National Green Tribunal Act 2010

Introduction

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for 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.

It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.

The Tribunal‘s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts.

The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.

New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.

Object of the Act

The Preamble of the Act states the object is to provide for the establishment of a National Green Tribunal (herein referred as 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 and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Act is also an endeavor of the Parliament under Article 253 of the Constitution read with Entry 14 of List I of Schedule VII to fulfill the obligation of India towards Stockholm Declaration, 1972 in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment and Rio Declaration, 1992 in which India participated, calling upon the Stated to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage.

The Act was also a response to implement the apex court‘s pronouncement that the right to healthy environment is a part of the right to life under Article 21 of the Indian Constitution.

Why the Act has been named as National Green Tribunal Act and why not simply as National Environment Tribunal Act? What is the significance or special meaning of the term green‘ as given in the title of the Act? No clear answer is available as of now. Merriam Webster‘s dictionary defines the term green‘ as tending to preserve environmental quality. That suggests and reveals the ultimate aim of the NGT Act.

Salient Features of the Act

The Act seeks to establish specialized Green Tribunal with five benches located at different regions in the country. 1st jurisdiction to hear a case involving environmental matters is wider than the National Environmental Appellate Authority which has now been replaced by the new Act.

The Act confers on the Green Tribunal to hear initial complaints as well as appeals from decisions of authorities under various environmental laws. The Tribunal, when established, would not be bound to follow the procedure laid down in the Code of Civil Procedure 1908 Instead, it is allowed to follow the abstract principles of natural justice.

However, the Tribunal will have the powers of a civil court under the Civil Procedure Code 1908. Its decisions are binding on the parties. There can be appeals to the Supreme Court against the decisions, orders or awards of the Tribunal.The Act also ordains that no civil court shall be allowed to entertain cases which Tribunal is competent to hear.

The most salient feature of the Act is that the Green Tribunal is enjoined to followthe internationally recognized and nationally applied environmental Principles of Sustainable Development‘. Precautionary Principle‘ and Polluter Pays Principle‘ while issuing any order, decision or award.

While the Act envisages the conferment of wide jurisdiction on the Green Tribunal, it also, at the same time, seeks to restrict the scope of its jurisdiction only to matters involving substantial, questions, relating environment.

The expression a substantial question has been defined as an instance where there is a direct violation of specific environmental obligation affecting either the community at large other than an individual or group of individuals by its environmental consequence or where the gravity of the damage to the environment or property is substantial or where the damage to public health is broadly measurable.

It is interesting to note while the right to Article 21 of the constitution is a fundamental right guaranteed to individuals, the Act seeks to deny to the same individuals and groups of individuals the right to question any environmental consequence that affects them unless it also affects the community at large or public health.

However, individuals can approach the court when the damage to the environment or property is substantial. It is submitted that the definition of the expression “substantial question related to environment” as given in the Act which provides for statutory exclusion of individuals may not stand judicial scrutiny, for, the right to healthy environment, in its wide amplitude, subsumes all aspects of environmental degradation.

Again, it is doubtful whether the jurisdiction of the High Courts which are constitutional courts can be excluded either by ordinary legislation or by a constitutional amendment as their power of judicial review is a part of the basic structure of the Constitution.

Constitution of Tribunal

The Central government by notification shall establish a tribunal to be known as National Green Tribunal to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act.

The Tribunal shall consist of a full time chairperson and not less than ten but subject to maximum of twenty full time Judicial and expert members as the Central Government may from time to time notify.

This Act has balanced the number of judicial and expert members with the authority to break a deadlock vested with chairperson of the tribunal.

The Tribunal is empowered to invite any one or more persons having specialized knowledge and experience in a particular cases before the Tribunal to assist the Tribunal in that case.

Appointments of the Member of the Tribunal

This Act specifies the qualifications for appointment of Chairperson, Judicial Member and Expert Member.

It provides 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

and a person who is or has been a Judge of High Court shall also be qualified to be appointed as a Judicial Member and a person shall not be qualified to be appointment as an Expert Member,

unless he has a degree in Master of Science-Physical Sciences 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 and biological diversity management and forest conservation)

in a reputed national level institution, or has administrative experience of fifteen years including practical experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.

The Act also provides for the manner of appointment of the Chairperson, Judicial Member and Expert Member.

It provides that the Chairperson shall be appointed by the Central Government in consultation with the Chief Justice of India and the Judicial Members and Expert Members of the Tribunal shall be appointed on the recommendations of the Selection Committee in such manner as may be prescribed.

Justice Swatanter Kumar has been appointed as Chief of the Tribunal he will be assuming the office after 31st December 2012.

Chairperson and Members of the National Green Tribunal

The National Green Tribunal is hub of retired bureaucrats and technocrats. NGT should consist of experts in the relevant field and not the bureaucrats, all earlier attempts in handling the environment problems through NEAA and other bodies have failed.

Had such appointees been competent, those Environment department or institutions where they served would have surely been instrumental in protecting the environment, which is clearly not the case and which has led to the necessity of the Tribunal.

In fact, the apathy of administrators has ignited the demand for the Tribunal.
The power of appointment is given to the Central Government, it will empower the Government of the day to appoint any one to whom it want to give favour.

This is corroborated by the fact that in case of appointment of Chairperson requires prior consultation which Chief Justice of India, how much weight the Central Government gives to advice of Chief Justice of India are unknown.

Tenure of the Office Members

This Act provides that the Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment.

Further, if a person who is or has been a Judge of the Supreme Court is appointed as the Chairperson or judicial member, he shall hold officer as such till he attains the age of seventy years,

and in case a person who is or has been Chief Justice of a High Court is appointed as the Chairperson or Judicial Member,

or in case a person who is or has been a Judge of a High Court is appointed as a Judicial Member he shall hold officer as such till he attains the age of sixty seven years.

The Expert Member shall not hold officer after he has attained the age of sixty five years. This Act also makes provision for resignation by the Chairperson, Judicial Member and Expert Member.

It provides that the Chairperson, Judicial Member and Expert Member of the Tribunal may, by notice in writing under their hand addressed to the Central Government, resign their office.

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