The National Green Tribunal Act of 2010-A Critique1

ABSTRACT

The National Green Tribunal Act received presidential assent on 2nd June, 2010. In a country,
where the backlog of cases runs into crores, the Parliament deemed it fit to enact an Act that
would “provide for the establishment of a National Green Tribunal for the effective and
expeditious disposal of cases relating to environmental protection.” The paper begins with
analyzing the need of setting-up of such Tribunals in light of the State’s obligation to protect the
Environment. The tribunal forms a specialized body to adjudicate upon environmental issues. In
a democratic system, such as India, it is imperative for the state to provide a platform for
effective and speedy disposal of environmental cases. The paper would then proceed to analyze
the development of Environmental Jurisprudence in India fostered by the judiciary. While a
remarkable change in the perspective towards Environmental protection is manifest with the
establishment of the National Green Tribunal, its parent Act suffers from various shortcomings.
The same have been criticized and recommendations have been made to amend such
impediments.

Keywords: National Green Tribunal, green bench, environment bench, environment law,
environment justice

I. INTRODUCTION

While the existence of human life predicates on the perilous interface of air, land and water
called the bio-sphere, the perpetuation of mankind depends upon man’s interaction with them.
The fate of mankind rests solely on its kinetic interaction with non-living things surrounding it.
This continuous interaction, christened the ecosystem, along with the biosphere, forms the
environmental system of man.

The importance of preserving the sanctity of the environment cannot be stressed enough. But the
question that warrants thought is—who must do so? Clearly, the answer isn’t as trivial as it
seems. The onerous responsibility of ensuring a clean, healthy and safe environment is of the

1
Author:
Anmol Vashisht, Advocate, New Delhi, B.A. LL.B. (University School of Law and
Legal Studies, GGS Indraprastha University), LL.M. (Faculty of Law, University of Delhi).

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Government; while the citizens are obliged to not pollute the same in their personal capacity. The
liability of the Government increases manifolds in cases of environmental degradation due to
natural calamities. Being the only institution to possess relevant means and sufficient funds, the
Government is obliged to undertake the gargantuan task of reparation of the lost environment.

A. ROLE OF STATE-FROM ‘POLICE’ TO ‘WELFARE’ STATE

A rather simplistic, primeval state that existed a few centuries ago has now been catapulted into a
highly complex state that, as the protector, regulator, guarantor and guardian of its citizens, is
enmeshed in a labyrinth of political duties. The newly formed, albeit the one that developed
gradually, state can rightly be termed as a ‘welfare state’ that seeks to attend to the general
welfare of its citizens. The contemporary socio-political regime supposes the existence of a
‘welfare state’ to look after the multifarious needs of its citizens.

The increase in duties of the Government brought with it the responsibility to protect the
environment to ensure proper livelihood. Consequently, increasing number of environmental
disputes necessitated setting-up of specialized courts competent to adjudicate upon such complex
disputes.

B. DEVELOPMENT IN INDIA

The development of environmental protection laws in India can be studied in light of various
international treaties, legislative implementations and judicial interventions that supplemented
and fostered the growth of environmental jurisprudence in the state. The Stockholm Declaration
in 1972 brought forth the issue of environmental protection to international attention and
provided the much needed impetus to environmental legislation in India. The palpable result of
the Declaration was the Constitution (forty second Amendment) Act, 1976 that inserted Articles
48A2 and 51A (g)3 to the Constitution of India. The cumulative effect of the articles was an
obligation, on both state and citizens to protect, preserve and safeguard the environment. In order

2 Article 48A reads as follows-“Protection and improvement of environment and safeguarding of forests and wild life-
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the
country.”
3 Article 51A (g) reads as follows-“ to protect and improve the natural environment including forests, lakes, rivers and

wild life, and to have compassion for living creatures.”

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to further implement the decisions held at Stockholm, the Parliament in 1986 enacted the
Environment (Protection) Act to “provide for the protection and improvement of environment”
and for the purpose of “prevention of hazards to human beings, other living creatures, plants and
property”. Supplementing the Act are various legislations that prevent pollution of air4, water5,
forest6 and provide for the protection of biodiversity7. To provide for effective distribution and
estimation of remedy, the Parliament further enacted the Public Liability Insurance Act, 1991
that was followed by the National Environment Tribunal Act, 1995 and the National
Environment Appellate Authority Act, 1997. This compendium of legislative enactments may
rightly be termed as the Indian corpus of Environmental law that rightly forms the cornerstone of
Environmental jurisprudence in India.

