Municipal Corporation of Greater MumbaiVs.AnkitaSinha Ors.
[Civil Appeal Nos. 12122-12123 of 2018]
[Civil Appeal No. 86/2019]
[Civil Appeal No. 5902/2019]
[Civil Appeal No. 6273 of 2021 arising out of SLP (C) No. 6732/2021]
[Civil Appeal No. 6274 of 2021 arising out of SLP (C) No. 5930/2021]
[Civil Appeal No. 6275 of 2021 arising out of SLP (C) No. 6733/2021]
[Civil Appeal No. 6276 of 2021 arising out of SLP (C) No. 16448 Of 2021 Diary No. 11655/2021]
[Civil Appeal No. 6277-6278 of 2021 arising out of SLP (C) No. 16449-16450 of 2021 Diary No. 13789/2021]
[Civil Appeal No. 6279 of 2021 arising out of SLP (C) No. 16451 Of 2021 Diary No. 13811/2021]
[Civil Appeal No. 6280-6281 of 2021 arising out of SLP (C) No. 16452-16453 of 2021 Diary No. 13890/2021]
[Civil Appeal No. 2897/2021]
[Civil Appeal No. 6282 of 2021 arising out of SLP (C) No. 11426 of 2021]
[Civil Appeal No. 6283 of 2021 arising out of SLP (C) No. 11427 of 2021]
[Civil Appeal No. 6262 of 2021 Diary No. 16948 of 2021]
[Civil Appeal No. 6284 of 2021 arising out of SLP (C) No. 11798 of 2021]
[Civil Appeal No. 6285 of 2021 arising out of SLP (C) No. 12669 of 2021]
[Civil Appeal No. 6286 of 2021 arising out of SLP (C) No. 16454 of 2021 Diary No. 19534/2021]
“Estragon: Let’s go.
Vladimir: We can’t.
Estragon: Why not?
Vladimir: We’re waiting for Godot.”1
1.Leave granted in the Special Leave Petitions.
2.The consideration to be made in these matters is whether the National Green Tribunal (for short “the NGT”) has the power to exerciseSuoMotujurisdiction in discharge of its functions under the National Green Tribunal Act, 2010 (for short, “the NGT Act 2010”).
3.In the lead case in this group, i.e. the Civil Appeal No. 86 of 2019, the NGT noticed an article titled “Garbage Gangs ofDeonar: The Kingpins and Their Multi-CroreTrade” in the online news portal, TheQuint. The article spoke of how mismanagement of solid waste had an adverse impact on the environment, public health and lives of individuals living in the vicinity of the dumping ground in Mumbai city.
4.The NGT tooksuomotucognizance of the above article vide order dated 07.08.2018 and directed that the article writerAnkitaSinhabe the applicant in the case OA No. 510 of 2018, registered at the NGT’s instance. Thereafter, steps were taken for inspection of theDeonarDumping site by the representative of the Central Pollution Control Board, Maharashtra Pollution Control Board, the District Collector of the area and also the representative of the Municipal Corporation of Greater Mumbai (for short “the MCGM”).
Pursuant to the Report of the inspecting team which highlighted that the landfill site failed to comply with the provisions of the Solid Waste Management Rules, 2016, the NGT vide order dated 30.10.2018 noted that ‘damage to the environment and public health is self-evident’ and ordered MCGM to pay compensation to the tune of Rs. 5crores.
5.This Court while entertaining the Civil Appeal No. 86/2019 of MCGM, ordered stay on the operation of the order passed by the NGT and thereafter arranged for analogous consideration of the related cases where the common threshold jurisdictional issue arises on whether the NGT has the power to exercisesuomotujurisdiction.
6.Mr.MukulRohatgi, Mr.DushyantDave, Mr.JaideepGupta, Mr.DhruvMehta, Mr.AtmaramNadkarni, Mr. KrishnanVenugopal, Mr. V.Giri, Mr.SajanPoovayyaand Mr.SidharthaDave, learned Senior Counsel together with Mr. E.M.SAnam, Ms. Amrita Sharma, Mr. S.Thananjayanhave taken a common stand. They have argued that the NGT is a Tribunal and a creature of statute and as such, it cannot act on its own motion or exercise the power of judicial review or actsuomotu, in discharge of its function.
Being a creature of the statute, the forum cannot assume inherent powers as under Article 32 and Article 226 and its domain is circumscribed by the limitations so imposed. The learned counsel also argue that the NGT has an adjudicatory role to decide disputes which necessarily mean involvement of two or more contesting parties. Therefore, the NGT by actingsuomotucannot transpose itself to the shoes of one such party.
The absence of general power of judicial review with the NGT (which is available with superior courts) is highlighted to keep awaysuomotupower from the NGT. Various judgments relating to the Tribunal’s power and role are cited by the counsel and those would be discussed in later part of this order.
7.Projecting the contrary view, Mr.NidheshGupta, the learned Senior Counsel appearing for the aggrieved party in SLP(C) No. 6732/2021, Mr. Sanjay Parikh, learned Senior Counsel for the Intervener in C.A. No.86/2019 and Mr.GopalSankaranarayanan, learned Senior Counsel appearing for theImpleaderI.A. No.71482/2021 in the SLP(C) No. 6732/2021, by referring to the special role envisaged for the NGT and the history of its incorporation, make equally powerful submission in support of exercise ofsuomotujurisdiction, by the NGT.
8.Mr.AnandGrover, the learned Senior Counsel was appointed as the Amicus Curiae to assist the Court and he was heard at length. The counsel acknowledges the NGT’s role and position under the Act and its wide jurisdiction over environmental matters but Mr. Grover is of the view that the NGT is incapable of triggering action on its own. In other words, the NGT cannot actsuomotuwithout someone moving the Forum as otherwise the forum then would be perceived to be judging its own cause.
Sincesuomotupower is not conferred under the NGT Act, the specialized tribunal has to be moved by an outside party. But the format of the application is not important and even a letter addressed by an interested party, will clothe the NGT with power to take action is the concessional submission of Mr. Grover.
9.Representing the Central Government, Ms.AishwaryaBhati,thelearned Additional Solicitor General of India submitted thatSuoMotupower is not exercisable by the NGT since the same has not been conferred on the forum under the NGT Act, unlike the situation in the now repealed National Environment Tribunal Act, 1995 (hereinafter referred to as the “NET Act”). The counsel refers to the provisions of the NGT Act and submits that the concept of locusstandiwas expanded for NGT’s intervention under Section 18(2)(e) but the tribunal is not vested withsuomotupower to take action on its own unlike the High Courts and the Supreme Court.
The learned ASG, however, submits that even on receipt of a letter, the NGT can commence action on environmental matters. Thus, on exercise of epistolary jurisdiction by the NGT, the ASG is on the same page as the amicus curiae but as earlier noted both counsel argue for keeping away thesuomotupower from the NGT.
10.1Having summarized the positions taken by the respective Counsel, we may now refer to the specific grounds of challenge to keep awaysuomotupower from the NGT. The concerned counsel project that NGT is a creature of the statute and just like other such statutory tribunals, the NGT is also bound within statutory confines. They have relied upon Standard CharteredVs.DharminderBhohi2 wherein, provisions of the Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 wereanalysedto note the limitations of the Debt Recovery Tribunal and Appellate Tribunal.
