The Environment Ministry has systematically undermined the National Green Tribunal, giving expert committees a free hand to grant forest clearances to private projects

The Ministry of Environment and Forests (MoEF) has adopted a confrontationist approach with the National Green Tribunal (NGT). In its recent affidavit before the Supreme Court of India, the ministry stated that the tribunal has “exceeded its brief” and caused it “embarrassment” in Parliament. The affidavit was withdrawn and time sought to file a proper affidavit. The Supreme Court even threatened to stay the operation of the tribunal in view of the hostile approach of the MoEF towards the green body.

It is therefore necessary to trace the reasons for this “conflict” and “embarrassment” and the implications of staying the operation of the tribunal.

Specialised body

The NGT is a Statutory Tribunal and was created by Parliament as a specialised judicial and technical body to adjudicate on environmental disputes and issues. The enactment of the NGT Act, 2010 was itself an outcome of a long process and struggle. The Supreme Court in a number of cases highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court. Though the credit for enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became functional only because of repeated directions of the Supreme Court while hearing the Special Leave Petition titled Union of India versus Vimal Bhai (SLP No 12065 of 2009). The recent developments and the hostile approach of the MoEF towards the NGT seems to suggest that the aim of Mr. Ramesh’s successor (Jayanthi Natrajan) is to dismantle the tribunal.

Track record

Despite all the hurdles including financial and administrative bottlenecks, the NGT has emerged as a new hope for the environmental movement in the country. The NGT Act is no less important than the Right to Information Act, 2005, the Right to Food Bill and the National Rural Employment Guarantee Act, 2005. Environmental degradation affects livelihoods, health and access to food. Environmental struggles most often aim at ensuring that information about proposed projects (Environment Impact Assessment reports), air and water quality data is shared with the people. Over the last two years, the NGT has delivered 185 judgments on various environmental issues. The MoEF together with the Central Ground Water Authority, the Central Pollution Control Board and the various State governments have been forced to wake up from years of slumber and total inactivity. One of the most significant powers of the NGT is the capacity to do “merit review” as opposed to only “judicial review.” Under the writ jurisdiction of the High Court or Supreme Court, the courts are essentially concerned with the “decision making process” and not the “merits” of the decision. As a merit court, the NGT becomes the primary decision maker and therefore can undertake an in-depth scrutiny into not just the law but also the technical basis of a particular decision.

A new jurisprudence on the environment is steadily emerging in the country and is an example for the rest of the world. Today, nearly 50-60 Appeals and Applications are heard each working day before the various benches of the NGT. At a time when Environment Impact Assessments reports are a blind “copy and paste,” job where public hearings are a “mockery” and non-compliance with environmental rules and regulations are the order of the day, the NGT serves to restore faith in the “Rule of law.”

CAG report

Why is the MoEF not keen to see the NGT functioning? The answer is quite simple. The conduct of the ministry as well as the various statutory bodies on the environment has never been called into question in a systematic manner and its decisions have rarely been subject to any “merit review.” This has given a free hand to the various expert committees, boards and the officials as well as the Minister to arbitrarily grant approval to projects disregarding the environmental and social impact of projects and most often in violation of laws and rules. The recent report of the Comptroller and Auditor General of India (CAG) clearly proves the casual manner in which forest clearance issues have been dealt with by the MoEF as well as the State governments mostly to favour private companies. History tells us that the MoEF’s designs have largely succeeded. Post the Bhopal disaster, the National Environment Tribunal Act was passed by Parliament in 1995 to fix liability on a polluter. It never became operational. The National Environmental Appellate Authority set up through an Act of Parliament in 1997 was made defunct by the MoEF and led the Delhi High Court to conclude that the intention of Parliament to set up an effective grievances redressal forum has been defeated.

The recent affidavit is a wake-up call to those trying to protect the environment, the rights of communities as well as ensuring greater accountability in the government’s functioning. If the MoEF succeeds in its design, it would mean its third success in stalling a parliamentary legislation meant to keep a watch on its activities and decisions and protecting the rights of communities.

