Environmentalism much like constitutionalism seeks to limit the autocratic tendency of technology driven growth with reference to our environment. Incidentally these two concepts have a lot in common. They are similar in their object and purpose and a lot more similar in their specific demands for creation of institutions that fulfill these objects. In fact, one can define environmentalism as a magnified image of constitutionalism. Consequently, the imperatives of environmentalism are also amplified in comparison to constitutionalism. Imperatives of constitutionalism demand rule of law, protection of basic human rights, and separation of powers fortified by independent judiciary. However, the specter of neoliberalism at the global stage works as an anti-catalyst which has painfully slowed down the arrival of environmentalism to save our environment. Neoliberal onslaught repeatedly shoots down attempts to evolve effective regulatory framework for environment protection in India. The dramatic quest for pan Indian environment protection authority needs to be understood from the perspective of neoliberal disdain for all common goods be it environment, education or public health. The idea of environment protection authority has been roving around for last three decades first in the form of National Environment Protection Authority (NEPA) then as National Environment Assessment and Monitoring Authority (NEAMA) thereafter as National Environment Management Authority (NEMA) finally yet to be conceived utopia of environmentalism! In the absence of substantive bureaucratic structure for the protection of environment, the functioning of National Green Tribunal (NGT) is also seriously handicapped. In any case, the conceptualization of NGT in comparison to the Land & Environment Court of New South Wells (NSW), Australia & similar structures in other parts of the world leaves much to be desired. Again, the challenges to effective environment adjudicatory mechanism must be understood in the specific context of neoliberal slogan of minimum government for maximum governance.
“If the federal government had been around when the Creator was putting His hand to this state, Indiana wouldn’t be here. It’d still be waiting for an environmental impact statement.”
—Ronald Reagan
Introduction
The speed at which environmental disputes are settled is surpassed only by the speed of creation of similar disputes. The ramifications of this problem need to be understood in the light of the role that the concept of environmentalism is going to play in the 21st century. If the 20th century was about the dominance of constitutionalism at national and international stage, 21st century is going to witness the replacement of that dominance by similar albeit more comprehensive concept known as environmentalism. Evolution of environmentalism as the dominant discourse of modern political, economic and social thought is mainly due to the efforts of international community in the form of International Environmental Law. It is the international environmental law which gave shape and content to environmentalism and brought it at the center of concern for global governance[i]. In this context, the lessons learned from expansion the expansion of constitutionalism could be of much value.
Today the imperatives of environmentalism, which are basically amplified demands of constitutionalism, are demanding rule of law with additional focus on hawkish corporate sector, basic rights which extend beyond human beings so as to include all living beings,[ii] separation of power leading to the creation of an independent environment regulation regime fortified by an independent executive and adjudicatory institutions. However, the specter of neoliberalism[iii] at the global stage works as an anti-catalyst which has painfully slowed down the arrival of environmentalism. The proposal to set up National Environment Management Authority (NEMA) & State Environment Management Authority (SEMA) through National Environment Law Management Act (NELMA) bears testimony to neoliberal disdain for attainment of all common goods be it environment, education or public health. In this process an attempt is sought to be made to dilute the existing National Green Tribunal which already has a very limited scope in terms of the National Green Tribunal Act, 2010. Instead, the need of the hour is to is create robust institutional structures which should be able to prevent creation of environmental disputes at the first place and if at all a dispute must arise then it is settled in most expeditious manner.
However, half-baked attempts to reform environmental governance in India fail to capture the essence of environmentalism. The hit and trial method in creating an efficient and viable environmental governance regime is being done at a great cost to present as well as future generations which India as a developing nation can ill afford. This paper is an attempt to study and understand the specific demands of environmentalism pertaining to environment regulation regime in the light of past experiences, current developments and future requirements. The focus of this paper is the need for effective environment protection authorities and the role of NGT in the settlement of environmental disputes. Efforts have been made to critically analyze the evolving environment governance regime in the overarching presence of neoliberal discourse with the object to ensure, quick, efficient and expeditious handling of environmental issues.
