India’s most touted green body, the National Green Tribunal, which was formed in 2010 to resolve environmental conflicts and provide justice, is facing a serious threat to its autonomy. The Narendra Modi-led BJP government is tightening its grip over the tribunal by taking control of its executive functioning.
Currently, the Tribunal has been rendered toothless as its four regional benches in Chennai, Bhopal, Pune and Kolkata are non-functional. Moreover, as against a minimum strength of 10 judicial members and 10 expert members, currently, the tribunal has only four judicial members and two expert members. This is despite the National Green Tribunal Act, which created the NGT in 2010, stipulating that the tribunal must have, at any given time, between 10 and 20 full-time judicial members, and between 10 and 20 full-time expert members, “as the Central government may, from time to time, notify.” To improve its reach in remote areas, on paper the NGT has four regional benches – in Bhopal, Chennai, Kolkata and Pune, as well as four circuit benches – in Shimla, Shillong, Jodhpur and Kochi. For a bench to function, it needs at least one dedicated judicial member and an expert member.
In its latest move, the Ministry of Personnel, Public Grievances and Pension 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 (MoEFCC) as expert members of the NGT. 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).
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Since 2014, only officers belonging to the Indian Forest Service have been appointed. Many have held that this had repercussions on the quality of judgments, as the mandate of the NGT extends to issues concerning air, water, noise pollution, hazardous substances, and a range of environmental issues and is not limited to forests. One of the lawyers holding this view is Ritwik Dutta, practising under the Tribunal. Dutta in an article also flagged problems with the phrasing of the recent appointments.
The two new members have been appointed for a period of three years or until further orders, “whichever comes earlier”. This, however, is different from the guidelines laid out in the NGT Act, 2010, which says, “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.” Dutta states that, “This simply means that the expert members will be members of the Tribunal at the pleasure of the government,” making the NGT “a body subordinate to the central government”. Essentially, with the new appointments, the government at its convenience can swap out expert members in question, which could further mean a degradation in the quality of judgements as the members will now be at the “mercy” of the government.
Additionally, no domain experts are included in the NGT, even though the Centre has been talking about the importance of people with specific know-how being involved in policy-making. Dutta adds, “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.”
Talking of the weakening of the tribunal, Kanchi Kohli, senior researcher on environmental justice said, “The NGT is now a very different institution from what was earlier discussed in Parliament and how the tribunal functioned in the first 5-7 years. A robust and independent green tribunal is a sign of a functional democracy. While environmental conflicts should ideally not arise or need to be litigated; it does not take away the need for a strong adjudication mechanism.”
Environmental lawyer Rahul Choudhary added, “The main concern with the functioning of the tribunal is the lack of appointments. Now, only the principal bench is operating, and there is no regional bench. This will effectively reduce easy access to environmental justice across the country. Now, everything is scaled back to the principal bench, but the idea was to provide access throughout. For example, people from the North-east have to come to Kolkata to get their appeals looked at. This, in my view, takes the tribunal and its processes three steps backward.”
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During the first of the Modi government, its did not show any urgency in appointing new members. Four of the five NGT Benches in Pune, Bhopal, Kolkata and Chennai have ceased to function for want of members. In August 2017, the NGT had only eight judicial members, including its chairperson, and just six expert members. When an advocate alerted the Delhi High Court about the shortage, it asked the central government, “Would you like to wind up the National Green Tribunal?.” When the NGT’s chairperson stepped down in December 2017, the tribunal was left headless. The NGT Bar Association petitioned the Supreme Court for a remedy, and after the top court’s intervention, the government appointed an acting chairperson in March 2018. However, it was only in July 2019 that AK Goel stepped as a chairperson. These delays further impacted the processes of the tribunal by slowing it down.
With the delays, the cases with the tribunal are piling up. Additionally, the functioning of the principal bench through video conferencing has led to the cases limping along. As these cases pile up, the environment minister, Prakash Javadekar, announced recently that environment clearances will be processed in no more than 80 days, down from an already sped-up 108 days. The NDA has been trying to curtail the NGT’s powers from its first tenure onwards. It set up the TSR Subramanian committee to review the country’s environment laws in 2014, which recommended dilution of the tribunal’s powers. Additionally, the Modi government had also merged eight autonomous tribunals with other tribunals, and also gave itself the power to appoint and remove members in another 17 such bodies.