Protection of environment under Indian Constitution

Author: Nivedita Saxena, Research Associate

The constitution of any country is the basic source of law, and the provisions of all other laws are subject to the provisions of the constitution itself. The Indian constitution is amongst the few in the world that contains specific provisions on environment protection.The various provisions of the constitution highlight the national consensus on the importance of environmental protection and improvement and lay the foundation for a jurisprudence of environmental protection ((M.C.Mehta v. State of Orissa,AIR 1992 Ori 225)).Under the concurrent list (List III), both parliament & the State Legislature have overlapping and shared jurisdiction over 52 subject areas including forests, protection of wildlife etc. This is important as certain environment problems such as waste disposal are best tackled at the local level whereas certain others like air pollution or wild life protection require uniform national laws.

Fundamental Rights

Article 21 of the Indian Constitution states that that no person shall be deprived of his life and liberty except according to the procedure established by law.The Constitution of India recognises the right to a wholesome healthy environment as a part of the right to life guaranteed in Article 21 ((BandhuaMuktiMorcha v. Union of India, (1984) 3 SCC 161; A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2SCC 62)). The expression ‘life’ assured in article 21 of the constitution does not connote mere animal existence ((T S Doabia, Environmental & Pollution Laws In India, 2nd Edition 2010)). This right encompasses wide variety of many other rights such as protection of wildlife, forests, lakes, ancient monuments, fauna-flora, unpolluted air, protection from noise, air and water pollution, maintenance of ecological balance and sustainable development. Article 21 of the constitution guarantees a right to a decent environment, but the parameters would essentially be a question of legislative policy. The right to clean environment may have precedence over economic interests of the society ((M.C. Mehta v. UOI ,(2004) 12 SCC118)).

The supreme court of India ((M.C. Mehta v. Union of India [popularly known as oleum gas leakage case], AIR 1987 SC 1086))has impliedly treated the right to live in pollution free environment as a part of fundamental right to life falling under Article 21 of the constitution. The Andhra Pradesh high court has observed ((T DamodarRao v. S.O.M.C. Hyderabad ,AIR 1987  AP 171))that “it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by article 21 of the constitution embraces the protection and preservation of nature’s gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Article 21.  The slow poisoning by the polluted atmosphere caused by environment pollution and spoilage should also be regarded as violation of article 21”. Similarly many High courts have observed ((Arvind Textiles v. State of Rajasthan, ARI 1994 Raj 195 ; Law Society of India v. Fertilizers & Chemicals Travancore Ltd., AIR 1994 Ker 308 ; Kinkri Devi v. State of Himachal Pradesh, AIR 1988 HP 4 ; V. Lakshmipathy v. State of Karnataka, AIR 1994 Kar 57 ; Hamic Khan v. State of Madhya Pradesh, AIR 1997 MP 191))that environmental degradation violated the fundamental right to life.

Discussing the nature and restrictions to be imposed on noise pollution, the Supreme Court has observed ((In Re: Noise Pollution –Implementation of the Laws for restricting the use od loudspeakers and high volume producing sound systems, (2005) 5SCC 733))that –“Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his own premises which would travel beyond his precincts and cause nuisance to neighbours or others. Any noise which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man is nuisance. How and when a nuisance created by noise becomes actionable has to be answered by reference to its degree and the surrounding circumstances including the place and the time.

Supreme Court talking about the need for balance between environmental restrictions and development stated ((N.D, Jayal v. Union of India, (2004)9 SCC 362))that –“the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ‘sustainable development’ cannot be singled out. Therefore, the concept of ‘sustainable development’ is to be treated an integral part of ‘life’ under Article 21.

If anything endangers or impairs the quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the constitution for removing the pollution of water or air which may be detrimental to the quality of life ((Subhash Kumar v. State of Bihar, AIR 1991 SC 420)).

