Air pollution from vehicular emission and legal measures

Prachi Kumari

Air pollution from vehicular emission is a major problem in our country as pointed out by the National Green Tribunal recently. The tribunal, speaking through a five judge’s bench headed by Justice Swatanter Kumar recognised three main categories of pollutants in Delhi including Pollution from vehicular emissions along with Burning of plastics and other agricultural and horticulture produce in open spaces, and Pollution from construction sites and transport of construction material and debris.

Taking into account the pollution from vehicular emission in Delhi, National Green Tribunal (NGT) has banned the diesel vehicles over ten years old from plying in Delhi. The ban applies to both, private and commercial vehicles and it came on an application filed by Vardhaman Kaushik.

This is not the first attempt to control air pollution. International efforts for the protection and preservation of the global environment started with the convening of the Stockholm Conference on Human Environment in 1972. The journey from the Stockholm Conference to the Rio Summit led to the recognition that all human beings are entitled to a healthy and productive life in harmony with nature.

In the wake of Stockholm Conference, India enacted The Air (Prevention and Control of Pollution) Act, 1981 to take appropriate steps for the preservation of the natural resources of the earth which, among other things, include the preservation of the quality of air and control of air pollution.

Section 2 (b) of the Act defines: “Air pollution means the presence in the atmosphere of any air pollutant.” The term ‘air pollutant’ has been defined under section 2 (a) of the Act to mean any solid, liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.

Moreover, Section 20 of the Act provides for power of the State Govt. to give instructions for ensuring standards for emission from automobiles. Apart from this, The Motor Vehicles Act, 1988, inter alia, provides for prevention and control of air pollution from automobiles which constitute a major source of pollution everywhere, especially in the congested metropolis.

The Indian judiciary has also attempted from time to time to control this.

On 28th July, 1998, some directions were issued fixing a time schedule after taking note of the recommendations made by the Bhure Lal Committee. One of the important directions issued on that date was to the effect that the entire ‘city bus fleet was to be steadily converted to a single fuel mode of CNG by 31/3/2001’. Another direction was to the effect that ‘no eight year old buses were to ply except on CNG or other clean fuel after 1st April, 2000’.

Again in the year 2002, the court in the case of M.C. Mehta v. Union of India, ((AIR 2002 SC 1696))the court observed that neither the Governmental authorities nor private bus operators acted seriously or diligently in taking steps for the purposes of complying with the aforesaid directions.

Therefore, after hearing learned counsel for the parties seeking extension of the March 31, 2001 deadline the court some relaxations or exemptions with a view to mitigate the sufferings of the commuter public in general and the school children.

My purpose of mentioning the exemptions is to point out that court is quite lenient in enforcing the parameters relating to vehicular pollution. Coming to the present order of National Green Tribunal (NGT), I would say, it must be followed in letter and spirit. Earlier in November last year, the Tribunal had ordered all vehicles that are more than 15 years old from plying on Delhi’s roads, but little headway has been made towards implementing it.

As rightly pointed out by the tribunal, Delhi is becoming more and more vulnerable to various diseases and the greatest sufferer of these pollutants are young children of today and India’s tomorrow. Not only Delhi, but every area is being affected by pollution. We have to handover a pollution free atmosphere to our next generations and for this we need a strict law controlling pollution. Stringency should extend till maximum possible practicability.

Many countries in the world including Denmark, Brazil, China and Sri Lanka are in the process of banning diesel vehicles and it is our turn to do the same. This ‘shifting dates’ practice is nowhere helpful to us.

Environmental Policy in India

Author: Anshu Bansal, Research Associate

“India though has a long way to go to attain environmental quality akin to those enjoyed in developed economies, has made one of the fastest progress in the world in addressing its ecological issues and improving its environmental quality between 1995 through 2010 ((Data collection and environment assessment studies of World Bank experts as reported at World Environment Day 2013: Act to reduce disaster risk, Zee news, (May 31, 2013) available at http://zeenews.india.com/exclusive/world-environment-day-2013-act-to-reduce-disaster risk_6385.html?pagenumber=2)).”

