India cannot afford to have a weak tribunal to adjudicate on environmental issues

Unless immediate corrective action is taken, the National Green Tribunal which has till recently served as an institution to provide environmental justice, will increasingly become an institution to perpetuate environmental injustice. If this is to happen, it will be a sad day for both India’s environment and democracy.

India’s environmental jurisprudence has seen considerable development in the last few years. This is largely because of decisions taken by the NGT, which has played a pivotal role in making sure environmental laws are taken seriously. India’s environmental court, which started functioning in 2011, has, over time, become an institution which many countries want to replicate.

But the last few months have seen a massive decline in public confidence in the NGT. The first wake-up call was in July when the new chairperson of the NGT commented that around 50% of the petitions before the tribunal were filed by “blackmailers”. Nothing could be more distressing because this comes from an institution that was created to protect the rights of the people. Recently, the decision of the chairperson of NGT to rehear 18 cases, which were reserved for judgment, has raised concerns about both propriety as well as legality.

The NGT, over the last two months, seems to have evolved four approaches to deal with litigations. First, dispose of existing cases. Second, form committees, comprising mostly people who were responsible for the problem, and outsource even adjudicatory functions. Third, refuse to entertain matters on the ground that the government has approved the project or other hyper-technical grounds. And finally, rehear cases which were earlier reserved for judgment.

One is not expecting the NGT to always give judgments in favour of those who approach it for protecting the environment. Rather, the cause for concern is the general reluctance of the tribunal to hear matters on merit, to consider the decision of the government as virtually sacrosanct and submissions of project proponents as cast in stone. It must not be forgotten that the NGT is not a special tribunal, but a specialised tribunal set up to adjudicate on complex environmental issues through the use of both judicial and technical expertise.

The decision of the tribunal must reflect the consideration of issues on merit, even if the final decision is to dismiss the appeal and application. Unfortunately, a series of orders were passed disposing of or refusing to hear appeals without consideration on the merits. An example is the appeal filed against the second airport in Mopa, Goa, where the locals opposed the project on grounds of social and environmental impact. The project entails the felling of more than 55,000 trees, loss of tiger habitats and destruction of water sources. This appeal was disposed of with directions to construct additional rainwater harvesting structures. Another appeal against a bio-ethanol plant in the No Development Zone of Kaziranga National Park, Assam, was dismissed on the ground that the appellants were a few days late.

Justice Adarsh Goel, on the day of his retirement from the Supreme Court in July, asserted that “if we cannot protect fundamental rights, wind up the Courts”. These words are very much applicable to the tribunals, including the NGT. The objective of the NGT is to protect the legal right to a clean environment, to provide a specialised remedy in the form an appellate forum against faulty decisions of the state, and provide compensation for those affected by environmental harm. At a time when India ranks lowest in the world in terms of environmental quality and more people die in India because of pollution than anywhere else in the world, the country cannot afford to have a weak institution to adjudicate on environmental issues.

The Supreme Court has held in numerous decisions that it is improper and undesirable to expose precious rights like the right of life and liberty to the vagaries of individual whims and fancies. In DTC versus DTC Mazdoor Congress 1991 Supp (1)SCC 600 , Justice PB Sawant wrote: “It is trite to say that individuals are not and do not become wise because they occupy high seats of power..There is only a complacent presumption that those who occupy high post have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it.”

Source: Hindustan Times, 22/09/2018