Armin Rosencranz and Navya Jannu
The Government of India through the Ministry of Environment, Forest and Climate Change (MoEFCC) has attempted to dilute the power of the National Green Tribunal (NGT) and complicate the functioning of The Environment (Protection) Act, 1986 through its draft Environment Law Amendment Bill. The proposal, released in October 2015, constitutes an intermediate adjudicating authority, introduces a system of mandatory penalties and employs largely vague vocabulary. The process and content seems poorly thought out and should be subject to careful evaluation by the NGT.
The government addressing environmental questions with some seriousness is a step forward. But the larger political purpose here is to curtail the powers of the NGT, which is questionable given the institution’s successful performance over the past five years.
In this article, we review the draft bill. While advocating for the most open process with maximum environment benefit, we reflect on the extent to which these values were compromised and diminished in the current case.
Diminishing stature of the National Green Tribunal
The draft bill proposes to set up a two-man adjudicating authority to decide on penalties and whether environmental damage has been caused. However, the performance of pollution control boards has been poor in the past. Choosing between government officials and independent courts like the NGT to assess environmental damage is of public importance.
The power of the NGT to deliberate upon and award damages and compensation will be curtailed.
But more seriously, the NGT will be reduced to a purely appellate authority made accessible only to polluting units for redressal of grievances and not to affected communities. Of further concern is a provision mandating the deposit of 75 per cent of the penalties levied by the adjudicating authority prior to access of the NGT.
Multi-disciplinary approach needed
The need for a multi-disciplinary and ‘creative’ approach in addressing environmental damage has been internationally acknowledged and legislatively recognised in the composition of the NGT. The adoption of a primitive, problematic and wholly executive approach in addressing environmental damage is, thus, unwelcome.
The draft bill proposes a new adjudicating body comprising two persons, ‘qualified to be’ district level judges or a senior bureaucrat holding a law degree with ‘adequate experience of handling matters relating to the environment’. This is a vague and broad classification. A district judge cannot be equated to person qualified to be one. A district judge is experienced in adjudicating disputes of a civil and criminal nature, unlike someone who has not practiced in court.
The NGT on the other hand, has members of the judiciary and experts from different fields of science, technology and forestry studies to serve on the tribunal on a regular basis. In addition, it is statutorily bound to make decisions in an expeditious fashion and empowered to determine its own rules of procedure. This facilitates innovative approaches and flexibility in argument and presentation style.
Governmental attitude towards the successful performance of NGT
The NGT is a quasi-judicial institution that was created against the backdrop of a woefully ineffective National Environmental Appellate Authority and acute backlog of environmental cases in State Pollution Control Boards, High Courts and the Supreme Court of India. The NGT seems to have done well with the backlog, having disposed nearly 60 per cent of its cases in its first four years. This year, it disposed 82 per cent of cases filed last year, that is, within one year of their institution.
The NGT has often rejected the views of the MoEFCC as well as central and state agencies, and openly criticised them for poor, ‘environmentally unsound’ actions. It has also frequently pulled up big corporates for non-compliance with environmental laws and upheld interests of marginalised groups. The tribunal has successfully monitored the compliance of its orders through surprise inspections, constituted committees and interim decisions. Its largely successful presence in the Indian environmental landscape sits uncomfortably with the current economic and developmental paradigm of the country.
Amendments to the Environment (Protection) Act, 1986
The draft bill proposes to have a system for mandatory penalties for causing environmental damage. The government has given two weeks for comments from the public but few people know of the bill. The lack of information caused by the closed consultation process has ensured the lack of public engagement. The government should be more vocal—sharing its deliberations and justifying its decisions—an engagement with the public is required.
The bill envisages environmental damage as pollution. It introduces three categories of such environmental damage: minor, substantial and non-substantial violation. The basis of this distinction is both unclear and vague.
“An offence is ‘minor’ if it is either not substantial or not ‘non-substantial’ and that the same has to be ‘prescribed’,” states the bill. What does this mean? Similarly, it states that the central government will prescribe what constitutes ‘substantial’ and ‘non-substantial’. It may lead to arbitrariness, misuse and absolute discretion.
These categories serve as an important factor in determining the penalties that shall be levied. The bill suggests that the costs of environmental damage, in the form of hazards and pollution, ‘may extend to 10 crore rupees’ within a 5 km distance from a project site. For damage within 5 to 10 km from a site, the sum should be between Rs 10-15 crore and beyond 10 km, Rs 15-20 crore. Continuing environmental damage would attract a fixed per day penalty for all three categories. However, if there is pollution beyond 5 or 10 km, it must be of a serious nature and should attract heavier penalties.
Capping the penalties is also a point of concern. It is difficult to understand the need for such a provision, given the large share of industry-based pollution in India, including mining. The bill suggests that the central government set up a fund to collect monies by way of penalties, advising it be used for the ‘protection, improvement and management of the environment’. It does not elaborate upon the nature of regulation envisaged nor mandates its creation.
The bill in its present form appears to focus on damage correction as opposed to preventing future damage. The excoriation of polluters after damage does not redress the environmental damage already done nor does it prevent future damage. Instead, it has the dangerous potential of transforming the ‘polluter-pays principle’ to ‘pollute-and-pay’ damaging modern environmental sensibilities.
India’s current needs include electrification and growth but also protecting resources and the environment—forest, soil, air, water. The Indian environmental landscape does not have space for the myopic approach envisaged in the draft bill.
Armin Rosencranz is a lawyer and a political scientist. He taught one of India’s first courses on environmental law, and his book, Environmental Law and Policy in India is widely used throughout India.
This blog has been co-authored by Navya Jannu. She is a final year student of the BA LLB Hons. programme at Jindal Global Law School and is set to start the BCL programme at University of Oxford later this year.