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Environmental Justice in India: The National Green Tribunal and Expert Members

  • Gitanjali Nain Gill (a1)
Abstract

This article argues that the involvement of technical experts in decision making promotes better environmental results while simultaneously recognizing the uncertainty in science. India’s record as a progressive jurisdiction in environmental matters through its proactive judiciary is internationally recognized. The neoteric National Green Tribunal of India (NGT) – officially described as a ‘specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues’ – is a forum which offers greater plurality for environmental justice. The NGT, in exercising wide powers, is staffed by judicial and technical expert members who decide cases in an open forum. The experts are ‘central’, rather than ‘marginal’, to the NGT’s decision-making process.

This article draws on theoretical insights developed by Lorna Schrefler and Peter Haas to analyze the role of scientific experts as decision makers within the NGT. Unprecedented interview access provides data that grants an insight into the internal decision-making processes of the five benches of the NGT. Reported cases, supported by additional comments of bench members, illustrate the wider policy impact of scientific knowledge and its contribution to the NGT’s decision-making process.

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Footnotes
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I recognize and thank the British Academy/Leverhulme Small Research Grants for supporting this research. Thanks to Robert Lee, Birmingham Law School (UK), for his helpful comments.

I wish to acknowledge my gratitude to the Chairperson and the bench members of the NGT whom I interviewed and who made me feel welcome, were generous with their time, and open with their recorded comments: Chairperson, the Hon. Mr Justice Swatanter Kumar, who authorized these interviews; Honourable Judicial Members: Mr M. Chockalingam, Mr V.R. Kinganonkar, Mr P. Jyothimani, Mr Dalip Singh, and Mr U.D. Salvi; Honourable Expert Members: Professor R. Nagendran, Dr Devendra K. Agarwal, Gopal K. Pandey, Professor (Dr) P.C. Mishra, Mr P.S. Rao, Mr Ramesh C. Trivedi, Dr Ajay A. Deshpande, and Mr Ranjan Chatterjee.

Footnotes
References
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1 Lawrence, J., ‘The Structural Logic of Expert Participation in WTO Decision-Making Processes’, in M. Ambrus et al. (eds), The Role of ‘Experts’ in International and European Decision-Making Processes: Advisors, Decision Makers or Irrelevant Actors? (Cambridge University Press, 2014), pp. 173193, at 186.

2 Ambrus et al., ibid.; Ericsson, K.A. et al. (eds), The Cambridge Handbook of Expertise and Expert Performance (Cambridge University Press, 2006); Kronsell, A. & Bäckstrand, K., ‘Rationalities and Forms of Governance: A Framework for Analysing the Legitimacy of New Modes of Governance’, in K. Bäckstrand et al. (eds), Environmental Politics and Deliberative Democracy: Examining the Promise of New Modes of Governance (Edward Elgar, 2010), pp. 2843, at 38–9; Buchanan, A. & Keohane, R.O., ‘The Legitimacy of Global Governance Institutions’ (2006) 20(4) Ethics and International Affairs, pp. 405438; Steffek, J., ‘The Legitimation of International Environmental Governance’ (2003) 9(2) European Journal of International Relations, pp. 249276.

3 In environmental regimes, the use of science and scientific expertise playing a role as problem identifiers and problem solvers is well documented: see, generally, Kuhn, T.S., The Structure of Scientific Revolution (University of Chicago Press, 1970); Andresen, S. et al. (eds), Science and Politics in International Environmental Regimes: Between Integrity and Involvement (Manchester University Press, 2000); Gupta, A. et al., ‘Science Networks’, in F. Biermann & P. Pattberg (eds), Global Environmental Governance Reconsidered (The MIT Press, 2012), pp. 6995; Shaffer, G., ‘Risk, Science and Law in the WTO: The Centrality of Institutional Choice’, in Proceedings of the 104th Annual Meeting of the American Society of International Law, 24–27 Mar. 2010, p. 19; Feldman, R., The Role of Science in Law (Oxford University Press, 2009); Green, A. & Epps, T., ‘The WTO, Science and the Environment: Moving Towards Consistency’ (2007) 10(2) Journal of International Economic Law, pp. 285316, at 302–7.

