Env Pro Final

SESSION 2012-2017

E Environmental Law

Under the Guidance of: Mr. Hrishikesh Manu Lecturer (Law)

Submitted By: Shweta Anand Roll no. 814 VII Semester, Section –  Section –  B  B

ACKNOWLEDGEMENT

I express my deepest sense of gratitude to my reverend guide Hrishikesh Sir, CNLU, Patna for his countenance advice, adherent interest and pain taking nature. He spent no pains in correcting and expertly evaluating my project work.

It is pleasant opportunity to pay my regards and sincere thanks to Sir for his valuable support, guidance and immediate help whenever I approached him.

Finally, I wish to thanks my parents and colleagues for their pleasant cooperation, support and encouragement.

SHWETA ANAND

VII Semester, Section –  Section  –  B  B CNLU, Patna

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TABLE OF CONTENTS

Chapter No.

Particulars

Pg

1.

Introduction

2.

Research Object and Methodology

3.

Source of Data……………………………………………

4.

Historical Background of Environment Courts In India

5.

………………………………………… …………..…..

…………………………………………………

04 05 05

06

Green Courts Preceding the NGT: Where Did It Go Wrong?

……………………………………………..

6.

Paradigm of

………………..

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7.

A Critical Appraisal: Comments and Suggestion …

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8. 9.

Green

Ad judication !

0

 The Concluding Words Bibliography

……………………………

21

………………………………………….

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Twenty-six years after the world’s worst industrial disaster in Bhopal, India has a new environment tribunal, for “effective and expeditious disposal of cases relating to environment  protection” and giving relief and compensation for damages. Expressing agony over the verdict, which amounted to less than a slap on the wrist for causing the deaths of many people, Mr. Jairam Ramesh, the

former Minister Environment and Forests, hopes to plug the holes in India’s

environmental defense armor through the recent statute.

India has become the third country in the world, after Australia and New Zealand, to come up with a NGT. The National Green Tribunal Act got the assent of the President on June 2, 2010. It  provides for the establishment of National Green Tribunal, a special fast-track court for speedy disposal of environment-related civil cases. Supreme Court retired Judge Justice Lokeshwar Singh Panta has been appointed as its Chairperson. The enactment of the law takes into account the (i) United Nations Conference on the Human Environment  which took place at Stockholm in June, 1972 and also the (ii) United Nations Conference on Environment and Development  which took  place at Rio de Janeiro in June 1992, in both of which India was a participant, (iii) the judicial  pronouncements in India construing the right to healthy environment as a part and parcel of the right to life guaranteed under Article 21 of the Constitution, to constitute the Tribunal conferring the jurisdiction to decide on environmental issues, considering the “involvement of multidisciplinary issues” relating to environment.

Research Object

This project discusses the National Green Tribunal Act, 2010. The objective of the research is to understand the background for the creation this new Tribunal, the need for it, its objectives, the system it envisages, the plus points and lacunae inherent therein. The project primarily focuses on discussing the provisions of the statute thoroughly so as to point out the benefits it carries along with and the maladies it further. The research also accentuates upon what reforms need to be imbibed in the law, by putting forward some fruitful suggestions to this effect, so that this new concept may not reduce to mere paper tiger like earlier environment tribunals.

Methodology

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The research methodology is doctrinal in nature. Source of Data

Library and Internet are main sources. Relevant statute, reports, books, case laws and research articles have been referred.

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A great Judge emphasized the imperative issue of environment said that he placed Government above big business, individual liberty above Government and environment above all. Such is the 1

importance of Environmental Courts as envisaged by the Supreme Court. Today, we have lots of environmental cases pending before the Courts in our country. Considering the fact that the every day of pendency of the case means greater loss to the ecology, in order to deal with this anomaly the constitution of specialized ‘environmental courts’ felt very essential. Institutional fatigue, lack of conceptual clarity, absence of ‘think global, act local’ approach are the other considerations. However, among all there was one pertinent and urgent: the confluence of law and science. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve 2

disputes finally and quickly.   Uncertainty, resulting from inadequate data, ignorance and indeterminacy, is an inherent part of science. But it becomes a problem when scientific knowledge is institutionalized in policymaking or used as a basis for decision-making by agencies and Courts.

