NGT Steps In As J&K Fails To Enforce Environmental Laws

(MENAFN- Kashmir Observer)
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I remember the late former Union Finance and Law Minister Arun Jaitley stressing the importance of drawing a line between the judiciary and the executive. While speaking at the“Indian of the Year 2015” awards ceremony, organized by Network 18 News (formerly CNN News 18), he said that courts cannot perform the functions of the executive, and the independence of the two must be strictly maintained. He further stated that if the judiciary fails to act, the executive cannot take up that role under the plea of mounting pending cases. Similarly, courts also cannot take over executive functions. However, when our government officers (the executive) fail to perform their constitutional duties, the judiciary has shown a willingness to use its power. Many critics call it judicial encroachment into the executive domain, but after experiencing the lukewarm response of the executive in enforcing environmental laws in Jammu & Kashmir, I believe the judiciary, especially the National Green Tribunal (NGT), is our only hope for the implementation and enforcement of environmental legislations and the rules governing these laws.

Judicial Activism

The judiciary plays a pivotal role in promoting and upholding the rights of citizens. It also plays an important role in upholding the rights of citizens guaranteed under different environmental laws. The active role of the judiciary in upholding the rights of citizens and preserving the nation's constitutional and legal system is referred to as judicial activism. After the enactment of the Air (Prevention and Control) of Pollution Act in 1981, the Indian judicial system, particularly in the realm of environmental law, underwent a major transformation, abandoning its weaker stance in favor of charting new social justice possibilities. Environmental activism received a significant boost from judicial activism, especially when environmental rights were recognized as a“fundamental right” under Article 21 (Right to Life) of the Constitution. This gave the right to a clean and healthy environment constitutional sanctity. Our High Courts, the Supreme Court of India, and more specifically the National Green Tribunal (NGT) have played a great role in enforcing environmental laws, as the executive has failed to act.

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From my experience, the National Green Tribunal (NGT) is doing the work that should be done by law-enforcing agencies in Jammu & Kashmir. Our District Magistrates, Urban Local Bodies, Rural Local Bodies, the J&K Pollution Control Committee (JKPCC), and other institutions have hardly been serious about ensuring the implementation of the Air Act, Water Act, Municipal Solid Waste Rules 2016, J&K Mining Rules 2016, etc. This is reflected in the fact that the NGT has imposed huge penalties on the J&K Government in the last 3 to 4 years. Even in petty cases, government institutions have failed to act, and the aggrieved are now knocking on the doors of the National Green Tribunal (NGT). This is a very serious issue that our elected government, especially the Chief Minister, must address urgently!

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Recently, the National Green Tribunal (NGT) had to intervene because the District Administration of Bandipora and the J&K Pollution Control Committee failed to shut down an illegal hollow cement brick manufacturing unit at the Naidkhai locality in Bandipora district. This pollution-causing unit is located just next to a Government Higher Secondary School. The school principal made a written complaint to the local Tehsildar in 2022, who then sought a report from his Naib Tehsildar. Despite this, the officers failed to act, even after the aggrieved parties approached the SDM Sumbal and the DC Bandipora. They then turned to the J&K Pollution Control Committee (JKPCC), which ordered the closure of the unit for violating the Water Pollution Act of 1974 and the Air Pollution Act of 1981. The unit owner challenged the closure order before the Chief Judicial Magistrate (CJM) of Srinagar. Technically, the CJM had no jurisdiction to handle this case, and relief was granted to the brick manufacturing plant owner. Ironically, the JKPCC did not challenge this order before the District Court or the National Green Tribunal (NGT).

With all executive avenues closed and even the lower judiciary passing a defective order, the aggrieved locals, through one Zahoor Ahmad Dar, had no option but to seek the indulgence of the National Green Tribunal (NGT) in New Delhi. The case was listed before the Principal Bench of Justice Prakash Srivastava (Chairperson of NGT) and Dr. Afroz Ahmad (Expert Member) on January 21, 2025.

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The petitioner, Zahoor Ahmad Dar, was present before the NGT's Principal Bench on January 21, 2025, through virtual mode. He pointed out that the J&K Pollution Control Committee (JKPCC) had passed a closure order on May 27, 2024, based on his complaint, but the brick plant owner had challenged the order in a Civil Suit before the Chief Judicial Magistrate (CJM) of Srinagar. The CJM passed an interim order on October 28, 2024. In compliance with the CJM's order, the closure order was kept in abeyance by the Member Secretary of JKPCC on January 8, 2025. The Principal Bench of the NGT stated that the CJM of Srinagar had no jurisdiction to issue an order in this case.

The NGT's order reads:
“We find that the order dated May 27, 2024, was passed by the Member Secretary, JKPCC under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, and Section 58 of the Water Act, 1974, which creates a jurisdictional bar for civil courts to entertain any suit or proceeding in matters under this Act. We also find that the order of the Member Secretary, JKPCC, dated May 27, 2024, is also under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981, and the Air Act also creates a jurisdictional bar under Section 46 of the Air Act.”

The NGT's Principal Bench advised the JKPCC to bring this matter to the attention of the CJM of Srinagar to modify the order accordingly. The NGT's order further reads:
“The JKPCC must bring the said jurisdictional bar to the notice of the Civil Court which passed the order in the civil suit, where the order of JKPCC dated May 27, 2024, under the Air Act, Water Act, and EP Act has been stayed. The OA raises substantial issues related to compliance with environmental norms. Issue notice to the respondents to file their response/reply by affidavit before the Tribunal at least one week before the next date of hearing. If any respondent files the reply directly without routing it through their advocate, they must remain virtually present to assist the Tribunal. The applicant is directed to serve the respondents and file an affidavit of service at least one week before the next date of hearing.”

The case is now listed for hearing again on May 5, 2025.

Conclusion

The environmental legal regime in Jammu & Kashmir has many facets and institutions, but they have failed to address our concerns. Ironically, some institutions have not only been mute spectators but have even become collaborators in environmental crimes, as evidenced by the NGT's orders over the last 4 to 5 years. Had the Tehsildar of Hajin acted on the application of the Principal of the Higher Secondary School of Naidkhai Sonwarai in 2022, the locals wouldn't have had to approach the NGT. Similarly, had the J&K Pollution Control Committee (JKPCC) challenged the CJM Srinagar's order, the NGT wouldn't have had to intervene in this petty case. Earlier, it was only I who sought the indulgence of the NGT, then we had a case filed by Rasikh Rasool from Kupwara, and now another application has been moved from Naidkhai, Bandipora. When I examine all these cases, it is clear that the local administration and regulatory authorities could have addressed these petty environmental violations, but they didn't, forcing all of us to approach the NGT. I believe this matter needs to be taken seriously by Chief Minister Omar Abdullah so that the executive is held accountable and made to enforce all environmental laws in letter and spirit.

• Views expressed in the article are the author's own and do not necessarily represent the editorial stance of Kashmir Observer

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