C. “RIGHT TO HEALTHY ENVIRONMENT”

Bolstering the environmental edifice is the Indian judiciary that has constantly, by means of
either statutory interpretation or activism strengthened environmental diligence in India. Such
has been the role of the Indian Judiciary that even in the absence of a constitutional mandate to
the state to protect the environment, the state is obliged to preserve it; making environmental
protection a well-entrenched policy in governance. There exists a catena of judgments
emphasizing on the need to a safe, healthy and clean environment. In a celebrated case8
involving illegal quarrying of limestone, the Supreme Court for the first time held that it is “the
right of the people to live in healthy environment with minimal disturbance of ecological balance
and without avoidable hazard to them and to their cattle, homes and agricultural land and undue
affectation of air, water and environment.”9 In another judgment10 of far-reaching consequence

4The Air (Prevention and Control of Pollution) Act, 1981, The Air (Prevention and Control of Pollution) Rules, 1982,
The Noise Pollution (Regulation and Control) Rules, 2002.

5The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Cess
Act, 1977, Central Board for the Prevention and Control of Water Pollution(Procedure for Transaction of Business)
Rules, 1975.

6 The Forest (Conservation) Act, 1980, Forest (Conservation) Rules, 2003, The Wild Life(Protection) Act,1972.

7 The Biological Diversity Act, 2002.

8 Rural Litigation and Entitlement Kendra v. Uttar Pradesh, AIR 1985 SC 652.

9 Para. 180, ibid.

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the Apex court held that an inherently dangerous industry owes an absolute and non-delegable
duty to take the highest standards of safety and account for any harm that result from such
activity.

The sensitivity of the judiciary towards environmental protection is manifest in its various
judgments. This trend of environmental protection and activism eventually led to a growing
desire to establish courts competent to handle environmental disputes. The pressing need
ultimately culminated in the enactment of the National Green Tribunal Act that serves as a
milestone in environmental jurisprudence

II. SALIENT FEATURES OF THE ACT

The National Green Tribunal was established on 18th October 2010 under the provisions of the
National Green Tribunal Act. The Act provides for the establishment of a specialized
adjudicatory body that will deal exclusively with environment related issues. The preamble to the
Act states that the Tribunal is established to effectively and expeditiously dispose cases relating
to environmental protection, conservation of forests and other natural resources. The preamble
further states that the Act gives effect to India’s international obligations and obligations that
flow from the Constitution.

The National Green Tribunal Act is divided into five chapters encompassing various attributes
essential in attaining effective environmental adjudication.

A. ESTABLISHMENT AND COMPOSITION OF THE NATIONAL GREEN TRIBUNAL

The Act vests power in the Central government to establish a National Tribunal.11 The Central
Government is empowered to specify, by notification, the ordinary place or places of sitting of

10 M.C. Mehta v. Union of India, AIR 1987 SC 1086.

11 Section 3, National Green Tribunal Act, 2010.

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the tribunal12 and may in consultation with the chairperson of the Tribunal, make rules for
regulating the ordinary practice and procedure of the Tribunal.13

The composition of the tribunal includes a full time chairperson and not a less than ten but
subject to maximum of twenty full time judicial members as the Central Government may, from
time to time, notify.14 The Tribunal shall consist of not less than ten but subject to maximum of
twenty full time expert members as the Central Government may, from time to time, notify.

