ACCESS TO ENVIRONMENTAL JUSTICE IN INDIA WITH SPECIAL REFERENCE TO NATIONAL GREEN TRIBUNAL

ACCESS TO ENVIRONMENTAL JUSTICE IN INDIA WITH SPECIAL REFERENCE TO NATIONAL GREEN TRIBUNAL

Written by Apoorva Sharma

 

ABSTRACT

 

Indian laws and policies have become stringent in particular as a consequence of man-made calamities like Bhopal Gas Tragedy of 1984. The ‘Control’ and ‘Command’ system is accorded with new techniques such as public hearings and Environment impact assessment. However gaps in institutional mechanism have shown ineffective implementation of legislation. Factors such as multi-layered corruption and personal gains are root reasons of such failure.

As a consequence judicial activism by securing rights by enforcement of public interest litigation (PIL) has promoted a unique environmental jurisprudence. It has revolutionize the judicial procedure by introducing expanded standing, non-adversarial procedure and attenuation of rights from remedies as a consequence of expanded jurisdiction of fundamental rights, especially the right to life under article 21 of the constitution.

However concerns such as increasing number of petitions, delayed and expensive petitions, complex and scientific issues, unrealistic directions and creeping jurisdictions have created doubt on effectiveness off current PIL regime. In order to seek a balanced judicial forum that can advance green jurisprudence, the parliament enacted National Green Tribunal Act 2010. It aims to adjudicated forest conservation and environment protection. This also aims at enforcement of legal rights relating to environment together with relief and compensation.

The institutional restructure of this judicial structure is unlikely to be the panacea for all environmental ills but it can provide a head in new forms of environmental dispute resolution. This initiative is to be seen within the broader context of balancing competing values of environment protection and sustainability on one hand and resource driven growth on the other. This paper aims to assess the present judicial structures that offer access to environmental justice in India.

 

THE INDIAN JUDICIARY AND LIMITATIONS OF PIL IN ENVIRONMENTAL MATTERS

 

As a consequence of Bhopal Gas tragedy Indian laws have become stringent.[1] Ineffective implementation of environment related legislation and loopholes in institutional mechanism has created contradictions. Indifference and personal gains are the root cause of such failure.[2] As a result the Indian judiciary enforced rights outside the statute legislation but within the constitutional mandate enforced the inception of public interest litigation (PIL).[3] People oriented approach paved the way for justice through judge made laws.[4] Now the people previously excluded from availing the legal recourse because of poverty or other reasons could now enforce it either personally or through friend of court or Amicus curie.  Use of PIL in interpretation of article 48A, 51A (g) and 21 of the constitution lead to major shift in environmental jurisprudence in India. Article 48A mandates the state to protect and improve the environment and safeguard the forests and wildlife of the country. It imposes an obligation not only on the Government but also on the courts to protect and conserve the environment.[5] While Article 51A imposes a duty on every citizen improve the natural environment that includes forests, rivers, lakes and wildlife in order to have compassion for living wildlife. Article 51A(g) has expanded the scope of ‘Citizens’ and included public spirited citizen, non-governmental organisation and interested institutions to file PILs for environmental protection.

Article 21 guarantees fundamental right of right to life. Environmental protection finds its roots in Article 21 of the constitution which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” In Francis Coralie v Delhi[6] it was held that right to life include right to live with dignity and that includes adequate nutrition, clothing and shelter, facilities for reading and expression in diverse form.  In Virendra gaur v. State of Haryana[7]it was held that right to live with dignity under article 21 includes protection and preservation of Environment. Thus hygienic environment is an immense facet of right to healthy life and it would be impossible to live with human dignity without clean environment. It is a constitutional imperative on government to ensure safeguards for improving the natural environment as well. In Intellectual forum, tirupathi v. State of A.P.[8]Environmental protection and conservation of natural resource has been given a status of a fundamental rights brought under article 21 of the constitution.

 

Justice delivery system was further enhanced by court procedures devised for the one seeking justice who would not have been able to approach court otherwise. Locus standiwas further modified through citizen and representative standing. In representative standing, the victims who because of poverty, disability or economically disadvantaged position can’t approach court are represented. Citizen standing gives a redress for grievance that affects society as a whole.[9] Appointment of committees for providing expertise to judges for making decision on environment is yet another procedural devise in PIL.[10] In A.P. Pollution Control Board V. Prof M.V.Nayudu[11]Court held that in every sphere the complex issues relating to environment is arising. Court might find difficulty in giving technical opinion for which professional or expert bodies can be appointed.

Issuing Mandamus is another procedural safeguard accorded to monitor the implementation of PIL orders. The court started passing short directions, the non-compliance of which would amount to contempt of court.[12] Through all its procedural measures the SC was accused of being a hyper active law making body.[13]Standing Rule has made the concept of forum shopping wide open. Such judges have reckoned as Green Judges. Delay in delivery environmental justice is one of the major problems. Law commission in its 77th report stated that “ Delay is a product of too much business for too few judges and the demand simply exceeds the supply of resources”.[14]Indian legal system operates on the premise that litigation is the prime purpose and largest income generator. PIL in such a restrictive structure had a limited scope. In 2009 when NGT bill was debated in parliament there were around 5600 environmental cases back logged awaiting disposal of cases in various High court. [15]So Innovations and changes were needed which happened through the development of National Green Tribunal.

