Dc Readers
Supplementary Study material for classroom program
Dc Readers
10
Classes by Dipin Damodaran and Chandan Mittal
4. National Green Tribunals and issues related to Tribunals in general 1 Introduction -National green tribunal was established under National Green Tribunal Act 2010. - It sits in 5 places - Delhi, Pune, Bhopal, kolkata, Chennai. - All environmental disputes are decided by NGT and appeal from NGT goes directly to supreme court bypassing the high courts as per NGT law. Different high courts have different attitude towards this. The matter is pending before SC for clarification regarding jurisdiction of high courts 2 Special Courts Vs. Tribunals debate A) The law commission recommended setting up of “special courts” to resolve environmental disputes. However the Parliament had set up the tribunal instead of special court. B) The parliament can establish special courts under article 247 of the constitution where as tribunal are made under article 323A & 323B of the constitution. C) Special courts established under article 247 are under the control of the high court where as the tribunals are under the control of the government. The below given points (3) and (4) are in context of National Green Tribunal 3 Effectiveness and Speedy A) NGT has done much better than the lower courts. The cases are disposed at the rate of about 60%. B) NGT is more regular in hearing cases. It tries to dispose of a case in 6 months. Time gap between two consecutive hearings is 2-3 weeks where as in high court there are not more than 3 hearings in a year. C) It has created optimism in society regarding environmental issues. D) Increase number of cases reflects a growing environment crisis in country and growing trust of people in NGT 4 The Other Side A) However, there are still a large number of cases pending before NGT. Reasons - Resources available to NGT are not sufficient and also the number of cases being filed is increasing. All zonal Benches are handled by just one judicial and one expert member. The principal Bench, however, four judicial members, including the chairperson, and six expert members. B) Critics argue that NGT keeps major issues dragging, while hyping up minor ones. It has not issued any orders in major air pollution cases related to power plants or automobile pollution.
has
strong
C) NGT is a body composed of judicial and members with expertise in the field of science and environment. It is so because judicial members were not trained to understand the complexities involved in environmental cases due to the nature of questions often raised in the court of law. Lately, questions have been raised about the soundness of judgements passed by NGT. Critics of NGT argue considered. that because of judicial heavyweights in NGT, views of technical experts are not being D)
NGT’S critics have also questioned the “lack of environmental finesse” of its expert members. Usually, the expert members are experts of one particular field and not of environment as a whole. For instance, an expert member who has been working on forests for many years would not be able to comprehend the issues arising out of industrial pollution.
E)
Okhla Bird Sanctuary, Noida Case. In September 2013, NGT’S principal bench gave an order that stopped all construction within a 10-kilometre (km) radius of the sanctuary because the government had not notified the eco-sensitive zone around it at that time. The order stopped constructions only in Uttar Pradesh, but inexplicably didn’t do so in parts of Delhi which fall within the 10 km radius. Many have criticised the selective and “judicial” nature of judgement.
F)
NGT has been accused of overstepping its jurisdiction and taking actions for which it has not been empowered under the NGT Act.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
this
Supplementary Study material for classroom program
Dc Readers
11
Classes by Dipin Damodaran and Chandan Mittal
Three issues have frequently cropped up. First, does NGT have powers to take cognisance of a matter on its own and take action upon it-the power suomotu. Second, can NGT review and direct change in rules and regulations-the power of judicial review. Third, can NGT take up any case which can be termed as “substantial question of environment”.
of
The NGT Act refers to the scope of NGT’s jurisdiction in Sections 14, 15 and 16. Section 19 states that the tribunal can determine its own procedure and this provision has been used by NGT to include within its ambit issues that the NGT Act does not authorise it to adjudicate upon. 5 Issues related to Tribunals, in general. A) Judges quitting for lack of resources. Three judges of NGT had quit their posts citing lack of resources as the reason. I) At first NGT was operating from a guest house. II) The members were not even given official houses III) Tribunals budgetary allocation was slashed B) Tribunals are administred by the Parent Ministry. For the last two decades, the tribunals get the administrative support and funding from their parent ministry. For instance, Ministry of Finance supports Securities Appellate Tribunal, Debt Recovery Tribunal and Prevention of Money Laundering Tribunal. Thus there is no uniformity of resources and service conditions across tribunals. Such an arrangement give government an undue influence over the operation of tribunals since it could cut off resources to tribunal about to rule against the government. SC in Chandra Kumar case(1997) made it clear that tribunals should not be administred by the parent ministries. SC asked law ministry to take over their functioning so as to ensure the uniformity and independence of these tribunals. Law ministry has reported to the court that individual ministries are reluctant to give up control over tribunals. C) Tribunals are challenged for lack of judicial independence from the government D) ‘Additional courts’ would have come under the jurisdiction of High Courts in most matters. High courts have final are dependent upon say in the appointment and removal of judges in subordinate courts. Where as tribunals government in appointments. This creates conflict of interest in cases where government is party to the case. E) Various Parliamentary standing committees have been reluctant to allow tribunalisation of justice. Standing committee that examined National Tax Tribunals Bill 2004 was doubtful in creation of special tax tribunals. It preferred to fill vacancies in High Courts. F) It is said that bureaucracy favours tribunals because they guarantee a post retirement jobs at tribunals, have later retirement age than government job and which pay higher as well.
