Environmental Justice: Need of stricter laws or proper enforcement?

Author: Tulika Sharma Student, Banasthali Vidyapeeth

 

“It is either this hour, Now or it would be too late to save the impending tomorrow, the Future.”


Environmental problems have been persisting throughout the world, be it Australian bushfire or forest fire in Amazon and California, from Greta Thunberg fighting for proper implementation of environmental laws to each and every environmentalist striving hard to find a solution for the problem. That is just the scenario of whole world, but when we look at individual nations like India, it is one such country where the constitution has provided people with laws, rules, acts and policies to prevent deterioration of the environment. The Hon’ble Supreme Court has also looked up to the matters relating to cases of environment, taking example of cases like The Bhopal gas Tragedy[1] , MC Mehta v. Union of India[2] , A.PCB v. M.V Nayudu[3] wherein the court brought into the light the requirement of separate jurisdiction that would look after the cases of environment since the courts being already burdened with pendency of civil and criminal cases, a separate legislation would be fruitful.

In 2010 after the passing of The National Green Tribunal Act by the central government, the National Green Tribunal was formed with the objective to provide people with a forum that would look into the matters of speedy and effective disposal of cases pertaining to environment protection, conservation and infringement of environmental laws. Although a lot have been done to look after the environment in India, yet the issues concerning to it is secondary for the existing governments it was reported ‘environment comes secondary to economic growth ‘. Coming back to the progress of laws in India, there have been amendments in the existing laws time and again. The NGT has been putting efforts to make the laws work better, proper enforcement of such laws and making the public aware about the importance of safeguarding the environment.

Looking at the condition of air, the pollution of Indian rivers, the water crisis, cutting of trees and many more recent cases have come up where the environmental jurisprudence proved to have worked. However, there have been cases where the jurisdiction has failed to look into the matters appropriately and the pendency of cases coming into light even after setting up of a fast-track courts for the issues. Since environmental issues require people who have a good hold of the scientific aspects as well as ecological aspects pertaining to the fact that the court would be dealing with the cases where there has been infringement of no other but environmental laws and constitutional provisions.

The laws that have been formed so far, the setting up of tribunal, constitutional provisions and making people aware about the need to protect the air, water and land is not a new concept but has been enduring in India far before the laws were made. Our Vedas have so far been teaching people to take care of the environment they live in and its importance. It’s absolutely necessary to ‘worship’ it, ‘protect’ it and when in need fight for its protection. The mother earth although supports life each and every day but it too is fragile and needs to be taken care of.

The New Era – National Green Tribunal

The Question Of What We Do Or Why We Do Isn’t Really Relevant Anymore, The Question Is What We Need To Do

The National Green Tribunal inaugurated on October 18, 2010 under the National Green Tribunal Act, 2010 by the central government, “for the effective and expeditious disposal of cases relating to environment protection and conservation of legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected with it”. The NGT basically is a statutory tribunal which was enacted by the parliament especially for hearing the matters concerning to environmental issues. It was a result of long procedure and demand for such tribunal started.[4]

After the Bhopal Gas Tragedy[5] in 1984, the Hon’ble Supreme Court highlighted the issues faced by the judges in passing judgement in complex environmental cases and laid focus upon setting up of a specialised court for the same. In 186th report the Law Commission recommended to set up of a multifarious Environmental Court n each state of India with judicial as well as technical or scientific experts, as they exist in other countries too. The NGT is a Quasi – judicial body that takes up the cases of violation of environmental laws from public spaces and penalize the wrongdoer. The tribunal has basically been formed to provide Supreme court and High court a relief from Environmental cases.

The composition of the NGT is minimal 10 members and the maximum should not exceed 20 members. The NGT also has the lowey to hear all civil cases relating to environmental issues and questions that are linked to the enforcement and implementation of laws listed in Schedule 1 of the NGT act which includes[6] : The Water (prevention and control of pollution) Act ,1974, The Water (prevention and control of pollution )  Act 1977,  The Air (prevention and control pollution ) Act 1981, The Public Liability Insurance Act, 1991 and The Biological Diversity Act, 2002. If there is any breach or violation of these laws , the decision taken by the government under these laws can be challenged before the NGT.