 

THE NATIONAL GREEN TRIBUNAL; EMERGENCE, SCOPE AND WORKING

Law commission recommended the formation of National Green Tribunal. In its 186th report Law commission advocated the constitution of environment courts keeping in view the following considerations:[16]

i).There is a dire requirement to provide expert advice and also to appoint a system of independent experts.

ii).To deal with present Inadequacy of knowledge of judges on scientific and environmental aspect by appointing committee of experts.

iii).To balance the sustainable development with control regulations by industries.

iv).To maintain a balance between closure of polluting industries or to save the loss of employment and closing of industries.

v).Introduction of Environmental impact assessment at each level of the project.

vi). Requirement of bringing jurisprudence.

 

The Law Commission gave such recommendations from getting influenced of SC Judgement in A.P. Pollution Control Board vs. M.V.Nayudu[17]Court referred the need for developing environment courts which would have benefited expert advises from expert personnel as parcel of judicial mechanism and law commission could examine later.

 

In M.C.Mehta V. Union of India[18]; the court opined that cases involving environmental pollution, conflicts and ecological destruction are increasing and involves assessment of technical data. so it might be valuable to establish environment courts backed with technical and professional experts. In yet another landmark judgement of Envrio Legal Action v. Union of India[19] court observed there is a need for bringing environmental jurisprudence by establishing separate courts as the experience says that the cases filed in ordinary courts under Water Act, Air Act and Environment Act never see the light of conclusion because ofthe workload and also there is lack of appreciation of the environment matters on the part of those in charge of conducting these cases. Proceedings in ordinary courts take ages. Such problems direct towards formation of a separate court to deal with such matters separately and should be allowed to adopt summary procedures.

 

Indian parliament passed the National Green Tribunal Act in 2010.[20] It paves for establishment of such courts. Tribunal adjudge cases relating to conservation of forest, environment protection and other natural resources including enforcement of legal rights attached with environment and to give compensation for damages to persons and property. The NGT came into existence on 18th October 2010 and became operational on 5th May 2011 with New Delhi as its principal bench.[21] Subsequently regional benches were established with Bhopal as its central zone, which covers the states of MP, Chattisgarh and Rajasthan. NGT follows Circuit procedure wherein court goes to people and not people. These are the following features of NGT:

 

Composition

Herein the authorities are expert in technical and legal matters. Scientific experts offer the courts multi-disciplinary skills for decision making. The members and chairperson were previously the judge of apex court or chief justice of HC or Judge of HC.[22]Technical person will be from a discipline of sciences, engineering or life sciences with a 15 year experience in the respective field along with 5 year of work experience in a national or state level institution in environmental matters.[23] NGT also consists of a full time chairperson subject to a maximum 20 full time judicial and expert members.[24] NGT not only adjudge matters but also make policy suggestions for improvement like in the case of Krishivigyanarogyasanstha v. Ministry of Environment and Forest[25]NGT issued directions to be taken care of in matters concerning environmental clearance for coal related thermal power projects.

 

Jurisdiction

The NGT act has given wide powers to NGT for matters concerning environment. The tribunal has both original as well as appellate jurisdiction. Original jurisdiction[26] is for substantial question relating to environment exercised in civil court. The meaning of substantial question is not clear yet. S 2(m) of the act classifies substantial question on environment under 2 categories; firstly when there is direct violation of environmental obligation which can affect the society and cause damage to the environment. Secondly, the consequences points towards source of pollution. In D B Nevatia v. State of Maharashtra[27] the NGT issued directions to the Ministry of Roads and Highways to notify specific for multi-tone vehicle. It had serious effects on people’s health. Under S.16 it has appellant jurisdiction regarding orders stated under schedule 1. Any aggrieved person has a right to file appeal against direction. Aggrieved person has been given liberal construction and flexible interpretation. NGT has time limitation with respect to cases of original as well as appellate jurisdiction. Original application cannot be filled after six months from the date when cause of action arises.[28]

 

 Fundamental principles

The NGT to pass the judgement based on the principles of Precautionary, Polluter pay and Sustainable development.[29]In Jeet Singh Kanwar v. Union of India[30]the tribunal defined sustainable development as “the concept of balancing the industrial activity with environment protection, which requires evaluation of both the aspects, i.e. degree of environmental degradation and degree of economic growth to be excelled. Sustainable development strikes a balance between development and environment protection. Precautionary principles require authority to check environmental degradation and its damage. It consists of taking preventive measures causing no irretrievable damage to environment. In case of B BNalwade v. Ministry of Environment and Forests[31] Environmental clearance was granted for a coal based project considering that all environmental studies were submitted and precautionary principles were taken.