From the analysis of JusticeDipakMisra(as his Lordship then was) for the Division Bench, it can be inferred that the Tribunal was given power under the statute to pass such other orders and give such directions to give effect to its orders or to prevent abuse of its process or to secure the ends of justice but in discharge of its functions the Tribunal was required to confine itself to within the statutory parameters. Thus, Section 19(25) conferred limited powers and the submission thus is that the Tribunal does not have any inherent powers.
10.2Similarly, Justice S.H.Kapadia(as his Lordship then was) inTranscoreVs. Union of India3, opined on behalf of a Division Bench that,
“67. The DRT is a tribunal, it is the creature of the statute,ithas no inherent power which exists in the civil courts.”
10.3Thecounselalso projects that in the context of Consumer Forums, JusticeDalveerBhandari(as his Lordship then was) speaking for a three judge bench in RajeevHitendraPathakVs.AchyutKashinath4, observed asunder :-
“34. On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised.”
11.1The second limb of contention is that the Act is applicable to ‘disputes’ as, necessarily referring to alisbetween two parties. The counsel has relied uponTechiTagiTaraVs.RajendraSinghBhandari Ors.5 wherein the term ‘substantial question relating to environment’ was interpreted in an attenuated fashion to mean a question arising as part of a dispute. The submission therefore is that a dispute must necessitate a claimant or an applicant. Further, this dispute must also be capable of settlement by the NGT. In the cited case the proposition is articulated in the following fashion,
“19. On a combined reading of all these provisions, it is clear to us that there must be a substantial question relating to the environment and that question must arise in a dispute – it should not be an academic question. There must also be a claimant raising that dispute which dispute is capable of settlement by the NGT by the grant of some relief which could be in the nature of compensation or restitution of property damaged or restitution of the environment and any other incidental or ancillary relief connected therewith.
20.InPrabhakarv.Deptt.ofSericulture [Prabhakarv.Deptt. of Sericulture, (2015) 15 SCC 1 : (2016) 2 SCC (LS) 149] the following definition of “dispute” was noted inparas34 and 35 of the Report: (SCC p. 21)
“34.Tounderstand the meaning of the word “dispute”, it would be appropriate to start with the grammatical or dictionary meaning of the term:
‘ “Dispute”.-to argue about, to contend for, to oppose by argument, to call in question – to argue or debate (with, about or over) – a contest with words; an argument; a debate; a quarrel;’
35. Black’s Law Dictionary, 5thEdn.,p. 424 defines “dispute” as under:
‘Dispute.-A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other.The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined.’ “
11.2The amicus curiaehasalso addressed this issue, by defining a dispute as necessitating an assertion and a denial. By this reasoning, it is submitted that function of Section 14 of the NGT Act is available only to adjudicate upon disputes, as in an adversarial system but not for any other ameliorative, restorative or preventative functions.
12.1Thirdly, the lack of general power of Judicial Review has been argued to show legislative intent to curbsuomotupowers.Counsel havestated that the NGT, as a Tribunal with prescribed authority under a statute, does not have any general power of judicial review. Thus, it is not within the category of Writ Courts as under Article 226 and Article 32 of the Constitution of India. In the relied upon judgment Tamil Nadu Pollution Control Board v.SterliteIndustries (I) Ltd.,6 Justice R.F.Narimanspeaking about the NGT for a Division Bench of this Court has observed the following,
“41. Suffice it to say that the NGT is not a tribunal set up either under Article 323-A or Article 323-B of the Constitution, but is a statutory tribunal set up under the NGT Act. That such a tribunal does not exercise the jurisdiction of all courts except the Supreme Court is clear from a reading of Section 29 of the NGT Act.
43. In the present case, it is clear that Section 16 of the NGT Act is cast in terms that are similar to Section 14(b) of the Telecom Regulatory Authority of India Act, 1997, in that appeals are against the orders, decisions, directions, or determinations made under the various Acts mentioned in Section 16. It is clear, therefore, that under the NGT Act, the Tribunal exercising appellate jurisdiction cannot strike down rules or regulations made under this Act.
Therefore, it would be fallacious to state that the Tribunal has powers of judicial review akin to that of a High Court exercising constitutional powers under Article 226 of the Constitution of India. We must never forget the distinction between a superior court of record and courts of limited jurisdiction that was, in the felicitous language ofGajendragadkar, C.J., in Powers, Privileges and Immunities of State Legislatures, In re [Powers, Privileges and Immunities of State Legislatures, In re, (1965) 1 SCR413 :AIR 1965 SC 745] , made in the following words: (SCR p. 499: AIR p. 789,para138)
“138. We ought to make it clear that we are dealing with the question of jurisdiction and are not concerned with the propriety or reasonableness of the exercise of such jurisdiction. Besides, in the case of a superior court of record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction.
‘Prima facie’, saysHalsbury, ‘no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court [Halsbury’sLaws of England, Vol. 9, p. 349] ‘. “
For this reason also, we are of the view that the State Government order made under Section 18 of the Water Act, not being the subject-matter of any appeal under Section 16 of the NGT Act, cannot be “judicially reviewed” by the NGT. Following the judgment in BSNL [BSNL v. TRAI, (2014) 3 SCC 222] , we are of the view that the NGT has no general power of judicial review akin to that vested under Article 226 of the Constitution of India possessed by the High Courts of this country.
ShriSundaram’sstrong reliance on the NGT judgment dated 17-7-2014 in Wilfred J. v. Ministry of Environment Forests [Wilfred J. v. Ministry of Environment Forests, 2014 SCCOnLineNGT 6860] must also be rejected as this NGT judgment does not state the law on this aspect correctly. This contention is also without merit, and therefore, rejected.”
12.2The argument has been that the superior Courts exercising discretionary powers under Article 32 and Article 226, to safeguard fundamental rights, can venture into judicial review. But such a power not being expressly conferred on the NGT would suggest the limited nature of the Forum’s powers, which would exclude anysuomotuexercise.
I. The Backdrop ofTheNational Green Tribunal
13.1In order to understand the contours of jurisdiction of the NGT, we have thought it necessary to refer to the history of the legislation and also the Preamble and the Statement of Objects and Reasons of the NGT Act. The parliamentary intent which shaped the creation of the NGT and the broad issues that they sought to address through the specialized institution should now be brought to the fore.
13.2The precursor to the NGT Act was the 186th Report of the Law Commission of India dated 23.9.2003 where the Law Commission had made the following pertinent observation espousing the case for the creation of a specialized Court to deal with environmental issues:-
“It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like theWednesburyPrinciple and refuse to go into the merits. They do not also make spot inspections or receive oral evidence to see for themselves the facts as they exist on ground.
On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists. These Environmental Courts need not be Courts of exclusive jurisdiction. However, the High Courts, even if they are approached under Art. 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court.
As of now, when we have consumer Courts at the District and State level, the High Courts have consistently refused to entertain writ petitions under Art. 226 because parties have a remedy before theforaestablished under the Consumer Protection Act, 1986. We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners.
The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts. It is for the above reasons we are proposing the establishment of separate environmental courts in each State. In Chapter IX, we propose to give the details of the constitution, power and jurisdiction of these Courts.”
