New Delhi: The recent government order appointing two new expert members to the National Green Tribunal should have been a cause for celebration, but certain provisions put in place have instead raised questions on whether the Centre is trying to impinge on the quasi-judicial body’s independence.
According to an article in Bar & Bench, the Union Ministry of Personnel, Public Grievances and Pension has appointed two serving officers of the Ministry of Environment, Forest and Climate Change to be expert members of the NGT. The problem, however, is in the phrasing of the appointment order.
The two new members have been appointed for a period of three years or until further orders, “whichever comes earlier”. This, however, is different from the guidelines laid out in the NGT Act, 2010, which says, “The Chairperson, Judicial Member and Expert Member of the Tribunal shall hold office as such for a term of five years from the date on which they enter upon their office, but shall not be eligible for re-appointment.”
According to environmental lawyer Ritwick Dutta’s article in Bar & Bench, this new order has serious implications for the NGT. “This simply means that the Expert Members will be members of the Tribunal at the pleasure of the government,” he says, and make the NGT “a body subordinate to the Central government”.
If the government is unhappy with the NGT’s decisions now, he argues, it can simply issue “further orders” and swap out the expert members in question. This is likely to have a chilling effect on the tribunal itself, as “it is unlikely that any strong decisions will come from members whose job is at the mercy of the government”.
According to Dutta, expert members appointed in 2016 and 2018 were not subject to these rules – their appointments followed the guidelines laid out in the NGT Act.
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All four current expert members of the NGT, Dutta has pointed out, are from the Indian Forest Service. The two new members – Siddhanta Das, director general of forest, and Saibal Dasgupta, additional director general of forests (forest conservation) – may now hear appeals to decisions they made, as part of the Forest Advisory Committee which recommends the diversion of forest land for non-forest purposes.
The author has also talked about how no domain experts are included in the NGT, even though the Centre has talking about the importance of people with specific know-how being involved in policy-making. Dutta writes:
“When the NGT was set up in 2011, the majority of Expert Members were non-bureaucrats – environmental scientists and professors. Given their expertise in their respective subjects, they were able to take decisions, which were rarely overruled by the Supreme Court.
However, since 2014, only officers belonging to the Indian Forest Service have been appointed. This has had and will have serious ramifications on the quality of judgments. The mandate of the NGT extends to issues concerning air, water, noise pollution, hazardous substances, and a range of environmental issues. It is not limited to forests.”
The previous Narendra Modi government, too, meant tough days for the NGT. In September 2018, The Wire reported that nearly 70% of the seats at the Tribunal were lying vacant. Though ministers had previously said they wanted to take the NGT more seriously that UPA-II had done, their actions did not match their words. The four regional NGT benches in Chennai, Bhopal, Pune and Kolkata are all currently defunct.
Also read: Nearly a Decade Old, Is the National Green Tribunal Losing its Bite?
The appointment of NGT’s current chairman, Justice Adarsh Goel, was also seen as controversial. Goel was made NGT chairman within a few hours of his retirement from the Supreme Court. This was ironic because before that, the Supreme Court itself had said in a note that “…the tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the government (is) itself a litigant and the appointing authority at the same time. There should be restriction on acceptance of any employment after retirement”.
Goel’s appointment was also protested by Dalits, who said the retired judge was being “rewarded” for diluting the SC/ST (Prevention of Atrocities) Act. The Congress party too lashed out at the government over the appointment.
Armin Rosencranz and Mitakshara Goyal wrote in The Wire that just in the first three months of his tenure, Justice Goel had managed to ensure that people’s faith in the NGT had waned:
“While Goel has seemed impatient with industrial offenders and environmental polluters, he has also said that about half of all petitions before the tribunal had been filed by “blackmailers”.
…Rajeev Suri, an environmental activist who represents himself before the NGT, wrote that almost as a result of the “blackmailers” sentiment, “despondency has come to pervade the portals of Faridkot House, the home of the National Green Tribunal. … Once abuzz with activity by seekers of environmental justice, the tribunal now wears a forlorn look, its earlier vibrancy no longer visible.”
Goel has been quick to dismiss existing cases, not infrequently on very technical points and/or on merit, treat the government’s word as the last word and rehear cases that had already been heard and decisions on which had been reserved. He has also displayed a preference for palming off monitoring responsibilities to committees, which further delay cases even as environmental degradation continues on ground.”
With the new appointment orders, those wary of the NGT’s decision-making are likely to have more questions in the days ahead.