By- Ankita Khare*
India is concerned with many things whether religion, languages, crime, scams and how can we forget pollution… that is not only India is concerned with these things; beside this many positive aspects are also there… But here I will be concerning mainly with environment.
This paperexplores the need for incorporating principles of ecological justicein Environmentaladjudicatory mechanism in India.It calls for a reinvention of approaches towards creation of institutional arrangements and of individual decision makers within such arrangements.
The article considers the debate surrounding the introduction of a specialist Environmental Tribunal and explores questions of its composition, jurisdiction and procedures.
Asia and thePacific have experienced dramaticenvironmental change over the last 10-20 years. Whiledeveloping membercountries (DMC’s) began adopting environmental policy and regulatory frameworks in the early 1970s, many environmental challenges have still not been sufficiently addressed in policy and regulatory frameworks. Many DMCs have accepted international obligations under new or amended InternationalEnvironmentalLaws, yet thesehave not been sufficiently reflected in NationalLegislation or translated into implementing rules and regulations at national, provincial, and local levels. Even where DMCs have appropriate policy, legal and regulatory frameworks, effective implementation,enforcement, and compliance continueto pose challenges.
The judiciary plays an important role in meeting these environmental enforcement and compliance challenges. Environmentlegislation was enacted on the basis of the shared Legislative Authority and other ConstitutionalProvisions. Environmentprotection was not mentioned in the original constitution and was later introduced as a directive principle of State policy and as a fundamental duty by way of an amendment. Every citizen is entrusted with a duty to protect environment1. The purpose of the amendment was to ensure that the state and citizens are guided by environmentalconsiderations when pursuing any activity. As a first step right to healthy environment was recognized in Shubash Kumar v/s State of Bihar2. It was then included within the ambit of ever growing “right to life”3. Thescope of Right to Environment within the Right to Life was then developed to include Right to get clean water4, clean air5, etc… The recognition of these Rights coincided with the developmentof publicinterest litigation and relaxation of locus standiiprinciple, which led to an increase in the interest of litigants’6.Today the Indian Environmental decision making has evolved for setting up a specialized body, it has forayed into various aspects ofenvironmental management.7
National Green Tribunal (NGT) was established by parliament in 20108, underIndia’s constitutionalprovision ofArticle 21,which assures the citizens of India, the right to a healthy environment underArticle 2 of the Charter of Fundamental Rights of the European Union,which affirms the right to life. The tribunalitselfis a special fast-track court to handle theexpeditious disposalof thecases pertainingto environmental issues.9
Before NGT The National Environment Tribunalwas first established in 1995 with a limited jurisdiction overcases involving ‘absolute liability for hazardous substances. TheAct establishing the tribunalwas never brought into force and the tribunalwas never set up.
Thereafter the National EnvironmentAppellateAuthority was set up in 1997. Unfortunately,while prescribingqualifications forthe chairperson, the Act did not provide emoluments commensurate with the office. Hence the post remained vacant and the body, defunct.10
The Parliament has passed the National Green Tribunal Bill (NGB), which paves the way from place to place for the setting up of four mobile ‘green tribunals’ to speedily adjudicateenvironmental disputes on air and water pollution,the Environment Protection Act,the Forest Conservation Act and the Biodiversity Act; and to resolve over 5,000.pending environmental cases.11
India would be the first country in the world to have such an extensive network of specialized environment courts.” In India NGTwould mean the following-
(a) CONSTITUTION OF NGT : there is 2 aspects of tribunal that are relevant- membership and nature of disputes.Siting and retired judge are eligible to be its members. Nature of disputes may comprise of variety of areas.12
(b) POWER OF REVIEW : Power is strongly prescribed here that, there is lesser scope of interference from the appellate courts. It takes the ultimate decisions; it reviews on evidence that is produced anew before the court.
(c) FINALITY OF ORDER : If NGT is given thepower of review than itwould bebearingfullresponsibility forexercising discretion. Appeal from its decision shall not be allowed, unless an issue is involved. The position of NGT is Indian Judicial hierarchy is indeed interesting.
