Wednesday, September 21, 2016

National Green Terror

Logo of Kenya's National Environment Tribunal
No, sir, we are not talking about the Terrorist Acts by Muslim organizations like Indian Mujahideen. We are talking here about the judicial body established under law for the matters pertaining to environmental protection and compensation to affected parties.

India was once famed for its lush green, thick forest cover with a flourishing wildlife. Excessive hunting and ‘indiscriminate’ deforestation for industrialization, agriculture, mining and even housing purposes affected the forest cover of India quite alarmingly and brought to conflicts from more than one perspective.

For Indians, considering the importance attached to various life forms like Trees and Animals in its Religious Texts, protection of Environment is a very popular issue, but the economic sustenance & national security has brought to fore a completely different kind of necessity.

Indians must protect their forests & wildlife, keep their air & water clean, as well, and at the same time, continue to build new, improved infrastructure for economic advancement and national security.

The Fight for Clean Environment

India has been constantly bringing in Laws to protect its nature, for decades now. From the Indian Forests Act, 1927 to National Green Tribunal Act 2010, all are driven to somehow keep the nature intact, while the people endeavor to feed families.

The laws exist for protection of Air, Water and Earth; the plant life as well as wildlife. Indian Forests Act, 1927; Forest Conservation Act, 1970; Wildlife Protection Act, 1972, Water (Prevention & Control of Pollution) Act, 1974; Air (Prevention & Control of Pollution) Act, 1981; The Environment Protection Act, 1986 & Public Liability Insurance Act, 1991 are all aimed at protection of our much valued nature’s gifts, so essential to all forms of lives.

Whereas the intent has always existed, the means to enforcement & administration of these laws has been a difficult task. The Courts in India have a burgeoning list of pending cases on its hand. More than 2.18crore cases are said to be pending with District Courts alone while 22.5 lakh cases out of these have been pending for over 10yrs. In such a circumstance, a need for a separate judicial body to administer environmental cases has always been felt.

Environmental Courts

Accordingly, immediately after the Rio meet, India initiated National Environment Tribunal Bill in 1992. The Bill was passed finally in 1995. But somehow the Act never got notified. With the change of Govt., the Third Front Govt. introduced a watered down version in the form of another Legal Body through National Environment Appellate Authority Act, 1997. Accordingly, NEAA was instituted, however, the body remained neglected for years altogether, with the position of Chairman remaining vacant far too long, even after Delhi High Court penalized the body in 2009.

National Environment Tribunal Act, 1995 was formed under Article 253 of Constitution of India, and hence, was applicable to States as well, to give effect to an international commitment of the Union Govt. It was meant to administer National Environment Act, 1986 as well as Public Liability Insurance Act, 1991. But failure to notify and establish a Tribunal wasted the entire effort.

It took India, nearly 11yrs after Bhopal Gas Tragedy, in 1984, to pass a legislation that formed a Tribunal to look into activities that were hazardous to India’s Environment and also to ensure proper compensation for people affected by such accidents, that too under international obligations; and even that law got wasted. This was such a tragedy in itself.

On the other hand, NEAA was simply formed on the basis of India’s own need to ensure that appeals could be heard with respect to restriction of areas in which industries, operations etc. could be carried out or not and, therefore, administered to only Environment Protection Act, 1986. Not many cases were referred to this body, and since, the environmental activists hardly had their way. For e.g. their effort to scuttle Adani’s Mundra Port through NEAA yielded no results and the contribution of Mundra Port is for everyone to see today. However, after the first Chairman, no person was appointed to the position and the body became dysfunctional for all practical purposes.

Law Commission Report

In such circumstances, in 2003, Law Commission of India released its 186th Report, on Proposal to constitute Environment Courts. The report criticized NET because it only had powers to award compensation and NEAA because it had a narrow jurisdiction.

Additionally, it also criticized the composition of Judicial & other Members. It suggested formation of a Court, and therefore advised complete exclusion of Secretaries from the Judicial Body, thereby eliminating the Executive’s perspective in its decision-making. It also caused a grave harm by giving disproportionate access, to this judicial body, to the Environment Experts, a favorable call for NGOs funded by foreign moneys, in the absence of effective counter from the Executive.

The Commission sought to expand the Jurisdiction of the Environment Courts to that of a proper Civil Court, asking for inclusion of Water (P & CP) Act, 1974 & Air (P & CP) Act, 1981.

At the same time, it sought establishment of regional bodies, and therefore, proposed establishment of the Law under Article 253 of the Constitution of India, which permits Parliament to enact Laws for even the States, in order to allow the Union to meet its International Obligations.

In its primary approach, it wasn’t much different from National Environment Tribunal Act, 1995.

However, by 2004, the Govt changed and Congress/UPA came to power.


Making the entry into the PMO through the backdoor, namely, National Advisory Council, Sonia Gandhi brought her own Left-Ultra Left philosophy to the table and within no time NAC became the haunt of the foreign-funded NGOs. Considerable platform was provided to them and Forest, Rehabilitation and Tribal policies were discussed at lengths and years in the NAC. Jairam Ramesh remained member of NAC till 2007.

The NGOs were eager to get the 186th Law Commission Report recommendations implemented quickly, so that Executives would be out and they would be in, giving them a considerable muscle power.

The task couldn’t be accomplished in the first tenure of UPA. In the 2nd tenure, in 2009, NAC member Jairam Ramesh became Minister for Environment and Forest and, immediately upon entry, in July 2009 published the first draft of National Green Tribunal Bill. After its reference to the Standing Committee, the same was passed in May 2010.

Environment Vs. Industry

Yes, after formation of NGT, it became Environment vs. Industry. And owing to a continued series of such flawed decision-making, today the general perception about NGT is that it is an anti-development body, going far beyond its mandate or expected role. Dozens of orders and observations against wide-ranging infrastructure projects continue to be churned out of NGT’s Judicial Mill.

But with 1.2bn people to feed, with a median age of 26-27yrs, India can ill-afford an anti-development stone age approach. The trade-off between Environment and Economic Development has got to be there. The role of Expert Members on the Tribunal has to shift from merely making adverse remarks to that of providing alternative approaches for the resolution of disputes arising on account of loss to environment.

It would be a grave shame, if the NGT continues to operate the way it has been operating for the last 6yrs since its formation. From widening of National Highways, to adverse remarks against Water Taxi project, to issuing conditional permission for registration of 6 diesel vehicles of the elite Special Protection Group (SPG), NGT has projected a questionable and negative image in the minds of India’s progressive masses.

If the trend continues, will it not be wise for the Govt. to consider narrowing its Jurisdiction, in a manner that the Economic Development and National Security related projects do not get affected, at the least.