THE IMPACT OF NATIONAL GREEN TRIBUNAL (AMENDMENT) ACT, 2021 IN RESOLVING ENVIRONMENTAL DISPUTE IN INDIA

S. keerthana,

Tamil Nadu Dr. Ambedkar law university Soel

1. INTRODUCTION:

The National Green Tribunal was established on 18th October 2012 under the National Green Tribunal Act, 2010[i]. It was brought specially to handle environmental related disputes and it is a quasi-judicial body established by the government. This Tribunal was formed by replacing The National Environmental Appellate Authority. The Constitution of India gives certain fundamental rights to the citizen from Article 12 to 32 in which Article 21[ii] speak about the right of the people to live in a pollution free environment as the right. So in order to ensure the right of the citizen The National Green Tribunal was established. In India the National Green Tribunal was located in five places they are Bhopal, Pune, New Delhi, Kolkata, Chennai and among this the headquarters is located in New Delhi. India is the third country to set up National Green Tribunal especially for Environmental related disputes after Australia and New Zealand. It is the first developing country to do it. Section 14(3)[iii] of The National Green Tribunal Act, 2010 makes it mandatory for the tribunals to disposal of applications or appeals finally within 6 months of filling of the same.

NATIONAL GREEN TRIBUNAL ACT, 2010:

Section 2(e) of the National Green Tribunal Act, 2010 provides that the word ‘Environment’ includes water, air and land and the relationship between water, air and land and human beings, other living creatures, plants, micro-organism and property. The National Green Tribunal comprises of chairperson, the Judicial member and Expert member. Section 2(b) defines chairperson and Section 2(d) of the National Green Tribunal act defines Expert member is the member of the Tribunal who appointed based on the qualification prescribed in Section 5 of the act. They hold the office for term of three years or till the age of 65 years, and they are not eligible for reappointment. As per Section 6(2) of the National Green Tribunal Ac the chairperson is appointed by the Central Government in Consultation with Chief Justice of India[iv]. There will be a selection committee who appoints the Judicial and Expert members. There shall be minimum of 10 and maximum of 20 Judicial members and Expert members in the Tribunal.

1.2 POWERS OF THE NATIONAL GREEN TRIBUNAL:

Section 13 of the National Green Tribunal[v] Act says that the chairperson shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government. The National Green Tribunal[vi] can provide relief and compensation to the victims of the pollution and environmental damage and clause (c) speaks about restitution of the environmental for such area or areas as the Tribunal may think fit. The order, decisions, award granted by the Tribunal is executable in the same manner as the degree of the Civil court. The National Green Tribunal Act also provides provision related to the penalty such as it any person fails to comply with any order or award or decision of the Tribunal shall be punishable with imprisonment for a term which may extend 3 years or with fine which may extend to ten crore rupees or with both. In case of the contravention continues the fine may extend to 25 thousand rupees for every day during which the contravention continues.

1.3 JURISDICTION OF THE NATIONAL GREEN TRIBUNAL:

Section 14(1) of the National Green Tribunal Act provides Jurisdiction of the National Green Tribunal. The National Green Tribunal has the Jurisdiction Over all Civil Cases involving questions with regard to environmental disputes. The National Green Tribunal[vii] deals with environment-damaging activities and it ensures there is a strict implementation of the Environment Impact Assessment (ETA) process. It also includes several Environment related laws such as

ü  The Water (Prevention and Control of Pollution) Act, 1974.

ü  The Water (Prevention and Control of Pollution) Act, 1977.

ü  The Forest (Conservation) Act, 1980.

ü  The Air (Prevention and Control of pollution) Act, 1986.

ü  The Environment (Protection) Act, 1986.

ü  The Public Liability Insurance Act, 1991 and

ü  The Biological Diversity Act, 2002.

If there is any violation made on the above Act or if the Government makes any changes in the said

Act, it can be challenged before the National Green Tribunal.

1.4 PROCEDURES OF THE NATIONAL GREEN TRIBUNAL:

The National Green Tribunal shall not be bound by the provisions of the Code of Civil procedure, 1908 and the rules laid down in Indian Evidence Act, 1872 which is now know as Bharatiya Sakshya Adhiniyam[viii]. But it still be governed by the principles of Natural Justice and it can be formulated its own proceedings. The Tribunal while trying a suit, in respect of the following matter, namely summoning and enforcing the attendance of any person and examining him an Oath, receiving evidence on affidavits, subject to the provisions of section 123 and 124 of Indian Evidence Act, 1872.

