The emasculation of NGT

The central government in December 2020 appointed new expert members to the National Green Tribunal (NGT). They include two retired IAS officers and one retired Indian Forest Service (IFS) officer. This is in addition to the two former Indian Forest Service officers who currently serve as expert members of the Tribunal.

A case in point is the recent appointment (since stayed) of Girija Vaidyanathan, former Chief Secretary of Tamil Nadu, to the post of Expert Member, NGT, Chennai bench. Vaidyanathan may have been an honest and competent bureaucrat, but that still doesn’t qualify her for the post, which requires technical expertise.

With this latest round of appointment, all the expert members of the NGT are either retired IAS or IFS officers. This will have important implications on the manner of functioning of the NGT.

Recently, the Prime Minister made a statement in Parliament that rattled the IAS fraternity. In his speech he stated, “If one becomes IAS will he/she do everything like running fertiliser industries, chemical industries or flying a plane... are we going to achieve by handing over our country to Babus.”

One may debate on whether all departments should be headed by IAS officers, but so far as the NGT is concerned, the Appointments Committee of the Cabinet headed by the Prime Minister, has found since 2014, that only retired bureaucrats belonging to either the IAS or IFS as competent to be called as “experts” in the field of environment.

Expert member categories

The NGT Act, 2010, contemplates that Expert Members of the Tribunal can be from two categories: First, those who have a degree in Master of Science with PhD or Master of Technology along with experience in the field of environment.

Second those with “administrative experience of fifteen years including five years dealing with environmental matters in Central or State government”. If one goes by the qualification prescribed for the second category, it is clear that almost every single IAS/IFS officer who has put in two decades in the service would qualify as an ‘expert’ in the field of environment.

It is indeed a sad reflection on the scientific and technical capacity of the nation if the Central government could not find even a single person who has a Master of Science with PhD and those with academic background to be selected as “Experts”.

It is important to highlight that till the year 2014, Expert members who were appointed comprised professors, academicians and only some retired bureaucrats. This varied composition ensured that the NGT was able to adjudicate on complex environmental issues and create a new environmental jurisprudence which was precedent setting not only in India but also globally.

The NGT through a series of judgments not only ensured that environmental law was taken seriously but also emphasised on the importance of detailed scientific assessments and prior studies. Concepts such as “cumulative impact assessment” study of incremental pollution became part of the decision making process. Due to all this, the NGT became an institution which even the western nations wanted to replicate.

Declination in quality decisions

Unfortunately, the last few years has seen a steady decline in the quality of decisions from the NGT – most cases are either dismissed on hyper technical grounds or the NGT has refused to adjudicate on the merits of the case.

This reluctance of the NGT in considering cases on merit is evident from two decisions of the NGT – both of which relates to airport construction. When the legal challenge to the Mopa airport in Goa was dismissed by the NGT, the Supreme Court in Hanuman Laxman Aroskar (2019) was constrained to observe that “In failing to carry out a merits-based review, the NGT has not discharged an adjudicatory function.”

This week, a bench of Justice Nageshwar Rao and Ravindra Bhat set aside a decision of the NGT which dismissed an appeal filed against the approval granted to the Bhogapuram International Airport in Andhra Pradesh. The NGT adopted a hyper technical approach and dismissed the Appeal because the affected farmers approached the tribunal one day late.

Reminding the NGT of its mandate, Justice Ravindra Bhat writing for the bench highlighted that “An appeal to the NGT in such matters is no ordinary matter; it has the potential of irrevocably changing the environment with the possibility of likely injury” ( Sridevi Datla Vs Union of India ). The Supreme Court has directed the NGT to now consider the appeal on merits.

The effect of having a tribunal dominated by retired bureaucrats is clearly visible in the NGT’s decision. In 2020, out of the 34 Appeals filed challenging approvals granted by the government, it dismissed 29. The preceding two years were no different.

In some of its recent decisions the NGT has clearly stated that it is “for the government of the nation and not for the Court to decide whether the deposits should be exploited at the cost of ecology and environmental consideration” ( Laxmi Chauhan Vs Union of India 2020) .

Today, the NGT comprises only retired judges and retired bureaucrats. The sine qua non to be a NGT member is not the understanding or experience in environmental law, climate science or conservation but being a “retired” civil servant. The NGT’s main role is that of grievance redressal.

Access to justice is simply not possible where the public grievances against wrong decisions or inaction by “serving bureaucrats” are only heard by “retired bureaucrats”. This is exactly what is happening today. The NGT needs to be restructured. The starting point is by ensuring that it does not continue to be a “civil services club”. There can be no doubt that the environment is too important a subject to be left to retired civil servants.

( The author is a Delhi-based environment lawyer )

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