 

 Procedural Requirements

The procedures in NGT are guided by the principles of natural justice.[32] It includes the opportunity to be heard and rule against speaking orders and bias. The violation of which vitiates the judicial proceedings. It seeks to provide shield against miscarriage of justice and to enhance administrative accountability. Violating the principles of natural justice affects the rights of the parties. In the case of M/s. Om Shakthi Engineering Works v. The Chairman Tamil Nadu Pollution Control Board[33] Pollution board ordered closure of workshop on grounds of noise pollution and directed to disconnect electric connect. NGT cancelled the order and restored the electric connection as the order of pollution board violated the principles of natural justice and showed unreasonableness. Tribunal is empowered to issue cost orders.[34] Since the tribunal is endowed with the duty to maintain effective environment management and to give damages as relief to property and persons interested in the matters to ensure sustainability, Therefore, the jurisdiction should not be discovered for trivial issues that consumes the tribunal’s time without serving the original purpose for which the tribunal was formed.[35] Any person aggrieved by the order of the tribunal can file an appeal in the Supreme Court within 90 days from the communication of the order. Time limitation can be condoned by the court.[36]

 

 

CONCLUSION

The question is how the balance can be achieved between industrial development and the environmental protection sustainably. Judiciary has played an enormous role in solving such dichotomy time and again. NGT has played an important role in maintaining symbiotic relationships for environmental protagonists. Tribunal has taken due care of conflicting interests for sustainability. It advocates good governance by making industries pay for polluting the environment and to issue direction for protection of the same. The concept of NGT had been evolved due to the clogging of cases in civil courts and from the time NGT came into existence all the cases shall be transferred and deal into the NGT. But the problem is that with limited number of professionals and benches it might face the similar problem of case clogging. This is merely a contention of threat and apart from it the tribunal is dealing with environmental cases very effectively in its administrative capacity of technical and professional backing. NGT can also rule on prospective environmental policies and it enhances the functions undertaken by it.

[1]Divan, S and Rosencranz, A. (2001).Environmental Law and policy in India. New Delhi: OUP, 2.

[2]Article 23 World charter for Nature 1982.

[3] Gill, G.N. (2012) Human Rights and the Environment in India: Access through Public Interest Litigation. Environmental Law Review, 14, 201, doi 10.1350/enlr.2012.14.3.158.

[4]Sathe, S.P. (2002). Judicial activism in India transgressing borders and enforcing limits. New Delhi: OUP, 210.

[5]DamodarRao V. The special officer, Municipal corporation of Hyderabad AIR 1987 AP 171, 181.

[6]AIR 1981 SC 746.

[7](1995) 2 SCC 577.

[8](2004) 3 SCC 549.

[9]see Mumbai KamgarSabha v. AbulbhaiFaizullabhai; AIR 1976 SC 1455.

[10] S. Jagannath v Union of India 1997 (2)SCC87; RLEK V State of Uttar Pradesh AIR 1985 SC 652; M C Mehta v Union of India Order dated 7 January .1998

[11]AIR 1999 SC 812.

[12]Baxi, U. (1983). How Not To Judge The Judges: Notes Towards Evaluation of the Judicial Role. JILI,

25,211; Narmada BachaoAndolan v Union of India (2000) 10 SCC 664.

[13]ibid.

[14]Law Commission of India 77th Report (1978).Delay and Arrears in Trial Courts.

[15]LokSabha Debates http://164.100.47.132/LssNew/psearch/Result15.aspx?dbsl=1803.

[16] Law Commission of India (2003) One Hundred and Eight Sixth Report, 8-9.

[17] 1999(2) SCC 718 and 2001(2)SCC 62.

[18]AIR 1987 SC 965.

[19]1996(3) SCC 212.

[20]The National Green Tribunal Act, 2010. The Gazette of India Extraordinary (No. 19 0f 2010); see Gill, G.N. (2010). A Green Tribunal for India. Journal of Environmental Law Volume 22, No.3, 461-474.

[21]Ministry of Environment and Forests Notification 5th May 2011 S.O.1003 E.

[22] S. 5(1) 0f the NGT Act 2010. At present, Honourable Mr Justice Swatanter Kumar is the Chairperson of the NGT. Upon being appointed as Chairperson, NGT, Justice Kumar resigned as a Judge of the Supreme Court of India on 20.12.2012.

[23]S 5(2) of NGT Act 2010.

[24]S 4(1), NGT Act 2010.

[25] NGT Order dated 20th September 2011.

[26] S. 14(1), NGT Act 2010.

[27] Order dated 11th October 2011.

[28] S. 14(3), NGT Act 2010.

[29]S.20, NGT Act 2010.

[30] Order dated 16th April 2013.

[31] Order dated 29th November, 2011.

[32]S.19(1), NGT Act 2010.

[33] Order dated 10th April, 2012.

[34] S. 23(1) NGT Act 2010.

[35]ibid.

[36]S.22, NGT Act, 2010.

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