A Tribunal in Trouble?

Dr. Sairam Bhat, Professor of Law & Coordinator of CEERA

Lianne D’Souza, Research Fellow, CEERA, NLSIU

The year 2011 marked the beginning of a truly historic era for environmental litigation in India as for the first time a quasi-judicial body, with a much wider mandate than that of its predecessors, was created to exclusively handle environment related matters. The National Green Tribunal (NGT), was established under the mandate of the National Green Tribunal Act, 2010 (NGT Act), as “a specialized fast-track body equipped with the necessary expertise to handle environmental disputes, especially those that were only ‘civil’, involving multi-disciplinary issues in an effective and expeditious manner.”[1] The NGT  was thus constituted as a judicial saviour that would revive the momentum for environmental litigation and environmental justice in India. Ten years into the NGT Act, much to its credit, the NGT has demonstrated tremendous efforts to espouse the causes for which it was instituted. However, during the recent past, it cannot be denied that several impediments have stood in the way of its effective functioning. Is the green tribunal in trouble? The answer to the same is partially in the affirmative.

Judicial and Administrative Fallacies

To many, it may come as a surprise that some of the shortcomings that wrought the NGT may be credited to its own making. The order of the Tribunal in the LG Polymers case, for instance, indicates the inadequate quality of decision making, wherein the Tribunal found the erring company responsible for the environmental damage and consequential loss resulting from the devastating gas leak under both principles of strict and absolute liability.[2] This finding resonates a certain flaw considering the obsolete nature of the doctrine of strict liability in devastations having dire consequences for the environment and health . As laid down in the landmark judgement of M.C. Mehta v. Union of India, situations that involve hazardous and inherently dangerous activities automatically warrant the application of the principle of ‘absolute liability’[3]; for which reason, the very fact that the NGT even considered the doctrine of strict liability in this case calls for serious introspection by the Tribunal. A green tribunal in India, is expected, not only to cherish Indian judiciary’s remarkable contribution of the absolute liability principle to environmental jurisprudence, but also to significantly contribute towards its application to industrial accidents which have resulted in loss of life and damages to the environment.

However, the tribunal seems to be suffering on another account. During its ten years of functioning, the NGT, despite much criticism, is supporting the growing trend of disposing of cases by setting up Committees, which assist the tribunal.[4] In light of the time-bound scheme envisioned by the Act,[5] it would be most appropriate for the Tribunal to expedite cases by disposing them within a strict time frame. Given that the NGT being an expert body itself, the shift of the burden to another expert body or committee, to address the pending case load emphatically dilutes the functions and prominence of the NGT.

Besides this, certain administrative issues also plague the system. For instance, ministerial attempts to transfer cases[6] on arbitrary grounds have made it harder for litigants to knock on the doors of the Tribunal. The case of The Goa Foundation and Ors. v. Ministry of Environment, Forest and Climate Change and Ors., where the Bombay High Court struck down a Central Government Notification that had transferred Goa’s environment related cases from Pune to Delhi on spurious grounds, is one such striking example [7]

Similarly, the persistent problems of shortage of manpower, limited number of benches together with staggering number of vacancies by and large stand in the way of expediting the hearing and disposal of cases. As the NGT is the sole adjudicatory body exclusively vested with powers to settle environmental disputes, it is only prudent and reasonably expectable that it be easily accessible to the masses. Accessibility, here, not being limited to financial and procedural convenience but also being construed in terms of territorial or geographical reach, because as the Supreme Court has observed, “the denial of access to justice also takes place when a litigant has to spend too much money, time and effort to approach the adjudicating authority to get justice.”[8] Interestingly, the organisational structure of the NGT demonstrates that it was proposed to be set up with five places of sitting i.e. the Principal Bench at Delhi along with 4 Zonal benches at Chennai, Pune, Kolkata and Bhopal and 4 Circuit Benches.[9]  Unfortunately, due to lack of regular appointments and shortage of personnel, the zonal benches have been rendered virtually non-functional with no regular hearings taking place.[10]

In addition to these structural inadequacies, the picture grows grimmer considering the alarming number of vacancies in the existing benches. The issue of vacancies is not a new one. Indolence towards capacity building has time and again hindered the overall performance of judicial and quasi-judicial institutions. This being stated, the state of affairs in the NGT is rather ‘appalling’ as even the Apex Court has displayed serious concern for this predicament.[11] Despite the Act expressly mandating a minimum of 10 full time judicial members and expert members,[12] the number of vacancies were seven and six respectively.[13] In light of this, the dismay of the Apex Court is unsurprising as the NGT, for a substantial time, has been functioning at less than half of its required capacity. Recently, the Supreme Court has taken proactive measures to meet this dire situation by ordering to expedite the selection process of members to the NGT.[14]

Clipping the ‘wings’: Defining the Jurisdictional scope of the NGT

If structural inadequacies are not concerning enough, Constitutional Courts have also brought to the fore serious limitations of the NGT. As the NGT is a specialized tribunal empowered to deliberate upon a specific category of matters, it would be correct to deduce that its scope is inherently limited by the NGT Act 2010. Furthermore, the fact that orders from the NGT are directly appealable to the Supreme Court,[15] the NGT is placed on the same footing as that of the High Courts, albeit with the exception of writ jurisdiction.

