One of NGT’s limitations is the ‘lack of environmental finesse’ of its expert members

By Ravinder Singh
Published: Wednesday 20 January 2021
Photo: Vikas Chaudhary

Photo: Vikas Chaudhary Photo: Vikas Chaudhary

India formed the National Green Tribunal (NGT) in 2010 as a quasi-judicial body for environment-related litigations. With that the country became one of the pioneers among developing nations in establishing a dedicated green court.

Before NGT was established, there were two previous efforts to set up green courts through National Environment Tribunal Act, 1995 (NETA) and National Environment Appellate Authority Act, 1997 (NEAA).

The current tribunal comprises 10-20 judicial members and an equal representation of subject experts, as mandated by the act to maintain a balance. 

Judges from the high court and the Supreme Court are usually appointed as judicial members. The experts are doctorates either in physical sciences or life sciences with 15 years of experience. Engineering post-graduates can also act as expert members.

NGT’s intervention in environmental issues in the years since its inception has received an overwhelming response from different corners of the country. But the tribunal is currently facing major administrative and financial challenges.

One of its limitations is the ‘lack of environmental finesse’ of its expert members. Usually, the expert members are specialists in one particular field and not on environment as a whole.

For instance, an expert member who has been working on forests for many years would not be able to comprehend the challenges arising out of industrial pollution. NGT needs to establish principles and criteria to estimate fines, damages and compensation.

It should also identify institutions and experts who can help it to scientifically estimate environmental damages, compensation and fines on a case-to-case basis.

NGT has authorities similar to law-enforcement agencies but it is not like a regular court which has the power to adjudicate all types of disputes.

NGT has the power of enforcing laws on administrative agencies. It can only issue recommendations for punishment in a case, depending on the nature and gravity of the offence.

However, such punishment can be challenged in a court of law, which is the final authority, limiting the tribunal’s role.

The NGT act mentions that the green court’s decisions can be challenged before the Supreme Court. In spite of this, petitioners have been invoking Article 226 (power of High Courts to issue certain writs) to challenge decisions before the High Courts, slowing down the litigation process.

This is possible because of a loophole in the act which doesn’t specify that NGT orders can be challenged only in the SC.

More freedom and money with EA

United Kingdom’s Environment Agency (EA) is a non-departmental public body established in 1995 to protect and enhance the country’s environment.

The agency is financially much more robust. It is sponsored by the Department for Environment, Food and Rural Affairs (DEFRA).

EA’s annual expenditure for 2017-18 was £1.3 billion (approximately Rs 13,000 crore) and it had 10,043 full-time employees as on March 31, 2018.

Additional money is raised from the issuing of licences and permits such as abstraction licences, waste handler registrations, among others.

EA’s power to prosecute is set in law and its decisions are independent of government or any third party influence.

In 2017, Thames Water Utilities Ltd was fined an unprecedented £20,361,140 for a series of significant pollution incidents on the River Thames.

These offences were caused by negligence and led to the death of wildlife and distress among the public.

Thames Water could not go to the higher courts requesting a pardon citing that it will hamper their business model and seize jobs of people employed with them.

Also, the company cannot transfer its fine to consumers and will need to recover it only from its profits.

James Bevan, chief executive of EA, said:

“Water and sewerage companies provide a vital service to the community. Where they experience problems through no fault of their own we will always work with them to resolve them but where negligence causes serious pollution, or a serious threat to the environment, we will seek the strongest possible penalties.”

This case sends a clear signal to the industry that safeguarding the environment is not optional but is an essential part of how all companies must operate.

The polluter has limited rights to challenge EA’s decisions in higher court. However, in most of the cases the final decision goes in the favour of EA.

NGT should have been provided more powers similar to EA in the field of jurisdiction and infrastructure, and these power should be subject to judicial review.

Other country laws (polluters pay principle) related to environment should also be included within the ambit of the NGT Act.

It also needs to apply certain effective systems along with the traditional so that justice can be achieved at a grassroots level.

The government should cooperate with it at a central, state and local level.

courtesy Downtoearth