Inspira- Journal of Modern Management & Entrepreneurship 20

ISSN : 2231–167X, Volume 03 No. 01, January, 2013, pp, 20-28

The Relevance of National Green Tribunal in India


Dr. Anju Gupta

With the onset of industrial revolution, nature and its products have
become a resource. In the backdrop of several environmental problems in the
western hemisphere, there were demands to balance the needs of
environment and the people with the economic growth. Global deliberations
lead to Report of the World Commission on Environment and Development
(the Bruntl and Commission) “Our Common Future”, which resulted in
the breakthrough idea of sustainable development i.e. “Development that
meets the needs of the present without compromising the ability of the future
generations to meet their own needs.” thus, tried to balance development and
ecology.
Though India has been an active participant in the global
deliberations, it took the lead in the developing world in consolidating the
idea of sustainable development through various legislative measures viz.
enactment of various laws and rules relating to environment and pollution.
Sanctity of environmental protection and sustainable development in central
scheme of governance was established through 42nd Constitutional
Amendment Act, 1976 which explicitly laid down Environmental Protection
as a part of the Constitutional Mandate through incorporation of Article 48A
and Article 51A(g) in Directive Principles of State Policy and Fundamental
Duties respectively.
However, the Judiciary has taken the activist role and lead by
providing qualitative and quantitative tools to deal with issues related to
Environmental Protection by interpreting the issues related to environment
and pollution in the ambit of Article 21 i,e, Fundamental Right dealing with
Right to life and by liberalizing the rule of locus stands. A activist citizens
used the provision to seek judicial intervention to ensure protection of those
constitutionally- recognized environmental rights that related more to‚ diffuse
interests than to ascertainable injury to individuals.
Development of environmental jurisprudence and genesis of the
idea of Green Court/ Tribunal
The Supreme Court has innovatively contributed to the
environmental jurisprudence in India and adopted two pronged approach of


Principal, Khandelwal Vaish Girls Institute of Technology, Vaishali Nagar, Jaipur
The Relevance of National Green Tribunal in India 21

interpreting the Constitution and laying down principles to protect the

environment and also through innovating in the processes of enforcing these
protections. However, due to the increasing number of cases related to
environment, the complexities involved in the cases and the need to fast track
environmental jurisprudence, the Supreme Court time and again, reiterated
the need to establish specialized separate courts. The Indian Council for Enviro-
Legal Action v. Union of India case, involved serious damage to the environment
by certain industries producing toxic chemicals and due to the technicality of
the subject matter, a committee of experts was appointed. In the judgment, the
Supreme Court underscored the need for creation of specialized environment
courts and observed that Environmental Courts having civil and criminal
jurisdiction must be established to deal with the environmental issues in a
speedy manner and it should incorporate legally-trained person/ judicial
officers."
In Vellore Citizen Forum case, the court suggested that the Central
Government should constitute an authority under section 3(3) of the
Environmental Protection Act, 1986 headed by a retired judge of High Court
including have other members, preferably with expertise in the field of
pollution control and environmental protection, to be appointed by the
Central Government.
The demand for specialized environmental courts reached crescendo
in the A.P. Pollution Control Board Vs M.V. Nayudu judgmens, wherein the
Supreme Court acknowledged that both it, as well as the High Courts, were
experiencing considerable difficulty in adjudicating upon the correctness of
technological and scientific opinions and reiterate the need for establishing
Environmental Courts which would have the benefit of expert advice from
environmental scientists/technically qualified persons, as part of the judicial
process.
It is pertinent to discussion the relevance of having a separate tribunal
dealing with a specific issue. Some studies have indicated that specialized
“environmental” courts and tribunals (ECTs) for resolving disputes have
existed since the early 1900s and the third wave of ECTs is prompted by
increasingly complex environmental laws and issues. According to Pring and
Pring Governments create specialized ECTS in response to internal and/or
external pressure including from NGOs, academics, judges, government
officials, or the media. The most frequent reasons for their establishment
includes need for efficiency, expertise, economy, flexible solutions, access to
Justice, to demonstrate Government's commitment, to encourage public
participation and increase public confidence as well as increase
Administrative Accountability. Analyst believe that such a move bring
22 Inspira- Journal of Modern Management & Entrepreneurship : January, 2013