4 See, e.g., Weiss, C.H., ‘The Many Meanings of Research Utilization’ (1979) 39(5) Public Administration Review, pp. 426431; Lindquist, E.A., ‘What Do Decision Models Tell Us About Information Use?’ (1988) 1(2) Knowledge, Technology and Policy, pp. 86111.

5 Peiris, G.L., ‘Public Interest Litigation in the Indian Subcontinent: Current Dimensions’ (1991) 40(1) International and Comparative Law Quarterly, pp. 6690. See also Anderson, M.R., ‘Individual Rights to Environmental Protection in India’, in A.E. Boyle & M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Oxford University Press, 1998), pp. 123.

6 See the NGT website at: http://greentribunal.gov.in.

7 V.G. Bhungase v. Gangakhed Sugar and Energy Ltd, NGT Judgment, 20 Dec. 2013.

8 Drescher, M. et al., ‘Towards Rigorous Use of Expert Knowledge in Ecological Research’ (2013) 4(7) Ecosphere, pp. 126, at 2.

9 Paterson, A., The Law Lords (Palgrave Macmillan, 1982); Paterson, A., Final Judgment: The Last Law Lords and the Supreme Court (Hart, 2013); Annison, H., ‘Interpreting the Politics of the Judiciary: The British Senior Judicial Tradition and the Pre-emptive Turn in Criminal Law’ (2014) 41(3) Journal of Law and Society, pp. 339366.

10 Gill, G.N., ‘Human Rights and the Environment in India: Access through Public Interest Litigation’ (2012) 14(3) Environmental Law Review, pp. 199217, at 200.

11 See, generally, Limoges, C., ‘Expert Knowledge and Decision-Making in Controversy Contexts’ (1993) 2(4) Public Understanding in Science, pp. 417426; Oreskes, N. & Conway, E., Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (Bloomsbury, 2010); Spruijt, P. et al., ‘Roles of Scientists as Policy Advisers on Complex Issues: A Literature Review’ (2014) 40 Environmental Science and Policy, pp. 1625.

12 See, generally, Council for Tobacco Research (US), funded by Philip Morris; Lesser, L.I. et al., ‘Relationship between Funding Source and Conclusion among Nutrition-Related Scientific Articles’ (2007) 4 Public Library of Science Medicine, pp. 4146; Maclean, M., ‘The Impact of Socio Legal Studies on Family Justice: From Oxford to Whitehall’ (2015) Journal of Law and Society (forthcoming); McGarity, T.O., ‘Our Science is Sound Science and Their Science is Junk Science: Science Based Strategies for Avoiding Accountability and Responsibility for Risk-Producing Products and Activities’ (2004) 52 Kansas Law Review, pp. 897937; Collins, H. & Evans, R., Rethinking Expertise (The University of Chicago Press, 2007); Jasanoff, S., ‘Quality Control and Peer Review in Advisory Science’, in J. Lentsch & P. Weingart (eds), The Politics of Scientific Advice Institutional Design for Quality Assurance (Cambridge University Press, 2011), pp. 1935.

13 See, e.g., Collins, H., Are We All Scientific Experts Now? (Polity, 2014), pp. 4, 40.

14 Ibid., pp. 41–3.

15 As early as 1945 this was pointed out by Merton, R.K., ‘Role of the Intellectual in Public Bureaucracy’ (1945) 23(4) Social Forces, pp. 405415; see also Spruijt et al., n. 11 above, pp. 16–25.

