Anybody and everybody can approach the NGT for civil damages arising out of non-implementation of various laws relating to the environment such as laws on air and water pollution, the Environment Protection Act 1972, the Forest Conservation Act and the Biodiversity Act. 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 shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908. The Act also ordains that no civil court shall be allowed to entertain cases which Tribunal is competent to hear.⁵ It shall be guided by principles of natural justice.⁶ The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same.

ORIGIN :

There lies many reasons behind the setting up of this tribunal. After India's move with Carbon credits,⁷ such tribunal may play a vital role in ensuring the control of emissions and maintaining the desired levels. This is the first body of its kind that is required by its parent statute to apply the "polluter pays" principle⁸ and the principle of sustainable development. The NGT Act has resulted in the repeal of the National Environment Tribunal Act (1995) as well as the National Environment Appellate Authority Act (1997). NETA was never brought into force and the NEAA’s failure could be attributed to the slackness and indifference shown by the administrative machinery.

· RIO DELARATION

The Rio de Janeiro summit of United Nations Conference on Environment and Development held in June 1992, India vowed the participating states to provide judicial and administrative remedies for the victims of the pollutants and other environmental damage.Some principles were laid down in the Rio de Janeiro summit that was incorporated in the National Green Tribunal Act 2010.

The first clause of principle10 of the Rio Declaration is that: “Environmental issues are best handled with participation of all concerned citizens, at the relevant level.”The Green Tribunal Act addresses this by defining many categories of a “person” who would have access to the courts. “Persons” include (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not (vi) trustee of a trust and (viii) every artificial judicial person.

The second clause of principle 10 of the Rio Declaration is that at the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities and the opportunity to participate in the decision making process. The Green Tribunal Act does provide procedures and details on how one can participate in the decision making process. Section 16 of the National Green Tribunal provides that :any person aggrieved by various sections of the National Green Tribunal Act and other laws may within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the tribunal provided that the tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing within the said period, allow it to be filed under this section not exceeding sixty days.¹⁰ The third clause of Principle 10 of the Rio Declaration is that “States shall facilitate and encourage public awareness and participation by making information widely available.” The Act clearly identifies ways in which the public can participate by way of how they can bring a case to the Tribunal and how they can work through the system in creative ways if necessary.

The fourth clause of Principle 10 of the Rio Declaration states that, “Effective access to judicial and administrative proceedings, including redress and remedy shall be provided.” This subsection of the Rio Declaration is definitely satisfied by the passage of this act. The Tribunal may by an order provide (a) for relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance); (b) for restitution of property damaged; and (c) restitution of the environment for such area or areas, as the Tribunal may think fit.

However in our point of view the principles of the Rio Declaration in its totality have not been fully incorporated in the Act. In relation to the first clause of Principle 10 of the Rio declaration, on the surface, this legislation seems to enhance access to justice by defining six different sub-categories of the term “person.” On the other hand, the access to justice seems to be limited since part (ii) of the definition of a person states that a Hindu undivided family qualifies as a person. If this section limits standing exclusively to Hindus as opposed to members of all of the other religions in India, then it would be quite limiting. Also, the term “undivided family” is not defined. Since the definition includes a sub-category for individuals, it appears that individuals are included. However, it is not certain as to whether unmarried couples living together (although rare) or divorced couples or couples in mixed marriages qualify. It would also be helpful to know what is meant by an association of persons and by artificial judicial persons. Similarly in relation to the second clause of principle 10 of Rio Declaration, the act does not appear to have any language included within it that relates to access to information held by the public authorities. Third clause of principle 10 of Rio Declaration similar to the case with regard to the second clause of Principle 10, there seems to be missing from the legislation any reference to access to information. On the other hand we also believe that the prong of access to justice in environmental matters is also satisfied since the decision-makers will be knowledgeable with these matters and highly trained in such a way that decisions rendered will be fair and decided by experts in the field. Like every other act this act also has its pros and cons.

