Paradigm-shifting NGT crucial, do not subvert it

In the last few years, India has witnessed a major transformation in the administration of environmental jurisprudence. The unprecedented focus on environmental issues has indeed been so sharp and rigorous that one could talk of a paradigm shift. The kind of bold and landmark judgements that the NGT at Delhi and its various benches have delivered in the past few years have brought the threats to our environment centrestage.

Unlike other judicial proceedings, these judgements have been comprehensive and expeditious. It is not only that an ordinary person has been made aware of the air, water, forests and noise pollution around her, all the state and national-level authorities have been given a severe jolt as they have always been found wanting in their duties.

The voice of the NGT has also been heard with respect at international forums. Many of us are beginning to treat the NGT with a sense of awe and respect. There is, as it were, hope for a 'Green India' if the judgements of the tribunal are implemented sincerely. Those who are familiar with the judgements of NGT in connection with the glacier of Rohtang Pass valley, the damage to the Ganga basin and the destruction of the banks of the Yamuna floodplains will indeed admire the courage and foresight of the tribunal.

One wonders how much thicker the smog of Delhi would have been had the NGT not intervened from time to time. However, no effort on the part of NGT or any other agency is likely to rectify the environmental threats to our lives if all the energies of individuals and state and national authorities are focused on circumventing its directions.

Though rather late in the day, following an Act of Parliament, the National Green Tribunal (NGT) was finally set up in October 2010. Since its inception it has tried to address issues of environmental protection in ways unparalleled in the history of this country. The NGT has passed orders that would go a long way in protecting the future land, air, water and forest pollution, not only in India but across the globe. Right from its inception the NGT has adopted the fundamental ideas of 'Precautionary Principle, Sustainable Development and Polluter Pays'.

The tribunal soon established its credentials and powers in several cases. In the 2014 Vizhinjam Port Project case (Kerala), the tribunal established that the NGT Act is a complete code in itself for adjudication of environmental disputes, and that the tribunal has the powers of an independent civil court; it can exercise the power of judicial review to examine the vires of notifications issued in exercise of powers of subordinate legislations. In an appeal against the judgment of the tribunal, the Supreme Court declined to stay the operation of the judgement and directed the tribunal to examine the merits of the case as well.

Championing sustainable growth

In the 2015 judgement in Muthuraman vs Union of India and Others, the tribunal held that prior environmental clearance is a mandatory requirement under the EC Regulations of 2006 and any developmental project commenced without prior environmental clearance is antithetical to the principles of sustainable development and that the government cannot negate the provisions of the principal notification.

The tribunal also stayed all construction activity, imposed 'environmental compensation' of 5% (ranging from Rs 36 to Rs 100 crore) of the project cost and appointed an expert committee to submit a report on whether the constructions undertaken without prior environmental clearance are to be demolished or if they were to be permitted to go ahead, under what terms and conditions.

On August 4, 2011, a cargo ship carrying 290 tonnes of fuel oil in its tank, 50 tonnes of diesel on board and 60,000 MT of coal and hazardous waste in its holds, sank approximately 20 nautical miles off the coast of Mumbai. The environmental damage caused was huge and looked beyond repair. There was large-scale oil spill in the sea, and 60,000 MT of coal had been dumped into it, causing irreparable damage to sea-life.

The tribunal argued that no party from any country in the world had the "right to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and, in any event, to dump the cargo in such waters and cause marine pollution". The owner of the ship was held responsible and was asked to pay a penalty of Rs 100 crore.

For the cleaning and rejuvenating of the river Ganga, the Supreme Court transferred the powers of adjudication and to give appropriate directions to the NGT. To address each and every aspect of pollution and, particularly, keeping in view the geographical expanse of the river, its basin and activities being carried out therein, the NGT divided the river - stretching over 2500 km - into four phases. Segment A of Phase I, relates to the operations from Gomukh to Haridwar.

A consultative team was created whereby the stakeholders could reach a solution that will address the much-awaited cleaning of this holy river. The stakeholders have initiated the process for creating necessary environmental infrastructure in compliance of the judgement. The tribunal constituted three-tier committees that included a Principal Committee to take care of the implementation of the directions passed in the judgement; an Executing Committee to work under the direct supervision and control of the Supervisory Committee which, in turn, would get all its financial and technical matters cleared by the Principal Committee.

Let's hope that the government will do its utmost to sustain and nurture the glory with which the NGT has performed its functions in the past few years. It will spell disaster if the NGT is subverted and subdued, like some other public institutions in the country have been.

(The writer is Professor Emeritus, Vidya Bhawan Society, Udaipur)