Conceptual Underpinnings of Environmentalism
As per the Britannica Concise Encyclopedia environmentalism means “advocacy of the preservation or improvement of the natural environment, especially the social and political movement to control environmental pollution. Other specific goals of environmentalism include control of human population growth, conservation of natural resources, restriction of the negative effects of modern technology, and the adoption of environmentally benign forms of political and economic organization.” In simple terms ‘Environmentalism’ can be defined as a movement[iv] to protect and improve the environment.[v] The importance of this movement[vi] is primarily because of the importance of its ultimate object. The object of environmentalism is to protect humanity from the existential threat posed by environmental degradation. This threat might throw all our political, economic and social institutions into complete disarray. This understanding was articulated by the Preamble to the World Charter for Nature, 1982 in following words “the degradation of natural systems owing to excessive consumption and misuse of natural resources, as well as failure to establish an appropriate economic order among peoples and among States, leads to the breakdown of the economic, social and political framework of civilization.” Thus, the ultimate object of environmentalism is to protect the basic framework of human civilization.[vii]
Because of the sanctity of the object that environmentalism seeks to achieve, the movement[viii] to protect and improve the environment has multiplied manifolds. Consequently, environmentalism has triggered a host of movements which aim to transform our social, economic, cultural, political, educational, scientific, technological, commercial, and legal world.[ix] The idea of sustainable development, therefore, accommodates all these concerns and much more.
Emergence of environmentalism as the preeminent ideology touching every aspect of the world around us is culmination of the process started by Stockholm Conference on Human Environment in 1972. The Stockholm Declaration proclaimed that… to defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development. And to achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future.
Environmentalism, therefore, from the very beginning had made it clear that it is an idea with multifarious concerns which demand acceptance of responsibility by one and all. This acceptance of responsibility reveals the true nature and character of environmentalism. Environmentalism by its very nature imposes certain limitations on the actions of multiple stakeholders that it involves. Beginning with the State, environmentalism limits the ability of giant corporate and individuals to interact arbitrarily with natural environment. Equipped with the tools of sustainable development, environmentalism now seeks to regulate not just the interaction of state, corporate and individuals with natural environment but their interaction with each other as well.
Limitations of Constitutionalism
The idea of limitation on State power has been the central concern of constitutionalism. The object here is to protect life and dignity of life from the arbitrary actions of State by imposing certain systemic limitations on the exercise of vast powers at the disposal of State. The threat to life and dignity of individuals or group of individuals emanating from the arbitrary exercise of State power pales into insignificance once we compare it with the threat posed by environmental degradation by arbitrary exploitation of natural resources[x]. This arbitrary exploitation of resources is the result of conduit actions comprising of State & corporate sector under neoliberal world order.
Constitutionalism on the other hand (historically and traditionally) imposes limitations on State alone. There too it misses the arbitrary potential of State in environmental matters. In any case, power center in 21st century has decisively shifted from State to corporate.[xi] Constitutionalism therefore, by regulating the arbitrariness of State alone[xii] (arguably excluding its arbitrariness in environmental matters) becomes a concept of limited importance to the challenges of 21st century. The inability of retreating constitutionalism to capture the major concerns of 21st century has left a deep void in modern political theory. This void is sought to be filled by fast expanding concept of environmentalism which seeks to influence the social, cultural, economic and political discourse of modern political thought in this new century. However, the expansion of environmentalism must cross swords with the all mighty power of neoliberalism which privileges individual concerns over communitarian ones.
Lessons from Constitutionalism
For environmentalism to challenge the hegemonic power of neoliberalism, it is necessary to gain strength from the experience of constitutionalism which has been relatively successful in guarding the fundamental right to life against autocratic tendencies of State in the last century. The evolution of constitutionalism into a deeply entrenched ideology of 20th century socio-political dialogue holds some very important lessons for the fast-evolving concept of environmentalism as the new idea of limitation in the 21st century. These lessons are particularly appealing for content exposition of environmentalism and their institutional protection. This lesson drawing exercise is possible only because of the similarity of objects of the two concepts and the methodologies employed to achieve these objects. Both seek to protect life and dignity of life although the subject of protection is much bigger in scale and shape in case of environmentalism. Similarly, the methodology deployed to achieve these objects is also common, that is restriction of arbitrariness through imposition of limitations albeit in case of environmentalism limitations seek to cover broader spectrum. Therefore, if one is to define environmentalism vis-à-vis constitutionalism, environmentalism can be termed as the magnified image of constitutionalism. Consequently, the content elaboration exercise with regard to environmentalism can draw a lot from the contents of constitutionalism. For similar reasons contents of constitutionalism can be amplified to arrive at the contents of environmentalism. This exercise is necessary to repel the challenges to environmentalism which are mounted on the ground of vagueness, lack of clarity and absence of clear direction. Moreover, once we have the elements of environmentalism clearly spelled out, one can focus his energies on fortifying the same and attain the ultimate object of protecting life and the dignity of life through creation of strong social, political and economic institutions.
