Eco justice, environmental costs and the NGT

Many conservationists and non-governmental organisations (NGOs) often grapple with the question of which legal forum to approach, to ensure the protection of the environment, forests or wildlife. The Supreme Court, as well as high courts, are Constitutional courts and have complete jurisdiction to hear public interest litigation (PILs) concerning infringement of fundamental rights as well as violations of all laws. This is an extraordinary constitutional right which must be exercised responsibly, and only after exhausting all statutory and administrative remedies.

Approaching the National Green Tribunal (NGT) is another option when statutory authorities fail to implement laws to protect the environment and forests. The NGT is a statutory tribunal, established under the National Green Tribunal Act, 2010, enacted by the central government. The objective is to provide a specialised forum for effective and speedy disposal of cases pertaining to protection of the environment, conservation of forests and to seek compensation for damages caused to people or property due to violation of laws or conditions specified while granting permissions for projects.

The principal bench of the NGT is located in New Delhi, with zonal benches in Pune, Bhopal, Chennai and Kolkata. Each bench has a specified geographical jurisdiction covering several states. There is a provision for circuit benches at Shimla, Shillong, Jodhpur and Kochi. Further, the zonal benches can decide to have sittings in other places within their zones. Each bench of the NGT will have at least one judicial member and one expert member. Judicial members are retired judges of high courts and expert members are those with professional qualifications in the field of environment and forest conservation.

So what is the fundamental difference between a court and a tribunal? The Supreme Court has previously observed that “every court may be a tribunal but every tribunal necessarily may not be a court”. More recently, in a far-reaching interpretation, the Supreme Court held that – “The National Green Tribunal under Section 14 and 22 of the NGT Act does not oust the High Court’s jurisdiction under Article 226 and 227 as the same is a part of the basic structure of the Constitution”. 

Thus, it is clear that a concerned citizen or an NGO, has three options viz. to directly approach the Supreme Court through a writ petition under Article 32 or the high court under Article 226 or 227 (both commonly referred to as PIL), or to approach the NGT by filing an ‘original application’ on matters concerning environment and forest protection. And if the application before the NGT fails, an appeal can be filed before the high court. 

All applications seeking adjudication of a dispute (questioning a government decision that may cause environmental damage) must be filed within six months and an application for grant of compensation or relief, or restitution of property or environment, must be made within a period of five years, from the date on which the cause of action first arose.

Unlike the high court which has wide-ranging powers covering all constitutional provisions and enacted laws including power of contempt, the NGT is only vested with powers to hear civil cases relating to environmental issues under seven laws. This includes the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act, 1980; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; the Public Liability Insurance Act, 1991; and the Biological Diversity Act, 2002.

However, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927, state forest Acts and other laws enacted by states relating to tree preservation etc. 

So if an NGO is trying to insulate a protected area from the potential impact of a dam due to submersion of habitat or a proposal to construct a new highway, it would be legally prudent to approach the state high court or the Supreme Court. 

The Union government must consider strengthening the NGT by including the Wildlife Act and other related forest laws in Schedule I of the NGT Act.

Natural justice

On the other hand, unlike courts, the NGT is also not bound by the Code of Civil Procedure, 1908, but is guided by principles of natural justice. The NGT is also not bound by the rules of evidence specified under the Indian Evidence Act, 1872. This makes it relatively easier for conservationists and NGOs to present facts and issues before the NGT. This may include pointing out technical flaws in a project or proposing alternatives that could minimise environmental damage. 

Further, the applicant can argue the matter, provided he or she is well acquainted with the facts and is reasonably knowledgeable about the law and procedures. While passing orders, decisions or awards, the NGT applies the principle of sustainable development, the precautionary principle and the ‘polluter pays’ principle.

The NGT is also empowered under Section 26 to impose penalties in case of non-compliance of its orders, which can be imprisonment for up to three years or fines extending to Rs 10 crore, or both. Continued failure to comply can attract a fine of Rs 25,000 per day. In case of companies, the fine can extend to Rs 25 crore and if the contravention continues, the additional fine will be Rs 1 lakh every day. 

Notably, if the NGT finds that a claim made is false, it can impose costs on the applicant. This may include recovery of lost benefits to the project proponent due to delays caused by an interim injunction.

Since its inception, there have been several landmark orders of the NGT to ensure environment protection. Under the ‘polluter pays’ principle, the NGT imposed a Rs 100-crore fine on a shipping company for ecological damage caused due to an oil spill in 2016. That same year, it also ordered compensation of nine crores to people affected by Uttarakhand floods caused by construction of a dam by a private company. In response to a news report, the NGT issued directions for identification, protection and restoration of water bodies across the country in 2020.

Remarkably, the NGT has instantaneously intervened on the basis of credible news reports by invoking its suo motu powers in many cases. In the well-known case of Bellandur lake in Bengaluru, the NGT ordered restoration under the oversight of a former Supreme Court judge in 2021. In another suo motu action, following media reports, the NGT imposed an environmental cost of Rs 100 crore on Kochi Municipal Corporation for a serious environmental emergency caused due to a major fire at a waste dump site in 2023.

With ebbing political will and mounting failure of the executive to effectively enforce environmental laws and conditions, the role of proactive citizens, using the entire bandwidth of constitutional provisions and laws and approaching the right legal forums for seeking ecological justice, is becoming increasingly vital. 

(The writer is a former member of the National Board for Wildlife and author of the book ‘Wildlife Law for Conservation’)