Directive Principles of State Policy

The directive principles are the policy prescriptions that guide the government action.  Environmental protection and improvement were explicitly incorporated into the constitution by the Constitution (Forty-second Amendment) Act of 1976 ((S.10 (w.e.f 3-1-1977).))by the addition of Article 48A to the directive principles of state policy. The article declares that –“The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” This article lays down the states responsibility towards environment protection. The environment (Protection) Act, 1986, The forest (conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, The Biological Diversity Act, 2002, Hazardous Wastes (Management and Handling) Amendment Rules, 2003, Ozone Depleting Substances (Regulation and Control) Rules, 2000 and various other laws and rules providing for the protection of environment, forest and wild life are among the various legislative steps taken under this article. Although the directive principles are unenforceable by the courts, they are increasingly being cited by the judges as complementary to the fundamental rights ((SomPrakashReki v. UOI ,AIR 1981 SC 212)).

Fundamental Duties

Article 51A (g) lays down the duty ‘to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures’ on all the citizens of India. Thus a responsibility corresponding to that in Article 48A has been imposed on every citizen. However it has to be noted that duties are not self-executing, the state must make laws in order to implement them.Supreme Court has observed ((Virendra Gaur v. State of Haryana, (1995) 2 SCC 577))that –“The word ‘environment’ is of broad spectrum which brings within its ambit “hygienic atmosphere and ecological balance”. It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safe-guard proper environment but also an imperative duty to take adequate measures to promote, protect and improve the environment man-made and the natural environment.”

Legislative Provisions

Many laws have been passed and enforced in India in order to protect environment and public health. The overall legal framework for environment protection can be explained as under

  1. Constitutional provisions
  2. Environment laws
  3. Environmental Legislations
  4. Environmental Regulations
  5. Public Interest Litgations
  6. Environmental Tribunals

The legislative provisions can further fall under three categories

  1. Common law principles:  Being a common law country India derieves most of its modern judicial framework from the British legal system. These include principles of tort law, concept of nuisance, trespass, negligence and strict liability.
  2. Specific Statutory Provisions The substantive law determines the rights and liabilities of parties, whereas the procedural law provides the machinery or manner of their enforcement. In relation to environmental protection statutory provisions are provided in Indian Penal Code, 1860, Criminal Procedure code, 1973, Civil Procedure Code,1908 and Factories Act,1948 amidst other.
  3. Specific Legislations: these include legislations like The Water (Prevention and Control of Pollution) Act, 1974, environment protection Act, 1986, Forest (Conservation) Act, 1980 etc.

Thus, the constitutional and legislative provisions together form an elaborate legal system to protect and improve the environment in India. Not only does the law prohibit or penalise any harm to the environment but they also lay down duties on the state and citizen to protect the same.

National Green Tribunal: A Step Towards Environment Justice?

Authors: B Jayant Kumar and Saurabh Mishra

The Supreme Court of India at various instances also has opined that as environment cases involve assessment of scientific data it would be desirable to have the setting up of “environmental courts on a regional basis with a professional judge and two experts keeping in view the expertise required for such adjudication” ((M.C. Mehta v. Union of India, AIR 1987 SC 965-967; Indian Council for Enviro Legal Action v. Union of India, 1996 (3) SCC 212; AP Pollution Control Board v. M V Nayudu, 1999 (2) SCC 718; A P Pollution Control Board v. M V Nayudu II, 2001 (2) SCC 62)).

The Bhopal gas disaster in 1984, also led the Supreme Court to emphasize on the need for constitution of environmental courts, in Charan Lal Sahu v. Union of India ((AIR 1990 SC 1480))the court opined that “under the existing civil law damages are determined by the civil Courts, after a long drawn litigation, which destroys the very purpose of awarding damages so in order to meet the situation, to avoid delay and to ensure immediate relief to the victims, the law should provide for constitution of tribunals regulated by special procedure for determining compensation to victims of industrial disaster or accident, appeal against which may lie to this Court on the limited ground of questions of law only after depositing the amount determined by the Tribunal.”

Again in the judgment of Indian Council for Enviro- Legal Action v. Union of India (((1996) 3 SCC 212))in which the Supreme Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner.

