Access to Environmental Justice in India with Special Reference to National Green Tribunal: A Step in the Right Direction

12 Pages Posted: 30 Dec 2013

See all articles by Gitanjali Gill

Gitanjali Gill

Newcastle Upon Tyne - School of Law

Date Written: December 29, 2013

Abstract

Access to environmental justice is a key component to ensure just and equitable outcomes for sustainable development. This paper aims to assess the present judicial structures that offer access to environmental justice in India. The initiative, presented below has wider international purchase as it is a case study of a growing judicial development.

India’s policies and laws have sought to become comprehensive and stringent particularly as a consequence of the Bhopal tragedy in 1984. The 'command and control approach' is supplemented by new regulatory techniques such as environment impact assessments and public hearings. However, contradictions and gaps in institutional mechanisms have resulted in ineffective implementation of legislation. Factors such as slack performance by enforcement authorities, multi-layered corruption, political interference and personal gain are the root causes for this failure.

As a consequence, the role of India’s judiciary in securing the enforcement of rights through Public Interest Litigation [PIL] outside statute law but within the constitutional mandate has promoted new and unique environmental jurisprudence. PIL is an innovative and powerful judicial tool making human rights meaningful and effective. PIL has revolutionised the judicial procedure by introducing three procedural innovations: namely, expanded standing, non-adversarial procedure and attenuation of rights from remedies as a result of expanded frontiers of fundamental rights, particularly the right to life under Article 21 of the Constitution of India.

The right to a healthy environment finds its genesis through the right to life. The state is under a duty to enforce this constitutional right by devising and implementing a coherent and coordinated programme for the well-being of the citizenry. Failure on the part of state have prompted the judges to issue short interim directions entitled 'continuing mandamus'. The proactive judiciary has also declared and promoted the principles of sustainable development, the precautionary and the polluter pays principles.

However, concerns such as the rapidly increasing number of petitions, expensive and delayed disposal of petitions, complex technical and scientific issues, inconsistent approach by the courts based upon individual judicial preferences, unrealistic directions and the issue of creeping jurisdiction have created doubts about the current effectiveness of PIL in environmental matters. In seeking a balanced judicial forum that advances a distinctively green jurisprudence, the Parliament of India enacted the National Green Tribunal Act 2010. The National Green Tribunal [NGT] is one element of a reformist approach to environmental governance. The Tribunal aims to adjudicate environmental protection and forest conservation cases in an effective and expeditious manner. This includes enforcement of any legal right relating to the environment together with available relief and compensation for damages to persons and property. The NGT started functioning from 4th July 2011. The Principal Bench is based at New Delhi with circuit benches at Chennai, Bhopal, Pune and Kolkata so that it can reach remoter parts of India. The principal bench and the regional benches are active. India has joined a handful of forward looking countries including Australia and New Zealand to have a dedicated green court. The creation of NGT is an important initiative.

NGT’s potential is being realised in terms of type and volume of cases coming before it. The 'multi-faceted and multi-skilled' NGT with a wide jurisdiction is gradually earning the reputation of being a ‘fast-track court’. It aims to strike a right balance between environment and development. The nature of cases which have come before the NGT include environmental clearances for developmental projects including dams, steel plants, hydro- electric projects and thermal power plants; coastal zone regulations; encroachments on the floodplains; issues relating to pollution and imposition of environmental fines. The principles of inter-generational equity, precautionary and polluter pays principle, public trust doctrine underpinning the international environmental law have been foundational norms in deciding the matters before the NGT.

The institutional redesigning of this judicial structure is unlikely to be the panacea for all environmental ills but it can provide a lead in terms of new forms of environmental dispute resolution. This positive initiative must be seen within the broader context of balancing competing values of environment protection and sustainability on one hand and resource driven growth on the other.

Keywords: Access to justice; India; National Green Tribunal; Public Interest Litigation; Sustainable Development

Suggested Citation

Gill, Gitanjali, Access to Environmental Justice in India with Special Reference to National Green Tribunal: A Step in the Right Direction (December 29, 2013). OIDA International Journal of Sustainable Development, Vol. 06, No. 04, pp. 25-36, 2013, Available at SSRN: https://ssrn.com/abstract=2372921

Gitanjali Gill (Contact Author)

Newcastle Upon Tyne - School of Law ( email )

Ellison Place
208, City Campus East-1
Newcastle Upon Tyne, NE1 8ST
United Kingdom

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