Indian Parliament in 2010 passed the National Green Tribunal Act, assuring citizens the right to a healthy environment. Lex Witness Bureau writes on the tribunal, set up to provide speedy environmental justice, and its jurisdiction…
Ever since threats to environment were studied by Brundtland Commission in 1970s that the ‘Green’(ecological balance) is Bleeding ‘Red’ (grave threat to environmental balance manifesting itself in climate change) and suggestion of a new approach towards development called ‘Sustainable Development’. From that time onwards a reluctant effort, world over, towards saving environment has been a foot with its attendant politics of arguments and counter arguments for or against with the broader debate remaining as to: how to harmonise environmental protection values and development values; and developing an appropriate regulatory and adjudicatory Mechanism to achieve the objectives of such a green approach.
Such need for green efforts was duly incorporated into our Constitution in 1976 by way of 42nd amendment and thereby Part IV A and article 51A were inserted therein with clause (g) of the article specifically making it the duty of every citizen to “(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;”. It was identified during the course of various cases before the Supreme Court that a specialized forum to deal with the specific environmental issues in a cost effective and expeditious manner was needed especially in a scenario where High Courts being over burdened with work were unable to settle disputes timely. In view of such a consensus, Law Commission of India in its 186th report in 2003, after a comprehensive study came up with its recommendations for establishing environmental courts in each state of India from the perspective of bringing speedier and accessible justice to the teeming millions.
So the enactment of National Green Tribunal Act, 2010 (NGT Act) is the culmination of that effort to find an appropriate regulatory and adjudicatory Mechanism to achieve the objectives of such a green approach by having a fair, fast and satisfactory adjudicatory procedure.
The problem with the tribunals as the dispensers of justice; the need and necessity of keeping the executive and judiciary separate; and the most paramount need to ensure the independence of Judiciary as the ultimate guarantor of rule of law could not have been more evident than the recent needless controversies surrounding the powers and functions of National Green Tribunal (NGT), its relationship with ministry of Environment and Forests (MoEF), the quibbling by ministry over the jurisdiction of NGT as to its suomoto powers, not providing the Benches of NGT with the necessary infrastructure so much so that Supreme Court had to finally intervene to secure necessary wherewithal for the Benches.
No suomotu powers provided for you, MoEF tells Green tribunal, reported Indian Express on 26th August 2013. “The Ministry reminded the tribunal that as per the National Green Tribunal Act, 2010 no suomotu powers have been provided for. The tribunal has been writing to the JayanthiNatarajan-led Environment Ministry from 2011 seeking the powers. The NGT has been asking MoEF to amend the Act. The Environment Ministry had turned down the request. It responded to a query in Parliament saying, “the Ministry did not agree with the request of NGT for conferring suomotu powers on the tribunal”. The MoEF conveyed it to NGT on December 18, 2012. “The government of India has not agreed to confer suomotu powers on the tribunal,” the Environment Ministry said. While it desisted from reminding NGT that it may be exceeding its brief by taking suomotu cognizance of environmental issues, it has, in response to a query in Parliament, said “it is for the NGT, an adjudicatory body, to follow provisions of the NGT Act, 2010”. On this point following case law is highly relevant as Hon’ble Supreme Court in a catena of Judgments on the inherent powers of the Tribunals has repeatedly held that: “no person shall wrongly challenge jurisdiction of courts, unless expressly provided in statute, and illegal and arbitrary” (Cellular Operators Association of India and Ors. vs. UoI, (2003) 3 SCC 186; “…it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers.” (UoIvs. Paras Laminates, [1990] 186ITR722(SC); “…If the rule of law is to prevail the Tribunal has to play effective role in the administration of justice and in the process the Tribunal should have all the powers as are vested in courts.” (Public Services Tribunal Bar Association vs. State of U.P. (2003)4 SCC104); “The functions of the Tribunal being judicial in nature, the public have a major stake in its functioning, for effective and orderly administration of justice. A Tribunal should, as far as possible, have a judicial autonomy” (Ajay Gandhi vs. S.B. Singh (20040 2 SCC 120). So a conjoint reading of NGT’s Jurisdiction under the Act and the preceding case law renders such a doubt regarding suomotu powers meaningless.
Though various issues arising out of use of Tribunals as a preferred mode for dispensing justice then regular courts (including high courts) have arisen and have also been addressed by Supreme Court in its various pronouncements including S. P. Sampath Kumar vs. Union of India – 1987 (1) SCC 124, L. Chandrakumar v. Union of India (1997) 3 SCC 261 and Union of India vs. R. Gandhi in 2010. All the larger questions, concerning ‘Tribunalisation of Justice’ debate i.e. creation of Tribunals in the areas of law where technical subject matter knowledge is important for adjudicating disputes is essential which courts (including high courts) generally do not possess, came up for hearing in Union of India vs. R. Gandhi in 2010. The case concerned the constitution of National Company Law Tribunal (`NCLT’ or `Tribunal’) and National Company Law Appellate Tribunal (`NCLAT’ or `Appellate Tribunal’).
The Constitutional Bench, of the Hon’ble Supreme Court, in Union of India vs. R. Gandhi specifically determined all the questions usually raisedrelating to the creation of Tribunals as the preferred mode for the adjudication of disputes which generally require technical knowledge of a certain discipline. In Para 44 of the Judgment the Court summarized its determination on all such questions.