Interestingly, despite the functioning of the NGT on all ‘environmental matters’, various High Courts have freely invoked their inherent powers under their plenary jurisdiction[16] and are disposing matters without referring the same to NGT. This position of High Courts entertaining environmental matters under their power is not entirely, inappropriate. However, this only encourages litigants to file claim before the Writ court’s, whose remedies are more efficacious than that of the NGT. The High Courts, thus are subverting the expertise of what would have been a more competent forum. Such far-reaching powers of the High Courts, besides transgressing into the domain of specialised tribunals, also tend to undermine the authority of tribunals.  As a matter of law, constitutional courts are inherently vested with the power of judicial review, that cannot be abridged or excluded by a statute.[17] This being stated, this power must be used sparingly so as to give full effect to the legislative intent with which special tribunals are established.

Jurisdictional Limitations and the NGT

The functioning of the NGT has also been marred by jurisdictional limitations. Since the highly embraced ‘green court’ is a creature of a statute, it derives its powers from its parent statute; more specifically, from the provisions that constitute Chapter III of the NGT Act. The general and presumably circumscribed jurisdiction of NGT is particularly rooted in Section 14 of the Act which empowers the Tribunal to entertain all civil cases which fulfil the twin pre-requisites mentioned thereunder, i.e. the case must involve a substantial question relating to the environment and  such questions must pertain to the implementation of the specific enactments listed in Schedule I of the Act.[18]

Interestingly, situations have arisen where the limited jurisdiction of the NGT has further been restricted based on technical anomalies. Take the instance of Techi Tagi Tara v. Rajendra Singh Bhandari case. The Court grappled with the issue of whether the NGT was empowered to pass directions and issue guidelines with respect to the appointment of qualified personnel in the State Pollution Control Boards.[19] Negating the proposition, the Court held that the jurisdiction of the NGT is only limited to matters involving “a substantial question relating to the environment that must arise in a dispute and such question does not amount to an academic question.” It further noted that in such cases, it is imperative to have “a claimant raising that dispute which was capable of settlement by the NGT by the grant of some relief which could be in the nature of compensation or restitution of property damaged or restitution of the environment and any other incidental or ancillary relief connected therewith.”[20]

Similarly, in the case of Mantri Techzone Pvt. Ltd. vs. Forward Foundation and Ors, the Supreme Court has analysed the question on the right of appeal under Section 22 of the NGT Act and the scope of enquiry in such an appeal. The Court has noted that Section 22 of the NGT Act affords the right of appeal to a party aggrieved by an order of the NGT on the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (CPC). Section 100 of the CPC entails that an appeal can be filed only where a substantial question of law is involved. The determination of whether a question of law is ‘substantial’ or not would, in turn, necessitate an examination of its public importance, effect on rights of the parties, and the settled legal position in relation to such a question.[21]

The Supreme Court has also discussed its scope of enquiry in an appeal under Section 22 of the NGT Act. It has observed that the right to appeal granted under this provision does not ipso facto permit a party to seek re-appreciation of the factual matrix of the entire matter or the evidence therein, nor does it allow a party to re-argue its case in such an appeal. Thus, the Supreme Court has clarified that an appeal under Section 22 of the NGT Act cannot be treated as a matter of right unless it involves a substantial question of law.[22]

Scope of Review

Similar blows to the functioning of the NGT are evident in the limitations placed on its power of ‘judicial review’ for a tribunal. In the case of Central India AYUSH Drugs Manufacturers Association and Ors. vs. State of Maharashtra and Ors., the Bombay High Court held that the NGT is not empowered to  determine the question of vires of an enactment or rules framed thereunder, in respect of which it has powers to adjudicate.[23] The Court relied on precedents[24] to state “Parliament’s intention to limit the power to decide certain specified nature of disputes is apparent. The scheme of N.G.T. Act does not permit National Green Tribunal to decide upon the vires of any of the enactments which confer appellate or other jurisdiction upon it nor empowers it to examine validity of any Rules or Regulations made under these enactments.”[25]

