Green Court, Paper Teeth:
The Expanding Powers of India’s National Green Tribunal
Environmental Justice or Judicial Overreach?
“The road to hell is paved with good intentions.”
— Proverb—applicable to tribunals since 2010
Prologue: The Tribunal That Could Do Everything
Consider a court that files its own cases, selects its own experts, imposes its own fines, oversees its own orders, and periodically pauses to remind the executive branch of how governance is meant to work. Assume this court has no jury, follows relaxed evidence rules, borrows procedural DNA from both civil courts and regulatory agencies, and operates under a mandate so magnificently vague—2018 environmental protection and conservation 2019—that almost no green grievance falls entirely outside its purview.
Just imagined the National Green Tribunal in India.
The National Green Tribunal Act of 2010 established the NGT, which was a required experiment. India’s environmental record was—and continues to be—alarming. Courts were clogged. The expertise was lacking. The executive was apprehended. Something needed to give. The NGT was unique: a dedicated, expert-backed, time-bound institution that claimed to achieve what conventional courts could not: quick, technically educated, environmentally sensitive justice.
What it provided instead was, depending on your perspective, either a heroic break with India’s heritage of environmental impunity or the most intricate institutional identity crisis since the colonial administration attempted to be both ruler and reformer. Possibly both. Simultaneously.
This post does not dispute that the NGT has done well. Polluters have been penalized. Rivers have received attention from an apex executive who would otherwise have ignored them. Forests have been temporarily preserved. This isn’t anything.
However, when noble intentions are implemented through flawed design, the result is drama rather than justice. And India has had enough of environmental theater. What follows is a study of five structural maladies afflicting the NGT—pathologies serious enough to raise the question of whether the institution, as currently formed and operating, can deliver the environmental justice it so confidently claims.
The Art of the Uninvited: Suo moto Powers and the Vanishing Threshold of Jurisdiction
The NGT takes cognizance of its own motion. The NGT also decides whether taking cognizance of its own motion was appropriate. The NGT is, in this sense, a judge, plaintiff, and jurisdiction checker—all at once.
The NGT’s suo moto jurisdiction is its most intriguing intellectual element—but also its most perilous institutional feature.
Section 14 of the NGT Act grants the Tribunal authority over “substantial questions relating to the environment.” Section 15 enables it to grant relief and compensation. The Act has no clear provision for the Tribunal to start proceedings on its own motion. This has not significantly slowed things down.
Taking its lead from the Supreme Court’s vast PIL jurisprudence, which is itself a contentious heritage, the NGT has gradually acquired suo moto authority that is unprecedented even for a constitutional court. It has begun actions based on newspaper stories, television broadcasts, and letters from private persons that do not even fit the most basic threshold of a legitimate petition. It has taken over authority over cases pending before the High Courts. It has invaded policy arenas such as automobile pollution standards, industrial zoning, and coastal management, where the distinction between adjudication and law is nearly invisible.
The constitutional issue here is significant. The National Government Tribunal is a statutory body. The NGT’s powers are fully derived from Parliament’s delegation, as opposed to the Supreme Court, which has suo moto powers under Article 32 of the Constitution. The idea of delegated authority is straightforward: you cannot arrogate powers to yourself that the parent act does not bestow. That the Tribunal has done so regularly, confidently, and with seeming contempt for this fundamental principle is either an act of institutional daring or institutional hubris. In reality, the distinction corresponds to whether the particular order produced a good environmental outcome.
There is a more subtle issue. Suo moto jurisdiction, when used without structural constraints, transforms an adjudicator into an investigator, an investigator into a regulator, and a regulator into a policy-maker—all within the same institutional body, across the same set of proceedings, with no separation of functions that the basic architecture of a legal system is intended to keep apart. The NGT conflates the roles of prosecutor, expert witness, and judge with ease, which should concern anyone versed in the fundamental principles of natural justice.
