It has been a decade since the NGT Act was enacted by the parliament. As discussed in Chapter 1, however, this enactment was primarily a result of judicial assertion rather than legislative will. The Supreme Court, throughout the 1980s up till the early 2000s, tackled environmental degradation and pollution through the process of public interest litigation. This process allowed the Court to provide wider remedies by way of procedural innovations such as the expansion of locus standi through the introduction of epistolary jurisdiction, introduction of a non-adversarial procedure, and ensuring monitoring and implementation of orders through continuing mandamus. While most of the present environmental jurisprudence came from this, the Court found it increasingly difficult to adjudicate complex scientific and technical issues involved in environmental cases. In addition, the Court found itself increasingly indulging in fact-finding and evidence collection since writ petitions under the expanded locus standi were accepted without the requirement of much proof. Frequently, the Court would overstep its constitutional boundaries and enter into regulatory, administrative, and policymaking domains to meet the ends of justice.

Accordingly, as discussed previously, the Supreme Court, through four major decisions, called for the creation of the NGT by voicing the urgent need for a “green tribunal”. Further, the 186th Report of the Law Commission of India recommended the establishment of “environmental courts” in every state, which would be composed of judges as well as experts and would have both original and appellate jurisdiction.

However, the lack of legislative will in this regard was evident from the failures of the NGT's predecessors – the NET and the NEAA. These tribunals were made toothless due to a lack of appointments and funding. The NET remained on paper as the NET Act, 1995, was never notified, and the NEAA remained without a chairperson for almost a decade. In fact, at one point in time, the NEAA had only one member who was also its chairperson. Nevertheless, due to the concern voiced by the Supreme Court and the Law Commission, coupled with the need to give effect to India's obligations under the Stockholm and Rio Declarations, the Indian legislature enacted the NGT Act.

1.1 INTRODUCTION TO ENVIRONMENTAL PROBLEMS AND HISTORICAL CONTEXT

If metaphors are an essential part of legal imagination, Bruno Latour's metaphor of the “fabric of law” aptly captures law's incessant endeavour to cover “everything completely and seamlessly”. Well-established doctrines, principles, and procedures provide a predetermined framework that seeks to regulate social interactions. To keep the legal fabric warm and ironed, law exudes a homeostatic quality that is manufactured by the obligation to keep the fragile tissue of rules and texts intact. As a result, a premium is put on legal stability and coherence. This premium is expressed in many ways: the significance accorded to the rule of law and legal certainty, the run of precedent in common law, the emphasis on legal formalism and reasoning, and circumscribing of the role of courts.

However, environmental law is the law relating to environmental problems. The nature of environmental problems, thus, has a significant influence throughout the creation and operation of environmental law. It moulds the latter's structure and asks questions that tend to stretch the legal imagination of courts and lawyers. Being polycentric, normatively complex, interdisciplinary, socio-politically charged, and scientifically uncertain, environmental problems produce legal heat that tends to expand the contours of the legal fabric. Hence, understanding the nature of environmental problems is crucial to understanding and evaluating the role courts have played in adjudicating such problems.

Environmental problems come in many shapes and sizes, and each is embedded in its own political and cultural context. Despite this diversity, however, environmental problems seem to have a common structure. This structure is highlighted in a short story that Elizabeth Fisher narrates in relation to car parking in East Oxford. When she moved to East Oxford in the early 1990s, there was plenty of parking space on the streets. However, by the early 2000s, due to a rapid increase in the number of cars parking, there was a lack of free parking spaces. Due to this, ambulances, fire engines, and pedestrians found it increasingly difficult to access the roads in East Oxford. Moreover, taxis refused to drop residents at their homes, often complaining that it would be too difficult to manoeuvre around the badly parked cars. The local authority finally took notice and proposed a permit system whereby two permits would be issued per house. This, however, resulted in a mixed public reaction.

The ‘India Story’ – in all the multitude of senses and contradictions that it is perceived – is largely a story of collective amnesia coupled with the thirst to regain a lost glory. To put this into perspective, India's share of global gross domestic product (GDP) went from around 24.2 per cent in the early 1700s to about 2.3 per cent around the time of its independence – a reduction of over 90 per cent after more than two centuries of colonialism. At the same time, India's population more than doubled. Thus, in addition to the extreme economic depredation, poverty, and burden there was a deep-seated sense of injustice and the need to regain the lost economic and political glory India enjoyed a few centuries ago.

This India Story has fashioned, and continues to fashion, most political and socio-economic narratives, discourses, and policies in India.