13.3The above would suggest that the Law Commission was of the opinion that it is not convenient for the High Courts and the Supreme Court to make local inquiries or receive evidence. Moreover, the superior courts will not have access to expert environmental scientists on permanent basis to assist them. Therefore, NGT was conceived as a complimentary specialized forum to deal with all environmental multidisciplinary issues both as original and also as an appellate authority, which complex issues were hitherto dealt with by the High Courts and the Supreme Court.
13.4The NGT, therefore, was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of the Courts. It was explicitly noted that the creation of the NGT would allow for the Supreme Court and High Court to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum. The 186th Law Commission Report provided the following reasoning,
“Likewise, we have not thought it fit to enable the Environmental Courts, to have judicial review powers exercised by the High Court under Art.226 of the Constitution of India.We have felt that it is sufficient to vest original civil jurisdiction as exercisable by a Civil Court, in the Environmental Courts. If we vest powers ofJudicialreview as under Art. 226, then there may be need to subject the orders to the writ jurisdiction of High Courts as held in L. Chandra Kumar vs. Union of India, 1997 (3) SCC 261.
No doubt, the Environment Court exercising powers of a Civil Court or as an appellate Court in civil jurisdiction, may be technically amenable to writ jurisdiction of the High Court but inasmuch as we are providing an appeal to the Supreme Court, the High Courts may decline to interfere on the ground that there is an effective alternative remedy of appeal on law and fact to the Supreme Court, as explained later in this Chapter.”7
Thus, the power of judicial review was omitted to ensure avoidance of High Courts’ interference with the Tribunal’s orders by way of a mid-way scrutiny by the High Court, before the matter travels to the Supreme Court where NGT’s orders can be challenged. The streamlining of the mechanism was to arrest the growing tide of litigation before High Courts and the Supreme Court and shift such issues to the domain of the NGT.
13.5This is how the proposed forum was made free from the rules of evidence and the NGT was permitted to lay down its own procedure to entertain oral and documentary evidence, consult experts etc. The observance of the principles of natural justice was however mandated.
II. Preamble Statement of Objects and Reasons
14.1The Statement of Objects and Reasons of the NGT Act will now require attention.Paras2,3,4,5 and 6 of the Statement of Objects and Reasons being relevant are extractedhereinbelow: –
“2. India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, calling upon the States to take appropriate steps for the protection and improvement of the human environment.
The United Nations Conference on Environment and Development held at Rio de Janeiro in June, 1992, in which India participated, has also called upon the States to provide effective access to judicial and administrative proceedings, including redress and remedy, and to develop National laws regarding liability and compensation for the victims of pollution and other environmental damage. 3. The right to healthy environment has been construed as a part of the right to life under article 21 of the Constitution in the judicial pronouncement in India.
4. The National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environmental Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment. However, the National Environment Tribunal, which had a very limited mandate, was not established.
The National Environment Appellate Authority Act, 1997 was enacted to establish the National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. The National Environment Appellate Authority has a limited workload because of the narrow scope of its jurisdiction.
5. Taking into accountaccountthe large number of environmental cases pending in higher courts and the involvement of multidisciplinary issues in such cases, the Supreme Court requested the Law Commission of India to consider the need for constitution of specialized environmental courts. Pursuant to the same, the Law Commission has recommended the setting up of environmental courts having both original and appellate jurisdiction relating to environmental laws.
6. In view of the foregoing paragraphs, a need has been felt to establish a specialized tribunal to handle the multidisciplinary issues involved in environmental cases. Accordingly, it has been decided to enact a law to provide for the establishment of the National Green Tribunal for effective and expeditious disposal of civil cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment.”
14.2A reading of the Statement of Objects and Reasons shows that paragraph 4 thereof refers to the National Environmental Tribunal Act, 1995 (NET) which provided for strict liability and damages arising out of accidents occurring while handling hazardous substances. In the same context it was observed that the NET had a very limited and narrow mandate and jurisdiction. Thereafter, in Para 5 it has been recorded that a large number of environmental cases are pending in higher Courts which involve multi- disciplinary issues and, in such cases, the Supreme Court had requested the Law Commission of India to consider the need for constitution of specialized environmental Courts.
14.3Significantly, the Statement of Objects and Reasons also refers to right to a healthy environment being a part of the right to life under Article 21 of the Constitution of India. This was consistent with the earlier mentioned 186th Law Commission Report highlighting that the body so created, would aim to “achieve the objectives of Article 21, 47, 48A, 51A (g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure”. An institution concerned with a significant aspect of right to life necessarily should be given the most liberal construction.
14.4The paragraph 2 of the Statement of Objects and Reasons refers to the United Nations Conference on the Human Environment held at Stockholm in June 1972 which called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment when it involved people and for their posterity.
Therefore, the municipal law enacted with such a laudatory objective of not only preventing damage to the environment but also to protect it, must be provided with the wherewithal to discharge its protective, preventive and remedial function towards protection of the environment. The mandate and jurisdiction of the NGT is therefore conceived to be of the widest amplitude and it is in the nature of a sui generis forum.
14.5The United Nations Conference on Environment and Development held at RioDeJaneiro in June, 1992 where India participated, impressed upon the States to provide effective access to judicial and administrative proceedings, lay out redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage.
The Preamble of the Act significantly emphasized on construing the right to healthy environment as a part of the Right to Life under Article 21 of the Constitution which was accepted by various judicial pronouncements in India. The National Green Tribunal was born in our country with such lofty dreams to deal with multi-disciplinary issues, relating to the environment.
14.6The limited mandate conferred on the earlier forum i.e. the NET and the narrow scope of jurisdiction of the National Environment Appellate Authority along with the involvement of multi-disciplinary issues arising in environmental cases, were intended to be addressed through the constitution of the NGT.
III. The Need for Purposive Interpretation
15.1While adequate clarity is discernible in the phraseology that is employed under Section 14 and other provisions of the NGT Act, as shall be discussed in later parts of thejudgement, the intention behind the statute should receive our careful attention. Tracing the legislative history for creation of the NGT it is seen that the NGT is intended to address wide ranging societal concerns and these have prompted us to opt for purposive interpretation.
The Statue will have to be read in its entirety and each provision of the Act must be given its due meaning by comprehending the mischief it intends to remedy. The chosen interpretive exercise is best understood from the treatise Interpretation of Statutes, authored by Justice G.P. Singh who explained thus, “When the question arises as to the meaning of certain provision in statute, it is not only legitimate but proper to read that provision in its context.
The context heremeans,the statute as a whole, the previous state of the law, other statutes inparimateria, the general scope of the statute, and the mischief that it was intended to remedy. This statement of the rule was later fully adopted by the Supreme Court. It is a rule now firmly established that the intention of the Legislature must be found by reading the statute as a whole.
The rule is referred to as an ‘elementary rule’ by ViscountSimonds: a compelling rule by LordSommervellof Harrow; and a “settled rule” by B.K.MukherjeeJ. “I agree” said LordHalsbury, “that you must look at the whole in order to give effect, if it be possible to do so, to the intention of the framer of it.”
15.2The mischief that the NGT Act attempted to remedywereunderscored in the legislative history, and the pronouncements of the constitutional Courts flagging their environmental concerns.
