Posted 27 June 2011, by Kanchi Kohli, The Morung Express, morungexpress.com
July 4, 2011 will witness the first hearing of the newly constituted National Green Tribunal (“the NGT”) after more than a year in the waiting and amidst deep scepticism. A Bill approving the setting up of India’s NGT was passed in both houses of Parliament after substantial questioning in April 2010. While the Minister of Environment and Forests, Jairam Ramesh (“the MoEF”) backed this proposal as one which was designed as a judicial remedy for quick and easy disposal of environment related cases, it was not without concerns being raised by parliamentarians, lawyers, and civil-society groups around both the content and intent of the NGT. Although the NGT was officially launched in October 2010 with the appointment of Justice L.S. Panta as its Chairperson, its actual functioning required a tedious push through directions from the Supreme Court and consistent pleas from local communities who have had no specialised forum for redressal.
As envisaged by the MoEF, the NGT is to consist of expert members from the fields of environment and related sciences, who, along with the judicial appointees, have been empowered to issue directions for the compensation and restitution of damage caused from actions of environmental negligence. It would decide on a range of laws relating to pollution, diversion of forestland for non-forest use, as well as environmental clearances. The remedies that can be sought relate both to questioning the basis of the approvals as well as challenging the environmental and human health impacts of a project in operation. It is important to note that all these laws have a huge bearing on our lives and are supposed to regulate pollution where we live and not allow any projects which are detrimental to the environment to be established. And if yes, not without adequate safeguards.
In addition, the NGT also has the authority to rule over grievances when a researcher or industry gets access to a local biological material like a herb, seed or knowledge associated with it, without sharing benefits with the original conservers of that material or knowledge. This procedure forms part of India’s Biological Diversity Act, 2002.
The NGT has been presented by the Minister himself as a “pioneering” step towards creating an institution along the lines of those in existence in countries like Australia and New Zealand. Till the benches of the NGT become functional at Bhopal, Pune, Kolkata, and Chennai, petitions are to be filed at New Delhi.
While the scope might sound vast and encouraging, there are already clauses of the NGT along with its long delay that don’t render much faith in the direction it will be headed in. For instance, two significant issues with the NGT are that (unlike National Environment Appellate Authority (“the NEAA”) that it replaced), it actually opens the doors for project authorities who have been rejected environmental clearance under the Environment Impact Assessment Notification, 2006 (“the EIA”) and keeping environmental matters out of local courts which are much more approachable. Prior to the NGT, the NEAA could be approached essentially by those aggrieved by the grant of environmental approvals for setting up industrial and infrastructure projects. Why this issue becomes important to reckon with is because the MoEF continues to grant approvals to approximately eighty to hundred projects every month, and that too, on poor assessment. The rejection rate remains very low and in most cases implies reconsideration. The NGT now allows even those few projects to get a second chance. Further, all appeals dealing with the substantial issue of environment will now go to the NGT or its benches, and will not be entertained in any other courts.
When the NGT Rules were discreetly finalised in April 2011 (a year after it first cleared Parliament), it had a very discriminatory clause. As per these rules, anyone seeking compensation is required to pay one per cent of the compensation being sought as application fee. So if an affected person living around a polluting industry was to seek a compensation of Rupees Ten crores, they would be required to cough up Rupees Ten lakhs to be able to even approach the NGT, leave alone seek a favourable order. The MoEF justified this as being a deterrent to frivolous and non-serious applications, but finally withdrew the clause in favour of the affected people after civil-society groups identified this lacunae and brought it to the notice of all.
If one is to go by the 2011 rules, the NGT’s application procedure is not simple and easily comprehendable. It isn’t possible for any affected person to approach the body without seeking professional legal help. The filing of appeals requires similar and perhaps more stringent procedures than those followed in courts. So much for quick and easy redressal, or maybe that wasn’t really ever the intent. Given the limited amount of pro bono assistance available in the country today, it will be very vital to witness the profile of persons who actually land up being able to approach the NGT.
On July Fourth, the NGT will begin hearing matters which have been pending since October 2010 which is when the NEAA was disbanded awaiting the functioning of the NGT. There are many projects where the lack of a forum to approach for judicial remedy has allowed for projects to continue business as usual with an unchallenged approval in hand. The NGT will also initiate hearing fresh matters that have been filed invoking the jurisdiction of this new body promising green justice.
As mentioned earlier, getting the NGT functional has not been easy and there have been very important deliberations in the Supreme Court which have pushed the MoEF to act. Understanding this chronology is critical in order to get an insight as to how these different forums promising environmental justice were pushed to be revived and made to carry out their tasks. I will try and unfold some of this in the coming weeks.