which
For instance: Chairperson of the Competition Commission of India gets Rs. 3,75,000 per month and members get Rs. 3,12,500 per month. The idea behind high salaries was to attract private sector talent but the commission remains a plum posting for retired bureaucrats. G) Prior to NGT’s creation, the district civil courts and high courts had jurisdiction over environmental matters. For instance, under Air Act and Water Act the community could at any civil court sue an industry causing been throttled pollution. However, with the creation of only five benches of NGT the access to justice has because no other court can entertain any environmental litigation. For country the size of India, just five benches serve little purpose. At the very least, India needs district level forums. H) Technical expertise: A debated issue It is said that environmental experts represented in tribunals can understand the nature of case more and helps to solve technical problems more efficiently. It is also argued by some that there is no need for experts in the justice delivery system. The function #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
clearly
of
Supplementary Study material for classroom program
Dc Readers
12
Classes by Dipin Damodaran and Chandan Mittal
judges is to get the knowledge of facts, interpret the law and apply the law to the situation. The experts can be taken by the judges whenever required
opinion of
All of this brings us to the question of why India has an NGT in the first place. There is constant talk about environmental litigation being a sort of rocket science and hence the need for expert adjudicators. This is untrue. judges As originally conceived by the Law Commission, environmental courts were to be manned only by qualified in law with a panel of experts meant to assist the court. The Centre’s final version installed these expert members directly on the bench along with a judge qualified in law. Such an arrangement reveals a poor understanding of the fundamental nature of law and litigation. A judge is not meant to get into fact-finding and rule on principles of science. Instead, a judge is only Therefore, meant to assess the facts and arguments presented by both parties and apply the law to them. to decide an environmental dispute, a judge does not need a degree in environmental sciences; instead, he needs to understand the principles of statutory interpretation, the Constitution, the text of the statute and the ideals of justice. To argue otherwise gives rise to the pedestrian notion that only a doctor can decide a case of medical to the negligence or that only a coroner can judge a murder case. The idea of justice is tied intrinsically interpretation of law, and to deliver justice a judge needs be qualified in law not science. At the end of the day, legislation. If it stumbles on a an environmental court has to decide compensation, interpret regulations and question of fact, the Evidence Act provides for the appointment of expert witnesses to assist the court. There is no need for specialist tribunals such as the NGT. If it can be successfully argued that there is no need for specialists on tribunals, the Government’s entire case for such tribunals simply collapses, and perhaps we can then start working on the actual problem—the lack of planning and resources for India’s Judiciary. I) Prime Minister Modi in a Joint Conference of Chief Ministers and Chief Justices of High Courts asked if the expenditure incurred on tribunals could be used to strengthen the court system if it is found they were not serving the purpose for which they were set up. J) Government is planning to prune down the number of tribunals in the country. The Department of Legal Affairs in the Law Ministry is exploring the possibility of merging the functions of tribunals with some tribunals. K) The pendency in those tribunals has defeated the purpose for which those tribunals have been created to high courts.