The essential elements of constitutionalism are, Rule of Law, Separation of Powers, Fundamental Rights and to fortify them all an Independent Judiciary. Now if we amplify these elements to create content for environmentalism we will have rule of law with additional focus on hawkish corporate sector, fundamental rights which extend beyond human beings so as to include all living beings,[xiii] separation of power leading to the creation of an independent environment governance regime supported by independent executive and adjudicatory institutions. This amplification exercise throws some interesting ideas for consideration.
Firstly, the extension of the concept of rule of law to include corporate sector would mean that the guarantee of Part-III of Indian constitution would not be limited against the State alone. The real power house of 21st century namely the corporate sector would be obliged to observe the fine values of rule of law. In practical terms, it would mean that the corporate would be under legal duty to take into account the concerns of all those who are adversely affected by their actions, particularly on issues directly involving environmental concerns.[xiv] This premise can be developed further to counter neoliberal thrust for deregulation of the corporate sector.
Secondly, environmentalism demands that the fundamental rights would no more be limited to human beings alone.
The rights of all living beings must find expression in the highest law of the land as they are equal partners and stakeholders in an environment supportive to life. To bury the rights of non-human living beings just because they are unable to negotiate with us is as unethical as counterproductive to our efforts to prevent environment pollution.
There is sufficient scientific evidence to conclude that human beings cannot survive in complete absence of other life forms. Therefore, it is in the interest of humanity to grant institutional protection to animals and other living species, biodiversity and ecology. With this argument, neoliberal claim for unrestricted freedom to exploit natural resources can be undermined to a great extent.
Finally, the concept of separation of power is a shield to guard against the dangers of too much power concentration at one place. Rule of law and fundamental rights are mechanisms to impose limitations on the arbitrary exercise of powers by the State and corporate so that the life and dignity of life is protected against the vagaries of power.
However, any mechanism to limit the exercise of power becomes meaningless if all the levers to control such mechanism are in one hand because then such mechanism itself becomes prone to unjustified, unlimited and arbitrary pulling, tweaking and twisting. Separation of power is answer to such challenges. By dividing power among different organs of State a system of checks and balances is created to avoid the problems of too much power concentration at one place in any form. The traditional understanding of the concept of separation of power is that State power is divided among different organs of State that is Legislature, Executive and Judiciary all operating independent of each other.
However, this traditional distribution of powers among various organs of the State fails to deliver on the challenges of faced by environmentalism. Judiciary which is the guardian of constitutionalism is overwhelmed by the environmental dispute flooding its corridors. The apex court of India in M.C. Mehta vs. Union of India[xv] in 1986 admitted that “in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication.” How often do we see the judiciary expressing inability to perform its traditional function of dispute settlement by adjudication process? But this cannot in any manner be viewed as the weakness of Indian judiciary. This is an example of judicial reflexivity which recognizes the need to create unique institutions for the protection and preservation of the fine principles of environmentalism. This judgment started the process of establishment of National Green tribunal in India which is a reality today. But the success or failure of NGT as the guardian of the environmentalism depends upon the willingness of Executive to cede some of its powers to accommodate the concerns of environmentalism giving new meaning to the doctrine of separation of powers.
The voluntary modification of the role that judiciary is going to play in the quest for holistic environmental justice is a model worthy of emulation by the executive wing of the State. The Executive must be divided into two; Political Executive and Bureaucratic Executive.[xvi] The former will lay down the broad policies and parameters to be rigorously executed by the later. Political executive must not have the ability to subvert the functioning of bureaucratic executive as the later will be under the direct scrutiny of NGT and therefore the possibility of bureaucratic executive degenerating into an all-powerful monster cannot be entertained which could justify the subjugation of later by the former. NGT in turn is already under the scrutiny of the apex court of the country as the appeals from NGT lie directly to the Supreme Court. This exercise of creating an independent bureaucratic executive is necessary because the success or failure of NGT almost entirely depends upon the efficiency of bureaucratic executive. The proposal to set up NEPA/NEAMA/NEMA could be seen as an attempt to create an independent bureaucratic executive. Together these two have the potential to establish a strong, efficient and effective environment governance regime in India.