ROLE OF JUDICIARY: WHAT WE HAVE DONE

The most important factor that we must consider when analyzing environmental acts creating environmental tribunals is that of the rationale which led to the creation of the environmental tribunal. There is a history of quest for environmental courts in India. Every citizen is entrusted with a duty to protect the environment by the 42^nd Amendment 1976. The purpose of the amendment was to ensure that the State and citizens are guided by environmental considerations when pursuing any activity. Justice P.N. Bhagwati, argued that, in a developing country such as India, the modern judiciary cannot afford to hide behind notions of legal justice and plead incapacity when social justice issues are addressed to it. The interpretation of the right to life¹² took a major turn when in 1985 the Supreme Court was faced with adjudging a conflict which set environmental protection issues against industrialization in the Doon Valley case.¹³ This case involved a large number of lessees of limestone quarries; the Court ordered the closure of all but eight of the quarries.¹⁴ The Court took notice of the fact that limestone quarrying and excavations of the limestone deposit affect the perennial water springs. Taking a serious view of this environmental disturbance, the Court recognized that the right to life includes the right to a wholesome environment. In 1987, the Supreme Court laid down not only principles of strict liability¹⁵ in the matter of an injury caused by the use of hazardous substances in M.C. Mehta v. Union of India¹⁶ (Oleum Gas Leak case), but also for the first time, mentioned setting up specialized environment courts.¹⁷ The Court tacitly recognized that citizens’ right to life was adversely affected by the leakage of oleum gas from the premises of Shriram Foods and Fertilizers Ltd. The Supreme Court further advocated the establishment of specialized environment courts. The demand for specialized environmental courts from the judiciary reached a crescendo with the 1998 decision of the Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayadu, wherein the Supreme Court acknowledged that both it, as well as the High Courts, was experiencing considerable difficulty in adjudicating upon the correctness of technological and scientific opinions.¹⁸ The Court, reiterating its suggestion in earlier cases, opined that ‚of paramount importance was the need to establish environmental courts, authorities and tribunals for providing adequate judicial and scientific inputs rather than leaving such complicated disputes to be decided by officers drawn from the executive. Thus, it can be said that the emergence of public interest litigation, as well as the ‚activist‛ approach of the higher judiciary, especially the Supreme Court in India, has provided an important tool for the enforcement of the fundamental right to environmental protection. While clarifying its role, the apex court has often asserted its goal is simply to uphold the constitution and ensure the statutory rights of citizens. Based on the foregoing, the Law Commission of India in 2003 proposed a structure in which environmental courts could be established at the state level with flexibility to have one court for more than one state.¹⁹ The 186th Report of the Law Commission summarized the major recommendations relating to the composition, powers and procedures of the proposed courts. The effort, with the initial suggestion of the Supreme Court in the five judge Constitution Bench judgment in the Delhi Oleum Gas Leakage case (1986), has spanned almost twenty-five years and has been subject to twists and turns, as well as half-hearted efforts such as the National Environment Tribunal Act (NETA) (1995) and the National Environmental Appellate Authority Act (NEAA) (1997). It finally culminated in the relatively progressive step of the National Green Tribunal Act (NGT Act) (2010) that received assent of the President of India on June 2, 2010, and was quickly notified.

FRAMEWORK

PASSAGE OF THE BILL

The National Green Tribunal Bill, 2009 aims to set up specialized environmental courts in the country. It will hear initial complaints as well as appeals from decisions of authorities under various environmental laws. The Tribunal shall consist of both judicial and expert members. Expert members have to possess technical qualifications and expertise, and also practical experience. The Tribunal shall hear only ‘substantial question relating to the environment’. Substantial questions are those which (a) affect the community at large, and not just individuals or groups of individuals, or (b) cause significant damage to the environment and property, or (c) cause harm to public health which is broadly measurable.

