National environment tribunal act

NEA, NGT , environment court establishment

1. National Environment Tribunal Act Submitted by- Adarsh Singh M.TECH 1st year Environmental Engineering Delhi Technological University 1

2. Introduction National Environment Tribunal Act (NETA)1995 was passed by the Indian Parliament as a consequence of the Rio de Janeiro Conference. In 1995, the Central Government of India established the National Environment Tribunal (under the National Environment Tribunal Act, 1995). The main objective of the tribunal was to compensate the affected who deals with the harmful substances. However, the National Environment Tribunal could not become functional. National Environmental Appellate Authority (NEAA) enacted under the Act of 1997 was enacted to hear the appeals and ensure that certain industrial operations or process in restricted areas.The said Act also had a narrow scope of its jurisdiction and functioned with full function only for three years. As a result of which National Green Tribunal Act, 2010, came into picture and the National Environment Tribunal Act and NEAA both were repealed. Source: PIB (Press Information Bureau)

3. Establishment of Environment court Never came into function was repealed when NGT came in 2010 Narrow jurisdiction was repealed when NGT came in 2010 Led to establishment of tribunal dedicated to environment cases

4. National Environment Tribunal Act 1995 The Act contains 31 sections covering five chapters and one schedule. Chapter 1 deals with important definitions. Important definitions Accident -According to Sec. 2(a), “accident” means “an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance resulting in continuous or intermittent or repeated exposure to death of or injury to any person or damage to any property or environment but does not include an accident by reason only of war or radioactivity”. Environment - According to Sec.2(d) of the Act, “environment” includes water, air and land and the inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property”

5. Hazardous Substances - According to Sec.2(f) of the Act, “hazardous substance” means any substance or preparation, which is defined as hazardous substance in the Environment (Protection) Act, 1986, and exceeding such quantity as specified by the Central Government under the Public Liability Insurance Act. 1991. Handling - According to sec 2(e) means the manufacture, processing; treatment; package; storage; transportation by vehicle, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance.

6. Compensation Chapter-II containing sections 3 to 7 provides for compensation for the death of or injury to a person and damage to property and environment According to Section 3, the owner shall be liable to pay compensation in such cases.  Section 4 makes provision to apply for the compensation. The aggrieved (victim), or legal representative of the deceased or an authorised agent of the property damaged or any representative body or organisation recognised in this behalf by the Central Govt. State Govt. or Local Authority under all or any one of the heads specified in the schedule can make an application for compensation. 

7. Section 5 confers on the Tribunal (National Environment Tribunal) to enquire or summarily reject the application. The Tribunal need not follow strictly the provision under Civil Procedure Code, 1968 and may follow the principles of natural justice. The Tribunal under Sec. 6 may issue interim orders/relief. Section 7 empowers the Tribunal to reduce the amount of relief under certain circumstances.

8. Establishment of Tribunal Chapter III containing Sections 8 to 18 deals with the establishment of Tribunal and Benches thereof. Sec 8 of the Act provides that, the Central Govt. by notification shall establish a tribunal, known as the “National Environment Tribunal” exercising powers and jurisdiction under the Act. Section 9 requires that Tribunal shall consist of a Chairperson and such number of Vice-Chairpersons, Judicial Members and Technical Members (Environmental Experts) as the Central Govt. may deem fit. Provision is made under Sec. 9 for the constitution of Benches. The Bench shall consist of one Judicial Member and one Technical Member (environmental expert)

9. Composition & Qualifications of tribunal A person who is or has been Judge of supreme court or high court, or has for at least two year held the office of Vice Chairperson is,or has been Judge of high court ,or has for at least two year held the post of secretary, or has at least for 5 year held the post of additional secretary to GOI and has adequate knowledge and experience Chairperson Vice Chairperson Technical Person Judicial Member is, or has been, or is qualified to be a Judge of high court ,or has been a member of indian legal service and held post of grade 1 for at least three years adequate knowledge or experience in administrative, scientific or technical aspect of problem related to environment. Source: As per section 10 of NETA act

10. Section 11 authorises the Vice-Chairperson to act as chairperson in the event of death, resignation etc. of the Chairperson. Section 12 fixes the term of office of the members as five years from the date on which he assumes office. The member is eligible for re-appointment for another term of five years. Sec. 13 lays down the procedure for registration and removal. The Chairperson, Vice-Chairperson or another member may by notice in writing under his hand addressed to the President, resign his office. Section 14 provides for salaries, allowances and other terms and conditions of service of Chairperson, Vice-Chairperson and other members. Section 16 confers on Chairperson financial and administrative powers. Section 17 makes provision for staff and officers to assist the Tribunal. Section 18 lays down the procedure for distribution of business amongst the Benches.