Further, the chairperson of the Tribunal has been authorized to invite one or more expert
members who have specialized knowledge and experience to assist the court in a particular case
before the Tribunal.15

B. QUALIFICATION OF THE MEMBERS

Under the National Green Tribunal Act a person shall not be qualified for appointment as the
Chairperson or judicial member of the Tribunal unless he is, or has been, a judge of the Supreme
Court of India or Chief Justice of a High Court. However, a person who is or has been a judge of
a High Court may also be appointed as a judicial member.16

C. SETTLEMENT OF DISPUTES

12 Section 4(3), National Green Tribunal Act, 2010.

13 Section 4(3), National Green Tribunal Act, 2010.

14 Section 4 (1), National Green Tribunal Act, 2010.

15 Section 4(2), National Green Tribunal Act, 2010.

16 Section 5 (1), National Green Tribunal Act, 2010.

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The Tribunal shall have the jurisdiction over all civil cases where a substantial question17 relating
to environment (including enforcement of any legal right relating to environment), is involved
and such question arises out of the implementation of the enactments specified in Schedule I of
the Act. The Tribunal shall hear the disputes arising from the questions referred above and settle
such disputes and pass order thereon. No application for adjudication of dispute under this
section shall be entertained by the Tribunal unless it is made within a period of six months from
the date on which the cause of action for such dispute first arose.18

D. RELIEF, COMPENSATION AND RESTITUTION

Under the Act, relief and compensation may be provided to the victims of pollution and other
environmental damage arising under the enactments specified in the Schedule I (including
accident occurring while handling any hazardous substance); for restitution of property damaged;
for restitution of the environment for such area or areas, as the Tribunal may think fit.19 The
Tribunal may, having regard to the damage to public health, property and environment, divide
the compensation or relief payable under separate heads specified in Schedule II so as to provide
compensation or relief to the claimants and for restitution of the damaged property or
environment, as it may think fit.20 The act expressly provides that such application for mentioned
categories of relief would be entertained by the Tribunal unless it is made within a period of five
years from the date on which the cause for such relief first arose. However, the Tribunal may
allow further sixty days for the application to be filed if it is satisfied that the applicant was
prevented by sufficient cause from filing such application.21

17Section 2(m) of the National Green Tribunal Act, 2010 reads thus-“‘Substantial question relating to environment' shall
include an instance where, - (i) there is a direct violation of a specific statutory environmental obligation by a person by
which, -(A) the community at large other than an individual or group of individuals is affected or likely to be affected by
the environmental consequences; or (B) the gravity of damage to the environment of property is substantial; or (C) the
damage to public health is broadly measurable; (ii) the environmental consequences relate to a specific activity or a point
source of pollution.”

18 Section 14, National Green Tribunal Act, 2010.

19 Section 15(1), National Green Tribunal Act, 2010.

20 Section 15, National Green Tribunal Act, 2010.

21 Section 14(3), National Green Tribunal Act, 2010.

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 E. BENEFICIARIES UNDER THE ACT

The Act also provides that an application for grant of relief or compensation or settlement of
dispute may be made to the Tribunal by any of the following persons —
(a) Any person who has sustained the injury; or
(b) The owner of the property to which the damage has been caused or
(c) All or any of the legal representatives of the deceased where death has resulted from
the environmental damage or
(d) Any agent duly authorized by such person or owner of such property or all or any of
the legal representatives of the deceased, as the case may be; or
(e) Any person aggrieved; including any representative body or organization.

In addition, the Central Government or a State Government, or a Union Territory administration

or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control
Committee or a local Authority or any environmental authority constituted or established under
the Environment (Protection) Act, 1986 or any other law for the time in force, can also move the
Tribunal.22

F. PROCEDURES AND POWERS OF THE TRIBUNAL

The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure,
1908 and rules laid down in The Indian Evidence Act, 1872 but shall be guided by the principles
of natural justice and shall have power to regulate its own procedure. The Tribunal shall have,
for the purposes of discharging its functions under this Act, the same powers as are vested in a
civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the
following matters, namely summoning and enforcing the attendance of any person and
examining him on oath; requiring the discovery and production of documents; receiving
evidence on affidavits; subject to the provisions of sections 123 and 124 of the Indian Evidence

22 Section 18, National Green Tribunal Act, 2010.

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Act, 1872, requisitioning any public record or document or copy of such record or document
from any office, etc.

