 "NGT: On a sticky wicket")
Since its inception, the National Green Tribunal (NGT) has been the topic of much debate and discourse in environmental spheres and beyond. The issue has come under the spotlight once again with the recent case involving Art of Living's (AOL) neglect to pay compensation as adjudicated. AOL has also challenged the tribunal's powers to initiate contempt proceedings.
Another dilemma currently faced by the tribunal is the government's lethargy in adhering to directions issued by it. To add to the controversy, the government has in recent years also proposed legislative changes curbing the powers of the tribunal. Legal experts, however, feel there is an urgent need for more clarity on its existing powers, and an immediate increase in its Bench strength, to improve the tribunal's efficacy and reach.
The NGT was constituted on a Supreme Court vision for the future of environmental jurisprudence in the nation and sought to establish a comprehensive institution for effective redressal of environmental concerns, which were considered lacking in the then Indian judicial sphere.
"The NGT has given a new meaning to the environmental rights of individuals in the country," said Ritwick Dutta, a prominent environmental law advocate. Through the formation of the tribunal, an attempt was made to remedy the pre-existing burden in the formal court structure. This also established a forum capable of dealing with the technicalities involved in environmental issues, while balancing the interests of individuals and corporates alike.
In reality, though, the scenario that followed has been far from straightforward, leading to questions regarding the vision of the tribunal's formation. Ever since its establishment, corporates have regularly voiced concerns over the roadblocks created by the tribunal, which in their view have challenged economic progress of the nation. "Companies must be given a reasonable opportunity to rectify issues. Sometimes the company does not even know it is polluting. In these situations, they expect a chance to remedy the problem. No one benefits from interim orders that stop work or shut factories," said Faraz Alam Sagar, partner, Trilegal.
Industry players want more involvement and appointment of technical members to the tribunal. "This always provides perspective," said Sagar. Another pet peeve of industry is that the tribunal should look for ways to discourage frivolous or false complaints. "Serious harm can be done to the brand/reputation of a company if it is accused of violating environmental laws," said Sagar.
Corporate lawyers point out that at times remedies offered by the tribunal are impractical in nature and hurt business activity. Take, for instance, the Noida real estate issue involving the Okhla bird sanctuary. The Uttar Pradesh government had to finally make notifications to resolve the deadlock created by the order of the tribunal. Environment activists, on the other hand, have consistently upheld the institution's value and demand that more powers be given to the NGT.
The drafting of the Act has also been cited by many as a cause for confusion. Section 19 of the statute states that the tribunal shall not be bound by regular rules of civil procedure, but empowers the tribunal with certain powers of a civil court.
In contrast, Section 25 adorns the tribunal with all the powers of a civil court for execution of its orders. Section 26 further prescribes specific penalties for failures in compliance of orders and awards. This disjunctive structure creates a grey area regarding the tribunal's additional powers in relation to other civil courts.
Further issues with the construction of the legislation have also added to the uncertainty in recent times. Section 22 of the Act provides for appeals of the tribunal's orders to the Supreme Court, yet there is no express mention of the limitation of the powers of the high courts under Articles 226 and 227 of the Constitution. This has led to the Madras High Court allowing NGT appeals to be heard before itself, whereas the Bombay High Court has taken the opposite stand on the issue.
In addition to these, the tribunal has also faced multiple administrative hassles, such as a paucity of resources and insufficiency of judicial appointments. The lack of an environmental regulator (as directed by the Supreme Court in 2014) till date, still renders the NGT as the first court of appeal for numerous mining, forestry and developmental clearances, placing an enormous burden on the functioning of the institution.
Currently, the NGT hears about 200 cases a day across its five benches and around 20 new cases are instituted daily in the principal Bench alone. "Still, the issue of pendency (of cases) has improved. Matters pending in the Supreme Court for years have been dealt with in months by the NGT after their transfer. Not having the full Bench strength has not helped the issue," said Dutta.
There is common consensus amid corporates and activists alike that the tribunal needs to achieve greater Bench strength to be more accessible to larger sections of the society and fulfill its ultimate objective.