Therefore, inadequacies in the record due to uncertainty or insufficient knowledge may not be 3

 properly considered.   Thus, it is obvious that the opinions as to science which may be placed  before the Court keep the Judge always guessing whether to accept the fears expressed by an affected party or to accept the assurances given by a polluter . Since environment disputes involve scientific colour, a decision based on apparently good evidence may have serious fallacies. In 4

Vincent v. UOI  which involved the banning of certain drugs the court observed that the court was in a dilemma as to consider the view of the petitioners or the assurances of the polluter. The Court felt that once the experts had approved or disapproved the drugs, the Court will not go into the correctness of their decision. The Supreme Court made an effort to refer the issues to an 5

independent committee of experts in  Dr. Shivrao v. UOI (Irish Butter case)   and relied on the reports of the three expert committees formed by the courts. In like manner, in  A.P. Pollution

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Tarun v. UOI, AIR 1992 SC 514   Pooja Shashti and Rashmi Bela,  Law, Judiciary and Environment Governance  < http://www.ecoinsee.org/ fbconf/ Sub%20Theme%20G/Pooja%20Shastri.pdf> 3  Ibid. Cited as Charmian Barton, The Status of the Precautionary Principle in Australia , Vol 22, Harvard Environmental Law Rev. pp 510-511 (1998). 4  AIR 1987 SC 990 5  AIR 1988 SC 953 2

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Control Board  v. M.V. Nayudu   the Court proceeded to have the claims of the party tested by experts. This case involved intricate questions of law of as to whether the setting up of industries would lead to environmental pollution.

In the light of such difficulties, the need for Environmental Courts was advocated for the first time 7 

in M.C. Mehta v. Union of India where the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication. There should be an appeal to the Supreme Court from the decision of the environment court. 8

Again in  Indian Council for Enviro-Legal Action v. UOI  the Apex Court observed that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner. 9

In the judgment of the Supreme Court of India in  A.P. Pollution Control Board v. M.V. Nayudu

the Court referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as part of the judicial  process, after an elaborate discussion of the views of jurists in various countries. The Supreme Court also referred to the serious differences in the constitution of appellate authorities under  plenary as well as delegated legislation and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were manned only by bureaucrats. These appellate authorities were not having either judicial or environment  back-up on the Bench. 10

In Vellore Citizens Welfare Forum v. UOI    Justice Kuldeep Singh observed that ‘the Central Government should constitute an Authority under S ection 3 (3) of the Environment Protection Act' headed by a retired Judge of the High Court and it may have other members preferably with expertise in the field of pollution control and environment protection  –   to be appointed by the Central Government’.

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 1999(2) SCC 718  1986(2) SCC 176 at p. 202 8  1996(3) SCC 212 at p. 252 9  (2001) 2 SCC 62 10  1996 (5) SCC 647 7

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All this brought forward the need for environment courts in country. The same was stressed by the 11

Law Commission of India  too. Principle 10 of Rio Declaration also cast responsibility to come up with an effective access to administrative and judicial proceedings, to ensure public  participation in decision making process etc.

Green Courts Preceding the NGT  –  Where Did It Go Wrong? The National Environment Tribunal Act, 1995 was enacted by the Parliament to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person,  property and the environment and for matters connected therewith or incidental thereto. Thus,  NETA extended the application of absolute liability without limitation to all such cases where death or injury to a person (other than a workman) or damage to any property or the environment resulted from an accident involving a hazardous substance. The “owner” is liable to compensate the victims on a no-fault basis. However, the Act never came into force as the government didn’t notify it, allegedly under pressure from business houses dealing with haz ardous substances.

In 1997, National Environmental Appellate Authority Act was passed, intending to provide for the establishment of a National Environmental Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operation or process shall be carried out or shall not be carried out subject to safeguards under the Environmental (Protection) Act, 1986. Unfortunately,  NEAA proved to be highly ineffective in fulfilling its objective. Most of the appeals made before  NEAA were dismissed on the technical grounds such as delay in filing the appeal.