The Parliament of India enacted two specific laws- the National Environment Tribunal Act, 1995 for adjudicating on claims and compensation for victims of environmental disasters and the National Environment Appellate Authority Act, 1997. The National Environment Tribunal never came into functioning while the National Environment Appellate Authority (herein referred as NEAA) functioned with full composition only for 3 years (( Centre for Science and Development, National Green Tribunal: A new beginning for environmental cases?)). The NEAA had a very limited mandate and served as an appellate body against the decision of the Ministry of Environment and Forest granting environment clearance to a project. These two tribunals were non functional and existed only on paper.

This issue was also considered by the Law Commission of India and dealt at length in its 186th Report ((Law Commission of India, 186th Report, Proposal to Constitute Environment Courts, September 2003)). The Commission which submitted its report on September, 2003 dealt at length, with the existing environmental courts and Tribunals and well as recommendation as to how the new environmental courts should be set up. The Law Commission’s Report was critical of the manner of functioning of existing environmental courts. The report states as follows:

“Thus these two National Environmental Tribunals are today unfortunately non-functional. One had only jurisdiction to award compensation and never actually came into existence. The other came into existence but after the term of the first Chairman ended, none has been appointed.”

Law Commission was guided by the model of environmental court established in New Zealand ((Id. at 66))and the Land and Environmental Court of New South Wales ((Id. at 55))and also the observations of the Supreme Court in four judgments, namely, M.C. Mehta v. Union of India (( AIR 1987 SC 965)), Indian Council for Environmental-Legal Action v. Union of India (((1996) 3 SCC 212)); A.P. Pollution Control Board v. M.V. Nayudu (([1999] 2 SCC 718))and A.P. Pollution Control Board v. M.V. Nayudu II (([2001] 2 SCC 62)).

The commission also considered the reference made in the Nayudu I case to the idea of a “multi-faceted” Environmental Court with judicial and technical/scientific inputs as formulated by Lord Woolf in England recently and to Environmental Court legislations ((Lord Justice Sir Harry Woolf, Are the Judiciary Environmentally Myopic?, [1992] Oxford University Journal of Environmental Law, vol. 4 at 1))as they exist in Australia, New Zealand and other countries. The report also adopted the practice of the Environmental Courts in Australia and New Zealand which function as appellate Courts against orders passed under the corresponding Water Acts, Air Acts and Noise Acts and various Environment related Acts and also have original jurisdiction. They have all the powers of a Civil Court. Some have even powers of a Criminal Court.


The Preamble of the Act states the object is to provide for the establishment of a National Green Tribunal (herein referred as NGT) 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.

The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same ((Sec 18(3), National Green Tribunal Act, 2010)). Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal (( The Weekend Leader, India’s first green tribunal will soon have regional benches, http://www.theweekend [last updated Sept. 25, 2012])).

The Act is also an endeavour of the Parliament under Article 253 of the Constitution read with Entry 14 of List I of Schedule VII to fulfil the obligation of India towards Stockholm Declaration, 1972 ((Stockholm Declaration of United Nations Conference on Human Environment, June 5-16, 1972, UN Doc A/Conf.48/14/Rev.1 [1973]))in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment and Rio Declaration, 1992 ((Rio Declaration of United Nations Conference on Environment and Development, June 3-14, 1992, UN Doc A/Conf.151/26 [vol. I]))in which India participated, calling 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 was also a response to implement the apex court’s pronouncement that the right to healthy environment is a part of the right to life under Article 21 of the Indian Constitution ((Subhash Kumar v. Bihar, AIR 1991 SC 420)).

Why ‘Green’ Tribunal?

Why the Act has been named as National Green Tribunal Act and why not simply as National Environment Tribunal Act? What is the significance or special meaning of the term ‘green’ as given in the title of the Act? No clear answer is available as of now. Merriam Webster’s dictionary defines the term ‘green’ as tending to preserve environmental quality. That suggests and reveals the ultimate aim of the NGT Act.


Establishment and Composition of Tribunal

The Central government by notification shall establish a tribunal to be known as National Green Tribunal to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act ((Sec 3, National Green Tribunal Act, 2010)). The Tribunal shall consist of a full time chairperson and not less than ten but subject to maximum of twenty full time Judicial and expert members as the Central Government may from time to time notify. This Act has balanced the number of judicial and expert members with the authority to break a deadlock vested with chairperson of the tribunal. The Tribunal is empowered to invite any one or more persons having specialized knowledge and experience in a particular cases before the Tribunal to assist the Tribunal in that case ((Id. Sec 4)).


