Facts
An article published on The Quint, titled “Garbage Gangs of Deonar: The Kingpins and Their Multi-Crore Trade” reported the adverse impact of mismanagement of solid waste on public health and lives of residents living around the dump yard in Mumbai. The article also highlighted the negative toll this mismanagement is taking on the overall environment as well.
This article authored by Ankita Sinha led to NGT taking suo motu cognisance of the case and it was directed that the author would be the applicant in this case.
Subsequently, inspections were conducted at the dumping grounds of Deonar by CPCB, Maharashtra Pollution Control Board, representatives from the Municipal Corporation of Greater Mumbai and also the District Collector of the area. The outcome of these inspections was a report, the highlight of which was that the aforementioned grounds were not in compliance with the provisions of the ‘Solid Waste Management Rules, 2016’.
Consequently, the NGT noted that harm to public health and the environment is self-evident and ordered Rs.5 crore to be paid as compensation by the Municipal Corporation of Greater Mumbai by its order dated 30.10.2018.
The Municipal Corporation of Greater Mumbai aggrieved by the order of NGT filed an appeal before the Supreme Court.
Issues Raised
Whether the NGT is empowered under the NGT Act, 2010 to exercise suo motu jurisdiction?
Contentions
Arguments that were raised against the suo motu powers of the NGT by counsels for the appellant/petitioner were threefold. Firstly, they argued that since the NGT was a statutory creation it did not have powers of suo motu cognisance. It had to function within the confines of the statute. It did not enjoy inherent powers, like the High Court and Supreme Court do under Article 226 and Article 32 respectively. The counsels cited the following cases in support of their argument – Standard Chartered v. Dharminder Bhohi, Transcore v. Union of India, Rajeev Hitendra Pathak v. Achyut Kashinath.
Secondly, it was argued that since the Tribunal did not possess the powers of judicial review it could not act suo moto. To bolster this argument, the following judgments and statements were referenced – Tamil Nadu Pollution Control Board v. Sterlite Industries Ltd. And Justice Gajedragadkar in Powers, Privileges and Immunities of State Legislatures quoted Halsbury’s Laws of England (Vol.9, p.349) in order to bring out the distinction between the powers of the superior courts (High Courts & Supreme Court) and the inferior courts (Tribunals):
“no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court”.
Thirdly, the last argument advanced is that NGT has an adjudicatory role to discharge, which would involve lis between two or more parties, therefore the NGT by taking suo motu cognisance cannot subsume the role of one of the parties. Precedents referenced to substantiate the concluding argument.- Techi Tagi Tara v. Rajendra Singh Bhandari and Ors., Prabhakar v. Deptt. of Sericulture
The Amicus Curiae in this case, learned Senior Counsel Mr. Anand Grover also advanced arguments against the suo motu powers of the NGT. Mr. Grover held that the NGT cannot act on its own motion, otherwise it would be equivalent to it being a judge of its own cause. Further, he argued that since suo motu powers are not derived from the NGT Act, the Tribunal can only act when it is approached by an outside party.
The learned ASG, Ms. Aishwarya Bhati, arguing on behalf of the Central Government also made submissions against the suo motu powers of the NGT. She argued that suo motu powers have not been bestowed upon the Tribunal by the NGT Act. Therefore, it cannot act on its own motion like the High Courts and the Supreme Court.
The counsels for the respondents/defendant took a contrary view. They made arguments in favour of the suo motu powers of the NGT by referring to its history and the special objective with which it has been incorporated.
Rationale
The judgement was delivered by a three judge bench of Justice A.M. Khanwilkar, Justice Hrishikesh Roy and Justice C.T. Ravikumar on 7th October 2021.
In order to substantiate the argument that the NGT has the powers to take suo motu cognisance, the Hon’ble Supreme Court referred to the following:
(A) History of the Legislation
The NGT was conceptualised as a special forum to deal with all kinds of environmental disputes and it was to be conferred with original and appellate jurisdiction. It was to function in a complementary fashion to the High Courts and the Supreme Court who previously bore the burden of environmental cases before NGT came into existence. After the establishment of NGT, it was to function as an ‘alternative efficacious remedy’.
The NGT was free to formulate its own procedure regarding- receipt of evidence, whether oral or documentary or regarding consultation of experts etc. But the principles of natural justice must be adhered to at all times.