(Ritwick Dutta is an environmental lawyer and managing trustee of Legal Initiative for Forest and Environment.)

Parks, sanctuaries on mining no-go list soon


NEW DELHI: A panel set up to review norms for no-go areas that will protect certain areas from commercial activity is likely to recommend mining should be disallowed in all national parks and wildlife sanctuaries in the country.

Sources in the government told TOI that the committee, headed by the Union environment and forests secretary, is likely to close the debate over no-go areas as it is not inclined to reassess protected areas in view of existing legal protection provided to national parks and sanctuaries that has been supplemented by orders of the Supreme Court.

The committee was set up after a Group of Ministers (GoM) on coal asked the environment ministry to reconsider parameters for no-go areas, where mining is not permitted. They were renamed inviolate areas and the ministry asked to set new norms to be put before the GoM.

The panel’s decision can make it difficult for any relaxation of a policy that has come under pressure from some central ministries and state governments. While ministries like coal and mining have been keen that the no-go policy be made less rigid, the committee does not seem to favour any dilution.

The panel, sources said, feels that parks and sanctuaries provided a higher level of protection under the Wildlife Protection Act, 1976, should not be re-evaluated for their forest value. The head of the Wildlife Institute of India, Forest Survey of India and other senior forest officers from the Centre and select states are the other members of the committee.

There are 661 such protected areas comprising of 100 National Parks, 514 Wildlife Sanctuaries, 43 Conservation Reserves and 4 Community Reserves that add up to roughly 5% of the country’s geographical area. This includes the tiger reserves as well.

The committee is likely to recommend that patches of forest be measured for their forest cover as well as biodiversity values. The panel has not considered the implications of the Forest Rights Act as yet. Under the existing rules, the ministry cannot allocate forest lands to development projects until the rights of the people under the FRA have been settled and the village councils of the affected area agreed to the diversion of forest.

Once the committee’s recommendations are considered by the GoM and approved, the ministry would be asked to again demarcate the no-go zones for mining, but this may happen only after the cases of Mahan and Chhatrasal blocks in Madhya Pradesh, which the GoM has pushed hard for clearing, are reassessed.

Gigantic challenge


Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court’s judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don’t want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court’s intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report’s conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister’s Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn’t say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don’t agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India’s water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.


National Green Tribunal

Mango tree with flowers
Image via Wikipedia

The Government has appointed four Expert Members and two Judicial Members in the National Green Tribunal (NGT). A Selection Committee as per the details given below has been constituted under Rule 3 of NGT (Manner of Appointment of Judicial and Expert Members, Salaries, Allowances and other Terms and Conditions of Service of Chairperson and other Members and procedure for Inquiry) Rules, 2010 dated 26.11.2010, framed under NGT Act, 2010:

(1)        Sitting Judge of Supreme Court nominated by the Chief Justice of India in consultation with Ministry of Law and Justice– Chaiperson
(2)        Chairperson of the NGT                                                                                         Member
(3)        Secretary to Government of India, M/o Environment & Forests       Member
(4)        Director, Indian Institute of Technology, Kanpur                                    Member
(5)        Director, Indian Institute of Management, Ahmadabad                        Member
(6)        President, Centre for Policy Research, New Delhi                                    Member

 During the first phase of selection process of Members in the Tribunal, the following criteria were applied on the applicants who initially fulfilled the eligibility under Section 5 of the NGT Act, 2010 for further screening of applications:

For Judicial Member

No sitting/former Judge of the High Court will be considered for appointment to the post of ‘Judicial Member’ of the Tribunal if he has retired prior to one year or still has more than one year in service, both computed from the date of advertisement. It is in the interest of the Tribunal and administration of Justice as well that a person appointed should have reasonable tenure to be the Member of the Tribunal and discharge his functions effectively.

The other terms are the Judge concerned should have preferably performed judicial work relating to Environment Laws, the comments of the Chief Justice of the concerned High Court, may also be invited in relation to judges short-listed for appointments as ‘Judicial Member’ of the Tribunal and the applicants who are presently working as Member of any Tribunal or have got an assignment post-retiral will not be considered.