(d) JURISDICTION : Jurisdiction is triggered only when the acts relating to environmental protection and pollution are involved. It would have the necessary expertise and it could also act as a check on the policy as such.13
(e) INFORMAL PROCEEDINGS : The nature of proceedings should necessarily be in public interest.In a case decided by the New Zealand court, it was held that late submission of evidence is permissible, though it was unfair to the opposing party.
(f) PRICIPLED APPROACH : There are various principle but it is important that the precautionary principle, which is arguably the most significant principle is rated as the prime principle with this system.
The Green Tribunal Bill was amended to make sure that individuals and notjust institutions or non Government organizations could appeal before the Green Tribunal. Its decisions can be challenged only in the Supreme Court. “The National Green Tribunal is one dimension to a restructured approach to environment,” It provides for the establishment of a National Green Tribunal for the effective and expeditious disposal ofcases relating to environmentalprotection and conservation of forests and other natural resources including enforcement of any legalrightrelating to environment and giving relief and compensation fordamages to persons and property and for matters connected therewith or incidental thereto.
The National Green Bench will be the highest judicial body to deal with environment related court cases, especially thosewhere industrial plans are often range against civil society concerns. Allcivil disputes relating to mandatory environmentaland forest clearances required for new industrial projects will be settled by this bench.14
The polluter pays and precautionary principle will now be the basic framework against which the tribunals willadjudicate. While the first puts the onus on the polluterto pay for any financialliability arising out of an incident, the latter requires that the tribunal put the onus on the group or party under the scrutiny to prove that their actions will not causeharm to public orenvironment even though completeand absolute scientific clarity on thepossible impacts of such actions does not exist.15
With mobility beinga uniquefeature, these green benches are expected to provide easy access to people across the country as a part of an inherent ability to hear cases. beyond a certain location.
The tribunal is the first serious attempt in the country towards environmentalrights. Itwill be the first time an individual willhave the right to claim civil damages for an environment-related accident, includingany adverse health impact.
TheTribunal cannot impose imprisonment other than, for thefailure to pay a fine or failure to comply with an award. This imprisonment can extend to three years. A fine for non-compliance to the tune of Rs10 crore can also be levied. In the case of companies, the maximum limit is Rs 25 crore.16
Establishment ofIndia’s newTribunalhas not been without controversy. A law student has filed a writ petition with the Madras High Court, seeking to declare the NationalGreen TribunalAct unconstitutional. The petitioner contends that the High Courts had exercised their writ jurisdiction to provideremedy in cases involving substantialquestions related to the environment, and that the blanket ban imposed on the civilcourts’ jurisdiction “expressly and theHigh Courts impliedly” under the new Act “would be impermissible in law,” given that the right to judicial review before the High Court was “recognized as part of the basic structure of the Constitution. Moreover, the petitioner argues, “
[the constitution of the Tribunal]
… by excluding all environmental matters from the jurisdiction of theHigh Court and CivilCourts would severely affect the right of access to justice to the poor and the needy.”
Environmental Minister Mr. Jairam Ramesh said that India’s record on environmentprotection was pathetic, with both governmentand private parties flaunting the law which has led to the current environmental crisis at hand. In this context he drew attention to the important role that could be played by the National Green Tribunal and the Environment Protection Authority, with the power to impose harsh penalties. He added that the ministry intends to make punishment for violations of the WLPA and EPA as stringent as that for violations of the Foreign Exchange ManagementAct. Another issue he is looking at, is that of Environmental ImpactAssessments (EIAs).The problem so far has been that EIAs have been project-based-the cumulative impact of projects has not been studied. This needs to be done.
If public governance in India has to meetthe challenges of Globalization, it has to have stable institutions based on principles. This calls for a new theory of judgment-from “rule of law”to “rule of integrity” and NGT is one such step in this direction.