16 Twining, W., ‘Preparing Lawyers for the Twenty First Century’ (1992) 3(1) Legal Education Review, pp. 116, at 14 (‘In my experience most lawyers are innumerate and most law students are terrified of figures’); Faigmann, D.L., Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman and Co., 1999); Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 Apr. 2010, ICJ Reports (2010), in particular the dissenting and separate opinions of Judges Al-Khasawneh, Simma, Cançado Trindade, Yusuf, and Vinuesa regarding the role of experts. To quote from the joint dissenting opinion of Judges Al-Khasawneh and Simma (ibid., para. 3): ‘The Court has had before it a case on international environmental law of an exemplary nature, a ‘textbook example’, so to speak, of alleged trans-frontier pollution; yet, the Court has approached it in a way that will increase doubts in the international legal community whether it, as an institution, is well placed to tackle complex scientific questions’.

17 See, e.g., Bocking, S., ‘Scientific Expertise and Environmental Politics: Cross-Border Contrasts’, Conference Paper presented at the Canadian Political Science Association, York University, Toronto (Canada), 2006.

18 Huber, P.W., Galileo’s Revenge: Junk Science in the Court Room (Basic Books, 1991).

19 [2011] 2 AC 229.

20 Ibid., pp. 261, 290.

21 Jasanoff, S., Science at the Bar (Harvard University Press, 1995); Jasanoff, S., ‘Just Evidence: The Limits of Science in the Legal Process’ (2006) 34(2) Journal of Law, Medicine & Ethics, pp. 328341; Cooper, S.L., ‘The Collision of Law and Science: American Court Responses to Developments in Forensic Science’ (2013) 33(1) Pace Law Review, pp. 234301.

22 Haas, P.M., ‘Ideas, Experts and Governance’, in Ambrus et al., n. 1 above, pp. 1943, at 30.

23 Haas, P.M., ‘Epistemic Communities’, in D. Bodansky, J. Brunée & E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2007), pp. 791806, at 793.

24 Haas, n. 22 above, p. 30, n. 22.

25 Schrefler, L., ‘The Usage of Scientific Knowledge by Independent Regulatory Agencies’ (2010) 23(2) Governance: An International Journal of Policy, Administration, and Institutions, pp. 309330; Schrefler, L., ‘Reflections on the Different Roles of Expertise in Regulatory Policy Making’, in Ambrus et al., n. 1 above, pp. 6381.

26 Ibid., ‘Reflections on the Different Roles’, p. 65.

27 Lawrence, n. 1 above, p. 193.

28 Schrefler, ‘Reflections on the Different Roles’, n. 25 above, p. 69.

29 Weiss, n. 4 above, p. 429.

30 Schrefler, , ‘Reflections on the Different Roles’, n. 25 above, p. 70.

31 Schrefler, , ‘The Usage of Scientific Knowledge, n. 25 above, p. 315.

32 Schrefler, , ‘Reflections on the Different Roles’, n. 25 above, p. 71.

33 Ibid., p. 76.

34 Ibid.

35 The National Green Tribunal Act 2010, the Gazette of India Extraordinary (No. 19 of 2010).

36 NGT website, n. 6 above.

37 ‘Report on the National Juridicare: Equal Justice – Social Justice’, Indian Ministry of Law, Justice and Company Affairs (1977).

38 Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, AIR 1981 SC 298; Fertilizer Corporation Kamagar Union v. Union of India, AIR 1981 SC 344; Jasbhai Motibhai Desai v. Roshan Kumar (1976) 1 SCC 671; Bar Council of Maharashtra v. M.V. Dasholkar (1976) 1 SCR 306.

39 Art. 21 of the Constitution of India states: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

40 Sathe, S.P., Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University Press, 2002), p. 210; Faure, M.G. & Raja, A.V., ‘Effectiveness of Environmental Public Interest Litigation in India: Determining the Key Variable’ (2010) 21(2) Fordham Environmental Law Review, pp. 239294.

41 Rajamani, L., ‘Public Interest Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability’ (2007) 19(3) Journal of Environmental Law, pp. 293321, at 295–6; Gill, n. 10 above.

