Powers and functions of NGT

Reading time: 8-10 minutes.

 India being a developing country trying to achieve number of objectives for the benefit of general public and for nation as a whole. India has number of natural resources available and it uses such resources in order of development, but control over such use and over exploitations of such resources has to be controlled. On the other hand Indian judiciary is one of the biggest judicial systems in the world and most diversified system that deals with each and every type of case and matter. But it lacks the efficiency to dispose of the case expeditiously. Environmental concern is the emerging area of concern due to over exploitation of the natural and non-renewable resources.

Also, as our Constitution guarantees “RIGHT TO HEALTHY ENVIORNMENT” under Article 21 it becomes necessary to protect the environment under some judicial authority. Therefore, National Green Tribunal Act, 2010 was enacted to satisfy the need of alternative means to deliver speedy and inexpensive justice over environmental issues. According to this Act, National Green Tribunal has been set-up as a fast track quasi-judicial body consisting of environmental experts to ensure work for protection of environment. It mainly and exclusively deals with ‘Civil Environmental Matters’ and is guided by the principles of natural justice and is not bound to strictly follow Code of Civil Procedure.

One of the most notable feature of this is that it is enjoined to fellow international organizations that recognizes the feature of “Sustainable Development”, “Polluter Pay Principle” etc. 

In Schedule I of the Act provides for following implementation of laws:

  • The Water (Prevention and Control of Pollution) Act, 1947
  • The Water (Prevention and Control of Pollution) Cess Act, 1947
  • The Forest (Conservation) Act, 1980
  • The Air (Prevention and Control of Pollution) Act, 1981
  • The Environment (Protection) Act, 1991
  • The Public Liability Insurance Act, 1991
  • The Biological Diversity Act, 2002

The gossip of legal world that is coming after the gas tragedy held at Vishakhapatnam that NGT whether has power to take sup motu or not. Many discussions are on the way whether it has or not. But according to me we are the ones who created problems on the first place and then try to get it resolved in some different manner. These things are not going to work out when we will be deprived of healthy environment by the nature itself. Thus, NGT id trying help us by making laws to prevent human kind and we must obey it without thinking selflessly. Also, NGT should be given suo motu power so that certain tragic accidents can be prevented by making strict laws.

Objectives of the NGT:

There are three important objectives of the National Green Tribunal, they are:

  1. The speedy and effective disposal of all the cases related to environmental protection and other natural resources. All the previous pending cases will also be decided by the Tribunal.
  2. Its main aim is to legally enforce all the rights relating to the environment.
  3. It accounts for providing compensation and justice to all the affected people in case of any damage.

Power and Function of NGT:

  • Following are the powers vested in National Green Tribunal-
  • It has jurisdiction to decide all the matters involving substantial question regarding the environment and its protection and any legal right so connected with it.
  • This being a statutory authority exercises not only original jurisdiction but also has appellate jurisdiction.
  • It considers some principles before deciding any case such as, sustainable development, polluter pays, precautionary principle etc.
  • It can order to party or any such person to pay compensation and relief that has caused damaged to the environment and to the victims by using hazardous substances.
  • It can also order for restitution of property and restitution of the damaged environment.
  • Also, an appeal can be filed to the Supreme Court against the order of the NGT.
  • Following are the functions performed by the National Green Tribunal-
  • Being expertise in environmental issues, it has to handles all the disputes related to environment and other related multi-disciplinary issues.
  • It must provide speedy trial and speedy justice in all related matter and must help reducing the burden of same cases pending in higher courts.
  • NGT is mandated to dispose of the case within 6 Months from the date of filing of the complaint.
  • All the proceedings under NGT shall have to be accorded to the proceedings within the sections of Indian Penal Code.

Important Judgements of the NGT:

Some of the important judgements of the NGT are discussed below:-

  • Ms. Betty C. Alvares Vs. The State of Goa and Ors.

In this case a complaint was made by a foreign nationality regarding an illegal construction in Goa which was against the laws. There were two objections raised in this case. First was that complainant being a foreigner does not have right to file petition before tribunal and secondly, was that the matter was barred by limitation law. But the tribunal disagreeing from the objection raised held that this application is maintainable and foreign national can also approach the National Green Tribunal.

  • Almitra H. Patel & Ors. Vs. Union of India and Ors.

In this case PIL was filed under Article 32 of the Constitution regarding the treatment of solid waste management practice in India. The tribunal considered it a major problem and issued over 25 directions & guidelines after hearing the case. The tribunal asked all the states to strictly follow Solid Management Rules, 2016. Strict prohibition was made on openly burning of waste on land.

  • Samir Mehta Vs. Union of India and Ors.

