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Jurisdictional Impediments to Environmental Justice

The background behind National Green Tribunal was established on 18 Oct 2010 on the recommendation of the United Nations Conference on Environment and Development (UNCED) under the National Green Tribunal Act 2010 and evolved as a quasi-judicial body that exclusively deals with the environment and related issues.

The main objective of creating these tribunals in the first place is a small step towards addressing the legal issues against environmental damage separately by highlighting its importance in humankind and its ignorance leads to providing a judicial and administrative reviewing environment.

The article proceeds to further analyse the importance of Environmental Jurisprudence in manifesting the global perspective toward achieving environmental justice by fostering the judiciary and assigned authorities. NGT aimed at securing the ill effects of the Polluter Pay Principle (p.p.p), attaining and ensuring sustainable development and stretching hands towards resolving and bringing up the environmental causes on a wider scale with a motive to adjudicate upon environmental matters.

The Right to heal the environment and other subsidiary matters that are directly or indirectly linked with environmental matters are covered under Article 21 and Article 48A of the Indian Constitution instigating a healthier and thriving environment among the people of the country.

The formation of NGT by renounced Justice that firmly includes P.N. Bhagwati and Mahesh Chandra is a step toward working on the problems of Climate Change and its effect. Establishing the tribunal will help in assisting the growing problems concerning the Environmental by addressing them at every level, both the head branch (Delhi) and regional branches which include Kolkata, Pune, Bhopal and Chennai.

The tribunal has a separate civil jurisdiction in environmental causes, which helps to alleviate the strain on the higher courts. The Tribunal is required to make every effort to resolve petitions or appeals within six months of their submission. The tribunal has exclusive, original, and appellate jurisdiction. Following Australia and New Zealand, India has become the third country in the world to establish an NGT for environmental justice.

Although the concept of environmental protection is not new in India, we as a nation just started working on legal protection a few years ago. However, when people are dying as a result of pollution levels that have already reached catastrophic levels, environmental justice has become a pressing issue. Under the guise of development, a great number of tribal people are being displaced and dispossessed of their shelter and livelihood, on which they rely, without making sufficient arrangements for alternative sources of livelihood and shelter.

They are deprived of natural resources for any development project. While development is undoubtedly an important aspect of civilisation, we must strike a balance between environmental justice and long-term development. NGT is constantly seeking to strike a balance between environmental protection and long-term development.

The goal to develop the third pillar of environmental democracy motivated the creation or improvement of environmental courts. The National Green Tribunal of India was established to provide quick environmental justice. The National Green Tribunal Act 2010's preamble begins by stating the purpose for which it was established.

"An Act to establish a National Green Tribunal for the effective and expeditious disposition of cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right relating to the environment and providing relief and compensation for damages to persons and property, and matters connected with or incidental thereto."

The Indian Supreme Court held in the cases of M.C. Mehta Vs. Union of India, Indian Council for Enviro-Legal Action Vs. Union of India and A.P. Pollution Control Board Vs. Professor M.V. Nayudu that setting up environmental courts that firmly mean NGT on a national as well as a regional regional basis with a legally qualified judge and two experts would help speed up the judicial process that is under the ambit of NGT with regards to the environmental cases.

The NGT hears civil cases under the Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Cess Act, 1977, The Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981, The Environment (Protection) Act, 1986, The Public Liability Insurance Act, 1991, and The Biological Diversity Act, 2002.

Besides the discussion of the aims and objectives of NGT and there are some exceptions and special cases which does not come under the purview and jurisdiction of NGT consisting of the Wildlife Protection Act 1972 and Forest Right Act 2006. Analysing social sustainability through NGT is a never-ending process - a path to environmental justice but this article does look upon the legal status of NGT and its implementation in India.

Composition of NGT: Under Section 4 of NGT consists of:
  • Full-time Chairperson, Judicial Member and Expert Member

Eligibility of Members under NGT: Section 5 of NGT involves:
  • The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi.
  • Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise at least one Judicial Member and one Expert Member.
  • Expert members should have professional qualifications and a minimum of 15 years of experience in the field of environment/forest conservation and related subjects.

Process of Appointment under NGT: Section 6 of NGT includes:
  • Chairperson appointed by Central Govt. with CJI of India.
  • Expert Members and Judicial Members appointed by Central Government only.

Term/ duration of Serving under NGT: Section 7 of NGT defines:
  • Chairperson, Expert and Judicial Member serves for 5yrs as tenure and is not eligible for reappointments.
  • Any judicial member or Chairperson [A judge of SC] cannot hold a position after the age of 70 yrs or 5 years (tenure) whichever is earlier.
  • Any judicial member or Chairperson [A CJI of the High Court] cannot hold a position after the age of 68 yrs or 5 years (tenure) whichever is earlier.

