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India’s National Green Tribunal: A Blueprint for Environmental Justice?

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

The National Green Tribunal (NGT), established by the National Green Tribunal Act 2010, is a special tribunal created in India to dispose expeditiously and effectively of cases pertaining to environmental protection, forest conservation and enforcement of legal rights relating to environmental protection.

Its creation aimed to address the combined consequences of greater environmental awareness, the demand for justice this brings, and the growing complexity of environmental law. India’s general courts had an already-burgeoning caseload, which perpetuated the situation, highlighted the inadequacies of the system and the need for change.

The bench of the NGT consists not only of judicial members, but also includes experts, allowing it to deal more expeditiously with highly technical, multi-disciplinary cases than general courts. The success of the tribunal in dealing with some of India’s most complex environmental issues gives rise to the question of whether a similar body could, and should, be implemented in the UK.

Motivations for the creation of the NGT

States have acknowledged on numerous occasions the fundamental role that effective judicial decision-making plays in securing protection for the environment. Principle 10 of the Rio Declaration 1992, for example, sets out the role of access to justice in promoting environmental protection and governmental accountability:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Furthermore, the Johannesburg Principles on the Role of Law and Sustainable Development 2002 recognise that lack of implementation, development and enforcement of environmental law stems from deficient knowledge, skills and information concerning environmental law.

It was the Supreme Court of India that first identified the need for a specialised tribunal in the country. The Green Bench of the Supreme Court was created in 1996, formerly known as the Forest Bench, and is often hailed as a significant step toward effective environmental justice in India. Though the Supreme Court developed the system of Public Interest Litigation to increase access to justice in environmental cases, it consistently expressed concern at its own lack of expertise, and the need to establish specialised environmental courts.

In response to the recommendations of the Supreme Court, and a subsequent 186th report of the Law Commission of India, the NGT was established as a separate entity, independent of the Supreme Court, and became fully operational from 4July 2011.

The jurisdiction of the NGT

The NGT has jurisdiction in respect of both civil law and administrative law. Thus, it has jurisdiction to review government decisions on projects affecting the environment, as well as being able to hear individual cases claiming actual or potential injury arising from violations of environmental laws. The tribunal does not have jurisdiction in respect of criminal law, however, and this has given rise to criticisms that the tribunal has not effectively remedied the issue of multiplicity of proceedings, which partly motivated its creation.

The NGT Act 2010 has the right to a healthy environment at its core, as set out in the Preamble, empowering the tribunal to enforce any legal right relating to the environment in line with this right and internationally recognised environmental principles, particularly sustainable development, the precautionary principle and the polluter pays principle.

The penalty for non-compliance with the tribunal’s order can be severe, and extends to up to three years’ imprisonment and a fine of up to ten crore rupees for individuals, and 25 crore rupees for a company (approximately £1 million and £2.5 million respectively).

Access to justice

The rules of standing adopted by the NGT are as wide as those for the Supreme Court. This means that cases can be brought not only by directly affected individuals, but also by representative organisations. The wide interpretation is evidenced most clearly by the case of Vimal Bhai v Ministry of Environment and Forests, in which the NGT had to decide the meaning of ‘aggrieved person’ contained in s.18(2)(e) NGT Act 2010. Two of the appellants were social activists and one was an economist, but, nevertheless, the tribunal accepted that the rules of standing were satisfied, citing the Constitution of India. Article 51A(g) sets out:

It will be the duty of every citizen of India … (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

The NGT ruled that the implication of ‘every citizen’ mandated the tribunal to hear the complaint of an environmental threat from any person. This expansive approach clearly promotes effective access to justice, which is beneficial for environmental protection.

The rules of standing in UK law are far narrower, with the bringing of unmeritorious claims that waste time and money often cited as a central motivation for avoiding wide rules of standing. It is thus interesting that although the NGT has adopted extremely wide rules of standing, the floodgates of litigation have not opened to the unmeritorious claims that are so feared in the UK. The success of the NGT in relation to access to justice certainly lends weight to an argument for a relaxing of standing requirements for environmental cases in the UK.

