New Delhi: The Centre was prompt in issuing an ordinance to set-up an exclusive commission to combat rising air pollution in the National Capital Region, but has been dragging its heels on notifying appointments of six expert members and seven judicial members to the existing National Green Tribunal (NGT), a special tribunal that was constituted for expeditious disposal of cases pertaining to environmental disputes.
There are currently six members in the tribunal — three judicial members and three expert members — apart from the chairman, former Supreme Court judge, Justice A.K. Goel.
According to a central government affidavit filed in the first week of October, a Supreme Court judge-led search-cum-selection committee had approved six candidates as expert members on 25 July 2020.
However, the Ministry of Environment and Forest (MoEF), after obtaining inputs, forwarded the list to the Appointment Committee of Cabinet (ACC) only on 4 September for its approval, which is still awaited.
During the last hearing held on 10 October, a bench led by Justice A.M. Khanwilkar had sought to know the status of the selection committee’s recommendations. In accordance with the court order, the matter was to be listed after a week, and is likely to be heard Monday.
Constitution of NGT
Created in 2010 to fast-track hearing of matters related to environment protection and forest conservation, the NGT started with seven benches across the country.
NGT has two jurisdictions, the first is called the ‘original’ jurisdiction of the tribunal. This involves all “substantial questions” related to the environment which affects the community at large and to cases where there is a violation of environmental laws. It also adjudicates on issues of compensation and order for restoration of the environment.
The second is the ‘appellate jurisdiction’ which gives the NGT power to hear appeals against centre as well as state government decisions on forest clearance and environment clearance for infrastructure projects.
The NGT Act contemplates 10 benches in five zones — northern, southern, central, easter and western — with two courts in each zone. Therefore, it mandates appointment of a chairman and 20 members — 10 judicial and 10 expert — who constitute the benches. Each bench must comprise one judicial and one expert member, according to the provisions of the Act.
However, the existing strength at the tribunal is just six, apart from the chairman. The NGT has till date never had full strength, though at one point, it had 11 members.
The staff crunch has left the NGT with only two benches — one in the northern zone, also known as the principal bench in Delhi, headed by NGT chairperson Justice A.K. Goel, and another in the southern zone in Chennai. These two held physical hearings before they were discontinued due to the Covid-19 lockdown.
For the remaining three zones, the NGT began virtual hearings much before the top court and other courts across the country started online proceedings during the pandemic.
According to NGT Bar association, which is the petitioner before the Supreme Court in the vacancy case, the two benches started to hear matters from other zones in the post-lunch session.
Why the delay in appointments
According to the government affidavit, applications for filling up of vacancies of the judicial members were received by the ministry in August this year.
In accordance with the law, the screening committee shortlisted the names on 28 August 2020, and placed it before the selection committee, which approved them on 9 September. Thereafter, it was sent to the Intelligence Bureau (IB) on 16 September for its inputs.
Since the affidavit did not reveal whether the inputs had been received, the court directed IB to expedite its enquiry and complete it within a week.
Legal experts practising environment law said the government was slow at making appointments ever since it modified the rules in 2017 to hire members for tribunals. The amendment gives the government an upper hand in recommending members.
Although the Supreme Court had quashed the rules in 2019, the new ones framed thereafter also came under the top court’s scrutiny.
Noting the quick movement in setting up the exclusive air pollution commission, advocate Ritwick Dutta said the Centre was more prompt in this regard because it will have a complete grip over these members.
“But the tribunal would not be under its control, which they have been trying to do through the amended rules,” Dutta said.
He further argued that the issue is not just about appointments, but also about who is appointed.
Tech to the rescue, but only a band-aid solution
Advocate Raj Panjwani, who represents the NGT Bar before the top court told ThePrint that the process to choose expert members began almost a year ago.
In his affidavit, he pointed out that the advertisement inviting applications was issued on 9 November 2019 and the screening committee shortlisted the names on 6 January 2020.
However, in the absence of a search-cum-selection panel, the names could not be processed further. In February, the environment minister was requested to nominate the selection committee, after which the panel was finally constituted on 4 June this year.
“The panel sent the names on 25 July and they are with the ACC (Appointment Committee of Cabinet) since September. There is no intimation as to what is the status of the recommendation sent by a Supreme Court-led committee,” Panjwani said.
Advocate A.D.N. Rao, who is an amicus curiae in forest-bench cases in the apex court, highlighted the legal scheme that mandates a minimum of 10 members for the tribunal. “The existing strength is even less than what the law requires,” he said.
To tide over these challenges, the NGT made use of technology. It began video-conference hearings for zones that did not have a bench. “Necessity is the mother of all inventions. In NGT’s case, technology helped it overcome the problems that arose on account of vacancies. But this is a short-term arrangement that impacts the quality of decisions by NGT,” Panjwani said.