This is one of the landmark case that created history. In this case complaint was filed by an environmentalist regarding the most serious damaged caused by the coal, fuel oil and diesel carrying ship. When the ship was wrecked a thick layer of oil was formed over the sea surface which caused a serious damaged to the marine ecosystem and aquatic world. The tribunal by applying “polluter pay principle” help that negligence was caused on the part of respondents and the tribunal also said that they had not adhered to the ‘pre-voyage principle’. Thus, are liable for the all the damage caused. 

  • Save Mon Region Federation and Ors. Vs. Union of India and Ors.

This case filed by a federation along with a social activist against the clearance given to a hydro project of worth INR 6400 crore. This project was against the Schedule I of Wildlife Protection Act, 1972 as it was very close to a wintering site of Black-necked Crane (a type of bird).  Seeing the danger, the tribunal held that such project must be terminated and gave order to suspend the clearance. The tribunal also asked the Ministry of Environment & Forest to prepare a case study on the protection of such birds so involved in the matter.

Conclusion:

In the changing scenarios and fast expansion of industries and major changes in majority of developmental activities new issues related to environment are coming up. In past days of Covid-19 numbers of instances are pretty much visible that human activities have already caused serious damage to the environment and some of which are that which cannot be recovered. And India being a highly populated country, it requires number of other measures in order to curb and look after such problems. Here comes the role of National Green Tribunal for environment conservation & protection. But alone it cannot change the problems we have to look after our environment ourselves as we are the one who has to survive.

Before the establishment of NGT we were already having many legislations and rule to protect environment and for forest conservation and setting up of NGT just adds feathers to this by specifically dealing with such matters. Everything has two side’s one positive and one negative but it is not just to look only negative side. Therefore, NGT is trying to do lot but we must come together to save our environment for ourselves and other alive components and also for our future generation.

Author: Pratiksha Varshney from K. R. Mangalam University, Gurugram.

Editor: Silky Mittal, Junior Editor, Lexlife India

Powers of NGT: Vizag disaster angle

Reading time: 8-10 minutes.

The Bhopal Gas Tragedy of 1984 shook India and its people. The tragedy stood as a remainder of the lacunas in the legal system and was a time when India took a solemn oath to never find itself in a situation of that nature once again.

However, 36 years after that dark incident and amidst a Global Pandemic, India found itself in the same place on the happening of the Vizag Gas Leak. The heinous incident took place in the premise of the Korean Giant LG Polymers, where human negligence and error was responsible for a tank with toxic Styrene gas to explode, causing panic among the masses.

In light of this incident, The National Green Tribunal (NGT) directed LG Polymers to deposit ₹50 Crore as a fine for the negligence on their part. The NGT also constituted a Five-member panel which consist of many eminent personalities such as the Andhra Pradesh (AP) University Chancellor, HOD of the Chemical Engineering Department at Andhra Pradesh University.

The committee will focus in ascertaining the exact cause for the leak, ascertain the damage and also suggest practical solutions to mitigate the issue at hand and to facilitate a successful clean-up programme.

Significance of this development

The Vizag incident was disturbingly similar to the Bhopal Gas Tragedy, bringing out the fact that no good lesson had been learnt after all these years. The clashes between various authorities simply highlights the underplay of numerous corporations and administrators who indulge in untruths and false reassurances.

Through the course of the crisis, the practical implementation of Laws such as the Environment Protection Act, 1986, Public Liability Insurance Act,1991 and the Powers of the National Green Tribunal, which required due interpretation in order to tackle the issue at hand. One can reckon the Vizag incident to be a test of these laws and their applicability in contemporary times.

Through the course of this incident, the lacunas in the laws that were brought out taught authorities and civilians that mere written legislations would not bring about change. Rather, more democracy, greater public participation, enhanced security for workers and the incite of a moral obligation in corporate entities to maintain safety would be more effective.

Powers of the National Green Tribunal in such situations

The powers of The National Green Tribunal (NGT) have been bestowed upon it under the National Green Tribunal Act, 2010. The National Green Tribunal is also driven by certain principles which govern the body under the principles of sustainable development, more specifically the polluter pays principle and the precautionary principle as highlighted under Section 20 the National Green Tribunal Act.

The polluter pays principle essentially means that the polluting party is required to pay for the damages caused by its act.

The precautionary principle in essence means taking all required steps possible in order to prevent an accident from occurring i.e. required precautions. 