The Supreme Court took note of this. In Union of India v. Venkatesan Krishnamurthy (2022), and in a series of rulings dealing with the overlap between NGT proceedings and High Court jurisdiction, the Supreme Court was forced to remind the Tribunal of its statutory bounds on a regular basis. The warnings were pleasantly welcomed and, by most accounts, selectively followed.[1]
The Expert Tribunal That Is Not Always Expert: Scientific Competence and the Evidence Problem
The NGT promised that regular courts, filled by legally trained generalists, were ill-equipped to handle sophisticated environmental science issues. Whether a specific industrial discharge was ‘substantially’ harming an ecosystem, whether a specific air quality index warranted factory closure rather than just a fine, and whether a dam’s environmental impact assessment was methodologically sound—these were all questions that required expertise. The NGT would have that expertise by design.
The design was impressive. The execution has been, at best, erratic.
For technical inputs, the Tribunal primarily uses two systems: ad hoc expert committees constituted for specific situations and ‘expert members’ who sit alongside judicial members on the bench. Both mechanisms have faced valid criticism.
The ad hoc expert committees, which are often composed of state pollution control boards, central government agencies, and, on occasion, university institutions, are fundamentally compromised in ways that polite legal discourse rarely mentions directly. State pollution control boards are frequently the same organizations whose monitoring failures resulted in the environmental damage being assessed. Asking them to assess the damage, offer remedies, and then monitor compliance with the Tribunal’s subsequent orders does not constitute a split of functions. It’s a circle.
In some recorded cases, the Tribunal’s own expert members delivered findings that the Supreme Court described as improperly reasoned or lacking data support. In cases involving coastal ecology, forest cover assessment, and groundwater contamination, NGT orders have relied on field inspection reports with questionable methodological rigour—the environmental equivalent of visual diagnosis rather than laboratory testing.
Even more concerning is the Tribunal’s inconsistent use of evidence of the requirement. The NGT Act and its attendant procedural regulations allow the Tribunal to receive evidence that is not strictly admissible under the Indian Evidence Act. This flexibility is intended to make environmental adjudication more accessible. Its secondary effect has been to make the Tribunal’s factual conclusions more difficult to challenge and defend. An order based on a five-page field inspection report presented by an undefined committee with unnamed members is not a scientifically sound finding. It’s an educated estimate wrapped in judicial prose.
The precautionary principle, probably the NGT’s favourite doctrinal weapon, does not solve this difficulty. The approach correctly transfers the burden of proof onto the party alleging that an action is ecologically safe. It does not and cannot replace the fundamental need that the Tribunal’s factual findings be based on logical evidence rather than expert authority asserted without explanation.[2]
The Roar Without the Bite: Weak Enforcement and the Theatre of Compliance
In the years since the Tribunal’s inception, a specific type of NGT order has evolved into almost a literary form. It goes like this:
The Tribunal is concerned that its order of [date], directing [state agency] to take [environmental action], has not been followed. The Tribunal orders [state agency] to provide a compliance report within [time]. The Tribunal further directs [central ministry] to examine compliance and report back to the Tribunal. The matter is scheduled for [future date].
On a future date, a compliance report is filed, indicating partial compliance, promising full compliance, and requesting an extension. The tribunal approves the extension. The cycle continues. The river, the forest, and the wetland remain in their damaged form as the paperwork mounts.
This isn’t an isolated event. It is a systemic feature, as evidenced by the Tribunal’s own order papers. A 2019 research study by the Centre for Science and Environment recorded scores of key NGT orders—on the Ganga, on Delhi’s air quality, and on coastal zone infractions—where compliance was partial or non-existent years after the original directive. The Tribunal’s primary response to this compliance gap has been to issue more directions.
The enforcement architecture is the issue. The NGT lacks its own enforcement mechanisms. It cannot direct state executive action. It can and does hold state officials in contempt; nevertheless, contempt proceedings before a tribunal lack the constitutional heft of contempt proceedings before a high court or the Supreme Court. Noncompliance by state governments may result in adverse orders, more hearings, and perhaps institutional shame. Most state executives with competing political interests do not find them to be overpowering deterrents.
The compensation mechanism, the Tribunal’s major tool for environmental repair, has comparable flaws in its construction. The NGT has the authority to grant compensation for deposits in the Environment Relief Fund. However, most governments run the Environmental Relief Fund with aspirational levels of transparency and accountability. In documented cases, money received as environmental compensation has gone unclaimed, been misdirected, or used for purposes unrelated to the rehabilitation it was intended to fund. The Tribunal collects the fine. The environment does not always receive the treatment.
