Thomas Jefferson, one of those noble men who co-authored The Declaration of Independence was vigilant enough to say that, “The execution of the laws is more important than the making of them.” And since then our law makers had to be cautious to ensure the enforceability of the legal institution and perhaps prevent them from the shame of becoming toothless tigers.
The relevance of all this is because the article will be discussing the remedies that are available to ensure such enforceability of the orders of the National Green Tribunal which is the protector of Environmental Causes in India.
- About National Green Tribunal (*Further referred as NGT)
The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government. The act was enacted to provide effect, to India’s promise in United Nations Conference on Environment and Development in June 1992, that it will provide judicial and administrative remedies to the victims of the pollutants and other environmental damage.
The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.
It has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act, which are basically the environmental concerns.
The Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region. There is also a mechanism for circuit benches. For example, the Southern Zone bench, which is based in Chennai, can decide to have sittings in other places like Bangalore or Hyderabad.
- Problem at hand
Sole purpose of the establishment of the NGT was for the protection and conservation of the environment but what if it ordered something and there is no compliance from the party at fault? Fortunately ample and strict remedies are available in our legal system for such Non-Compliance.
- Remedies for non-compliance of the NGT.
There are three routes that could be taken to in the case of non-compliance of the NGT’s order
- Filing a complaint under Sec. 26 of the National Green Tribunals Act, 2010 to the NGT.
- This is a straightforward option that can be opted. A person in whose favor the National Green Tribunal passes an award or order, is entitled to two types of remedies under the act, if the award or order or the decision of the National Green Tribunal is not complied with. The first is a right to seek execution of the award under Sec. 25 and second is to seek the prosecution of the offenders before a criminal court under Sec. 26.
- Sec. 26 provides for harsh punishment and says that,
“Penalty for failure to comply with orders of Tribunal –
Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention”
- But there are certain conditions that have to be fulfilled for such non-compliance. Primary condition is that it has to be evidently proved that such non-compliance was wilful and deliberate. In the case of M.P. Muhammed Kunhi and Ors. vs. State of Kerala and Ors., mere delay 2 months was not considered as willful non-compliance.
- Another condition that has to be fulfilled is that, responsibility of the compliance has to be fixed on alleged authority by the court. In Dileep B. Nevatia vs. State of Maharashtra through its Chief Secretary and Ors., absence of explicit delegation of such responsibility has been considered as successful defence.
- The liability for such non-compliance in case of the Government Departments is imposed on the Head of the department under S. 28 provided that he does not prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Also the liability under Sec. 28(2) could be imposed on any official to whom it is attributed. Similarly, under Sec. 27 in the case of non-compliance by the companies, the responsibility if imposed in the director or whoever that was in charge.
- Therefore a complaint of the offense committed under Sec. 26 can be contested through NGT.
- Remedies that are available under High Courts.
- Effectively, High Court is competent to hear contempt petition under The Contempt of Courts Act, 1971. Sec. 2(b), of the same, defines civil contempt as, wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. The non-compliance in current case qualifies for that. Further, Sec. 10, of the same, vests the power to punish such contempt of the subordinate courts with the High Courts. Under Sec. 12, The Contempt of Courts Act complaint for such contempt can be filed.
- But there is a catch, Sec. 29 of the NGT Act, bars the jurisdiction of the other courts. Furthermore, Sec. 33 of the NGT Act provides for overriding effect over the other laws; whereas, Sec. 22 of The Contempt of Courts Act says that, the provisions of this Act shall be, in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts. It is also worth a mention that in case of The Braj Foundation vs. Government of Uttar Pradesh, NGT explicitly said that,
“While such powers are given in the Act itself one need not traverse to any other statute like Contempt of Courts Act. Therefore, we are of the view that the Sec. 26 of the NGT Act empowers the Tribunal to deal with any person who disobeys its order.”
Also in, Vellore Citizens Welfare Forms and Ors. vs. Union of India and Ors. , Madras High Court stated that NGT cannot be held as a subordinate court for the requirement of Sec. 10 of The Contempt of Courts Act.
- But while looking at this there is no clear precedent that bars High Courts contempt jurisdiction over NGT so this option cannot scrapped altogether.
- Also, High Courts are not ineffective completely. Madras High Court in Meenava Thanthai K.R. Selvaraj Kumar vs. The Secretary to Government Union of India Ministry of Shipping and Ors., exclusively said that, matters under Sec. 26 are governed by the NGT. However, having regard to the fact that large number of fishermen are affected, due to the collision of the ships and oil spillage, this Court, in exercise of the powers under Article 226 of the Constitution of India, entertains the suo- motu Public Interest Litigation, based on the information.Therefore if the matter involves severe infringement of the right of the people, a direct petition can be considered.
- Filing complaint under Sec. 15 of Environment (Protection) Act, 1986 to District Magistrate.
“Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued there under, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.”
- Sec. 16 and Sec. 17 of The Environment (Protection) Act, 1986 mentions liability of the government authorities similar to Sec. 27 and Sec.18 of NGT act.
- Under these sections the remedy could be availed, but Bombay High Court in K.V. KurundkarAnd Anr vs The State Of Maharashtra And Anr, stated that efficacious remedy for breach of orders of NGT is under Sec.26 of NGT Act and not before magistrate under Sec.15 of The Environment (Protection) Act. But the similar judgment cites NGT principle bench case where such cognizance by district magistrate under the Environmental protection was upheld.
- But the remedy is less appealing for a simple reason that, under Sec. 15 of the EPA punishment, is imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or both whereas under Sec. 26 of the NGT Act it is, a term which may extend to three years, or with fine which may extend to ten crore rupees, which is potential very harsher in monetary terms.
- Therefore under Section 15 of the EPA, 1986, complaint could be filed for such non-compliance under district magistrate.
It can be obviously concluded that NGT is not a toothless tiger. For the sake of Non-compliance there are not one but three remedies available. All stated routes can be taken and contested successfully.