State once again subverts the doctrine of separation of powers: Independence of the National Green Tribunal under threat
On Thursday, June 1, the Department of Revenue, Finance Ministry, notified the Tribunals, Appellate Tribunals and other Authorities of the Qualifications, Experience and other Conditions of Service of Members Rules, 2017.
These rules under Section 184, Finance Act 2017 further empower the Central Government to make regulations for necessary qualifications, appointment, term of office, salary and allowances, resignation, removal and other terms and conditions of service for judges appointed to 19 tribunals functioning in India. The amendments pose an immediate threat to the already restricted independence of the tribunals.
One among these 19 tribunals is The National Green Tribunal (NGT). It is a statutory tribunal that was founded on October 18, 2010 under the National Green Tribunal Act, 2010. The Act defines the role of the NGT as, “to provide for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and to give relief and compensation for damages to persons and property.”
India first felt the need of a separate, environment tribunal in 1984 after the Bhopal Gas Tragedy. It was evident after this incident that there were insufficient checks and balances to protect the environment. The industrial enterprises were taking unfair advantage and exploiting the environment for their own selfish gains. Therefore, the National Green Tribunal was established in 2010.
According to the Act, the NGT has been given the power to regulate its own procedure. It follows principles of natural justice. It has the same power as that of the civil courts in deciding the matters. The saving grace for the environment is that the NGT has a strong order enforcing mechanism. Failure to comply with the orders of NGT may result in imposition of punishment and fine.
The NGT, since its inception, seven years ago, has passed several landmark orders restricting a number of developmental projects which pose a threat to the environment. The question many raise today is, whether this role fulfilment by the NGT the cause of the antagonistic step taken by the State?
The NGT Act, 2010 has specified the procedure for appointment and removal of the Members of the NGT. It consists of a Chairperson who is to be appointed by the Central Government and Chief Justice of India. It also consists of Judicial Members and Expert Members who are to be appointed by the Central Government and the Selection Committee. It is imperative to note at this stage that the composition of the Selection committee has not been defined.
As against this, the Rules, 2017 as notified, clearly define the structure of the Search – cum – Selection Committee. It would include five Members, four of whom will be appointed by the Central Government and one, Chief Justice of India. Contrary to the procedure mentioned in the Act; as per the rules, all the members of the NGT, including the Chairperson are to be appointed by the Search – cum – Selection Committee which would include four representatives of the executive and one member of the judiciary (Chief Justice of India).
Not just the appointment, but the Central Government also governs the removal of the Members of the tribunals. As per the Act of 2010, the Central Government would run a preliminary inquiry in case of misbehaviour or incapacity of the member, as referred to the Supreme Court of India. As against this, the new rules of 2017, enumerate a procedure of setting up an authority of the Central Government without any say of the Chief Justice, for preliminary scrutiny. If the findings are substantial, the Central Government may appoint a committee for the removal of the Member. On the basis of the recommendation of the committee, the Central government shall take the final decision. To illustrate with an example, if somebody files a complaint against a judge of the National Green Tribunal, a preliminary scrutiny of the complaint will be conducted by the Ministry of Environment – a strange set-up, given that it is the job of the tribunal to hold the Ministry of Environment accountable at most times.
To summarise, the new rules passed by the Central Government will appoint as well as remove the members of the tribunals (which was also the case earlier). However the Government has now very subtly introduced certain changes that seem to be in favour of the capitalists. With this, there is a possibility of the Executive exercising influence over the decisions of the judges while passing an order. This, in essence, limits the independence and autonomy of the tribunal in delivering judgements. The orders of the tribunal might be compromised because of the excessive influence and power of the Central government in appointing and removing judges.
A forewarning of the indefensible power and influence of the Executive in the matters of the tribunals had already been given by the Supreme Court in 2010 in the case of Madras Bar Association v. Union of India. The SC had stated,
“…. The selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India …
….In India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned ‘sponsoring department’ sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning.”
Inspite of the prior indications, not much heed has been paid to the growing dominance of the Executive in the functioning of the tribunals. With the advent of selection committies being filled with bureaucrats and nominees of the parent ministry, it has become impossible for tribunals to function independently. The National Green Tribunal is politically sensitive as it deals with cases relating to environmental protection and conservation of natural resources. Recent cases referred to the NGT against development projects of private player and the Government are cited below.