Thus, in order to skirt uncomfortable questions regarding the non-notification of NETA, and to replace the fatigued NEAA, the government came out successfully with another Act, the National

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186th  Report of the Law Commission of India, Sept. 2003. The Commission recommended following: (a)Need to constitute environmental courts due to multidisciplinary issues relating to protection of environment (b)To have members with judicial or legal experience assisted by technical experts (c)Environmental Courts in each State or group of States (d)Environment Courts to have original jurisdiction in all civil cases where a substantial question relating to environment is involved (e)Appellate jurisdiction under various other statute

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Green Tribunal Act, 2010. The Act came into force on October 18  2010. It came in response to th

the 186  Report of the Law Commission of India.

Paradigm of Gr een   Adjudication!

Having said so much about the history of the national green tribunal, let’s unveil the green adjudication forum for appreciating this novel endeavor.

Compelling Reasons for NGT: 

India being a developing economy –  more scientific advances –  more environmental hazards.



E- waste: According to a new report from the United Nations, there will be a 500% growth over

the next 10 years in computer waste in India alone. Adding to it is the fact that we have inadequate infrastructure to deal with it properly and safely. 

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Dumping problem is on its peak in our country. We can’t restrict the foreign trade to control it

 but at the same time we are exposing our environment to more harm day by day. 

Population explosion



Rapid urbanization and unplanned development, along with relatively low municipal recycling

rates, have left the country struggling to meet the demand for waste management. 

Poor and illiterate people –  less awareness about environment safety and hazards.



History evident of environment disasters and our failure to tackle them efficiently and to restore

the environment in its pristine form. 

Judicial interpretations of Article 21 have included right to a clean and pollution free 13

environment in its ambit. 

International commitments of India via Rio Declaration and other environmental instruments.



DPSPs under Articles 48-A, 49 and 51 of the Constitution confer in a sense constitutional duty

upon the State to ensure a clean and healthy environment. 

We have less advanced technology and infrastructural incapacity, so more frequency of hazards

and their effects. 12

 N Bhowmick, India’s Climate Chief on Making India Greener, 13 Virendra Gaur v. State of Haryana , 1995(2) SCC577; Subhash Kumar v. State of Bihar,AIR 1991 SC 420;  M.K. Sharma v. Bharat Electric Employees Union, 1987 (1) SCALE 1049.

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Politics at every level is prevalent - from the indu stry to the judiciary



Delay in disposal of cases via ordinary courts. It is pertinent now to understand that in

environment litigations- justice denied and environment d estroyed! 

Increasing trade in endangered species. No effective checks or deterrence is there.

Objectives of NGT: 

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 & compensation for damages to persons an d property

Scope of NGT:

The Act seeks to establish specialized Green Tribunal regions in the country.

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with five benches located at different

 1st juridiction to hear a case involving environmental matters is wider

than the on conferred on the National Environmental Appellate Authority which has now been replaced by the new Act. The National Green Tribunal is composed of 20 judiciary and environmental expert members who will hear cases regarding environmental protection and rights around the country, and have the power to dispense compensation from environmental negligence as they see fit. The Act stipulates that a person shall not be qualified for appointment as the Chairperson or judicial member of the Tribunal unless he is, or has been, a judge of the Supreme Court of India or Chief Justice of a High Court. However, a person who is or has been a judge of a High Court can be appointed as a judicial member.

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As regards non-judicial expert members, the Act provides that no person shall be qualified for appointment as an expert member unless he (i) has a degree in Master of Science (in physical science or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years  practical experience in the field of environment and forests [including pollution control, hazardous substance management, environment impact assessment, climate change management, biological

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 See Sections 3 and 4 of the National Green Tribunal Act, 2010.  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 16  Section5(1) of the Act. 15

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diversity management and forest conservation] in a reputed national institution or (ii) has administrative experience of fifteen years including experience of five yearsin dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution. A green court, particularly for a vast, growing nation with a catastrophic industrial disaster like Bhopal on its books, sounds like a good idea. The tribunal has jurisdiction to hear initial complaints as well as appeals regarding “substantial questions” related to environment. It has the authority to decide cases based on The Water Act, 1974; The Water 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 and The Biological Diversity Act, 2002. As opposed to NEAA, whose panel comprises of retired bureaucrats, NGT comprises both of judicial and expert members who have a technical background. This panel will empower the Court to be better equipped in deciding environmental cases. Another improvement of the Act is that it provides for the establishment of regional tribunals which will make them  better accessible to the people. NEAA has only one central Court.