15.3The application of theHeydon’sRule could adequately aid us here as the Rule directs adoption of that construction which “shall suppress the mischief and advance the remedy” as was pertinently observed by Justice S.R. Das, for a seven judge bench in Bengal Immunity Co. vs. State of Bihar8, “the office of all judges is to make such construction asshalsuppresses the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief; and proprivatocommodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bonopublico.”
15.4FrancisBennionin his book Statutory Interpretation described ‘purposive interpretation’ as under: ‘A purposive construction of an enactment is one which gives effect to the legislative purpose by-
(a)followingthe literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or
(b)applyinga strained meaning where the literal meaning is not in accordance with the legislative purpose.’
15.5Justice Frankfurter of US Supreme Court in ‘Some Reflections on the Reading of Statutes’, has elucidated on the principles to ascertain the contextual meaning of statutes in the following manner,
‘The purpose of construction being the ascertainment of meaning, every consideration brought to bear for the solution of that problem must be devoted to that end alone. Judge Learned Hand speaks of the art of interpretation as ‘the proliferation of purpose’.”9
Eventually, Justice Frankfurter relied upon Justice Benjamin Cardozo’s phraseology in Panama Refining Co.Vs. Ryan, and the same is taken as a lodestar in our quest, “the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view”10.
15.6The laudatory objectives for creation of the NGT would implore us to adopt such an interpretive process which will achieve the legislative purpose and will eschew procedural impediment or so to say incapacity. The precedents of thisCourt,suggest a construction which fulfills the object of the Act. 11 The choice for this Court would be to lean towards the interpretation that would allow fructification of the legislative intention and is forward looking. The provisions must be read with the intention to accentuate them, especially as they concern protections of rights under Article 21 and also deal with vital environmental policy and its regulatory aspects.
IV. Salient Statutory Features of NGT Act –
16.1Applying the chosen tool of interpretation to the statutory layout of the NGT Act, following provisions will require the Court’s attention. Section 2(1)(c) of the NGT Act defines the term “environment”; Section 2(1)(m) defines “substantial question relating to environment”. Chapter III relates to jurisdiction, power and proceedings of the Tribunal.
The Section 14 gives original jurisdiction to the NGT to decide a substantial question relating to environment; Section 15 deals with relief, compensation and restitution whereby besides providing relief to the victims of pollution, the NGT can direct restitution of property damage and restitution of environment for such area(s) “as the Tribunal may think fit”. Section 16 gives appellate jurisdiction to the Tribunal against the orders passed under various enactments.
Section 17 provides for liability to pay relief or compensation in certain cases, Section 18 specifies who can move application/appeal before the Tribunal. It includes, among others, 18(2)(d) “any person aggrieved including any representative body / organization” and the locusstandiis not limited only to the aggrieved party. Section 19 provides for procedure and powers of the Tribunal. Section 19(1) significantly says that the Tribunal shall not be bound by procedures laid down in the CPC and shall be bound by the Principles of Natural Justice.
Section 19(2) provides that subject to the provisions of the Act, the Tribunal shall have powers to regulate its own procedure. Section 19(3) mentions that the Tribunal shall not be bound by the rules of evidence contained in the Evidence Act, 1872. While discharging functions under Section 19(4), besides summoning, enforcing attendance, examining persons on oath, requiring discovery and production of documents, receiving evidence on oath, the NGT also has powers to review its decision, to pass interim orders as well as pass cease anddesistorders.
Section 20 says that while adjudicating issues, the Tribunal shall apply the environmental principles, namely, sustainable development principles, precautionary principles and polluter pays principle. Under Section 25, the Tribunal can execute its order/decision as a decree of the Civil Court and for that purpose shall have all the powers of a Civil Court. Section 29 bars the jurisdiction of the Civil Court to entertain all environmental matters covered by the Tribunal. Under Section 33, the NGT Act has an overriding effect over other laws.
16.2While on the statutory provisions, it is seen that the Central Government has framed the National Green Tribunal (Practice Procedure) Rules, 2011 (for short “the NGT Rules”). For our purpose, Rule 24 is important which reads thus:
“24. Order and directions in certain cases – The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.”
16.3The said Rules make it clear that the NGT has been given wide discretionary powers to secure the ends of justice. This power is coupled with the duty to be exercised for achieving the objectives. The intention understandably being to preserve and protect the environment and the matters connected thereto.
16.4By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities. It also encompasses inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to the environmental principles and even hauling up authorities for inaction, when need be.
16.5Moreover, unlike the civil courts which cannot travel beyond the relief sought by the parties, the NGT is conferred with power ofmouldingany relief. The provisions show that the NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.
16.6Another distinguishing feature of the environmental forum is on the aspect of locusstandiwhich was made as wide as is available to the High Courts and the Supreme Court. Thus, any person or organization who may be interested in the subject matter is permitted to approach the NGT.
16.7The provisions of the NGT Act and the NGT Rules demonstrate that myriad roles are to be discharged by the NGT, as was encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons. This is also forthcoming from the international obligation and commitment by India to implement the decision taken at the Stockholm and the Rio De Janeiro Conventions towards protection of the environmental rights under Article 21 of the Constitution.
V. Non-Adjudicatory Roles of NGT
17.1As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the HighCourtsunder Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution. The Tribunal is also expected to proceed with such matters with the understanding that environment and environmental principles are part of Article 21 of the Constitution.[See Vellore Citizens’ Welfare Forum vs. UOI12; M.C. Mehta vs. UOI13 etc.]
17.2The Schedule I of the NGT Act is concerned with implementation of few environmental related enactments such as the Water Act, the Air Act, the Environment Act,theForest Conservation Act etc. As one looks at these enactments, an expanded role for the NGT is clearly discernible. The activities of the NGT are not only geared towards the protection of the environment but also to ensure that the developments do not cause serious and irreparable damage to the ecology and the environment. These would suggest a broad canvas for the NGT Act as also its creation.
17.3For the environmental forum, tasked with implementation of the statutes mentioned in Schedule I of the NGT Act, the concept oflis, would obviously be beyond the usual understanding in civil cases where there is a party (whether private or government) disturbing the environment and the other one (could be an individual, a body or the government itself), who has concern for the protection of environment.
Therefore, the NGT is primarily concerned with protection of the environment and also preservation of the natural resources. As the specialized forum, the NGT would be expected to take preventive action, besides settling and adjudicating disputes and pass orders on all environment related questions.
17.4The NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration. This aspect was specifically flagged in the 186th Law Commission Report,
“The Environment Court, in our view, must have power to frame schemes and monitor them and also have power to modify the schemes from time to time. If one looks at the problems raised in several cases and the directions issued by the Supreme Court, it will be observed that such a power is necessary to be vested in these Courts.
The Environment Court must be able to provide an “environmental solution” to grave problems like the one mentioned above and unless it has power to frame comprehensive schemes which will involve issuing directions to various departments, the solution cannot be implemented. Such a comprehensive jurisdiction is now being exercised both by the Supreme Court and High Courts. In our view, the proposed Courts must have similar powers. They will also have to monitor the schemes till they are successfully implemented on ground and, if necessary, modify the schemes from time to time.”
18.We have earlier discussed that the NGT is empowered to carry outrestitutiveexercise for compensating persons adversely affected by environmental events. The larger discourse which informs such functions is related to distributive and corrective justice, as will be elaborated in later paragraphs. Even in the absence of harm inflicted by human agency, in a situation of a natural calamity, the Tribunal will be required to devise a plan for alleviating damage. An inquisitorial function is also available for the Tribunal, within and without adversarial significance. Importantly, many of these functions do not require an active “dispute”, but the formulation of decisions.
