DECODING INDIA’S ENVIRONMENTAL TRIBUNALS AND COURTS: A DEEP DIVE

ABSTRACT

Environmental courts and tribunals play a crucial role and help in reducing the damage that people have done to the environment and continue to do so. Through this research paper, we have discussed the ECTs in the light of India. The NGT, or National Green Tribunal, which is situated in New Delhi, is the top authority in India to decide on issues related to environmental degradation. The NGT, or National Green Tribunal, which is formally regarded as a specialised entity, is one venue that handles environmental justice and is packed with the necessary tricks to handle environmental disputes involving various socio-economic and other issues. The NGT is composed of judicial and technical experts who exercise considerable authority and make decisions in an open forum. We have also discussed the power and effectiveness of the NGT.  This paper also includes various loopholes and suggestions for the same.

Keywords: ECTs, Environmental justice, National Green Tribunal, Degradation

INTRODUCTION

In the era of globalisation and industrialisation, the degradation of various types, such as socio-economic and environmental, are not given much priority, and what is considered necessary is the monetary benefits and nothing else. Environmental, resource development, land use, and related issues are now routinely heard in judicial courts and administrative tribunals around the world. Public Interest Litigation, the National Green Tribunal or NGTs, and green benches in state high courts are just a few of the legal tools the Indian Judiciary has evolved to address environmental issues. The country also employs environmental impact assessment or EIA, a process for anticipating and minimising the detrimental effects of growth and development[1].

Professors George (Rock) Pring and Catherine Pring are the foremost experts in the world, who have researched the growth of these institutions for more than ten years, claim that there has been an ‘explosion’ of tribunals and courts around the world that specialise in disputes regarding environmental issues. This event, in Pring’s opinion, “dramatically changes the playing field for environmental justice around the world[2].”

RESEARCH METHODOLOGY

This research paper uses a descriptive approach through which it describes the environmental tribunals and their current scenario in the country. This paper also uses secondary sources such as articles, journals, editorials, blogs, and other authentic research papers. This study is based on the data available at various genuine websites, and no empirical data has been used.

LITERATURE REVIEW

The review of the literature brings an overview of the body of knowledge regarding environmental tribunals and courts. The literature review illustrates the contemporary situation of these institutions and various case laws regarding the same. The literature review also puts forth various suggestions, viewpoints, and changes. It examines many academic studies, reports, journals, and research papers.

ECTs AND INDIA

One of the most significant innovations in contemporary environmental law is the swift global growth of specialised environmental courts and tribunals (ECTs). A public entity or representative in the judicial or administrative arm of the government with expertise in resolving conflicts involving the environment, resource development, land use, and similar issues is known as an ECT.

In terms of India, the requirement for Indian environmental courts to be established and developed arose under various conditions and at multiple eras. In the cases of MC Mehta v. Union of India[3], Indian Council for Enviro Legal Action v. Union of India[4], and AP Pollution Control Board v. Professor MV Nayudu[5], according to the Indian Supreme Court, to expedite the legal procedure, regional environmental courts with a judge who is legally qualified and two specialists should be established because environmental cases frequently involve evaluation of scientific data.

According to the Law Commission of India’s 186th Report from 2003, India should establish environmental courts. This advice was based on an examination of the technical and scientific difficulties that were raised in court, as well as the need for judicial expertise in the scientific and technical facets of environmental challenges. Then the National Green Tribunal (NGT) was founded in 2010 by the National Green Tribunal Act of 2010 to handle civil matters, including environmental protection, the preservation of forests and other natural resources, as well as the enforcement of any environmental legal rights. The Act was passed by the Parliament in accordance with Article 21 of the Indian Constitution, which highlights the right to live in a clean and healthy environment. According to the NGT Act of 2010, the tribunal “shall have jurisdiction over all civil cases where a substantial question relating to the environment is involved, including enforcement of any legal right relating to the environment, and such question arises out of the implementation of the enactments specified in Schedule I”, namely The Water (Prevention and Control of Pollution) Act of 1974, The Water (Prevention and Control of Pollution) Cess Act of 1977, The Forest (Conservation) Act of 1980, and many more[6].