The National Green Tribunal Act promises to deal with multi-disciplinary issues related to various environmental problems. The Green Tribunal’s power to deal with non-compliant polluters will strengthen the implementation process. Appeals from the regional tribunals’ decisions can be taken to the National Tribunal and the Supreme Court, which can check abuses of authority in the regional tribunals. The Green Tribunal is empowered to review orders passed under all environment protection laws which will make government departments more cautious in clearing  projects with environmental impacts. To allow flexibility of working to the Tribunal, Section 19  provides that the technicalities of the Code of Civil Procedure shall not restrain the working of the Tribunal which would rather be guided by the principles of natural justice whereas Section 22  provides that an appeal against the decision of the Tribunal would lie straight to the Supreme Court of India. The jurisdiction of civil courts is specifically excluded in matters falling within the domain of the Tribunal. 17

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

17

 Section15 of the Act

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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 18

restitution of the environment for that areas as the Tribunal may think fit.  The relief under this 19

Act is an addition to the relief given under the Public Liability Insurance Act, 1991.   The Act seeks to discourage delayed applications for relief. If stipulates that no application for the above mentioned categories of relief would be entertained by the Tribunal unless it is made within a  period of five years from the date on which the cause for such relief first arose. However, the Tribunal may allow further sixty days for the application to be filed if it is satisfied that the 20

applicant was prevented by sufficient cause from filing such application.  The Act obligates the claimants under the Act to intimate to the Tribunal about the application filed to, or as the case 21

may be, compensation or relief received from, any other court or authority.  The Act provides for no fault liability in case of claims involving an accident by authorizing the Tribunal to apply the 22

Principle of no fault.  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 finally within

Plus Points: 

Will reduce backlog of cases in High Courts and the Apex Court.



Uplift the image of nation. India has become 3  country to go for a NGT



Effective implementation of environment laws will be ensured



rd

 NGT has been empowered to issue directions for the compensation and restitution of damage

caused from actions of environmental negligence. In doing so, this is the first body of its kind that is required by its parent statute, to apply the polluter pays principle and implement the principles 23

of sustainable development. 

India remains a model for its neighbors in Asia for making the legal system a place where

environmental justice can be found.

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 Section15(1) of the Act  Section15(2) of the Act 20  Section15(3) of the Act 21  Section15(5) of the Act 22  Section17(2) of the Act 23  Section 20 of the Act 19

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The importance of the enactment and the seriousness with which the Government has

constituted the Tribunal can be gauged from the fact that the Act provides for imprisonment upto three years and a fine which may extend to ten crore rupees (in case of individuals whereas it can  be upto twenty five crores rupees for a company) as penalty for non-compliance with the orders of the Tribunal. There is a separate provision for prosecution of directors of a company in such 24

cases.

A Critical Appraisal: Comments and Suggestions With the failure of existing green courts, India needed a fresh start to setup a fair and competent Court for settling environmental cases. The enactment of earlier Acts is seen as representing symbolic compliance with the decisions taken at the international conference, just in order to hoodwink the international community, rather than any genuine interest in the protection of the environment. Thus, the introduction of this new Tribunal seems to be a step in the right direction,  but there are valid concerns that need to be addressed before it is deemed fit. Whatever the failures of the past bodies, the new tribunal is sure to have its own shortcomings. The flaws in the existing statute and the suggestions for a better NGT are sub mitted hereinafter: 

Membership: The provisions of the Act revive institutional memories of the collegium debate

and post retirement rehabilitation debate. Section 5 of the Act talks about qualification for appointment of Chairperson and other members. It unfortunately seems to follow the ‘tried, tested and failed technique’ of appointing retired bureaucrats and irrelevant technocrats as ‘technical 25

members’.   Further, it requires higher degree in Science, Engineering, Technology and Administrative experience as technical qualifications. There is no provision for ecologists, sociologists, environmentalists and civil society / NGO’s who have been active in the field of environment protection. Moreover, under Section 6 the appointment and short listing of candidates will be done by the Ministry alone which is unlikely to select and appoint any person who could  be considered to have been tough on the Ministry.