 For Expert Member

(a)        No serving/retired Government employee will be considered for appointment to the post of ‘expert Member’ of the Tribunal if he has retired prior to one year or still has more than one year in service, both computed from the date of advertisement .It is in the interest of the Tribunal and administration of justice as well that a person appointed should have reasonable tenure to be the Member of the Tribunal and discharge his functions effectively.

 (b)        The ‘Expert Member’ besides satisfying the qualifications prescribed under Section 5 read with Rule 5 should have requisite experience relatable to expertise in the environmental management.

 (c)        The Ministry to also examine whether there is any serious conflict of interest between the applicant and the Ministry/ Administrative interest of the Tribunal

 (d)       The applicants who have opted for deputation only and are below the rank of Additional Secretary to the Government of India would not be considered.

 This information was given by the Minister of State for Environment and Forests (independent charge) Shrimati Jayanthi Natarajan in a written reply to a question by Dr. Arvind Kumar Sharma in Lok Sabha today.

What is a forest? India yet to define

New Delhi, June 4 (IANS) Most people have read the definition of a “forest” at some point or another, but in India its legal definition is still evolving within the four walls of the environment ministry.

According to the ministry, work is on to come up with an “ecologically sound and socially desirable definition of forests and forestry”.

“We are still working on the definition of forest and will let you know once we finalise it,” Brij Mohan Singh Rathore, joint secretary on the Green India Mission in the environment ministry, told IANS.

Rathore, however, denied commenting on what is delaying the definition. According to the ministry’s official document, the Indian Forest Act, 1927, does not define the forest, and the legal extent of forests depends upon the process of notifications.As of now what is followed is based on the Supreme Court order which defines forest as given in the dictionary, say experts.

“The term forest doesn’t have any definition in India. It is defined on the basis of the 1996 Supreme Court order which says anything should be forest if it meets one of the two definitions – either the dictionary definition or land recorded as forest on any government record,” Shankar Gopalakrishnan from the Campaign for Survival and Dignity, an NGO working for forest dwellers, told IANS.

According to Gopalakrishnan, it is a vague definition and provides huge scope for misuse of power by the authorities. “The interesting part is that it gives space to the government to use draconian powers at its convenience and mark an area as forest or non-forest,” he added.

The ministry’s documents further said recent concerns about climate change also require greater clarity regarding definition of forests for the purpose of understanding opportunities and obligations under the global carbon sequestration regime.

“In this context, the ecologically sound and socially desirable definitions of forests and forestry require to be examined in the Indian context keeping international commitments and different orders of the apex court of the country into consideration,” it added.

The ministry some years ago had asked the NGOs to suggest some definition of forests but has rejected all the suggestions. “It’s in fact a funny situation and entangled between a couple of things. I think it is better to have satellite imagery and fix a bar on the dimension of a forest and then calculate land under forest and non-forest area in the country,” said Yogesh Gokhale, a fellow with the forestry and biodiversity division, the Energy Research Institute (TERI).

Even without a definition, the Prime Minister’s Council on Climate Change in February approved the country’s forestry mission – Green India Mission – to fight climate change.

The mission, one of the eight under the National Action Plan on Climate Change (NAPCC), projects an ambitious target of 10 million hectares of forest cover by 2020 at a cost of Rs.460 billion ($10 billion).

For the first time, this year India is also the global host of United Nations World Environment Day June 5 and the theme is ‘Forests: Nature at Your Service’, which celebrates the multitude of services – providing clean air, housing rich biodiversity, supplying water – performed by the world’s forests.

Conflicting signals


The Supreme Court judgment dismissing the curative petitions against its verdict in the Bhopal gas criminal case leaves observers nonplussed.

ON May 11, a Constitution Bench of the Supreme Court unanimously delivered a judgment that, perhaps, should never be considered a precedent. The Bench, comprising Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam, held that a judgment delivered by the Supreme Court could not bind a lower court and that no decision by any court, including the Supreme Court, could be read in a manner as to nullify the express provisions of an Act or the Code of Criminal Procedure (CrPC).