· The Judicial Remedy 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. The Act provides for an expeditious relief. It requires the Tribunal to deal with the applications or, as the case may be, appeals, as expeditiously as possible and obligates the Tribunal to endeavor to dispose of the application or, the case may be, an appeal finallywithin six months from the date of filing the application, or, as the case may be, the appeal, after providing the parties an opportunity to be heard.²⁰

Penalty:

The act empowers the Green tribunal to award compensation and unlike other environmental protection Acts, this Act bestows ample power on the Green Tribunal if its order are not complied with; the penalty may be either three years prison or up to ten crores penalty and for companies it may extend up to twenty five crores.²¹ The bill adopts a tough posture against companies²² 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. Hence this strong inclusion is diluted.

Procedure:

Tribunal is not bound by procedure laid down in the Code of Civil Procedure, 1908 and is guided by Principles of natural justice and Indian Evidence Act, 1872.

Principled Approach:

There are various principles of international environmental law like sustainable development, polluter pays principle, common concern for mankind etc. which have been incorporated in this act and thus provide for principled approach to solve environmental problems.

CRITICAL APPRAISAL

Key achievements in 2009/10

In the year 2009–10, a number of initiatives have been launched or given renewed impetus. Some salient initiatives are described below.

Climate Change

1. Announced India’s intent to reduce the emissions intensity of its GDP by 20%–25% between 2005 and 2020, thus making a major contribution to mitigating climate change.

2. Expert Group on Low Carbon Strategy for Inclusive Growth established/set-up under the Planning Commission to develop a roadmap for low-carbon development.

3. Hosted Delhi high level conference on ‘Climate Change: Technology Development and Transfer’, that adopted the ‘Delhi Declaration’, which became a key input in the international climate negotiations.

4. Released India’s GHG Emissions profile—a summary of five independent studies—which show that India will remain a low-emission economy even in the year 2030.

5. Convened Ministerial Meeting of BASIC countries – Brazil, South Africa, China and India—to discuss collaboration in climate change negotiations and broader collaboration.

6. Launched the Indian Network for Climate Change Assessment (INCCA), in October 2009, as a network-based programme to make science, particularly the ‘3 Ms’—Measuring, Modelling and Monitoring—the essence of our policy-making in the climate change space. It brings together over 120 institutions and over 220 scientists from across the country.

Compensatory Afforestation Management (CAMPA)

The Supreme Court directed creation of a Compensatory Afforestation Fund, in which all funds received from user agencies towards compensatory afforestation were to be deposited. However for seven years between 2002 and 2009 the fund could not be accessed by any of the states because of a disagreement on the manner of its disbursement:

1. To resolve the deadlock the MoEF moved the Supreme Court to give effect to an adhoc CAMPA authority that would in the interim period monitor discharge and monitor the use of funds. It was agreed that ultimately this body would give over control to the state CAMPAs.

2. By the end of January 2010, following national level sessions on the disbursement and use of CAMPA, 22 states/UTs have operationalised their accounts.

3. Out of the received amounts of approximately 13,000 crore in the ad hoc CAMPA, the state CAMPAs have so far been allocated approximately Rs 1000 crore.

Mission Clean Ganga

1. The ‘Mission Clean Ganga’ Initiative was launched with the first meeting of the National Ganga River Basin Authority (NGRBA) held on 5 October 2009 under the chairmanship of Prime Minister. It was decided that under ‘Mission Clean Ganga’, no untreated municipal sewage and industrial effluents will flow into the river Ganga by year 2020. The allocation for the NGRBA was doubled to Rs 500 crore for the financial year 2010-11.

2. New projects worth Rs 1394.11 crore were cleared, including projects worth Uttar Pradesh (Rs 800 crore), Bihar (Rs 440 crore), West Bengal (Rs 105 crore) and Uttarakhand (Rs 45 crore).