  • Section 14 of this act highlights the jurisdiction of the Tribunal, by which the tribunal could hear and settle all civil disputes which had a substantial question relating to the environment including environmental rights as prescribed in the constitution, provided the matter is brought to notice within 6 months of the occurrence of the issue.
  • Section 14 further states that relief and compensation relating to these matters in lines with the provisions of the Public Liability Insurance Act,1991. This relief must be expedited within 5 years of such claim passing.
  • The question as to who shall be held responsible for the consequences of certain acts are laid down under Sections 17 and 27 of the Act which essentially brings out the polluter pays principle as it states that any person responsible for the damage to the environment or person is directly liable.
  • When a company is involved, the company is bound by the tort of no-fault liability. However, every other employee who was directly involved and/or was supervising the acts will also be deemed guilty of the offence unless he/she can prove that the act took place without prior knowledge and/or after due diligence on their part to the best of their ability.
  • Section 28 holds the head of a government department liable in case such a government department is involved in any damage of the environment or infringes an environmental right.
  • The National Green Tribunal also has the power to set up a body such as a commission or a panel in order to examine and fathom the level of damage to provide feasible solutions to mitigate the same. This ability is enshrined under Section 19(4)(e) which grants the tribunal examine evidence and witnesses and give a recommendation thereof.
  • Section 25 of the Act states that the award pronounced by the National Green Tribunal to bind upon a polluter as a decree from a civil court. The order of such decree must be complied with, or certain actions might be taken such as a fine of up to ₹10 crores along with 3-year imprisonment as mentioned in Section 26(1) of the Act.

Landmark judgements

The powers of the National Green Tribunal are broadly defined by the National Green Tribunal Act of 2010, however numerous judicial precedents did lay foundation to the formation of the NGT by giving scope and cause for the same.

The MC Mehta v. Union of India case or popularly known as the Oleum Gas Leak Case is considered to be the root of environmental activism in India and all environmental cases either extensions, interpretations or comments on this case. The case lays foundation to no-fault liability. The judgement in this case ruled that a factory was responsible for the lives of those who lived in regions surrounding the premise to the extent of the consequences that arise due to the working of such factory.

The Oleum Gas Leak case was better elaborated in the Union Carbide Corporation v. Union of India case, which also added that the matters which have been transferred out of a particular jurisdiction must have due justification and must also not hamper with the principle of equity by changing circumstances.

The idea of having a tribunal or court solely for the purpose of environmental cases was propounded by Justice Sri Bhat in the Indian Council for Enviro-Legal Action v. Union of India case, where he suggested forming such a body to the parliament in light of ensuring environmental rights, citing that the provisions under Article 32 and Article 226 were inappropriate to deal with such matters as they fail to answer several disputed facts and questions.

The National Green Tribunal has dealt with many environmental issues itself by taking cognizance of the issue and providing a verdict on the same. The NGT banned burning of plastic and other waste in open air, so as to take control of the alarming quality of air that was prevalent in Delhi.

The NGT also ruled on the matter of the ganga by ensuring that no waste was disposed on the beaches of this river, which was done in lieu to preserve wildlife and the overall quality of the river as an ecosystem.

However, the larger legal question that stands is whether there has been a violation of Article 21 of the Constitution i.e. the Right to Life and the right to a clean and healthy environment that entails with the same.

Critical analysis

Understanding the powers of the National Green Tribunal, we can argue that the provisions of the law are by and large acceptable and in lines with contemporary requirement, however there are provisions in the bestowed power which can be criticised.

Firstly, the clauses of the National Green Tribunal can only deal with cases that have a ‘substantial question of environment’ which includes damage to public health, the environment or related to the point of source of the environment. However, the assessment prescribed by the tribunal is largely subjective and such matters must not be placed in the hands of individuals as it gives scope for mala fide intent.

Secondly, the workings of the NGT often only covers communities at large and does not cover only individuals, who are also equal citizens and require the same protection as larger communities.

Thirdly, the appointment of those who fill positions in the tribunal or the committees so formed are often bureaucrats and technocrats who are not updated with the latest technologies and developments so as to take matters and better understand them. The act also side-lines important social scientists such as activists and environmentalists, who understand the social aspect of the issue as well.

Fourthly, although the NGT takes up cases in hearings with a 2-3-week time gap, the increasing number of environment-related cases that arise before this tribunal cause a growing backlog of cases that is becoming increasingly difficult for the Tribunal to handle.

Lastly, the aim and provisions of the NGT may be to protect the environment. However, the provisions of the Act fail to act in tandem with other state legislations such as Indian Forest Act 1927, the Wildlife Protection Act, 1972, etc which provides greater legal control in their respective fields.

Conclusion

Industrial safety norms in India are relaxed as compared to other parts of the world, giving industries to a chance to use this to their advantage. However, it is important to ensure that that advantage doesn’t become misuse in light of making certain compromises with respect to safety devices and measures, simply to increase profitability. The National Green Tribunal happens to be some regulation, even if not adequate in this particular field.

The National Green Tribunal, in light of the Vizag gas leak, faces a peculiar situation. The country at the time faced a raging pandemic of Covid-19 and in the process of evacuation of victims of the gas leak, numerous distancing norms were flouted, providing scope for the virus to spread. This creates a vexatious situation as the damage of the gas leak traverses poisoning, but also covers the spread of a potentially lethal disease. In light of this situation, the limitation of the NGT to take matters that were a direct influence of the environmental damage into its jurisdiction happens to be a striking disadvantage.