After learning the relevant lessons from the experiences of the working of constitutionalism and finding out the specific needs of environmentalism, this paper proceed to examine various proposals to establish an environment protection authority alongside the NGT to find out how far they satisfy the demands of environmentalism.
Environment Protection Authority and Environmentalism
The quest for Bureaucratic Executive began with the passage of Environment Protection Act.[xvii] Section 3(3) empowered the Central Government to constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government by an order, to be published in the Official Gazette. Ever since the idea of environment protection authority has been roving around often due to prodding by courts[xviii] first in the form of National Environment Protection Authority (NEPA) then as National Environment Assessment and Monitoring Authority (NEAMA) thereafter as National Environment Management Authority (NEMA) finally as yet to be conceived utopia of Indian environmentalism!
The case for National Environment Protection Authority (NEPA) was not found to be very strong[xix] therefore it got substituted by National Environment Assessment and Monitoring Authority (NEAMA). The NEAMA was proposed to be established in two phases[xx]. In the first phase, it was to be created by an executive order under the Environment Protection Act, 1986. In the second phase, it would have been given statutory status with additional responsibilities. The proposed authority could ultimately subsume labyrinthine institutions that are in existence today seeking to enforce environmental regulations but in practice doing everything to subvert them. It was expected that NEAMA would expedite the environmental clearance and give much needed lease of life to slumping business mood of the corporate[xxi] caught in the web of environmental concerns[xxii] which has serious consequences[xxiii] for our efforts to eradicate poverty and make the promise of social justice a reality.[xxiv] Eventually, the overwhelming concern for business sentiment ensured that the idea of NEAMA gets substituted by National Environment Management Authority (NEMA). The relentless march of neoliberalism replaced the idea of environment protection authority by environment management authority at the proposal stage itself!
Neoliberalism was writ large on the proposal to establish NEMA which instead of strengthening environmental governance sought to dilute whatever little has been achieved so far in terms of institutional mechanism to promote environmentalism.[xxv]
NEMA was proposed to be established by the Environmental Laws (Management) Act (ELMA). The proposal sought to do away with public participation in environmental decision making. Its whole focus was to ease environmental regulations for the corporate to work with impunity and undermine the requirements of environmentalism. NEMA failed to conform to the institutional demands of environmentalism brought out in the preceding section. Rather, it conformed to the ideals of neoliberalism.
Interestingly, Parliamentary Standing Committee on Science and Technology, Environment and Forests rejected[xxvi] the proposal to establish NEMA by sidestepping environmental concerns. However, the Parliamentary Standing Committee by rejecting the report[xxvii] on NEMA completely also trashed some good ideas which if implemented could have brought the dream of an environment protection authority a little closer. The idea to establish environment protection authority with three tier structure comprising district, state and national level authorities was certainly laudable. Suggestions to establish National Environment Research Institute & Environment Reconstruction Fund (ERF), creation of Indian Environment Service was timely. One of the biggest weakness of the proposed NEMA was that it stumbled down upon the touch stone of institutional independence which is absolutely essential for the success of any environment protection authority. If the deliberations of government on this issue are any indicator of things to come, then the ultimate lever of NEMA would have remained with the MoEF defeating the requirement of Bureaucratic Executive functioning independent of Political Executive.[xxviii] However, the net result of the defective proposal to set up NEMA means that the establishment of environment protection authority continues to be an illusion.
The model keeping in mind the analysis done in preceding sections would be to have National Environment Protection Authority (NEPA) with the mandate to administer, monitor and enforce all environmental laws, rules and regulations in operation across the length and breadth of this huge country.[xxix] This will require that NEPA must function as a three-tier body with central, state and district level authorities much like our unified judiciary and subject only to the adjudicatory jurisdiction of NGT.[xxx] NEPA must be mandated to impose limitations on the power of neoliberal corporate world to trample upon environmental concerns.
Construction of such an institution is not only warranted by the experiences of fortifying constitutionalism in 20th century but also essential to repel the challenges to environmentalism by conflict of interests inherent in the present environmental regulatory regime. At present, the Political Executive which is founded on the donations of corporate sector finds it impossible to take on it. Any objection that model NEPA would be too broad given its mandate to administer, monitor and enforce all environmental laws, rules and regulations to be feasible, can be repelled by citing the similar experience of US Environmental Protection Agency which has worked efficiently even in the absence of a dedicated national environment court. But, this is not going to be easy.
