The abuse of the environment (examples: the coal hub in Goa and the air pollution in Delhi due to firecrackers during Diwali) seems to be on the rise despite climate change, resulting from human apathy, already appearing on the scene. As custodians of this planet, we cannot turn a blind eye to the devastation creeping up on us and must do whatever little we can in assisting the abatement of the exploitation of the environment. Sometimes this means filing litigations. The general public is often confused as to the legal steps to be taken to prevent or halt violations against the natural environment. On 25th November 2017, the Human Rights Law Network and the VM Salgaocar College of Law came together to organise talks in connection with enviro-legal training to allow the public to gain the knowledge to put grievances related to the environment before the National Green Tribunal (NGT).
It is pertinent to remind ourselves that the Indian Constitution holds the citizen accountable for the preservation of the environment with Article 51-A (g): ‘It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures’, and the state with Article 48-A: ‘The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country’.
The National Green Tribunal finds its origin in the Rio de Janeiro summit of the United Nations Conference on Environment and Development in June 1992 (the Rio Declaration on Environment and Development in 1992), where India promised to provide justice and remedial measures to individuals suffering the effects of environmental damage. The principles mentioned in the Rio Declaration focus on the involvement of citizens, including women (Principle 20), youth (Principle 21), and indigenous people (Principle 22). ‘The reason I’ve highlighted these articles in the Declaration is because if anyone wishes to go to the High Court, the Supreme Court or NGT, it would be a good idea to rely on these principles because they are the basis on which a lot of the litigation ought to be based. I do not think people rely enough on these articles, which talk very specifically about people’s participation, and that, as we can see from these articles, is the most important part,’ says Meenaz Kakalia, Advocate, National Green Tribunal. The reflection that a particular developmental model that may seem suitable for other countries may not be the best for, or may be detrimental to, the environment of a particular country, especially a developing country like India, can be found in Principle 11 of the Rio Declaration. This is pertinent to the establishment of a coal hub causing damage to the environment in Goa.
The National Green Tribunal was set up in 2010 through the National Tribunal Act, 2010, to provide expeditious and effective disposal of cases that deal with violations against specific laws, which are: the Water (Prevention and Control of Pollution) Act, 1974; the Water (Prevention and Control of Pollution) Cess Act, 1977; the Forest (Conservation) Act, 1980; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002. The process is supposed to conclude within 6 months but usually takes a year or more, with a higher rate of disposal than other courts.
A citizen can approach the NGT to conserve or rehabilitate the environment and to seek compensation as a victim of violations against the environment. The citizen can file an application to obtain direction to undertake some action or for compensation, while an appeal must be filed to set aside an order that has been issued.
The application or appeal must contain a ‘substantial question’, meaning that the plaintiff has to give a detailed and holistic understanding of the extensive damage that can result from the violation. For example, if a factory’s waste is causing water pollution, leading to health problems for the people in the vicinity. An application must be made within six months of the violation having taken place for the Tribunal to judge the case. If there is a valid reason for a delay, then the NGT allows an extra period of 60 days to make the application. In the case of a continuous cause of action, that is, if there is a continuous violation against the environment, then the limitation to make an application is not applied.
An application made under Section 15 of the NGT Act to obtain relief, compensation for loss of livelihood or health, and restitution of property and environment must be made within 5 years of the environmental damage occurring. The compensation sought must be justified with reasoning to support it in the application. Under Section 16 the environmental clearance, CRZ (Coastal Regulation Zone) clearance, etc issued by the government can be challenged.
The essential documents required in the process are Form I for application or appeal, which will contain details of the project or Form II for application for relief and compensation. Terms of reference (ToR), which have to be attached to the application, must do justice to the scale of the project in its guidelines to study the project, resulting in an EIA report. The environmental impact assessment (EIA) report to be included must conform to the application and ToR. The application should also have minutes of meetings of public hearings held to determine if the EIA is sound and minutes of meetings of state authorities eg Expert Appraisal Committee. The government authority’s minutes of the meeting serves a purpose in bringing to light any valid points or objections not brought up in the public hearing. All the data in the application must be correct, and it must contain every vital piece of information.
Under Section 22 of the NGT Act, any order, decision or award can be appealed against in the Supreme Court and this must be done within 90 days of the order, decision or award being passed.
The NGT follows the principles of natural law and sustainable development wherein it considers if future generations will be able to derive value out of the activity. The NGT also follows the precautionary principle where the likelihood of environmental damage caused by an activity in the long run must be considered while developing environmental measures and a lack of a scientific evidence to support the same should not deter the forming of these environmental measures. The party against whom the litigation has been filed has to prove that the environment will not be damaged by its activity. Any Indian citizen can file a public interest litigation in the NGT, representing the affected individuals.
(This article is based on the training sessions for Enviro-Legal Training – A Guide to Environmental Litigation organised by the Human Rights Network Goa in association with V M Salgaocar College of Law)