In light of the Okhla Bird Sanctuary case, there have been numerous allegations that the NGT can be biased to certain incidents and works according to the whims and fancies of the privileged. With allegations that greasing of palms leading to greater leniency, the NGT has its share of criticism.

The National Green Tribunal has also proven effective in mitigating environmental damage to a large extent as seen in the case of waste and crop burning in Delhi and cleaning of the banks of ganga around Hrishikesh. However, the question of industrial emergencies such as those of Bhopal and Vizag still loom as threats.

Therefore, the National Green tribunal has been largely effective in ensuring the role it plays in maintaining the environment. However, there is great scope to streamline the structure and working of the NGT by ensuring greater accessibility and speedier disposal of cases in order to ensure practical resolution of environmental related cases in India.

Author: Kshitij Kasi Viswanath from KPMSOL, NMIMS.

Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.

The ‘Polluter Pays’ principle: challenges to the NGT in securing environmental justice

Reading time: 3-4 minutes.

The Polluter Pay’s Principle (PPP) is one of the key principles upon which India’s green Court, the National Green Tribunal (NGT) relies for delivering decisions.  PPP is an integral part of the environment jurisprudence of India as declared in unequivocal terms by the Supreme Court in the landmark case of Vellore Citizen’s Welfare Forum v. Union of India. Further, Section 20 of the National Green Tribunal Act, 2010 states The 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 two broad rationales behind the implementation of PPP in the environmental jurisprudence include first, penalty or fine acts as a discouragement and deterrent and second, it forms compensation for the communities who have suffered damage due to pollution.

Despite delivering landmark judgments within a short span of coming into existence, NGT has been facing challenges on primarily three fronts. First, absence of appropriate formula for determining the compensation i.e. resorting to ‘guesswork’ for calculating compensation, Second, the sufficiency of the fines which have been imposed on the polluters and Third,  the difficulty of identification of a ‘polluter’ in numerous cases.

The appropriate formula for determining compensation is absent in the present framework which creates arbitrariness in delivery of justice. For example, in the case of Krishan Kant Singh v. Triveni Engineering Industries, the use of ‘guesswork’ at arriving at compensation was explicitly mentioned by the NGT. In this regard it should be considered that the very absence of a logical basis for imposing fines reflects a lack of direction in the broader scheme of environment jurisprudence.

Further, in the case of Krishan Kant Singh v. Simbhaoli Spirit Ltd., the question of sufficiency of fines imposed to serve as a deterrent was brought forth by the legal experts and environment activists. In this case, the Simbhaoli Sugar Mills and Distillery was fined Rs. 5 Crore and asked to remove the sludge and clean the Phuldehra drain. However, the fine imposed formed a very small percentage of the annual turnover of the company and thus whether it served deterrent enough was the primary question to which the NGT had no answer to.

Another challenge which is being faced at present is the problem of identifying the polluter. Reference in this regard can be made to the rampant discharge of industrial and household waste and effluents in the Yamuna River. The NGT passed an order stating that whoever dumps waste matter in the Yamuna River shall be ordered to pay a fine of Rs. 50,000. However, the implementation of this order could not be made possible because of presence of large number of polluters and hence difficulty in polluter identification.

Furthermore, a challenge which the NGT has been facing is on the administrative front with regards to the failure of compensation to percolate. For example, in a recent case brought by the fishermen of Hazira in Gujarat against Adani Group, the fine levied by NGT was deposited with the district collector of Surat, however, it is yet to be utilized for the affected fishermen and the mangroves in the affected area.

Therefore, it should be noted that NGT, a special tribunal formed for the purpose of expeditious disposal of cases pertaining to environment faces challenges which undermine the process of securing environmental justice.

Following are some of the proposals to combat the current challenges faced by NGT:

  1. Specialization is the key to the functioning of NGT as it is a special court for adjudication of environment related disputes. Thus, problems like formulation of compensation depending on the facts of each case can be solved through presence of members with relevant expertise.
  2. NGT should aim at quick and easy resolution of disputes. Most of the cases with regards to environmental disputes require immediate action and delay becomes the very anti-thesis to the objective for setting up a specialized court in the first place.
  3. Further, it must be acknowledged by the primary stakeholders in the environment disputes that a specialized court like NGT is in a better position to understand and suggest remedies with regards to key environmental problems. Thus, awareness must be spread regarding the need for speedy disposal of cases in environment disputes via NGT.

Therefore, the need of the hour with regards to challenges and ever-degrading environment is to recognize adaptive management, adjustment of goals and performances and monitoring the need for improvement to secure environmental justice.

-This article is brought to you in collaboration with Shreya Jha from Amity Law School, New Delhi.