Some of the important judgements of NGT are; Banning any diesel vehicle more than 15 years old in Delhi and NCR region, Penalizing the construction companies in Bellandur wetland in Bangalore, proposed plan for rejuvenation Yamuna in Delhi and UP region, ban in burning waste in public i.e. open area, cancellation of clearance of Maharashtra based mining project etc.

The Major loopholes: A Question of better discretion

With laws coming up and courts passing its judgement in many cases since the advent of judicial system in India, although our history teaches us to live a life that does not harm anyone or anything but have the people really understood the true meaning of it? Do we have a lifestyle where we do not harm anyone or anything? It is true that the degradation did not take place in just one day but is a result of continuous negligence. Every now and then we see an environmentalist raising his or her voice towards the worsening conditions of environment. ENVIRONMENTAL DEGRADATION is one such subset of climatic changes which has put people into a situation where they need to fight for its protection. But everything will fall back to place only when our existing laws are stringent, the Indian parliament has enacted several laws but whether the laws achieved its goals is yet to be seen. To not turn the dreams of a clean India into mere euphoria, the NGT was brought upon but every organisation has flaws and when it comes to Indian organisations yet again the question of proper operation arises. Alongside NGT, central pollution control board and state pollution control board also are aimed at reducing pollution level but even though the rigorous practice of policies have been taking place, the only outcome that we see is more pollution every day. ENVIRONMENTAL Justice isn’t like any other jurisdiction, but a prerogative solution to the problems that have led to the deterioration of this environment. But this very jurisdiction fails to deliver the proper justice with the number of cases pending and delay in judgement calls upon the withering powers of NGT.

Since the NGT has no Suo Moto powers which restricts its scope in the area of environment despite having solved a lot of issues. Another one being inaccessibility to the justice since New Delhi is the principal place where the tribunal is headed and rest Bhopal, Kolkata, Pune, and Chennai are other 4 benches. The 186th report of the Law Commission reported that one such court should be in every state so as there is easy access to people and no delay in justice. Since it took away the right of people to admit cases in the civil courts and even the PIL cannot be filed at the High court of state since environmental litigation will only be handled by 5 benches of NGT. For instance, for tribal people trying to stop pollution from an iron ore mine in Bastar, they would have to approach and file a case in Bhopal similarly for a villager who is affected by oil pollution in Nagaland means the person would have to approach Kolkata. This makes the approach neither easy nor affordable. Other loopholes that have led to withering powers of NGT is lack of judicial independence, ministerial control, lack of resources etc. Backlog of cases is one major issue since there have been increased pending cases from 548 to 3,116 to 2,348. One such case is where one of the winner of green Nobel commented on the speedy judgement of NGT on the case that was left in pendency for two years, the case of 2,400 MW power plant in Tamnar, Chattisgarh. Another case being that of Singrauli district wherein the petition was filed under the NGT by Ashwani Dubey, lawyer and residence, is yet not been concluded by the court. Another drawback of NGT is that time to claim relief is limited, there is lack in the implementation of orders, the is lack of proper research body and absence of important powers [7].

Such are the issues that have handicapped the powers of NGT and have led to mummification of justice in such court. As discussed above, the NGT was set up to distinguish itself from civil courts so as to achieve a better objective when it comes to the environmental problems. But if the problems persist the idea of having a better environment through means of jurisdiction would also shrivel with cases being piled up every day and more and more issues arising. The very meaning of having of separate legislation is lost when the legitimate efficacy of such arbitration is fastened to such drawbacks and criticism.

[1] 1990 AIR 273

[2] 1987 SCC (1) 819

[3] 1999 SCC (2) 718

[4] National Green Tribunal : A Road Towards Environmental Justice, Sadaf Moosa, Asst. Professor ,Law College Durgapur

[5] 1990 AIR 273

[6] National Green Tribunal : A Road Towards Environmental Justice, Sadaf Moosa, Asst. Professor ,Law College Durgapur

[7] National Green Tribunal : A Road Towards Environmental Justice, Sadaf Moosa, Asst. Professor ,Law College Durgapur

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