Over the last few months, the National Green Tribunal has been in the news for many decisions including a ₹50- crore fine on LG Polymers, the nationwide prohibition on fire crackers, and a ₹5-crore penalty on NLC power plant for the boiler blast that killed many. All of these decisions have had varying response with some terming the NGT as hyperactive while others welcomed the strong action against the violators. However, there is one aspect common to these decisions – they are all suo motu , or initiated by the Tribunal on its own.

On the face of it, it seems to be a positive development: unlike institutions such as the Lokpal and Human Rights Commissions, there is at least one institution that is willing to be proactive in protecting the citizens right to clean environment. However, there is another side of this seemingly proactive intervention of the NGT – one of denial of justice and arbitrary action. This has serious ramifications in terms of access to justice and right to judicial remedies.

NGT is a creation of a statute – the National Green Tribunal Act, 2010. The law on statutory bodies has been settled in numerous judicial decisions – a statutory body has to act strictly within the confines of the law which created it and all duties, functions and powers are limited to what is prescribed in the statute. Notably, there is no specific provision in the NGT Act permitting the NGT to take up cases on its own.

Two jurisdictions

The Act clearly confers two jurisdictions on the Tribunal – Appellate and Original. Under ‘Appellate’, any ‘aggrieved person’ can challenge the grant or refusal of environment and forest clearance. (It is interesting that the NGT has never exercised its suo motu powers when it comes to challenging approvals given to destructive projects or where petitions were dismissed because the petitioners were late or did not have locus standi).

Under ‘Original’, the NGT is empowered to hear matters where there is a ‘substantial question related to environment’ arising out of a dispute. The Supreme Court has highlighted that as per the NGT Act, for the tribunal to exercise this jurisdiction ‘there must also be a claimant raising that dispute which is capable of settlement by the NGT’ (Techi Tagi Tara versus Rajendra Bhandari 2017).

Two important aspects are there in the Supreme Court’s decision – the first the existence of claimant and second the relief by way of compensation and restitution of property damaged. When the NGT takes up cases on its own, in a way it becomes the ‘claimant’ i.e., the victim and becomes in a way a ‘judge of its own cause’.

Serious problems

There are other serious problems. First, the NGT takes action based only on media reports and not on inputs from the impacted community or citizens groups. This leads to passing orders on many occasions which are far removed from the ground reality. The most recent example is of the ban on fire cracker imposed by the NGT in areas where air quality is in the ‘poor’ category. The NGT order never took into account that less than one per cent of India’s cities have continuous air quality monitors to record the air quality.

Second, issue of concern is that the actual victims get nothing in terms of compensation due to NGT’s intervention. The compensation is paid either to the pollution control boards or the state government authorities. It never reaches the actual victim.

The third is the practice of the NGT not hearing any claimant or person concerned on issues where the Tribunal has taken suo motu cognisance. Disturbingly, the Tribunal has started a practice of dismissing petitions filed by affected and concerned citizens even if they have been filed before the Tribunal has taken suo motu cognisance.

Finally, even assuming that the NGT does pass a progressive judgement in favour of the environment or the victims of environmental damage, there in no one to defend the order of the Tribunal when the NGT’s judgements are challenged before the High Court or Supreme Court. In the Bhopal gas leak disaster, the State itself claimed to be the victim. It negotiated on behalf of the actual victim before the court. The result was a paltry sum of money with no criminal liability on the polluter. The affected public were reduced to mute or silenced spectator while the state surrendered its constitutional duty to corporate greed.

Today, rather than the State, it is the NGT that has usurped the right to protect environment by claiming itself to be both a ‘victim’ and ‘defender of the environment’. In this process, while the NGT gets the limelight, for the victims of environmental degradation, the NGT’s orders do not usher in any hope for a better environment.

(The author is a Delhi-based environmental lawyer)