uniformity, consistency and predictability in decision making which enhances

public confidence and help in development of a rich body of jurisprudence
while others contend that there are pitfalls like tunnel vision65 and capture by
interest groups, yet, in view of the practical necessity, specialisation appears to
be an inevitable phenomenon and the field of environmental law and they site
the example of successful forums in Australia and New Zealand.
Over 350 of these specialized forums – focused on resolving environmental,
natural resource, land use development, and related issues – can now be
found in dozens of countries in every region of the world. The Law
Commission of India in the above mentioned Report also dealt on the issue in
the span of their study for a separate tribunal:
(a) The uncertainties of scientific conclusions and the need to provide, not
only expert advice from the Bar but also a system of independent expert
advice to the Bench itself.
(b) The present inadequacy of the knowledge of Judges on the scientific
and technical aspects of environmental issues.
(c) The need to develop jurisprudence in this branch of law which is also in
accord with scientific, technological developments and international
treaties, conventions or decisions.
(d) To achieve the objectives of Art. 21, 47, 48A and 51A(g) of the
Constitution of India by means of a fair, fast and satisfactory judicial
procedure.
On the lines of Supreme Court, the Law Commission laid the idea a
“multi-faceted” Environmental Court with judicial and technical/scientific
inputs as formulated by Lord Woolf in England and to Environmental Court
legislations as they exist in Australia, New Zealand and other countries. The
Commission also observed that due to involvement of complex scientific and
technological factors in environmental litigation and in particular in the
elimination of pollution in air and water, it was recognized that the Courts
must not only consist of Judicial Members but must also have a statutory
panel of members comprising Technical or Scientific experts.
The Standing Committee on Science & Technology, Environment &
Forests too, in its 192 Report on the Functioning of Central Pollution Control
Board had observed that “..it could be very difficult to rein in violators to
follow standards and guidelines with the existing judicial and legal setup.
Courts are already overburdened with civil and criminal cases. They could
not be expected to spend time to expeditiously take up and dispose off
environment related cases.” In this Report, the Committee recommended the
Government to setup environmental courts in each and every State and Union
Territory to deal exclusively with environmental related matters.
The Relevance of National Green Tribunal in India 23

The National Green Tribunal Act, 2010

The Union Government introduced The National Green Tribunal Bill,
2009 with the aim to set up specialized environmental courts in the country.
The Bill was extensively discussed in the Department-Related Parliamentary
Standing Committee On Science & Technology, Environment & Forests and
passed by both the Houses of the Parliament. The National Green Tribunal
Act received Presidential Accent in June 2010 and notified in October 2010, it
had wider jurisdiction than the NEAA which will hear initial complaints as
well as appeals from decisions of authorities under various environmental
laws. It considers cases raising “substantial questions relating to the
environment” which arise from the implementation of seven environment
related laws, including air pollution, water pollution, environment protection,
and bio-diversity. It has original jurisdiction also to decide certain categories
of cases and can award compensation and direct restitution of damaged
ecology and property.
The Preamble of the Act states that it aims to provide for the
establishment of a National Green Tribunal for the 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. While enunciating rationale of the Act, the Government of India
acknowledged that the Act is in pursuance of the United Nations Conference
on the Human Environment held at Stockholm in June, 1972, which called
upon the States to take appropriate steps for protection and improvement of
the human environment as well as the decisions taken at the United Nations
Conference on Environment and Development held at Rio de Janeiro in June,
1992 called upon the States to provide effective access to judicial and
administrative proceedings, including redress and remedy and to develop
national laws regarding liability and compensation for the victims of pollution
and other environmental damage.
The Act replaced the then existing National Environmental Appellate
Authority Act (1997) (NEAA) which established as a quasi-judicial body,
empowered to hear appeals against the environmental approvals granted (or
not) to projects as well as National Environment Tribunal Act (NETA) (1995),
which was not notified during the entire period of its existence of 15years.
The enactment of NGT Act implied an automatic closure of the National
Environment Appellate Authority (NEAA). Its closure created a judicial
vacuum, as there was no forum for new cases as all the cases pending before
24 Inspira- Journal of Modern Management & Entrepreneurship : January, 2013