42 Sahu, G., ‘Implications of Indian Supreme Courts Innovation for Environmental Jurisprudence’ (2008) 4(1) Law, Environment and Development Journal, pp. 319, at 12–3; Vellore Citizen Welfare Forum v. Union of India, AIR 1996 SC 2715; A.P. Pollution Control Board v. Professor M.V. Nayudu, AIR 1999 SC 812; Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.

43 Baxi, U., ‘How Not to Judge the Judges: Notes towards Evaluation of the Judicial Role’ (1983) 25 Journal of the Indian Law Institute, pp. 211237, at 211; Srikrishna, B.N., ‘Judicial Activism: Judges as Social Engineers, Skinning a Cat’ (2005) 8 SCC (J), pp. 117, at 3; Sahu, G., ‘Implementation of Environmental Judgments in Context: A Comparative Analysis of Dahanu Thermal Power Plant Pollution Case in Maharashtra and Vellore Leather Industrial Pollution Case in Tamil Nadu’ (2010) 6(3) Law, Environment and Development Journal, pp. 337352, at 345.

44 Gill, n. 10 above, p. 202.

45 A.P. Pollution Control Board v. M.V. Nayudu 1999(2) SCC 718 and 2001(2) SCC 62.

46 Barton, C., ‘The Status of the Precautionary Principle in Australia’ (1998) 22 Harvard Environmental Law Review, pp. 509558, at 510–1; Gill, G.N., ‘A Green Tribunal for India’ (2010) 22(3) Journal of Environmental Law, pp. 461474, at 462–3.

47 AIR 1987 SC 965.

48 1996(3) SCC 212.

49 N. 45 above.

50 The Law Commission of India, 186th Report (2003), pp. 8–9.

51 The Bill was introduced in Parliament on 31 July 2009; passed in Lok Sabha (the lower house) on 30 Apr. 2010 and in Rajya Sabha (the upper house) on 5 May 2010.

52 Statement made by Jairam Ramesh, former Minister of Environment and Forests, in the Indian Parliament, Apr. 2010, available at: http://www.igovernment.in/news/31968/india-sets-up-national-green-tribunal.

53 N. 35 above.

54 Ministry of Environment and Forests (MoEF), Government of India, Notification, 5 May 2011, SO 1003 E.

55 MoEF, Government of India, Notification, 17 Aug. 2011, SO 1908 E.

56 M.P. Pollution Control Board v. Commissioner, Municipal Corporation Bhopal, NGT Judgment, 8 Aug. 2013.

57 Sunil Kumar Samanta v. West Bengal Pollution Control Board, NGT Judgment, 24 July 2014.

58 Wilfred J. v. Ministry of Environment and Forests, NGT Judgment, 17 July 2014.

59 The NGT in M.P. Pollution Control Board (n. 56 above) observed: ‘Once the legislature restricts the jurisdiction of the tribunal only to civil cases, then that jurisdiction is incapable of being expanded to the cases which are patently and substantially criminal in nature’.

60 The NGT Act 2010, s. 2(m), classifies ‘substantial question relating to the environment’ under two heads: (i) where there is a direct violation of a statutory duty or environmental obligation which is likely to affect the community, or the gravity of damage to the environment or property is substantial, or the damage to public health is broadly measurable; (ii) where the environmental consequences relate to a specific activity or a point source of pollution.

61 The enactments in Sch. I include the following: Water (Prevention and Control of Pollution) Act 1974; Water (Prevention and Control of Pollution) Cess Act 1977; Forests (Conservation) Act 1980; Air (Prevention and Control of Pollution) Act 1981; Environment (Protection) Act 1986; Public Liability Insurance Act 1981; and Biological Diversity Act 2002.

62 Ibid.

63 Wilfred J. v. Ministry of Environment and Forests, n. 58 above.

64 Goa Foundation v. Union of India, NGT Judgment, 18 July 2013; Betty C. Alvares v. State of Goa, NGT Judgment, 14 Feb. 2014.