The inclusivism of the broad standing provisions outlined above are underscored by the tribunal’s commitment to following circuit procedure, meaning the tribunal will go to the people rather than people coming to the tribunal. The NGT’s constituting of circuit benches able to hear cases outside of the state capital is aimed at improving accessibility for those living in poor and rural areas. Given that the effects of environmental degradation disproportionately affect those for poorer, marginalised groups in society, often referred to as environmental racism, this is a welcome approach.

Notable cases

Between May 2011 and February 2015, the NGT heard 808 cases. Though the vast majority of cases concerned pollution and environmental clearance, WWF reports that the tribunal has also heard cases on forest clearance, mining, forest conservation, limitation, coastal zone regulations, and the cutting of trees.

One key case adjudicated by the NGT concerned coal blocks in the Chhattisgarh forest. The tribunal cancelled the clearance given by the then Minister for Environment and Forests, Jairam Ramesh. The blocks required 1,989 hectares of forestland fell in an area that the government had initially demarcated as a ‘no-go’ area due to the conservation value of the forest. The clearance was given in June 2011, overriding the advice of the Ministry’s expert panel.

The NGT noted in this case that the responsible Minister took only one day to consider the application, and cited the proposed coal blocks links to a super-critical thermal power plant as a key justification. The NGT rejected this anthropocentric approach.

Another case, which has given rise to significant controversy, is the NGT decision of 7 April 2015, concerning air pollution in Delhi. In an attempt to curb dangerous levels of air pollution in the then most polluted city in the world, the tribunal prohibited 10-year-old diesel vehicles and 15-year-old petrol vehicles from driving in the capital. A petition was filed to the Supreme Court claiming the NGT had no jurisdiction to impose such a ban, but the Court upheld the NGT’s decision. Recent WHO figures show a decline in air pollution in Delhi, which certainly lends weight to the activism of the tribunal in this case.

Though on the face of it this decision seems refreshing, the potential ramifications for a large section of the ordinary Indian population are extraordinary. Sudha Shrotria notes that for the majority of Indians a car is a one-time buy, purchased using hard-earned savings or by taking out a loan. Thus, this decision has the potential effect that ‘a large section of the population will be put to hardship’.

Conclusion

While the Delhi air quality case highlights valid questions about the NGT acting ultra vires, it is clear that the environmental benefits outweigh the criticisms. The establishment of the NGT has had a profound effect on environmental protection in India. Its decisions have not only ensured greater protection for wildlife and their habitats, but also for the healthy environment of inhabitants of large cities and remote settlements alike.

The tribunal’s success begs the question of whether the establishment of a similar court or tribunal could have a similarly positive effect on environmental protection in the UK. Sir Harry Woolf was the first influential proponent of an environmental court in the UK, and called for the creation of a specialist environmental bench of the High Court to respond to the inadequacy of the general courts to deal with complex environmental issues.

Opponents of the creation of such a court would argue that there is less need for it in the UK, where the government has committed to effective environmental targets on key issues, such as renewable energy and climate change. Recently, however, the UK government has been instrumental in lowering EU air quality targets, which is both surprising and concerning given that air quality is a key issue in the UK. More importantly in this context, however, it highlights the inadequacies of political responses to environmental problems. Perhaps the NGT shows that broader judicial powers in relation to environmental protection are welcome.

The NGT’s mandate, however, has been empowered significantly by the constitutional protection of the right to a healthy environment. The right has even been considered by the Supreme Court of India to form part of the right to life. While many countries in Eastern Europe have a constitutional right to a healthy environment, the UK has shown far less commitment to the recognition of such a right. Furthermore, the strong separation of powers in the UK means that judicial activism of the kind so commonly shown by the NGT would be unwelcome in the British system.

Nonetheless, at the very least the establishment of an environmental court or tribunal in the UK could resolve issues of lack of expertise and lengthy hearings in the High Court. At best, the NGT’s liberal approach to standing, motivated by the socio-centric approach to environmental law, has the potential to be used as a blueprint for global environmental justice, improving governmental accountability and providing more effective environmental protection.

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Tagged: Environmental Law, International Law, Public Law

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