Another dilemma currently faced by the tribunal is the government's lethargy in adhering to directions issued by it. To add to the controversy, the government has in recent years also proposed legislative changes curbing the powers of the tribunal. Legal experts, however, feel there is an urgent need for more clarity on its existing powers, and an immediate increase in its Bench strength, to improve the tribunal's efficacy and reach.
The NGT was constituted on a Supreme Court vision for the future of environmental jurisprudence in the nation and sought to establish a comprehensive institution for effective redressal of environmental concerns, which were considered lacking in the then Indian judicial sphere.
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Since the adoption of the Constitution, the right to a clean environment has been consistently interpreted by the country's apex judicial body as a fundamental right under Article 21. The preamble of the National Green Tribunal Act, 2010, clearly highlights the intent of the legislature to create a judicial body to expeditiously deal with "substantial questions relating to the environment".
"The NGT has given a new meaning to the environmental rights of individuals in the country," said Ritwick Dutta, a prominent environmental law advocate. Through the formation of the tribunal, an attempt was made to remedy the pre-existing burden in the formal court structure. This also established a forum capable of dealing with the technicalities involved in environmental issues, while balancing the interests of individuals and corporates alike.
In reality, though, the scenario that followed has been far from straightforward, leading to questions regarding the vision of the tribunal's formation. Ever since its establishment, corporates have regularly voiced concerns over the roadblocks created by the tribunal, which in their view have challenged economic progress of the nation. "Companies must be given a reasonable opportunity to rectify issues. Sometimes the company does not even know it is polluting. In these situations, they expect a chance to remedy the problem. No one benefits from interim orders that stop work or shut factories," said Faraz Alam Sagar, partner, Trilegal.
Industry players want more involvement and appointment of technical members to the tribunal. "This always provides perspective," said Sagar. Another pet peeve of industry is that the tribunal should look for ways to discourage frivolous or false complaints. "Serious harm can be done to the brand/reputation of a company if it is accused of violating environmental laws," said Sagar.
Corporate lawyers point out that at times remedies offered by the tribunal are impractical in nature and hurt business activity. Take, for instance, the Noida real estate issue involving the Okhla bird sanctuary. The Uttar Pradesh government had to finally make notifications to resolve the deadlock created by the order of the tribunal. Environment activists, on the other hand, have consistently upheld the institution's value and demand that more powers be given to the NGT.
The drafting of the Act has also been cited by many as a cause for confusion. Section 19 of the statute states that the tribunal shall not be bound by regular rules of civil procedure, but empowers the tribunal with certain powers of a civil court.
In contrast, Section 25 adorns the tribunal with all the powers of a civil court for execution of its orders. Section 26 further prescribes specific penalties for failures in compliance of orders and awards. This disjunctive structure creates a grey area regarding the tribunal's additional powers in relation to other civil courts.
Further issues with the construction of the legislation have also added to the uncertainty in recent times. Section 22 of the Act provides for appeals of the tribunal's orders to the Supreme Court, yet there is no express mention of the limitation of the powers of the high courts under Articles 226 and 227 of the Constitution. This has led to the Madras High Court allowing NGT appeals to be heard before itself, whereas the Bombay High Court has taken the opposite stand on the issue.
In addition to these, the tribunal has also faced multiple administrative hassles, such as a paucity of resources and insufficiency of judicial appointments. The lack of an environmental regulator (as directed by the Supreme Court in 2014) till date, still renders the NGT as the first court of appeal for numerous mining, forestry and developmental clearances, placing an enormous burden on the functioning of the institution.
Currently, the NGT hears about 200 cases a day across its five benches and around 20 new cases are instituted daily in the principal Bench alone. "Still, the issue of pendency (of cases) has improved. Matters pending in the Supreme Court for years have been dealt with in months by the NGT after their transfer. Not having the full Bench strength has not helped the issue," said Dutta.
There is common consensus amid corporates and activists alike that the tribunal needs to achieve greater Bench strength to be more accessible to larger sections of the society and fulfill its ultimate objective.