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Environmental protection during the last few years has become not only a matter of national concern but also of global importance. It is now an established truth beyond all doubts that without a clean environment the very survival of mankind is at stake. Decline in environmental quality is evident from the fact that pollution is increasing at an alarming rate due to loss of vegetal cover and bio-diversity, excessive concentration of harmful chemicals in the ambient atmosphere and food chains. This has drawn attention of entire world community and judiciary was not an exception. In a developing country like ours, with uneducated masses, conditions of abject poverty, where the awareness of socio-economic and ecological problems is lacking, the judiciary has to play an active role to protect the people’s right against the anti-people order by infusing confidence in people as a whole for whom it exists.
The role of Indian judiciary in interpreting the constitutional provisions in the light of changed socio-economic perspective is worth appreciating. In the landmark case of T. Damodar Rao vs. S.O. Municipal Corporation Hyderabad (AIR 1987 AP 171) the High Court of Andhra Pradesh through judicial activism explicitly recognized an environmental dimension to Article 21. And since then there has no walking back as it has always raised a higher bar by including right to wholesome environment as a fundamental right under Article 21.
But with an increase in number of environment related cases and pending litigation a need for a different set up to deal with these cases was felt. And this paved the way for The National Green Tribunal. It was established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.
This paper aims to analyze and compare the work and approach of NGT and Judiciary with the help of few judgments.
The formulation of certain principles to develop better regime for protecting the environment is remarkable achievement of judicial review in India. In MC Mehta v. Union of India (AIR 1986 SC 1086), the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industry by interpreting the scope of power under article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. Apart from that there are various principles which have been formulated by Judiciary to deal with environmental cases they are sustainable development, polluter’s pay and absolute liability.
In order to understand the approach of Indian judiciary in handling environmental cases it is important to note the following landmark judgments.
In Union of India vs. Union Carbide Corporation 1989 2 SCC 540 also known as Bhopal tragedy case where after midnight on December 3, 1984 nearly 40 tons of highly toxic methyl iso-cyanide (MIC) escaped into atmosphere from the Bhopal plant of Union carbide and killed over 3500 persons who lived in dispersing chemical pathway. Experts declared it as the worst industrial accident that had ever taken place. While deciding the case on February 14, 1989 the SC of India induced the Indian Government and the Union Carbide Company to accept its suggestion for an overall settlement of the claims arising from the Bhoplal disaster. Under this settlement UCC agreed to pay 470 million US $ to the Indian Government. On this settlement the Supreme Court exercised its extraordinary jurisdiction and terminated all the Civil, Criminal and Contempt of Court proceeding against the UCC and in this way the curtain was finally drawn on Bhopal Tragedy case.
In the case of Sriram Foods and Fertilizer Industries and another v. Union of India and Others. (1986) 1 Comp. L.J. 25 SC also known as Oleum Gas Leak case, there was a leakage of chlorine gas from the plant resulting in the death of one person and causing hardships to workers and residents of locality. All this happened due to negligence of the management in maintenance and operation of the caustic chlorine plant of the company. The matter was brought to the notice of court through a PIL. The court while deciding the case directed the company to deposit a sum of Rs. 20 lac by way of security for payment of compensation and an addition Rs. 15 lac, subject to various conditions the court allowed reopening of the plant.
Finally, the general response of the courts in cases relating to large infrastructure projects is best summed up in one of the earliest judicial pronouncements in this case. An example of ‘judicial restraint’ would be the Kerala High Court judgment. The judgment, delivered in 1980, was on a petition that sought to forbid the state of Kerala from a proceeding to construct a hydroelectric project at Silent Valley on the ground that it was fraught with adverse environmental consequences. Relying more on governmental position than on any other considerations, the court said “…we cannot substitute our judgment for that of the government, on the question as to whether a national asset is to be more conveniently utilised as a hydroelectric project or retained in its pristine glory…” It further added, that “we do not think it necessary to cover the entire gamut of material – whether scientific, technical, technological or ecological placed before us in great detail. It is not for us to consider these evaluations as against the evaluation already done by the government…We are not to substitute our opinion and notions on these matters for those of the government” (Society for Protection of Silent Valley v. Union of India and Others, OP Nos 2949 and 3025 of 1979).
Supreme Court has been punitive and compromising in its approach to deal with environmental cases.
National Green Tribunal’s Approach
NGT was created by National Green Tribunals act 2010 to deal with environment and forest conservation related cases. In very short span of time it has achieved huge success and established itself as one of the trustful institutions in India. In a country beleaguered by problems of corruption, political interferences, delays, NGT’s timely decisions enhances public trust. Some of its decision like banning old diesel cars without bothering political pressure is laudable. Indian judicial system is characterized by delays and deadlocks. NGT has proved itself more efficient and quick as it did not compromise with environmental degradation and has taken strong actions. Few of its actions decisions are:-
Case: 1. NGT came down heavily on Sri Sri Ravi Shankar’s Art of Living foundation. It penalizing Art of Living of 4.5 crore for polluting flood plains on Yamuna River bank.
Case: 2. NGT Banned Diesel Vehicles older than 10 years in Kerala in order tp keep a check on increasing pollution.
Case: 3. NGT asked the DMRC to submit the details of the permission it has been granted for extraction of groundwater.
Apart from the instances mentioned above NGT has been working round the clock in order to attain sustainable development without compromising. The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. Further, NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. Thus, it will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered.
While passing Orders/decisions/awards, the NGT will applies the principles of sustainable development, the precautionary principle and the polluter pays principles.
However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.
Under Rule 22 of the NGT Rules, there is a provision for seeking a Review of a decision or Order of the NGT. If this fails, an NGT Order can be challenged before the Supreme Court within ninety days.
NGT has expert from environment field, unlike our judicial system, the presence of experts adds to the legitimacy of its pronouncements. Manned by visionary individuals who have stood the pressure of other branches of state, NGT has distinguished itself as an eminent organization in defence of environment in a very short period of time.
The Supreme Court at various instances has opined that environmental cases involve assessment of scientific data. In MC Mehta vs. Union of India, AIR 1987 SC 965-967 it emphasized that it would be desirable to have the setting up of “environmental courts on a regional basis with a professional judge and two experts keeping in view the expertise required for such adjudication”. Thus this body came into formation after various recommendation and suggestion.
The main reason behind the success of NGT is that it follows the principle of NATURAL JUSTICE and is not bound to follow the code of civil procedure. Chairperson of NGT is free from government influence and has taken independent decisions, sometime even thrashed government. NGT has sometime tried taking suo moto cases for environment protection which was banned by Madras high court.
Thus we can conclude that NGT has been efficient in dealing with environmental cases due its approach of protecting the environment but its limitations has marginalized its advancement.
Author: Aditya Sharma and Pankaj || ALS