India is a pioneer among developing countries in establishing a “green court” to deal with environment-related litigations. Established through an Act by the government of India, the National Green Tribunal (NGT), a quasi-judicial body has ensured speedy justice on several green cases.
The NGT was brought in after an earlier attempt to set up a National Environment Appellate Authority failed with the institution ending up as dysfunctional. The NGT deals with all cases related to environment protection, conserving forests and natural resources. The tribunal, which works on principles of “natural justice” and not civil law, has powers to enforce legal rights relating to the environment and provisions for compensation to be paid by the polluter for damages caused to the affected parties. It was set up because there was a need for an effective, potent and technically equipped green court.
The NGT, set up in 2010, comprises an equal number of judges and experts on environmental and forest policies to fast-track efficient disposal of cases. With its circuit benches in four corners of the country apart from the principal bench in Delhi, the green court is able to reach remote locations of the country. The NGT is headed either by a former judge of the Supreme Court or the Chief Justice of a high court.
How NGT became a power to reckon with
The NGT has given a number of notable judgements. Its 2014 order on coal blocks in Chhattisgarh forests wherein it cancelled the clearance given by the then Union Environment and Forests Minister, Jairam Ramesh, is a noteworthy one. The minister had, in this case, overruled the advice of the ministry's expert statutory panel--the forest advisory committee. The blocks were for mining by Adani and Rajasthan Rajya Vidyut Utpadan Nigam Limited through a joint venture. The NGT held that the “anthropocentric” considerations that the minister raised, such as the sustenance of the super-critical thermal power plant, were not valid enough to evaluate the project.
The NGT’s Yamuna judgement of April 2014 which said that the health of the river will be affected by the proposed recreational facilities on the river is another landmark judgement. The tribunal recommended that the government declared a 52-km stretch of the river in Delhi and Uttar Pradesh as a conservation zone.
Another notable judgement is the MC Mehta case, which was moved to the NGT from the Supreme Court in 2014. The PIL filed in 1985 on the pollution in river Ganga dragged on in the Supreme Court for years making little progress till the NGT gave its judgement in July 2017 under which it ordered that there will be no construction on land within 100 metres of the river on either side and that no waste can be dumped 500 metres from the river edge on either side. The NGT held detailed hearings on a day-to-day basis spanning many months to come at this judgement. It is also planning to systematically look into other stretches of the river.
Government tightens the grip
More recently, the government has come under fire from environmental activists on its attempt to bridle the powers of the NGT. Since May 2014, there were talks in the government corridors that the NGT is in its line of fire. In April 2017, certain changes were made in its functioning by way of the Tribunal, Appellate Tribunal and other Authorities Rules, 2017 under the Finance Act. This came into effect on April 1, 2017 while the rules were published on June 1, 2017.
The changes include alterations in the terms of service of the NGT members including qualifications, appointments, terms of office, salaries and allowances, and the removal of tribunal members. As per the new rules, even a non-judicial member can become the chairperson of the tribunal and it is no longer necessary that the chairperson must have been a judge of the Supreme Court or a Chief Justice of a high court.
The environmental activists sensed that this would lead to a grave infringement into the composition and functioning of not just the NGT but 18 other tribunals as well. “The changes introduced seem designed to completely destroy the independence of the NGT. The government has been trying to destroy this institution one way or the other and now seems to have tried it through surreptitious changes in the Finance Act, that too without any debate in the Rajya Sabha,” says Himanshu Thakkar, coordinator of South Asia Network on Dams, Rivers and People, New Delhi.
The move invites criticism
A petition, filed recently by the Social Action for Forest and Environment (SAFE), a Greater Noida-based non-profit through lawyers Vivek Chib and Ruchira Goel on the grounds of dilution of the NGT Act, has challenged the changes made to the ACT and seeks to quash Part 14 of the Finance Act and the entire Tribunal Rules 2017 that severely restrict the rights of the public to effectively access justice.
The petitioner's contention is that the new rules give the government unbridled and completely unguided power to decide the terms of service of the tribunal members. The rules have severely compromised the minimum qualifications for the NGT members. “People like you and me with no judicial or legal training and experience are now eligible for heading the highest position as well as the search and selection committee. Even a person who has been a judicial member or an expert member for three years is qualified to be the NGT's chairperson. Right now, the only qualification required is that the person should be close to the ruling party,” says Vikrant Tongad, who heads SAFE.
“The problem with the new rules is that it gives primacy to the executive in the appointment and removal of the members of tribunals like NGT, and this severely affects their independence,” says Tongad. The petition by SAFE states that the new rules are “destroying the separation of powers between the branches of government and independence of judiciary enshrined in the Constitution, in complete violation of the basic structure of the constitution”.
“The changes seem clearly designed to destroy it (the NGT) by taking away its independence. This is totally unacceptable and we hope the Supreme Court will strike it down and the members of the Parliament, the media and citizens will oppose the move,” says Himanshu Thakkar.
“The NGT had a dedicated jurisdiction in environmental matters to provide speedy environmental justice and help reduce the burden of litigation in the higher courts. We are faced with a situation of the executive taking over the judiciary,” says Tongad.
Centre seeks unbridled power
Opposition to this move came more recently from Jairam Ramesh, former environment minister, who moved the Supreme Court in August 2017 against those provisions of the Finance Act 2017 that give undue power to the Centre to decide the functioning of the judiciary. The public interest litigation (PIL) by Ramesh notes that the new rules “uses the expression 'or' while laying down the qualifications for the chairperson now allows even a non-judicial member or an expert member to be a chairperson provided he has not less than three years of experience as a member. This is a serious encroachment into the composition and functioning of the NGT and cannot be constitutionally countenanced in light of several decisions of the Supreme Court.”
"By giving central government such unbridled power in relation to determination of such conditions of service of members of the NGT, the principle of separation of powers, which is a part of the basic structure of the Constitution, is being violated. The Supreme Court has repeatedly held that judiciary including the tribunals must be free from executive control," the petition states.
The petition pleads that the rules be declared as “ultra vires” (beyond its powers) given the NGT Act, 2010 and the Constitution. Ramesh argues that the government could have come up with an amendment to the NGT Act instead of taking the route of the Finance Bill. This could have been passed in the Lok Sabha after a debate. Jairam Ramesh’s PIL challenges sections 182, 183, 184 and 185 of the Finance Act, 2017 as well as the Rules framed under section 184.
An effective NGT was causing the government and big businesses a lot of unease. Experts believe that considering diluting the powers of the NGT by amending the NGT Act would have been politically dangerous and would have invited a lot of criticism, the government decided to do it surreptitiously.
A Supreme Court bench comprising Chief Justice J.S. Khehar and justice D.Y. Chandrachud has tagged the plea by Jairam Ramesh with the similar pending petition filed by SAFE and has issued a notice to the central government on the petitions. The ministries of law and justice and finance have been asked to respond to the plea, but the operation of the provisions of the Act and the rules have not been stalled yet.
There are not many such parallels in India’s environmental jurisprudence as the recent judgements by the NGT. Rendering the NGT powerless will leave us with not much hope.
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