Jurisdiction of Civil cases under NGT:
Section 14 of NGT involves cases related to environmental issues that should be filed within 6 months. NGT is not bound by the Code of civil procedure 1908 but follows the principles of Natural Justice.

Section 22 of NGT states that not any decisions of NGT are final and legally binding and they can be challenged in SC within 90 days.

Deposit of the amount due for environmental harm. -Section 24 of NGT relates to the:
  • Any amount ordered to be paid as compensation or relief under any award or order made by the Tribunal based on environmental damage must be remitted to the authority specified in sub-section (3) of section 7A of the Public Liability Insurance Act, 1991 (6 of 1991) for credit to the Environmental Relief Fund established under that section.
  • Notwithstanding anything in the Public Liability Insurance Act, 1991 (6 of 1991), the amount of compensation or relief credited to the Environmental Relief Fund under sub-section (1) may be used by such persons or authorities, in such manner and for such purposes relating to the environment, as may be prescribed.

Penalties and Fines for not complying with NGT: Section 26 of NGT states that:
  • Whoever fails to comply with any order, award, or decision of the Tribunal made under this Act is punishable by imprisonment for a term of up to three years, or a fine of up to ten crore rupees, or both, and if the failure or contravention continues, an additional fine of up to twenty-five thousand rupees for each day the failure or contravention continues after conviction for the first such failure or contravention.
  • If a company fails to comply with any order, award, or decision of the Tribunal made under this Act, the company shall be fined up to twenty-five crore rupees, plus an additional fine of one lakh rupees for each day the failure or contravention continues after conviction for the first such failure or contravention.

Looking upon the legal status of the National Green Tribunal Act 2010, the critical assessment of the tribunal is what we analysed and The National Green Tribunal leaves no stone unturned in adopting all possible bold and effective preventive measures to protect the environment and safeguard citizens' environmental rights. It has issued a slew of decrees that affect every corner of the country, and it has continued to hog the spotlight on a range of environmental issues while slapping down on anyone found guilty of environmental damage.

Further exploring the various atrocities linked with NGT is what we addressed and can be looked at way forwards. For instance, the effect of the polluter pays principle on NGT and the role of NGT in enforcing the Polluter Pay Principle on the accused. As NGT is a judicial body it highlights the Polluter Pays Principle states that the financial expenses of preventing or repairing pollution-related damage should be borne by the businesses that cause pollution or manufacture contaminated goods.
  In the landmark case of Vellore Citizen's Welfare Forum v. Union of India, the apex court states "PPP is an integral part of the environment jurisprudence of India and the National Green he Tribunal while passing any order or decision or award, shall apply the principles of sustainable development, the precautionary principle and the polluter pays principle."

The article proceeds When an event organised by Art of Living took place, the NGTl took a step forward in terms of environmental preservation. The Tribunal ruled in this case that "the Foundation should be held liable for the river's restoration in all respects for the damage caused to the environment, ecology, biodiversity, and aquatic life."

Art of Living was also fined 5 crore rupees.

The threat of human excrement being sprayed on buildings from aeroplanes landing prompted the tribunal to impose a 50,000-rupee fine on aircraft that empty toilet tanks in the air. A Panama-based shipping company and two of its Qatar-based sister concerns were fined 100 crore rupees for causing an oil spill off the coast of South Mumbai on August 4, 2011.

The NGT also ordered Gujarat-based Adani Enterprises Ltd to pay 5 crore rupees in environmental compensation to the Ministry of Shipping for dumping 60,054 MT coal carried by ship M V RAK at the bottom and harming the maritime environment. The panel urged the government to approve and implement action plans to address the "environmental emergency" in Delhi and the surrounding areas, as well as to deregister 10-year-old diesel vehicles.

Every Act has its pros and cons. Similarly, the National Green Tribunal Act 2010 faced immense challenges to achieve environmental justice with intensive social pressure on the working of tribunals. Because of their implications for economic growth and development, NGT decisions have been criticised and questioned.

The tribunal has also been condemned for the lack of a formula and structure-based system for assessing compensation and asserting its superiority over the High Court in the country. The stakeholders and the government do not fully implement the NGT's decisions. Its decisions are also cited as not being practical to implement within a specified deadline.

The epilogue in the matter of analysing the socio-legal effects of NGT on society is both impulsive and equally comprehensible for the system in achieving its goal. Therefore, asserting more autonomy and a broader scope for the NGT are required for successful environmental protection that is compatible with human development in coming future generations.

  • National Green Tribunal Act, 2010, ยง, NO. 19, Act of Parliament, 2010(India),_2010.pdf
  • The 'polluter pays' principle states that people who cause pollution should pay for the costs of controlling it in order to avoid harm to human health or the environment equally.
  • A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others on 27 January, 1999
  • Vellore Citizens Welfare Forum vs Union Of India & Ors on 28 August, 1996 1996 5 SCR 241

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