In the wake of World Environmental Day on June 5, once again Indian environmental policy was praised by many in the light of above progress report. While the present policy is unique in the sense as discussed in the later part of this essay, there are some setbacks which hinder the expected pace of improvement. The primary aim of India’s environmental policy is akin with other country that is to prevent the degradation of the environment. It is not limited to air, water and soil pollution rather it covers all forms of pollution including Soil Contamination, Solid Waste Pollution, Light Pollution, Littering, Thermal Pollution and Radioactive Contamination etc. This is expressly written in black and white letter and is evident from Environmental Protection Act (hereinafter referred as EP Act), 1986.

The EP Act defines ‘Pollution’ under Section 2(k) as ‘the presence in the environment of any environmental pollutant’ and under Section 2(b) ‘Pollutant’ is defined as ‘any solid, liquid or gaseous substances present in such concentration as may tend to be injurious to the environment’. Hence, in simple terms, Pollution is the contamination of the environment which has an adverse impact upon life in all forms. This widened the area of operation of EP Act. Under EP Act environmental enforcement powers is delegated to the States to make it more powerful ((Tishyarakshit Chatterjee, Reorienting Environment Policy in India Towards a Local Area-Based Development  and Management Paradigm, The Journal of Transdisciplinary Environmental Studies (2009).)).

In addition to this, our constitution is also unique in the sense that it contains specific provisions for the protection of environment.  It is expressly mentioned that the state and the citizens are legally obliged to protect the environment. Some of these provisions are:

  • Article 48A which deals with Protection and improvement of environment and safeguarding of forests and wild life.
  • Article 51A (g) states that It shall be the duty of every citizens of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

National Environment Policy and its insinuation

National environment policy (2006) is one of the chief drafts concerning environmental policy of India. It encourages imposing of more stringent local level water and air quality standards for receptors ((Id.)). The objective of the National environment policy includes:

  • Conservation of critical environmental resources.
  • Intra-generational equity.
  • Livelihood security for the poor.
  • Inter-generational equity.
  • Integration of environmental concerns in economic and social development.
  • Efficiency in environmental resource use.
  • Enhancement of resources for environmental conservation.

Unfortunately, it is contested that the objectives of inter- and intra-generational equity and livelihood security for the poor and conservation of critical environmental resources cannot co-exist with principles that are highly homocentric and seek “economic efficiency” ((Divya Badami and Kanchi Kohli, National Environment Policy 2006: Economics over environment, Info Change News & Features (August 2006).)). Some even conceive that the National Environment Policy (NEP) 2006 has strangely made itself more meaningful to the industrial sector, attempting to protect it instead of the environment ((Id.)).

There are some merits in these arguments and time will show how much we are able to reap the fruit of current environmental policies.

Environmental policy and judiciary

In India, the issues and policies related to environment had undergone a swift change over a period of time. The primary agency for bringing such change is judiciary unlike other countries where Legislature and executives are at the helms of affairs in order to plan, implement and take in hand environmental issues. The apex court has laid down new principles to protect the environment, re-interpreted environmental laws, created new institutions and structures, and conferred additional powers on the existing ones through a series of directions and judgments ((Geetanjoy Sahu, Implications of supreme courts innovations for environmental jurisprudence, Law, Environment and Development Journal 1–19 (2008). )).

As a result of increase in public sentiment towards environment, several PIL turned into a historical judgement. Proponents claim that the SC has, through intense judicial activism, become a symbol of hope for the people of India ((Judicial Activism in India – Chief Justice P.N. Bhagwati.)). While judicial activism was appreciated by some, there are other group which suggest that access of judicial activism resulted in a weapon for limiting development. Even after a stay related to an infrastructure project is vacated, or a court order gives a green light to certain project, new issues become grounds for court notices and new public interest litigation ((Power Problems Threaten Growth in India, The Wall Street Journal (2 January 2012).)).

Recent episodes suggests changing trend

Recently, the environmental policy in India has undergone a drastic change as a result of increasing arm of the UN and allied bodies and emergence of new laws. The controversy on BT Brinjal also added fuel to the fire. 