The NGT Act, vests the Tribunal with original jurisdiction is provided under section 14; compensatory and restitutionary jurisdiction under the scheme of section 14-16, 19 and 29; and under section 16 appellate Jurisdiction has been conferred upon it.
Besides Act also allows NGT to determine its own procedure reach environmental justice in regard to all substantial questions of environment which means, as per section 2(m) of the NGT Act, an instance where,-
A group of citizens (including villagers, university and hospital) of a village under Bareilly Municipal Corporation complained against the establishment and operation of a Municipal Solid Waste Management Plant (‘MSWM’ Plant). The illegality was claimed on the ground that it was established in violation of the EIA Notification, 2006. The applicants sought compensation for health hazards posed by the Plant, shifting thereof to a duly recognized site and restoration of the site to its original position.
On 28.05.2013 pursuant to the Applications, and after hearing arguments of the parties,NGT reserved Judgment and issued an ad-interim order: “No Municipal solid waste shall be dumped at the site in question.” The Judgment in the matter was pronounced on 18.07.2013 and it ordered and directed the Municipal Corporation and other Respondents including its Mayor to immediately close the Plant, restrained them from further dumping, removing the dumped material, shift the plant to an appropriate site in accordance with law and restore and develop the site as per Master Plant 2021.
Despite the interim stay, presence of the officials of the Municipal Corporation at the time of pronouncement of the stay order by NGT and due request by the District Magistrate Bareilly to the Municipal Corporation requesting compliance of the order. The Corporation persisted with dumping of the solid waste at the disputed site. Apart from that the Mayor of the Corporation in a regional and widely circulated daily cast aspersions on NGT stating in the interview thereto that: “our side was never ineffective/ weak. Our Advocate put the arguments effectively/ strongly on our behalf. But when everything was pre-decided then what could we do”.
Various applications were filed after flagrant violation of stay order and also the Judgment of the Tribunal. It was mentioned therein that not only Municipal Corporation was not violating the interim stay but also was acting with vengeance against the village residents as it had started dumping the waste close to the national highway adjoining the village.The Tribunal pursuant to the contempt petitions appointed local commissioner (‘LC’) to inquire into the allegations of contempt. The LC found the averments to be true.
After a thorough hearing NGT in its order dated 24.10.2013, though free to adopt its procedure to render environmental justice held that:
with the principles of natural justice. The provisions and the procedure prescribed under the CPC is not strictosensu applicable or binding upon the proceedings before the Tribunal but the provisions of the CPC, in so far as they are in conformity with the prescribed procedure under the NGT Act, could be brought in aid (and the principles of the CPC) in general can be applied to the proceedings before the Tribunal. Following this settled principle, it is obvious that the provisions of order XXXIX Rule 2A of the CPC could be attracted wherever the circumstances so call for. Thus Respondents no. 4 and 5 and the violations committed by them can be dealt with in terms of the provisions of Section 26 r/w section 15 of the NGT act.
“Thus, for causing pollution over the long period and particularly when it was in violation to the orders of the Tribunal we must hold the Nigam (corporation) liable to pay compensation for restitution and restoration of the environment as well as for damaging the environment… we are of the considered view that a sum of Rs. 1 Lakh per day would be an appropriate direction for restoration of the site to its original condition as well as on account of preventing further damage to the environment. For this purpose we would also appoint the committee which shall ensure compliance and proper spending of the amount so deposited.”
The Controversy Regarding Providing Staff and Infrastructure to the NGT and non cooperation of NGT as reported in Times of India on Aug 28, 2013 that ‘Environment ministry showing total non-cooperation to National Green Tribunal: SC’. In that SC referred to a recent letter written by an environment ministry official to the NGT chairperson asking the tribunal to make its own arrangements for accommodation and staff, the bench said, “This communication is indicative of total non-cooperative attitude of MoEF. It gives an impression that the department is making all out efforts to see that NGT does not function efficiently.”
The approach of the Govt. in general and ministry in particular leaves a man of common prudence dumb founded. As on the one hand you are constituting commissions and committee, like ‘Damodaran Committee for Reforming the Regulatory Environment For Doing Business In India’ to make it easier doing business in India and on the other you are opposing the very institutions created to make doing business easier in India (NGT being an arbiter in the matters concerning environmental clearances because of which thousands of crores of money is stuck in many industrial and infrastructure projects).
In such a scenario the observations by Supreme Court in Samapath Kumar, L. Chandrakumar and R.Gandhi and Damodaran Committee Report on Ease of Doing Business as to ensuring financial and functional autonomy of the Tribunals. Though the Damodaran Committee is more in the context of Regulator’s functional and financial autonomy. But the issue remains the same. Create an institution to appease rising demand therefor and later on slowly and silently killing it of all its initiative and vitality. If MoEF manages to do this in the case of NGT then the very purpose of creating will get defeated.
There is a case for an ‘Ecological and not Human’ Perspective of Mother Nature so we can ill afford to play god with it. The most tragic innovation creditable to human ingenuity is the emergence of ‘landscaping mentality’. By this mentality I mean to imply our approach to our plan our urban settings as per our idea of idea of beauty on the mother earth by seriously playing with the nature’s blueprint in terms of type of flora and fauna at a particular geographical location. In the process of providing everything to all we have forgotten that man is but one species amongst many. Our bodies are not made of plastic or rubber but of ‘five elements’ and that is provided by mother nature. And if we need to avert any environmental disaster simply wiping us out off the face of earth then it is high time that proper functional and financial autonomy of institutions like NGT must be ensured.
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