Overzealous tribunal

The mega international cultural event organised by Sri Sri Ravishankar from March 11 to 13 was by all accounts a grand success. But on the morning of March 11, there was a serious threat to the event from the National Green Tribunal (NGT), concerned about the adverse impact on the Yamuna and its flood plain from the show. The NGT granted grudging permission to the show subject to the condition that a sum of Rs 5 crore be deposited by 5 pm on March 11. Sri Sri Ravi Shankar publicly declared that he would prefer a jail term to payment of fine.

The next day the NGT acceded to Art of Living’s request to pay only a part of the “fine”, followed by the balance after a couple of weeks. Permission was granted. Former Union minister Jairam Ramesh suspects that a certain telephone call did the trick.

What if AoL had not paid the “fine” and the NGT proceeded to ban the event Prime Minister Narendra Modi would have found it embarrassing to participate in a function “banned” by a tribunal — the question of legality of the NGT’s order was not relevant at that point of time. The President of India excused himself from participating in the event — he had consented to be the chief guest at the valedictory function — probably for no other reason than to avoid the potential controversy.

The fact is that the NGT could not have physically stopped the show since it has no control over the police or military, unlike the Supreme Court. For the Supreme Court, the Constitution of India provides that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court (Article 144). Not the NGT. Yet, no matter whether its order is obeyed or not, the NGT passes orders and captures considerable amount of media attention almost on a daily basis.

The NGT is very active and, like the proverbial cowboy, it rushes with guns blazing to neutralise some complaint or the other in any part of the country even on the basis of press reports. It’s been reported, for example, that shopkeepers in New Delhi’s Lajpat Nagar have complained against footpath vendors to the NGT and the tribunal has entertained it. One wonders whether the press report is correct because one can see no “greenery” in the shops or footpath.

The NGT, established by the NGT Act, 2010, consists of a full-time chairman, not less than 10 but maximum of 20 judicial members and an equal number of expert members.

For a person to be appointed as the chairperson or judicial member of the NGT, the prescribed qualification is that s/he is or has been a judge of the Supreme Court or chief justice or a judge of a high court. The chairperson is appointed by the Central government in consultation with the Chief Justice of India and is to hold office for a term of five years or until s/he attains the age of 70 years.

What are NGT’s powers and jurisdiction It is a fundamental principle of law that a tribunal is a forum of limited powers. It has no discretionary or inherent powers that a court has. A court of law can exercise powers that are not specifically conferred on it; it can exercise incidental powers to do complete justice to the cause.

The Green Tribunal Act provides that the tribunal shall have jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and that such question arises “out of the implementation of the enactments specified in Schedule I”. Schedule I lists seven laws, including the Water (Prevention and Control of Pollution) Act, Forest (Conservation) Act, dealing with environment. The power of the NGT appears to be essentially an appellate power over the commissions or even omissions of the authorities mentioned in those laws. In other words, at the first sign of grievance about environmental destruction a person has to go to the named officials and only against their orders can the matter ultimately reach the NGT.

The Supreme Court and the high courts by virtue of constitutional provisions can entertain original petitions, such as PILs, and exercise their powers even suo moto. However, where a magistrate is authorised by law to deal with a case, the Supreme Court would not in the first instance entertain the case.

In the case of the cultural event organised by AoL, the Union ministry for environment categorically stated that no permission was sought from them nor any given because for the erection of a temporary structure, the ministry’s clearance is not required. The land in question is virtually barren, apart from being submerged for about three months every year and marshy for few months after that.

How then did the NGT come into the picture The NGT in its enthusiasm to save the country’s environment from degradation entertains complaints on a regular basis under the firm belief that anything that is green or related to environment is within its exclusive domain. But the fact is the high courts of Madras and Bombay have recently administered a lesson or two to the NGT about its role vis-à-vis that of constitutional courts like the high courts.

The Bombay high court in one case stayed the notice issued against two state officials to appear before the NGT and in another case set aside the NGT’s order which directed that all orders by the high courts that were inconsistent with its directions would cease to be operative after 15 days.

Rule of law expects that everyone involved from all wings of the government acts in accordance with law. Unless the rules are obeyed, no game can be played. A policeman is given the lathi or a weapon to use them judiciously — not on a whim. Unknown perils even from a judicial organ can make life uneasy. People do not deserve such interference for whatever seemingly worthy cause. On the analogy of the AoL incident, every function, say a big wedding, may have to seek NGT’s green signal. Is that so

One wishes the AoL approaches the Supreme Court against whatever proceedings have taken place and once and for all the question of powers of the NGT is settled.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com