19.1With the constitution of the NGT, many cases pending before the High Courts were transferred to the NGT. Apprehending the possibility of conflict between the High Courts and the NGT (in matters concerning environment and the statutes mentioned in Schedule I of the NGT Act), JusticeSwatanterKumar speaking for the three Judge Bench in Bhopal GasPeedithMahilaUdyogSangathanvs. Union of India14, highlighted the NGT’s role in the context, in the following words: –
“40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short “the NGT Act”) particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short “NGT”). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT.
Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before NGT. This will help in rendering expeditious andspecialisedjustice in the field of environment to all concerned.
41. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule I of the NGT Act, should also be dealt with by thespecialisedtribunal, that is, NGT, created under the provisions of the NGT Act. The courts may be well advised to direct transfer of such cases to NGT in its discretion, as it will be in the fitness of administration of justice.”
19.2In the above case, this Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of the NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registeredsuomotuby the Courts.
VI. Exercise ofSuoMotuPower by NGT
20.Let us now explore whether the NGT in discharge of its functions, should also havesuomotupower. The specialized tribunal’s exercise ofsuomotupowers is somewhat distinct from those exercised by the constitutional Courts. The Supreme Court and High Courts can foray into any issues under their constitutional mandate but the NGT cannot naturally travel beyond its environmental domain in reference to the scheduled enactments. However, As long as the sphere of action is not breached, the NGT’s powers must be understood to be of the widest amplitude.
21.1Explaining the purpose for constituting the special court to deal with environmental issues, inMantriTechzone(P) Ltd. vs. Forward Foundation15, Justice S. AbdulNazeerwriting for the three Judge Bench, made the following pertinent observations on the status of the NGT:-
“40. The Tribunal has been established under a constitutional mandate provided in Schedule VII List I Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development.
The Tribunal is aspecialisedjudicial body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to the environment. The right to healthy environment has been construed as a part of the right to life under Article 21 by way of judicial pronouncements. Therefore, the Tribunal has special jurisdiction for enforcement of environmental rights.”
21.2As can be seen from the quoted passage, this Court recognized that the NGT is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and in the context observed that the Tribunal has special jurisdiction for enforcement of environmental rights.
21.3Elaborating further, in paragraphs 44-46, the Supreme Court expressed that the interpretation that is infavourof conferring jurisdiction should be preferred rather than one taking away jurisdiction. It was specifically noted that,
“46. As stated supra the typical nature of the Tribunal, its breadth of powers as provided under the statutory provisions of the Act as well as the Scheduled enactments, cumulatively, leaves no manner of doubt that the only tenable interpretation to these provisions would be to read the provisions broadly infavourof cloaking the Tribunal with effective authority. An interpretation that is infavourof conferring jurisdiction should be preferred rather than one taking away jurisdiction.”
21.4Such being the wide contour of the NGT’s powers, the exposition in RajeevSurivs. DDA16 was not to constrict thesuomotupowers of the NGT. To appreciate the implication of the ratio in RajeevSuri, it must be noticed that it was in the specific context of ‘Merits Review’ and the NGT transgressing beyond its environmental mandate. This iswhy,one of us, Justice A.M.Khanwilkarobserved that,
“503. NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.”
21.5Thus, the ratio in RajeevSurito the quoted extent will not clash with the view propounded here as the exposition is not to allow any inherent power of residuary character for the NGT. In its own domain, ascrystalizedby the statute, the role of the NGT is clearly discernible.
21.6The need for an expert body with extensive functions and the sources of inspiration behind it was articulated in Andhra Pradesh Pollution Control Board v. Prof. M. V.Nayudu(Retd.) and Ors.17 where Justice M.JagannadhaRaospeaking for a Division Bench referred to a comparable court in Australia and noted the following,
“The Land and Environment Court of New South Wales in Australia, established in 1980, could be the ideal. It is a superior court of record and is composed of four Judges and nine technical and conciliation assessors. Its jurisdiction combines appeal, judicial review and enforcement functions. Such a composition in our opinion is necessary and ideal in environmental matters.”
The above would show that from the very inception, the role of the NGT was not simply adjudicatory in the nature of alisbut to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate.
VII. Uniqueness of NGT Vis-A-Vis other Tribunals
22.1While we see many tribunals functioning within their specified domains, variances do exist in the manner in which they are designed to function. The statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article 21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute.
22.2 The ideal was to create a fairly proactive and responsive Institution which could step into varying roles, as the situation demanded. Commenting on the specialized and unique role of the NGT, Justice AshokBhushanin State of Meghalaya vs. AllDimasaStudents Union18, fittingly observed thus:-
“163. The object for whichthesaid power is given is not far to seek. Tofulfilthe objective of the NGT Act, 2010, NGT has to exercise a wide range of jurisdiction and has to possess wide range of powers to do justice in a given case. The power is given to exercise for the benefit of those who have right for clean environment which right they have to establish before the Tribunal.
The power given to the Tribunal is coupled with duty to exercise such powers for achieving the objects. In this regard reference is made to the judgment of this Court in L.HirdayNarainv. CIT [L.HirdayNarainv. CIT, (1970) 2 SCC 355] ,wherein this Court was examining provision empowering authority to do something. This Court laid down inpara14: (SCC p. 359)
“14. The High Court observed that under Section 35 of the Indian Income Tax Act, 1922, the jurisdiction of the Income Tax Officer is discretionary. If thereby it is intended that the Income Tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income Tax Officer may rectify any mistake apparent from the record.
If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private- of a citizen.”
22.3Reflecting on the expanded role of NGT unlike other Tribunals, this Court so appositely observed that the forum has a duty to do justice while exercising “wide range of jurisdiction” and the “wide range of powers”, given to it by the statute.
23.During the course of its functioning, the NGT has been recognized as one of the most progressive Tribunals in the world. This jurisprudential leap has allowed our country to enter a rather exclusive group of nations which have set up such institutions with broad powers. To understand how the NGT is perceived globally, we may usefully refer to the views of Chief Justice Brian Preston of the Land and Environment Court of NSW Australia, “The NGT is an example of a specialized court to better achieve the goals of ensuring access to justice, upholding the rule of law and promoting good governance.”19
VIII. The Sui Generis Role of NGT
24.1The NGT being one of its ownkindof forum, commends us to consider the concept of a sui generis role, for the institution. The structure of Sui generis institutions was explained inParamjitKaurVs. State of Punjab20, wherein Justice S.SaghirAhmad spoke thus for a Division Bench,
“14. The concept of sui generis is applied quite often with reference to resolution of disputes in the context of international law. When the conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to arbiter is entrusted acts sui generis, that is, on its own and not under any law.”
24.2In DG NHAI vs.AamAadmiLokmanch21, Justice S.RavindraBhatcommenting on the sui generis role of the NGT, so appropriately stated as follows:-
“38. A conjoint reading of Sections 14, 15 and the Schedules would lead one to infer that the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or makerestitutionarydirections in cases where the violation (i.e. harm caused due to pollution or exposure to hazards, etc.) are the result of infraction of any enactment listed in the first schedule. Yet, that, interpretation, in the opinion of this court, is not warranted.
