT couldn’t prove to be the champion for the environment due to one or the other limitation or practices of its own. 

In 2020 NGT has become exactly a decade old institution in fighting cases for the environment and against polluters. Lately, NGT has started a rather casual approach in dealing with environmental cases. It’s been working on an approach of 4D which means ‘dismiss, dispose, delegate and de-reserve’. This approach has rather been the opposite of the agenda of establishing NGT. Under this approach, there’s an outright dismissal of a petition filed with NGT. It has been declared by the chairman of NGT that in petty cases there will not be any notices issued by NGT and only cases important to the environment and ecology would be considered. What is pertinent here is that though NGT was made with the objective of dealing with cases which have substantial questions relating to the environment but opting for the approach where NGT dismiss the case at the first stance seems to be destroying that agenda and the new approach taken up by the NGT in dealing with environment cases not really efficiently saves the environment. 

The NGT dismisses the case and delegates or transfers the case to various authorities to look into the matter. The various authorities look into the matter having a conventional approach which is undermining the environment over profit thereby defeating the whole purpose behind setting up NGT.

Excessive delegation to committees

Since July 2018, NGT has dismissed around 700 cases at different levels and stages of hearing of those cases. The dismissal was generally done with the order being given to the concerned authorities to look into the matter and to take appropriate action according to its own whim and fancy abiding by the law. 

Moreover, NGT has formed various committees headed by retired judges to look and monitor the various different compliances of environmental laws and submit their reports regarding it. 

This practice of delegating its work to various committees shows that the Tribunal is repealing its own jurisdiction by forming these committees and delegating its own work onto the committees. Higher courts have time and again displayed their dismay tribunal delegating their work on various executive committees and other authorities. The excessive delegation of NGT should be checked.  

Moving from a judicial forum to an oversight body

Due to Excessive delegation of workload NGT has merely been reduced to an oversight body rather than a judicial forum. The main work of the judicial forum is to bind the authorities by their decision not to delegate the power to them. There was a dearth of proper hearing in the forum. The Tribunal proved no opportunity for petitioners to present the case before judges and in absence of the proper functioning of the tribunal it merely reduced to the oversight body. 

Judiciary is considered as the safeguard of the constitution. The role of the judiciary is not only limited to saving the constitution but also extends to fight prevailing injustice in the system and in the country. Judiciary plays a significant role in every paradigm that relates to the betterment of humans and their rights but not at the cost of harm to any other. Judiciary also plays an important role by taking Suo Moto cognizance of the public interest matters or things that tend to do harm to anyone or anything to a great extent.

In its pursuit of justice and fairness in the system, the judiciary does not forget to take care of the place we live in, our environment. Persistently and consistently it works for the betterment of the environment besides its basic duty of saving the constitution and fundamental rights of citizens. Before the origination of the National Green Tribunal in 2010, it was the judiciary that was looking over the matters related to the environment. Judiciary regulated, fined, and penalized authorities for flouting environment laws and polluting our ecosystem. If forming the analogy then NGT could be considered the child and the judiciary would be considered as a father that deals with environmental law.

Judiciary plays a key role in the mechanism ensuring the legal effectiveness of environmental law. It was in the 42nd amendment of the constitution that protection of the environment got constitutional status through DPSP. Article 48 A and Article 51 A(g) of the constitution deals with the environment and obliges state and central governments as well as citizens to take care of the environment. 

Remedies under environmental pollution

Judiciary, constitution and the government provides us with certain remedies that we can avail in case of environmental pollution. Some of the remedies could be provided under:

  • Criminal law like IPC and CrPC
  • Statutory Remedies
  • Writ Jurisdiction 
  • Public Interest Litigation  

Tortious liability

Most pollution cases fall under the tort of nuisance, negligence, trespass, and strict & absolute liability. In the case, M.C. Mehta vs. Kamal Nath, 2000 Supreme Court ruled out that environmental pollution amounts to a civil wrong and by its nature, it is a tort committed against a person and the whole community. Therefore, it becomes mandatory that whosoever pollutes the environment pays for it.   

In tortious liability, India is the place where the concept of absolute liability was developed in the case M.C. Mehta And Anr vs Union Of India, 1987. Famously known as oleum gas leak case, in this case, Justice P. N. Bhagwati devised the concept of absolute liability. Under absolute liability, there is no relief given to the party in the garb of exceptions who flouted the rules and would be liable to pay for the damages no matter what. This is a landmark case in the development of environmental law that made the rules stringent. 

Polluters pay principle

Initially what used to happen was that pollution control costs were borne by the taxpayers and community at large and not by the person who polluted the environment. The polluters pay principle changed this scene by making the polluter liable for bearing the costs of pollution control. In the case Indian Council for Enviro-Legal Action vs. Union of India, 1996 it was said by the Supreme Court that once an activity carried on is hazardous or dangerous, the person who is carrying on that activity is liable to make good the loss caused to anyone or the environment for that activity. 

Precautionary principle

According to the precautionary principle, scientific uncertainty should not be used as a reason not to take action with respect to a particular environmental concern. According to the principle, those people or organizations indulging in a potentially dangerous and damaging activity should have the burden of establishing the absence of environmental harm. The principle says that there is a duty of a person or organization to protect people and the environment when scientific study points towards a potential risk. According to the principle, the onus lies on the violator to show that his act was done in good faith.

In Vijayanagar Education Trust v. Karnataka State Pollution Control Board, 2002 the court accepted the doctrine of the precautionary principle and further developed this by adding three more concepts into this.  

