Quest for “Greening Justice”:

A Case of National Green Tribunal of India

Dr. Balraj K. SIDHU

Rajiv Gandhi School of IP Law, IIT Kharagpur
A Brief Introduction
 Central issue: why do we need a specialized
environmental court and how is this idea of “Greening
Justice” brought about and practiced in India?

 Framework:
1. Justification of institutionalization to address the
challenges of environmental dispute settlement at both
international and national levels
2. Evolution of the legislation and policies of “Greening
Justice” in India
3. Advent and practices of National Green Tribunal (NGT)
 1. Justification

 Uniqueness of environmental disputes/distinctive

features of environmental law
 Call for a specialized International Environmental
Court
 Development within domestic jurisdiction
 2. Evolution
 Constitutional recognition of environmental rights
 Judicial activism in enforcing environmental statutes(led by
Supreme Court)
 Liberalization of the rule of locus standi
 Shift from traditional individual locus standi to community-
oriented public interest litigation
 Facilitation of easier access to justice
 Expanded interpretation of the right to life
 Diversification of environmental issues
 Proposal to establish special environmental courts by SC in a series
of cases since 1987
 Consequences of judicial activism: judicial take over of
administrative functions
 2. Evolution
 SC in Oleum Gas Leak case (1987):
We would also suggest to the Government of India that since cases
involving issues of environmental pollution, ecological destruction
and conflicts over natural 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
environment 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 to appeal to this Court from the decision of the environment
court (emphasis added).
 2. Evolution
 SC in Indian Council for Enviro-Legal Action v. Union of India, the apex court
reiterated the idea of having independent specialized environment courts. It
observed that environmental courts having civil and criminal jurisdiction
must be established to deal with the environmental issues in a speedy
manner. Further, it must be manned by legally-trained persons/judicial
officers.
 A.P. Pollution Control Board v. Prof. M.V. Nayadu, wherein the Supreme
Court acknowledged that both it, as well as the High Courts, were
experiencing considerable difficulty in adjudicating upon the correctness of
technological and scientific opinions. The Court, reiterating its suggestion in
earlier cases, opined that ‚of paramount importance was the need to
establish environmental courts, authorities and tribunals for providing
adequate judicial and scientific inputs rather than leaving such complicated
disputes to be decided by officers drawn from the executive.
3. Advent and practices of NGT
 From NETA (1995) and NEAA (1997) to NGT (2010)
 NETA provided 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
accident, with a view to, giving relief and compensation for damages to persons,
property and the environment and for matters connected therewith or
incidental thereto.
 NEAA was to hear appeals with respect to restriction of areas in which any
industries, operation or process were to be carried out or not to be carried out
subject to safeguards under the 1986 Environment (Protection) Act and for
matters connected therewith or incidental thereto.
 Reason of failure: Lack of political will (?)
3. Advent and practices of NGT
 National Green Tribunal Act (2010)
1. Composition: tardiness
 Procedure for appointment of members
 Reluctance of retired Supreme Court to head the
Tribunal;
 Lack of dynamism and zeal of retired judges
 Too
high qualifications for expert members: “a
dumping ground for retired bureaucrats”
2. Growing diversity of issues
Legislative Definitions of “Environment”
 Environment Protection Act 1986 (India)
 Section 2 (a) - “environment includes water, air and land and
the inter-relationship, which exists among and between water,
air and land and human beings, other living creatures, plants,
micro-organism and property”

 Same definition reiterated in:

 National Green Tribunal Act 2010
 Section 2 (c) – “environment includes water, air and land
and the inter-relationship, which exists among and between
water, air and land and human beings, other living
creatures, plants, micro-organism and property”

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What is the “environment” in environmental
law?
 The definition is shifting due to changing notions of
“environment” from philosophy, ecological
economics, and ecological science.
 More recent definitions attempt to dissolve the
separation between humans and nature.
 Further, while divisions between components of the
environment are still apparent in some legal
instruments, the interconnectedness between
ecosystems and their constituents are more frequently
recognized.