76. The power and jurisdiction of the NGT under Sections 15(1)(b) and (c) are notrestitutionary, in the sense of restoring the environment to the position it was before thepractiseimpugned, or before the incident occurred. The NGT’s jurisdiction in one sense is a remedial one, based on a reflexive exercise of its powers. In another sense, based on the nature of the abusive practice, its powers can also be preventive.
77. As a quasi-judicial body exercising both appellate jurisdiction over regulatory bodies’ orders and directions (under Section 16) and its original jurisdiction under Sections 14, 15 and 17 of the NGT Act, the tribunal, based on the cases and applications made before it, is an expert regulatory body. Its personnel include technically qualified and experienced members. The powers it exercises and directions it can potentially issue, impact not merely those before it, but also state agencies and state departments whose views are heard, after which general directions to prevent the future occurrence of incidents that impact the environment, are issued.”
24.3In that case, this Court repelled the argument for a restricted jurisdiction for the NGT, and fittingly observed in paragraph 76 that the powers conferred on the NGT are both reflexive and preventive and the role of the NGT was recognized in paragraph 77 as “an expert regulatory body”, which can issue general directions also albeit within the statutory framework.
24.4The above discussion would advise us to say that the NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take overall theenvironment related cases from the High Courts and the Supreme Court. Many of those cases transferred to the NGT, emanated in the superior courts and it would be appropriate thus to assume that similar power to initiatesuomotuproceedings should also be available with the NGT.
24.5The NGT is a Tribunal with sui generis characteristic, with the special and all-encompassing jurisdiction to protect the environment. Besides its adjudicatory role as an appellate authority, it is also conferred with the responsibility to discharge role of supervisory body and to decide substantial questions relating to the environment.
The necessity of having a specialized body, with the expertise to handle multidimensional environmental issues allows for anallencompassingframework for environmental justice. The technical expertise that may be required to address evolving environmental concerns would definitely require a flexible institutional mechanism for its effective exercise.
IX. Authority with Self-Activating Capability
25.1Given the multifarious role envisaged for the NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard the NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to takesuomotucognizance of matters, for effective discharge of its mandate.
25.2The analysis for this segment should commence with Section 14 of the NGT Act and the same being of great relevance is being extracted hereunder,
“14. Tribunal to settle disputes.-
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within thesaidperiod, allow it to be filed within a further period not exceeding sixty days.”
25.3The Section 14(1) of the NGT Act deals with jurisdiction, and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger the NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of the NGT gets activated.
On these material aspects, the NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by the NGT is not circumscribed by receipt of application. When substantial questions relating to the environment arise and the issue is civil in nature and those relate to the enactments in Schedule I of the Act, the NGT in our opinion even in the absence of an application, can self-ignite action either towards amelioration or towards prevention of harm.
25.4In the same spirit, we find merit in the arguments that Section 14(1) exists as a standalone feature, not constricted by the operational mechanism of the subsequent subsections. The sub Section (2) of Section 14 functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Likewise sub Section (3) thereafter, refers to the period of limitation concerning applications, when they are addressed to the NGT. Where adjudication is involved, the adjudicatory function under Section 14(2) comes into play.
When it is a case warranting NGT’s intervention, or may be a situation calling for decisions to meet certain exigencies, the functions under Section 14(1) can be undertaken and those may not involve any formal application or an adjudicatory process. However, the later provisions may not work in similar fashion. Therefore, care must be taken to ensure unrestricted discharge of the responsibilities under Section 14(1) and that wide arena of NGT’s functioning.
25.5The other pertinent provisions relating to, inter-alia, jurisdiction, interim orders, payment of compensation and review, do not require any application or appeal, for the NGT to pass necessary orders. These crucial powers are expected to be exercised by the NGT, would logically suggest that the action/orders of the NGT need not always involve any application or appeal. To hold otherwise would not only reduce its effectiveness but would also defeat the legal mandategivento the forum.
25.6It may also be relevant to bear in mind that while dealing with contested cases, the NGT is required to pass “award” and “order” and the statute repeatedly uses the word “decision”. Therefore, it is appropriate to correlate the word “decision” to the NGT, in its non-adversarial or inquisitorial role, as was suggested by the Law Commission and recognized in DG, NHAI (supra).
25.7The duty to safeguard Article 21 rights cannot stand on a narrow compass of interpretation. Procedural provisions must be allowed to fall in step with the substantive rights that are invoked in the environmental domain, in larger public interest. The specialized forum is bestowed with the responsibility to ensure protection of the environment.
To be effective in its domain, we need to ascribe to the NGT a public responsibility to initiate action whenrequired,to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.In the context, Justice V.R. KrishnaIyerspeaking for a Division Bench in State of Punjab Anr.Vs.ShamlalMurari Anr.22 has so correctly prioritized the substantive rights and observed succinctly,
“8. We must always remember thatprocessuallaw is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”
25.8While discussing the NGT’s power and responsibility, it is essential to keep in mind the Principle 10 of the Rio Declaration which speaks of three fundamental rights i.e., access to information, access to public participation and access to justice, as key pillars of environmental governance.
Access to justice, may however be curtailed by illiteracy, lack of mobility, poverty or even the lack of technical knowledge on the part of citizens.Another deterrenceis the likelihood of polluters/violators being powerful entities with adequate wherewithal to skirt regulations. Thus, it may not always be feasible for individuals to knock on the doors of the Tribunal, and NGT in such exigencies must not be made dysfunctional.
X. The Precautionary Principle
26.1Tracing the origin of the Precautionary Principle, ScottLafranchiin his treatise23 has expounded on the proactive role of the authorities in the following passage: –
“Many consider the German development ofVorsorgeprinzipto signify the true creation of the precautionaryprinciple,in light of the attention it focuses on “long term planning to avoid damage to the environment, early detection of dangers to health and environment through comprehensive research, and acting in advance of conclusive scientific evidence of harm.”16
The precautionary foundation ofVorsorgeprinziphas been described as an “action principle” that holds public authorities responsible for protecting the natural foundations of life and preserving the physical world for the present and future generations, and “‘can therefore be used to counter the short-termism endemic in all democratic, consumption oriented societies.'”
26.2The origin of the Precautionary Principle itself is rooted as an institutional obligation, by holding them primarily responsible for the environmental concerns and remedies.
26.3As earlier seen, S.20 of the NGT Act which includes the term “decision”, in addition to “order” and “award”, also require the Tribunal to apply the ‘Precautionary Principle’ and the statutory mandate being relevant is extracted: –
“20. Tribunal to apply certain principles.- The Tribunal shall, while passing any order or decisions or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.”
26.4The principle set out above must apply in the widest amplitude to ensure that it is not only resorted to for adjudicatory purposes but also for other ‘decisions’ or ‘orders’ to governmental authorities or polluters, when they fail to “to anticipate, prevent and attack the causes of environmental degradation”24.
Two aspects must therefore be emphasized i.e. that the Tribunal is itself required to carry out preventive and protective measures, as well as hold governmental and private authorities accountable for failing to uphold environmental interests. Thus, a narrow interpretation for NGT’s powers should be eschewed to adopt one which allows for full flow of the forum’s power within the environmental domain.