G. TRIBUNAL TO APPLY CERTAIN PRINCIPLES

The Tribunal shall, while passing any order or decision or award, apply the principles of
sustainable development, the precautionary principle and the polluter pays principle.23

H. APPEALS TO SUPREME COURT AND COST

Any person aggrieved by any award, decision or order of the Tribunal, may file an appeal to the
Supreme Court, within ninety days from the date of communication of the award, decision or
order of Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code
of Civil Procedure, 1908: Provided that the Supreme Court may, entertain any appeal after the
expiry of ninety days, if it is satisfied that the appellant was prevented by sufficiency cause from
preferring the appeal.24

III. CRITICAL ASSESSMENT

A. RESTRICTIONS ON LOCUS STANDI OF PERSONS APPEARING BEFORE THE TRIBUNAL

The right to a clean and healthy environment has been judicially included into the purview of
Article 21 of the Indian constitution that guarantees to its citizen the right to life and personal
liberty.25 A corresponding duty of the citizens towards environmental protection is provided
under Article 51A (g). Therefore, every citizen must have access to the judiciary to ascertain this
right. However, the present Act restricts the locus standi of persons who may appear before the
tribunal to-

a) The person, who has sustained the injury; or (b) The owner of the property to which the
damage has been caused; or (c) Where death has resulted from the environmental damage, by all

23 Section 20, National Green Tribunal Act, 2010.
24 Section 23, National Green Tribunal Act, 2010.

25 See, “Right to healthy environment”.

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or any of the legal representatives of the deceased; or (d) Any agent duly authorized by such
person or owner of such property or all or any of the legal representatives of the deceased, as the
case may be; or
(e) Any representative body or organization functioning in the field of environment, with
permission of the Tribunal; or (f) The Central Government or a State Government or a Union
territory Administration or the Central Pollution Control Board or a State Pollution Control
Board or a Pollution Control Committee or a local authority, or any environmental authority
constituted or established under the Environment (Protection) Act, 1986 or any other law for the
time being in force, with the permission of the Tribunal26

Consequently a person may appear before the tribunal only if he faces direct consequences of the
damage to the environment or is a member of any representative body or organization working in
the field of the environment. It must be noted that the majority of environmental litigation in
India have been under Public Interest Litigation under Article 226 and 32 of the Constitution.
Public Interest Litigations have played a very important role in strengthening environmental
justice in India. The result of this is seen most clearly in grant of the right to clean air27, clean
water28 and a healthy environment29. These are the kind of litigations where the Petitioner, who
is a public spirited person and not directly affected by the environmental damage, takes action in
the interest of public. These individuals may be independent of any representative body or
organization. It must be noted that the effective working of any judicial or quasi judicial body
largely depends upon the people who are empowered to access it. By restricting access to the
Tribunal, the Act may frustrate the purpose of its constitution.

B. NUMBER OF TRIBUNALS

26 Section 18(2), National Green Tribunal Act, 2010.

27 M.C. Mehta v Union of India, Supreme Court of India, Judgement of 12 May 1998, Murli S. Deora v Union of India, Supreme Court
of India, Judgement of 2 November 2001, (2001) 8 SCC 765.

28A.P. Pollution Control Board II case, note 2 above, at 82, Mrs. Susetha v State of T.N. & Ors., Supreme Court of
India, Judgement of 8 August 2006, (2006) 6 SCC 543, Narmada Bachao Andolan v Union of India, Supreme Court of India,
Judgement of 18 October 2000, (2000) 10 SCC 664.

29 Subhash Kumar v State of Bihar, Supreme Court of India, Judgement of 9 January 1991, (1991) 1 SCC 598, 604.

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The Act entrusts the Central Government with the task of notifying the ordinary place or places
of sitting of the Tribunal and specifying the territorial jurisdiction thereof.30 Given the nature of
Act and its purpose to provide speedy and effective disposal of cases, it would have been proper
to enumerate the ordinary places of sitting and the number of such tribunals exercising such
power in the Act itself. To this effect, the Financial Memorandum provides for the establishment
of five benches of the tribunal. In a country, as enormous as India, it would have been proper to
provide for a greater number as access to the Tribunal may be difficult for many.