65 NGT Act 2010, s. 20.

66 NGT Judgment, 13 Mar. 2014.

67 Ibid., paras 72 and 74.

68 Haas, nn. 22 and 23 above.

69 Schrefler, n. 25 above.

70 NGT website, n. 6 above.

71 Interview, 16 July 2014.

72 Interviews, 4 Aug. 2014 and 8 Mar. 2015.

73 Interviews, 25 and 30 July 2014.

74 Interview, 17 July 2014.

75 Interview, 31 July 2014.

76 Interviews, 30 July and 1 Aug. 2014.

77 Interview, 1 Aug. 2014.

78 NGT website, n. 6 above.

79 The NGT Act 2010, s. 4(1), provides that the NGT is to consist of a full-time chairperson and no fewer than 10 (but subject to a maximum of 20) full-time judicial and expert members; s. 5(2) spells out that the judicial members must have the requisite legal expertise and experience and the expert members will include technical experts from life sciences, physical science, engineering or technology.

80 The National Green Tribunal (Manner of Appointment of Judicial and Expert Members, Salaries, Allowances and other Terms and Conditions of Service of Chairperson and other Members and Procedure for Enquiry) Rules 2010 and 2012, available at: http://www.greentribunal.gov.in/ngt_rules.aspx.

81 N. 58 above.

82 Ibid., para 34.

83 Interview, n. 71 above.

84 Chatterjee, A., ‘Stormy Sinecures’, The Telegraph (Calcutta), 24 Sept. 2014, available at: http://www.telegraphindia.com/1140924/jsp/opinion/story_18866574.jsp#.VIx04nuHjtU.

85 NGT Judgment, 17 July 2014.

86 Ibid., para. 33.

87 Interview, 14 Mar. 2015.

88 Interview, 15 Mar. 2015; see nn. 76 and 77 above.

89 Schrefler, ‘The Usage of Scientific Knowledge’, n. 25 above, p. 316.

90 See text accompanying n. 115 below.

91 Namit Sharma v. Union of India (2013) 1 SCC 745; C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457.

92 NGT Act 2010, s. 22. The appeal under s. 22 may be filed only on the grounds provided in s. 100, Civil Procedure Code, 1908, which include a substantial question of law (i.e., a debatable question, not previously settled by the law of land, or which has a binding precedent and does not involve a pure question of fact): see Amol v. State of Maharashtra, NGT Judgment, 17 Feb. 2015.

93 This is not to say that this independence is total and absolute: see Section 7 on suo motu powers and the conclusion.

94 Edwards, H.T., ‘The Effects of Collegiality on Judicial Decision Making’ (2003) 151 University of Pennsylvania Law Review, pp. 16391690.

95 Ibid., p. 1656. However, for a criticism of ‘collegiality’ see Paterson, n. 9 above, pp. 142–3.

96 Edwards, n. 94 above, p. 1668.

97 Interview, n. 71 above. For a detailed discussion on ‘collegiality and the NGT’ see G.N. Gill, ‘National Green Tribunal: Judge Craft, Decision Making and Collegiality’ (2014) 2 National Green Tribunal International Journal of Environment, pp. 43–53.

98 Interviews, 14, 15 and 16 July 2014. Bench 5 NGT also follows the same process.

99 Bench 2 NGT, interview, 25 July 2014.

100 Bench 3 NGT, interview, 22 July 2014.

101 Bench 4 NGT, interview, 30 July 2014.

102 To date there has been only one instance of a two-judge bench failing to agree. The matter is referredand pending before the Chairperson, in accordance with the NGT Act 2010, s. 21.

103 Schrefler, n. 25 above.

104 N. 58 above.

105 Schneider, K., ‘India’s National Green Tribunal Challenges Government and Industry to Follow the Law’, Circle of Blue, 17 Nov. 2014, available at: http://www.circleofblue.org/waternews/2014/commentary/editorial-in-the-circle-fresh-focus/indias-national-green-tribunal-challenges-government-industry.