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Emerging Jurisprudence

Marine oil-
Air pollution
Sand mining spill
in the NCT
pollution

Illegal Ganga
slaughter pollution
houses cases
Select Cases of NGT

 National Green Tribunal Bar Association v. Ministry of

Environment & Forests & Ors. (2013) it issued restraint order
making mandatory to get environmental clearances from Ministry
of Environment & Forests/State Environment Impact Assessment
Authority for persons carrying out the mining activity.
 Gurpreet Singh Bagga v. Ministry of Environment and
Forests (2016) the tribunal imposed a complete prohibition on
carrying on of any mining of minor minerals (Bajri, Sand and Boulders)
in the flood plain of river Yamuna in the district Yamunanagar
(Haryana) and Saharanpur (Uttar Pradesh) and all other villages
situated on the bank of river Yamuna for a period of 45 days from
passing of the judgment. In addition to that it has asked to pay
“environmental compensation” of Rs 50 crores from the 13 mine
lease firms for carrying out excessive unauthorised mining resulting in
damage and degradation of environment.
Select Cases of NGT
 Samir Mehta v. Union of India (2016) three companies, Republic of
Panama’s Delta Shipping Marine Services SA, Qatar-based Delta Navigation
WLL and Delta Group International, were fined Rs. 100 crores for
pollution caused to the marine environment due to the oil spill.
 Gujarat-based Adani Enterprises Ltd. was also asked to pay Rs five crores as
environmental compensation for dumping 60054 MT Coal in the
seabed and causing pollution of marine environment. The brief facts
of the case are that a vessel sent by the Delta Group carrying non coking coal
which was imported by the Adani Group sank in the Arabian Sea due to water
ingression in ballast tanks due to technical faults. It caused oil spill spread
over to the coastal shore of Mumbai at Juhu Beach, Raigad District, Dadar
and Alibaug, Uttan in Bhayandar and Gorai beach causing severe damage to
mangroves and marine ecology of the Bombay coast.
Select Cases of NGT

 Air Pollution in the National Capital Territory: The Principal Bench

of the tribunal being very much located in Delhi could not turn a
blind eye on the city turning into ‘gas chamber’. Hence in a series of
orders, it came to pin down three prime sources of air pollution in
National Capital Territory of Delhi: (i) the burning of Municipal
Solid Waste and other waste in open (ii) dust generated by
construction and allied activities including sweeping of roads and
(iii) vehicular pollution due to unregulated registration of new
vehicles and lack of phase out of old polluting vehicles in the Capital.
The tribunal came down heavily on the vehicles that were more than
15 years old. It ruled that such vehicles would be deregistered as well
as gradually other vehicles would be deregistered from 15 years to 10
years respectively.
Select Cases of NGT

 Illegal Slaughter Houses: With growing annual per capita meat consumption and high meat
export potential, there has been large scale unorganised growth of this trade. In fact
development of meat industry in India is controlled not by the Government but by the
existing market forces.
 The mushrooming g growth of slaughter houses have been identified as one of the highly
polluting activities and many State Pollution Control Boards have categorised the slaughter
house activity in the Red Category. Most of the slaughter houses are without adequate basic
amenities i.e. proper flooring, ventilation, water supply etc. In addition to these deficiencies,
slaughter houses suffer from very low hygienic standard posing a major public health and
environmental hazards. These problems have increased many folds due to increase in
unregulated, unauthorised and illicit slaughter houses.
 In series of its orders, the tribunals has held that the places where illegal slaughtering is
taking place should be carefully identified and illegal activities should be curbed by the local
body to ensure that slaughtering takes place at the slaughter house only under hygienic
conditions and meat eating population gets fresh and disease free meat. This will also
prevent clogging of drains due to illegal dumping of animal wastes into the drain.
National Green Tribunal Act (continued)

3. Tools and Techniques Employed

 Comprehension of complex science-driven issues by experts on the
bench
 Application of a bundle of legal principles
 Flexibilities and responsiveness in organizational change
Scholarly Intervention
4. Demonstrating unintended consequences of well-meaning law reform
projects

Until now, everyone has thought

a specialized environmental court has its justification and could work
well in resolving environmental disputes due to distinctive features of
environmental law,
but now we should think
under the national context of India, the practices of NGT shows that
although sponsored by the higher judiciary, the practices of NGT show the
following three anomalies and amendments of NGT Act are needed:
1. the limited resources in terms of manpower and infrastructure
facilities;
2. enforcement of NGT’s orders depends upon the political will of the
central/state governments; and
3. procedural problems exist that affect efficacy of NGT.