Opinion National Green Tribunal: A failing institution in need of revival

One of the major concerns surrounding the NGT’s functioning thereafter was the delegation of judicial work to so-called expert committees. While the intention may have been to get an independent view of the alleged non-compliances, it has resulted in a lack of judicial oversight. The reports of these committees were often accepted mechanically and without hearing the parties who are likely to be affected by the Order, thereby violating the basic principles of natural justice, which essentially say that no one should be condemned behind their backs. This disregard for the law prompted the Supreme Court to intervene and direct the NGT to provide a fair hearing to affected parties before drawing conclusions against them. Such remarks came from Benches headed by Justices D Y Chandrachud, Bhushan Ramkrishna Gavai and B V Nagarathna to name a few.

The delegation converted the functioning of NGT from being adjudicatory to anti-adjudicatory. This further led to an alarming discontent among lawyers, both appearing for environmentalists as well as those on the side of the projects, simply because they were unable to assist the Tribunal in the process of administration of justice. Perhaps, it is due to this resentment that the bar decided not to offer any kind words of farewell for Justice Goel upon his retirement. Among those present were interns employed by the NGT and very few lawyers.

In an unusual and unprecedented move, the NGT published on its website a self-made 34-page report card from 2018 to 2023. The fact that the Report exclusively covered the exact tenure of the outgoing chairperson seems to indicate that it was meant to display in detail the performance of the NGT under Justice Goel’s leadership.

First, such self-certification undermines the credibility and transparency of the NGT. Judges come and go. Their legacy is defined by the quality of judgments given during their respective tenures.

Second, upon closer examination, significant discrepancies emerge in the report, which raises questions regarding the application of the “Polluter Pays principle”. Annexure B of the Report lists about 35 cases where the NGT has imposed Environmental Compensation for purported violations of norms. Notably, the report fails to acknowledge the outcome of challenges to these very orders. Out of the 35 cases, parties filed appeals in about 12 cases in the Supreme Court. This number does not include the challenges made to the said orders in high courts or any other forum. Out of the 12 cases filed, the SC interfered in nine cases by either staying the effect of the judgment or by remanding it back or issuing notice. This revelation raises serious concerns, particularly regarding the significant percentage of interference by the SC in NGT matters, which stands at a remarkable 75 per cent. This percentage of interference upon challenge is huge when compared to the general rate of interference by the SC in other cases. As per a report by the Vidhi Centre for Legal Policy (2015), the general rate of interference by the SC was about 43.79 per cent with respect to SLPs filed in 2014.

Third, the Report shockingly describes the present tenure as a “compensation regime.” This term raises concerns about the institution. As India strives to transition from a developing to a developed nation, adopting a compensation-centric approach appears counterproductive to the goals of growth, development, and industrial progress. Labelling the NGT’s approach as a “compensation regime” suggests a bias against development and industry. While sustainable development and environmental protection are vital, an adversarial stance towards development undermines the delicate balance between economic growth and ecological conservation.

The task of reviving the NGT falls upon the next Chairperson. It is crucial to restore the institution’s credibility and respect in order to effectively address environmental issues and uphold the principles of justice. The new leadership must prioritise transparency, ensure the application of judicial mind to all matters, foster international collaborations and most importantly, revive the relationship between bar and bench to reclaim the NGT’s standing in the global arena.

The writer is Advocate on Record, Supreme Court of India and Partner, VSA Legal