1.5 APPEAL PROCEDURE:

The Aggrieved party by any award, decision or order of the Tribunal, may file an appeal to the Supreme Court[ix] within ninety days from the date of the grant of award, decision or order of Tribunal to him on any one or more ground specified in Section 100 of the Code of Civil Procedure, 1908.

1.6 APPLICATION OF CERTAIN PRINCIPLE BY THE TRIBUNAL:

The National Green Tribunal has to apply principle of Sustainable development, the precautionary principles and the polluter pays principle while deciding any award, order or decision in any case.

1.7 LOCUS STANDI OF THE PERSON APPEARING BEFORE THE TRIBUNAL:

Under Article21[x] of the Indian Constitution has ensures certain Fundamental rights to the Citizen of India in which the right to live in a clean and healthy environment is also included under Article 21 along with this right the citizen is also given duty to protect the environment[xi] under Article 51A(g) of the India Constitution. Section 18(2) of the National Green Tribunal Act restricts the Locus Standi of the person who are appearing before the Tribunal to-

a) The person, who sustained he injury; or

b) The owner of the property to which the damage has been caused; or

c) Where death has resulted from the Environmental damages, by all or any of the legal representatives of the deceased; or

d) Any agent duly authorised by such person or any owner of such property or all the legal representatives of the deceased, as the case may be; or

e) Any representative body organization functioning in the fields of environment, with permission of the Tribunal; or

f) The Central Government or a State Government or a Union Territory administration or the central committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time before in force, with the permission of the Tribunal

1.8 AMENDMENTS MADE TO NATIONAL GREEN TRIBUNAL ACT, 2010:

The National Green Tribunal was amended several times. One of the significance Amendment made to it is National Green Tribunal (Amendment) Act, 2021. This amendment has been adopted from the Tribunal Reforms Act, 202, which has amended various Tribunal act like Income-tax Act, 1962, The Customs Act, 1962, The Railway Claims Tribunal Act, 1997 and so on. But it has a major impact on the National Green Tribunal Act, 2010[xii] they are

(a) APPOINTMENT TO THE NATIONAL GREEN TRIBUNAL:

Before the Amendment the chairperson, Judicial member and Expert member are appointed by the Central Government but after Section 3 of the Amendment has provided that the judicial committee should involve in the appointment process in order to ensure independence of the Tribunal from the executive influence.

(b) SELECTION COMMITTEE:

Section 7 of the amendment suggests for the strengthening of the selection committee of the members to the National Green Tribunal so that the there will be no potential bias in the selection process and the more deserving candidates will be appointed as the member of the Tribunal in order to protect the Environment.

(C) TENURE AND AGE LIMIT OF THE MEMBERS:

Section 8[xiii] of the Amendment also makes changes related to tenure of the members of the National Green Tribunal in which it states that chairperson and other members has tenure of 4 years but earlier the chairman has the tenure of 5 years along with him Judicial and Expert members tenure were also 5 years with the age limit of 65 years. It also makes changes related to the age limit of the chairperson and other members. In which it states that the age limit may extended in the exceptional cases.

(d) CENTRALIZED POWERS IN THE CENTRAL GOVERNMENT:

Section 3 and Section 12[xiv] of the amendment makes changes related to the Centralized Powers[xv] vested in the Central Government. In which it states that the power must to Decentralized by the Central Government with regard to appointment, service condition and introduce the checks and balance system in order the maintain the independency of the Tribunal as well as to provide for the Judicial review of the Orders passed by the Tribunal.

(e) REVIEW MECHANISM OF THE NATIONAL GREEN TRIBUNAL:

Section 19[xvi] of the act provides that the award, orders or decision passed by the Tribunal are reviewed through the independent panel members or board rather than the Chairperson or the members of the Tribunal in order to ensure the accountability and transparency of the Tribunal. Section 20 also makes changes related to review of the Audits and performance of the tribunal by the independent bodies.

(f) APPEALS:

Section 22[xvii] of the act allowing more time to filing an appeal in the Supreme court, then the earlier National Green Tribunal Act, 2010.