The result is a peculiar institutional condition: a body that projects the authority of a court but operates, in its most consequential function—making polluters stop polluting—with the practical effectiveness of a strongly worded letter.[3]
Which Court Is It Anyway? The Constitutional Turf War No One Admits Is Happening
The High Courts (under Article 226) and the Supreme Court (under Article 32) are empowered by India’s constitutional architecture to conduct judicial review of executive action. Environmental issues are largely resolved through executive action, such as government approvals, licensing decisions, and regulatory inaction. The establishment of the NGT, a statutory body with overlapping subject-matter jurisdiction over much of the same territory, has resulted in a jurisdictional labyrinth that is both academically intriguing and practically perplexing.
The difficulties operate in numerous directions. Litigants have learned to forum-shop, with a suit dismissed by a high court on locus or maintainability grounds reappearing before the NGT as a ‘substantial environmental question.’ Parties aggrieved by NGT orders, on the other hand, seek relief in High Courts, resulting in a jurisprudential conflict over whether High Courts have appellate jurisdiction over NGT proceedings—a question that the Act does not clearly resolve and that the Supreme Court has had to address on several occasions.
Section 22 of the NGT Act allows for appeals from the Tribunal to the Supreme Court. The provision was probably meant to provide a clear appellate structure. It hasn’t. High Courts continue to hear writ petitions challenging NGT orders, resulting in a situation in which statutory tribunal directions are subject to collateral challenge in constitutional courts—precisely the scenario that specialist tribunal design is intended to avoid.
These procedural complexities conceal a deeper constitutional worry. In exercising suo moto jurisdiction and issuing broad policy directives, the NGT has occasionally entered the space traditionally claimed by constitutional courts: the space of fundamental rights enforcement and executive accountability under Articles 21 and 48-A of the Constitution. When the NGT orders that no construction take place within a certain distance of a wetland, or that a state government prepare and submit a time-bound action plan for a specific river basin, it is doing something very similar to what the Supreme Court does in public interest litigation —except that the NGT lacks the Supreme Court’s constitutional authority to do so.
With classic institutional caution, the Supreme Court has declined to address this tension explicitly. Instead, it has made several ad hoc amendments, such as shifting things to itself, directing the NGT to collaborate with the High Courts, and occasionally reversing NGT rulings based on jurisdiction. The end consequence is a system in which the bounds of authority are negotiated rather than defined in advance—efficient for skilled litigants, costly for everyone else, and structurally unsatisfactory for an institution designed to offer certainty.[4]
Compensation Without Remediation: The Spectacular Pointlessness of Environmental Fines
The polluter pays. The river has not recovered. The fine disappears into an account whose balance is periodically cited as evidence that the system is working. Everyone is satisfied except for the ecosystem.
The polluter pays principle is one of the most ingeniously basic propositions in environmental law: people who cause environmental damage must incur the consequences. The NGT has adopted this principle with genuine enthusiasm. It has used it in thousands of cases, resulting in compensation awards of thousands of crores of rupees. The principle is sound. In important ways, the NGT has not implemented it.
Consider the mechanics. The NGT mandates compensation. Compensation will be paid into the central or state environment relief funds or, on occasion, directly to the affected communities. The tribunal, thereafter, in most situations, proceeds. State agencies are in charge of monitoring whether the compensation is used for environmental repair and whether that remediation is effective.
In a surprising number of NGT procedures, the measurement of environmental harm—the step that must logically precede any sensible compensation order—is not submitted to rigorous analytical scrutiny. The Tribunal will receive a committee report declaring that the ‘environmental harm’ caused by a specific infringement amount to a specific sum, and that sum will serve as the foundation for the compensation decision, with no systematic investigation of the assumptions underlying the calculation. Environmental economics is a sophisticated topic with well-developed valuation techniques, including contingent value, hedonic pricing, and replacement cost analysis. The NGT has implemented these tactics inconsistently, implying that their purpose is rhetorical rather than analytical.
