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The hues in the green tribunal’s resilient journey

Yesterday (October 18) was a significant day, as it marked the 10th anniversary of the National Green Tribunal, or NGT. Few ministries can boast of as varied, diverse, and challenging a mandate as the Ministry of Environment and Forests. The downside to this vast and all-encompassing scope, which covers forests, wildlife, environment, climate change and coastal protection, is that it gives rise to an equally diverse volume of litigation.

Complexities from day one

This was one of the very first things I realised upon assuming office as the Minister for Environment and Forests in the year 2009. The sheer number and complexity of cases, with several more being added every week, led the Supreme Court of India to designate a special Bench to handle these matters. This Bench, which met every Friday to deliberate on these and many other matters, came to be known fittingly as the ‘Forest Bench’. And this was to say nothing of the numerous matters that were filed and pending hearings in the various High Courts.

Given the time constraints of the top court and the High Courts, some cases had been pending for decades and in turn, spawning other linked matters which further delayed the process. I also realised that despite the efforts of the capable officers and experts assisting the Supreme Court, this was at best an ad hoc solution.

Stages in an evolution

Several years prior to my tenure, Parliament had passed laws related to the establishment of a National Environment Tribunal (1995) and a National Environment Appellate Authority (1997). The Authority was intended to act primarily as a forum for challenges to environmental clearances while the Tribunal could award limited amounts of compensation in cases of environmental damage to life or property. In my opinion, these did not go far enough in terms of jurisdiction, authority, impact, or autonomy.

It was clear that the enforcement, protection, and adjudication of environmental laws required a specialised and dedicated body. A tribunal, staffed with judges and environmental experts, would need to be empowered to hear these issues so that the burden on the High Courts and the Supreme Court could be reduced. The quality of time spent on these issues could also be increased as, unlike the Supreme Court, the tribunal could have benches in various States, thereby increasing access to all citizens. Thus, the idea for the ‘NGT’ was born.

This was not the first time that the idea had been mooted. In judgments such as M.C. Mehta & Anr. Etc vs Union Of India & Ors. Etc (1986), the then Chief Justice of India, Justice P.N. Bhagwati, had suggested “to the Government of India that since cases involving issues of environmental pollution, ecological destructions and conflicts over national resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up Environmental Courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right of appeal to this Court from the decision of the Environment Court”.

These observations were recalled in 1999 by the Supreme Court in the landmark case of A.P. Pollution Control Board vs Prof. M.V. Nayudu (Retd.) which added its own emphasis on the need for a court that was “a combination of a Judge and Technical Experts” with an appeal to the Supreme Court from the Environmental Court.

The NGT’s first year was a turbulent one. Unlike the opaque legislative process followed today, the first draft of the NGT Bill was circulated as part of a pre-legislative consultation process and inspired widespread debate. Concerns ranged from the genuine to the absurd. In the first category, one of my senior colleagues argued that it would contribute to the trend of ‘tribunalisation’ (a debate that would achieve some closure a year later with the Supreme Court’s judgment in R. Gandhi’s case in 2010). In the last category, an environmental non-governmental organisation took issue with the name and argued that the word ‘Green’ could act as a green signal to potential polluters. Following its passage, the Madras High Court even issued notice on a petition which had challenged the Act as unconstitutional and stayed appointments to the body (an order vacated by the Supreme Court on appeal).

Incidentally, I had intended for the parent bench of the NGT to be in Bhopal, as a tribute and homage to the memory of the victims of the Bhopal Gas Tragedy of 1984. However, many of the jurists and retired judges I consulted suggested that for administrative considerations, it would be better for the Chair to be at Delhi.

The track record

Since its inception, the NGT has, apart from creating a new breed of legal practitioners, protected vast acres of forest land, halted polluting construction activities in metros and smaller towns. It has penalised errant officials who have turned a blind eye towards enforcing the laws, and held large corporate entities to account. It has protected the rights of tribal communities and ensured the enforcement of the “polluter pays” principle in letter and spirit. In this endeavour it has been assisted by brilliant practitioners, many of whom are young counsels, passionate and dedicated towards protecting the environment.

A change in attitude

Perhaps the biggest testament to the NGT’s success has been the attitude of the ruling government towards it. Three years ago, in a fashion similar to what has been done with the Right to Information Act, the Central Government attempted to dilute the criteria for appointments to the NGT and other tribunals. I challenged this dilution before the Supreme Court and my counsel, the renowned senior advocate, Mohan Parasaran, was called upon to assist the Bench as an amicus curiae in the case.

The rules (though not the Rule making power) were ultimately suspended by the Supreme Court. But key challenges remain: the NGT must focus less on governance issues and more on adjudication. Benches have to expand manifold. Vacancies have to be filled quickly.

In its next decade, the NGT must continue to remain a proactive ‘inconvenience’ to all those who, while pontificating grandiloquently on the need for environmental protection, take actions that make economic growth ecologically unsustainable.

Jairam Ramesh is a Member of Parliament and the Chair of the Parliamentary Standing Committee on Science & Technology, Environment & Forests

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Printable version | Dec 3, 2020 4:31:20 PM | https://www.thehindu.com/opinion/lead/the-hues-in-the-green-tribunals-resilient-journey/article32887705.ece

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