Issue

Context

The government has recently overlooked the rule to change the tenure of appointees in the National Green Tribunal

Salient features of NGT The National Green Tribunal has been established under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. It will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered. While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles. However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.

Analysis

Strengths of National Green Tribunal

• The number of environmental judgements delivered by the NGT from its inception is on an increasing trend and thus the National Green Tribunal has emerged as a critical role player in regulating environmental issues ranging from waste management to deforestation.
• By setting up an Alternative Dispute Resolution mechanism it helps in the evolution of environmental jurisprudence.
• It helps in reducing burdens on higher courts as it specifically deals with environmental cases that were decided by the civil courts earlier.
• It settles cases with lesser expenses and is less formal and a faster way of settling cases is also followed by the tribunal.
• It plays an important role in curbing damage to the environment.
• The Chairperson and the other members are not eligible for reappointment so they can give judgments without any pressure.
• It ensures whether the Environment Impact Assessment process is strictly observed
  

Issues with the Act

• The act has limited the jurisdiction of tribunal to "substantial question of environment" i.e. situations where 'damage to public health is broadly measurable' or 'significant damage to environment' or relates to 'Point Source of Pollution'. The question related to environment can't left on discretion of an individual especially on subjective assessment whether environment damage is substantial or not.
• NGT Jurisdiction is confined to where community at large is affected by specific form of activity such as pollution. It excludes individual or Group of individuals who deserves as much protection as to Community at Large.
• The qualifications for a technical member are more favourable to bureaucrats (especially retired) and to irrelevant technocrats. The act considers higher degrees in Science, Technology and Administrative experience but no provision for ecologist, sociologist, environmentalist, civil society or NGO, etc.
• The Act is silent on provision that who is liable to pay compensation or cost of damage to public health or environment. The MOEF state that it shall be notified in rules but this substantial concern shall be included in act only not on will of executive.
• The Act doesn't provide jurisdiction to Tribunal over all laws related to environment such as Wildlife Protection Act (1972), Indian Forest Act 1927, Scheduled Tribes (Recognition of Forest Rights Act) 2005 and various other state legislations.

Other Implementation and functional issues

• From the very beginning, the Government of India has not been enthusiastic to see NGT function as an effective body and the administrative support supplied by the Government has been poor. For example – there is absence of basic infrastructure facilities and human resources; the NGT has never got the minimum strength of ten judicial and ten expert members to address the increasing number of environmental litigations across the country etc.
• While the scale and nature of environmental litigation has changed drastically over the years, the government has not shown any seriousness in appointing a variety of expert members to address complex environmental problems ranging from nuclear waste to bio-medical wastes to hazardous wastes.
• Complex environmental problems demand special knowledge and expertise. In the absence of variety of expert members, decisions, especially those related to the quantum of compensation amount to be paid by the polluter are arrived at without any scientific basis. This has resulted in an increasing number of appeals against the NGT’s decisions in the Supreme Court.
• There are also serious challenges as far as implementation of the NGT orders is concerned. For example, Rule 35 (1) of the Act specifies that the compensation amount as ordered by the tribunal should be remitted to the authority of the Environmental Relief Fund within a period of 30 days from the date of order or award or as otherwise ordered by the tribunal. Invariably, it is observed that the polluters don’t abide by this rule.
• The NGT orders are increasingly challenged in the Supreme Court, where a heavy penalty has been imposed by the tribunal thereby leading to increasing backlog of cases in NGT.
• There is no institutional mechanism to ensure that the environmental regulatory authorities comply with the orders of the tribunal. Thus most of the landmark orders of the NGT related to Ganga water pollution, Delhi air pollution, illegal mining, and solid waste management remain unenforced.

Way forward

• The bottom line is that NGT has done well so far. But many improvements are still required to make accessible, speedy and effective resolution of environmental disputes a practical reality. For this, NGT must be strengthened and not weakened.
• We should thus have specialised environmental courts and regularly restructure administrative and financial support for the court to increase efficiency and reduce costs, and in an ideal world, create benefits of true cost-efficiency.