National Green Tribunal

Submitted by:

Ashutosh Patel

Anupam Goyal

Anshu Maheshwari

Mansha Mehta

Nikunj Khedia

Shresth Agarwal

About the Tribunal

The National Green Tribunal (NGT) has been set up in 2010 under the National Green

Tribunal Act 2010 to act as a specialised tribunal with disposing environmental cases on a

priority basis. The larger basis is to preserve the increasing damage to natural resources and

ensure that the costs of development is aligned with the benefits of it. The quasi-judicial body

takes pride into possessing necessary skill to deal with the technical questions having multi-

disciplinary issues.

The devoted stalwarts in the Tribunal, effectuating their experience in the ecological issues

aims to ensure equity and help diminish the burden of higher courts, since the decisions of

tribunal can only be appealed to The Supreme Court. The Tribunal bears the responsibility to

dispose a claim in about six months of accepting the same. The NGT presently functions at

five spots in India with its principal bench at New Delhi and regional branches at Bhopal,

Pune, Kolkata and Chennai. Nevertheless, it aims to increase its presence on a need basis.

Structure of NGT

As stated in Chapter 2 of National Green Tribunal Act 2010, the tribunal includes three

significant bodies in particular: The Chairperson, the Judicial Members, and the Expert

Members. Additionally, there should be at least 10 and a limit of 20 fulltime Judicial as well

as Expert individuals in the NGT. The Chairperson of the NGT is appointed by the Central

Government of India in consultation with the Chief Justice of India. The Selection Committee

is responsible for the appointment of Judicial Members and Expert Members.

Need for National Green Tribunal

With the brief introduction above, the aims and objectives of the NGT is clear, however, it is

also important to comprehend the motivation behind setting up of such a specialised tribunal

in place, illustrated below.

The competent authorities who adjudicated matters relating to environmental issues before

the establishment of National Green Tribunal were mainly the Courts, the Boards and

Adjudicating authorities established under specific Acts such as The Water (Prevention and

Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981.

The presiding officers did not have the necessary technical and scientific knowhow to deal

with environmental issues. The authorities were always dependent upon the assistance from

experts. Furthermore, the authorities were often found in a dilemma, when conflicting expert

opinions were presented before it, and they could not independently evaluate them.

It is also important to note that environmental activism and related laws is a novel concept,

combined with lack of jurisprudence existed until recent times. Therefore, presiding officers

faced a hard time in dealing with such matters. Furthermore, the presiding officers lacked

judicial as well as technical mind relating to such issues.

The above concerns clearly indicate the inability and ineffectiveness of the authorities to deal

with environmental matters. Furthermore, taking accord of such concerns, the Supreme Court

has also on various counts appealed the government to take action and establish separate

tribunals.

In A.P. Pollution Control Board vs. M.V. Nayudu1, the Court referred to the need for

establishing Environmental Courts which would have the benefit of expert advice from

1
1999(2) SCC 718
environmental scientists and technically qualified persons, as part of the judicial process. The

Court believed that it was necessary in the interests of justice to have such assistance.

Furthermore, in the above case, the Court criticized the authorities created by Water

(Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of

Pollution) Act, 1981) for adjudication, and pointed out that the authorities were not

competent to deal with matters relating to environmental law.

In M.C. Mehta vs. Union of India 2, the Supreme Court said that most of the environment

cases involve assessment of scientific data, it was desirable to set up environment courts on a

regional basis with a professional Judge and two experts, keeping in view the expertise

required for such adjudication.

Furthermore, it is important to note that present competent authorities are used as a medium

only after damage is done, but giving accord to the high stakes involved in environmental

matters, it is important to take cognizance before such damage is done. This is an additional

function which can be performed by the regional Tribunals.

Additionally, it is also crucial to not lose sight of the need for development of the industries,

irrigation and power projects3. We cannot ignore the need to improve employment

opportunities. The Courts must therefore be able to perform a balancing task, where they also

offer means for growth and development alongside environment protection.

Therefore, keeping in mind, the above concerns the Parliament enacted the National

Environmental Tribunal Act, 1995 and the National Environmental Tribunal Appellant Act,

1997 to establish special tribunals to deal with environmental matters.

2
1986(2) SCC 176
3
185th Report by Law Commission of Commission of India
This was the first effort expressed by the Parliament to ensure that the adjudicating

authorities concerning environmental concerns were manned by officers with judicial

background, and officers with required technical & scientific knowledge.4

Unfortunately, the Act itself has not been notified, and the Tribunal has not been constituted

in that last eight years. Therefore, it was extremely important to establish a tribunal i.e. the

National Green Tribunal (NGT), that addresses the concerns revolving environmental matters

by incorporating officers who were well averse with the developed environmental

jurisprudence and technical knowledge.

Hence, the establishment of National Green Tribunal (NGT) to take care of all the expressed

concerns related to environment. It aimed at redressing all the statutory lacunas, by allowing

for experts in the panel of adjudication. The National Green Tribunal Act, 2010 allowed for

the liberty to excuse them from the application of Indian Evidence Act or Civil Procedure

Code. The larger aim was to ensure speedy remedy, in line with the principles of natural

justice. The locus standi of the act is also wide enough to include any person who is

aggrieved with environmental harm, and the burden of proof being reversed to make the

alleged polluter establish his defense.

