NGT Not Merely An Adjudicatory Forum; Inquisitorial Functions Also Available With It To Protect Environment : Supreme Court

The Supreme Court has declared that the National Green Tribunal is vested with suo motu powers to cognizance on the basis of letters, representation and media reports.

A Bench comprising of Justices A.M.Khanwilkar, Hrishikesh Roy and C.T.Ravikumar delivered the judgment on a batch of petitions (Municipal Corporation of Greater Mumbai v. Ankita Sinha and other and connected cases) which raised the issue whether NGT has suo motu jurisdiction. The judgment authored by Justice Hrishikesh Roy held that NGT is vested with suo motu power in discharge of its functions under the NGT Act.

Arguments advanced before the Bench

Senior Advocates Mukul Rohatgi, Dushyant Dave, Jaideep Gupta, Atmaram Nadkarni, Krishnan Venugopal, V Giri, Sajan Poovayya, Siddharth Dave, Dhruv Mehta, Jaideep Gupta, etc taking a common stand had extended the following arguments. One, that NGT being a Tribunal and a creature of statute could not acts on its own motion, exercise the power of judicial review or act suo motu.
Second, that NGT being a statutory body cannot assume inherent powers as under Art.32 and Art.226. Third, that NGT has an adjudicatory role to decide disputes which necessarily requires two or more contesting parties. Therefore, NGT by acting suo motu cannot transpose itself into shoes of one such party. Fourth, the absence of power of judicial review with NGT shows absence of legislative intent to curb suo motu power.

On the other hand, Senior Advocates Nidhesh Gupta, Sanjay Parikh, and Gopal Shankaranarayanan argued that NGT has been conferred powers to pass orders for the restitution of environment and hence can exercise suo motu powers.

Reasoning adopted by the Judgement

On the Mandate and Jurisdiction of NGT

The judgement refers to the history of the legislation, Preamble and Statement of Objects and Reasons of the NGT Act to observe that NGT was conceived as a special forum to deal with all environmental issues both as original and appellate authority which were hitherto dealt with by High Court and the Supreme Court.

It notes that the State of Objects and Reasons refers to the right to healthy environment being a part of Right to Life under Art.21 of the Constitution. It then goes on to observe that:

"An Institution concerned with a significant aspect of Right to Life necessarily should be given the most liberal construction." (Para 14.3)

In a later part of the judgement, the Court notes that this wide mandate conferred on the NGT would merit a more liberal interpretation of the provisions of NGT Act. It holds:

"The duty to safeguard Art.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….To be effective in its domain we need to ascribe to the NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application." (Para 25.7)

Further, the Court observes that the NGT Act was enacted with the objective of not only preventing damage to the environment but also protecting it. And thus,

"the mandate and jurisdiction of the of the NGT is conceived to be of the widest amplitude and it is in the nature of a sui generis forum." (Para 14.4)

The judgement explains that the reason the Court has adopted a purposive interpretation because the NGT is intended to address wide-ranging societal concerns. For this reason, the statute would have to be read in its entirety and each provision be given its due meaning by comprehending the mischief it intends to remedy. Relying on the Heydon's Rule which directs the adoption of the construction which suppresses the mischief and advances the remedy, the Court leans towards an interpretation which "would allow fructification of the legislative intent and is forward looking."

The judgement focuses on Rule 24 of the NGT (Practice and Procedure) Rules, 2011 which empowers the Tribunal to "make such orders or direction to give effect to its order…prevent the abuse of justice." The Court holds that the Rules make it clear that NGT has been given wide discretionary powers to secure the ends of justice.

"By choosing to employ a phrase of wide import i.e securing 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." (Para 16.4)

Further, the Court emphasises, unlike civil courts which cannot travel beyond the relief sought by parties, NGT has the power to mould any relief which implies that it has been vested with widest power to appropriate relief as maybe justified in each case. It stresses that since the Tribunal has been vested with wide power to locus standi whereby any person who maybe interested in the subject may approach NGT distinguishes it from other forums.

On whether NGT is merely an adjudicatory forum

Taking into account that a number of legislations like Water Act, Air Act, Forest Conservation Act, etc under Schedule I, the judgement concludes that the Parliament intended to confer wide jurisdiction on the NGT.

"For the environmental forum, tasked with implementation of the statutes mentioned in Schedule I of the NGT Act, the concept of lis, would obviously beyond the usual understanding in civil cases where there is a party (private or government) disturbing the environment and the other one (could be an individual, a body or the government itself), who has a concern for the protection of the environment."

Thus, in the Court's opinion, as a specialised forum NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration. It notes that NGT is expected to carry out restitutive exercise for compensating persons even in the absence of human agency in situations like a natural calamity. It notes:

"An inquisitorial function is also available for the Tribunal, within or without adversarial significance. Importantly, many of these functions do not require an active 'dispute' but the formulation of decisions." (Para 18)

In a later part of the judgement, the Court also notes that the NGT Act also uses the term 'decision' repeatedly which correlates to the role of NGT as a non-adversarial or inquisitorial role. (Pars 25.6) The court hold that the responsibility of NGT is not just to resolve legal ambiguities but to arrive at a result which can be of non-adversarial nature.