However, this India Story is intricately linked to, and dependent on, the story of India's natural environment. The development of Indian environmental jurisprudence, since India's independence, has been an effort to make sense of this dependence. This effort by no means has been easy. It has been fraught with challenges of a different order. Significant competing interests of uplifting millions out of extreme poverty, while heavily relying on an already plundered environmental inheritance, has made the legal and regulatory landscape tremendously challenging.

Accordingly, the evolution of Indian environmental jurisprudence, essentially, is an evolution of the legal response of the Indian judiciary while navigating these complex and competing rights and interests, within the larger context of the India Story. The Indian judiciary, led by the Supreme Court of India, has time and again espoused novel environmental principles and has modified the application of legal precedents in response to various competing considerations. This has included the creation of dedicated environmental law courts in the country.

The aim of this work is to explore the impact of legal trends and inconsistencies, and highlight different dominant considerations at play within the evolution of Indian environmental jurisprudence. In doing so, it seeks to contextualize and situate the recent adjudicatory trends, particularly of the National Green Tribunal (NGT), within the larger adjudicatory framework carved out over the decades by the Supreme Court of India.

The powers and functioning of the NGT are governed by the NGT Act, 2010. Accordingly, this chapter deals with the broad themes covered in the various sections of the NGT Act and highlights how the NGT has interpreted and expanded on various provisions contained therein.

2.1 PURPOSE AND OBJECTS OF THE NGT

As discussed in Chapter 1, the predecessors of the NGT – the NET and the NEAA – were dysfunctional and ineffective due to a lack of legislative will. Furthermore, the call for the need for environmental courts by the Supreme Court was augmented by the recommendations of the Law Commission of India. This has been specifically recognized in the Statement of Objects and Reasons (SOR) contained in the preamble to the NGT Act 2010. The SOR further recognized the need for expeditious disposal of environmental cases in light of the increasing number of pending cases in the higher judiciary requiring technical expertise. Accordingly, the long title of the NGT Act, 2010, provides the following purpose behind the establishment of the Tribunal:

The SOR further states that the NGT Act, 2010, was enacted to uphold India's commitments under international conventions, such as the UN Conference on the Human Environment (1972) and the UN Conference on Environment and Development (1992), to take appropriate measures for enhancing environmental protection and access to judicial and administrative proceedings. This involves developing national laws regarding liability and compensation for victims of pollution and environmental damage.

Additionally, the SOR recognizes the judicial pronouncements declaring the right to a healthy environment as a part of the right to life under Article 21 of the Indian Constitution and emphasizes the need to adopt a multidisciplinary approach for upholding it.

Given this context, it is apparent from the preamble and the SOR that the NGT has been primarily envisaged as an adjudicatory vehicle, which can effectively and expeditiously give effect to the constitutional obligations contained under Article 21 of the Indian Constitution relating to the right to a healthy environment.

Article 51 of the Indian Constitution states that the state shall foster respect for international law and treaty obligations. To give effect to this provision, Article 253 of the Constitution empowers the parliament to make any law for implementing obligations under international treaties, conferences, or agreements. In particular, the preamble to the NGT Act states that the creation of the NGT symbolizes the fulfilment of India's obligations under the United Nations Conferences on the Human Environment (Stockholm, 1972) and Environment and Development (Rio de Janeiro, 1992). These conferences call upon member states to, inter alia, provide effective access to judicial and administrative proceedings and to develop national laws regarding liability and compensation for victims of environmental pollution and damage.

While there are several internationally recognized norms and principles, three main principles form the bedrock of environmental jurisprudence in the Indian context. These three principles are sustainable development, the precautionary principle, and the polluter pays principle. While these have been extensively used by the Supreme Court in several important environmental cases, the NGT Act is the first legislation that codifies these principles. Section 20 of the NGT Act states:

Overall, the NGT Act accords significant discretion to the Tribunal in relation to how it should adjudicate and award compensation. Given this context, Section 20 assumes greater significance as it is the only guiding provision contained in the NGT Act, which provides directions with respect to how the Tribunal should pass an order or award. The use of the word “shall” indicates that it is a mandatory provision and that the NGT is obligated to base its decision on these three principles, if they are applicable.

Accordingly, these principles have formed an integral part of most decisions of the NGT and are intricately linked with its jurisprudence. As we will discuss, most landmark cases of the NGT have relied on these principles to provide environmental justice. Through this chapter, we explore the significance of these three principles. In doing so, we highlight their origin and evolution in the international context, their interpretation and application by the Supreme Court of India, and their use by the NGT.