Role of NGT in ENVIRONMENT PROTECTION

NGT

1. POWER POINT PRESENTATION SUBMITTED TO UILS, PANJAB UNIVERSITY, CHANDIGARH SUBMITTED BY: RISHU MALA B.A. LL.B LL.M ROLE OF NATIONAL GREEN TRIBUNAL VIS-À-VIS ENVIRONMENT PROTECTION IN INDIA

2. CONTENTS INTRODUCTION OBJECTIVES OF STUDY RESEARCH QUESTIONS HYPOTHESIS ENVIRONMENT PROTECTION UNDER CONSTITUTION OF INDIA NATIONAL GREEN TRIBUNAL ACT, 2010 CONCLUSION RECOMMENDATIONS REFERENCES

3. 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 . The need to set up special environmental courts was highlighted by the Supreme Court of India in a series of judgments, the first one being in 1986 in the  Oleum Gas Leak case , and by the Law Commission of India in its 186 th  report in 2003 . The Court was of the opinion that environmental cases raised issues, which required technical knowledge and expertise, speedy disposal, and continuous monitoring, and therefore these cases should decided by special courts with necessary expertise and technical assistance . INTRODUCTION

4. In order to satisfy the need of specialized courts to deal with environmental issues the Parliament passed the National Environmental Tribunal Act, 1995, then in 1997, The National Environment Appellate Authority Act, 1997 was enacted under which the National Environment Appellate Authority was set up. The National Environment Tribunal Act, 1995 and The National Environment Appellate Authority Act, 1997 which provides for strict liability for damages caused by accident occurring while handling hazardous substance and to provide relief and compensation to the victims and for hearing appeals against order of grant of environmental clearances under the Environment Protection Act, 1986, functioned till October, 2010 and then in 2010 got repealed by the present National Green Tribunal Act, 2010 . There were several problems in the functioning of these authorities and were never implemented effectively due to their limited mandate.

5. Then the Government of India introduced The National Green Tribunal Bill , 2009 in Lok Sabha on 31st July 2009; which provides for the establishment of a Green Tribunal. The bill was passed, in May 2010, and became The National Green Tribunal Act, 2010, the same has finally been launched on 19 th October, 2010. This special court would deal with cases related to environmental protection and conservation of natural resources and forests. The present NGT replaced the earlier existing National Environment Tribunal and The National Environment Appellate Authority. NGT Act provides that the tribunal (NGT), which would function under the Supreme Court, shall have jurisdiction over all civil cases relating to environment and have powers to order relief and compensation to victims of pollution and other environmental damage, including accidents occurring while handling hazardous substances etc. NGT has helped in speedy disposal of cases of environment concern .

6. The NGT has it’s Principal Bench at New Delhi with its circuit benches at Chennai, Bhopal, Pune and Kolkata all over the country. Presently Justice Adarsh Kumar Goel has been appointed to the post for a term of five years as the Chairperson of NGT. There are also other members in the Tribunal, either a judicial member or environmental expert. Tribunal heard all the pending cases of environmental concern and the genuine PIL’s. Any and every citizen, Non Governmental Organizations or any public interested person on behalf of the general public has the right to approach the tribunal against any entity with complaints of breach of environmental laws and can approach the Tribunal to claim civil damages arising out of inadequate implementation of environment laws. By setting a Green Tribunal India had became the third country that has established specialized courts to deal with environment related cases following

7. Australia and New-Zealand , which already have such environment specialized courts. Before the Green Tribunal was set up, the normal courts were responsible for deciding on cases arising due to environmental issues. Due to this approximately 5000 cases, in various High Courts and District Courts, were awaiting judgments. All those cases at that time were transferred to the Green Tribunals of the concerned jurisdiction.

8. To effectively understand the current landscape of Environment Law in the Country. To effectively appreciate the global consensus and inherent issues in International Environmental Law. To explore the need for setting up a Special Environmental Court in addition to the National Green Tribunal. To understand the dynamics of the National Green Tribunal. To find out the impact of the NGT in acquiring the right to get clean environment. To understand the effectiveness of the NGT, identify drawbacks and suggest changes. To spread awareness about working of NGT . Objectives of study

9. Whether , there was a need for a separate special environmental courts (NGT) or not? To analyze whether, the ordinary courts are equipped for dealing with highly technological or scientific data that may come forth in an environmental dispute? Whether , tribunals are playing an effective or vital role in protecting environment or not? Whether , the present National Green Tribunal Act, 2010 requires an amendment or not? Research Questions

10. “Establishment of National Green Tribunals in India is a necessary step, and has helped to mitigate a rapid deterioration of Environment in the Country.” Hypothesis

11. ENVIRONMENT PROTECTION UNDER CONSTITUTION OF INDIA Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health being primary duties. The improvement of public health also includes the protection and improvement of environment without which public health cannot be assured . Article 48 deals with organization of agriculture and animal husbandry. It directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. In particular, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other cattles .