There are several legislations and acts aimed at protecting the environment. Not only that, but our constitution also provides us with some aspects in forms of various articles. Article 51-A(g) of the Indian constitution made it a fundamental duty of every Indian citizen to protect the environment which includes the forests, lakes, and also the wildlife. Article 48(A) makes it a duty of the State to protect and promote the environment that was not initially present in the Constitution. With the increasing awareness and worldwide consciousness, came about the need of amending the Constitution to add a provision for the protection and welfare of the environment by the State. Hence, Article 48-A was added through the 42nd amendment.

Furthermore, the right to life which is protected under Article 21 of the Indian Constitution also includes the right to a clean, pollution-free environment. The importance of a clean environment as the right to life was reiterated in the Ganga river pollution case where Article 21 was interpreted and Justice Singh in this regard observed how the ecology has greater importance to the life of the people as compared to revenue and employment. 

The judiciary has played a vital role in protecting the fundamental right of clean air and water which were missing in the provisions of the Constitution. Article 246 which provides for the three lists has listed the protection of the environment under the concurrent list which means that both the Centre and State can legislate on these matters. Moreover, Article 253 of the Indian Constitution grants Parliament the right to legislate in any matters which are concerned with the protection of our environment. 

This article was in the wake of the Stockholm Conference, 1972 which was conducted in order to preserve the environment and thus humankind by providing global principles for the governance of the environment. It also proclaimed that a clean environment is a fundamental right of every citizen. In fact, Article 14 of the Indian Constitution also provides for the protection of the environment since it talks about equality before the law and equal protection of the laws. Many times, this right might be infringed or abridged by the government itself. Article 14 thus protects the citizens against the infringement by the government or for that matter any other private body. These are some of the constitutional aspects brought about in environmental law. In no way, the Indian Constitution turns a blind eye to the environment.

The National Green Tribunal was set up under the National Green Tribunal Act, 2010 of the parliament, therefore, it is a statutory body deriving its power from the act. On the other hand, Judiciary is a constitutional body that derives its power from the constitution designed by our forefathers. 

The role and horizon of the judiciary in dealing with the cases is very broad in comparison to that of NGT. Judiciary not only deals with environment cases but the jurisdiction of the judiciary extends to all of India dealing with cases of every kind. Judiciary is also considered as the saviour of the constitution and rights of the citizen. 

When looking from the broader perspective, saving the environment and working for the betterment of it is a subset of working towards the goals envisaged in our constitution as the environment is covered in the constitution in Article 48(A), Article 21, Article 253, Article 51(A), Article 19(1)(g), Article 51, and Article 14. These articles could be relied upon invoking cases related to the environment in the judiciary apart from the various acts that are passed by the parliament. While on the other hand, cases in NGT could only be invoked under certain acts of parliament mentioned in the act. The role of NGT is limited to that of the act it is born out of. 

Besides, unlike following the orders of the court, several organizations and authorities have been bypassing/diluting the implementation of NGT’s directives as NGT’s power to punish them is limited to giving out the prison sentences of 3 years in comparison to normal courts. This really hinders the role of NGT in making authorities, organizations, and people implement its order. Although NGT has been given more flexibility and a separate structure for adjudicating cases, its role is still undermined in comparison to that of normal courts because NGT’s jurisdiction is not all-inclusive. Major environmental acts like the Wildlife Protection Act, 1972 and Indian Forest Act, 1927  do not find its jurisdiction under NGT. This really narrows down the scope of NGT in environmental matters. 

One advantage that NGT has over the judiciary is that NGT does not strictly need to adhere to the Indian Evidence Act, 1872 unlike the judiciary and this power gives more flexibility to NGT in proceedings of the case when compared to regular courts. 

There can be differences between the working of the judiciary and NGT, differences between the objective of NGT and the judiciary, different approach towards the cases related to the environment but ultimately it is the highest judiciary Supreme Court whose brainchild is the NGT and it is at the end of the day Supreme court whose decision would be binding despite there being differences in the opinion of the judiciary and NGT.

There are many parameters on which both the judiciary and NGT could improve their working towards saving the environment from violators, people, and organizations who openly flout environmental laws.

Judiciary should not hear cases that are already being heard in the NGT and get transferred due to the writ jurisdiction of Article 226 to the High Court. High Courts should refrain from hearing matters related to the environment which are already being heard in NGT because it defeats the purpose of setting up the NGT. 

NGT too has flaws in the act by which it is governed and in its working. It should start by filling up the vacancies in the different benches spread in a different zone. Due to the lack of judicial members and experts in the benches, NGT division benches were forced to take up cases through video streaming to the central division of NGT. 

NGT’s role and jurisdiction need to be expanded as well, in order to bring NGT somewhat at par with the judiciary in handling the environment cases and also if it is to be taken more seriously. Due to some important acts related to the environment being out of the jurisdiction of the NGT, the effectiveness of NGT takes a toll and the main objective behind the establishment of NGT somewhat remains unfulfilled. Besides, NGT needs to be vested with the power to deliver more stringent sentences and the power of NGT should be extended to grant jail sentences spanning more than just 3 years. 

Both the judiciary and the NGT have been extensively working towards fulfilling the Sustainable Development Goal 30 goal of a clean environment. NGT was in fact set up with the aim of being the protector of the environment. It was by the various different rulings of the Supreme Court that the idea of incubating a body like NGT was generated. 

The world with a cleaner environment is still something which is an aim for the future and we will have to see what’s the contribution of the judiciary and NGT in making our environment cleaner and better. There have been stances and adopting measures that had led to NGT losing its credibility lately. In the future, we will have to see if NGT recovers from them and turns out to be even better in making our environment cleaner at the same time proving to be stand out from the rest of the authorities. 

India could do a lot better in terms of saving the environment and the collective efforts of the judiciary, legislative, and executive could really make the difference in the pollution output of India which stands at number three in the world. 

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