NTPC is challenging the NGT’s February order instructing it to install flue-gas desulfurization (FGD), a technology for removing sulphur dioxide from exhaust, at its 2,980 megawatts super thermal power plant at Sipat in Chhattisgarh, on the grounds of judicial overreach. It may well have a case because in the past, the Supreme Court has, in several instances, directed the NGT to review its orders.
This is the latest of several grievances filed before the apex court claiming that the tribunal erred in interpreting section 20 of the NGT Act to assume jurisdiction for something that is statutorily not within its domain. The section allows the tribunal to apply the principles of sustainable development, precautionary principle or the polluter pays principle.
The onset of covid-19, industry representatives and experts say, has only made it more imperative to revisit the original charter of the NGT, particularly with respect to the compliance burden on industry and frequent instances—as in the case of NTPC—of judicial overreach.
Already burdened by disruptions in supply chains, shortage of labour and capital, the domestic industry will be unable to absorb this additional shock, according to experts.
“Looking at the disruptions caused by covid-19, NGT should take a balanced view of the compliances till the situation returns to normal," said Ashok Khurana, director general of Association of Power Producers.
According to the experts, besides judicial members, NGT should be equipped with domain specialists well versed in the complexities of industrial operations.
According to Salman Waris, managing partner at TechLegis Advocates and Solicitors, the NGT recently adopted a new approach in dealing with cases— “dismiss, dispose, delegate and de-reserve", and delegating decision making to empowered committees. “(This signals) a shift from a judicial forum to an oversight body and this overall appears to be a hugely regressive step taken in the fight for environmental justice," said Waris.
Waris said NGT has set up more than 90 external committees to look into various aspects of cases, oversee and monitor compliance of different environmental laws and to report. “This gives an impression that the NGT is abrogating its own jurisdiction and the practice has been decried by higher courts and poses an undue burden on taxpayers’ money," he said.
Sambhav Sogani, partner at Lex Vid Partners, and advocate at Madhya Pradesh high court and NGT, who has served in some of these committees, said often the committees are formed which have no direct connect to the issue at stake and neither do they possess the expertise. Also, the panel members do not have any powers under NGT Act or any other authority which can help them to complete their report and findings correctly, he added.
“In the absence of the same, the findings of such committee does not help the tribunal much to reach a specific conclusion," Sogani said.
NGT did not respond to emailed queries.
Disagreeing with the arguments against NGT, Nawneet Vibhaw, partner, Khaitan and Co., said, “Establishing the NGT has been a remarkable event for India and the tribunal is doing a great job despite the shortage of resources and non-appointment of judicial and expert members. It has successfully ensured that the polluters begin to fear the environmental laws in India and that itself is a remarkable achievement. Like all courts, it is possible that some decisions of the NGT may also be criticized but that in no way negates the good work being done by the tribunal".
Sogani said, however, that the judicial overreach by NGT can be contained if the Supreme Court lays down operating guidelines. “The interpretation of certain operating sections of NGT will serve that purpose," he said.
Japnam Bindra contributed to this story.