These include projects for development of sewer networks, sewage treatment plants and sewage pumping stations, electric crematoria, community toilets, development of river fronts, resuscitation of canals, and public campaigns.

3. These measures signify the importance and urgency that Ministry is placing on the River Ganga, which has such an important place in our culture, and which is so central to the livelihoods of millions of our people.

4. In addition to these measures, the Ministry is negotiating a major loan of about US$ 1 billion with the World Bank for Ganga cleaning, which is progressing on track.²³

CONCLUSION:

“National Green Tribunal Act is a path breaking legislation which is unique in many ways. It will provide a new dimension to environment adjudication by curtailing delays and imparting objectivity. The Tribunal, given its composition and jurisdiction, including wide powers to settle environment dispute and providing relief, compensation including restitution of environment, is envisaged to be a specialized environmental adjudicatory body having both original as well as appellate jurisdiction.”²⁴ National Green Tribunal is thus a new beginning for India's struggle between development and environment. Despite some inherent flaws, NGT is a significant initiative by the Government and the rightful implementation of the law would certainly usher the country towards the path of Sustainable Development and guarantee a harmonious relationship between the environment and society. The establishment of NGT provides us with an opportunity to reorganize our thoughts on how an institution is to function. The Gandhian approach to environment is encapsulated in “the earth has enough resources for our needs, but not for our own greed.”

REFERENCES

· http://www.cseindia.org/node/2900

· http://earth911.com/news/2010/10/21/india-sets-up-green-tribunal-to-try-environmental-crimes/

· http://www.downtoearth.org.in/content/national-green-tribunal-stays-thermal-power-plant-gujarat

· http://www.downtoearth.org.in/content/green-tribunal-suspends-environment-clearance-scania-sponge-iron-plant-raigarh

· http://inece.org/conference/9/papers/Bakshi_India_Final.pdf

1. The Act, in Section 1(2), stipulates that it shall come into force on such date as the Central Government by notification in official Gazette appoint. The Central Government has not yet issued any notification in this regard.

2. Article 21 reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

3. The Environment Tribunal under this Act has not been established.

4. Jairam Ramesh, Union Minister of State for Environment and Forests told Rajya Sabha that the tribunals principal bench will beat Bhopal, Times of India, May 6, 2010.

5. See Section 29 of National Green Tribunal Act.

6. See Section 19 (1) of National Green Tribunal Act

7. It is a generic term for any tradable certificate or permit representing the right to emit one tone of carbon dioxide or the mass of another greenhouse gas with a carbon dioxide equivalent to one tone of carbon dioxide

8. Is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment

9. Is a pattern of growth in which resource use aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come

10. See section 16 of National Green Tribunal Act.

11. See section 15(1) of National Green Tribunal Act 2010.

12. Article 21of the Indian Constitution

13. Rural Litig. & Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1985 S.C. 652

14. 1985(1) S.C.A.L.E. 408.

15. Propounded in the case of Ryland v. Fletcher (1868) LR 3 HL 330

16. A.I.R. 1987 S.C. 965

17. M.C. Mehta v. Union of India, A.I.R. 1987 S.C. 965

18. Andhra Pradesh Pollution Control Bd. v. M.V. Nayudu (1999) 2 S.C.C.

19. Law Commission of India, 186th Report on Proposal to Constitute Environment Courts 142 (2003), http://lawcommissionofindia.nic.in/reports/186th%20report.pdf.

20. Section 18(3), National Green Tribunal, 2010

21. Section 26(1), National Green Tribunal, 2010

22. Section 27, National Green Tribunal Act

23. Nivit Kumar Yadav National Green Tribunal A new beginning for environmental cases Centre for Science and Environment.htm

24. Dr Abraham P Meachinkara, Advocate, High Court, Kerala.

Received on 25.01.2013

Modified on 12.02.2013

Accepted on 20.02.2013

Research J. Humanities and Social Sciences. 4(1): January-March, 2013, 101-105