The judgment, according to several experts, is deeply flawed. The Bench delivered the judgment while dismissing curative petitions filed by the Central Bureau of Investigation (CBI) and others for recalling and setting aside the Supreme Court’s judgment in Keshub Mahindra vs State of Madhya Pradesh, delivered on September 13, 1996. In Keshub Mahindra, a two-judge Bench, comprising Justice A. Ahmadi and Justice S. Majmudar, had quashed the charge of culpable homicide under Section 304 (Part II) of the Indian Penal Code, framed by the sessions court, against nine Indian accused in the Bhopal gas disaster criminal case and had directed the trial court to frame charges against them under Section 304-A, IPC.

The three foreign accused – the then chief of the Union Carbide Corporation, Warren Anderson; UCC; and Union Carbide Eastern Inc. – were absconding and did not, like the Indian accused, appeal against the charge of culpable homicide framed by the trial court. The Madhya Pradesh High Court had upheld the charge of culpable homicide against the accused before they went in appeal in the Supreme Court.

Under Section 304 (Part II) of the IPC, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment, which may extend to 10 years, or with fine or with both if the act is done with the knowledge that it is likely to cause death. Section 304-A, on the other hand, seeks to punish those causing the death of any person by doing any rash or negligent act not amounting to culpable homicide with imprisonment for a term that may extend to two years, or with fine, or with both.

More important, in Keshub Mahindra, the Supreme Court invoked its powers under Article 142 of the Constitution. This Article empowers the Supreme Court to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter pending before it, and such decrees or orders shall be enforceable throughout the country. In Keshub Mahindra, the court invoked this Article in order to avoid multiplicity of proceedings and to hold that the material led by the prosecution could only support charges under Section 304-A against the accused. It is fairly well settled that once a superior court holds that only Section 304-A of the IPC is applicable against the accused, Section 304 (Part II) will be inapplicable against the same accused in that case because the charge of negligence automatically excludes the charge of culpable homicide.

Surprisingly, the Supreme Court, in its May 11 judgment, did not deal with the question of how a decree or order made under Article 142 of the Constitution cannot be binding on a trial court. The curative petitions argued that because of the judgment in Keshub Mahindra, the trial court (Chief Judicial Magistrate, Bhopal) was barred from exercising its judicial power under Section 323 of the CrPC. This provision enables a magistrate to alter the charge of negligence by instituting the charge of culpable homicide against the accused and commit the case to the sessions court on the basis of evidence that comes on record during the trial.

But the trial court had observed that in view of the Supreme Court’s judgment in Keshub Mahindra, no court had the power to try the accused for an offence higher than the one under Section 304-A of the IPC. Accordingly, the Chief Judicial Magistrate, in his judgment delivered on June 7 last year, found eight of the Indian accused (one had expired during the trial period) guilty under Section 304-A and sentenced them to two years’ imprisonment.

Appeals have been filed in the sessions court with a prayer for the enhancement of the sentences against the accused on the grounds that the CJM erred in committing the trial of the case to the Sessions Court under Section 323 of the CrPC. These appeals, filed by the CBI and the State of Madhya Pradesh, are pending before the sessions court in Madhya Pradesh. Meanwhile, the CBI and others had filed the curative petitions in the Supreme Court in the hope of securing substantive justice for the victims and survivors of the disaster.

Patently flawed

Ironically, the Supreme Court’s holding in Keshub Mahindra was patently flawed as the CBI even in that case had argued that evidence on hand supported the charge of culpable homicide against the accused. But the May 11 judgment defends the Keshub Mahindra judgment to the hilt.

The Kapadia Bench observed: “In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying ‘on the materials produced by the prosecution for framing charge’. ‘At this stage’ is a kind of a constant refrain in that judgment.”

