Article by CEL on "Three years of National Green Tribunal"

National Green Tribunal: Three years of Revolutionary Jurisprudence

The Indian Constitution, as a part of its Directive Principles of State Policy, states that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country,” and bestows upon the citizens the duty to protect the environment, “it shall be the duty of every citizen of India … to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.” While these words might be an integral part of our Constitution, environmental degradation is one of the most visible and threatening reality that we face at the present.

Climate change threatens our future existence as we speak of it right now. Organisations like World Wide Fund for nature (WWF) have been working in India for environmental conservation against illegal trading, Pollution, Climate change issues and other factors but the lack of awareness and implementation of laws works as a constant deterrent to our work. While we have stringent laws in place the Supreme Court itself highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. After a lot of deliberation for an appropriate environment tribunal which would give exclusive attention to cases related to environmental protection, conservation of forests and other natural resources, The National Green Tribunal (NGT) was founded on 18th October, 2010 under the National Green Tribunal Act, 2010.

On its third anniversary, Centre for Environment Law (CEL) takes inspiration from the Green Tribunal’s allegiance to Environment Protection. It has been an immense learning experience for us to see how environment laws have been interpreted in the current scenario and policies changed at the behest of the Green body. The Judgements have set a precedent to demonstrate the importance and need for change in the environment sector.

The present chairperson, Justice Swatanter Kumar, was appointed Chairperson of the NGT on 20th December, 2012 following a tumultuous phase fraught with resignations by expert members, judges and acting Chairperson Justice Naidu due to the lack of infrastructure and facilities. The period after his appointment has seen a visible change in the way the cases are dealt with. The judgements have become stricter in their approach. The Tribunal has not been lenient to government authorities and the MoEF. In the recent past, it has even issued warrants against high profile government authorities like the Commissioner of Delhi Police and Environment Minister of Odisha. Justice Kumar in the Western Ghats case pulled up the MoEF for not filing its report on the Gadgil Report. He stated "We certainly expected better standards from the MoEF and compliance of directions issued by us. From beginning of April, this year, we have been going on with this process (of waiting for environment ministry's report). Since then you (MoEF) have not done anything. You had both reports with you since then..."

On a more positive note, over the last 3 years, the NGT has adjudicated over 200 cases and has successfully managed to dispose off most of the cases in the six months that was stipulated at the beginning.

The Posco Case is one of the most important cases in NGT’s history. The Order to suspend the establishment of the 12 MTPA capacity steel plants in Odisha came as a radical step in favour of the local communities and forests. While the case is still going on in the court, it is worth mentioning that the Tribunal has stood its ground to support sustainable development and valued local communities above economic profit from the project.
However the court has also passed judgements in favour of industries when the scale tips towards economic development. The Sterlite industries judgement warranted the need for sustainable development. The tribunal passed an order in favour of the industries and stated that “environmental restrictions must operate with all their rigour but no action should be suspicion-based which itself is not well-founded”.

The Goa foundation case was a landmark case that established NGT’s jurisdiction in all civil cases which involve a substantial question of environment. The petition sought protection of the Western Ghats and prayed for directions to the respondents to exercise the powers conferred upon them under the enactments stated in Schedule I to the National Green Tribunal Act, 2010 (for short “the NGT Act”) for preservation and protection of Western Ghats within the framework, as enunciated by the Western Ghats Ecology Expert Panel in its report dated 31st August, 2012. The Tribunal directed the MoEF to file its reply on the report within 4 weeks.

Finally, the Sand Mining Order has been the latest victory of NGT. The Tribunal put a ban on all forms of Illegal River and Ocean bed sand mining which were rampant across the country due to the sand mafia's influence over the sand market. The Tribunal, in a series of orders banned the mining and called upon state authorities to show cause why ‘illegal sand mining had been going on without any environment clearances’. While the case is still going on, there has been severe backlash from states against the ban calling it ‘judicial over reach’ and a reason for increased black marketing of sand.

The last three years have brought about a sea of change in the way the Tribunal has functioned. While the beginning saw a number of resignations and lack of proper infrastructure, the last one year saw the tribunal’s jurisdiction being challenged by not only litigants but even the Ministry of Environment and Forests (MoEF).

In an affidavit submitted to the Supreme Court, MoEF stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The Supreme Court even threatened to stay the operation of the tribunal due to this hostile approach of the ministry. The affidavit was later withdrawn. However, it reflects the government’s discerning attitude towards the Tribunal.

It is important to observe that there is a very sensitive line between the orders passed by the NGT and those of the Supreme Court. NGT has succeeded in bridging the gap between a Tribunal and the Apex Court of the country. The Judgements are particularly focused on the three principles of Environment legislation – Polluter Pays, Precautionary Principle and most importantly Sustainable Development. Government bodies like MoEF should take this opportunity provided by the tribunal to take cognizance of these matters and restructure Environmental laws.

CEL takes honour in bringing to you the proceedings and developments of NGT in the form of the Green Tribunal Digest and comprehensive Case summaries enabling ease of access for anyone who wishes to use them. During the inauguration of NGT at Faridkot House recently, the Vice President of India, Shri. Hamid Ansari quoted CEL and said “the Centre for Environment Law at Worldwide Fund for Nature-India has described the commencement of the National Green Tribunal as a giant step forward towards achieving environmental democracy. After observing the recent proceedings of the Tribunal and reading its previous judgments, the Centre has also complimented the Judges and Expert Members for having achieved their mission of maintaining the precarious balance between environment and sustainable development in a majority of their cases.” We firmly believe that this approach of the Tribunal will be a revolutionary step for the judiciary and an even greater measure towards environment protection.