Whatever defects NEPA, NEAMA or NEMA might have at the proposal stage, the fact remains that till date India does not have[xxxi] a national environment protection authority despite statutory provision like Section 3(3) of EPA, 1986. This victory of neoliberalism over environmentalism speaks volumes about the enormity of the task in hand. However, during this period a National Green Tribunal was established by the National Green Tribunal Act, 2010 to reform environmental governance in the country.
NGT and Environmentalism
The role of NGT[xxxii] in the model environmental regulatory regime is evident from the conclusions of last section. With the passage of NGT Act, 2010 a quasi-judicial body has begun to work for the adjudication of environmental disputes. It goes to the credit of NGT that it has acquired a name for itself in a short span of time bringing environmental disputes to the headline of newspapers & television channels. However, the substantive role that the NGT could play in order to ensure the success of model environmental regulatory regime is rendered ineffective by the present legislation to establish NGT.[xxxiii]
Apparently, the jurisdiction of NGT extends over all civil cases pertaining to environment. Inexplicably, its jurisdiction is limited by the condition that such cases should arise out of the implementation of the enactments specified in Schedule I to the NGT Act which are just 7 in number excluding[xxxiv] large number of legislations which will be enforced by NEPA. This structure limits the jurisdiction of NGT reducing its efficacy resolve substantive issues which significantly touch upon the question of environment protection. A comparatively successful model[xxxv] of environmental justice administration presented by the Land and Environment Court of
New South Wales (LEC of NSW), Australia exercises jurisdiction over as many as 59 legislations.
Moreover, restricting NGT to merely civil jurisdiction under environmental legislations leads to some extraordinary issues of conflict of jurisdiction. These issues have been elaborated by Dr. Usha Tandon in following words “let’s take the example of The Environment (Protection) Act 1986 and assume that there is a direct violation of Section 7 of the Environment Act which prohibits the discharge or emission etc of any environmental pollutant in excess of the prescribed Standards, and thereby community at large is affected. It is notable that the violation of this provision attracts the penalty under Section 15 of the Environment Act which is imprisonment or/and fine. Now in view of Section 14 of the NGT Act the question is: what kind of dispute has arisen from this substantial question of law which can be settled by the NGT. The obvious answer appears to be: no such civil dispute has arisen out of the violation of Section 7 of the Environment Act. As a matter of fact, it is well known that modern environmental statutes (i.e. the seven specified legislations in schedule I) operate on criminal justice administration which stipulate deterrent theory of punishment. They do not legislate legal rights relating to environment, rather create environmental offences against those who violate the legal right relating to environment. Therefore, the NGT Act with respect to original civil jurisdiction is not in consonance with the legislative scheme of specified seven legislations, if the intention of the legislature is that the Tribunal should be approached by way of original civil petition, then first of all the requirement that ‘the substantial question relating to environment must have arisen out of the implementation of enactments specified in Schedule I’ should be done away with. As a matter of fact Schedule I to the Act referring to only seven legislations is absolutely unwarranted and should be deleted. Section 14 should be amended to entertain cases involving enforcement of any legal or constitutional rights relating to environment. The right may arise from the Constitution of India, from any environmental statue directly or indirectly protecting the environment or it may arise from any tort action.”[xxxvi]
Apprehensions expressed by Dr. Usha Tandon appear to be quite legitimate in the light of past experiences of Green Tribunals in our country. The Law Commission of India, in its 186th Report has concluded that the Appellate Tribunal did not have much work in view of the narrow scope of its jurisdiction as per notification issued. It dealt with very few cases. After the term of the first Chairman was over, no appointment had been made. Thus, efforts should be made to widen the jurisdiction of NGT to make it more effective and relevant in the larger scheme of the 21st century environmental regulatory regime. In fact, the LEC of NSW encompasses a wide range of jurisdiction maintaining a variety of proceedings over a large number of legislations. This significantly enhances its importance and relevance for all kinds of environmental disputes resolution. There is one big lesson to draw from the experience of the LEC of NSW that in order to be effective the ‘Original Jurisdiction’ of NGT should be a mix of civil, criminal and administrative aspects of all legislations having any impact on environment which could give rise to any kind of dispute. There are many other aspects of NGT that need fine tuning so as to accommodate the concerns of environmentalism.[xxxvii]