other
as parallel
6 Supreme Court’s various directions A) SC said that appointments to tribunals could be made only in consultation with the judiciary. B) SC made it clear that High Courts would have the power of judicial review over orders passed by tribunals C) However, the centre persisted with its old ways to exert control over tribunals. NGT Act of 2010 was challenged on the ground that its lacked judicial independence from the government. The appointment rules allowed bureaucrats to be appointed to tribunals while holding their original positions in government. This creates a situation of conflict of interest because bureaucrat is a serving government officer and he might not act against the government while dispensing justice.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Dc Readers
10
Classes by Dipin Damodaran and Chandan Mittal
4. National Green Tribunals and issues related to Tribunals in general 1 Introduction -National green tribunal was established under National Green Tribunal Act 2010. - It sits in 5 places - Delhi, Pune, Bhopal, kolkata, Chennai. - All environmental disputes are decided by NGT and appeal from NGT goes directly to supreme court bypassing the high courts as per NGT law. Different high courts have different attitude towards this. The matter is pending before SC for clarification regarding jurisdiction of high courts 2 Special Courts Vs. Tribunals debate A) The law commission recommended setting up of “special courts” to resolve environmental disputes. However the Parliament had set up the tribunal instead of special court. B) The parliament can establish special courts under article 247 of the constitution where as tribunal are made under article 323A & 323B of the constitution. C) Special courts established under article 247 are under the control of the high court where as the tribunals are under the control of the government. The below given points (3) and (4) are in context of National Green Tribunal 3 Effectiveness and Speedy A) NGT has done much better than the lower courts. The cases are disposed at the rate of about 60%. B) NGT is more regular in hearing cases. It tries to dispose of a case in 6 months. Time gap between two consecutive hearings is 2-3 weeks where as in high court there are not more than 3 hearings in a year. C) It has created optimism in society regarding environmental issues. D) Increase number of cases reflects a growing environment crisis in country and growing trust of people in NGT 4 The Other Side A) However, there are still a large number of cases pending before NGT. Reasons - Resources available to NGT are not sufficient and also the number of cases being filed is increasing. All zonal Benches are handled by just one judicial and one expert member. The principal Bench, however, four judicial members, including the chairperson, and six expert members. B) Critics argue that NGT keeps major issues dragging, while hyping up minor ones. It has not issued any orders in major air pollution cases related to power plants or automobile pollution.
has
strong
C) NGT is a body composed of judicial and members with expertise in the field of science and environment. It is so because judicial members were not trained to understand the complexities involved in environmental cases due to the nature of questions often raised in the court of law. Lately, questions have been raised about the soundness of judgements passed by NGT. Critics of NGT argue considered. that because of judicial heavyweights in NGT, views of technical experts are not being D)
NGT’S critics have also questioned the “lack of environmental finesse” of its expert members. Usually, the expert members are experts of one particular field and not of environment as a whole. For instance, an expert member who has been working on forests for many years would not be able to comprehend the issues arising out of industrial pollution.
E)
Okhla Bird Sanctuary, Noida Case. In September 2013, NGT’S principal bench gave an order that stopped all construction within a 10-kilometre (km) radius of the sanctuary because the government had not notified the eco-sensitive zone around it at that time. The order stopped constructions only in Uttar Pradesh, but inexplicably didn’t do so in parts of Delhi which fall within the 10 km radius. Many have criticised the selective and “judicial” nature of judgement.
F)
NGT has been accused of overstepping its jurisdiction and taking actions for which it has not been empowered under the NGT Act.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
this
Supplementary Study material for classroom program
Dc Readers
11
Classes by Dipin Damodaran and Chandan Mittal
Three issues have frequently cropped up. First, does NGT have powers to take cognisance of a matter on its own and take action upon it-the power suomotu. Second, can NGT review and direct change in rules and regulations-the power of judicial review. Third, can NGT take up any case which can be termed as “substantial question of environment”.
of
The NGT Act refers to the scope of NGT’s jurisdiction in Sections 14, 15 and 16. Section 19 states that the tribunal can determine its own procedure and this provision has been used by NGT to include within its ambit issues that the NGT Act does not authorise it to adjudicate upon. 5 Issues related to Tribunals, in general. A) Judges quitting for lack of resources. Three judges of NGT had quit their posts citing lack of resources as the reason. I) At first NGT was operating from a guest house. II) The members were not even given official houses III) Tribunals budgetary allocation was slashed B) Tribunals are administred by the Parent Ministry. For the last two decades, the tribunals get the administrative support and funding from their parent ministry. For instance, Ministry of Finance supports Securities Appellate Tribunal, Debt Recovery Tribunal and Prevention of Money Laundering Tribunal. Thus there is no uniformity of resources and service conditions across tribunals. Such an arrangement give government an undue influence over the operation of tribunals since it could cut off resources to tribunal about to rule against the government. SC in Chandra Kumar case(1997) made it clear that tribunals should not be administred by the parent ministries. SC asked law ministry to take over their functioning so as to ensure the uniformity and independence of these tribunals. Law ministry has reported to the court that individual ministries are reluctant to give up control over tribunals. C) Tribunals are challenged for lack of judicial independence from the government D) ‘Additional courts’ would have come under the jurisdiction of High Courts in most matters. High courts have final are dependent upon say in the appointment and removal of judges in subordinate courts. Where as tribunals government in appointments. This creates conflict of interest in cases where government is party to the case. E) Various Parliamentary standing committees have been reluctant to allow tribunalisation of justice. Standing committee that examined National Tax Tribunals Bill 2004 was doubtful in creation of special tax tribunals. It preferred to fill vacancies in High Courts. F) It is said that bureaucracy favours tribunals because they guarantee a post retirement jobs at tribunals, have later retirement age than government job and which pay higher as well.