(g) EXPERT MEMBERS:

Section 5[xviii] of the amendment act states that inclusion of  more expert members will strengthen the justice system of the Tribunal. It also suggests that appointing more science background members who are expert in the Environmental related matters will provide Expert solution to the problem related to the Environment.

1. OBJECTIVE OF THE STUDY:

ü  To Assess the Independence of the National Green Tribunal

ü  To Evaluate the Effectiveness of the National Green Tribunal in resolving issues related to the Environmental disputes.

ü  To study the impact of the Amendment made to the National Green Tribunal Act, 2010.

2. LITERATURE REVIEW:

ü Anmol vashisht, The National Green Tribunal Act, 2010-A Critique, Research Gate, January 2014, The National Green Tribunal Act received the assent of the president on 2nd June 2010. Due to increase in the case related to the Environment and it increased the burden of the Traditional Court in India the parliament decided to Constitute National Green Tribunal under the legislature National Green Tribunal Act, 2010. Which deals specifically with the environment related disputes.

ü  T. N. Subramaniam, The Mechanism of the National Green Tribunal, National Law School of India Review, Volume 30, issue 1, Article 6, 2018. The National Green Tribunal was established across the nation to specifically deal with the dispute related to the Environment. This raging from expanding the scope of the Tribunal on exercise of its function and power in relation to the provisions of National Green Tribunal Act. Tribunals must harmonize environmental care and development. It should prevent abuse of the process and interpret and apply the provision of the Act in manner such that justice is done to the environment, without injustice to others.

ü  Swapan Kumar Patra & V.V. Krishna, National Green Tribunal and Environmental Justice in India, Indian Journal of Geo-Marine science, Volume 44(4), April 2014. Government of India has formed the National Green Tribunal during the year 2010. National Green Tribunal is a Quasi-Judicial body deals exclusively with the environmental related problem related to the civil litigation. There were National Environmental Tribunal Act, 1995 and National Environmental Appellate Authority Act, 1997. The National Green Tribunal provides various environment related disputes in India.

3. RESEARCH METHODOLOGY:

In this study the researcher has used the Doctrinal method to test the hypothesis and to conduct the research. The researcher used various secondary date like legal article, case laws, legislation and other available resources to test whether the hypothesis is true or false.

4. HYPOTHESIS:

H1: National Green Tribunal is Independent in Nature.

H2: National Green Tribunal is Effective in Resolving Environmental Disputes.

H3: Amendment made to the National Green Tribunal Act, 2010 is Effective in Resolving Disputes related to the Environment.

5. RESULTS AND DISCUSSION:

As discussed above the National Green Tribunal (amendment) Act, 2021 made significant change in the National Green Tribunal Act, 2010. At first there were many cases filed in the supreme court related to the Environmental disputes so the court gave some power to the Law commission of India to find out some solution of the this. The law commission has recommended to establish a National Green Tribunal by passing the Legislature that is National Green Tribunal Act, 2010 which is already mentioned in Article 247 of the Constitution under the heading ‘Tribunal’. The Tribunal does not have the same Constitutional power from that of a Civil court or High court in India. Ministry of Environment and Forest has said that the Tribunal does not have power to act suo moto in the Environmental related issues[xix]. MOEF also states many shortcoming of the National Green Tribunal regarding its power and function and states that it has been going beyond its jurisdiction. There is also controversy regarding the appointment of members to the Tribunal. In addition Section 14 (3)[xx] of the National Green Tribunal Act, 2010 states that ‘ No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose’. The Expert members of the National Green Tribunal includes technical experts from science and other branches of studies. So the National Green Tribunal (Amendment) Act, 2021 made major changes related to the appointment and extend the duration for filing the appeal before the Supreme court. In section 3 of the Amendment Act makes changes related to appointment of members that ensures Tribunals are independent from the judiciary and the section also enables for the judicial oversight. Section 7[xxi] of the act recommends for the selection committee so that the selection process would be without any biases by having members with the knowledge related to the dispute will help the Tribunal to solve the problem quickly than the regular Judicial proceedings. One of the main advantage of Tribunal is that it have its own procedure so it can resolve the dispute quickly than the traditional Court in India. It also saves the time of the higher courts in India. By extending the tenure of the members it ensures consistency in handling complex environmental problems. Under Section 3 of the Amendment act certain power Decentralized by the Central Government which ensures that the appointment to the Tribunal are made by independent body rather than Central Government in order the maintain the Separation of government influence over the Tribunals and its also enables for Judicial review of the act done by the National Green Tribunal. Since the Tribunals are not governed by the Code of Civil Procedure or the Indian Evidence Act, it follows principles of Natural Justice gives fair justice and necessary solution to the aggrieved party. The amendment in Section 4[xxii] makes suggestion to make regional Branches for the Tribunal in remote area by this it resolves various disputes related to Environment. Apart from this the National Green Tribunal also imposes punishment in case of disputes related to Environment. It also deals with the matter that are mentioned in the Schedule 1[xxiii]. So it has been proved that the above said hypothesis are true.