The present scheme of dividing NGT into different zones with jurisdiction over several States has presented participial challenges in access to environmental justice. Firstly, environmental disputes often require onsite inspection at least by the expert member of the bench. If bench of one State has jurisdiction over other states also there will be practical problems of distance. Witnesses and victims of environment destruction have to travel long distances to depose before the bench of the NGT. “The Vermont Environmental Court in the United States covers a small geographic area and splits hearings geographically between two judges. The court also does on-site hearings locally in impacted communities. Accommodation for persons with physical disabilities, including mobility, hearing, and vision issues, and for persons who need language translation services are included in the most accessible Environment Courts/Tribunals.”[xxxviii]
Secondly the monitoring work by the NGT of ongoing cases will suffer. This fact is buttressed by experiences of environments courts in Australia. The Environment, Resources and Development Court of South Australia often sits in a country town where there are appropriate facilities (not necessarily a courtroom), near to where the land is situated. This enables the Court to readily take a view of the land and environs (as it usually does at the request of parties in planning appeals); it is easier for local witnesses to attend, and may also reduce the cost for parties, while enabling locals to experience the hearing of a matter.[xxxix]
Finally, environmental disputes involve multiple stake holders. Inhabitants of one State will not be very happy by the judgment of another State tribunal particularly when the case involves the question of harnessing the natural resources of the State. Moreover, to assume that small States will have less number of environmental disputes and therefore can be managed by one bench of NGT acting for more than one States is fallacious. Broadly speaking the division of our States is based on geographical[xl] grounds giving each State a unique environment. Smaller states therefore give rise to equal number of environmental disputes in comparison to bigger ones if not more. In any case maintaining the integrity of the environment of smaller territory is more cumbersome as it leaves little room for maneuvering the delicate environmental ecology. Accordingly, the Law Commission of India in its 186th report has proposed to establish an Environment Court in each state depending upon its needs[xli] which has not been incorporated in the NGT Act.
In fact, if we do a comparative study of NGT with the Land & Environment Court of New South Wells (NSW), Australia we find that there is fundamental difference at the composition level itself which does not augur well for the success of NGT in India. The Land & Environment Court (LEC) of NSW consists of 6 permanent judges including the chief judge. There are 9 permanent commissioners (expert members) which takes the strength of LEC to 15. Apart from this acting Commissioners may also be appointed from time to time.[xlii]
New South Wells is the most populous state of Australia.[xliii] It will be instructive to compare the LEC of NSW to the most populous State of India i.e. Uttar Pradesh.[xliv] As per the current strength of NGT UP bench of NGT can have maximum of 6 members (3 judicial and 3 expert members) 31. The judge is to population ratio of NSW stands at approx. 4,82,588 while this ratio for UP is approx 3,23,29,610. Going by this comparison the proposed strength of NGT falls short by at least 66 members for the State of UP alone. If we do similar calculations for all other Indian States taking the NSW strength as the standard, the proposed strength of the NGT will look even more ridiculous.
The study makes it very clear that the unique circumstances of India do not allow a cap on the maximum strength of NGT. The experience of NGT on this front is succinctly brought out in following words of an activist, “The biggest challenge that people face is the access to justice. Access to justice is denied by two means in NGT: firstly, by the provision of limitation period and secondly, by virtue of NGT being located in only five big cities spread across India. Once the tribunal started operating, lower courts were barred from taking up environmental cases. Not that they were doing a great job, but the debarring of lower courts has meant that poor and disadvantaged communities living in remote parts of the country now have to go to NGT Benches in their respective zones to get justice.”[xlv]
Moreover, the space provided to judicial retirees[xlvi] in the Tribunal raises the fear of the NGT being rendered as the dumping ground losing its sheen in the process. More space should be created for the young and dynamic within the proposed system to make NGT a truly vibrant institution. It should have been better had the qualifications included specific specialization in environment on the lines of Australian model. However, it is surprising that no academic specialized qualifications are prescribed for expert members. The current dispensation leaves scope open for bureaucrats to administer environmental justice which is not a happy arrangement.
