Operating under government control, there is reason why National Green Tribunal should be converted into environmental courts

tribunalBy Mahesh Pandya*

The National Green Tribunal (NGT) has been operational in India for quite some in the field of environmental adjudication. As activists, we have been closely monitoring its operation and the trend of its working. While critically appraising its role, we found that in each and every clause of the National Green Tribunal Act, 2010 (NGT Act) with regard to the establishment of the tribunal, the words ‘Central government’ reflects that the tribunal is very much related to the government. This has been done despite the fact that it is a well known fact that in India the judiciary is separate from legislature.

In fact, when we look at the NGT Act, the Central government directly as well as indirectly, through chairperson, runs the tribunal, which is a wing of the judicial system of our country meant for speedy, fair trial of environment cases. On the other hand, the appointment of judges and other judiciary members is done either by the Chief Justice of India, or the President of India, or with the consultation of both of them.

Just like the NGT Act, under the Consumer Protection Act, 1986, as well, the powers to appoint judicial members/ non-judicial members are vested with the Central government and state government. Thus, the question that arises here is, up to what extent the judiciary is separate from the legislature?

In fact, Section 6 of the NGT Act says that the chairperson, judicial members and expert members of the tribunal shall be appointed by the Central government. Here, it is pertinent to ask: If the appointment of the chairperson, as well as the members (judicial/non-judicial) is vested in the Central government, would it not be prejudicial, because governments change periodically and they may act according to their whims and fancies?

Further, the NGT Act says that the chairperson shall be appointed by the Central government on consultation of the chief justice of India. The word consultation means to just formally inform. The Central government would just need to inform/consult the chief justice. But nowhere does the NGT Act say that the Central government is bound to act according to the view of the chief justice of India.

Then, the NGT Act says that “the judicial members and expert members of the tribunal shall be appointed on the recommendations” of a prescribed selection committee. Here, too, the view of the chief justice of India should become binding on the government. Also, there is no clarity on how the selection committee will be formed, who should be included in the selection committee, and what procedure it should follow while selecting its members.

Clearly, the NGT Act remains silent on such important operative aspects.

Furthermore, under Section 8 of the NGT Act, it is stated that a judicial or expert member could resign by sending across the application to the Central government. Once again, we clearly see the dominant of the role of Central government, which may be jeopardise the autonomous nature of the very institution of NGT. Keeping this in mind, it is necessary that instead of the Central government, there should be an independent and autonomous body which could regulate the entire procedure of appointment and removal of its members.

The NGT as a tribunal has powers of high court, because the cases from high courts can be directly transferred to the NGT, and further appeal is to be placed before the Supreme Court. Indirectly it can be very well implied that the NGT as a tribunal has equivalent judicial powers to those of high courts in India in adjudicating environmental matters. This also suggests the need to focus on the objective of keeping the institution of NGT free form government interference with respect to the composition of judicial members.

Section 14(1) of the NGT Act states that the tribunal has jurisdiction over all civil cases — especially with regard to substantial questions relating to environment. This jurisdiction also applies to cases related to the enforcement of legal rights relating to environment. This section underlines, questions arising out of implementation of the enactment should be specified in Schedule I.

The word ‘implementation’ can be interpreted as mandatory in nature, which should put  legal obligation on the state, so that the state is obliged to act as per the mandate of the environmental legislations of Schedule I. Here, the word “violation” should be used instead “implementation”, so that the NGT takes suo motu takes cognizance in case any state violates the provision.

Another important concern relates to the issue of limitation period of the NGT Act, which has emerged as a point of contention, as issues causing environmental damage take time in actually affecting people — it can be termed as slow poison, as at the initial stage one may not be aware of the problems affecting to people. Only at a later stage, after few years, the problem can be identified, and if such cases are moved to the tribunal their application may be dismissed on the technical ground of limitation period.

The rigid approach of limitation period needs to be discarded, and here more proactive and judicious approach of case-based flexibility should adopted by making suitable and needful legal amendment in the NGT Act.

The Law Commission of India in its 186th Report proposed to constitute environmental courts (September 2003). Yet, ironically, the NGT Act talks of establishing “tribunal” and not “court” for adjudicating environment-related cases in India. As per of legal jurisprudence, there is a basic distinction between tribunals and courts– tribunals have less powers than courts. Courts follow formal procedure, whereas the tribunals don’t. Hence, as per the recommendations of the 186th Report of the National Law Commission, Parliament should establish full-fledged environmental courts, and not tribunals having less operative powers.

*Director, Paryavaran Mitra, Ahmedabad

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