The National Green Tribunal Act, 2010-a Step forward in Environmental Adjudication in India

A presentation

BY ISHWER SINGH

Ministry of Environment & ForestsGovernment of India

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EXISTING ADJUDICATORY FRAMEWORK

Civil Procedure Code (CPC)- remedying public wrongs by Civil Courts, applying the principle of strict liability

Criminal Procedure Code (CrPC)- injunction against Public Nuisance by Executive Magistrates

Criminal prosecutions before Judicial Magistrate under various laws.

Appellate Authority’s provision in some statutes to hear appeals against the order of the State Pollution Control Boards (SPCB)

EXISTING ADJUDICATORY FRAMEWORK

Cont. The National Environment Tribunal Act, 1995: The Act provides for

strict liability for damages, caused by accident occurring while handling hazardous substance and to provide relief and compensation to the victims.

The Act, however, could not be enforced due to limited mandate.

The National Environment Appellate Authority Act, 1997. The Act provides a judicial forum for hearing appeals against order of grant of environmental clearances under the E(P) Act, 1986

Constitutional remedies under Article 32 and Article 226 of the Constitution of India

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Dimensions of the Challenge

Pressures on environment: Due to economic development, infrastructural growth, urbanization & changing life styles

Promoting intersectorality and integrating safety, health and environmental concerns

Balancing environment & development Strengthening implementation & compliance mechanism Institutional reform in adjudicatory system to keep pace

with the implementation of the environmental legislations

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Supreme Court’s directive to Constitute Environmental Courts- Background:

Concept originated from Supreme Court’s Judgment in Oleum Gas Leak case, 1986 and other cases:

(i) M. C. Mehta Vs Union of India : 1986 (2) SCC 176 (202)

(ii) Indian Council for Enviro Legal Action Vs Union of India : 1996 (3) SCC 212 (252)

(iii) A. P. Pollution Control Board Vs M. V. Nayudu 1999 (2) SCC 718

Supreme Court in 2000 requested the Law Commission of India to consider constitution of specialized courts in view of inadequacy in the constitution of the Appellate Authorities which neither have judges nor the assistance of experts :

A. P. Pollution Control Board Vs M. V. Nayudu 2001 (2) SCC 62

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RECOMMENDATIONS OF LAW COMMISSION OF INDIA-186TH REPORT

Need to constitute environmental courts due to multidisciplinary issues relating to protection of environment

To have Members with judicial or legal experience assisted by technical experts

Environmental Courts in each State or group of States

Environment Courts to have original jurisdiction in all civil cases where a substantial question relating to environment is involved ; and

Appellate jurisdiction under various other statutes

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Legislative Framework

The Water (P&CP) Act, 1974 The Water (P&CP) Cess Act, 1977 The Forest (Conservation) Act, 1980 The Air (P&CP) Act, 1981 The Environment (P) Act, 1986 The Public Liability (Insurance) Act, 1991 The National Environment Tribunal Act, 1995* The National Environment Appellate Authority Act, 1997* The Biological Diversity Act, 2002 _------------------------------------------------------------------ *since repealed.

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Rationale behind the National Green Tribunal (NGT) Act, 2010 Increasing complexity of environmental litigation Frequent need to seek assistance of environmental experts Mounting pendancy in courts Lack of dedicated jurisdiction Rigidity of existing court procedures to deal with

environmental cases Non-enforcement of NET Act, 1995 To maintain proper balance between sustainable

development & environmental regulations. Access to Justice

Objective of the NGT

To provide for the establishment of a National Green Tribunal (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 and property

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ESTABLISHMENT OF THE NGT

NGT to be set up by the Central Government NGT shall sit at such places and shall have territorial

jurisdiction, as may be specified by the Central Govt. It shall follow the circuit approach Central Govt., in consultation with Chairperson, to make

rules regarding the procedure to be followed by NGT for hearing the matters, the number of judicial and expert members to hear cases etc.

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Composition of NGT

It Shall have : a full time Chairperson; and Not less than ten and not more than twenty full time Judicial

Members and not less than ten and not more than twenty full time Expert Members

Chairperson may invite one or more experts, from out side, having specialize knowledge to assist the Tribunal in a particular case;

Chairperson to be appointed by Central Govt. in consultation with Chief Justice of India; and

Judicial and Expert Members to be appointed on the recommendation of a Selection Committee

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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

Qualifications for Appointments

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Term of Office

Chairperson, Judicial and Expert Member shall be appointed for a period of five years

Chairperson and Judicial Member, if judge of Supreme Court, shall not hold office after the age of 70 years

Chairperson and Judicial Member, if judge of the High Court, shall not hold office after the age of 67 years

Expert Member shall not hold office after the age of 65 years

Original Jurisdiction

The Tribunal shall have jurisdiction on all civil cases where :

- a substantial question relating to environment is involved; and

- such question arises out of the implementation of the enactments specified in Schedule I appended to the NGT Act

The Tribunal shall settle disputes, provide relief & compensation and may order restitution of damaged environment

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Schedule – I

The Water (P & CP) Act, 1974; The Water (P & CP) Cess Act, 1977; The Forest (Conservation) Act, 1980; The Air (P&CP) Act,1981; The Environment (Protection) Act, 1986; The Public Liability Insurance Act, 1991; The Biological Diversity Act, 2002.

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What is ‘Substantial Question Relating to Environment’?