Snap shots of events depicting current environmental policy ((Indira Mukherjee, Environment and India.)):

  • The Green Action for National Dandi Heritage Initiative [GANDHI] Memorial Project was inaugurated in July, 2010 to commemorate the 80th year of Dandi March. This Rs 25 crore project is aimed at promoting Mahatma Gandhi’s vision for sustainable development in Dandi and its surrounding villages.
  • The office of the Society of Integrated Coastal Management [SICOM] was inaugurated in September. This will be the nodal agency for the Integrated Coastal Zone Management Project [ICZM] being implemented by the GOI.
  • Refusal to give clearance to Vedanta as it ignored the protection that Scheduled Tribes enjoy under Schedule V of the Constitution, Forest [Conservation] Act, the Scheduled Tribes and Other Traditional Forest Dwellers [Recognition of Forest Rights] Act and EP Act. This was truly a momentous decision in the history of India’s environment litigation.
  • Release of the National Action Plan on Climate Change [NAPCC] on 30th June, 2008. The Plan proposes to start 8 missions promoting deployment, innovation and basic research in renewable energy technologies. In alignment, the Union Budget 2010-11 announced the setting up of National Clean Energy Fund [NCEF] for funding R&D in clean technologies

Two environment tribunals and their shortcomings

The National Green Tribunal Act, 2010 was enacted to provide for a forum for efficient and expeditious disposal of cases arising from any calamity occurring while handling any dangerous substance. The Act seeks to replace the National Environment Tribunal Act, 1995 ((The Environment Tribunal under this Act has not been established))and the National Environment Appellate Authority Act, 1997 which have been in operation for sometime in the country.

National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto ((Pooja Shastry & Rashmi Bela, Law, Judiciary and Environmental Governance Need of Separate Environment Courts In India.)). The tribunal has not been constituted since last ten years. Another important shortcoming is that the tribunal can only award compensation. If it is given all the powers of civil courts, then why can’t grant injunctions, declarations etc? In addition to this, the scheme does not also grant setting up tribunal in each state.

National Environmental Appellate Authority Act, 1997 was intended to provide for the establishment of a National Environmental Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operation or process shall be carried out or shall not be carried out subject to safeguards under the EP Act, 1986. After the term of first Chairman was over, no chairman is appointed till now.

Thus, we see that National Environment Tribunal never came into existence and National Environmental Appellate Authority Act came into existence but after the term of first Chairman got over, none came in. Thus, these two Tribunals are non- functional regrettably. It is with regard to this only that a new environment court was proposed who could exercise all the powers of civil court, appellate power as well as original jurisdiction of civil court.

Conclusion/Suggestion

India does not have lack of environmental policy but proper implementation is not there. In the current scenario it becomes essential that the Indian authorities should strive to achieve a society where ideals and reality, legislation and implementation, correlate. When the authorities manage to fulfil their role, it enables corporations to better contribute to the society in a positive way ((Anne-Line Sandaker, Implementing Environmental Policies in India,  A Case Study of Scandinavian TNCs, Master’s Thesis in Asian and African Studies – South Asia (May 2009).)).

In the wake of recent damages, concerned authorities have started giving more attention towards environment but what we need is to find out newer ways to deal with old problems. Without active involvement of common people it is indeed difficult for the authorities to devise and implement proper environment policy. Hence, individual’s initiatives are of paramount importance. What we need is to adjustment not deep-seated change.

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.

OBJECT OF THE ACT

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 leader.com/Nature/569/green-court.html [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.

SALIENT FEATURES OF THE 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)).

Appointments

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)).

Tenure

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)).

Fee

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, http://www.elaw.org/system/files/How+Green+Will+be+the+Green+Tribunal.pdf)).

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), http://www.un.org/documents/ga/res/42/ares42-187.html)), 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)).

Penalty

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.

ENVIRONMENT COURTS IN OTHER COUNTRIES

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, http://www.justice.govt.nz/courts/ 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, http://www.justice.govt.nz/courts/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, http://www.justice.govt.nz/courts/environment-court/procedure-in-the-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

CONCLUSION

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.

SUGGESTION

  • 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.