106 NGT Judgment, 5 Aug. 2014.

107 Ibid., paras 23, 25.

108 Interview, 25 July 2014.

109 NGT Judgment, 6 Sept. 2014.

110 Ibid., paras 8, 17.

111 Civil Appeal No. 8781-83/2013, 4 Aug. 2014.

112 K.K. Singh v. National Ganga River Basin Authority, NGT Judgment, 16 Oct. 2014.

113 Interview, 14 July 2014. I was given a copy, by Expert Member 6, of the ‘Model Action Plan: Municipal Solid Waste Management in Punjab’ (Jan. 2014, available at: http://pmidc.punjab.gov.in/export/sites/default/.content/flexiblecontents/Punjab-Model-Municipal-Solid-Waste-Management-Plan-2014.pdf), which details the technical aspects of MSW.

114 NGT Judgment, 25 Nov. 2014.

115 Interview, 14 Apr. 2015.

116 Manoj Mishra v. Union of India, NGT Judgment, 13 Jan. 2015 (now referred to as the Maily se Nirmal Yamuna Revitalization Plan 2017).

117 Vardhaman Kaushik v. Union of India and Sanjay Kulshrestha v. Union of India, NGT Order, 7 Apr. 2015

118 Interview, 12 Apr. 2015.

119 NGT Judgment, 1 Oct. 2014.

120 Expert 5 further stated that the preparation of the landscape plan must take account of the conservation and maintenance of biological diversity, sustainable utilization of natural resources and stabilization of the terrain; improvement and regulation of the hydrological regime; people’s involvement in the planning and management of natural resources, and fulfilling the socio-economic and livelihood needs of the people.

121 NGT Judgment, 20 Jan. 2012.

122 Ibid., para. 9.

123 Tribunal on its own Motion v. State of Himachal Pradesh, NGT Judgment, 6 Feb. 2014.

124 Tribunal on its own Motion v. Secretary, Ministry of Environment and Forests, NGT Judgment, 4 Apr. 2014.

125 Tribunal on its own Motion v. Government of NCT, Delhi, NGT Order, 19 June 2015.

126 R. Sivaraman, ‘Prevent Dumping of Waste in Adyar River: Tribunal’, The Hindu, 21 Nov. 2013, available at: http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/prevent-dumping-of-waste-in-adyar-river-tribunal/article5373982.ece.

127 ‘NGT Takes Note of Report in The Hindu’, The Hindu, 24 Oct. 2013, available at: http://www.thehindu.com/news/national/tamil-nadu/ngt-takes-note-of-report-in-the-hindu/article5265680.ece.

128 Interview, n. 71 above: Judges 4 and 5 agreed with Judge 1 in their interviews of 6 and 8 Apr. 2015; see also Kumar, S., ‘The NGT Must Have Suo Motu Powers’, Down to Earth, 30 Nov. 2014, available at: http://www.downtoearth.org.in/interviews/ngt-must-have-suo-motu-powers-47542.

129 Vishnoi, A., ‘No Suo Motu Powers Provided for You, MoEF Tells Green Tribunal’, The Indian Express Archive, 26 Aug. 2013, available at: http://archive.indianexpress.com/news/no-suo-motu-powers-provided-for-you-moef-tells-green-tribunal/1160046.

130 Sreeranganathan K.P. and Aranmula v. Union of India, NGT Judgment, 28 May 2014; Prafulla Samantray v. Union of India, NGT Judgment, 30 Mar. 2012; Rohit Choudhary v. Union of India, NGT Judgment, 7 Sept. 2012; Samata v. Union of India, NGT Judgment, 13 Dec. 2013.

131 ‘NGT Issues Warrant against MoEF Secretary’, Hindustan Times, 27 Mar. 2015, available at: http://www.hindustantimes.com/india-news/ngt-issues-warrant-agianst-moef-secretary/article1-1331135.aspx; ‘NGT Summons Environment Sec’y over MoEF’s Absence from Hearings’, The Economic Times, 1 Dec. 2013, available at: http://articles.economictimes.indiatimes.com/2013-12-01/news/44619558_1_joint-secretary-the-ngt-moef.

