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India's National Green Tribunal: An Environmental Justice Experiment

June 11, 2014

Protesting Coal in India. CREDIT: 350.org

Meghalaya state in northeastern Indian is a land of bucolic beauty, but its Jaintia Hills have become dotted with ratholes—a primitive mining method where pits ranging from 5–100 square meters are dug into the ground to reach a coal seam. Tunnels about one meter high are carved into the side of the seam to extract the coal.

Hundreds of children, some as young as six or seven, slide into these holes with rudimentary pickaxes and torches to chip away at the black rock. The tunnels are so small and narrow that only someone the size of a child can squeeze inside. They spend hours crouched inside the dark damp pits, struggling to breathe in the sulfur-rich air.

Impulse, a local NGO that fights child labor in Meghalaya, estimates that close to 100,000 children work in the mines, most of them trafficked from neighboring countries. Impulse has been campaigning against this issue since 2006. They have documented the widespread violation of child rights in these mines and reached out to various human rights and child protection groups at the state, national, and international levels.

In 2009, on the behest of Impulse, India's National Commission for Protection of Child Rights (NCPCR) launched an investigation and made recommendations to the state government to address the problem. Yet as is often the case with such reports in India, the recommendations fell on deaf ears and the practice of rathole mining continued.

Until now that is. Earlier this year, Impulse filed a petition with the National Green Tribunal citing the fact that rathole mining was in violation of various environment and pollution control laws. The petition also highlighted that the local rivers had turned acidic and unfit for human consumption due to the mining activities.

Subsequently two other local organizations, the All Dimasa Students' Union and the Dima Hasao district committee, filed similar complaints with the tribunal. In April 2014, the tribunal issued a landmark judgment ordering a halt to the mining activities in Meghalaya

Reacting to the tribunal's judgment, Hasina Kharbhih, the founder of Impulse said, "This is the first time in our eight-year-long campaign against rathole mining in Meghalaya that we have seen tangible results."

Although the decision sparked protests by coal mining groups, Hasina praised the tribunal's leadership, saying that, "The bench showed very strong leadership on this and has sent a clear signal to the state government and the handful of powerful individuals who run the coal business."

This is not the first time that the National Green Tribunal has ruffled feathers. In the few years that the tribunal has been functional, it has issued several decisions that have reversed the status quo. In a country where environmental decision-making processes can often be opaque, the NGT has infused much needed accountability into the system.

Created by an act of parliament in 2010, the National Green Tribunal was established as a dedicated fast-track court to deal with environmental disputes throughout the country. Its specific mission is "the effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources." Decisions made by the tribunal can only be challenged in the Supreme Court.

The principal bench is based in New Delhi, with circuit benches in other cities across the country so that it can reach remoter parts of India. India is only the third country following Australia and New Zealand to have such a system.

The National Green Tribunal has several features that make it unique. It has a wide jurisdiction to not only deal with violations of environmental laws, but also provide for compensation, relief, and restoration of the ecology in accordance with the polluter pays principle, as well as powers to enforce the precautionary principle.

The tribunal also has the capacity to do merit review as opposed to only judicial review. Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the "decision making process" and not the merits of the decision. As a merit court, the tribunal becomes the primary decision maker and therefore can undertake in-depth scrutiny into not just the law but also the technical basis of a particular decision.

Another interesting feature of the tribunal is its composition. The National Green Tribunal Act mandates the tribunal be composed of a balanced mix of judges and technical expert who have to adhere to strict eligibility requirements.

In India's quest for economic growth, environmental concerns often get steamrolled under the pretext of development. Affected communities have little voice in the process. Even though the law requires environmental impact assessments (EIA) and public hearings, these are usually cosmetic, and EIAs often include false or incomplete data. India's coal sector has been particularly notorious for its rubber-stamp approval processes with a record number of clearances being granted over the last five years. The National Green Tribunal has reversed some of them.

In 2012 the tribunal made its first ruling when it ordered a halt to construction of a coal plant in Kutch in the western Indian state of Gujarat. The project was challenged in the tribunal by local fishermen and villagers protesting against the adverse impact of the project on the local ecology. The tribunal sided with communities by pointing out that the EIA included cooked data. The NGT also directed a halt to the construction of the plant, which had commenced despite not having obtained the requisite clearances.

After the Kutch ruling, the National Green Tribunal struck again, revoking the environmental clearance for coal mines in the central Indian state of Chhattisgarh—a state considered the heartland of coal.

In 2011, the then Union Minister of Environment and Forests, Jairam Ramesh gave his approval to divert around 1,900 hectares of forest land for the purpose of coal mining in the Hasdeo Arand forest of Chhattisgarh. Hasdeo Arand is a pristine, unfragmented forest rich in biodiversity. The area also serves as a wildlife corridor for migratory elephants and had been set aside by the state government for an elephant reserve.

Ramesh allowed opening up of the coal blocks, while rejecting the recommendations of the Ministry's own Forest Advisory Committee (FAC), which had demarcated the area as "no-go" based on the extent of forest cover present in the area. While on earlier occasions Ramesh had concurred with the FAC's recommendations, he reversed his original decision by saying that he needed to consider the broader development picture, and that the coal blocks were restricted to the fringes of the forest.

The project clearance was eventually challenged before the National Green Tribunal by Sudiep Shrivastava, a local lawyer and activist.

Sudiep is no stranger to taking on powerful coal lobbies. Several years earlier, he had filed public interest litigation (PIL) against the National Thermal Power Corporation. It was building a plant near his hometown of Bilaspur on irrigated land based on an EIA that had falsely claimed that the land was uncultivated. The PIL languished in the state high court as the case was continually adjourned.

Sudiep considers himself to be a practical activist. He recognizes the importance of coal in the country's energy generation mix but questions the wisdom of the coal rush that India has been witnessing in recent years. He said,

The rush to open up coal is being guided by the false assumption that India needs it for its development, but in reality, there is enough coal available in the areas classified as "go" to meet current and projected energy needs of the country. One does not need to comprise pristine forests demarcated as "no-go." The choice that is created between development and the environment is a false choice.

Sudiep filed a petition challenging the order in December 2012 and within three months of the petition, the NGT had issued a stay on the felling of trees in the area. In March 2014, the tribunal issued an order that quashed the forest clearance given by the environment ministry to the controversial coal blocks in Hasdeo Arand.

The tribunal asked the environment ministry to seek a fresh opinion from the Forest Advisory Committee (FAC) on all pertinent factors. The tribunal held that the 2011 order overruling the opinion of the FAC was arbitrary. It said that the decision "had no basis either in any authoritative study or experience in the relevant fields." It also highlighted the FAC's failure to examine all aspects relating to flora and fauna of the area. Components like providing safe corridors for wildlife, especially near human settlements and coal mines, had been overlooked.

While India has experienced sustained economic growth over the last decade, several key environmental indicators have deteriorated over this period. Today, India ranks 155 among 178 countries across all measurable environmental indicators, and faces a growing scarcity of vital ecological resources such as forests and ground water.

The National Green Tribunal will never be able to solve all of India's environmental challenges, yet it has dramatically transformed jurisprudence on environmental issues and provided a means of redress for local communities. In the fight between David and Goliath, the tribunal is proving to be David's secret weapon.