NATIONAL GREEN TRIBUNAL

NATIONAL GREEN TRIBUNAL

By K P C Rao.,
LL.B.,FCS., FICWA.,

practising company secretary,

Kpcrao.india@gmail.com

The National Green Tribunal (NGT) Bill was passed by the Lok Sabha on 30^th April, 2010 seeks to create special courts for environmental matters. The NGT comes in response to the 186th Report of Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003. This report had noted, "the National Environmental Appellate Authority (NEAA) constituted under the NEAA Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. The Supreme Court had also suggested for setting up of  special tribunals to address a  large number of environment-related cases pending in courts.

The Bill envisages the setting up of a national tribunal, a judicial body exclusively to deal with environmental laws and to provide citizens a right to environment. It would deal with all environmental laws on air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act. In keeping with the standing committee recommendations, the decisions of the tribunal can be appealed against in the Supreme Court. The bill as passed by the Lok Sabha balances the number of judicial and expert members, 10 each, with the authority to break a deadlock vesting with the chairperson of the tribunal. The bill now specifies territorial jurisdiction. The Tribunal will have four benches across the country. The main Bench of the tribunal will be set up in Bhopal, “the site of humanity's one of the worst industrial tragedies.” according to Environment minister, Mr. Jairam Ramesh. He also said, it will follow a circuit approach to enable easy access for people “Courts will go to the people. People won't have to come to the courts,” With this effort, India would join Australia and New Zealand, which have such specialised environment tribunals.

The NGT Bill, 2009 is meant to replace NEAA Act of 1997 and NET Act of 1995. It appears that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal (NET) Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament. The Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are on-functional and remain only on paper."

Highlights of the NGT

1)     The National Green Tribunal Bill, 2009 aims to set up specialised environmental courts in the country.

2)     The Bill replaces the existing National Environmental Appellate Authority and has wider jurisdiction than the NEAA. It will hear initial complaints as well as appeals from decisions of authorities under various environmental laws.

3)     The Tribunal shall consist of both judicial and expert members. Judicial members must have been judges of the Supreme Court or High Courts. Expert members have to possess technical qualifications and expertise, and also practical experience.

4)     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.

Key Issues and Analysis

1)     The criteria to determine what a ‘substantial question related to the environment’ are open to interpretation.

2)     The Bill may reduce access to justice in environmental matters by taking away the jurisdiction of civil courts. All cases under laws mentioned in the Bill will now be handled by the Tribunal which will initially have benches at only four locations.

3)     The Bill does not give the Tribunal jurisdiction over some laws related to the environment.

4)     The qualifications of judicial members of the Tribunal are similar to that of the NEAA. The government has been unable to find qualified members for the NEAA for the past three years. The Green Tribunal Bill gives an explicit option to the government to appoint members with administrative experience as expert members.

Features of the proposed National Green Tribunal compared to the NEAA

The National Green Tribunal will replace the existing National Environment Appellate Authority (NEAA). The features of the Tribunal proposed by the Bill are compared with the existing provisions of the NEAA Act, 1997 in the following table:

Features	National Green Tribunal	NEAA
Types of Complaints	Will hear initial complaints as well as appeals.	Only appeals from orders granting environmental clearances by the Ministry
Jurisdiction over	Substantial questions relating to environment under the following laws: 1)     Water (Prevention and Control of Pollution) Act, 1974. 2)     The Water Cess Act, 1977. 3)     The Forest (Conservation) Act, 1980. 4)     The Air (Prevention and Control of  Pollution) Act, 1981. 5)     The Environment (Protection) Act, 1986. 6)     The Public Liability Insurance Act, 1991. 7)     The Biological Diversity Act, 2002.	Orders granting environmental clearances
Types of relief	Relief for damage suffered, compensation, and ordering measures to remedy the damage	Orders as the Authority thinks fit.
Penalty for not complying with the Tribunal’s orders	3 years imprisonment and/ or fine of Rs 10 crores for individuals; Rs 25 crores for companies	Imprisonment for 7 years and/or fine of up to one lakh rupees
Members and their qualifications	1)     Chairperson or Judicial members (number to be notified by central government): Former or current judge of the Supreme Court or High Court; 2)     Expert Members (number to be notified by central government): a)     M.Sc degree with a Doctorate, or a Masters Degree in Engineering/Technology with at least 15 years of practical experience in the field of environment and forests.  or b)     has to have administrative experience of 15 years in environmental matters in the government, or in a reputed national institution.	1)    Chairperson: Judge of the Supreme Court or a High Court. 2)    Vice-Chairperson: Level of a Secretary to the Government, and has to have experience in environmental matters. 3)    Members: Professional knowledge or experience pertaining to conservation, environmental management, law or planning and development.
Persons who can file complaints	a)     The person sustaining the injury, b)     owner of damaged property, c)     legal representatives of the deceased, if death has resulted from the damage, d)     an authorised agent, e)     representative body or organization functioning in this field, f)      central or state government, or authorities under their control.	Any person aggrieved by an order granting environmental clearance.
Procedure	a)     Civil Procedure Code: Not applicable. b)     Natural Justice: Applicable. c)     Evidence Act: Rules of evidence under the Act are not applicable.	a)     Civil Procedure Code: Not applicable. b)    Natural Justice: Applicable. c)     Evidence Act: Applicable

The birth of NGT is a consequence of a “reformed approach of the Government to environmental governance”, and in the right direction to address about 5,600 environment related cases pending in the courts, provided that the proposed body should not be made parking bay of retired bureaucrats and technocrats, who care little for forests, animals, soil, air and water.

Sources: The National Green Tribunal Bill, 2009; The National Environment Appellate Authority Act, 1997.

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                       [Published in Circuit Magazine (Monthly), ICWAI, May, 2010]