132 NGT Judgment, 24 Mar. 2014.

133 Subramani, A., ‘Green Tribunal’s Wings Clipped, Madras High Court Halts Suo Motu Proceedings’, The Times of India, 3 Jan. 2014, available at: http://timesofindia.indiatimes.com/city/chennai/Green-tribunals-wings-clipped-Madras-high-court-halts-suo-motu-proceedings/articleshow/28346066.cms.

134 NGT Act 2010, s. 20.

135 Woolley, S., Ecological Governance Reappraising Law’s Role in Protecting Ecosystem Functionality (Cambridge University Press, 2014), p. 25; see also Owens, S., ‘Negotiated Environments: Needs, Demands and Values in the Age of Sustainability’ (1997) 29 Environment and Planning A, pp. 571580.

136 Garver, G., ‘Introducing the Rule of Ecological Law’, in L. Westra, C.L. Soskolne & D.W. Spady (eds), Human Health and Ecological Integrity: Ethics, Law and Human Rights (Routledge, 2012), pp. 322334; see also Bosselmann, K., ‘From Reductionist Environmental Law to Sustainability Law’, in P. Burdon (ed.), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press, 2011), pp. 204213.

137 Interviews, 15 and 22 July and 4 Aug. 2014.

138 See, generally, MoEF India, ‘Assessment of Cumulative Impact of Hydropower Projects in Alaknanda and Bhagirathi Basins’, AHEC/2011, June 2011, Ch. 7, available at: http://www.moef.nic.in/downloads/public-information/CH-7.pdf; see also Woolley, n. 135 above, pp. 184–5. Alternatives to cumulative effect assessment include but are not limited to value ecosystem components and strategic environmental analysis.

139 EIA Notification, S.O. 1533(E), 14 Sept. 2006, available at: http://envfor.nic.in/legis/eia/eia-2006.htm; see also ‘Cumulative Impact Assessment Study of Siang Basin in Arunachal Pradesh: Serious Shortcomings; Pro Large Hydro Bias’, South Asia Network on Dams, Rivers and People, 18 Feb. 2014, available at: https://sandrp.wordpress.com/2014/02/18/cumulative-impact-assessment-study-of-siang-basin-in-arunachal-needs-urgent-improvement.

140 T. Muruganandam v. Ministry of Environment & Forests, NGT Judgment, 11 Nov. 2014; Samata v. Union of India, NGT Judgment, 13 Dec. 2013.

141 Interview, 15 July 2014.

142 N. 140 above.

143 See, generally, Gruszczynski, L., ‘The Role of Experts in Environmental and Health-Related Trade Disputes in the WTO: Deconstructing Decision-Making Processes’, in Ambrus et al., n. 1 above, pp. 216237, at 228.

144 Interview, n. 75 above.

145 Interviews, 29 Mar., 6 and 8 Apr. 2015.

146 NGT Judgment, 19 May 2015. See also Sreeranganathan K.P. v. Union of India, n. 130 above; Goa Paryavaran Savrakshan Sangharsh Samitee v. Sesa Goa, NGT Order, 20 Oct. 2014; Subhas Datta v. State of West Bengal, NGT Order, 28 July 2015.

147 Voss, J. & Kemp, R., ‘Sustainability and Reflexive Governance: Introduction’, in J. Voss, D. Bauknecht & R. Kemp (eds), Reflexive Governance for Sustainable Development (Edward Elgar, 2006), pp. 328, at 4. Reflexive governance implies that ‘one calls into question the foundation of governance itself, that is, the concepts, practices and institutions by which societal development is governed, and that one envisions alternatives and reinvents and shapes those foundations’.

