ABSTRACT
The National Green Tribunal is a body of great significance. However, it has been at the receiving end of a lot of challenges not just by the people but also the Government. The Role of the NGT is not of a mere adjudicatory forum but stretches beyond it to encompass its duty to be the sole protector of the environment. This article describes in brief the intent behind constitution of this specialized forum. The authors use the legislative intent to purposively interpret the NGT Act to answer the question of the Tribunal’s suo-moto powers in light of the recent judgement of the Apex Court in this regard. On moral grounds, NGT’s proactive nature is what will serve best for public interest.
BACKGROUND TO THE NATIONAL GREEN TRIBUNAL: 2003-PRESENT
The seeds of this novel body were sown by the 186th Report of the Law Commission of India dated 23.09.2003, where the Law Commission had expressed the need for a specialized forum to deal with the growing and complex environment-centric litigation. The Writ Jurisdiction of the High Courts and the Supreme Court was deemed inadequate, which led to the creation of this benign tribunal in 2010. From the famous Posco Case[i] in 2012 to the latest Sand Mining Order[ii], the NGT has proved to be a vigilante for our environment. Unlike the way it is functioning recently, the NGT had troublesome beginnings, such as the struggle with poor infrastructure and number of resignations from the tribunal.[iii] The Ministry of Environment and Forests has even criticized and labelled it as an “embarrassment”. Prof. (Dr.) Sairam Bhatt writes in his article titled “A Tribunal in Trouble?”[iv] that apart from administrative fallacies, the NGT has been marred with jurisdictional limitations. The jurisdiction of NGT has been further circumscribed by technical anomalies. Very recently, as an attempt to cripple the “wings” of this benevolent body, a question was raised before the Supreme Court on its power to take suo moto cognizance of cases. The Supreme Court has passed its judgment dated 07.10.2021 in this regard.
OBJECTS, REASONS & INTENT
A reading of the Statement of Objects and Reasons of the National Green Tribunal Act, 2010 (hereinafter referred to as “NGT Act”) shows that paragraph 4 thereof refers to the National Environmental Tribunal Act, 1995 (NET) which provided for strict liability and damages arising out of accidents occurring while handling hazardous substances. In the same context it was observed that the NET had a very limited and narrow mandate and jurisdiction. Thereafter, in paragraph 5 it has been recorded that a large number of environmental cases are pending in higher courts which involve multi-disciplinary issues and, in such cases, the Supreme Court had requested the Law Commission of India to consider the need for constitution of specialised environmental courts.
Significantly, the Statement of Objects and Reasons also refers to the right to a healthy environment being a part of the right to life under Article 21 of the Constitution of India. This was consistent with the earlier mentioned 186th Law Commission Report highlighting that the body so created, would aim to “achieve the objectives of Article 21, 47, 48A, 51A (g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure”. An institution concerned with a significant aspect of right to life must be provided with the wherewithal to discharge its duties as efficaciously as possible.
SUPPRESS THE MISCHIEF AND ADVANCE THE REMEDY
It becomes important in scenarios of statutory ambiguity that the entire context in which the statute in question was enacted be examined. Therefore, Heydon’s Mischief Rule can be adequately applied in light of the foregoing discussion. Lord Halsbury has remarked that, “you must look at the whole in order to give effect, if possible to do so, to the intention of the framer of it.”[v] Therefore, to solve the conundrum of NGT’s suo moto powers, it becomes imperative to purposively interpret the NGT Act to achieve the laudatory legislative intent behind it.
Section 19(2)[vi] of the NGT Act clearly states that the NGT has the power to regulate its own procedure, subject to the provisions of the Act. Further, Rule 24[vii] of the National Green Tribunal (Practice & Procedure) Rules, 2011 stipulates that NGT is empowered to “issue orders and directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice”. Moreover, it is a settled principle of statutory interpretation, as old as 1969, by the Supreme Court in the case of ITO v. M.K. Mohammed Kunhi[viii], that if the legislature enables something to be done, it gives power at the same time by necessary implication, to do everything which is indispensable for the purpose of carrying out the said task.
From a bare reading of the above-mentioned rules, it becomes abundantly clear that the Parliament has bestowed the Tribunal with wide discretionary powers. By choosing to employ a phrase of wide import, i.e., secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of widest possible amplitude and does not simply mean adjudicating disputes between two rival entities. It also encompasses inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to the environmental principles and even hauling up authorities for inaction, when need be. The intention of the Parliament cannot be to grant such wide power without giving the exercisable means for its effective disposal.
SUI GENERIS NATURE OF THE NGT
There are a lot many tribunals and quasi-judicial bodies created to perform their own specific purpose. However, these bodies also have certain differences with respect to their constitution. The statutory tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals; and most prominently, Tribunals to safeguard rights under Article 21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute. It is pertinent to mention another enabling judgment of the Supreme Court in the case of State of Meghalaya v. All Dimasa Students Union[ix] wherein it was laid down that the powers given to the Tribunal are in furtherance of its responsibility to protect the right to environment.
The above discussion would advise us to say that the NGT was conceived as a specialised forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from the High Courts and the Supreme Court.[x] Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiate suo motu proceedings should also be available with the NGT.
CONCLUSION
It is not new for the NGT to hear cases which are taken as suo moto. In the case of Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India[xi], Justice Swatanter Kumar speaking for a three-judge bench, mandated the transfer of all the cases pertaining to environment from various High Courts to the NGT, after its constitution. It should be noted that most of the cases were registered as suo moto by the Courts. It is the discernible attitude of the government that is putting the upstanding efforts of the NGT in a backward direction.[xii] The judgment in the case of Municipal Corporation of Greater Mumbai v. Ankita Sinha and other and connected cases[xiii] comes at the right time or else the virtuosity of this institution might be reduced to that of a toothless tiger.
ENDNOTES
[i] Prafulla Samantara v. Union of India, 2014 SCC OnLine NGT 892.
[ii] In Re: News item published on 27.07.2020 in the local daily named “Times of India” titled “Forest guard mowed down by ‘mining mafia’ in Sariska”, 2021 SCC OnLine NGT 79.
[iii] Sruthisagar Yamunan, Centre’s move to change appointment rules leaves National Green Tribunal with crippling staff crunch, Scroll.in (Oct. 9, 2021), https://scroll.in/article/862040/centres-move-to-change-appointment-rules-leaves-national-green-tribunal-with-crippling-staff-crunch.
[iv] Prof. (Dr.) Sairam Bhatt & Lianne D’Souza, A Tribunal in Trouble?, Centre for Environmental Law Education, Research and Advocacy (Oct. 9, 2021), http://nlsenlaw.org/a-tribunal-in-trouble/.
[v] Justice G. P. Singh, Principles of Statutory Interpretation (14th ed. Lexis Nexis 2016).
[vi] National Green Tribunal Act, 2010, § 19(2), No. 10, Acts of Parliament, 2010 (India).
[vii] National Green Tribunal (Practice & Procedure) Rules, 2011, Rule 24, The Gazette of India, Part II Section 3 (India).
[viii] ITO v. M.K. Mohammed Kunhi, AIR 1969 SC 430.
[ix] State of Meghalaya v. All Dimasa Students Union, (2019) 8 SCC 177.
[x] Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897.
[xi] Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326.
[xii] Ritwick Dutta, Law of the jungle, The Hindu (Oct. 09, 2021), https://www.thehindu.com/opinion/op-ed/law-of-the-jungle/article5244600.ece.
[xiii] Municipal Corporation of Greater Mumbai v. Ankita Sinha, 2021 SCC OnLine SC 897.
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