DEBAYAN ROY 4 November, 2019 11:31 am IST
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New Delhi: The National Green Tribunal (NGT) was set up in 2011 to expedite the resolution of environment-related conflicts, preferably within six months.
But eight years down the line, its four zonal benches at Chennai, Bhopal, Kolkata and Pune have no judges — and they’ve not had any for two years now.
Under the NGT Act 2010, the tribunal is to have a full-time chairperson and up to 20 judicial and expert members each. According to the Act, the tribunal is not supposed to have less than 10 of either. It currently has four judges, including the chair, and as many experts.
Two of the experts were appointed only last month, and they are yet to start working from NGT courts as there has been no gazette notification yet on their appointments.
The NGT claims that it has disposed of around 28,000 of the 31,000 cases — 90 per cent — it received between 2011 and 2019, but lawyers dispute it, saying cases often do not even come up for hearing.
Several advocates practising at the NGT blame the government for the vacancies, and it has also been labelled a bid to weaken the institution — one that is supposed to be at the vanguard of the fight against blind development at the cost of the environment.
Reached for a comment, the NGT didn’t reply to a questionnaire sent by ThePrint. A reply is also awaited from the Ministry of Environment, Forest and Climate Change, which has a key role in appointments to the NGT. This report will be updated when they respond.
Important matters pending for years
Retired Supreme Court Justice Adarsh Kumar Goel is the current NGT chairman. He was appointed to the post in July 2018, after seven months of the NGT functioning without a full-time chair (predecessor Swatanter Kumar’s tenure ended on 19 December 2017).
Justice S.P. Wangdi, Justice Raghuvendra Singh Rathore and Justice K. Ramakrishnan are the current judicial members, while Satyawan Singh Garbyal, Nagin Nanda, Siddhanta Das and Saibal Dasgupta serve as expert members.
The latter two are officers of the Ministry of Environment, Forest and Climate Change, appointed to the NGT just last month. All four expert members are officers of the Indian Forest Service (IFS).
The NGT has a principal bench, headed by the chairperson, and two regular courtrooms in Delhi (north zone), with four other zonal courts in south (Chennai), central (Bhopal), eastern (Kolkata) and western (Pune) India.
Without judges for the past two years, the four zonal benches have been functioning via video conferencing, with the Delhi-based members adjudicating disputes. This causes pendency and deferred hearing dates, say lawyers.
“All the four zonal benches, prior to 2016, used to function from 10.30 am to 4.30 pm. However, with no judges at any of the zonal benches, the video conferencing takes place at best for one to two hours per week, and thus there is a huge rise in pendency,” said Ritwick Dutta, an environmental lawyer practising at the NGT.
Referring to the NGT’s pendency claims, he added, “Cases do not even come up for hearing. These are all fudged numbers.”
Asked about cases pending before the NGT, senior advocate Raj Panjwani listed three major matters that have been going on for years.
These concern the preservation of the Aravalli Hills, illegal sand mining, and the preservation of the Delhi ridge from encroachments. Hearings in the cases, he added, are adjourned even before they are heard by the Delhi bench.
IFS officers the only experts in tribunal
When the NGT was set up in 2011, the focus was to develop the green court in a way that all environmental cases are handled by domain experts.
However, since 2014, only IFS officers have been appointed as experts, although the NGT’s realm extends beyond forests to air, water, noise pollution, hazardous substances, among other environmental issues.
Previous expert members have included academics, namely, Prof P.C. Mishra, who was associated with the Lucknow University and Banaras Hindu University, Prof A.R. Yousuf, then the director in the Centre of Research for Development at the University of Kashmir, and Prof R. Nagendran, who has taught environmental science at St Joseph’s College, Bengaluru, and Goa College of Engineering.
The lack of adequate subject expertise in the green court has also drawn the attention of the Supreme Court.
In Hanuman Laxman Aroskar Versus Union of India, a case where the NGT’s environmental clearance for an international airport at Mopa, Goa, was challenged in the Supreme Court, a bench headed by Justice D.Y. Chandrachud questioned the absence of expert members in the panel.
“The mix of judicial and technical members envisaged by the statute is for the reason that the tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment,” said the court, while overruling the NGT verdict earlier this year.
Last month, the court also took note of the NGT’s non-functional zonal benches.
On 4 October, a bench of Justice N.V. Ramana and Justice Sanjiv Khanna issued notice to the central government on a plea seeking to functionalise the eastern bench, filed by Kolkata-based lawyer Subhas Datta.
The notice was issued after the petitioner’s lawyer R. Venktaraman argued that the lack of fully functional NGT benches was hampering environmental justice.
“NGT benches have been formed but due to lack of appointment, they are barely functional. Petitions are only received in Kolkata and elsewhere in the country,” the lawyer said.
“Cases are heard twice a week for an hour each over video conference,” added senior advocate A.K. Panjwani.
Debadityo Sinha, an environmentalist associated with the Vindhyan Ecology and Natural History Foundation, a not-for-profit trust, blamed the government for the vacancies.
The chairperson of the panel is appointed by the government in consultation with the chief justice of India. The members, judicial and expert, are picked by the government on the recommendation of a selection committee comprising the chair, an IIT director, experts in environmental and forest policy to be nominated by the environment minister, and the environment ministry secretary.
“The sole intention of the government is to destroy the institution. When the zonal benches used to function with a regular bench of one judicial and one expert member, strong verdicts were delivered,” said Sinha.
“One example was the verdict by the Pune NGT bench against real estate developers Goel Ganga, who were fined Rs 195 crore for violating environmental norms,” he added.
Lawyers contacted by ThePrint also stated that the vacancies had led to a practice where matters were adjourned even before they were heard, as, according to Panjwani, “even the judges themselves know it’s humanly impossible to hear so many cases with such few judges”.
“It is hampering the entire administration of environmental justice in the country,” he added.
Terms of appointment create confusion
On 2 September this year, in a bid to address the glaring vacancies, the government announced the appointment of Das and Dasgupta as expert members.
However, the terms of their appointment have left more than a little ambiguity about their tenures.
According to the appointment order, accessed by ThePrint, Das and Gupta would be holding the office for three years from the date of appointment or “until further orders, whichever is earlier”.
This is markedly different from the appointment orders issued for other expert members, which said they would serve the role for five years or until the age of 65, whichever is earlier.
Furthermore, the NGT Act states that the chairperson, and judicial and expert members of the tribunal “shall hold office… for a term of five years from the date on which they enter upon their office”.
The gazette notification website is yet to reflect the new appointments and the ministry reportedly refused to divulge details about them when The Wire filed an RTI reply.
Meanwhile, some environmental law experts have also questioned the appointment of two serving government officials as expert members, pointing out that Das is the director general of forests, and Saibal Dasgupta, the additional director general of forests (forest conservation).
They pointed out that the NGT often hears cases where clearances granted for projects planned in forest areas are challenged and this, they said, could create a problem.
However, senior advocate Panjwani said “conflict of interest” was out of the question.
“NGT rules themselves state that if the members have dealt with a particular matter before, then they ought to recuse themselves,” he added. He also said the aspect of “‘until further orders’ could… mean a future legislation from the central government where the tenure of tribunal judges would be made uniform across all tribunals following the Supreme Court order”.