An organisation specifically designed for the swift and effective resolution of disputes involving the preservation and conservation of the environment, forests, and other natural resources is known as the National Green Tribunal. India surpassed Australia and New Zealand to take third place in the globe after becoming the first developing country to establish a specialised environmental tribunal. There are a total of five locations where the National Green Tribunal meets, including Bhopal, Pune, New Delhi, Kolkata, and Chennai, with New Delhi serving as the principal location. The NGT replaced the National Environmental Appellate Authority under the Ministry of Environment and Forest[7].

POWER AND EFFECTIVENESS

The NGT is a ‘quasi-judicial body’ with constrained authority. It is not like a typical court. However, it possesses authority that is comparable to that of law enforcement agencies. The courts can settle any disputes, but the NGT has the power to order administrative entities to abide by the law. To lighten the pressure on the regular courts, NGT was founded. For instance, NGT can only suggest punishment in cases of crime and other infractions, which depends upon the nature and severity of the wrongdoing. However, as a court of law is the ultimate authority, such a sentence can be contested there. The NGT’s role seems constrained in this circumstance as well.

It has been realised by the policymakers that a review of the NGT Act is essential and needed with a view towards reducing barriers to increasing the effectiveness of NGT. According to Shrotria, there are five types of cases that the National Green Tribunal can adjudicate.

• First, original requests for redress made by aggrieved parties under laws covered by the NGT Act, along with
• Second is the requests for compensation,
• Third, requests for enforcement and legitimacy of conditions placed on polluters by implementing authorities,
• Fourth are the appeals from industries against implementing authorities’ decisions and
• Fifth are the requests from NGOs and aggrieved parties regarding non-compliance with rules, notifications, and clearances.

Twelve essential traits were discovered to be significant for evaluating the effectiveness of environmental courts and tribunals. These include status and authority, independence, centralised jurisdiction, knowledge of judges and members, functioning as a multi-door courthouse, access to scientific and technical expertise, facilitating access to justice, swift and inexpensive dispute resolution, responsiveness to environmental problems, development of environmental jurisprudence, underlying ethos and mission, and flexibility, innovation, and provides value-adding functions[8].

COMPENSATION UNDER THE NGT

Under the category of environmental compensation, the NGT provides relief and compensation to those who have suffered from pollution and other environmental damages, as well as for the restoration of damaged property and the environment. The NGT has mandated that environmental compensations be granted in accordance with the “polluter pays principle” in a number of judgments. According to the ruling in the case of Samir Mehta v. Union of India[9], the NGT ordered that the Respondent pay an environmental compensation out of concern for the harm done to the ecosystem, loss to ecology, and livelihood in accordance with the “Polluter Pays Principle[10].”

In the case of Manoj Mishra v. Union of India and Others[11], in order to comply with the court’s decision regarding the city’s clean and revitalised Yamuna River, the NGT asked Delhi’s civic and municipal authorities to incorporate an environmental restitution cost in the property/house tax for every home. Similarly, the NGT ordered in the case of Krishan Kant Singh v. National Ganga River Basin Authority[12] based on the Polluter Pays Principle, that the defaulting industrial unit pay Rupees 5 crores to the applicable State Pollution Control Board in order to carry out corrective measures to achieve river protection. In a different ruling, R K Patel v. Union of India, the NGT ordered that the farmers in Gujarat (Vapi) who had been injured by the pollution of hazardous garbage receive rupees ten lakhs in environmental compensation.

CASE LAWS UNDER ECTs

In Ms Betty C. Alvares v. The State of Goa Ors[13], an older woman named Ms. Betty C. Alvaris returned to Goa as an NRI from the USA. She was raised in Goa, where the lush environment and natural beauty made her feel at home. But when she returned to her home country, she saw that illegal development had destroyed the majority of Goa’s breathtaking views and its natural beauty. She saw it as her responsibility and complained to Candolim in the Coastal zone. The claims in the application show that the authorities thoroughly looked into her objections and found substance in them, but they did not take any affirmative action. The applicant also filed a writ case with the high court’s Bombay Goa bench. By order dated October 23, 2012, the National Green Tribunal received the writ suit from the Honourable High Court of Bombay Bench in Goa. The issue was that a foreign national could petition for a writ. Is it possible to submit an application if one hasn’t incurred a significant loss or harm because the respondent’s actions have damaged the environment or violated CRZ regulations?