Thus, there is a need of: (a) Proper transparent process of appointment. For appointments, an independent body may be a solution. Subjecting the selection process to public scrutiny is also a 24

 Section 27 of the Act  How Green will be the Green Tribunal? < http://www.elaw.org/system/files/ How+Green+Will+be+the+Green+ Tribunal.pdf > 25

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nice way out. (b)Stipulation that a practicing lawyer or jurist specializing in environmental and  public interest matter could also be considered for appointed as a Judicial Member (c) No appointment of bureaucrats as expert members unless the person concerned has exceptional knowledge, experience and interest in environmental issues. It has been a constant concern of the Supreme Court, which has been expressed in several orders that an expert body should consist of 26

experts in relevant fields and not the bureaucrats.   (d) Expert members should also include disciplines from the social sciences including practical experience in dealing with R&R and others. 

Review process: ‘On merits’ review is the habitual modus operandi. However, the de novo

approach will work better. It allows judge to place himself in the position of primary decision maker and to consider all relevant evidences etc. There won’t be any presumption that the local authority’s view is correct. It ensures review of fact and law, both. Thus, an inquisitorial approach is desirable in environmental issues in the light of larger interest. 

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The Act should ensure wider range of participation. Environmental organizations, activists etc.

with sufficient interest must be allowed to plead in a case. This will help in putting forward of issues in a more clear and precise format, having local flavor. Grass Root Justice is indeed the best mode. 

For Ritwick Dutta, TAI coordinator and environmental lawyer, the single most damaging

aspect of the Act is the fact that aggrieved industries too can approach the Tribunal. Now whenever the Ministry of Environment and Forests (MOEF) rejects environmental clearance, it can be challenged under Section 16 (i) of the Act. Dutta says that less than one per cent applications for clearance are rejected by the MOEF in any case. The whole purpose of positive 28

discrimination gets defeated by the provision. 

 NGT must have capacity to innovate. Mere following precedents will not serve the ends. With

time, problem changes. Severity deepens and effect manifests. Thus, it should be ready to mould itself according to the pace of technological advancements.

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Green Tribunal Bill has Many Flaws! September 02, 2009 27  Sridip Nambiar, Paradigm of Green Adjudication, 1 ILI Law Review 2010 Pg 01-24 < http://www.ili.ac.in/pdf/law reviewfull.pdf> 28   Meena Menon,  How Green is My Tribunal? The Hindu, July 07, 2010

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Jurisdiction: The most serious jurisdictional problem arises from Section 14 that limits the



 jurisdiction to “substantial questions relating to environment” which only includes instances where the community at large is affected or likely to be affected —   but excludes individuals or groups of individuals. It is, therefore, unclear whether this law only seeks to promote class actions. If this is the case, such a structure would be undesirable. Environmental impact and conflict need not be only limited to the “community at large”  but may also affect groups of individuals and individuals — who deserve as much protection — in equal measure as the “community at large” or “group of Individuals”, which itself is not defined. Moreover, since the courts have recognized that the environment falls within the purview of Article 21, all persons have a duty to protect the environment and a corresponding right to question the adverse impact on environment and human health. But the Act ignores this. Further, the criteria to determine whether there is “substantial question relating to environment” are: (a) gravity of damage to the environment or property is substantial; (b) the damage to public health is broadly measurable; (c) the environmental consequences relate to a specific activity or a  point source of pollution. There is no tangible method by which the ‘gravity’ of the damage to environment and public health can be either ‘broadly measured’ or termed as ‘substantial’. The environmental questions cannot be left to the subjective assessment of an individual to judge what 29

is substantial.   Also, the environmental consequences cannot be restricted to either specific activity or to a point source of pollution because non-point source of pollution and a bundle of industrial activities including cumulative impact assessment is also a major contributor of  pollution. Therefore, the definitions must be suitably amended. Citizens must be ensured an easy and fast access to information of courts proceeding. This

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facilitates participatory democracy in true sense. ‘Precautionary principle’ and ‘absolute liability’ should be the guiding light. Thus, availability

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of appeal provision for ‘companies’ or say polluters should be handled carefully. Limitation period for filing action: Prescribing a limitation period is highly irrational and

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unfair.  This will prevent a large number of poor people to come for redressal. Further, generally environmental diseases take time to manifest. Thus no actual remedy for such victims. It defeats the whole idea of environmental jurisprudence.

