A plea before the National Green Tribunal (NGT) by an advocate has raised questions of propriety and potential conflict of interest against Justice Sudhir Agarwal, one of the tribunal’s six judicial members. In his plea admitted on May 22, advocate Gaurav Bansal alleged that Justice Agarwal had heard a case in which his son, Gaurav Agarwal, was appointed as an amicus by the Tribunal. Incidentally, Bansal’s plea was also heard by a bench on August 20 which Justice Agarwal is a part of, along with expert member Dr Afroz Ahmad. An amicus is an officer of the court and the tribunal relies on the amicus while hearing a case. The bench reserved its order and the next hearing is on September 20. Justice Sudhir Agarwal, a former judge of the Allahabad High Court, was appointed to the green tribunal in April 2021. Bansal has been practising before the NGT for 12 years and before the Supreme Court as well. His efforts in an intervention application he had filed on conservation of Corbett Tiger Reserve earned him the Supreme Court’s appreciation in March this year. The case in question, Nitin Dhiman vs State of Punjab, relates to water pollution in Ludhiana. Another bench of the tribunal, comprising Justice Arun Kumar Tyagi and Dr Ahmad, appointed advocate Gaurav Agarwal as amicus in this Ludhiana pollution case on April 20, 2023. The bench of Justice Tyagi and Ahmad said that given the “serious nature and magnitude of the environmental questions” involved in the (Ludhiana) case, Gaurav Agarwal was appointed as amicus to help the Tribunal in “just and fair adjudication.” The Punjab State Pollution Control Board was ordered to pay Gaurav Agarwal Rs 50,000 to take care of travelling, transportation, accommodation and photography, the order stated. On February 1, 2024, the Ludhiana case was listed before a bench of NGT chairperson Justice Prakash Shrivastava, Justice Agarwal and expert member Dr A Senthil Vel. According to Bansal’s plea, Justice Agarwal, instead of recusing, “adjudicated the said matter.” Although Justice Agarwal was not part of the bench when the NGT ordered Gaurav Agarwal’s appointment as amicus (in the Ludhiana case), judicial propriety, said Bansal, requires that these cases are not heard by him when one of the parties is directly related to the judge. Incidentally, Bansal’s plea was filed as an intervention application in an unrelated case regarding non-compliance of pollution norms in Himachal Pradesh, which is being heard by Justice Agarwal. In that case, Bansal is appearing for the applicant. In his plea, Bansal questioned advocate Gaurav Agarwal’s competence to be appointed as amicus and stated that there was no “reasonable nexus” between his appointment as amicus and “his experience and eminence in the field of Environment.” The plea added, “It is also important to mention here that even the Orders by virtue of which Mr Gaurav Agarwal has been appointed as an Amicus, has said nothing about his knowledge in the field of environment”. Asked about his son’s appointment as amicus and Bansal’s plea, Justice Agarwal told The Indian Express that the instances cited in the plea did not amount to conflict of interest and there was no bar on children of judges practising in the same courts. He said that the Tribunal appoints amicus on a daily basis and that there is no favouritism involved. When asked why he did not recuse himself from the hearing of the Ludhiana pollution case on February 1, 2024, which had his son as amicus, Justice Agarwal said, “If it was pointed out to me and it was objected to, I would have recused myself”. Justice Agarwal added that no recall of order has been directed in the matter in question. Advocate Gaurav Agarwal said, “It is incorrect…that the bench of which my father, Mr Justice Sudhir Agarwal, was a part, has appointed me as Amicus Curiae. Hence, there arises no issue of impartiality and conflict of interest.” Queries were sent to the office of NGT chairperson Justice Srivastava but there was no comment. Before he filed his plea highlighting the alleged conflict of interest, advocate Bansal had, on May 13, also flagged the same issue to NGT chairperson Justice Srivastava in a complaint. That complaint cited two other cases where advocate Gaurav Agarwal was appointed amicus to assist the court. Justice Agarwal was not part of the bench that heard those two cases. When asked how his plea would affect his litigation going ahead, Bansal said: “I do not have a personal vendetta against either Justice Agarwal or his son. I have no issue if he is part of the bench hearing my cases in the future. As a lawyer, it is my duty to point out that my clients get justice in a fair and transparent manner and in a moral way. Justice must not only be done, but must also be seen to be done.” Currently, there are two benches in the NGT. In Court No. 1, chairperson Justice Shrivastava hears matters daily along with judicial member Arun Kumar Tyagi and expert member A Senthil Vel. In Court No. 2, Justice Agarwal hears matters along with expert member Ahmad.
