The Under Secretary in the Ministry of Environment, Forest and Climate Change wrote a curious letter to the National Green Tribunal on 11 December. The official requested the Registrar to furnish an ‘Action Taken Report’, as well as comments and inputs on the recommendation of the Working Group of Ministers on Manufacturing. The Under Secretary’s letter stated that the response must be submitted “positively” by that day itself.
The National Green Tribunal (NGT) response was sought on the specific recommendation: ‘address the dispute resolution and disruption issues for environment related issues and the overarching mandate currently being employed by the NGT’.
It is difficult to ignore the tone and tenor of the communication, given the constitutional scheme of separation of powers between the executive and the judiciary. It is not known whether the NGT has responded to the ‘request’ of the environment ministry. Without doubt, the communication by the ministry is a direct interference in the working of the NGT – if the government has a problem with the decisions of the tribunal, the legal recourse is to either seek a review of the order or file an appeal before a higher court.
Given this development, it is imperative to focus on the section of the Working Group of Ministers on Manufacturing (WGoM)’s report on the functioning of the NGT. The report focuses on two main concerns with respect to the NGT — ‘committees’ and ‘disruptions’.
NGT’s expert committees
The WGoM report points out that in the last 15 to 18 months, the NGT has constituted over 175 committees, and “members of these committees are supposedly outside experts whom NGT deems appropriate, but their appointment is non-standard and opaque. NGT is delegating many powers to such committees, which are reserved for statutory bodies, thus undermining the powers and authority of such statutory bodies”.
Nothing could be further from the truth. The WGoM overlooked the fact that the committees formed by the NGT are essentially composed of government nominees. No independent members, environmentalists, or civil society representatives are appointed in these ‘expert committees’. The standard procedure of the NGT is to appoint nominees of the environment ministry, central or state pollution control board, and government institutes like IIT and NEERI. The WGoM’s conclusion that committee members are ‘outside experts’ is clearly incorrect.
‘Disruptions’ by NGT
The thrust of the report is that the NGT’s direction is harming the manufacturing sector. The most glaring shortcoming of the WGoM’s report is that it concentrates on only one aspect of the NGT’s jurisdiction – its ‘original’ power to adjudicate on any substantial questions related to the environment. What it misses out on is the ‘Appellate’ function of the NGT. The Appellate function involves hearing appeals filed by ‘aggrieved persons’ against the grant of environmental and forest clearances by the central government, including statutory bodies. This is an important power conferred upon the NGT, which empowers the tribunal to undertake a merit review of a government decision in terms of both legality and correctness. After adjudicating on an issue, the NGT can either uphold or quash the decision of the central government. The NGT could be termed as a ‘disrupter’ only if it questioned the approvals granted by the government.
In 2020, the NGT had decided on a total of 34 appeals against the decision of the central government granting environmental clearance. Barring three, it dismissed all appeals. While dismissing some of these appeals, the NGT’s observation clearly suggests that it is not willing to question the decision of the government.
For instance, when a local community member challenged the approval granted by the environment ministry for the Kusmunda coal mine in Chhattisgarh, the NGT dismissed the appeal in July this year on the reasoning that it is not for the tribunal to adjudicate on environmental and ecological issues: “It is for the Government of the nation and not for the Court to decide whether the deposits should be exploited at the cost of ecology and environmental consideration or the industrial requirement should be otherwise satisfied.”
In November, the NGT’s principal bench refused to interfere with the Centre’s decision to grant approval for ship breaking activity using the highly polluting ‘beaching method’ in an area categorised as CRZ -1 in Alang, Gujarat. The NGT said “if this [beaching] method is not to be followed, there will be no ship breaking activity in India, depriving the country of an important business activity and rendering a large labour force ”.
The fact is that a bulk of appeals challenging the government’s environmental clearance are dismissed on the ground of delays, even when the appeals are filed within the prescribed time period. While dismissing an appeal in September against a coal mining project of South Eastern Coalfields Ltd in Chhattisgarh, the NGT clearly stated that greater leverage must be shown to the government in comparison to the affected public: “When State or its instrumentality is a party, and file appeal with some delay, it may deserve some leverage for official hierarchical steps for permission etc.”
NGT unwilling to question govt
These three decisions clearly sum up the approach of the NGT when it comes to questioning the decisions of the government. It is, therefore, surprising that the WGoM has called the action of the NGT a ‘disruption’. Rather, had the WGoM done its homework and gone through the NGT’s judgments, it would have realised that the NGT, as it exists today, is generally unwilling to question the wisdom of the executive; it places primacy on government policy, puts insurmountable hurdles in front of the litigants, and places trust only on government experts.
Perhaps, these are the reasons the Under Secretary in the environment ministry thought that the NGT was just another government department answerable to the ministry for its conduct. It is never too late for the WGoM to realise that it is clean air, water and a balanced ecosystem that will ensure a healthy workforce and optimal supply of raw materials to make India a manufacturing hub — and an effective independent environmental tribunal is key to achieve this goal.
The author is an environmental lawyer and heads the Legal Initiative for Forest and Environment (LIFE). Views are personal.