NGT must be strength­ened

Down to Earth - - COVER STORY - CHAN­DRA BHUSHAN

THE NA­TIONAL Green Tri­bunal (ngt) is per­form­ing well. Those who can reach it now be­lieve that their cases will be heard speed­ily. To­day, there is a fear among in­dus­try and en­vi­ron­ment reg­u­la­tors that some ac­tion would be taken if a case is heard by ngt.But there are many chal­lenges that ngt faces and there are many is­sues that peo­ple have with ngt.

The big­gest chal­lenge that peo­ple face is the ac­cess to jus­tice. Ac­cess to jus­tice is de­nied by two means in ngt: firstly,by the pro­vi­sion of lim­i­ta­tion pe­riod and se­condly, by virtue of ngt be­ing lo­cated in only five big ci­ties spread across In­dia.

Once the tri­bunal started op­er­at­ing,lower courts were barred from tak­ing up en­vi­ron­men­tal cases. Not that they were do­ing a great job, but the de­bar­ring of lower courts has meant that poor and dis­ad­van­taged com­mu­ni­ties liv­ing in re­mote parts of the coun­try now have to go to ngt Benches in their re­spec­tive zones to get jus­tice. For a tribal try­ing to stop pol­lu­tion from an iron ore mine in Bastar,this means fil­ing and fight­ing a case in Bhopal.For a vil­lager af­fected by oil pol­lu­tion in Na­ga­land, this means com­ing to Kolkata and hop­ing to be heard quickly. This is nei­ther easy nor af­ford­able.

Sim­i­larly,the ngt Act has put an un­re­al­is­tic time limit in place for fil­ing a case. The limit of a max­i­mum of three months is akin to a de­nial of jus­tice.If the right to clean en­vi­ron­ment is an in­te­gral part of the right to life in our Con­sti­tu­tion, can this right be over­looked sim­ply be­cause some­one missed the bus or be­cause some­one came to re­alise the im­pli­ca­tions of pol­lut­ing ac­tiv­i­ties a few years down the line?

Both the above is­sues im­pact the poor and the dis­ad­van­taged the most.They are the worst suf­fer­ers of en­vi­ron­men­tal degra­da­tion and now, their route to get­ting jus­tice is be­ing blocked.This must change,and quickly.

At its end, ngt faces both per­cep­tional and real chal­lenges.

There is a strong per­cep­tion that ngt wants to hog more pow­ers and that it wants to take on other gov­ern­ment in­sti­tu­tions. This has cre­ated an im­pres­sion within var­i­ous gov­ern­ment agen­cies that ngt is rid­ing roughshod over them.This per­cep­tion can be highly dam­ag­ing to the ob­jec­tive of ef­fec­tive de­liv­ery of en­vi­ron­men­tal jus­tice.ngt needs the support of var­i­ous in­sti­tu­tions to achieve this ob­jec­tive. It can’t op­er­ate in iso­la­tion.

The other per­cep­tional is­sue that ngt must cor­rect is that it is tak­ing up frivolous and anti-peo­ple cases. For in­stance, in one case, the tri­bunal’s prin­ci­pal Bench or­dered the clo­sure of 12 eat­ing joints in Delhi’s Hauz Khas area for not hav­ing ap­plied for con­sent to op­er­ate. It is a dif­fer­ent mat­ter that one needs to ques­tion the very ba­sis for restau­rants to take the con­sent of pol­lu­tion con­trol boards.But if this judge­ment of ngt were to be ap­plied across the coun­try,then we would have to ef­fec­tively close down most restau­rants. In another case, ngt took strong ex­cep­tion to the nail­ing of bus stop signs onto trees by the Delhi Trans­port Cor­po­ra­tion. Peo­ple are ques­tion­ing how such cases fall un­der “sub­stan­tial ques­tion re­lat­ing to the en­vi­ron­ment”? ngt will have to guard against such de­ci­sions be­cause it can lose the support of the pub­lic and pol­i­cy­mak­ers.

ngt faces some real chal­lenges as well. First, we must strengthen it by giv­ing it more pow­ers and by in­vest­ing in strength­en­ing its in­fra­struc­ture. Ju­di­cial re­view is an im­por­tant power that must be given to ngt since there are a lot of prob­lems with our laws.As ngt is deal­ing with th­ese prob­lems on a daily ba­sis, only it can bring changes through case law. Sim­i­larly, we should in­clude other en­vi­ron­ment-re­lated laws within ngt’s am­bit. Th­ese are re­quired for ef­fec­tive de­liv­ery of jus­tice and en­vi­ron­men­tal pro­tec­tion.

ngt also needs to put cer­tain sys­tems in place for trans­par­ent decision-mak­ing.

It has started putting fi­nan­cial penal­ties on pol­luters, but so far, it has not come out with a guide­line on this.ngt needs to es­tab­lish prin­ci­ples and cri­te­ria to es­ti­mate fines, da­m­ages and com­pen­sa­tion. It should also iden­tify in­sti­tu­tions and ex­perts who can help it to sci­en­tif­i­cally es­ti­mate en­vi­ron­men­tal da­m­ages/com­pen­sa­tion/fines on a caseto-case ba­sis. Th­ese will bring in ob­jec­tiv­ity in its judge­ments.

There are “frivolous” cases be­ing filed in ngt. The tri­bunal has recog­nised this is­sue and has fined some peo­ple for this.Since the lo­cus standi has to be broad as en­vi­ron­ment as an is­sue im­pacts every­body,the ngt is likely to be used for vested and frivolous lit­i­ga­tion. But it can bor­row the strat­egy adopted by the high courts and the Supreme Court, wherein th­ese courts have set con­di­tions for the ad­mis­sion of a pub­lic in­ter­est pe­ti­tion and also es­tab­lished a pil cell to sort out frivolous lit­i­ga­tion at the source it­self.

The bot­tom line is that ngt has done well so far. But many im­prove­ments are still re­quired to make ac­ces­si­ble, speedy and ef­fec­tive res­o­lu­tion of en­vi­ron­men­tal dis­putes a prac­ti­cal re­al­ity. For this, ngt must be strength­ened and not weak­ened. On its part, ngt must put in­ter­nal checks and bal­ances for ef­fi­cient and trans­par­ent de­liv­ery of jus­tice.The re­al­ity of jus­tice is im­por­tant,but so is its per­cep­tion.

SORIT / CSE

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