Turning a decade-old, NGT faces some tough questions

The National Green Tribunal, the world’s only dedicated environmental court, came into being exactly 10 years ago, on October 18, 2010. In its decade of existence, the NGT has delivered some seminal judgments and has given environmental jurisprudence a leg-up. Today, however, the tribunal faces more wagging fingers than it receives pats on the back.

Since it began operations in July 2011 and till May this year, the NGT has heard 32,626 cases, of which 29,760 have been disposed off — which, at least on the surface, is a heartening record.

Some of its judgments are memorable. For example, in the

Almitra H Patel Vs Union of India case, it directed states to implement Solid Waste Management Rules and prohibited open burning of waste on lands. It suspended the clearance given to the South Korean steel maker, POSCO, to set up a 12 million-tonne steel plant in Odisha. Hearing the Save Mon Federation Vs Union of India case, the NGT suspended a ₹6,400-crore hydro project, to save the habitat of a bird. A December 2016 amendment to EIA 2006 notification — the amendments basically sought to give local authorities powers to grant environmental clearance to builders — was thrown out of the window as a “ploy” (by the government) to circumvent the 2006 rules. Projects which were approved in violation of the law such as an Aranmula Airport, Kerala; Lower Demwe Hydro Power Project and Nyamnjangu in Arunachal Pradesh; mining projects in in Goa; and coal mining projects in Chaittisgarh were either cancelled or fresh assessments were directed.

Many lawyers and insiders that

BusinessLine spoke to believe that until the NGT became a force (many credit Justice Swatanter Kumar, NGT’s Chairperson in 2012-2017 for this), environment laws were mostly followed in breach. Prof Geetanjoy Sahu of the Tata Institute of Social Studies notes in a paper in the Journal of Indian Environmental Law that outcomes of the Tehri Dam, Narmada Dam cases, and the construction of a thermal power plant at Dahanu, the Akshardham Temple and Commonwealth Games Village show the “hands-off approach” of the Supreme Court, which adopted a stance of “non-interference” on the premise that the issues involve scientific and technical matters that can be addressed only by experts.

The NGT, on the other hand, has employed legal and scientific methods and assessed environment impact assessment reports before deciding, Sahu observes.

Losing bite?

Today, the NGT and the government are under fire. Jairam Ramesh, who brought in the tribunal, says that the government has been trying to “emasculate” the NGT.

“The NGT of today is a mere shadow of what it was a few years back,” says lawyer Ritwick Dutta. “Since 2018, the NGT dismissed all except three appeals filed before it, most of them on procedural grounds, he told BusinessLine . The NGT has refused to question the wisdom of the executive in grant of Environment and Forest Clearances, he notes.

Dutta also points to a recent trend of the NGT taking suo motto cognizance of cases based on news reports, which, he says denies the local people the right to intervene or file applications. “The case proceeds based on the 'wisdom' of the NGT members,” he says. He gives the examples of the case of Sambhar lake, LG Polymers and the NLC blast. “When the case goes to the Supreme Court, there is no one to defend the order of the NGT. It is an irony that the tribunal set up to protect the citizens right to clean environment denies the public to participate in the hearing.”

NGT only has three judicial and three expert members against the sanctioned strength of 10 each. Many see the vacant posts as a sign of government’s non-seriousness. Pinaki Misra, lawyer and Member of the Parliament (LS), of the Biju Janata Dal party, feels that the government “seems to be in no hurry to fill up vacant posts; it suits the government to have a weakened regulator.” Prof R Nagendran, a former Expert Member of NGT, says that NGT is an institution the country should be proud of and not to be seen as an “obstacle to development”.

Technical work outsourced

Also, while Justice Swatanter Kumar demitted office on December 19, 2017, his successor, Justice A K Goel was appointed only on July 6, 2018, a day after he retired from Supreme Court, gving an impression that the government had kept the key post vacant for him.

The other point is, all three expert members are from the Indian Forest Service. Much technical work is outsourced.

Further, some lawyers say that the “disposing off” of cases these days is more in terms of directing the department concerned to “look into the matter and take appropriate action.” In the Mopa airport case, the Supreme Court was critical of the manner in which the NGT dismissed the appeal through a one-para judgment, points out Ritwick Dutta.

Experts like Prof Sahu observe that often NGT’s directions are not implemented and the tribunal has no powers to follow-up, nor is there a mechanism for it to re-work its orders if found infeasible to implement.

Nagendran says that an amendment to the NGT Act to give the tribunal powers to follow-up its directions is “overdue”.