Section 20 of the NGT Act empowers the NGT to apply certain fundamental environmental principles while passing any order or decision or award. These principles include the ‘principle of sustainable development’, the ‘precautionary principle’ and the ‘polluter pays principle’. It is for the first time in the environment legislative history that these fundamental environmental principles have got legislative recognition and an environment court has been asked to specifically enforce them. So far, these principles were recognized by the judiciary alone. However, certain important environmental principles have been left out of the purview of the NGT Act which is unfortunate. These principles include the Prevention Principle, Principle of New Burden of Proof, the Public trust doctrine, and the Principle of Inter-Generational Equity. It is unfortunate that despite recognition of many of these principles by the apex court the NGT Act does not foresee their application in the new environmental regime that it seeks to establish.
Sections 26 to 28 lay down penalties for failure to comply with orders of NGT and define liability of private and government officials. Section 30 provides the procedure for taking cognizance of offences committed under the NGT Act. By virtue of section 31 all the employees of the NGT are deemed to be public servant for the purpose of extending protection to them under criminal law. Section 32 protects bonafide actions of the employees of NGT and all those who act in compliance of the NGT Act. These provisions are important because they sanctify the NGT and its functioning. The heavy amount of fine prescribed by section 26 will go a long way to ensure the compliance of the orders, awards or decisions of NGT. It is seen that more often than not the biggest violators of environmental laws are big corporations with deep pockets. If the amount of fine imposed upon them is not big they start following the policy of ‘pollute and pay’ which is obnoxious. In view of past experiences in this regard section 26 is a welcome provision. It will also provide scope for the application of ‘deep pocket’ theory as enunciated by the SC in M C Mehta v Union of India.[xlvii]
An analysis of section 27 makes clear that it creates dual responsibility for the offences committed by companies under the NGT Act. Firstly, the company itself is liable to pay penalties if it commits any offence. Secondly, every person who was directly in charge of, and was responsible to the company for the conduct of the business of the company will also be criminally liable. However, if he can show that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence he will be exonerated from such liability. A third kind of liability is also recognized by sub-section (2) of section 27 which we can term as vicarious liability. This liability is tied over the director, manager, secretary or other officers of the company who enjoy superior authority and control over the company. If it is found that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, then they shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
In addition, NGT has sought to expand its reach by claiming suo motu powers. Justice Swatanter Kumar, NGT chairperson in inteview to Down to Earth asserted that suo motu jurisdiction has to be an integral feature of NGT for better and effective functioning. In fact, on certain occasions the NGT did invoke suo motu powers which has not gone down well with vested interests.[xlviii] Further, the NGT has been claiming the powers of judicial review under ancillary and inherent powers necessary in the interest of justice arguing that the tribunal is a specialized body and has a procedure of its own under Section 19, which gives it power to adjudicate on issues where judicial review is required.
The brief existence of NGT promises hope for the future of environmental governance in India. NGT has taken on powerfully entrenched bureaucracy of the Ministry of Environment, Forests and Climate Change (MoEF & CC). In the absence of effective environment protection authorities, NGT has raised the bar for the MoEF & CC with respect grant of environmental clearance in critical projects. Pollution Control Boards both Central & State recognize the authority of NGT & at least make an attempt to enforce labyrinthine environmental rules & regulations which are often dismissed as mere paper tigers. A fundamental problem facing the judicial system in India is speedy disposal of cases. The problem is even more pronounced where environmental issues are concerned. A study done by the Delhi-based Centre for Science and Environment (CSE) on the status of cases filed by the state pollution control boards showed that as many as 96 per cent, 76 per cent and 55 per cent of cases filed by Chhattisgarh, Odisha and Karnataka boards respectively, were pending in the lower courts. In the three-and-a-half years since its establishment, NGT has done much better. It had 6,017 cases instituted and 3,458 cases were disposed of a rate of about 60 per cent, as of August, 2014.[xlix]
Notwithstanding the celebratory note on NGT & its headline grabbing work, the imperatives of environmentalism are as illusory as ever. Sudhir Paliwal, of Vidarbha Environment Action Group in Nagpur, thinks that NGT keeps major issues dragging, while hyping up minor ones. “It has not issued any strong orders in major air pollution cases related to power plants or automobile pollution. For instance, a case filed by Mahadula-based social activist Ratnadeep Rangari where Rangari alleged that the Maharashtra State Power Generation Company (Mahagenco) was flouting coal quality norms, has been dragging for a year without NGT giving any clear order, says Paliwal. However, recently, in a case relating to Diwali crackers, NGT has ordered the setting up of committees to visit cracker manufacturers.”[l]
Theorizing the Failure of Environmentalism in India
In the preceding sections, the comparative study of environmentalism & constitutionalism succinctly brings out the following structural imperatives of environmentalism:
1) Pan Indian bureaucratic authority strategically placed at national, state & district level to enforce entire gamut of environmental laws in a coherent & cogent manner.
