[Commentary] Nearly a decade old, is the National Green Tribunal losing its bite?

The genesis of the National Green Tribunal (NGT, for short) is itself what makes it different from the other Tribunals in the country. It was established under the weight of a constitutional mandate to implement the international obligations undertaken by India at the United Nations Conference on Environment and Development at Rio de Janeiro in 1992.

The National Green Tribunal was established in 2010 and is considered an outstanding example of an environmental court, functioning in the backdrop of a constitutional safeguard provided to the right to healthy environment as a fundamental right to life of all citizens enshrined under Article 21 of the Constitution of India. But as we approach nearly a decade since its inception, the looming question remains – has the NGT truly been a champion for the environment?

As a creature of statute, the NGT derives its jurisdiction and powers squarely from the National Green Tribunal Act, 2010, and is permitted to operate within the confines of the Act only. Of late though, there are winds of change blowing through the Tribunal, with the NGT adopting a new 4-D approach to dealing with cases – ‘dismiss, dispose, delegate and de-reserve’, which appears to be a hugely regressive step taken in the fight for environmental justice.

By outright dismissal of petitions filed in the NGT, the current Chairperson had declared that no notices would be issued, and only cases which have an “important question relating to environment and ecology” shall be dealt with by the Tribunal. What is pertinent here is that while the NGT Act always envisaged the Tribunal to only deal with ‘substantial questions relating to the environment’, the method of dismissing cases in the first instance without providing due reasons seems to be a new stand taken by the NGT, curbing the right to access environmental justice. Even in cases where the final decision is to dismiss the matter, it is a settled principle that there cannot be prima facie non-application of mind and that such decision must reflect consideration of the issues on merit.

Dismissals notwithstanding, since July 2018, the Tribunal has in addition, disposed of over 700 cases, all at different stages of hearing, with largely generic orders directing the concerned authorities “to look into the matter and take appropriate action in accordance with law”. By merely re-emphasising the mandate and re-directing all cases to the executive authorities, who are themselves defaulters in most cases, this practice seems to undermine the very purpose of establishing the Tribunal.

Excessive delegation to committees

More commonly though, the NGT has constituted numerous external committees to look into various aspects of cases, to oversee and monitor the compliance of different environmental laws and rules, and to submit a report thereafter. There are more than 90 committees set up at present, of which nearly 37 committees are being headed by retired Judges of the Supreme Court or of various High Courts, including even committees headed by former members of the Tribunal itself.

This method of delegating all of its essential powers and functions to external committees, with similar structure and composition as the Tribunal, gives the impression that the NGT is abrogating its own jurisdiction on cases pertaining to environmental protection. The higher courts of the country have long decried the practice of Tribunals delegating their vital role to executive authorities for their examination on merits, and thus, such excessive delegation by the NGT needs to be checked.

Moreover, the ‘committee-raj’ taking over the Tribunal also poses an undue burden on taxpayers’ money, which is now being utilised towards payments made to the committee members. Such misuse of public money could be avoided and instead the money could be used for improving and restoring the environment. Further, the NGT at present, has also passed orders to re-hear 18 cases that had already been heard and reserved for judgment previously by different benches of the Tribunal, without providing any valid reasons for such an unprecedented move.

Be that as it may, it is clear that the NGT is undertaking a paradigm shift to change the way that it is perceived as the environmental watchdog of the country. Of late, the Tribunal has shown a heavy preference towards taking suo-motu cognizance of issues originating from newspapers, letters and emails and admitting them as ‘petitions’.

Between July 2018 to January 2019, the NGT received 1,691 letters/e-mails highlighting diverse environmental issues, of which 321 had been admitted as petitions, where authorities were directed to take appropriate action. Recently, the Tribunal has also clamped down heavily on polluters, both industries and State Governments, by imposing hefty fines under the polluter pays principle. In the past four months alone, the NGT has ordered for nearly Rs 800 crores to be paid as penalties for various violations, to be used towards environmental restoration.

While this bold move is aimed to act as a deterrent for polluters, neither corporates nor governments seem inclined to pay these damages, and instead opt to challenge the orders of the NGT before the Supreme Court, which results in prolonged litigation, leaving the environment to be the real sufferer. On-ground implementation of the orders of the Tribunal proves to be a continued hindrance towards achieving environmental protection, and needs to be addressed at the earliest.

Moving from a judicial forum to an oversight body?

By shutting down the redressal mechanism through court-room argumentation, the NGT seems to have limited its role to merely an oversight body, rather than a judicial forum. This has also contributed to a slow decline in public confidence in the Tribunal.

In the absence of proper hearings, there is no opportunity for petitioners to argue the case before the Judges, place evidence in support and to respond to the claims made by the respondent authorities. Since each environmental case is unique in the issues that it raises, set in the context of its specific facts, there is a greater need for proper adjudication in the presence of judicial and technical members appointed to the Tribunal.

Right from its inception, the NGT has had its fair share of teething troubles and administrative roadblocks, mostly relating to the appointment of members, both technical and judicial, which has led to a subsequent lack of quorum to hear cases. While today regular hearings take place in the Principal Bench of the NGT at Delhi, there are still several posts vacant across the four zonal benches, forcing the principal bench to hear the bulk of these cases via video conferencing. One could postulate that this may be the reason for adopting the method of delegating powers and functions to external committees, to share the load and reduce the pressure put on fewer members of the Tribunal.

In conclusion, it can be seen that a visible lack of political will to make appointments to the Tribunal coupled with a wave of new approaches adopted by the NGT for dealing with environmental cases, raises some serious questions on the functioning of the Tribunal, and its efforts to be a champion for the cause of the environment. Perhaps time will tell. Unfortunately, time is what we cannot spare in this larger fight to save the planet.

[Maya Ramesh is a lawyer practising in the NGT and the Supreme Court. Views expressed are personal.]

Banner image: There are claims for multiple uses for land and natural resources in India. The NGT was created to adjudicate these disputes. Photo by S. Gopikrishna Warrier/Mongabay.