This Act specifies the qualifications for appointment of Chairperson, Judicial Member and Expert Member. It provides that a person shall not be qualified for appointment as the Chairperson or Judicial Member of the Tribunal unless he is, or has been, a Judge of the Supreme Court of India or Chief Justice of a High Court and a person who is or has been a Judge of High Court shall also be qualified to be appointed as a Judicial Member and a person shall not be qualified to be appointment as an Expert Member, unless he has a degree in Master of Science-Physical Sciences or Life Sciences with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management and biological diversity management and forest conservation) in a reputed national level institution, or has administrative experience of fifteen years including practical experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution ((Id. Sec 5)).

The Act also provides for the manner of appointment of the Chairperson, Judicial Member and Expert Member. It provides that the Chairperson shall be appointed by the Central Government in consultation with the Chief Justice of India and the Judicial Members and Expert Members of the Tribunal shall be appointed on the recommendations of the Selection Committee in such manner as may be prescribed ((Id. It may be mentioned that the Composition of the Selection Committee has been prescribed under the National Green Tribunal (Practices and Procedure) Rules, 2011. In exercise of the powers conferred by Sec 35(2)(e) of the National Green Tribunal Act, 2010 the Central Government has notified this rule)). Justice Swantater Kumar has been appointed as Chief of the Tribunal he will be assuming the office after 31st December 2012 ((Dhananjay Mahapatra, CJI S H Kapadia recommends Justice Swatanter Kumar as Green Tribunal Chief, The Times of India, September 18 2012)).

The major drawback of this provision is that the composition of the tribunal follows a track, which has failed to yield results. It seems that tribunal is meant to be hub for retired bureaucrats and technocrats. NGT should consist of experts in the relevant field and not the bureaucrats, all earlier attempts in handling the environment problems through NEAA and other bodies have failed. Had such appointees been competent, those Environment department or institutions where they served would have surely been instrumental in protecting the environment, which is clearly not the case and which has led to the necessity of the Tribunal. In fact, the apathy of administrators has ignited the demand for the Tribunal.

The power of appointment is given to the Central Government, it will empower the Government of the day to appoint any one to whom it want to give favour. This is corroborated by the fact that in case of appointment of Chairperson requires prior consultation which Chief Justice of India, how much weight the Central Government gives to advice of Chief Justice of India is unknown ((S.P. Gupta v. Union of India, AIR 1982 SC 149)).


This Act provides that the Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment. Further, if a person who is or has been a Judge of the Supreme Court is appointed as the Chairperson or judicial member, he shall hold officer as such till he attains the age of seventy years, and in case a person who is or has been Chief Justice of a High Court is appointed as the Chairperson or Judicial Member, or in case a person who is or has been a Judge of a High Court is appointed as a Judicial Member he shall hold officer as such till he attains the age of sixty seven years ((Sec 7, National Green Tribunal Act, 2010)). The Expert Member shall not hold officer after he has attained the age of sixty five years. This Act also makes provision for resignation by the Chairperson, Judicial Member and Expert Member. It provides that the Chairperson, Judicial Member and Expert Member of the Tribunal may, by notice in writing under their hand addressed to the Central Government, resign their office ((Id. Sec 8)).


The Act provides that each application under Sections 14 and 15 or appeal under section 16 shall be made to the Tribunal in such form, contain such particulars and shall be accompanied by such documents and such fees as may be prescribed ((Id. Sec 18[1])). A fee of equivalent shall accompany an application or appeal where compensation has been claimed, to one percent of the amount of compensation claimed, subject to a minimum of one thousand rupees ((Rule 12, National Green Tribunal (Practices and Procedure) Rules, 2011)). It may be noted that due to this rule, the person who files claim for compensation would face difficulty. Moreover, it will also discourage economically weaker sections of the society to file a claim for compensation.