12. Article 48A provides that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country ”. Article 51A(g ), provides that “It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures .” M.C. Mehta vs. Union of India (Vehicular Pollution in Delhi city Case) It was held to be the duty of the Government to see that the air did not become contaminated due to vehicular pollution. The Apex court again confirming the right to healthy environment as a basic human right and stated that the right to clean air also stemmed from Article 21 which referred to right to life. This case has served to be a major landmark because of which lead-free petrol supply was introduced in Delhi and a complete phasing out of 5 years old commercial vehicles was directed by the courts .

13. Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh In this case, the representatives of the Rural Litigation and Entitlement Kendra, Dehradun wrote to the SC alleging that illegal lime stone mining in the Mussorie -Dehradun region was causing damage to the fragile eco-systems in the area. The Court treated the letter as a public interest petition under Article 32 of the Constitution. And also several committees have been appointed for the full inspection of illegal mining sites. All the committees came at the conclusion that the lime stone quarries whose adverse effects are very less, only those should be allowed to operate. Therefore , the Court ordered the closure of a number of limestone quarries. Although the Court declares it as violation of fundamental right under Article 21 of the Constitution and admitted the adverse effects to the life of people.

14. In Subhash Kumar vs. State of Bihar- (1991) 1 SCC 598 , the Supreme Court held that right to life is a fundamental right under Art. 21 of the Constitution and it include the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws a citizen has recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to life . In M. C. Mehta vs. Union of India 1987 SCR (I) 819 (the Oleum Gas Leak case) , the Supreme Court established a new concept of managerial liability – ‘absolute and non-delegable’ – for disasters arising from the storage of or use of hazardous materials from their factories. The enterprise must ensure that no harm results to anyone irrespective of the fact that it was negligent or not .

15. In Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715 , the Supreme Court held that industries are vital for the country’s development, but having regard to pollution caused by them, principle of ‘Sustainable Development’ has to be adopted as the balancing concept. ‘Precautionary Principle’ and ‘Polluter Pays Principle’ has been accepted as a part of the law of the country . In Indian Council of Enviro -Legal Action vs. Union of India, 1996 3 SCC 212 (the Bichhri pollution case), following the decision in the Oleum Gas leak case and based on the polluter pays principle, the polluting industries were directed to compensate for the harm caused by them to the villagers in the affected areas, specially to the soil and to the underground water. Enunciating the doctrine of ‘ Public Trust ’ in M. C. Mehta vs. Kamal Nath (1997) 1 SCC 388 , the SC held that resources such as air, sea, waters and the forests have such a great importance to the people as a whole that by leasing ecologically fragile land to the Motel management, the State Government had committed a serious breach of public trust .

16. KEY POINTS OF 186 th REPORT OF LAW COMMISSION OF INDIA ‘ Environment Courts’ should be constituted in each state, and also stated that as under Article 253 read with Entry 13 list I of VII that the parliament have exclusive jurisdiction to enact law for the purpose of establishment . No powers of Judicial review as under Article 226 , but there can be provision for appeal to the Supreme Court. These Courts must be established to reduce the pressure and burden on the High Courts and Supreme Court . These Courts will be Courts of fact and law, exercising all powers of a civil court in its original jurisdiction The Court shall not be bound to follow (CPC) Civil Procedure Code and the rules of Evidence under the Indian Evidence Act, 1872 . The Court should follow the principles of natural justice, and should apply the Doctrine of Strict Liability, Doctrine of Public Trust, and would work under principle of Polluter Pays Principle and Precautionary Principle.

17. NATIONAL GREEN TRIBUNAL ACT, 2010 An Act to provide for the establishment of a National Green Tribunal 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 . Main objectives of National Green Tribunal, under the Act of 2010 are: enable faster resolution of cases pertaining to protection of environment and conservation of forests; disposal of the cases relating to environment protection and conservation of forests and other natural resources. All the previous pending cases will also be heard by the Tribunal; enforcement of all legal rights relating to the environment and environment protection provide compensation and relief to effected people for damage of property .

18. Members of the Green Tribunal include the Chairperson full time Judicial Members (not less than 10 and maximum 20) full time Expert Members (also not less than 10 and more than 20 ) The chairperson has been given the freedom on inviting any expert, from outside, to assist the Tribunal in any particular case. The chairperson is appointed by the Central Government in consultation with the Chief Justice of India. Judicial and expert members are appointed on recommendations by the Selection Committee . Chairperson: A person who is or has been a Judge of the Supreme Court or Chief Justice of a High Court. Judicial Member: A person who is or has been a Judge of a High Court Expert Member : Qualification and experience in relevant scientific and technological field or practical experience in dealing with environmental matters. Composition and Qualifications of the NGT

19. Powers of NGT With the advent of NGT, Act all the civil courts are barred from entertaining the matters relating to Environmental Issues. And only NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following: 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.