the NEAA were to be heard by the NGT and the Act is silent on other
environment cases in higher courts.
During the Parliamentary debates as well as the available literature on
the issue after implementation of the act, concerns have been raised upon
many issues including:
i) The criteria to determine what a ‘substantial question related to the
environment’ is open to interpretation.
ii) The lack of Tribunal jurisdiction over entire gamut of laws related to the
environment including, Wildlife (Protection) Act and the issues related
to forests, forest clearance is the most contentious and hard-to-get and is
a major source of litigation and discontent as well as violent protests.
The ministry has informed the tribunal that forest clearances cannot be
scrutinized by the bench. (Nitin Sethi, Forest clearances out of National
Green Tribunal ambit: Government, Times of India, Oct 25, 2012)
iii) Many practitioners have opined that the Act may reduce access to
justice in environmental matters particularly for the poor, rural and
tribal people as it takes away the jurisdiction of civil courts as all cases
under laws mentioned in the Act is handled by the Tribunal which
initially have benches at only five locations. Thus, leading to serious
constraints of accessibility of justice. Though, the Ministry of
Environment and Forest has clarified that the Tribunal may undertake a
circuit approach for the conduct of its work apart from initial 5 primary
places of sitting and that it will be in the light of situation being
responded to, e.g. in a remote area where the disadvantaged group may
have suffered from the environmental adverse impact. Yet, the concept
of circuit approach needs to be clarified in the rules.
iv) In course of time, the jurisdiction of the benches may need to be defined
to avoid overlap of jurisdiction
v) Similarly, Section 2 (m) of the Act has been interpreted as an endeavor
to restrict access to justice in environment related issues as it takes away
individual right. In the same context, many commentators including
Bharat H. Desai opine that the approach of the Act to environmental
questions and affected persons seems to be quite unethical and
parochial. However, subsequently in a significant move, while opening
up the arena for environmental litigation to a much wider group of
stakeholders, the NGT has held that any person can approach the
Tribunal for grievance relating to the protection and improvement of
the natural environment.
vi) The Act stipulates that anyone who wants to challenge a decision of the
government must approach the NGT within 30 days from the date on
which the decision was made. Though, an additional period of 60 days
The Relevance of National Green Tribunal in India 25

could be granted if the delay can be explained to the Tribunal. One of

the major shortcomings of the Act is that after a lapse of 90 days, no
recourse lies in the NGT. However, in one of the cases, the appellant
approached the NGT on the ninetieth day from the date on which the
decision was taken to challenge the diversion of forest land for the
construction of a hydro power project in Himachal Pradesh. The NGT
maintained that there was no “strait-jacket formula” to accept or reject
an explanation for delay, and it relied on the decisions of the Supreme
Court and condoned the delay while advocating a liberal approach
when delay on the part of the litigant is bonafide.
vii) Furthermore, the Act stipulates that application for a grant of
compensation or relief, or restitution of property or environment has to
be made within a period of five years. However, as evident from major
environmental disasters, environmental damage can be a slow and
continuous process and the impact can be felt for generations together.
viii) The NGT is faced with major institutional as well as infrastructural
challenges. The NGT is functioning from a guest house premises. Of the
minimum ten judicial and ten expert members, only two judicial
members and four expert members have been appointed. So far, six
members have already resigned from the NGT and more than 95 posts,
including that of a registrar, are vacant. Issues of over work and
under payments have often been highlighted. Though in November
2011, an “inaugural” hearing took place at the Bhopal bench but the
circuit benches at Pune, Kolkata, and Chennai are yet to hold hearings.
viii) Another practical implementation issue relates to the qualifications of
judicial members of the Tribunal, which are similar to that of the NEAA.
It is pertinent to note that the government has been unable to find
qualified members for the NEAA for the past three years.
ix) Another hurdle for the NGT has been the constant challenge to its
power as a separate specialized forum. The Madhya Pradesh High
Court Bar Association challenged the constitutional validity of the
National Green Tribunal Act, which excluded the jurisdiction of a High
Court to entertain writ petitions on environment and forest related
matters.
Analysis of the Role of NGT
In the past one year it has disposed of 98 cases and about 200 are
pending. On an average, NGT hears eight cases every day. Some of the
landmark judgments include:
i) On September 12, 2011, in its first judgment, NGT suspended the
environment clearance for the mining project by Gogte Minerals in
26 Inspira- Journal of Modern Management & Entrepreneurship : January, 2013

