How PM Modi, the ‘Champion of the earth’, has weakened the National Green Tribunal

To the astonishment of many, Prime Minister Narendra Modi was recently conferred with a rare United Nations Award (this one for real) which hailed him as the ‘Champion of the Earth’. People and environmental activists were surprised because it is difficult indeed to see Narendra Modi as ‘environment friendly’ or imagine him taking the cause of sustainable environment seriously. This appeared to be a joke given his track record in Gujarat as the chief minister for 12 long years.

During the last four and a half years with Modi as the Prime Minister also, environment regulations and guidelines have been diluted and mindless clearances have been granted by the Government to cronies of the current regime. Whatever may have been the compulsion of the United Nations to confer the award—and to be fair the award is limited to the Prime Minister’s initiative in the area of solar energy—this is as good a time as any to look at the lip service paid to the Environment by the Prime Minister and the NDA Government.

Post-2014 scenario

Industrial houses and corporate bodies were up in arms in the run up to the 2014 general election, complaining about ‘environmental activism’ of ministers like Jairam Ramesh and Jayanthi Natarajan. The BJP and Narendra Modi passionately sided with corporate India and campaigned against the so-called ‘Jayanthi Tax’ and launched a full-scale attack against progressive, environmental policies that had led to the Forest Rights Act of 2010 and the ‘No Go’ policy to spare dense forests in river basins from mining activities.

The media unquestioningly fell in line and helped increase the decibel level. So unnerved was the UPA Government that instead of explaining the importance of the policies, it began surrendering.

No wonder the speed of mindless destruction has increased in recent years. The Government came up with the ingenuous argument that projects which require relatively less land are ‘linear’ and hence less problematic to the environment. While this defies the entire logic of conservation by slicing the landscape for highways and railway lines through forests, and some through sanctuaries and national parks—which would result eventually in much greater damage to the contiguous landcscape. Construction was allowed at the first stage of clearance itself, without waiting for the final clearance, which can be granted only on compliance of specified conditions in the law.

The Government has thus allowed miners and industry to circumvent the law. When one such order was challenged in the National Green Tribunal in 2015 by one Milind Pariwakam, instead of quashing the wholly illegal order of allowing construction in forests without final clearance, the NGT decided to accept and examine appeals against such ‘working permissions’ on a case-to-case basis. In the last four years, it has resulted in massive destruction and in non-compliance or partial compliance with the rules as activists opposing the projects on these grounds lost both interest and confidence in the Government and the NGT. The said order was possibly the first of the many such decisions since then to have made a dent in the credibility of the NGT and the reputation it had built up during the first 4-5 years of its inception.

The Government has actually weakened the institution considerably for reasons that are obvious. In an audacious move, the Finance Bill of 2016 made radical changes in the parameters for appointing members to the NGT laid down in the NGT Act of 2010.

Questionably, this was done through a Money Bill and without any debate in the Lok Sabha and without sending the Bill to the Rajya Sabha.

The Supreme Court has now ruled against the changes and directed that appointments must be made on the basis of the parameters laid down in the original Act. But even after changing the rules in 2016, the Government did not show any urgency in appointing new members. Four of the five NGT Benches in Pune, Bhopal, Kolkata and Chennai have ceased to function for want of members. Against the sanctioned strength of 21, the NGT is currently functioning with only six members including the chairman. Out of these six members, only two are ‘Technical’ members. Since the law lays down that one ‘Technical Member’ must be there on each Bench, only two of the five Benches can function simultaneously. And currently, the NGT is working largely out of the national capital, thus defeating the purpose of having regional Benches.

To put things in perspective, before the NGT was instituted, all environmental cases were being heard by the 24 High Courts and the Supreme Court. The apex court had a Green Bench to deal with the cases. Following the constitution of the National Green tribunal, cases can now be filed before the designated NGT Benches. When three or four of these Benches cease to function for want of members, the Government is clearly making it difficult for challenges to be filed, heard and examined. Delays are getting longer and cases are piling up. There are other subtle ways by which the Government has sought to slow down and stymie the NGT.

The appointment of Justice Adarsh Kumar Goel as chairman of the NGT following his retirement from the Supreme Court looks fine on paper. Justice Goel is known to be an upright judge and enjoys a reputation for fast disposal of cases. But arguably, he does not have enough exposure to environmental and forest land related cases. His predecessor Justice Swatantra Kumar was on the Green Bench of the Supreme Court before being appointed chairman of the NGT. Hence, he was more familiar with environmental jurisprudence. Most of the environmental challenges are flagged from coastal regions, southern and eastern states where mining and coastal regulations and restrictions exist. Justice Goel has had a relatively short stints in Guwahati and Odisha High Courts and since he hails from Punjab & Haryana High Court, it is unfair to expect him to be familiar with the complexities of such regulations.

Appointment of more specialists as technical members, who can assist the Chairman and other judicial members is therefore imperative. But the Government headed by the ‘Champion of the Earth’ has shown little urgency to do so. To add to the confusion, the NGT has adopted now a new practice of re-hearing cases which had already been heard and were reserved for order. Media reports suggest that the Tribunal will hear 18 such cases. While re-hearing cases is well within the jurisdiction of the judicial forum and is in conformity with judicial practice, this remains a relatively rare practice. Also, the practice is that such cases are put up before the original Bench. But it seems the full Bench will hear the 18 cases in the absence of experts.

Opposition also guilty

While the present regime is known to be hostile to human and community rights of people, Opposition parties are equally guilty in not raising their voice against systematic denial of Environmental Justice by the Government. Parties eventually need to uphold public interest and win public trust. Unfortunately, they seem to be doing little to take the issues to the people. The Congress to its credit enacted the Forest Conservation Act, Environment Protection Act, Forest Rights Act and National Green Tribunal Act amongst many statutes required to achieve the target of sustainable development. Expectations from the Congress is, therefore, higher and people expect the party to ensure environmental justice to the downtrodden