Further, in the case of Tamil Nadu Pollution Control Board v. Sterlite Industries ltd and ors., the Supreme Court has strictly construed that the appellate jurisdiction of the NGT excludes the power of the Tribunal from entertaining matters not expressly provided under Section 16 of the Act.[26] In the instant case, the Supreme Court has vehemently laid down that “if an Appellate Authority under Air Act, 1981 or the Water Act, 1974, is either not yet constituted, or not properly constituted, ‘a leapfrog appeal’ to the NGT cannot be countenanced.”[27] Rather, the permissible remedy against the original order would lie before the first appellate authority. Significantly, the Courts went on to hold that any order passed under Sec. 18 of the Water Act cannot be appealed before the NGT. This view of the court clearly narrows down the scope of the NGT to decide ‘all’ matter related to environment.

Out of ‘trouble’:

The idea of a special court to cater to environmental concerns in the country is undoubtedly a laudable one. But as far as the powers and functions of the NGT are concerned, there is no denying that the NGT is heavily weighed down by many impediments. Over and above the administrative lacunae, legal constraints also curb the efficient functioning of the Tribunal. It seems that just when the NGT has prepared to soar, its wings have been clipped. To address this predicament, first and foremost, it is incumbent on the responsible authorities to take active capacity building measures. Ensuring quality and integrity in appointments to the NGT, is the key to its success, this will not only expedite hearing and disposal of cases but will also realise the idea of environmental justice in its true sense.

[1] About the NGT, Available at https://greentribunal.gov.in/about-us, (accessed on 24.08.20)

[2] See, LG Polymers India and Ors. vs. Union of India and Ors. (01.06.2020 – NGT) : MANU/GT/0200/2020 ¶28, 29, 34.

[3] 1987 SCR (1) 819.

[4]NGT’s New Approach to Pending Cases Raises Eyebrows, available at https://www.thehindu.com/news/cities/Delhi/ngts-new-approach-to-pending-cases-raises-eyebrows/article24787684.ece (last accessed on 28.08.20)

[5] See Rule 18(3), NGT (Practice and Procedure) Rules, 2011. Rule 18(3) – Every application or appeal shall be heard and decided finally, as far as possible within six months from the date of filing an application or appeal, as the case may be.

[6] See Section 4(3), NGT Act, 2010.

[7] 2018 (1) BomCR 232.

[8] Rojer Mathew vs. South Indian Bank Ltd. and Ors. (13.11.2019 – SC): MANU/SC/1563/2019

[9] Id.

[10] See observation of the Supreme Court in Rojer Mathew vs. South Indian Bank Ltd. and Ors. (13.11.2019 – SC) : MANU/SC/1563/2019, para 381.

[11] NGT Bar Association (Western Zone) vs. Union of India and Ors. (23.07.2020 – SC Order): MANU/SCOR/33625/2020

[12] Section 4, NGT Act, 2010.

[13] Ngt Bar Association (western Zone) vs. Union of India and Ors. (14.08.2020 – SC Order) MANU/SCOR/35233/2020

[14] Ngt Bar Association (western Zone) vs. Union of India and Ors. (14.08.2020 – SC Order) MANU/SCOR/35233/2020

[15] Section 22, NGT Act. 2010.

[16] 2015 (6) ABR 524.

[17] L. Chandra Kumar vs. Union of India and others, ( 1997 ) SCC(LS) 577.

[18] Section 14, the NGT Act, 2010; Schedule 1 specifies an exclusive list of 7 statutes in relation to the implementation of which, the NGT shall exercise its jurisdiction

[19] (2018) 11 SCC 734.

[20] Id.

[21] Mantri Techzone Pvt. Ltd. vs. Forward Foundation and Ors, 2019(4) SCALE 218 ¶37.

[22] Mantri Techzone Pvt. Ltd. vs. Forward Foundation and Ors, 2019(4) SCALE 218 ¶38.

[23] AIR 2016 Bom 261.

[24] Alpha Chem and another v. State of U.P. and Ors, 1991 Supp (1) SCC 518, where the SC held that “the challenge to constitutionality of a statute is maintainable under Article 226 or Article 32 of the Constitution of India and it is not open in proceedings before authorities constituted under a statute itself or even in appeal or revision before the High Court from such proceedings”

[25] Central India AYUSH Drugs Manufacturers Association and Ors. vs. State of Maharashtra and Ors.,  AIR 2016 Bom 261

[26] See Section 16, NGT Act, 2010. Section 16 provided for the appellate jurisdiction of the NGT.

[27] Tamil Nadu Pollution Control Board v. Sterlite Industries ltd and or., AIR 2019 SC 1074. ¶ 45.

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