The case of M/S Sterlite Industries v Tamil Nadu Pollution Control Board 5 shed further light

on the working of NGT. It clarified that NGT has to ensure the application of following

principles while deciding a case:

 Polluter Pays – The one causing pollution has to bear damages and remedy it.

 Precautionary Principle- Certain precautionary steps should be taken even if there is

lack of any environmental risk.

4
Ibid
5
M/S Sterlite Industries v Tamil Nadu Pollution Control Board 2013 SCC OnLine NGT 3056
  Sustainable Development – The development should always align with nature and be

sustainable.

The Tribunal also clarified that it had the power to directly accept an appeal from the state

pollution control board thus bypassing an appellate body if the particular body has not been

instituted. It established the principle of doctrine of necessity to clarify that certain

circumstances necessitate the invocation of a special remedy which may not be barred by

law.

Critique of the NGT

As we have read above, the NGT was formed to deal with environment issues and have

experts to deal with such problems. But due to its many hardships, it is failing to comply with

the objectives that the Act specifies. NGT faces a lack of support from the government when

it comes to the enforcement of decisions of the NGT or even in filling of the vacancies.

Section 4 of the Act prescribes for a minimum of 10 judicial and expert members, but till

date, this requirement has never been fulfilled. NGT currently also only has 3 judicial and 3

expert members in its benches. The lack of personnel and support staff coupled with

problems with the infrastructure and remuneration, the decision-making power of the tribunal

is hampered. The members on the board lack the “Environmental Finesse” expected off them.

They generally specialise only in a particular field instead of an expertise in the Environment

as a whole. The cases require an expert mind to be applied to them so as to come to a logical

conclusion, but more often than not, this turns to a quick dismissal of cases or the judgements

so passed are appealed before the Supreme Court. The six-month dispute resolution
requirement has also been overlooked. The workload on the four benches is enormous, as the

number of these benches along with the members on the board is not proportionate to the

cases. The NGT lacks criminal jurisdiction and two major acts (the Wildlife Protection Act,

1972 and Indian Forest Act, 1927) are not even part of its scope. This limited jurisdiction and

the limited ambit of its power is another problem faced by the NGT. There is a lack of

awareness on the part of the people with respect to the correct forum to approach and the

location of these benches also act as hindrance as it becomes expensive and impossible for

the downtrodden or the tribal to approach this tribunal over the issues faced by them. All of

these problems pose as a threat for the subsistence of the NGT because it surely cannot meet

the ends of justice with the issues at its own working level. For a better functioning, these

issues cannot be overlooked, so as to allow NGT to work in the most efficient manner.

The National Green Tribunal needs to take a more holistic approach to truly be an effective

environment regulator. The United Nations Environment Program (hereinafter UNEP) is a

body that aims to prevent environmental degradation, and from the view point of

strengthening Environmental Courts and Tribunals, some of its aims are to ensure

transparency and cater to precaution and prevention of environmental harm.6 The UNEP’s

Guide to Policy Makers for strengthening and improvising their ECT’s provides for certain

assessments and best practices to truly make them more effective. A reason for providing

such a guide is also to ensure uniformity in the functioning of ECT’s across the globe, so as

to strengthen the ambit of ECT’s nationally and internationally. The external assessments

serve as an indicator of how the justice system of the entire country is, as a whole. For

instance, in the Environmental Performance Index, India ranked 168 out of 180 in 2020. This

low score shows the need to focus on the betterment of air and water quality. Controlling air

quality should be something that must be of utmost importance to the policy makers, but the

6
George Pring & Catherine Pring, A Guide for Policy Makers (United Nations Environment Programme, 2016)
NGT isn’t able to solve this. The Rule of law Index gives a detailed insight into the adherence

of the rule of law in practice by the countries. 7 The rationale behind incorporating this index

is to see the justice system and the policy makers’ ideas as a whole. India has never been

ranked in the top 50 out of 128 nations. To truly be an effective regulator, matters must be

taken adhered to before the damage is done. For environmental harm cases, once the damage

is done, its rectification is far more difficult. The NGT needs to have sub wings and bodies in

order to pursue the prevention of such harm at the grass root level. While it was recently held

that the NGT can take suo moto cognizance in order to truly perform its function of

preventing environmental degradation, its use has been minimal. Therefore, while the need

for the NGT is unquestioned, its improvement will be more fruitful and essential for the

betterment of India’s Environment.

7
ibid
Bibliography

1. A.P. Pollution Control Board vs. M.V. Nayudu, 1999(2) SCC 718

2. M.C. Mehta vs. Union of India, 1986(2) SCC 176

3. 185th Report by Law Commission of Commission of India

4. M/S Sterlite Industries v Tamil Nadu Pollution Control Board 2013 SCC OnLine

NGT 3056

5. George Pring & Catherine Pring, A Guide for Policy Makers (United Nations

Environment Programme, 2016)