26.5It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well asnonadversarial. It would be apposite here to refer to Justice Benjamin Cardozo, of the United States Supreme Court, who in his seminal treatise, ‘The Nature of the Judicial Process’, stated thus,
“It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided.”
The above could be a pointer towards the preemptive functions of the NGT as a sui generis body.
XI. Environmental Justice andEnviromentalEquity
27.1The conceptual frameworks of environmental justice and equity should merit consideration vis-à-vis the NGT’s domain and how its functioning and decisions can have wide implications in socio-economic dimensions of people at large. The concept of environmental justice is atrifectaof distributive justice, procedural justice and justice as recognition.25 Environmental equity as a developing concept has focused on the disproportionate implications of environmental harms on the economically or socially marginalized groups.
The concerns of human rights and environmental degradation overlap under this umbrella term, to highlight the human element, apart from economic and environmental ramifications. Environmental equity thus stands to ensure a balanced distribution of environmental risks as well as protections, including application of sustainable development principles.
27.2Voicing concerns about the disproportionate harm for the poor segments, Lois J.Schiffer(then Assistant Attorney General, Environment Natural Resources Division (ENRD), U.S. Department of Justice) and Timothy J. Dowling (then Attorney at ENRD) in their Reflections on the Role of the Courts in Environmental Law, wrote the following evocative passage on the concept of environmental justice,
“Environmental Justice, which focuses on whether minorities and low-income people bear a disproportionate burden of exposure to environmental harms and any resulting health effects. In the past ten to fifteen years, this issue has crystallized a grass-roots movement that combines civil rights issues with environmental issues, with a goal of achieving “environmental justice” or “environmental equity,” which is understood to mean the fair distribution of environmental risks and protection from environmental harms.”26
27.3There is also a need to focus on the interconnection between principles of procedural justice and distributive justice. The concern is to create a system which is affirmative enough to balance the disproportionate wielding of power between polluters and affected people.
“Environmental justice starts with distributive justice, or more accurately, distributive injustice. The rich and powerful derive the most benefit while suffering the least harm from environmentally harmful activities; conversely, the poor and minorities derive the least benefit but suffer the mostharm.Further, those who benefit cause harm to the places where people “live, work, play, and go to school,” whereas the people who reside there do little or nothing to harm their community.” 27
When substantive justice is elusive for a large segment, disengaging with substantive rights at the very altar, for a perceived procedural lacuna, would surely bring in a process, which furthers inequality, both economic and social. An “equal footing” conception may not therefore be feasible to adequately address the asymmetrical relationship between the polluters and those affected by their actions. Instead,a recognitionof the historical experience of marginalized classes of persons while accessing and effectively using the legal system, will allow for necessary appreciation of social realities and balancing the arm of justice.
27.4The law must be interpreted in such a manner as to foster further development of existing legal concepts by incorporating this sense of equity. The issues which this Court has had the occasion to examine have highlighted the limitations of the mechanisms to reach to the heart of environmental concerns. This Court has previouslymouldedthe jurisdictional jurisprudence infavourof larger societal interest, whether thatbein the form of ‘Public Interest Litigation’ or widening the scope of locusstandi.
“The identification of potential environmental justice issues is very important in determining how our enforcement efforts are working in minority and low-income communities, and whether they are comparable to the enforcement efforts in other communities.”28
27.5In the backdrop of the above weighty concerns, this Court should advert to whatSchifferand Dowling have stated on the ‘Blindfold of Lady Justice’, which symbolizes “the ideal of administering equal justice to everyone who comes to our Courts, regardless of race, creed, or economic class.”29 The relevance of this concept is particularly apposite when we consider the inability of most marginalized communities, to access the legal machinery.
IX. Environmental Jurisprudence in India
28.1Proceeding with the above understating, we can comfortably place the NGT within the rubric of the larger environmental jurisprudence which has been informing this unique institution. Therole of this Court in establishing the legal connectbetween matters of environmental concern and fundamental rights of citizens, has produced much academic literature.
Amongst others, ArminRosencranzandShyamDivan in their writing- Environmental Law And Policy In India, have noted that the field of laws pertaining to environmental concerns has been a fairly fertile ground for judicial innovations by this Court; moving the concept of Environmental law from the realm of torts to interlink it with fundamental rights30, liberalizing the concept of locusstandiin environmental matters, exercisingsuomotupowers to reign in polluters, using expert committees to monitor implementation of Court orders, etc.31
28.2By expanding the scope of Articles 21, 32, 48A, 51A(g), this Court has guaranteed the right to a pollution free environment for a holistic existence.32 Most crucially, the expansion of Right to Life under Article 21 by this Court has become a touchstone to determine many environmental concerns. InSubhashKumarVs. State of Bihar, this Court explicitly held the following,
“Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.”33
28.3Adopting international principles andmouldingthem to Indian realities also became a focal concern, given the lacunae in regimes which may be exploited by those who may not have much concern for environmental degradation. Creation of the ‘Absolute Liability Principle’ 34 by this Court is a well recognized testament for this. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Court’s initiative.
“The constitutionally-protected fundamental right to life and liberty has been extended through judicial creativity to cover unarticulated but implicit rights such as the right to a wholesome environment. The right was recognized as part of the right to life in 1991. The court has since fleshed out the right to a wholesome environment by integrating into Indian environmental jurisprudence not just established but even nascent principles of international environmental law.”35
28.4It has been noted that the Supreme Court adopted the role of an “amicus environment” by threading together human rights and environmental concerns,resultinglydeveloping a sui generis environmental discourse.36 There were both procedural and substantive innovations made, by entertaining PIL petitions, seeking remedies, including guidelines and directions in the absence of legislation. Many of the landmark cases which hold the fort to thisday,were in recognition of the ‘at risk’ nature of some populations. The creation of the NGT itself was due in large part to the need expressed by this Court for such a forum.37
28.5Justice T.S.Doabiain Environmental Pollution Laws inIndia,has highlighted the larger societal concerns which have informed this Court’s deliberation when dealing with environmental matters, “The Supreme Court of India, in its interpretation of Article 21 of the Constitution of India, has facilitated the emergence of an environmental jurisprudence in India, while also strengthening human rights jurisprudence.
The Courts have successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the statute concerned.” 38
28.6Environmental jurisprudence in India has therefore been intrinsic to advancing a democratic, welfare oriented legal regime. Issues affecting the ecology and the environment must have a broad perspective and should have a society centric approach. Furthermore, the very nature of ecological and environmental issues has the propensity for rapid deterioration. Many such sensitive matters, as has been noted, stood transferred to the NGT, with the aim that those would be dealt with expediently with the required technical expertise and legal sophistication. Theproactivenessof the superior Court was surely expected to be seen in the Tribunal’s approach.
28.7Analyzing the concept of the functioning of the NGT and its role within the broader concept of the environmental rule of law, Justice D.Y.Chandrachudspeaking for a three judges Bench in H.P. Bus Stand Management Development Authority vs. Central Empowered Committee39 so succinctly said that,
“40. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools – conceptual, procedural and institutional to bring structure to the discourse on environmental protection.
It does so to enhance our understanding of environmental challenges – of how they have been shaped by humanity’s interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity’s actions have charted.
The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the ‘law’ element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges.
On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts.”
