This govt cares two hoots for the environment

The government’s amendment of the Finance Bill and neglect of National Green Tribunal are tell-tale signs

Photo by Mahendra Pandey
Photo by Mahendra Pandey

Mahendra Pandey

The chairperson of National Green Tribunal (NGT) retired yesterday (December 19, 2017), but the government is yet to announce his successor. A few months back, the Union Government amended the Finance Bill to give safe passages to its own people as experts and legal members in several tribunals and authorities, including the NGT. These two examples are enough to display where the NGT and environment as a whole stand in the order of priority for the Centre.

After the formation of NGT in 2010, it has become a role model for several other countries and United Nations Environment Programme (UNEP) has acclaimed its effort in safeguarding the environment in the country.

As per UNEP’s document published in 2016, “Environmental Courts and Tribunals – A guide for Policy Makers”, the National Green Tribunal (NGT), created in 2010, incorporates a number of best practices. It is independent of the Ministry of the Environment and is supervised by the Ministry of Law and Justice, giving it formal independence from the agency whose actions it reviews. The NGT has the powers and features of a civil court, including the power to summons, conduct discovery, receive evidence, requisition public records, sanction for contempt and issue cost orders, interim orders and injunctions.

Photo courtesy: Twitter
Photo courtesy: Twitter
NGT Chairman Swatantra Kumar retired on Tuesday

Its jurisdiction is limited to seven major environmental laws, and, typical of environmental tribunals, it does not have criminal jurisdiction. It has the power to regulate its own procedures (although the Central Government also has some rule-making authority over it). It is not bound by the general courts’ Code of Civil Procedure or Rules of Evidence, but is to apply principles of “natural justice” including sustainable development, precautionary and polluter pays principles.

As a sign of its power position, appeals from it go directly to India’s Supreme Court, not an intervening appeals court. The NGT’s authorising act sets high standards for selection of the Chairperson (requiring a former Supreme Court judge or High Court chief justice), other “Legal Members” (former High Court justices) and “Expert Members” (advanced science-engineering degrees and 15 years of experience, as well as 5 years of environmental specialisation), assuring both legal and science-technical expertise on its bench.

The NGT has become “a major arbiter of some of the most pivotal environmental battles

in India,” including Ganges River pollution, New Delhi air pollution, Wildlife Sanctuaries, waste collection, mining, toxic dumps and dam projects. As the authorising legislation specifically gives the NGT the authority to apply natural law and international environmental laws and principles, many of its decisions have been visionary and innovative. Many believe that The Green Tribunal is now the epicentre of the environmental movement in India. It has become the first and last recourse for people because their local governments are not doing the job of protecting the environment.” Not only does the NGT take on high profile cases against government and industry, it reaches out for cases on its own initiative and is adjudicating huge numbers of cases quickly.

As per UNEP, improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 Agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16 – “to provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Specialised Environmental Courts and Tribunals (ECTs) are now widely viewed as a successful way to accomplish this important goal. The “explosion” in the number of ECTs since 2000 is astounding. Today, there are over 1,200 ECTs in 44 countries at the national or state/provincial level, with some 20 additional countries discussing or planning ECTs. This continuing explosion is being driven by the development of new international and national environmental laws and principles, by recognition of the linkage between human rights and environmental protection, by the threat of climate change, and by public dissatisfaction with the existing general judicial forums.

India’s National Green Tribunal (NGT) Act of 2010 notes that part of the reason for establishing an ECT is that the right to a healthy environment has been construed to be a part of the right to life under article 21 of their Constitution. India’s National Green Tribunal Act also states it is implementing the country’s obligations as a party to the 1972 Stockholm and 1992 Rio Declarations “to provide effective access to judicial and administrative proceedings.”

The All India Lawyers Union has Petitioned the Supreme Court, challenging the provisions of the Finance Act, 2017 which confer “unanalysed and uncontrolled power to the executive” to provide for qualifications and conditions of service of members of various tribunals, especially the National Green Tribunal. It challenges Sections 182 to 185 of the Finance Act, 2017 and the Rules framed under Section 184, referred to as the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017. These provisions enable the executive, rather than Parliament to decide the qualification, appointment, terms of office, salaries and allowances, resignation and removal of the Tribunal’s chairperson, judicial member and expert member. The petition submits that Tribunals are Courts of first instance in respect of the law for which they are constituted, and hence, “composition of the Tribunals cannot be replaced by a bunch of personnel, handpicked by the Central Government and are inferior in status and casual in working”. The provisions, it says, are likely to affect the independence of the Tribunals and the quasi-judicial authorities. “This will adversely affect the rule of law, hamper the cause of justice and would de-motivate the pace of realization of constitutional objectives. The Right to clean air, water and environment is part of Right to Life under the Constitution of India. When executive violates these rights, violating the principles of sustainable development and going for plunder of natural resources, the Tribunals should have full-fledged independence in protecting the Rights of the citizens. The impugned amendments would necessarily make inroads into the independence of the Tribunal,” it states.

Photo by Mahendra Pandey
Photo by Mahendra Pandey

The petition goes on to allege that the provisions concerning the NGT have been included “as a reaction of the NGT’s earnest efforts in safeguarding the environment”. It contends in this regard, “It is more pertinent that this move also comes in the wake of the NGT’s drive against incompetent persons holding the posts of chairpersons of State Pollution Control Boards (SPCBs) following its own order in the case of Rajendra Singh Bhandari vs State of Uttarakhand (OA 318 of 2013). Hence the impugned amendments are an attempt by the executive to take the harness of an un-amenable quasi-judicial horse in its control”.

Another petition on similar grounds, filed by Congress MP Jairam Ramesh, is currently pending before the Apex Court. The NGO, Social Action for Forest and Environment, has also moved Supreme Court, challenging the alterations brought by the Finance Act in the National Green Tribunal Act, which, it says, would weaken the functioning of the environment court and curtail its powers. “The impugned Tribunal Rules have severely diluted the minimum qualifications for the appointment of members to the NGT (including the Chairperson and Judicial Members) such that there is a clear and present danger of persons being appointed as the Chairperson/Judicial Members of the NGT, who have no judicial or even legal training and experience, and of persons without significant technical and scientific knowledge being appointed as Expert Members,” the petition contends.

Advocate Gaurav Bansal, a veteran lawyer at NGT says that the NGT has dedicated itself to environmental justice and passed several directions/orders against government agencies and officials and, as a result, has left the government in awkward positions. Some of the decisions of NGT were viewed as environmental activism in environmental circles. Probably this may be the reason why the government is neglecting the NGT and also diluting its powers.

Recently, NGT has ordered Ministry of Environment and Forests to withdraw a notification related to Environmental Clearance (EC) to construction projects. The said notification was about giving powers of granting ECs to local development authorities and scrapping the need of taking NOC from respective Pollution Control Boards. Now the new notification has to be issued after required amendments.

The NGT has spread awareness about environmental issues among the general public. For the past few years, almost all newspapers were deputing a reporter specifically for NGT matters. As a result, everyday we find stories related to environmental problems. Even news channels frequently cover the major orders/judgments of NGT.

It is just surprising that in a country where most deaths occur due to pollution, where the Prime Minister always talks about Swachh Bharat, Namami Gange and Climate Change, and where powerful persons think environmental degradation is their right, institutions like the NGT are being neglected by the Centre itself. It also reveals the government's apathy to solve the environmental problems and also to save millions of lives.

(The writer is an environmentalist.)

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