Supreme Court Issues Guidelines For Effective Functioning Of Environmental Authorities, Says Regular Auditing Necessary

With a view to entrench "environmental rule of law" into India's environmental governance, the Supreme Court on Wednesday enunciated features that environmental bodies, authorities and regulators must imbibe to effectively preserve forests, wildlife, environment and ecology.

The Supreme Court passed a slew directions while approving the notification issued by the Ministry of Environment, Forest and Climate Change on September 5, 2023, under Section 3(3) of the Environment (Protection) Act, 1986, constituting the Central Empowered Committee (CEC) as a permanent body for “the purposes of monitoring and ensuring compliance of the orders of the Supreme Court covering the subject matter of Environment, Forest and Wildlife".

"Effective functioning of environmental bodies is imperative for the protection, restitution, and development of the ecology," said the Bench of Justices BR Gavai, PS Narasimha and Prashant Kumar Mishra, while giving the following illustrative set of guidelines:-

i. The composition, qualifications, tenure, method of appointment and removal of the members of these authorities must be clearly laid down. Further, the appointments must be regularly made to ensure continuity and these bodies must be staffed with persons who have the requisite knowledge, technical expertise, and specialisation to ensure their efficient functioning.

ii. The authorities and bodies must receive adequate funding and their finances must be certain and clear.

iii. The mandate and role of each authority and body must be clearly demarcated so as to avoid overlap and duplication of work and the method for constructive coordination between institutions must be prescribed.

iv. The authorities and bodies must notify and make available the rules, regulations, and other guidelines and make them accessible by providing them on the website, including in regional languages, to the extent possible. If the authority or body does not have the power to frame rules or regulations, it may issue comprehensive guidelines in a standardised form and notify them rather than office memoranda.

v. These bodies must clearly lay down the applicable rules and regulations in detail and the procedure for application, consideration, and grant of permissions, consent, and approvals.

vi. The authorities and bodies must notify norms for public hearing, the process of decision­-making, prescription of right to appeal, and timelines.

vii. These bodies must prescribe the method of accountability by clearly indicating the allocation of duties and responsibilities of their officers.

viii. There must be regular and systematic audit of the functioning of these authorities. 

The judgment was passed in the TN Godavarman Thirumulpad case, instituted in 1995, in which the top court has been passing orders from time to time towards protection of the environment. While monitoring environmental issues and concerns under the said case, the court has also been exploring the aspect of reconstitution of the Centrally Empowered Committee (CEC), ie a Committee for ensuring compliance of the court's orders on matters of environment, forest, wildlife, etc., as well as for suggesting measures to governments for better implementation of the Environment (Protection) Act (EP Act) and the court orders.

Briefly put, in the instant judgment, the court dealt with two aspects - first, institutionalization and reconstitution of the CEC, and second, functioning of authorities tasked with protecting the environment.

On the first aspect, it found that pursuant to Central government notifying constitution of the CEC as a permanent body, any concerns with respect to the Committee functioning as an ad-hoc body have been taken care of.

Perusing the notification, the court observed that the Committee is to function under the administrative control of the Ministry of Environment, Forest and Climate Change (MoEFCC). The salaries and allowances payable, other perks and conditions of service of its Chairperson and members are to be prescribed and they cannot be varied to their disadvantage after the appointment. Further, the CEC would be required to submit quarterly reports to the Central government and MoEFCC for periodical review and audit of its functioning.

Be that as it may, "to promote institutional transparency, efficiency and accountability", the court directed the CEC to adopt the following measures:-

i. The CEC shall formulate guidelines for the conduct of its functions and internal meetings. The CEC shall formulate the operating procedures delineating the roles of its members and the Secretary of the CEC.

ii. The CEC shall formulate guidelines about the public meetings that it holds, ensure the publication of meeting agenda in advance on its website, maintain minutes of meetings, and set out rules regarding notice to parties.

iii. The CEC shall formulate guidelines for site visits and, if necessary, hearing the public and affected parties therein.

iv. The CEC shall formulate guidelines fixing time limits for site visits, preparation of reports, and also the manner of preparation of reports.

v. We further direct that these guidelines/regulations must be accessible for anyone to seek. They shall be posted on the official website of the CEC.

On the second aspect, the court underlined the importance of intrenching rule of law into the governance of environmental issues. Highlighting the need to focus on policy framework and regulatory and implementation agencies, it said that with new bodies, authorities and regulators emerging for environmental governance, role of constitutional courts is enhanced, as they must ensure that these bodies work in compliance with institutional norms of efficiency, integrity, and certainty. 

"Accountability of the authorities impressed with the duty to enforce and implement environmental and other ecological laws is an important feature of judicial governance...The renewed role of constitutional courts will be to undertake judicial review to ensure that institutions and regulatory bodies comply with the principles of environmental rule of law."

It was clarified that the court would continue to exercise judicial review, particularly in environmental matters, wherever necessary. 

Background

The Supreme Court had originally directed constitution of CEC on May 9, 2002. Its composition was finalized by the court on September 9 the same year, but subsequently modified. For nearly 2 decades, the CEC worked as an ad-hoc body. Over the years, the environmental law landscape changed, especially as various statutes were enacted post constitution of the CEC.

On March 24, 2023, it was brought to the notice of the Supreme Court that while some members of CEC were over 75 years of age, a few lived abroad. Considering it appropriate to replace some members, the court asked for a list of persons, with expertise in environmental and ecological fields, who could contribute more efficiently.

In due course, the court also suggested that instead of the CEC being an ad-hoc body, it would be in the larger interest that it function as a permanent statutory body. The suggestion was accepted by the Central government.

On August 18, 2023, the Central government placed before the court a draft notification to be issued by the MoEFCC. In response to Amicus Curiae Advocate K Parameswar's suggestion that there should be a provision for periodical audit of CEC's functioning by MoEFCC, it was agreed that the final notification would incorporate a condition for periodical audit. Approving the draft notification, the court had then permitted the Union to proceed with the constitution of the CEC as a permanent body.

On September 5, 2023, notification was issued by the MoEFCC and the CEC constituted as a permanent body. This notification provided for the constitution of CEC, its powers, functions, mandate, members, method of appointment, terms of service, and monitoring of functioning. On September 8, the Committee's Chairperson and members were appointed.

CASE TITLE: IN RE: T.N. GODAVARMAN THIRUMULPAD VERSUS UNION OF INDIA AND ORS., WRIT PETITION (CIVIL) NO. 202/1995

Citation : 2024 LiveLaw (SC) 74

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