The deeper difficulty is conceptual. In the context of environmental law, compensation differs from rehabilitation. A factory that destroys a wetland pays a fine, but the wetland is not restored. Even if the money is properly collected and honestly administered, it must then be used for restoration, which is a complex, expensive, long-term process that necessitates sustained institutional attention of the type that the NGT, as an adjudicatory rather than administrative body, is structurally incapable of providing.
The NGT has, possibly unintentionally, created a system in which the act of imposing a fine becomes the key indicator of the Tribunal’s environmental efficiency. The fine was announced in a news release. It is noted in the Tribunal’s annual report. It is presented as proof of institutional accountability. The question of whether it actually created any environmental advantage—whether the river is cleaner, the air is more breathable, or the forest is less degraded—is one that institutional architecture is not well prepared to answer and hence does not ask.[5]
Epilogue: What a Functional NGT Would Look Like
It would be too easy—and, frankly, too imprecise—to close with a pure critique. The NGT exists because there was a genuine institutional vacuum. Indian courts were and continue to be swamped. The Indian environmental administration was and continues to be seriously undermined. The NGT was founded on the correct impulse: to develop something that could genuinely work. The execution was defective in ways that can now be identified with fair clarity.
A functional NGT would have explicitly defined suo moto jurisdiction as being activated only upon petition or formal referral by constitutional courts, with express statutory authority rather than implicit powers of undetermined source. Its expert committees would follow transparent, disclosed methodological norms, with members who are independent of the agency being evaluated. Its orders would be executed by an independent compliance mechanism, not by state agents, but by a recognized monitoring authority with its own investigative capabilities and reporting responsibilities to the Tribunal. Its relationship with the High Courts would be governed by statute rather than litigation, with explicit exclusivity provisions and a logical appellate structure. And its compensation orders would be accompanied by mandatory, audited remediation plans so that the payment of a fine and the achievement of environmental improvement are connected, rather than merely correlated by aspiration.
Nothing about this is radical. Most of it is normal institutional design. The question is whether there are enough political will, judicial transparency, and legislative attentiveness to make it happen.
Given that the current beneficiaries of the existing arrangement—state governments facing relatively painless fines rather than structural accountability, industries learning to price NGT penalties into their operating costs, and a Tribunal whose expansive jurisdiction is a source of institutional prestige rather than a source of institutional concern—are precisely those with the power to change it, the answer is most likely: not yet.
Until then, the NGT will continue to file cases against itself, issue orders to the wind, fine the unfindable, and remind us, periodically, that the environment is important. Which we knew. What we needed was an institution that could actually protect it.
A court that cannot enforce its orders is not a court. It is a suggestion box with better stationery.
The views expressed are personal.
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| Author: Advocate Y.Balachander Reddy, LL.M Intellectual Property Rights, (LL.M. Corporate and Securities Laws), P.G. College of Law, O.U., Basheerbagh. | Co-Author: Abhisikta Nandy, B.A. LL.B. (IPR Hons.), KIIT Deemed to be University, School of Law |
Notes:
[1]S. Jagannath v. Union of India; NGT Bar Association petitions challenging suo moto cognisance; the Tribunal’s own internal inconsistency in applying jurisdiction tests across benches.
[2] Manoj Misra v. Union of India (Yamuna matters); NGT proceedings on Aravalli mining where expert committee reports were contested on methodological grounds; Himachal Pradesh forest cover matters.
[3] CSE report, ‘National Green Tribunal: The Road Ahead’ (2019); Parliamentary Standing Committee observations on NGT compliance mechanisms (2021-22); Compliance monitoring studies by Legal Initiative for Forest and Environment (LIFE).
[4] Madhya Pradesh High Court v. NGT (various); T.N. Godavarman Thirumulpad v. Union of India (intersection of Supreme Court Forest bench and NGT jurisdiction); Appellate jurisdiction debates in Law Commission of India Report No. 245.
[5] CAG Report on Environmental Relief Funds (2018-19); TERI studies on post-compensation environmental monitoring; State-level Environment Relief Fund audit findings across Rajasthan, Maharashtra, and West Bengal.
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