(B) Preamble and Statement of Objects & Reasons of the NGT Act
Paragraph 4 of the Statement of Objects and Reasons, mentioned the National Environment Tribunal Act, 1995 (NET), a precursor to NGT, whose mandate and jurisdiction were very limited and narrow in comparison to NGT. Further paragraph 5 of the Statement of Objects and Reasons referred to how due to a large volume of pendency of environment related cases in superior courts, the Supreme Court felt the need for a specialised body to deal with the same. Therefore, it requested the Law Commission to look into the establishment of such an organisation.
Another important aspect of the Statement of Objects and Reasons is the right to a healthy environment, which comes under the umbrella of Article 21 of the Constitution.
Therefore, in order to achieve the aforementioned objective of a right to a healthy environment, to deal with multi-disciplinary issues that arise in environmental cases and to finally go beyond the limited mandate and jurisdiction of the NET, the NGT was conceptualised.
(C) Parliamentary intent behind the legislation (purposive interpretation)
In order to achieve the lofty goals with which NGT was conceptualised, it is important to take into consideration the intention behind the legislation. For this the statute will have to be contextualised and read as a whole, including the history of the law, scope of the statute, the defect that the law was meant to address etc.
Purposive interpretation was defined by Francis Bennion as:
“A purposive construction of an enactment is one which gives effect to the legislative purpose by–
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose”.
Purposive interpretation of the NGT Act is necessary, since it concerns itself with protection of rights enshrined under Article 21 and key environmental policies and its regulatory measures.
Another important aspect that was covered in the judgement, demonstrated that the jurisdiction of NGT is not just confined to adjudication between two parties but it is rather liberal, was derived from Rule 24 of the National Green Tribunal (Practice & Procedure) Rules, 2011. The usage of the term ‘secure the ends of justice’ in this rule, envisages a wide role for NGT ranging from “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”.
Therefore, NGT is not just an adjudicatory body, but it also acts for preventing, remedying and ameliorating environmental harm. All of this adds further strength to the argument that there need not be a dispute between parties in order for NGT to act.
Another line of argument is that since NGT was conceptualised to allay the burden of the High Court’s and the Supreme Court with regard to environmental matters and the cases that were transferred to it had originated in the superior courts, similar suo motu powers can be assumed to be possessed by the NGT.
In summation, NGT possesses suo motu powers to take cognisance of matters when, firstly the matter is of a civil nature, secondly it involves substantial questions relating to the environment and thirdly they are related to enactments covered by Schedule I of the Act. In such cases, the NGT need not wait for an application by the parties to swing into action. Rather, it can act on its own motion.
Defects of Law
The Supreme Court in this case held that the NGT possesses suo motu powers, which enables it to act expeditiously in order to prevent, remedy or alleviate environmental harms. But the exercise of this power is not without its defects. There will always be an inherent problem of arbitrariness, as there are no fixed guidelines or directions as to the circumstances in which the Tribunal should exercise its suo motu powers. Therefore, since judges act according to their own sensibilities, the exercise of suo motu powers will lack uniformity.
Furthermore, there is always a risk of the Tribunal overstepping its boundaries by encroaching upon the legislative and executive domains, thereby assuming functions beyond its mandate.
As the NGT includes both judicial members and experts, the latter may lack the necessary legal expertise to appropriately handle suo motu cognizance, potentially leading to erroneous outcomes.
If the NGT takes suo motu action based on media reports, a question of bias may arise, potentially affecting judicial neutrality and evidence appreciation.
Finally, suo moto powers of the NGT enable it to act proactively in environmental matters, this can result in an inquisitorial approach where the tribunal engages in active investigation of matters as opposed to solely relying on submissions by parties. While this approach does ensure greater protection to causes related to the environment, it can prove to be a time-consuming departure from the adversarial system, where it is incumbent on parties to present evidence. This shift also raises justifiable concerns regarding potential judicial overreach, procedural delays, as well as the risk of compromised fairness in adjudication.
Inference
Justice Hrishikesh Roy, who authored the judgement, began the judgement by quoting from a play titled ‘Waiting for Godot’ written by Samuel Beckett in order to drive home the point that just as the protagonists were waiting for some Godot, the NGT cannot wait for an application to be made in order to rectify environmental harms. In today’s times, when environmental degradation and concerns have already risen to alarming levels, we are well past the time for complacency. It is in everyone’s interest that NGT plays a proactive role in addressing environmental harms. Therefore suo motu powers of the NGT, despite their limitation and potential drawbacks, would certainly help in achieving the mandate for which the tribunal was constituted in the first place, that is to protect and preserve the environment and also achieve environmental justice.
Author:
Ambica Sood
Campus Law Centre, Faculty of Law, University of Delhi