Maharashtra’s Sindhudurg district on the basis that the Terms of

Reference (ToR) for conducting the environmental impact assessment
(EIA) of the mines were violated.
ii) In February 2012, environment clearance granted to Scania Steel and
Power Ltd for expansion of its sponge iron plant in Chhattisgarh was
suspends due to the absence of public hearing. In a significant move,
NGT directed the MoEF to develop mechanism to check authenticity of
environmental data and blacklist EIA consultants who provide wrong
data.
iii) NGT Suspended clearance granted to South Korean steel giant
POSCO’s project in Odisha for furnishing wrong EIA Report. Many
social activist believe that NGT also showed how the MoEF had turned
a blind eye to ecological protection in the name of development and
overlooked the recommendations of its own committee to give
clearance to Posco in 2011.
iv) The National Green Tribunal (NGT) has also sought action against a
senior bureaucrat and directed Maharashtra Chief Secretary to take
penal action against the then Secretary of the Pollution Control Board
for suppressing facts and not acting against a builder who had admitted
to violating environment laws.
Through its various orders NGT, has given some
landmark pronouncement which has ushered hope for clarity and
transparency in the system of granting of Environmental clearance more
transparent. The biggest hinge benefit of NGT has been in form of the
information that has been disclosed/ provided by various state governments
in its various proceedings, thereby bringing much crucial and controversial
information in public domain. In one of the cases, it was evident that
'Environment Ministry kept forest clearance to Demwe project in Arunachal
secret to thwart legal action'. The National Green Tribunal directed the MoEF
to make public all forest clearances given to projects within a week of grant of
such clearances. In another instance, the information furnished by Madhya
Pradesh Government on Maheshwar Dam issue also rattled the public.
The NGT has all the potential to emerge as an all powerful and
comprehensive institute and lead to paradigm shift in environmental
jurisprudence. In pursuing its philosophy of separate specialized body to deal
with environment cases, in the August, 2012, during the hearing of a Bhopal
gas tragedy case, a 3-judge bench of the Supreme Court comprising of ex-chief
justice S.H. Kapadia, Justice Swatanter Kumar and Justice A.K. Patnaik
ordered the transfer of all environmental cases to the NGT.
Recently, on the plea of Developers, the Bombay High Court in the
controversial Adarsh Housing Society matter observed that if the Supreme
The Relevance of National Green Tribunal in India 27