C. OUSTING OF JURISDICTION OF CIVIL COURTS

Section 29(1) of the Act takes away the appellate power of civil courts to entertain appeals in
matters the Tribunal is empowered to determine. Further, Section 29(2) of the Act explicitly
declares void the power of civil courts to entertain environment related disputes which the
Tribunal is empowered to adjudicate. It further ousts the jurisdiction of civil court to entertain
disputes or questions which may be successfully adjudicated upon by the Tribunal. Civil courts
are thereby prohibited from granting injunctions or passing any order over disputes exclusively
within the jurisdiction of the Tribunal. This results in entrusting solely the Tribunal with power
to grant relief and dispense justice in environmental disputes.

Ordinarily, villagers approached the nearest munsif courts to obtain relief. By ousting its
jurisdiction, the Act leaves an aggrieved person with no choice but to approach the Tribunal to
obtain relief in cases of damage and have the matter adjudicated upon. This would result in
unnecessary hardship to citizens living in far-flung areas who would be inconvenienced in
covering great distances to reach the Tribunal; thereby depriving the poor living in remote areas
to obtain due relief.

D. METHOD OF APPOINTMENT

While the Act specifies that members of the Tribunal are to be appointed by the Central
Government through a selection committee, it does not provide for the composition of such
committee; thereby leaving the Central Government with the power to appoint members as it
deems fit. It has been observed in the past that by leaving the power of appointment to the
Central Government, an Environmental Authority may get reduced to a puppet in the hands of

30 Section 4(3), National Green Tribunal Act.

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the Ministry of Environment and Forests (MoEF)31. The independence of such an authority gets
jeopardized when it adjudicates on issues related to the Ministry.

In exercise of its powers conferred by clauses (e), (f) and (g) of section 2 of the Act, the Central
Government passed the National Green Tribunal (Manner of Appointment of Judicial and Expert
Members, Salaries, Allowances and other Terms and Conditions of Service of Chairperson and
other Members and Procedure for Enquiry) Amendment Rules, 2012. According to section 3, the
Selection Committee shall comprise of- a sitting judge of the Supreme Court (nominated by the
Chief Justice of India in consultation with the Minister for Law and Justice), chairperson of the
Tribunal, and director of Indian Institute of Technology (by rotation). Assisting the above
members would be the following persons appointed by the MoEF-two experts in Environmental
and Forest policy, Secretary to the Government of India in the MoEF, an additional Secretary, a
joint Secretary and an officer not below the rank of Additional Director General of Forest.

Out of the possible nine members of the Committee, six are to be appointed by the MoEF,
thereby affecting adversely the independence of the Tribunal. This jeopardizes the impartiality of
the Tribunal to adjudicate decisions on matters relating to environmental disputes (especially
those that involve environmental clearance) since the Ministry is involved in such cases. It is
imperative that such decisions are taken in a non-partisan manner, away from any Governmental
influence.

IV. RECOMMENDATIONS AND CONCLUSIONS

The establishment of the National Green Tribunal in 2010 was aimed at securing environmental
democracy in India. With the increased threat to environmental security, the complexities of
problems relating to the same also increase and this calls for the inception of an impartial
adjudicatory body with special expertise to tackle the multitude of problems. Maintaining a
balance between development and the need for protecting the environment sustainably requires a
strong commitment from the state. The establishment of the Tribunal brings India into the list of
the very few countries that host a specialized court to adjudicate upon environmental matters. It

31See “National Environment Appellate Authority: Puppet of the MoEF”.Can be found at-
http://infochangeindia.org/environment/analysis/national-environment-appellate-authority-puppet-of-the-moef.html

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further marks the initial steps taken by the government to effectively dispense litigations
pertaining exclusively to the domain of the environment. However, the Tribunal comes covered
in its own set of shortcomings. These need to be revised and reworked upon so as to successfully
meet the ends of justice. In light of the same, the following is recommended-

A. INCREASING NUMBER OF TRIBUNALS AND FOLLOWING OF CIRCUIT PROCEDURE

The Law Commission in its 186th Report32 proposed for the setting up of environmental courts in
each state. It was supposed that by setting up such courts in each state justice might be brought
close to citizens who would be saved from unnecessary hardships in obtaining relief. By limiting
the number of such tribunals to five, the Act has not only disregarded the recommendations of
the Commission but also restricted the scope of justice.