The judgement read that a person’s right to life is guaranteed by Article 21 of the Constitution[14]. It is not limited to providing a guarantee of life to simply an Indian citizen. The court cannot limit the scope of Article 21’s applicability to just Indian citizens. Betty Alvares was authorised to file the Writ Petition before the Hon’ble High Court of Bombay, Bench in Goa, because Article 21 guarantees the right to live “in a dignified manner.” Since the Respondents were found to have flagrantly violated the CRZ regulations, she approached the Hon’ble High Court. The allegations in the application demonstrate that the authorities thoroughly investigated her complaints and determined that they had merit, but they did not take any affirmative action. Even if it is assumed that Betty Alvares, the applicant, is not an Indian national. Yes, the application is maintainable.

It is obvious from a straightforward reading of Section 2(j) that the term “person” must be interpreted broadly. It includes “any,” regardless of whether they are Indian citizens or not. The application of Betty Alvares is maintainable because the dispute involves the environment, regardless of her nationality. The tribunal found that the National Green Tribunal Act of 2010 would be applicable to violations of the CRZ Notification and environmental obligations under the act, including rules pertaining to municipal laws or construction parameters that have an impact on the community as a whole[15].

In Prafulla Samantray v. Union of India & Ors, the fourth-largest steel manufacturer in the world is a Korean corporation called Pohang Iron and Steel Company (POSCO). To establish a steel plant in the district of Jagatsinhpur (Orissa), it signed an MoU with the Odisha government. The project’s total declared investment was 51,000 crore (about 12 million USD), and it was anticipated that the factory would manufacture 12 million tonnes of steel annually. Due to the fact that it was one of the biggest foreign direct investments made by a foreign company in India, it attracted much attention from the global media. However, the NGT, being true to its goal of establishing and maintaining its agenda for protecting the environment, ordered a suspension of the Odisha Government’s decision to build the plant, relieving the inhabitants and the local environment of the severe harm being done to that region’s ecology system[16].

NGT: SAVIOUR OR PRETENDER?

The Indian Constitution protects the right to a healthy environment under Article 21 as a fundamental right to life for all citizens. The National Green Tribunal is widely regarded as an excellent illustration of an environmental court. Has NGT, though, really been a saviour for the environment, or is it just pretending as we approach more than ten years since its founding? The National Green Tribunal (NGT) is a legal entity that can only function within the restrictions of the National Green Tribunal Act, 2010, which gives it its authority and jurisdiction. The NGT’s adoption of a new 4-D case management technique, however, appears to be a big step backwards in the fight for environmental justice, which stands for “dismiss, dispose of, delegate, and de-reserve[17].”

The NGT Act always stated that it would only handle “substantial questions relating to the environment,” but it is relevant to note that the NGT now appears to be taking a new stance that restricts the right to access environmental justice by dismissing cases without providing adequate justification. It is a widely accepted notion that there cannot be a prima facie non-application of mind and that such a judgement must include an assessment of the merits, even in situations where the only outcome is to dismiss the matter.

However, the NGT has frequently created a number of independent committees to look into different aspects of cases, oversee and monitor the observance of various environmental laws and regulations, and then issue a report. At the present time, there are about 90 committees constituted, and about 37 of those committees are directed by retired Supreme Court judges or judges from other high courts, including committees that were formerly members of the Tribunal itself.

By adopting this tactic of delegating all of its essential powers and responsibilities to external committees that share the Tribunal’s composition and structure, the NGT is relinquishing its own jurisdiction over matters pertaining to environmental protection. The nation’s higher courts have long denounced the practice of Tribunals outsourcing their vital responsibility to executive authorities for their evaluation of the merits. The NGT must, therefore, rein in its overzealous delegation. The ‘committee-raj’ taking over the Tribunal also puts an unreasonable burden on taxpayer monies, which are now being utilised to pay the committee members. By employing tax funds to improve and repair the environment, this kind of waste of tax money can be avoided[18].

TRANSITIONING FROM JUDICIAL ORGANISATION TO OVERSIGHT FORUM

By shutting down the dispute resolution mechanism through courtroom argumentation, the NGT has diminished its responsibility to act as an oversight body rather than a judicial forum. Additionally, this has contributed to the Tribunal gradually losing the public’s faith. Without proper hearings, petitions made by petitioners are unable to present their case to the judges, present supporting documentation, and refute assertions made by the respondent authorities. Because each environmental case involves unique issues in the context of its unique circumstances, there is a higher standard for the presence of judicial and technical members appointed to the Tribunal for proper adjudication[19].

