Too many hurdles in NGT’s way
A fundamental problem with the judicial system is lack of speedy disposal of cases, and this is so with environmental issues too. It was with a view to overcoming this problem that the National Green Tribunal Act 2010 was enacted. It is guided by principles of natural justice and not bound by civil procedures, and the period of case disposals is a maximum of six months.
There are five benches for NGT in different parts of the country and each of these consists of 10 expert members drawn from the bureaucracy and 10 judicial members. At present, these tribunals are not fully filled and the case disposal rate is only around 60 per cent.
Speedy and effective disposal is still a far cry. It could be achieved only when the full bench operates. However, the final results rest on several other unrelated factors.
There is a growing gulf between NGT and the ministry of environment, forests and climate change. The ministry feels NGT oversteps its jurisdiction. NGT has reprimanded the ministry on occasions like the governmental side being absent during its hearings.
More than half the cases filed in NGT relate to clearances awarded by MoEF&CC without proper environment impact assessments (35 per cent).
Animosity exists between judicial and expert members on the NGT benches. This is resulting in poor quality judgments. To avoid such scenarios, the benches need be broad-based. In cases where the lapses were on the part of the government, both NGT and the judiciary failed to deliver the right judgement.
For example, an Andhra Pradesh High Court bench dumped the Supreme Court order and the “precautionary principle” into the dustbin and delivered judgements in favour of government actions vis-a-vis the setting up of the Shamshabad airport in Hyderabad and the Pharma City in Visakhapatnam.
Mention must also be made of what NGT benches in Chennai and Delhi did while dealing with the issues of setting up the AP capital city in Guntur-Vijayawada and holding the World Cultural Festival in New Delhi, respectively. In these cases, identifying an alternative site (part of EIA) should have solved the problem. For example, the High Court had, in 2009, ordered an official to verify whether the site allocated to a power plant was in an ecologically sensitive zone or not. The official reported back that it was an ecologically sensitive zone. The government cancelled the allocation even before the court took a decision. This is the right spirit. This spirit is not always evident in the decisions of both NGT and the judiciary.
Dr S. Jeevananda Reddy, The writer is Convener, Forum for a Sustainable Environment.
NGT biting less than it can chew
Why take recourse to a “penalty” when there is power to “proceed against lack of good faith?” The National Green Tribunal order on March 9 against Art of Living imposes “an environmental compensation, initially of '5 crore, under Section 15 and 16 of the NGT Act. The NGT is empowered under Sections 27 and 28 to punish with imprisonment and/or fine, and proceed against government department/officials or private agencies if they are found guilty vis-a-vis environment laws and not acting in good faith. The issue now is destruction of Yamuna river and its plains.
In spite of the principal committee reporting damages of '120 crore as on February 20, as well as NGT’s own order of January 13 last year, wherein it was stated that “no construction and no celebration of any kind should be allowed on the flood plains of River Yamuna”, the NGT order of March 9 adopted a “too big to fail” global capitalist practice and ordered a “Pay and Pollute” or “Pollute and Pay” to the “too big” for it to stop '26 crore event.
In a hearing at the NGT (south zone), Chennai, in 2015, its Registrar held that a contempt petition under Section 26 of the NGT Act was not “entertainable” on grounds that as per Section 19, the NGT is a civil court. Further, the tribunal refused to initiate criminal proceedings against offending parties, stating that Sections 26 to 28 are penal provisions that can be dealt with only by criminal courts and not by NGT which is a civil court.
When a ruling of the tribunal is challenged in the High Court, hapless public-spirited citizens who hang on to the threshold of courts and tribunals for public causes, are confused.
The NGT (south zone) in 2015 ruled thus: “When the higher forum is seized of the matter, it would not be proper to proceed with a contempt petition.” The NGT did not have any objection to its order being stayed by HC in spite of Section 22 of the NGT Act which states that “any person aggrieved by any award, decision or order of the tribunal, may file an appeal to the Supreme Court”.
But, in July 2014, the Bombay High Court directed petitioner ONGC to approach the Supreme Court under Section 22 of NGT Act, saying that rulings of the NGT, as per provision of the NGT Act, were questionable only in the apex court. Section 20 states, “The tribunal shall, while passing any order or decree or award, apply principles of sustainable development, the precautionary principle and the ‘polluter pays’ principle, and according to Section 19, it shall be “guided by principles of natural justice.”
Surely, the NGT is biting less than it can chew.
Dr Lubna Sarwath, The writer is Co-convener, Save Our Urban Lakes, Hyderabad.
