Green and raw: On ‘tribunalisation’ of justice

Context:

Recently the appointment of former IAS officer, Girija Vaidyanathan, as Expert Member in the Southern Bench of the NGT, was challenged in the Madras High Court. Even though the court initially granted an interim stay on her appointment, it ruled that she was indeed eligible going by the criteria in the NGT Act.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Quasi-Judicial Bodies, Government Policies and Interventions)

Dimensions of the Article:

1. National Green Tribunal (NGT)
2. Structure of National Green Tribunal
3. Powers of NGT
4. Challenges related to the NGT
5. What the NGT mandates as criteria for appointment?
6. Need for Tribunals
7. Issues with tribunalization

National Green Tribunal (NGT)

• The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government.
• National Green Tribunal Act, 2010 is an Act of the Parliament of India which enables creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues.
• NGT Act draws inspiration from the India’s constitutional provision of (Constitution of India/Part III) Article 21 Protection of life and personal liberty, which assures the citizens of India the right to a healthy environment.
• The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

Structure of National Green Tribunal

• Following the enactment of the said law, the Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region.
• The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi.
• Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise of at least one Judicial Member and one Expert Member.
• Expert members should have a professional qualification and a minimum of 15 years’ experience in the field of environment/forest conservation and related subjects.

Powers of NGT

The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974;
2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002.

This means that any violations pertaining ONLY to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT.

Importantly, the NGT has NOT been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc.

Challenges related to the NGT:

• Two important acts – Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept out of NGT’s jurisdiction. This restricts the jurisdiction area of NGT and at times hampers its functioning as crucial forest rights issue is linked directly to environment.
• Decisions of NGT have also been criticised and challenged due to their repercussions on economic growth and development.
• The absence of a formula-based mechanism in determining the compensation has also brought criticism to the tribunal.
• The lack of human and financial resources has led to high pendency of cases – which undermines NGT’s very objective of disposal of appeals within 6 months.

What the NGT mandates as criteria for appointment?

The Act spells out two kinds of criteria — and a candidate has to fulfil only one of them.

1. One based on qualifications and practical experience: A masters’ or a doctorate in science, engineering or technology, with 15 years’ experience in the relevant field, including five in environment and forests in a national level institution, is needed. The fields include pollution control, hazardous substance management and forest conservation.
2. Second one based upon the administrative experience in the field: The administrative experience criterion is shorn of detail, and merely stipulates 15 years’ experience, of which five should have been in “dealing with environmental matters” in either the Centre or the State or any reputed institution.

Need for Tribunals

Flexibility:

Administrative adjudication has brought about flexibility and adaptability in the judicial as they are not restrained by rigid rules of procedure and can remain in tune with the varying phases of social and economic life.

Less Expensive:

They are set up to be less formal, less expensive, and a faster way to resolve disputes than by using the traditional court system.

Relief to Courts:

The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with numerous suits. Expert knowledge on a specialized subject through specialism, which reduces the time needed and thus costs

• So, we can say that the ‘tribunalisation’ of justice is driven by the recognition that it would be cost-effective, accessible and give scope for utilising expertise in the respective fields.
• Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
  1. Article 323-A deals with Administrative Tribunals.
  2. Article 323-B deals with tribunals for other matters.

Issues with tribunalization:

1. Appeal: Administrative tribunals were originally set up to provide specialized justice delivery and to reduce the burden of caseloads on regular courts. However, appeals from tribunals have inevitably managed to enter the mainstream judicial system.
2. High Pendency: Many tribunals also do not have adequate infrastructure to work smoothly and perform the functions originally envisioned leading to high pendency rates thus proving unfruitful to deliver quick justice.
3. Appointments: Appointments to tribunals are usually under the control of the executive. Not only does the government identify and appoint the members of the tribunals, but it also determines and makes appropriate staffing hires. This is problematic because often there is a lack of understanding of the staffing requirements in tribunals.
4. There is a lack of information available on the functioning of tribunals. Websites are routinely non-existent, unresponsive or not updated.
5. Accessibility is low due to scant geographic availability therefore justice becomes expensive and difficult.
6. Against the principle of separation of powers: Tribunalisation is seen as encroachment of judicial branch by the government.

-Source: The Hindu