2) Pan Indian judicial body strategically placed at national, state & district level to adjudicate environmental disputes with comprehensive jurisdiction.
Judged in the background of missing pan Indian bureaucratic authority & inadequate judicial body, structural imperatives of environmentalism have to be characterized as failure in the Indian context. What is the theoretical explanation of this failure? While neoliberalism with its inherent contempt for ‘human commons’ has been alluded to in preceding sections as formative force behind such failure, we still need to identify the local collaborators. For this purpose, we need to understand the nature of Indian State & why has it failed to evolve satisfactory institutional mechanism to address the ‘human commons’. If we take the example of some undisputed commons like education, health & environment and try to study them in terms of existing institutional mechanism following pattern will emerge: multiplicity of institutions with graded hierarchy of input & outcomes which successfully address limited constituencies but fail together on addressing common concerns. Both in education & health, this graded hierarchy is reflected in a few world class institutions serving global market & then varying degree of descending institutions in the form of very good, good, average, poor & very poor! The fact that formation of inadequate NGT is preceded by non-formation of NEPA is a pointer to this pattern. The fact that institutional response to environment protection which is undisputed common good should remain inadequate as the institutional response to education & health after more than six decades of the formation of Indian Republic points towards the foundational defect of the Republic. This defect has been succinctly highlighted by Gail Omvedt as “Brahmanic Socialist State”[li] which can be termed as “Brahmanic Capitalist State”[lii] in its neoliberal avatar.[liii] This transformation of Indian State has been termed as ‘Neo-Brahmanism’[liv] which shares the neoliberal contempt for human commons. Both Neo-liberalism & Neo-Brahmanism are based on individualism hence lack the capacity to appreciate communitarian common goods.
These two ideologies also share their fatalistic love for hierarchical social, economic, & political order producing multiplicity of institutions with graded hierarchy of input & outcomes. In this sense, Neo-liberalism converges with Neo-Brahmanism making later the natural collaborator of the former. Thus, the failure of environmentalism in India to produce satisfactory institutional mechanism for the protection & improvement of environment lies in the alliance of neoliberal & neobrahmanical forces operating in tandem to arrest the arrival of ‘environment moment’ on Indian landscape.
Conclusion
Humanity today is at crossroads because of the monumental challenges posed by environmental concerns. The search for adequate institutional response to the existential threat posed by environmental problems must proceed with a sense of urgency and sincerity that it deserves. Unfortunately, Indian efforts in this direction have been lackluster so far.[lv] Failure to establish NEPA and establishment of inadequate NGT capture the essence of challenges to environmentalism in India. In the absence of NEPA with sufficient scope and structure to contain the upward march of menacing pollution levels by vigorously enforcing and monitoring the vast body of environmental laws, there is little that inadequate NGT can do. Alternatively, if NGT does not have jurisdiction to adjudicate disputes thrown up by existing environment protection bodies like Pollution Control Boards or proposed NEPA in an expeditious, efficient and effective manner, the later will end up creating more problems than it will resolve. The evolution of strong and effective Environmental Governance Regime in India, therefore, must be guided by the sound principles of environmentalism.
The ideological challenges to the evolution of satisfactory model of environmental governance in the Indian context must be explored more deeply in order to mount a successful defense of environmentalism. For this purpose, vigorous interrogation of existing institutional mechanism of environmental governance is necessary. As a comparative study, US Environmental Protection Agency[lvi] offers a good starting point for the Environment Protection Authority. It has worked in American jurisdiction with relative efficiency even in the absence of so called National Environmental Court or Tribunal. On the other hand, Land & Environment Court of New South Wells (NSW), Australia[lvii] offers a good starting point for the National Green Tribunal which has delivered without a National Environment Protection Authority.
A successful environmental governance structure to protect & improve the rich environmental diversity of India can be raised by modeling NEPA on US Environmental Protection Agency & NGT on the Land & Environment Court of New South Wells (NSW), Australia. These objectives cannot be achieved without some tangible movement away from ideologies based on individualism towards more egalitarian commitment for human commons.
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