Green activists oppose Finance Act 2017, say it curtails NGT’s independence

New Delhi: Earlier this year, when the Finance Act 2017 was passed by Parliament, major changes in the appointment procedures for chairpersons and members of the numerous tribunals, including the National Green Tribunal (NGT), were approved.

Activists and environmental lawyers feel that the changes dilute the provisions of the NGT Act 2010 directly, affecting its independence and effectiveness, and are now gearing up for a court battle to oppose the move.

NGT was established in October 2010 under the NGT Act 2010 for effective and expeditious disposal of cases relating to environmental protection, conservation of forests and other natural resources.

But since its inception in 2010, the green tribunal, which is India’s nodal environmental court, has been at loggerheads with both Central and state governments.

For instance, in February, NGT criticized the Central government, stating that not a single drop of Ganga river has been cleaned so far, while public money is being wasted.

According to environmentalists, over the years, there have been many attempts to dilute NGT’s powers but this time the Finance Act 2017 has successfully made changes that could cripple its functioning.

Several environmentalists and activists met in Delhi on Tuesday to discuss the issue.

Through the Finance Act 2017, the Central government added a provision in the NGT Act 2010 which states that “appointment, term of office, salaries and allowances, registration, removal and others terms and conditions of service” of NGT’s chairperson, judicial members and experts members shall be governed by section 184 of the Finance Act 2017.

Section 184 of the Finance Act clearly says that the Central government may make rules for qualification, appointment, term of office, salaries and allowance, resignation, removal and other terms and conditions of service of the chairperson and other members of the tribunals.

The government then notified ‘The Tribunal, Appellate Tribunals and Other Authorities (Qualifications, Experiences and other conditions of service of members) Rules, 2017’ last month.

“The National Democratic Alliance (NDA) government knew that directly amending the NGT Act would invite controversy, result in serious opposition and public outcry and that is why it chose this indirect way,” said Himanshu Thakkar, co-ordinator of South Asia Network on Dams, Rivers and People (SANDRP), an NGO working on issues related to the water sector.

For instance, noted environmental lawyer Ritwick Dutta said, “NGT Act 2010 mandates that the Tribunal’s Chairperson should be either a Judge of the Supreme Court or has been a judge of the Supreme Court or is or has been Chief Justice of a High Court.” But the new notification (rules) does away with this requirement and now to become a chairperson, a person either “is, or has been, or is qualified to be, a Judge of Supreme Court” or “is, or has been, Chief Justice of a High Court” or “has, for a period of not less than three years, held office as Judicial Member or Expert Member” or “is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty-five years in law including five years’ practical experience in the field of environment and forests”.

“The new qualifications have serious consequences and huge implications on the quality of leadership as well as independence of the NGT,” Dutta added.

Similarly, Dutta highlighted that qualifications to become an expert or judicial member at NGT are also diluted, while giving greater bureaucratic control over the selection procedure.

“The term of office of a member which is 5 years under the existing NGT Act, 2010 is also reduced to 3 years under the new notification. This is when Supreme Court has clearly said that a five year term is required for members of the Tribunal,” Dutta said.

Other diluted provisions are related to salary and allowance of expert and judicial members of NGT, their removal from office and sanction of leave.

“Once the new Rules are implemented, the NGT will be manned by people who neither are qualified nor possess the experience, training, vision and outlook to deal with complex environmental problems. In addition to the above handicap, the members of the NGT will not have the administrative as well as functional autonomy and will be ‘under’ the control of the very (Union Environment) Ministry whose decisions they are required to adjudicate upon. Public confidence is bound to be low on such an Institution,” Dutta alleged.

Senior Supreme Court advocate Sanjay Parikh called the provisions to remove the chairperson and members of NGT “draconian”.

He said that such rules will certainly be challenged, or it will be “death knell for NGT and all other tribunals in the country”.

Vimal Bhai of Matu Jan Sangathan, which has been working on river conservation in Uttarakhand, said, “We cannot let NGT go. We will fight for it. NGT is a hope for many and we will not let it finish. We will approach court in this issue.”

Thakkar said, “NGT is a really unique institute. We need to really take it to people and nation and tell them what is happening with NGT. These efforts of government are part of larger design to cut down independence of institutions. We really need to fight against such designs.”

Interestingly, it is not the first time that the NDA government has attempted to dilute the NGT Act. A high-level committee formed by the Union environment ministry in 2014 had recommended curtailing NGT’s powers.