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Supra note 21  Section 14(3) of the Act

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Environmental Ethics are important to figure out. Thus, equity needs to be look into while

decision making. Just relying on black letters of law will not serve the concern. 

Justice N.Venkatchalla, Former Chairman NEAA and Judge Supreme court of India expressed

that there is nothing Green in the bill and termed it as a “Blackbill”. The major contentions that he raised are “Substantial question relating to Environment ” is a vague term and needs more specification. “ Hazardous Substance exceeding such quantity”,  as defined in EP Act will give a good defense for the polluter and the onus will be on the victim to proof that it exceeds such quantity. The term environment is an inclusive one and needs specification. Environment as defined is a broad term to be accommodated in Green Tribunal and looking at the composition and sitting of the Tribunal; the number of cases will be huge to be dealt by the Tribunal.. Also there are some sections need to be completely deleted like Section on amendment of certain enactments is superfluous as this legislation has the overriding effect. He has suggested for creating a Green Bench in all High courts to deal with such cases in place of setting a Tribunal. If the tribunal comes then it should have a Registrar as that of a High court. There should be least interference of government in the administration of the Tribunal. 

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Implicit threat to petitioners: Section 23 reads as “Where the Tribunal holds that that a claim is

not maintainable, or false or vexatious, the .... Tribunal may ...make an order to award costs, including lost benefits due to any interim injunction.” This provision is quite discouraging. This will deter concerned citizens from bringing environmental issues before the Tribunal, fearing the imposition of heavy costs in case their claim is disallowed. Further, while granting interim injunction the court/tribunal properly weighs the facts and law and it is only when the prima facie case is established and balance of convenience and the interest of justice is in favour of the applicant that injunction is granted. It is pure and simple judicial discretion, if subsequently, the interim injunction is vacated for whatever reasons, and the applicant cannot be saddled with costs. Of course, the petitions based on concealment of important facts and fraud always stand on a different footing. 

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Locus Standi –  Section 18: The vast majority of environmental litigation in India is done under

Public Interest Litigation under Article 226 and 32 of the Constitution. The Petitioner is not

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 Proceedings of State Level Consultation on NGT Bill 2009  32 Supra note 22

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necessarily affected by the environmental damage but takes action in the public interest. Many of these individuals may have no connection with organizations functioning in the field of environment. There is no reason why only an environmental organisation can file appeals before the Tribunal; why not human rights organisations, or public health institutions, labour groups, or even other plaintiffs. Thus, the limited approach to locus standi adopted in the Act will necessarily mean that there will be less environmental litigation taken and therefore the objective to ensure  better enforcement of environment regulation will be largely defeated. The Act must reflect this reality and widen locus standi to all those who wish to promote environmental protection. This 33

was also the recommendation of the Law Commission. 

Sanjay Upadhyay, the founder of India’s first environmental law firm says, the high courts’

rulings on sweeping environmental issues like sustainable development and the precautionary  principle are often too broad to be properly managed at the ground level. “The court system has given draconian orders and judgments which are not implementable. We have laws that are so lofty, but there is no operational arrangement after that,” he says. He fears the new green court may suffer from the same disease, passing judgments that are not supported by sufficient 34

infrastructure to carry them through.

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186   Report of the Law Commission of India, Sept. 2003, page 150. “So far as locus standi before the proposed Court in original petitions is concerned, it must be as wide as it is today before High Courts/Supreme Court in the writ  jurisdiction in environment matters. This is the position in Australia and New Zealand also. Any person or organization who or which is interested in the subject matter or in public interest m ust be able to approach the Court”. 34   Krista Mahr, Can India’s New Green Court Get the Job Done?  November 03, 2010

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The Concluding Words The role played by Indian judiciary in environmental discourse is really commendable. It would be wrong to conclude that ordinary courts are incapable of handling environmental disputes; although, a better combo of judicial-administrative machinery is expected, since usually administrative and technical matters are entrenched in environmental decision making process. As we discussed in the preceding chapters, many factors inspired us to remold our strategy. The increasing number of environmental litigations in India, institutional fatigue and the acceptance of the fact by the Supreme Court in various cases that it does not have requisite expertise knowledge to deal with complex environmental issues and its continuous emphasis to set up an environmental court has compelled the government to come forward with the NGT.