11. Jurisdiction Chapter IV containing Sections 19 to 24 deals with the jurisdiction and proceedings of the Tribunal. Section 19 lays Bar of Jurisdiction. Section 20 empowers the Tribunal to transfer cases from one bench to another. According to Section 21, the decisions are to be valid by the majority. Section 22 provides for deposit of amount payable for damage caused to the environment. The amount shall be credited to the Environmental Relief Fund created under sub-section 3 of Section 7-A of the Public Liability Insurance Act, 1991. According to Section 23, the award of the Tribunal shall be executed as a decree of the civil court. Section 24 makes provision to prefer an appeal to the Supreme Court against the award of the Tribunal.

12. Miscellaneous Provisions Chapter-V containing Sections 25 to 31, lays down miscellaneous provisions, viz. penal provisions etc. Section 25 deals with penal provisions. Whoever. failed to comply with the order of the Tribunal shall be punishable with imprisonment, which may extend to three years or with fine which may extend to ten lakh rupees or with both. According to Section 28, the members and staff of the Tribunal are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

13. The Schedule The Schedule of the Act contains the ‘Heads under which compensation for damage may claim’. It enlist 14 such scenario- Death injury or sickness loss of wages medical expenses for treatment of injury legal expenses, etc.

14. National Environment Appellate Authority Act, 1997 National Environment Appellate Authority (NEAA) was set up by the Ministry of Environment and Forests to address cases in which environment clearance is required in certain restricted areas. It was established by the National Environment Appellate Authority Act 1997 to hear appeals with respect to restriction of areas in which any industries, operations, processes or class of industries, operations or processes shall or shall not be carried out, subject to certain safeguards under the Environment Protection Act, 1986. It was passed specifically for the purpose of applying certain industries, operations or processes or class of industries, operations or processes shall be or shall not be carried out under the Environment (Protection) Act, 1986. Ministry of Environment and Forests, Government of India established NEAA to address the environment clearances and related issues required in certain restricted areas. However, the Authority become defunct and the Act repealed with the enactment of the National Green Tribunal Bill.

15. Set up in 1997, the NEAA was without a chairperson after firs appointment and was understaffed. Former Supreme Court judge, Justice N Venkatachala, was its first chairperson. He retired in 2000 and the post has remained vacant since. The vice-chairperson’s post fell vacant in 2006 and was never filled. Appeals filed before the NEAA were heard by retired bureaucrats and were usually dismissed on technical grounds such as delay in filing appeal. The NEAA panel comprises of retired bureaucrats who were greatly reluctant to hold the Ministry of Environment and Forests accountable for giving environmental clearances in violation of the law and established procedures. Shortcoming of NEAA Act, 1997

16. In 2009 Delhi high Court said: "It (NEAA) is the most non-functional tribunal we have ever came across. Despite several orders no steps have been taken by the government to appoint a chairman. It is a utter shame for NEAA which is running with only one member and subscribes to only one magazine. There is no website, no address... Where will the appellant go with his problem?” Finally, as per the provisions of the NGT Act, 2010, the National Environment Appellate Authority (NEAA) established under the NEAA Act, 1997 was dissolved and the cases pending before the NEAA were transferred to the NGT.

17. National Green Tribunal, 2010 National green Tribunal Act, 2010 was enacted to fulfil the long felt need of alternative forum to deliver speedy and inexpensive justice . It was enacted under India's constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment. The specialised architecture of the NGT will facilitate fast track resolution of environmental cases and provide a boost to the implementation of many sustainable development measures NGT is mandated to dispose the cases within six months of their respective appeals.

18. NGT act provide that tribunal, which would function under supreme court, shall have jurisdiction over all civil cases relating to environment and have powers to order relief and compensations to victims of pollution and other environmental damage, including accidents occurring while handling hazardous substances etc. The NGT has its Principal Bench at New Delhi with its circuit benches at Chennai, Bhopal, Pune and Kolkata. By setting a Green Tribunal India had became the third country that has established specialised courts to deal with environment related cases following Australia and New-Zealand, which already have such environment specialised courts.

19. Structure of NGT The Tribunal comprises of the Chairperson, the Judicial Members and Expert Members. They shall hold office for term of five years and are not eligible for reappointment. The Chairperson is appointed by the Central Government in consultation with Chief Justice of India (CJI). A Selection Committee shall be formed by central government to appoint the Judicial Members and Expert Members. There are to be least 10 and maximum 20 full time Judicial members and Expert Members in the tribunal.