Court has directed all cases pertaining to environment law to be heard by the
National Green Tribunal (NGT), then even this case would automatically
stand transferred. While agreeing to hear the Union government on the issue,
the bench categorically stated that, "We will hear you (MoEF). We will not
adjudicate the matter"
Conclusion
In the process of deciphering the role and relevance of the National
Green Tribunal, it is clear that it is not merely an institutional attempt to
address the issue of environmental justice and sustainable development as
environmental dispute settlement is not only mechanical exercise of applying
legal principles to resolve competing claims but also is a larger effort to
develop a legal order conducive to address the issues of social justice and a
concern for sound environmental management, as well as to establish an
institutionalized mechanism to trace the path of sustainable developmental
intrinsic to needs of each country.
The Indian model of specialized environmental dispute settlement for
may be a trend setter for the developing countries who are faced with difficult
choices of balancing the needs of development and environment, while
addressing the issue of social justice. However, the Government must
endeavor to address the shortcomings particularly, the infrastructure and
manpower and fill the existing gaps for just and fair adjudication of
environmental disputes.
The role of the NGT in Indian scenario can be summed up in the lines of
Principle 10 of the Rio Declaration on Environment and Development as it
provides adjudication mechanism as well as lead to transparency and
disseminate information which in a long run will help the stakeholders and
lead to better decision making and hopefully, reduce the increasing number
and intensity of environmental conflict in India. The Principle reads as:
“Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each individual
shall have appropriate access to information concerning the environment that
is held by public authorities, including information on hazardous materials
and activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public
awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including redress
and remedy, shall be provided.”
References
1 Bharat H. Desai, Enforcement of the Right to Environment Protection through Public
Interest Litigation in India, Indian Journal of International Law Vol. 33, 28-29 (1993).
28 Inspira- Journal of Modern Management & Entrepreneurship : January, 2013
2. Subhash Kumar v. State of Bihar (1991) 1 SCC 598
3 Banerjee Debadyuti, Environmental Jurisprudence in India: A Look at the Initiatives of
theSupreme Court of India and their Success at Meeting the Needs of Enviro-Social
Justice., International Congress of Environmental Research in December 2008 4 Indian
Council for Enviro-Legal Action v. Union of India, (1996) 3 S.C.C. 212;252
5 Vellore Citizens’ Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2726
6 A.P. Pollution Control Board Vs M.V. Nayudu:1999(2)SCC 718
7 M.C. Mehta vs. Union of India, 1986 (2) SCC 176;
8 Indian Council for Environmental-Legal Action Vs Union of India:1996(3)SCC 212;
9 A.P. Pollution Control Board Vs M.V. Nayudu:1999(2)SCC 718
10 A.P. PollutionControl Board Vs M.V. Nayudu II: 2001(2)SCC62
11 Law Commission Of Indi,a One Hundred Eighty Sixth Report On Proposal To
Constitute Environment Courts September, 2003
12 George (Rock) Pring and Catherine (Kitty) Pring,Specialized Environmental Courts &
Tribunals:
13 Improved Access to Justice for Those Living in Poverty On Proposal To Constitute
Environment Courts September, 2003
14 Law Commission Of India One Hundred Eighty Sixth Report On Proposal To Constitute
Environment Courts September, 2003. Reference was made to Report of Dr. Malcolm
Grant in UK(2000) and also to the Report of the Royal Commission (23rd Report , March
2002). 14 Also see William Birtles: “Why we need an Environment Court’ (Legal Week,
2000, 2(1), 19
15 One Hundred And Ninety Second Report On Functioning Of Central Pollution Control
Board, Department-Related Parliamentary Standing Committee On Science &
Technology, Environment & Forests, Rajya Sabha Secretariat, New Delhi, September,
2008.
16 The National Green Tribunal Act, No. 19 of 2010,
17 Bharat H.Desai and Balraj Sidhu “Quest for Green Courts in India”, Journal of Court
Innovation (New York), vol.3, no.1, Winter 2010, pp.79-110.
18 Two Hundred And Third Report On The National Green Tribunal Bill, 2009,
Department-Related Parliamentary Standing Committee On Science & Technology,
Environment & Forests, Rajya Sabha Secretariat, New Delhi, November,2009
19 “Section 2(m)-“substantial question relating to environment” shall include an instance
where, -(i) there is a direct violation of a specific statutory environmental obligation by a
person by which,--
(A) the community at large other than an individual or group of individuals is affected or
likely to be affected by the environmental consequences; or
(B) the gravity of damage to the environment or property is substantial; or
(C) the damage to public health is broadly measurable.”
20 Bharat H.Desai and Balraj Sidhu “Quest for Green Courts in India”, Journal of Court
Innovation (New York), vol.3, no.1, Winter 2010, pp.79-110.
21 Shibani Ghosh, Environmental litigation in India, The Hindu Buissnessline dated
January 31, 2012.
22 Kumar Sambhav S, Green tribunal gets short shrift, Down to Earth datedDate: Jun 30,
2012
23 Make all forest clearances public in 7 days: green tribunal to MoEF, Down To Earth–
2012-08-16.