On December 1, the Union Ministry of Environment and Forests issued a notification allowing the National Green Tribunal to constitute single-member benches across its zonal benches in the country. This was followed by an order from the office of the chairperson of the tribunal that put out a list of such single-member benches.
The notification came as a surprise to lawyers appearing in cases before the tribunal as it seemed to violate several provisions of the National Green Tribunal Act. Under the law that created the specialised tribunal to deal with cases related to the environment, each bench should consist of a judicial member, who is usually a former judge, and an expert member with expertise in the environmental field.
Essentially, the Act envisaged a symbiotic composition of the bench where knowledge of the law would go hand in hand with scientific and technical knowledge of factors affecting the environment, to arrive at the best possible remedy. This was done as years of environment-related litigation in the High Courts and the Supreme Court had revealed that judges do not always have the expertise to take a call on complex technical matters that involve a high level of science.
The new notification completely ignored this consideration.
The reason given for the notification was a severe personnel crunch at the tribunal. On Tuesday, its chairperson Justice Swatanter Kumar retired, bringing the green court’s strength down further.
The Centre, though, has a big role to play in the National Green Tribunal’s personnel crisis.
A major crisis
According to the website of the National Green Tribunal, it currently has five judicial members and two expert members for its five benches. But Sections 4 (1) (b) and 4 (1) (c) of the National Green Tribunal Act state that the tribunal is expected to have at least 10 judicial members and 10 expert members at all times. Therefore, there is a 50% vacancy of judicial members and an 80% vacancy of expert members.
The vacancies are set to go up with the retirement of two judicial members coming up early next year. Justice MS Nambiar, who functions out of the southern bench in Chennai, will retire on January 2 while Justice UD Salvi, who works out of the principal bench in Delhi, will retire on February 12.
But despite the personnel crunch, the National Green Tribunal has one of the highest disposal rates among tribunals in India. It has since its inception in 2010 disposed of over 20,000 cases and currently has around 3,400 cases pending before it. Between 2015 and 2016, as the rate of cases filed before it doubled, the tribunal compensated for this by expediting hearings and brought down the pendency rate from 43% to around 21%.
However, members of the tribunal are not too optimistic about sustaining this trend. One judicial member, who did not want to be identified, said the moment the bench loses an expert member, the case is bound to slow down. “It is not that judicial members cannot handle technical matters,” the member said. “It is that help on technical matters was available right there on the bench, which we do not have now.”
Last week, the Supreme Court refused to extend the tenures of the retiring judicial members despite arguments from the National Green Tribunal Bar Association that such a drastic shortage of members would for all practical reasons bring the tribunal to a halt.
One reason for the vacancies in the National Green Tribunal is the government’s move this year to bring about certain structural changes in the workings of tribunals, including changes to recruitment rules, through the Finance Bill. The amendments are termed the Tribunal, Appellate and other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017.
These rules have been challenged in the Supreme Court with the petitioners arguing that judicial independence has been compromised as the Centre used the Finance Act to gain an advantage in the selection process. The Finance Act is passed in the form of a Money Bill, which means that the Rajya Sabha, where the ruling Bharatiya Janata Party is in a minority, could be bypassed. The Centre chose to club the changes to the recruitment rules of tribunals with the Finance Act, rather than amend the laws governing tribunals independently.
Under the amended rules, the chief justice of India or his nominee will represent the judiciary in a five-member selection panel while the other four members will be appointed by the Union Ministry of Environment and Forests.
The Supreme Court has not stayed the amended rules. But it asked the Centre last week to file before it the proposed draft rules to be made under the Finance Act. It will discuss these on January 4.
“Since the apex court has not stayed the new rules, there cannot be any appointment according to the old rules,” a lawyer said. “The Centre has also held itself back from making any appointments under the new rules as it is under challenge.”
Thus, the National Green Tribunal has not seen any fresh appointment since March 1.
Among other contentious amendments, the earlier requirement that the chairperson of the tribunal can only be a retired judge of the Supreme Court or a former chief justice of a High Court has also been done away with.
Last week, the National Green Tribunal Bar Association (Western Bench) moved a petition in the Supreme Court challenging the notification allowing single-member benches. In its petition, the association said that the rules being in the form of subordinate legislation (legislation made by an authority subordinate to the legislature) cannot contravene the provisions in the parent National Green Tribunal Act. It alleged that as the parent Act stipulates that each bench must have an equal number of judicial and expert members, the notification is in violation of the Act.