As defined in the Act:

It includes an instance where – there is direct violation of a specific statutory environmental obligation whereby:

-the community at large is affected or likely to be affected by the environmental consequences or

-the gravity of damage to the environment or property is substantial or

-the damage to public health is broadly measurable The environmental consequences relate to specific activity or point source of pollution

Appellate Jurisdiction

Appeal may be preferred before NGT against: Order of Appellate Authority u/s 28 of Water Act,1974 Order of State Govt. u/s 29 of Water Act,1974 Directions by the SPCBs u/s 33A of Water Act,1974 Decision of Appellate Authority u/s 13 of Water Cess

Act,1977 Order of State Govt. u/s 2 of Forest (Conservation) Act,

1980

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Appellate Jurisdiction

Contd. Order of Appellate Authority u/s 31 of Air Act,1981 Directions u/s 5 of Environment (P) Act,1986 Grant or Refusal of Environmental Clearance Under

Environment (P) Act, 1986 Order or determination of benefit sharing, made by National

Biodiversity Authority /State Biodiversity Board, under the Biological Diversity Act, 2002

-------------------------------------------------------------------Note: Corresponding amendments in relevant Acts have been

provided in Sec.-36, as per Schedule-III, so as to have enabling provisions for hearing appeals in the respective statutes

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Award for Relief, Compensation and restitution of damaged environment

Tribunal may by order provide:

-Relief and compensation to the victims of pollution and for other environmental damage arising under the enactment specified in the schedule I including accident while handling any hazardous substance

-restitution of property damaged

-restitution of environment of the areas as the Tribunal may think fit

Limitation of filing application and the heads for claiming relief and compensation

Application for relief and compensation or restitution to be made within five years from the date on which the cause for such compensation or relief first arose

Compensation or relief payable under heads specified in Schedule II

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Sch. – II: Heads of Compensation/Relief

Death, permanent or temporary disability or injury Loss of wages and medical expenses Damage to private or other property Expenses incurred by the Government / Local Authorities in

providing relief and rehabilitation to the affected persons Compensation for environmental degradation and restoration of the

quality of environment Claim on account of damage or destruction of flora, fauna, crops,

vegetables, trees, orchards, etc. Loss of business or employment or both Any other claim arising out of any activity of handling of hazardous

substance

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Application to the Tribunal

An application for settlement of disputes or relief or compensation may be made by:

the person who has sustained the injury; or owner of the damaged property; or legal representatives of the deceased; or any agent duly authorized by the person affected; or Any person aggrieved including representative body or organization; or Govt./CPCB/SPCBs/PCCs or any environmental authority constituted

or established under the Environment (P) Act, or any other law for the time being in force

The application or appeal to be decided expeditiously, after hearing the parties, within a period of six months from the date of the filing of the application or appeal.

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Power and Procedure of NGT

NGT is not bound by the procedure laid down by CPC but guided by the principles of natural justice.

NGT shall have the power to regulate its own procedure and not be bound by the Indian Evidence Act, 1872

NGT shall exercise powers of a Civil Court in respect of summoning, enforcing attendance, examining on oath, receiving evidence on affidavits, deciding matters ex-parte etc. and power to grant interim orders, injunctions or stay

NGT to follow certain principles

NGT, while deciding the cases, shall apply: the principle of sustainable development, the precautionary principle; and the polluter pays principle

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Orders of the NGT & Appeal to Supreme Court

Civil Court to execute the order or award made by the NGTAny payment or deposit of the amount directed by the NGT,

as award, shall be recoverable as arrears of land revenue or of public demand

Award or order of the NGT shall be executable as a decree of a Civil Court

Decision taken by the NGT, by majority, shall be binding NGT may award cost for filing false or vexatious claims

Persons aggrieved against the order of the NGT may prefer an appeal to the Supreme Court with in ninety days

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Penalty for Non-compliance of the orders of NGT

Punishable with imprisonment upto three years or with fine not exceeding ten crore rupees ($2200000 aprox), or with both.

If non- compliance continues, an additional fine of Rs. 25,000 ($ 500 approx) per day during the period contravention continues

For Companies:

fine may extend upto twenty-five crore rupees ($5500000 aprox), If non-compliance continues, additional fine of Rs. 1 lakh ($2000

aprox) per day during the period contravention continues

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Bar of Jurisdiction

Civil courts are debarred to entertain disputes regarding any claim for granting relief or compensation or restitution of property damaged which may be under the jurisdiction of the NGT

No injunction to be granted by any civil court in respect of any action or order of the NGT

Civil Court’s jurisdiction is debarred to hear appeals in such cases where the decisions of the authorities are appealable before the NGT

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Repeal and Savings

The National Environment Tribunal Act, 1995 repealed The National Environment Appellate Authority (NEAA)

Act, 1997 repealed NEAA abolished The functions of the NEAA to be subsumed in the NGT and

pending appeals shall be transferred to NGT

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Expected Improvements

NGT shall have Judicial and Scientific Experts NGT will ensure speedy disposal of environmental cases Flexibility in procedures to help dispose cases within six

months Any aggrieved person can file cases before NGT to ensure

greater access to justice NGT will ensure timely relief and compensation to the

victims, in addition to the Public Liability Insurance Act, 1991

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Expected Improvement

Contd. NGT Act addresses the issue of lack of appellate

provisions under the Environment (P) Act & Forest (Conservation) Act,

Unlike NEAA, the NGT shall also hear appeals against refusal to grant Environment Clearances

Provides 2nd Tier of appeal under certain legislations Appellate Jurisdiction of High Court under Biological

Diversity Act transferred to NGT Reduction of burden on Higher Courts

THANK YOU !