National Green Tribunal (Practices and Procedure) Rules, 2011, has exempted ((Id. It says “there shall be no fee for filing of application or appeal for claiming compensation by any person who is below the poverty line determined in accordance with the guidelines or instructions issued by the Central Government or the State Government from time to time in this regard or indigent person determined in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 2008)”))the poor person from the depositing required fee for filing complaint under the Act. One can say that the objective of the Act is to facilitate the filing of complain. To provide justice to marginalized class, it is recommended that there should not be any provision of fee for the representative body or organization who intend to file a complaint.

Jurisdiction of the tribunal

This Act confers on the Tribunal, the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act ((Sec 14, National Green Tribunal Act, 2010; See also Rule 13 of National Green Tribunal (Practices and Procedure) Rules, 2011)). It further provides a time-limit of six months within which the applications for adjudication of dispute under this section shall be entertained by the Tribunal. It also empowers the Tribunal to allow such applications to be filed within a further period not exceeding sixty days, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period.

The term ‘substantial question relating to environment’ is defined under the act ((Id. Sec 2[m]))shall include an instance where:-

(1) 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;

(2) The environmental consequences relate to a specific activity or a point source of pollution.

The jurisdiction to ‘substantial questions relating to environment’ which only includes instances where the community at large is affected or likely to be affected – but excludes individuals or groups of individuals. It is, therefore, unclear whether this law only seeks to promote class actions. If this is the case, such a structure would be undesirable. Environmental impact and conflict need not be only limited to the ‘community at large’ but may also affect groups of individuals and individuals – who deserve as much protection – in equal measure as the ‘community at large’ or ‘group of Individuals’, which itself is not defined. This portion of the act should simply be amended, before it heads inevitably towards a Constitutional challenge in the Supreme Court ((The Access Initiative, How Green Will be the Green Tribunal? Concerns and Suggestions on the National Green Tribunal Bill, 2009,

This Act also confers upon the Tribunal the appellate jurisdiction ((Sec 16, National Green Tribunal Act, 2010))against certain orders or decisions or directions under the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act, 1980; the Air (Prevention and Control of Pollution) Act 1981; the Environment (Protection) Act; 1986 and the Biological Diversity Act, 2002.

It further provides a time-limit of thirty days within which the appeals may be filed before the Tribunal. It also empowers the Tribunal to allow such appeals to be filed within a further period not exceeding sixty days, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period ((Id)).
The period of filling the appeal is too short and should be extended to 60 days as often individuals are prevented by unavoidable situation from filling appeal within 30 days.

Appeal to Supreme Court

Any person aggrieved by any award, decision or order of the Tribunal can appeal to the Supreme Court within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on anyone or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908. It is provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal ((Id. Sec 22)).

Bar on Jurisdiction of tribunal

This Act provides bar of Jurisdiction of civil courts. It provides that from the date of establishment of the Tribunal, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction ((Id. Sec 29[1])).

It further provides that no civil court shall have jurisdiction to settle or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment which may be adjudicated upon by the Tribunal and no injunction in respect of any action taken or to be taken by or before the Tribunal shall be granted by civil court ((Id. Sec 29[2])).

Application of certain Principles

It has been provided under the Act that the tribunal shall apply the principles of sustainable development, the precautionary principle and the polluter pays principle passing any order or decision or award.

These principles have been recognised and established under various International Conferences like Stockholm Conference 1972 ((Stockholm Declaration, supra note 18, Principle 1; Report of the World Commission on Environment and Development (1987),, Rio Conference 1992 ((Rio Declaration, supra note 19, Principle 15 and 16; Agenda 21, June 14 1992, UN Doc A/Conf.151/26 (1992).))and World Summit on Sustainable Development 2002 (Johannesburg Conference). These principles have been incorporated in India by the Apex Court before the enactment of this act. The case of Indian Council for enviro legal action v. Union of India (([1996] 3 SCC 212))applied the principle of sustainable development and thus brought it into Indian environmental jurisprudence. Likewise case of Vellore Citizens Welfare Forum v. Union of India (([1996] 5 SCC 647))applied polluter pays principle and precautionary principle. This NGT act has given those principles statutory recognition.