20. PENALTIES Whoever fails to comply with the order or award or decision of the Tribunal under the Act , he shall be punishable with imprisonment for a term which may extend to 3 years , or with fine which may extend to the sum of 10 crore ,or with both and in case the failure or contravention continues , with additional fine which may extend to 25,000 Rs . for every day during which such failure or contravention continues after conviction for the first such failure or contravention: Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under the Act, such company shall be punishable with fine which may extend to 25 crore Rupees , and in case the failure or contravention continues, with additional fine which may extend to 1 lakh Rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.

21. SOME NOTEABLE ORDERS

22. NGT ON GANGA REJUVENATION On July 13, 2017 the National green Tribunal prohibited dumping of waste within 500 meters of the Ganga while declaring an area of 100 meters from the edge of the Ganga between Haridwar and Unnao as ‘No Development Zone’. It also imposed an environment compensation of Rs . 50,000 for dumping waste in the river.

23. YAMUNA CONSERVATION ZONE A division bench of Uttarakhand High Court has declared that rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person.

24. BAN ON OLD DIESEL VEHICLES 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. 

25. The National Green Tribunal (NGT) on 14 Feb , 2018 sought the Archaeological Survey of India’s (ASI) response on a petition which alleged inaction on the part of Taj Trapezium Zone (TZZ). It claimed that quality of air has deteriorated which has worsened the condition of Taj. The Bench headed by judicial member Raghuvendra S. Rathore , directed ASI to reply by March 12. The petitioner, Agra resident Raman, said, “Due to non-functioning of the TZZ, there has been a rapid decline in air and water quality in TZZ area thereby degrading the environment around the Taj.” The petition had sought for directions to U.P. government, TZZ Pollution Authority and Agra Development Authority to ensure the compliance of specific emission standards by motor vehicles and compliance of latest fuel quality standards. NGT seeks response on Taj pollution TURNING GREEN Taj the CROWN

26. NGT tells Posco not to cut trees until forest clearance POSCO (formerly Pohang Iron and Steel Company) is a South Korean steel-making, South Korea . On March 30, 2012, the National Green Tribunal held in Prafulla Samantra and Anr. vs Union of India and Ors . that the 31.1.2011 final order of the Environment Ministry – permitting the POSCO project to go ahead with certain conditions – should be suspended until a full review of the project can be undertaken. The NGT Bench consisted of Justice C.V. Ramulu , Judicial Member, and Dr. Devendra Kumar Agarwal, Expert Member. The tribunal has observed that, “A close scrutiny of the entire scheme reveals that a project of this magnitude particularly in partnership with a foreign country has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered .”

27. NGT holds Sri Sri’s Art of Living responsible for damage to Yamuna floodplains 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.

28. NGT directed authorities in NCR to impose fine on anyone caught burning wastes i.e. garbage , leaves, plastic, rubber or other items in open areas . The bench noted that “it is on record” that while burning of garbage and other waste was not the only source of pollution, it accounted for “29.4% of air pollution, with regard to PM 10”. It also noted that burning of waste emitted pollutants, some of which were even carcinogenic . Waste segregation It further held that non-biodegradable waste and non-recyclable plastic should be segregated from the landfill sites and used for construction of roads and embankments in all road projects. NGT bans open waste burning in Delhi Announces a fine of Rs . 25,000 on each incident of bulk waste burning

29. CONCLUSION NGT which was established in 2010 by an act of parliament is a statutory body having judicial powers to expedite cases of Environmental protection and which follow principles of natural justice and is not bound by civil procedure laws. It is evident from the study of working of National Green Tribunal that 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 . NGT makes one more innovation by providing strict penalty for non-observation of the order of the Tribunal. This will allow the implementation of the orders of the tribunal.

30. Thus, the Hypothesis is affirmed to be true i.e. “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.” It can be proved when we discussed respectful quick decisions NGT has taken after its establishment i.e. Ban of diesel vehicles more than 10 years Decision on protection of Indian rivers (Yamuna, Ganga etc .) Slapping fine on Art of living for violating environmental laws Cancellation of clearance of Coal blocks in Chhattisgarh forest Imposing fine on burning waste in Open Highlighting Bellandur lake pollution .

31. RECOMENDATIONS 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.

32. It is not only the duty of the Government or the Judiciary to work for the protection of the Environment, unlike the various People’s Earlier Movements ( Chipko Andolan , Narmada Bachao Andolan , Tehri Bandh Virodhi Andolan etc. ) the public too has to work for preservation of Environment for future generation and for the protection of Environment. 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. 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. Environmental activist and NGOs can be made to work with NGT. The Precautionary Principle, Principles of Strict Liability, Public Trust and Sustainable Development should be followed strictly in order to achieve Environmental Justice.

33. REFERENCES News paper analysis National Green Tribunal Act, 2010. Commentary on NGT by Dutta Ritwick  Livelaw.com www.legalserviceindia.com/ lawlex.org www.indiaenvironmentportal.org.in 186 th report of Law commission of India www.greentribunal.gov.in /

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