On the lack of Judicial Review

On the issue of absence of Judicial Review, the judgement notes that it was done with the objective to "streamline the mechanism" and arrest the of litigation before the High Courts and Supreme Courts.

"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." (Para 13.4)

And thus the lack of judicial review would not be an argument to argue that NGT does not have power to exercise suo motu powers.

On the comparison of NGT with other Tribunals

Counsels had argued that fact other Tribunals do not have suo motu powers would imply that NGT would also have a limited jurisdiction. On this question, the Court noted that Tribunals are of four kinds- Administrative Tribunals under Art.323A, Tribunals under Art.323 B, Specialised sector Tribunals and Tribunals to safeguard rights under Art.21. In this regard, the judgement holds:

"The duties of NGT bring it within the ambit of the fourth category, creating a compelling proposition for wielding much broaders." (Para 22.2)

The expanded role of NGT unlike other Tribunals, the Court opined, would mean that it couldn't be put on a the same pedestal as other Tribunals which did not have suo motu powers.

On the sui generis role of NGT

The court relied on the observation made in DG NHAI vs Aam Aadmi Lokmanch to repel the argument for a restricted jurisdiction for NGT. It reiterated the observations made therein:

"The powers conferred on NGT are both reflexive and preventive and the role of NGT…as expert regulatory body was recognised, which can issue general directions within the statutory framework." (Para 24.3)

It further holds that:

"The 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 over all the environment 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 similar power to initiate suo motu proceedings should also be available with the NGT." (Para 24.4)

Thus, the Court conclude the NGT is a Tribunal with sui generis characteristic.

On NGT's Suo Motu powers

The Court makes reference to Mantri Techzone Pvt Ltd v Forward Foundation to recognize that NGT is set up under a constitutional mandate in Entry 13 of List 1 of Schedule VII to enforce Art.21 rights and thus, the Tribunal must have special jurisdiction for the enforcement of environmental rights. Reiterating the observations made in the above case, the Court stresses that:

"Interpretation that is in favour of conferring jurisdiction should be preferred rather than on taking away jurisdiction." (Para 21.3)

The Court further distinguished the case of Rajeev Suri vs DDA relied on by the Counsels to argue that NGT did not have suo motu powers. The Court observed that Rajeev Suri was given in the context of NGT transgressing beyond its environmental mandate and wouldn't apply to the present case where the question was whether, within its own domain, NGT has suo motu powers.

Further, the Court opines that given the multifarious role envisaged for the NGT it would be fitting for the NGT to have a mechanism to set in motion all necessary functions within its domain and thus clothe it with the authority to take suo motu cognizance of matters for effective discharge of mandate.

In a later part of the judgement, the Court notes that Principle 10 of the Rio Declaration speaks of access to justice as a key pillar of environmental governance. The court observes that access to justice maybe curtailed by illiteracy, lack of mobility, poverty, lack of technical knowledge on part of citizens. Another deterrent maybe powerful polluters/violators who can skirt the regulations. In these circumstances, "it may not be feasible for individuals to knock on the doors of the Tribunal and NGT in such exigencies must not be made dysfunctional." (Para 25.8)

The judgement also notes that to advance the cause of environmental justice and equity there is a need to create a system which can create a balance the disproportionate power between polluters and affected people. (Para 27.3)

Thus, the court opines that suo motu powers would advance the "equal footing" concept required to address the asymmetrical relationship between polluters and those affected by their actions.

On the scope of its Suo Motu powers

The Court holds that NGT's exercise of suo motu powers is somewhat distinct from those exercised by constitutional courts. It circumscribes NGT's suo-motu powers by holding that:

"NGT cannot travel beyond its environmental domain in reference to 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." (Para 20)

On the need for an application to trigger suo motu powers

In response to the ASG's and Amicus Curiae's submission that an application would be required to trigger the suo motu powers of NGT, the judgement holds that such an application would not be necessary.The judgement relies on the language used in S.14 (1) of the NGT Act to back its reasoning. It observes that S.14 (1) conspicuously omits to specify that an application is necessary to trigger the NGT into action. Crucially, the judgement observes:

"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 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." (Para 25.3)

Further, it observed that the provisions relating to jurisdiction, interim orders, payment of compensation and review do not require any application and thus logically the actions/orders of NGT need not always involve any application or appeal.

The judgement notes that it would be "procedural hairsplitting" to argue 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.

"Institutions which are often addressing urgent concerns gain little from procedural nitpicking, whichare 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 orornamental. 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." (Para 39)

Thus, the judgement has held that given its special and exclusive role to foster public interest in the area of environmental domain, NGT must have the power to go beyond a mere adjudicatory role and exercise suo motu powers. A flexible mechanism of this sort would enable the NGT to address all issues pertaining to environmental damage and climate change so that we can leave behind a better environmental legacy for the upcoming generation.

"The NGT, with its distinct role for it, can hardly afford to remain a mute spectator when non-one knocks on its door," the judgement concludes.