28.8It is this environmental rule of law that has been encapsulated with the NGT’s creation at this Court’s behest. ProfessorDomenicoAmirantein a comparative analysis of similar bodies across the world, notes that,
“With reference to the judicial enforcement of environmental law – which as we have seen should be considered an important condition not only for sustainable development but also for the sustainability of the legal environmental order – the National Green Tribunal of India seems to be the most comprehensive and promising among the specialized environmental Courts created in Asia over the last decade.”
40 The NGT therefore, is the institutionalization of the developments made by this Court in the field of environment law. These progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence.
29.Before we set out our conclusion, we acknowledge the able contribution of Mr.AnandGrover as amicus curiae, assisted by Ms.AsthaSharma, AOR who were requested to assist the Court on the central issue ofsuomotujurisdiction of NGT.
30.The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliament’s intention is clearly discernible to create a multifunctional body, with the capacity to provideredressalfor environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGT’s fabric. The NGT must be seen as a sui generis institution and notunusmultorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.
31.The environmental impacts on climate change are gaining increasing visibility in the shape of uncertain rains, species extinction,lossof natural habitat and so on. These also have the propensity to diminish fresh water resources, reduce agricultural yields and impact public health, particularly in the cities. The flooding and erosion inriverineand coastal areas are matters of serious concern. Governmental assessment of India’s increased vulnerability to such changes in the near future also exists41 with many countries declaring climate emergencies and many others being urged to follow suit42.
32.Therefore, the nature of ecological imbalance which is visible even in our own times may cascade, and the unforeseen injustice of the future may not be capable of being handled within the frontiers set forth today. The long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the ‘Seventh Generation’ sustainability principle, or the ‘Great Law of the Iroquois’ (as it originates from the Iroquois Tribe) which requires all decision making to withstand for the benefit of seven generations down the line.
33.It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter.
34.In circumstances where adverse environmental impact may be egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access.
It is also noteworthy that the “global impacts of climate change will fall disproportionately on minority and low-income communities”.43 Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself 43 Supra Note 23.requiresof the NGT. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice.
35.The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.
36.It would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action. To endorse such an approach would surely be rendering the forum procedurally shackled or incapacitated.
37.When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiatesuomotuaction by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters.
It must also be said that the exercise ofsuomotujurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.
38.One could admit to the argument of danger ofsuomotujurisdiction, if the NGT was acting outside its domain. But when it is legitimately working within the contours of its statutory mandate and with procedurals safeguards clarified above in play, the nature of the trigger itself viz. a letter or a ‘suomotu’ initiation, cannot be the basis to curtail the role and responsibility of the specialized forum.
39.Institutions which are often addressing urgent concerns gain little from procedural nitpicking, which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation. Not merely should a procedure exist but it must be meaningfully effective to address such concerns. The role of such an institution cannot be mechanical or ornamental. We must therefore adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.
40.Let us now hark back to the dialogues of the two protagonists, in Waiting forGodot, the play written by Samuel Beckett with which, we started this judgment. At the end of the deliberations, we find ourselves saying that the National Green Tribunal must act, if the exigencies so demand, without indefinitely waiting for the metaphoricalGodotto knock on its portal. The preceding discussion advises us to answer the pointed question in the affirmative. It is accordingly declared that the NGT is vested withsuomotupower in discharge of its functions under the NGT Act.
41.Having answered the common legal issue involved in all these cases regarding thesuomotujurisdiction of NGT, we direct delinking of these cases for now being heard separately on merits. Indeed, if the cases(s) emanate from same/common order of NGT, such case(s)beheard together. Registry may do the needful and post the matters on 25.10.2021 for direction and fixing date of hearing, before the Bench presided over by one of us (Justice A.M.Khanwilkar). For the purpose of further hearing, the respective cases shall not be treated as part-heard before this Bench.
October 7, 2021
1 Beckett, S. (1954).Waiting forGodot: Tragicomedy in 2 Acts.
2 (2013) 15 SCC 341
3 (2008) 1 SCC 125
4 (2011) 9 SCC 541
5 (2018) 11 SCC 734
6 (2019) 19 SCC 479
7ChapterII, 186th Law Commission Report.
8 1955 (2) SCR 603; AIR 1955 SC 661
9 47 Columbia Law Review 527
10 293 U.S. 388 (1935) (dissenting)
11 Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62, New India Assurance Co. Ltd.Vs.NusliNevilleWadia(2008) 3 SCC 279.
12 (1996) 5 SCC 647
13 (1997) 2 SCC 353
14 (2012) 8 SCC 326
15 (2019) 18 SCC 494
16 2021 SCC Online SC 7.
17 (1999) 2 SCC 718
18 (2019) 8 SCC 177
19 GILL, G. (2020). Mapping the Power Struggles of the National Green Tribunal of India: The Rise andFall? Asian Journal of Law and Society, 7(1), 85-126.
20 (1999) 2 SCC 131
21 2020 SCC Online SC 572
22 (1976) 1 SCC 719
23 ScottLaFranchi, Surveying the Precautionary Principle’s Ongoing Global Development: The Evolution of an Emergent Environmental Management Tool, 32 B.C.Envtl.Aff.L. Rev. 679 (2005)
24 Vellore Citizens (supra), S.Jagannathanv. Union of India (1997) 2 SCC 87, Karnataka Industrial Areas Development Board v. CKenchappaand Ors (2006) 6 SCC 371.
25 Schlosberg D, Defining Environmental Justice: Theories, Movements, and Nature (Oxford University Press 2009)
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27 Jeff Todd, A “Sense of Equity” in Environmental Justice Litigation, 44 HARV.ENVTL.L. REV. 169, 193 (2020).
28 Supra Note 26.
30 Rural Litigation And Entitlement Kendra Ors V. State Of U. P. Ors AIR 1985 SC 652,CharanLalSahuVs. Union of India (1990) 1 SCC 613,VirenderGaur Vs. State of Haryana (1995) 2 SCC 577
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32MaheshwaraSwamy, N. Law Relating to Environmental Pollution and Protection. India, Thompson Reuters,Vol.I, Ed.5.
33 (1991) 1 SCC 74.
34 M.C. Mehta vs. Union of India, 1987 SCC (1) 395.
35Rajamani,Lavanya. 2007. Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability. Journal of Environmental Law
36 Supra, Note 19.
37 M.C. Mehta vs. Union of India (1986) 2 SCC 176, Indian Council for Environmental-Legal Action v. Union of India (1996) 3 SCC 212, A.P. Pollution Control Board vs. M.V.Nayudu(1999) 2 SCC 718, A.P. Pollution Control Board II vs. M.V.Nayudu(2001) 2 SCC 62.
38 Justice T.S.Doabia, Environmental Pollution Laws in India, 3rd Ed.,Vol2 (2017).
39 (2021) 4 SCC 309
40DomenicoAmirante, Environmental Courts in Comparative Perspective: Preliminary Reflections on the National Green Tribunal of India, 29 PaceEnvtl. L. Rev. 441 (2012)
41 Indian Network for Climate Change Assessment, Climate Change and India: A 4X4 Assessment – Asectoraland regional analysis for 2030s, Ministry of Environment and Forests, Government of India, 16 November 2010
42 Secretary-General’s Remarks at the Climate Ambition Summit.United Nations.United Nations, December 12, 2020.