National green tribunals have seen their very fair share of growing pains and administrative stumbling blocks since their formation, most frequently judicial and technical member selection, which has led to a dearth of quorum to hear cases as a result. Whereas the Principal Bench of the NGT in Delhi conducts regular hearings today, there are still a number of open positions among the four zones, which forces the main head bench to hear most of these cases through video conferencing. This served as justification for the practice of delegating power and duty to external committees, which aims to distribute work among the Tribunal’s fewer members and decrease their burden.

It is completely clear that the Tribunal’s functioning and its attempts to advance the cause of the environment are seriously impeded by a surge of innovative approaches the NGT has developed for addressing environmental disputes, as well as an evident lack of political will to make nominations to the Tribunal. Maybe only time will tell. Unfortunately, in this wider battle to save the planet, time is something we cannot spare[20].

SUGGESTIONS

As we discussed, Environmental courts and tribunals in any country play an important role in the protection and conservation of this ecological system. But they, too, have their loopholes, as mentioned above. Now, the task of reviving the National Green Tribunal lies with the following Chairperson. In order to effectively solve environmental challenges and follow the ideals of justice, the institution must earn back its reputation as well as the public’s respect. To restore the NGT’s standing in the international community, the new leadership must emphasise transparency, guarantee the application of the judicial mind to all cases, promote foreign partnerships, and, most crucially, rekindle the bond between bar and bench[21].

CONCLUSION

With the successful use of NGT, environmental justice has advanced more rapidly in India. Although this shows that the public has a greater level of trust in NGT, with that comes greater responsibility on NGT. There may be a lot of strain on NGT, which requires more staff and more willpower. In this paper, we discussed how there is a transition journey that is taking place from being a judicial forum to an oversight body and how it has diverted from its real meaning. These Environmental courts and Tribunals need to work efficiently to reach their respective goals and also need to maintain proper transparency. As stressed in Article 21 of the Indian Constitution, the common man has access to the legal system as part of his right to live in an environment free from pollution. The manner in which the problems have been resolved, and the justice rendered by the NGT serve as examples of this. This has drawn attention to the significance of the concept of public trust, which calls on the State to act as a trustee of natural resources for the benefit of all citizens.

Name: JOLLY

University: NLU Shimla

Course & Year: BA LLB 2^ND YEAR

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[1] Ariane Dilay, Alan Diduck, Kirit Patel, Environmental Justice In India: A Study On Environmental Impact Assessment And Environmental Courts, Conferences IAIA (Aug. 16, 10:07 PM), https://conferences.iaia.org/2018/final-papers/Dilay,%20Ariane%20-%20Environmental%20Justice%20in%20India.pdf.

[2] Don C Smith, Environmental courts and tribunals: changing environmental and natural resources law around the globe, Taylor & Francis Online (Aug. 16, 10:30 PM), https://www.tandfonline.com/doi/full/10.1080/02646811.2018.1446404.

[3] M.C. Mehta v. Union of India, 1987 SCR (1) 819; AIR 1987 965.

[4] Indian Council for Enviro-Legal Action v. Union of India, 1996 AIR 1446, 1996 SCC (3) 212.

[5] A.P. Pollution Control Board v. Professor M.V. Nayudu, 1999 (2) SCC 718.

[6] Springer Link, https://link.springer.com/article/10.1007/s11356-018-1763-2#citeas (last visited Aug. 16, 2023).

[7] Id. at 3.

[8] Springer Link, supra note 6, at 3.

[9] Samir Mehta v. Union of India, (2016) SCC Online NGT 927.

[10] Springer Link, supra note 6, at 3.

[11] Original Application No. 65 of 2016.

[12] Krishan Kant Singh v. National Ganga River Basin Authority, 2014 SCC OnLine NGT 2364.

[13] Misc Application No. 32/2014(WZ).

[14] India Const. art. 21.

[15] Misc, supra note 13, at 5.

[16] Prafulla Samantray v. Union of India & Ors.

[17] The Wire, https://thewire.in/environment/nearly-a-decade-old-is-the-national-green-tribunal-losing-its-bite (last visited Aug. 16, 2023).

[18] Id. at 7.

[19] The Wire, supra note 17, at 7.

[20] The Indian Express, https://indianexpress.com/article/opinion/columns/national-green-tribunal-failing-institution-revival-8835444/ (last visited Aug. 16, 2023).

[21] Id. at 8.