Woes of the National Green Tribunal: Are the recent appointments unconstitutional?

Bar & Bench October 9 2019
morbi

Ritwick Dutta

Over the last decade, if there is one institution in India that has captured the world’s attention, it is the National Green Tribunal (NGT).

During the Parliamentary debate surrounding the introduction of the NGT Bill in 2010, it was the firebrand BJP Member of Parliament, Anant Hegde, who spoke about the need for a strong NGT and the necessity to remove procedural bottlenecks that hinder people’s access to environmental justice. The BJP ostensibly wanted to make the NGT a stronger institution than what it was under the UPA government.

Unfortunately, the NGT is today only a fraction of what it was a few years back – the four regional benches in Chennai, Bhopal, Pune and Kolkata are non-functional. Against a minimum strength of 10 judicial members and 10 expert members, there are only 4 judicial members and two expert members. In such a situation, the recent decision of the government to appoint two new expert members could be seen as a ray of hope for the institution.

However, rather than reviving the institution, the recent appointments will end up destroying the NGT both as a judicial body as well as an expert body on the environment.

The Appointments

The Ministry of Personnel, Public Grievances and Pension of the Government of India issued an order on September 2, 2019 stating that the Appointments Committee had approved the appointment of two serving officers of the Ministry of Environment, Forest and Climate Change as Expert Members of the NGT. The Order states:

“Period of 03 years w.e.f the date of assumption of the charge of the post, or until further orders, whichever is earlier”

 The National Green Tribunal Act, 2010 however states:

Section 7. The Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment.

The use of the words “until further orders” or “whichever is earlier” are equally problematic. This simply means that the Expert Members will be members of the Tribunal at the pleasure of the government. The implications of this are serious, for the Tribunal will no longer be an independent quasi judicial institution, but rather a body subordinate to the Central government.

Very often, in view of non-compliance with its orders, the NGT either summons senior officers or imposes a monetary penalty on them. If such a situation arises, the government can withdraw its ‘pleasure’ and terminate the appointment even before the completion of three years.

In such a scenario, it is unlikely that any strong decisions will come from members whose job is at the mercy of the government. The power of the government to remove the members based on its own satisfaction is again contrary to the National Green Tribunal Act, 2010.

It is important to point out that even appointments as late as 2016 were made on different terms. For example, when Dr. SS Garbayal was appointed as an Expert Member, his appointment order issued in 2016 clearly stated that the appointment was for a period of 5 years or till the age of 65, whichever is earlier. The same is the case of Expert Member Dr. Nagin Nanda, appointed in 2018.

Section 10 of the NGT specifically provides the grounds on which an Expert Member can be removed from office. These include acquiring financial or other interest as is likely to prejudicially affect his functions, or if he has abused his position as his continuance in office would be prejudicial to public interest.

Conflict of Interest

The Central government recently appointed Siddhanta Das, Director General of Forest, and Saibal Dasgupta, Additional Director General of Forests (Forest Conservation) as Expert Members of the NGT. With these appointments, all the four Expert Members of the NGT will be from the Indian Forest Service (IFS).

The Director General of Forests chairs the Forest Advisory Committee (FAC), which recommends the diversion of forest land for non-forest purposes. The FAC also includes the Additional Director General of Forests (Forest Conservation). As per the NGT Act, 2010, an appeal against the grant of Forest Clearances lies before the National Green Tribunal.

Thus, the two people who were part of the decision to grant approval will now sit to hear appeals against their own decision. Even though propriety requires that they should recuse themselves when such a situation arises, it does not always take place. Even if the new members would like to act independently, it will be difficult for them to do so. This is because the appointment order of the government now states that the Expert Members will be appointed for a period of 3 years or until further orders, whichever is earlier.

Expert Tribunal without Expert

The present government has been emphasising on the need to infuse the bureaucracy with ‘domain experts’ through lateral entry from the private sector, at the level of Joint Secretary in the various Ministries.

Thus, in place of officers of the Indian Administrative Service (IAS), who have always held the bulk of posts at the Joint Secretary level, such domain experts have been inducted. However, in the case of the NGT, it seems to be doing just the opposite, despite the fact that the law specifically requires domain experts.

When the NGT was set up in 2011, the majority of Expert Members were non-bureaucrats – environmental scientists and professors. Given their expertise in their respective subjects, they were able to take decisions, which were rarely overruled by the Supreme Court.

However, since 2014, only officers belonging to the Indian Forest Service have been appointed. This has had and will have serious ramifications on the quality of judgments. The mandate of the NGT extends to issues concerning air, water, noise pollution, hazardous substances, and a range of environmental issues. It is not limited to forests.

Last year has seen a steady decline in the quality of decisions rendered by the NGT. The Supreme Court set aside a significant number of judgments, both on law and fact, stating that the NGT had failed to undertake a merit review and had dismissed petitions without any reasons. In Hanuman Laxman Aroskar Versus Union of India, the Supreme Court bench headed by Justice DY Chandrachud considered the crucial role of Expert Members in the adjudication of environmental disputes:

"The NGT Act provides for the constitution of a Tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment."

Read Also: No new Airport in Goa for now, Supreme Court suspends Environment Clearance for Mopa Airport (Hanuman Laxman Aroskar Vs Union of India)

Justice Chandrachud and Justice Hemant Gupta

In an article on the functioning of the NGT,  Gitanjali Nain Gill writes:

"The legitimacy of the NGT’s environmental decision making rests in part upon its inclusive and participatory in-house, scientific expertise – it being an important feature within the decision-making process. The interface between science and law is particularly visible in the case of the NGT, where the scientific experts with environmental knowledge work alongside legally qualified judges as collective environmental decision makers of homologous standing."

Further, in Hanuman Laxman Aroskar, Justice Chandrachud, commented critically on the manner in which the bench of the National Green Tribunal had dealt with a merit appeal:

"The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC (Environmental Clearance). The NGT dealt with the submissions which were urged before it in essentially one paragraph. It failed to comprehend the true nature of its role and power under Section 16(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it."

In the case of the Copper Smelter Plant of Sterlite in Tuticorin, Tamil Nadu, which was shut down by the Pollution Control Board for violations of environmental law, the Supreme Court bench held that the NGT acted beyond its jurisdiction when it directed for the reopening of the controversial plant.

Conclusion

The new appointments make it clear that the Centre wants to have complete executive control over the NGT. This is despite the fact that the NGT today is only a shadow of its former self. From an institution that opened its doors to affected citizens and those concerned about the environment  to seek justice, the litigants now have to shoulder the burden of proof and spend months, if not years, explaining how the NGT has jurisdiction to entertain their petition and how they have approached the Tribunal within the period of limitation.

The situation with the zonal benches is even worse. Though touted as a great innovation, the video conference which is followed for hearing cases in Pune, Kolkata, Chennai and Bhopal does not allow the litigants or their lawyers to effectively make submissions. To make matters worse, speakers are frequently put on the ‘mute setting’ when the hearing is going on. Thus, it frequently happens that while advocates in zonal benches are making forceful arguments, they are not aware of the fact that they are not audible to the Judges sitting in Delhi, since the speaker is on mute setting.

India needs a strong, independent quasi judicial institution manned by judicial and expert members - who not only have specialised knowledge on the environment and environmental law, but most importantly, empathy towards the environment and the victims of environmental degradation.

The recent appointments do not augur well both for the NGT and for those who are seeking environmental justice. If the members are subject to executive control in the manner done recently, it will not be long before even the NGT as an institution will be on a permanent ‘mute setting’.

Ritwick Dutta

Ritwick Dutta is an environmental lawyer and practices before the National Green Tribunal