20. A person who is or has been Judge of supreme court, or A person who has been chief justice of high court Chairperson Expert member Judicial Member A person who has been judge of high court Qualification and experience in relevant scientific and technological field or practical experience in dealing with environmental member

21. Powers and Jurisdiction The Tribunal has jurisdiction over all civil cases involving substantial question relating to environment (including enforcement of any legal right relating to environment).Being a statutory adjudicatory body like Courts, apart from original jurisdiction side on filing of an application, NGT also has appellate jurisdiction to hear appeal as a Court (Tribunal). The Tribunal is not bound by the procedure laid down under the Code of Civil Procedure 1908, but shall be guided by principles of 'natural justice’. While passing any order/decision/ award, it shall apply the principles of sustainable development, the precautionary principle and the polluter pays principle.

22. An appeal against order of NGT lies to supreme court, generally within 90 days from date of communication The NGT deals with civil cases under the seven laws related to the environment, these include- 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 The Public Liability Insurance Act, 1991 The Biological Diversity Act, 2002.

23. Challenges Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept out of NGT’s jurisdiction. This restricts the jurisdiction area of NGT and at times hampers its functioning as crucial forest rights issue is linked directly to environment. The NGT decisions are being challenged in various High Courts under Article 226 (power of High Courts to issue certain writs) with many asserting the superiority of a High Court over the NGT, claiming ‘High Court is a constitutional body while NGT is a statutory body’.” This is one of the weaknesses of the Act as there is lack of clarity about what kind of decisions can be challenged; even though according to the NGT Act, its decision can be challenged before the Supreme Court.

24. Decisions of NGT have also been criticised and challenged due to their repercussions on economic growth and development. The decisions given by NGT are not fully complied by the stakeholders or the government. Sometimes its decisions are pointed out not to be feasible to implement within a given timeframe. The lack of human and financial resources has led to high pendency of cases - which undermines NGT’s very objective of disposal of appeals within 6 months.

25. NGT Landmark decisions Posco case (2012) In 2012, POSCO (Pohang Iron and steel company) a steelmaker company signed a MoU with the Odisha government to set up steel project. NGT suspended order and this was considered a radical step in favour of the local communities and forests.

26. Alaknanda Hydropower case (2013) In 2013 in Uttarakhand floods case, the Alaknanda Hydro Power Co. Ltd. was ordered to compensate to the petitioner – here, the NGT directly relied on the principle of ‘polluter pays.

27. Ban on old diesel vehicle (2015) The National Green Tribunal (NGT) made it clear on Sep 14, 2017 that the ban it had imposed on 10-year-old diesel vehicles in Delhi-NCR in 2015 is here to stay. While rejecting the Centre's request to modify its earlier order, NGT said that emissions from diesel vehicles were carcinogenic. One diesel vehicle causes pollution equivalent to 24 petrol vehicles or 40 CNG vehicles. The order will definitely help clean Delhi's toxic air to some extent. But those who own old diesel vehicles will feel The pinch. The latest order not only impacts those with diesel vehicles older than 10 years or nearing that age but will also make it difficult to sell used diesel vehicles in Delhi-NCR.

28. Sri Sri’s Art of living (2017) A Bench, headed by panel chairperson Swatanter Kumar, said the Delhi Development Authority (DDA) has failed to perform its statutory functions of maintaining the ecology. It shall assess the quantum of damage and carry out the restoration work of the floodplains after the Art of Living deposited the remaining fine amount. NGT on held Sri Sri Ravi Shankar's Art of Living responsible for the damage to the Yamuna floodplains caused by the holding of the World Culture Festival in 2016 and imposed ₹5 Crore as interim environment compensation on the Art of Living Foundation for the event’s impact on the environment

29. Conclusion Environmental cases involves interpretation and assessment of scientific data. Hence, these cases require separate court, although it was well understood it took 15 years since 1995 to make it a reality. The setting up of the National Green Tribunal is a very necessary step, and definitely has helped to mitigate a rapidly deteriorating Environment in the Country.

30. Recommendations There is need for more autonomy and widen NGT’s scope for effective protection of environment in balance with human developmental activities. In order to achieve more fruitful results in each state the separate and independent environment courts should be established. However, in case of smaller States and Union Territories, one court for more than one State or Union Territory may fulfill the long felt need of an alternative forum to deliver more speedy and inexpensive justice to victims of environmental pollution. In case if it is not easy to establish a separate National Green Tribunal and in order to increase the judicial benches to deal with the environmental issues the State Pollution Control boards should be provided with the judicial powers to decide the issues on the state level. If anyone is aggrieved with the decision of the State Pollution Control board then he can approach to the National Green Tribunal within whose jurisdiction it comes under.

31. NGT act allow for 20 expert and 20 judicial members but right now only strength of 10 is sanctioned, it can be increased to expedite the cases. Sometimes decision of NGT has just restricted to imposing fine whereas harsher action should have been taken like in Art of Living case was provided

32. References National environment Tribunal act 1995 National Environmental Appellate Authority act 1997 Press Information bureau greentribunal.gov.in lawlex.org NIOS book on environmental law Ignou study notes on Environmental act law and policy

33. Thank You