In a significant judgement, the National Green Tribunal (NGT) has asserted its powers to enforce environmental rights, clarifying that it has “the complete trappings of a civil court” and that its power of judicial review is “implicit and essential for expeditious and effective disposal of the cases”.
In a strong message to those with doubts about its independence, the NGT in a judgment passed on Thursday said, the “Ministry of Environment and Forest (MoEF) is merely an administrative Ministry for the National Green Tribunal to provide for means and finances. Once budget is provided, the Ministry cannot have any interference in the functioning of the National Green Tribunal.”
Environment and Forests Minister Prakash Javadekar better take notice.
These observations by the NGT were made in response to objections raised by respondents in the Vizhinjam International Seaport Project case that the NGT did not have powers of judicial review and that for it to examine the constitutional validity of a legislation (in this case a 2011 notification on coastal zone regulation) “would tantamount to enlarging its own jurisdiction by the Tribunal.”
In its 142-page judgment that drew heavily from Supreme Court judgments on judicial powers of tribunals and on the NGT Act itself, the NGT said, “It will be travesty of justice if it was to be held that the Tribunal does not have the power to examine the correctness or otherwise or constitutional validity of a Notification issued under one of the Scheduled Acts to the NGT Act. In the absence of such power, there cannot be an effective and complete decision on the substantial environmental issues that may be raised before the Tribunal, in exercise of the jurisdiction vested in the Tribunal under the provisions of the Act.”
Leaving no room for doubt about its statutory powers, it added, “The scheme of the NGT Act clearly gives the Tribunal complete independence to discharge its judicial functions, have security of tenure and conditions of service and is possessed of complete capacity associated with Courts.”
This explicit clarification by the NGT that its functions and powers on matters concerning the environment are on par with that of a civil court has been welcomed by environmental lawyers for the message it sends out and also the clarity it has brought on NGT’s powers to review the constitutional validity of a legislation.
“The judgment is progressive in the sense it makes it clear that one can challenge Acts and notifications as well. The NGT is made up of experts and judicial officers and when you are raising issues with respect to environmental legislation, such matters are best served by the NGT,” said Rahul Chaudhary, an environmental lawyer.
Asked whether this would in any way create tension between the NGT and the Ministry of Environment, he said, “I don’t think the government will have any problem. If aggrieved by an order, a party will exercise his right. He will go the NGT or to the High Court. Either way, it will be challenged. The benefit for the aggrieved person in as far as the NGT is concerned is that the redressal will be simpler and also faster. In NGT, you can get a judgment in two years, maximum. In some cases, judgements even come within three months.”
The judgment is also significant, say lawyers, for the message it sends out.
“For a lot of people, the general idea is that if you are going before a tribunal, you are going before a weaker forum. Whereas the law technically makes no distinction… In a way, it gives confidence that NGT is an independent institution not bound by orders of the Environment Ministry, that its members are independently appointed and therefore it is a forum where you get orders uninfluenced by the government.
It was important to send that message. For a large section of the public, a court in the traditional sense has a greater chance of justice, whereas a tribunal is seen as a subordinate body under the control of the ministry. I think this judgment makes it very clear that the ministry only provides the budget. That does not make it subordinate to ministry,” said environment lawyer Ritwick Dutta.