However, to provide respite to those living in remote areas, the Chairperson is empowered to
decide cases by means of a circuit procedure33. This would be resorted to in situations where
persons, due to their disadvantageous location, might be prejudiced in obtaining relief. Thus to
ensure just and proper dispensation of justice, it is recommended that an Environmental Tribunal
be constituted in each state (or groups of states) to prevent undue inconvenience to aggrieved
persons.

B. ENVIRONMENTAL COURTS TO WORK IN TANDEM WITH CIVIL COURTS

In its 186th Report, the Law Commission, while recommending setting-up of Environmental
Courts throughout the nation categorically provided for retaining of the powers of the Civil
Court. This was done to ensure that the aggrieved is not inconvenienced in reaching for justice
and the law is brought to his home. The Report further drew parallels with the legal systems in
Australia and New Zealand where the ordinary civil courts retain their jurisdiction over
environmental matters.

. Law Commission Of India, 186th Report On Proposal To Constitute Environment Courts 142 (2003), Available At
32

Http://Lawcommissionofindia.Nic.In/Reports/186th%20report.Pdf.

33 Section 4, the National Green Tribunal (Practices and Procedures) Rules, 2011.

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It is recommended that Environmental Courts must function as specialist courts for
environmental issues. Civil courts are far greater in number and to ensure proper access to justice
it is imperative to retain their jurisdictions over environmental issues. On the issue of finality, it
is recommended to bind both the parties to the adjudication thereby giving the decision finality
and precluding the parties from moving the Environmental Court (or civil court) which has not
yet been approached. As regards matters that are sub-judice before an Environmental Court, a
party may successfully obtain a stay on proceedings before a civil court on the principle of res
sub-judice. This would ensure a balance between powers of a civil court and environmental
courts.

C. IMPARTIAL APPOINTMENT

The Act by failing to provide a manner for appointment of the Selection Committee and
delegating the task to the Central Government has erred greatly and failed to ensure appointment
in an impartial manner. To ensure impartial appointment of the members of the Tribunal, the
Selection Committee must comprise of a greater number of non-MoEF members. By including
members that are not involved with the functioning of the Ministry, the Selection Committee
would ensure independence and impartiality in decision making, and provide autonomy to the
Tribunal.

D. INCREASING THE PERIOD OF LIMITATION TO OBTAIN RELIEF

Under the National Green Tribunal Act, a time frame spanning from 30 days to 5 years has been
prescribed. Section 14 (3) of the Act provides, “No application for adjudication of dispute under
this section shall be entertained by the Tribunal unless it is made within a period of six months
from the date on which the cause of action for such dispute first arose".

The time period has been arbitrarily provided as the reason behind restricting cases beyond six
months of cause of action is uncertain. Also, the tribunal is constituted to further the ends of
justice. This calls for an access to justice by all categories of persons who are affected by any
kind of damage. Sometimes, access to the tribunal may take longer that the statutory period. In
these cases, the act does not prescribe the authority that may be approached to seek justice.

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Further, Section 15(3) states, "No application of grant of any compensation or relief or restitution
of property or environment under this section shall be entertained by the Tribunal unless it is
made within a period of five years from the date on which the cause of such compensation or
relief first arose." It is submitted that such a time period should be removed. The adverse effects
of various environmental and public health hazards like those of silicosis, asbestosis, radiation
exposure and chemical exposure often take more than five years to manifest themselves. Damage
to the environment does not follow rigid boundaries of date and time. It is a continuous process
that may show its effects over a long period.

Lastly, Section 16 of the act "any person aggrieved" by orders or decisions of the Tribunal or
National Biodiversity Authority or State Biodiversity Board, under the stipulated provision of the
NTG Act, the person aggrieved can file an appeal "within a period of 30 days from the date on
which the order or decision or direction is communicated to him". This time period to exercise
appellate jurisdiction of the tribunal is short. The time period of 30 days, even with an extension
up to 60 days34 may be insufficient in view of the fact that environmental and forest clearance is
generally granted in areas which are remote and approaching the tribunal requires time and
resources.35

In view of the above contingencies of time, it is recommended that the time period of
application/appeal be increased accordingly.

34
Section 16 proviso, National Green Tribunal Act, 2010.

”How green will be the National Green Tribunal? Concerns and suggestions on the National Green tribunal bill” The
35

Access Initiative, 2009.

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