Relief, compensation and restitution under the Act

The Act provides for various kinds of relief. It says that the Tribunal may, by an order, provide relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule-I to the Act, including accident occurring while handling any hazardous substance. It may also order the restitution of the property damaged and the restitution of the environment for that areas as the Tribunal may think fit ((Sec 15(1), National Green Tribunal Act, 2010)).
Who may file an application for relief, compensation or settlement of dispute

This Act provides ((Id. Sec 18[2]))that an application for grant of relief or compensation or settlement of dispute may be made to the Tribunal by the person, who has sustained the injury; or the owner of the property to which the damage has been caused; or where death has resulted from the environmental damage, by all or any of the legal representations of deceased; or any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or any person aggrieved ((The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged; see also Vedanta Alumina Ltd v. Prafulla Samantara, L P A 277/2009, Delhi High Court; J.M. Desai v Roshan Kumar, AIR 1976 SC 578)), including any representative body or organization; or by the Central Government or a State Government or a Union Territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a Local Authority or any environmental authority constituted or established under the Environment Protection Act, 1986 or any other law for the time being in force.

It also provides that application and appeals shall be dealt with by the Tribunal as expeditiously as possible. Endeavour shall be made to dispose of the application, or, as the case may be, the appeal, finally within six months from the date of its filing, after providing the parties concerned as opportunity to be heard ((Sec 18(3), National Green Tribunal Act, 2010)).

It is also provided that an application for grant of any compensation or relief or restitution of property or environment can be sought but it has to be made within a period of five years from the date on which the cause for such compensation or relief first arose. However if the Tribunal is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period can allow the application to be filed within a further period not exceeding sixty days ((Id. Sec 15(3).)).

It may be pointed out that the even though the Bhopal disaster occurred in the year 1984, yet the fact remains that still new claimants appear every day, in view of long range ramification of MIC. Therefore such victims will find it difficult to approach the National Green Tribunal ((Meena Menon, How Green is my Tribunal, The Hindu, July 7, 2010))or put it simply, a victim, where disease took over ten years to manifest probably, has no chance before this specially created Tribunal ((Vinod Shankar Mishra, Environment Justice Delivery System; An Alternative forum, 44 JILI 80-81 (2002).)).

Powers and Procedure

This Act lays down the procedure and powers of the Tribunal. It provides that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice ((Sec 18(2), National Green Tribunal Act, 2010)). It further provides that subject to the provisions of the Act, the Tribunal shall have power to regulate its own procedure ((Id. Sec 19(2).)). It also provides that the Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 ((Id. Sec 19(3).))and for the purposes of discharging its functions under the present legislation. The Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 ((Id. Sec 19(4).)).

It provides that the decision of the Tribunal taken by majority of members shall be binding. This Section provides finality of the order of the Tribunal made under the Act ((Id. Sec 21)). It provides that where the Tribunal holds that it claim is not maintainable or is false or vexatious, and such claim is disallowed, in whole or part, the Tribunal may, if so thinks fit, after recording its reasons for holding such claim to be false or vexatious, make an order to award costs, including lost benefits due to any interim injunction ((Id. Sec 23 (1) & (2); See also Rule 15 of National Green Tribunal (Practices and Procedure) Rules, 2011)).


This Act bestows ample power on the Green Tribunal if its orders are not complied with; to impose penalty which may be either three years prison or up to ten crores and for companies it may extend up to twenty five crores ((Id. Sec 26(1).)). The act adopts a tough posture against companies ((Id. Sec 27)). If it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

This is a commendable inclusion in the bill and at least it will instill sense of fear among higher officials of company to pay due attention to environmental performance of their company. But the accused can take defense that he did not have the knowledge or he has taken all the due care to prevent the commission of the offence ((Id. Proviso to Sec 27)). Hence, this strong inclusion is diluted.


Law Commission in its report included a chapter on functioning of environmental courts in other countries, specifically Australia and New Zealand. We would discuss the features of the environment courts established in these countries.

