Lawyer asks NGT judge’s recusal from hearing his case, ‘I’ve complained about his unpunctuality in past’

National Green Tribunal advocate Gaurav Bansal complained about Justice Sudhir Agarwal to NGT chairperson & environment ministry, saying he was unlikely to get justice in the judge's court.

File photo of National Green Tribunal, New Delhi | Manisha Mondal | ThePrint

New Delhi: In a rare instance, an advocate practising in the National Green Tribunal (NGT)’s principal bench has requested a sitting judicial member of the body to not head the bench that will hear his case—accusing the judge of not being punctual to court and citing appointment of his son as amicus curiae (‘friend of the court’) in three cases pending before the tribunal.

Advocate Gaurav Bansal made this request in an application filed last month before a bench headed by Justice Sudhir Agarwal.

Bansal wrote in his application that he was apprehensive his client may not get justice before Justice Agarwal’s bench because of the complaints Bansal made against the judge to NGT chairperson Justice Prakash Shrivastava in May and the Union Ministry of Environment and Forest (MoEF) in June. The MoEF is the appointing authority for the green court.

Bansal’s complaint against Justice Agarwal was that ever since he joined the tribunal as a member, he never adhered to the time schedule mandated by NGT rules to hold court. 

While the morning session begins at 10.30 am, Justice Agarwal, the application claimed, always began his court after 11.15 am, causing “significant inconvenience” not just to litigants but also other members of the bench. 

His objection to Justice Agarwal’s son being appointed as amicus curiae in three cases before the NGT is linked to the green court’s functioning.

He said that the judge’s son, Gaurav Agarwal, is neither a member of the NGT bar nor practices law before the tribunal.

Moreover, the cases in which he was named amicus curiae were earlier heard by Justice Agarwal before they were transferred to another bench whose presiding judge notified the court about Gaurav Agarwal’s appointment as amicus curiae in the cases. 

This “raises a serious concern on the functioning of National Green Tribunal”, Bansal wrote in his application.

The case in which Bansal made his plea is related to the operation of a hospital in Himachal Pradesh. Bansal’s client has claimed that the hospital is running in violation of its master plan and does not have clearance under two laws—The Air Act and The Water Act.

Though Bansal’s client moved the tribunal two years ago, the matter got listed before Justice Agarwal’s court this year, prompting the advocate to move an application requesting the judge to not head the bench. The other member on the bench is environmental scientist Afroz Ahmed, who will serve as the expert member.

According to the law governing NGT’s functioning, the bench that hears cases filed in the tribunal comprises two members—one judicial and one expert. The appointment process for both members is similar. However, their qualifications differ.

A judicial member, according to the law, can be either a retired judge of the high court or a lawyer with a requisite number of years of experience. An expert member is someone who, as a government officer, has dealt with environment-related matters.

Justice Agarwal is a retired judge from the Allahabad High Court and was part of the bench that delivered judgment in the Ram Janmabhoomi-Babri Masjid case in 2010. 

A year after demitting office in April 2020, he was appointed a member of the NGT. Due to his involvement in the Ram Janmabhoomi-Babri Masjid case, Justice Agarwal has been provided with adequate security, including gunmen and a pilot car. Security accompanies him to the tribunal as well.

Bansal argued his application before Justice Agarwal and Ahmed’s bench on 20 August. The bench, which was presided by Justice Agarwal, reserved orders on the application the same day. A formal order to this effect was uploaded on NGT’s website seven days later.

Bansal’s application, a copy of which is with ThePrint, disclosed that the lawyer had written twice to the NGT chairperson, drawing his attention to Justice Agarwal’s non-punctuality as well as his son’s appointment as amicus curiae.

‘Public confidence in impartiality of judiciary’

Gaurav Agarwal was first appointed to assist the court in March 2024 by a bench led by Justice (retd.) Arun Kumar Tyagi in a matter related to rejuvenation and maintenance of ponds and wetlands in Gautam Budh Nagar. The matter was also listed in January before a bench led by Justice Agarwal, Bansal mentioned in his application.

In March, Justice Tyagi’s bench sought Gaurav Agarwal’s assistance in another matter. This case too was earlier heard by Justice Agarwal in January. In April, Justice Tyagi’s court appointed Gaurav Agarwal as amicus curiae for the third time. The appointment was made despite Justice Agarwal’s bench hearing the same case in February and also passing orders on it. 

Bansal mentioned in his application that he highlighted this “potential conflict of interest and importance of maintaining public confidence in the impartiality” of the judiciary in his complaint submitted to the NGT chairperson.

As for Justice Agarwal’s non-adherence to the time schedule, Bansal pointed out that due to his late coming, benches comprising him assembled late.

Many times, he said, even the chairperson had to start his court late as he had no other option but to wait for Justice Agarwal’s arrival. Even the court that was headed by Justice Agarwal never started on time and was often delayed by at least 45 minutes.

Keeping in mind the “disruption” caused by Justice Agarwal’s delayed arrival, Bansal filed a complaint with the NGT chairperson in May, two days after he wrote to the latter about the appointment of Justice Agarwal’s son as amicus curiae.

In June, he wrote to the competent appointing authority regarding Justice Agarwal. 

(Edited by Radifah Kabir)