6. RECOMMENDATION:

ü  Setting new Institution to evaluate the performance of the National Green Tribunal

ü  Increasing public awareness and education about the National Green Tribunal

ü  To ensure that the National Green Tribunal Promotes Sustainable development

7. CONCLUSION:

India is the First developing country to establish Tribunal specifically for Environmental disputes after Australia and New Zealand. National Green Tribunal Act is a quasi-judicial body and it provides quick solution to the disputes related to Environment. It consists of the equal number of members both from the Judiciary and Expert in the field of Environment. It is expected that the professionals from both the field will render justice to the people who are suffering. National Green Tribunal[xxiv] gave many judgments in various cases like ban on illegal sand mining, against noise pollution in Delhi preservation of biodiversity of Western Ghat Mountains, Wildlife protection at National Park in Assam. So in this research we have come to the conclusion that National Green Tribunal Act plays significant role in the functioning of the National Green Tribunal. The Tribunal Acts on the provisions of the National Green Tribunal Act, 2010.

REFERENCE:

1. The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

2. The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

3. Port of Kandla v. Hargovind Jasraj, (2013) 3 SCC 182.

4.Khatri Hotels Ltd v. Union of India, (2011) 9 SCC 126.

5.Law commission of India, 138th Report of the Law Commission of India on the proposal to Constitute Environment courts, 132, 148 (September, 2001).

6.Indian Council for Enviro-legal Action v. Union of India, (1996) SCC 212.

7.The Bharatiya Sakshya Adhinaniyam, 2023, No. 47, Act of the parliament, (2023) India.

8.Karol Bagh, National Green Tribunal, Dridhtiias, 11 Dec 2018, 11:39pm, https://www.drishtiias.com.

[i] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[ii] The Constitution of India, 1950

[iii] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[iv] Karol Bagh, National Green Tribunal, Dridhtiias, 11 Dec 2018, 11:39pm, https://www.drishtiias.com.

[v] M.C. Mehta v. Union of India, AIR 1987 SC 1086.

[vi] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[vii] Law Commission of India, 186th report on proposal to constitute Environment courts 142 (2003), Available at https://Lawcommissionofindia.Nic.In/Reports/186th%20report.pdf.

[viii] The Bharatiya Sakshya Adhinaniyam, 2023, No. 47, Act of the parliament,(2023) India.

[ix] Vellore Citizen’s Welfare Forum v. Union of India, (1996) 5 SCC 647.

[x] Law commission of India, 138th Report of the Law Commission of India on the proposal to Constitute Environment courts, 132, 148 (September, 2001).

[xi] Indian Council for Enviro-legal Action v. Union of India, (1996) SCC 212.

[xii] A. P. Pollution control Board v. M.V. Nayudul, (2001) 2 SCC 62.

[xiii] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[xiv] Port of Kandla v. Hargovind Jasraj, (2013) 3 SCC 182.

[xv] Khatri Hotels Ltd v. Union of India, (2011) 9 SCC 126.

[xvi] The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

[xvii] The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

[xviii] The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

[xix] Sethi, N., The Hindu, Green Tribunal does not have powers to act suo motu, says govt.

(http://www.thehindu.com/news/national/green-tribunal-does-not-have-powers-to-act-suo-motu-says-

govt/article5118106.ece) September 12th 2013

[xx] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[xxi] The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

[xxii] The Tribunals Reforms Act, 2021, No. 33, Act of the Parliament, (2021) India.

[xxiii]The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.

[xxiv] The National Green Tribunal Act, 2010, No.9, Act of the parliament, (2010) India.