Australia (New South Wales)

Land and Environment Court Act 1979 established the court in state of New South Wales. The composition of the court is one Chief Judge and other Judges as may be appointed by the Governor ((Sec 7, Land and Environment Court Act 1979))with further appointments of various commissioners with certain qualifications such as special knowledge and experience in administration of local government and town planning, environment planning, environmental science, environmental impact assessment and such other experiences ((Id. Sec 12)).

The jurisdiction of the court is to any matter which falls under the provision of this act or any other act or a matter that is ancillary to the provision of this act or any other provision of the Act ((Id. Sec 16)). For the purpose of the Act jurisdiction could be divided into seven categories appellate jurisdiction under the various acts relating to planning and production ((Id. Sec 17)), appeals under statuettes relating to local government, miscellaneous appeals and applications which are listed in various clauses of the section ((Id. Sec 18)), land tenure rating and valuation of compensation matters ((Id. Sec 19))(appeals and references under various acts), proceedings under various act related to environmental planning and protection ((Id. Sec 20(1).)), and development contract, civil enforcement. Section 20 (2) confers the same civil jurisdiction as Supreme Court.

Section 22 deals with jurisdiction to determine the matter completely and finally to avoid multiplicity of actions while section 23 gives powers to pass orders including interlocutory orders. Courts are not bound to follow rules of evidence, courts can conduct proceedings with little formality and technicality to settle the matter expeditiously, court can obtain assistance from of any person having professional or any other qualifications relevant to an issue ((Id. Sec 38)).

New Zealand

The Environment Court was established under the Resource Management (Amendment) Act, 1996 by amending the 1991 Act and it replaced the former Planning Tribunal ((Environment Court of New Zealand, How Cases Come to Court, environment-court/about-the-environment-court)), The court is an independent specialist court consisting of Environment Judges and Environment Commissioners. They are appointed for a period of five years by Governor on the recommendation of Minister of Justice. In appointing the judges and commissioners a mix of experience and knowledge in commercial, economic affairs, local government, community affairs, environmental science and alternative dispute resolution processes, a large number of cases are solved through mediation and arbitration, The court is not bound by rules of evidence and it is free to establish its own rule of procedure, Person may themselves represent themselves it is not necessary to be represented by a lawyer, An appeal is made to the High Court on question of law only ((Environment Court of New Zealand, Environment Court,, The Environment Court hear matters on references on regional district statement and plans and appeals from resource contents; it can make declarations, i.e. interpret the law; and it can enforce the RMA through civil or criminal proceedings ((Environment Court New Zealand, Procedure in Environment Court,, Local authorities are obliged to make necessary amendments in plans to give effect to the court’s decision, It is the duty of court to avoid, mitigate adverse effects on environment and a general duty to promote sustainable management


National Green Tribunal Act, 2010 has been enacted to fulfill the long felt need of alternative forum to deliver speedy and inexpensive justice. The philosophy of public interest litigation is echoed in the legislation, a welcome direction for the class of victims who are unable to knock the doors of judiciary.

NGT makes one more innovation by providing strict penalty for non-observation of the order of the tribunal. This will allow implementation of the order of the tribunal.

Coming to dark side of the Act, the rules relating to constitution and composition of selection committee tilts the balance of power in favor of Central Government. Keeping in view the repeal of the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 by the present Act ((Sec 38(1), National Green Tribunal Act, 2010)), it is submitted that legislation should become operational in letter and spirit to provide much needed relief against offences/complaints for degradation of environment.

The present legislation provides interference and control by the Central Government in the affairs and processes of the tribunal which should be avoided to give tribunal an unrestricted hand to decide the inherent matter and proceedings.


  • In order to achieve more fruitful result the environment court should be established in each state however, in case of smaller States and Union Territories, one court for more than one State or Union Territory may serve the purpose.
  • Also it is a constitutional duty and obligation of all those lovers of clean environment including the members of the Parliament and ‘We the people of India’, to see that the Parliament brings out necessary amendments to correct flaws suggested above before much water runs down.
  • To Sum up, it is hoped that the National Green Tribunal would fulfill the long felt need for an alternative forum to deliver speedy and inexpensive justice to victims of environmental pollution.