On April 13, 2017, the NGT passed an order against the Tehri Hydro Development Corporation (THDC) and the Uttarakhand Government for dumping muck, stones and soil directly into the Alaknanda river. Fining the corporation Rs 50 lakhs for the pollution on the Polluter Pays Principle, the NGT ordered that all the dumped debris be removed by the THDC within four weeks failing which an additional Rs 25 lakhs will have to be paid up for default.
A precursor to this was the case of Srinagar Bandh Aapda Sangharsh Samiti v. UOI & Alaknanda Hydro Power Co. Ltd, 19th August, 2016, the National Green Tribunal upheld its mandate of Environmental Protection. The NGT directed Alaknanda Hydro Power Co. to pay a compensation of 9.26 crore rupees to the Samiti.
With the repeated efforts of the Green Tribunal, the Alaknanda river is to be restored to its former condition. In order to see light at the end of the tunnel, the NGT has appointed a committee to oversee the process.
Recently after the World Culture Festival , India’s only environment court, the NGT, came down forcefully on the spiritual guru Sri Sri Ravi Shankar, stating, "You have no sense of responsibility. Do you think you have the liberty to say whatever you want?" Last year, in January 2016, Sri Ravi Shankar’s Art of Living Foundation fined Rs 5 crore for damaging Yamuna floodplains. A panel appointed by the National Green Tribunal found that the organisation had harmed the ecology around the banks of the river while making preparations for the World Culture Festival.
In the case of Forward Foundation & Ors. Vs. State of Karnataka & Ors. dated May 7, 2016, the NGT increased the area of buffer zone around the lakes of Bangalore city, limiting presence of industries there. This initially faced an opposition from the Bruhat Bengaluru Mahanagara Palike (BBMP). However, the orders of the NGT prevailed and the BBMP withdrew its opposition.
On May 31, 2016, the NGT issued notices to Union ministry of environment, UP Government and 12 other departments in a fresh case alleging open burning of trash and poor municipal solid waste system in Agra, directing them to file their replies. NGT accepted the matter on the basis of a complaint filed by environmentalist D K Joshi, who also serves on a Supreme Court-appointed monitoring committee tasked with looking into Yamuna and water-related issues.
In yet another path breaking order dated April 7, 2015, in the case of Vardhaman Kaushik Vs. Union of India & Ors. And Sanjay Kulshrestha v. Union of India & Ors., stopped the wheels from rolling in Delhi in order to give new appendages of hope to the environment. The NGT banned diesel vehicles that were older than 10 years from plying on the roads in Delhi. Due to the increasing amount of pollution in the state the NGT was compelled to take such a harsh step. This order of NGT was upheld by the Supreme Court in an appeal. A bench of Chief Justice H L Dattu and Justice Arun Mishra said while dismissing a plea filed by a lawyer seeking to set aside of the decision of the green panel,
“Let us assist them (NGT) and not discourage them,”
The bench further said “The NGT was only repeating the orders passed by Constitutional courts (SC/HCs) in the past.”
This is a clear example of how the highest court and the NGT came together and took a step-in furtherance of protection of the environment. Taking this as a precedent, the Judiciary should continue to support the NGT and other tribunals in the changing scenario.
The NGT made a major impact on September 15, 2015 by ordering the closing of Khajod open dumping site. It was an open dumping site located in Surat which emitted huge amount of smoke and foul smell, heavily polluting the area within the radius of 10 kms from the site and causing health issues in the nearby areas. This was majorly due to the mismanagement of the project. The NGT rightly ordered it to be closed down, thereby protecting the environment from further pollution.
Similarly, the 2014 order of the National Green Tribunal regarding coal blocks in Chhattisgarh forests cancelled the clearance given by the then Union Environment and Forests Minister, Jairam Ramesh, to the Parsa East and Kante-Basan captive coal blocks in the Hasdeo-Arand forests of Chhattisgarh, overruling the statutory Forest Advisory Committee.
The abovementioned cases exhibit the autonomy and powers of the NGT, exercised in order to prevent destruction of the environment. However, this autonomy of the NGT will be curtailed to a great extent with the introduction of the new rules as the judges will not be able to freely exercise their jurisdiction in favour of the environment if the decision stands against the State.
The need of the hour is not to worry but to wake up to the alarming conflict of interest present within the parent ministries and their functioning. If the current trend is allowed to continue it will prevent the tribunals from performing their Statutory mandate of providing impartial and speedy justice. If certain steps are not taken at the earliest, there is a huge possibility that the Executive will adopt a much tougher stance and hand over the power of scrutinising complaints to the parent ministry which will inevitably lead to rampant exploitataion of the environment at the whims of the capitalists.