The National Green Tribunal Act, 2010 is not a perfect but certainly a praiseworthy statute. NGT is indeed a welcome sign for the cause of environment protection and redressing the damage caused to it. However, there are many loopholes in the Act which if not meted out in time could turn out to be a solution worse than the cure. The government has the onus to set right past wrongs and ensure that the statute proves efficient and realistic, and does not degenerate into another tool to deny people their legitimate rights. In the light of the shortcomings discussed in the preceding chapters, it is a high time to think for a ‘better’ NGT. The whole statute thus needs to be reassessed and redrafted in a transparent manner and through a much wider consultation process so that it actually becomes an agent for securing environmental justice as well as to provide voice and relief to those who are affected by environmental degradation of their environment. It is in our ability to refuel our institutions with conceptual clarity so that the complete delivery of justice is ensured. We can’t afford to be lenient in environmental issues, for justice delayed is environment destroyed!

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Bibliography 1. Primary Sources 1.1 Law -

The Constitution of India The National Green Tribunal Act, 2010 Declaration of the UN Conference on Human Environment Rio Declaration on Environment and Development The National Environment Tribunal Act, 1995 The National Environmental Appellate Authority Act, 1997

2. Secondary Sources 2.1 Books Dr. (Justice) Durga Das Basu, Shorter Constitution of India (13th  Wadhwa,  Nagpur 2006) - Fischer, F.,Citizens, Experts and the Environment: The Politics of Local Knowledge, (2000). - Lee, M., EU Environmental Law: Challenges, Change and Decision-Making, (2005). - Robert Carnwath, ‘Environmental Enforcement: The Need for a Specialist Court’, [1992] J.P.L. . - Smith, G., Deliberative Democracy and the Environment, (2003) 2.2 Articles  National Green Tribunal , Sanctuary Report, June 09, 2010 Gitanjali Nain Gill, Green Tribunal for India, J Environmental Law (2010)22(3) pg 461-474  Asian Judges: Green Courts and Tribunals and Environmental Justice, ADB, April 2010 V. Venkatesan,  Judicial Failure, Frontline, Vol.26, Issue 26 Rex Rosario, Revisiting Bhopal: Alarm Call,  Economic and Political Weekly, Vol.38, No.49, Dec 2003, pg 5167 Meena Menon, How Green is My Tribunal,  The Hindu, July 07, 2010 Nitin Sethi, Green Tribunal Flouts Every Rule in the Book , the Times of India, < http://timesofindia.indiatimes.com/india/Green-tribunal-flouts-every-rule-inthe-book/articleshow/4681365.cms> Akshay Deshmane, Green Tribunal Can’t Avert Environment Calamities, DNN, June 21, 2010 Krista Mahr, Can India’s New Green Court Get the Job Done? , TIME, October, 20, 2010 Green Tribunal to the Rescue?, Prakriti, March 2010

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2.3

Pooja Shashti and Rashmi Bela, Law, Judiciary and Environment Governance Charmian Barton, The Status of the Precautionary Principle in Australia, Vol 22, Harvard Environmental Law Rev. pp 510-511 (1998). Pratha Shah and Felix Francis, Green Tribunal to the Rescue?  N Bhowmick,  India’s Climate Chief on Making India Greener,  How Green will be the Green Tribunal? < http://www.elaw.org/system/files/ How+Green+Will+be+the+Green+ Tribunal.pdf > Green Tribunal Bill has Many Flaws! September 02, 2009 Sridip Nambiar, Paradigm of Green Adjudication, 1 ILI Law Review 2010 Pg 01-24 < http://www.ili.ac.in/pdf/law reviewfull.pdf>

Others 186th Report of the Law Commission of India, September 2003.  Proceedings of State Level Consultation on NGT Bill 2009 

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