148 See nn. 130–2 above.

149 The Chief Minister of Meghalaya, Mukul Sangma, urged Prime Minister Modi to allow the state government to regulate the largely unregulated mining activities in view of the peculiar ground conditions in the Hill state. This intervention was the result of a wave of protests against the NGT’s ban on unscientific rat-hole mining in Meghalaya. Coal mining is a major source of livelihood for people of the state and of revenue for the government. However, the NGT decided that the unscientific, unlicensed and illegal coal mining affected water sources and the landscape, and overall it degraded the ecology: Impulse NGO Network v. State of Meghalaya, Order, 9 June 2014.

150 N. 133 above.

151 Krishan Kant Singh v. M/s Hindustan Cocacola Beverages Ltd, NGT Order, 20 Jan. 2015; Deshpande J. and N. Samiti v. State of Maharashta, NGT Judgment, 22 Apr. 2014; Tamankar S.N. v. Union of India, NGT Judgment, 6 May 2014.

152 ‘Supreme Court Upholds NGT Order Imposing Ban on 15-Year Old Vehicles in Delhi’, The Financial Express, 20 Apr. 2015, available at: http://www.financialexpress.com/article/economy/supreme-court-upholds-ngt-order-imposing-ban-on-10-year-old-vehicles-in-delhi/65202.

153 ‘Vehicles Plying in Rohtang Pass: SC Refuses to Stay NGT Order’, The Economic Times, 26 May 2015, available at: http://articles.economictimes.indiatimes.com/2015-05-26/news/62671601_1_taxi-operators-ngt-rohtang-pass.

154 Rajagopal, K., ‘Supreme Court Clips Aranmula Airport’s Wings’, The Hindu, 22 Nov. 2014, available at: http://www.thehindu.com/news/national/kerala/supreme-court-clips-aranmula-airports-wings/article6622930.ece.

155 Shrivastava, K.S., ‘Green Tribunal Gets Short Shrift’, Down to Earth, 30 June 2012, available at: http://www.downtoearth.org.in/news/green-tribunal-gets-short-shrift-38426.

156 Supreme Court Order, 12 Sept. 2013.

157 ‘Green Tribunal Exceeding Its Brief: Govt to SC’, The Times of India, 13 Sept. 2013, available at: http://timesofindia.indiatimes.com/india/Green-tribunal-exceeding-its-brief-Govt-to-SC/articleshow/22527436.cms.

158 ‘Report, High Level Committee to Review Various Acts Administered by Ministry of Environment, Forest and Climate Change’, Nov. 2014, available at: http://envfor.nic.in/sites/default/files/press-releases/Final_Report_of_HLC.pdf.

159 Rajshekhar, M., ‘Will the TSR Panel Help India Manage Environment Better?’, The Economic Times, 8 Dec. 2014, available at: http://blogs.economictimes.indiatimes.com/Anomalocaris/will-the-tsr-panel-help-india-manage-environment-better.

160 Interview, 12 Apr. 2015.

161 Paterson, n. 9 above.

I recognize and thank the British Academy/Leverhulme Small Research Grants for supporting this research. Thanks to Robert Lee, Birmingham Law School (UK), for his helpful comments.

I wish to acknowledge my gratitude to the Chairperson and the bench members of the NGT whom I interviewed and who made me feel welcome, were generous with their time, and open with their recorded comments: Chairperson, the Hon. Mr Justice Swatanter Kumar, who authorized these interviews; Honourable Judicial Members: Mr M. Chockalingam, Mr V.R. Kinganonkar, Mr P. Jyothimani, Mr Dalip Singh, and Mr U.D. Salvi; Honourable Expert Members: Professor R. Nagendran, Dr Devendra K. Agarwal, Gopal K. Pandey, Professor (Dr) P.C. Mishra, Mr P.S. Rao, Mr Ramesh C. Trivedi, Dr Ajay A. Deshpande, and Mr Ranjan Chatterjee.

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Transnational Environmental Law
  • ISSN: 2047-1025
  • EISSN: 2047-1033
  • URL: /core/journals/transnational-environmental-law
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