which
For instance: Chairperson of the Competition Commission of India gets Rs. 3,75,000 per month and members get Rs. 3,12,500 per month. The idea behind high salaries was to attract private sector talent but the commission remains a plum posting for retired bureaucrats. G) Prior to NGT’s creation, the district civil courts and high courts had jurisdiction over environmental matters. For instance, under Air Act and Water Act the community could at any civil court sue an industry causing been throttled pollution. However, with the creation of only five benches of NGT the access to justice has because no other court can entertain any environmental litigation. For country the size of India, just five benches serve little purpose. At the very least, India needs district level forums. H) Technical expertise: A debated issue It is said that environmental experts represented in tribunals can understand the nature of case more and helps to solve technical problems more efficiently. It is also argued by some that there is no need for experts in the justice delivery system. The function #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
clearly
of
Supplementary Study material for classroom program
Dc Readers
12
Classes by Dipin Damodaran and Chandan Mittal
judges is to get the knowledge of facts, interpret the law and apply the law to the situation. The experts can be taken by the judges whenever required
opinion of
All of this brings us to the question of why India has an NGT in the first place. There is constant talk about environmental litigation being a sort of rocket science and hence the need for expert adjudicators. This is untrue. judges As originally conceived by the Law Commission, environmental courts were to be manned only by qualified in law with a panel of experts meant to assist the court. The Centre’s final version installed these expert members directly on the bench along with a judge qualified in law. Such an arrangement reveals a poor understanding of the fundamental nature of law and litigation. A judge is not meant to get into fact-finding and rule on principles of science. Instead, a judge is only Therefore, meant to assess the facts and arguments presented by both parties and apply the law to them. to decide an environmental dispute, a judge does not need a degree in environmental sciences; instead, he needs to understand the principles of statutory interpretation, the Constitution, the text of the statute and the ideals of justice. To argue otherwise gives rise to the pedestrian notion that only a doctor can decide a case of medical to the negligence or that only a coroner can judge a murder case. The idea of justice is tied intrinsically interpretation of law, and to deliver justice a judge needs be qualified in law not science. At the end of the day, legislation. If it stumbles on a an environmental court has to decide compensation, interpret regulations and question of fact, the Evidence Act provides for the appointment of expert witnesses to assist the court. There is no need for specialist tribunals such as the NGT. If it can be successfully argued that there is no need for specialists on tribunals, the Government’s entire case for such tribunals simply collapses, and perhaps we can then start working on the actual problem—the lack of planning and resources for India’s Judiciary. I) Prime Minister Modi in a Joint Conference of Chief Ministers and Chief Justices of High Courts asked if the expenditure incurred on tribunals could be used to strengthen the court system if it is found they were not serving the purpose for which they were set up. J) Government is planning to prune down the number of tribunals in the country. The Department of Legal Affairs in the Law Ministry is exploring the possibility of merging the functions of tribunals with some tribunals. K) The pendency in those tribunals has defeated the purpose for which those tribunals have been created to high courts.
other
as parallel
6 Supreme Court’s various directions A) SC said that appointments to tribunals could be made only in consultation with the judiciary. B) SC made it clear that High Courts would have the power of judicial review over orders passed by tribunals C) However, the centre persisted with its old ways to exert control over tribunals. NGT Act of 2010 was challenged on the ground that its lacked judicial independence from the government. The appointment rules allowed bureaucrats to be appointed to tribunals while holding their original positions in government. This creates a situation of conflict of interest because bureaucrat is a serving government officer and he might not act against the government while dispensing justice.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
