India's National Green Tribunal: Human Rights and the Merits of an Environmental Court

• Date: 01 June 2016

46 ELR 10474 ENVIRONMENTAL LAW REPORTER 6-2016

India’s National Green Tribunal:

Human Rights and the Merits

of an Environmental Court

by Navya Jannu

Navya Jannu is in her nal year of the B.A., LL.B. (Hons.) program at Jindal Global Law School in Sonipat, Haryana, India.

India’s National Green Tribunal (NGT) wa s estab-

lished by statute in October 2010 “ for eective and

expeditious disposal of cases relating to environmen-

tal protection and con servation of forests a nd other nat-

ural resources including enforcement of any legal right

relating to environment and giving relief a nd compensa-

tion for dama ges to persons a nd property and for matters

connected therewit h or incidental thereto.”1 e intent

was to create a “specialized body equipped with nec es-

sary expertise to handle environmental disputes involv-

ing multi-disciplinar y is sues.”2 To th is end, t he guiding

light for the NGT has moved beyond the connes of

India’s Civil Procedure Code of 1908 and into the realms

of “natural justice.”3

e laudable goal underlying the NGT’s grant of juris-

diction was joined by the more practical aspiration of

reducing the burden of litigation in higher courts.4 Five

years and a burgeoning bureaucratic structure later (includ-

ing no fewer than ve places for the Tribunal’s sitting),

the NGT has evolved into a focus of contention bet ween

the executive and judiciary in India,5 been called a “power-

hungry institution that has fa iled [its] purpose,”6 and been

criticized for its “unrealistic judgments.”7

While mitigating the growing environmental crisis

is a rguably the most important issue in the world today,

particularly for developing countries that are especially

vulnerable to its impacts, it is equally true that in these

countries environmental regulation is often a theater of

1. National Green Tribunal, History, http://www.greentribunal.gov.in/history.

aspx (last visited Dec. 9, 2015).

2. Id.

3. National Green Tribunal Act (2010), §19.

4. Lok Sabha Debates,     (Apr. 20, 2010),

http://164.100.47.132/LssNew/psearch/Result15.aspx?dbsl=2380 (last vis-

ited Dec. 11, 2015); see Geetanjoy Sahu & Armin Rosencranz, Assessing the

, 5 J. I L.  S’ 191, 192

(2014).

5. Id. e Tribunal sits at Bhopal, Chennai, Kolkata, New Delhi, and Pune.

6.   , CD., http://

www.civilsdaily.com/story/national-green-tribunals-milestone-j udgments/

(last visited Dec. 9, 2015).

7. Yukti Choudhary,  , D  E, Nov. 30, 2014,

http://www.downtoearth.org.in/coverage/tribunal-on-trial-47400.

disagreements—inchoate legislation, undisciplined judicial

intervention, and insucient community engagement.8

India is a key case study in this regard. e evolution of the

NGT as an institutionalized reg ulatory body raises several

questions about the interfaces among constitutional clar-

ity, democratic values, administrative theory, and environ-

mental sensibilities.

With the Indian executive’s increasing abnegation of its

statutory and traditional role in protecting the environ-

ment, the judiciary, especially the Supreme Court of India,

has come to the fore as a “champion for the environment.”9

e NGT’s existence represents this courageous pushing

against constitutional boundaries that is at the root of the

owering environmental law jurisprudence in the coun-

try.10 At times, this is taken to be a “rhetorical smokescreen

for judicial intervention”11 and overreaching in a range of

issues, not limited to environmental governance,12 and the

NGT is no exception.

In this Comment, I explore the mix of rhetoric and real-

ity in an eort to distill the merits of India’s new insti-

tutional experiment a nd its implications for the national

protection of human rights.13 Given the ubiquitous and

8. Jona Razzaque, Alternate Environment Forums, in P I E-

 L  I, P  B 124 (2004).

9. See Konakuppakatil G. Balakrishnan, former Chief Justice of the Supreme

Court of India, Address at the Asian Justices Forum on Strengthening Court

Capacity on Environment Adjudication (2007), http://highcourtchd.gov.

in/sub_pages/left_menu/publish/articles/articles_pdf/judicial.htm (last vis-

ited Dec. 10, 2015).

10. See, e.g., M.C. Mehta v. Union of India, AIR 1987 SC 1086 (India Supreme

Court recommended the establishment of regional environmental courts

composed of members of the judiciary and experts from scientic elds);

Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC

1446 (India Supreme Court observed that environmental courts empow-

ered with civil and criminal jurisdiction must be established to eectively

and expeditiously deal with environmental issues in the country); A.P Pol-

lution Control Bd. v. Union of India, AIR 1999 SC 812 (India Supreme

Court refers to the need to establish environmental courts endowed with

expert advise to inform the judicial process).

11. See Lavanya Rajamani, -

 ,

19 J. E. L. 293, 319 (2007).

12. Id.

13. N.D. Jayal v. Union of India (2004), 9 SCC 362, at ¶24 (India Supreme

Court recognizes the right to environment as a fundamental right under

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.