But those familiar with the Keshub Mahindra case in 1996 would aver that the Ahmadi-Majmudar Bench at that time simply and inexplicably ignored the materials cited by the CBI in support of the charge of culpable homicide. Therefore, its assertions that its “findings were based on materials gathered in investigation and brought before the Court till that stage” were not at all convincing, as they were contrary to facts.

In the curative petitions case, the Supreme Court was expected to examine the claims of the Ahmadi-Majmudar Bench for their veracity and set them aside, as they were contrary to facts. But the Kapadia Bench wrongly concluded that the 1996 judgment was not a fetter against the proper exercise of powers by a court under the CrPC and that the remedy for the curative petitioners lay in approaching the appellate/revisional courts to correct the magistrate who misread it.

The Supreme Court even felt vindicated by the arguments of the CBI and the State of Madhya Pradesh in the pending appeals before the Sessions Court in Madhya Pradesh. Observers are nonplussed that the apex court chose to rely on the arguments of a party in a pending case in a lower court, rather than independently examine the plea of the petitioners on merit.

‘Black day’

The Bhopal Group for Information and Action and other survivor organisations have expressed dismay over the judgment and called May 11 another black day for justice. They recalled that the Supreme Court, without conducting even one hearing, had dismissed the review petition filed by three survivor organisations against the Keshub Mahindra judgment in 1997. By its May 11 judgment, the Supreme Court heaped more injustice on the victims of the disaster, they said.

Legal researcher and commentator Usha Ramanathan, who has been closely following the Bhopal disaster litigation, put it succinctly: “The May 11 judgment shows that the Supreme Court lacked institutional memory with regard to what the Bhopal victims got out of the litigation. The option of curative petitions confers on the Supreme Court an extraordinary jurisdiction to correct its own past judgments. Yet, the court reaches an extraordinary conclusion and tells the lower court that it could violate its own order. It makes no sense. The court simply borrowed the formula suggested by the counsel for the accused. It should have either set aside the Keshub Mahindra judgment, or done nothing.”

The May 11 judgment also supports the view that the Supreme Court today sends discordant signals about the correct legal position. Recently, a two-judge Bench of the court led by Justice Markandey Katju passed strictures against a trial court judge for ignoring the Supreme Court’s ruling. The Kapadia Bench, however, thinks that there is nothing wrong if a lower court proceeds as if it is not bound by the Supreme Court’s ruling delivered earlier.

Green Tribunal: SC lifts stay, body to function from May


New DelhiThe National Green Tribunal, a judicial body that will exclusively deal with environmental issues, is likely to start functioning from May with the Supreme Court lifting a stay imposed by Madras High Court on rules of appointment of its members. The apex court stayed the High Court’s order and directed the Ministry of Environment and Forest (MoEF) to “keep all rules and regulations in place by May 6” and inform the bench about its status, so that the body may start functioning. A bench comprising justices G S Singhvi and A K Ganguly also indicated that even if some deficiencies remain in the rules, the court will pass orders to the effect that petitions may be filed and interim orders may be sought from the green tribunal with immediate effect after May 7.

The bench passed the orders on a petition by MoEF seeking transfer of the case, challenging rules for appointment of members of National Green Tribunal, from Madras High Court to the apex court. The Centre had sought transfer of the case on the ground that the apex court was already hearing a matter related to non-appointment of expert and judicial members for NGT, due to which the only environment appellate body has remained non-functional since it came into existence on October 18, 2010.

The case was initiated in 2005 by environmental activist Vimal Bhai, challenging environment clearance granted for execution of 600 MW Loharinag-Pala hydroelectric power project at Uttarkashi in Uttarakhand. Since then the case is pending due to non-appointment of members for National Environment Appellate Authority (NEAA). With NGT coming into existence, NEAA ceased to exist but the problem of non-appointment of members continued and rendered NGT non-functional. The apex court had on December 16 last year directed the Centre to appoint expert and judicial members for the tribunal and make NGT functional in one month.

However, even as the appointment process was on, the Madras High Court stayed the rules for appointment of judicial members of NGT on a plea by a law student, M Naveen Kumar. Centre then sought transfer of the case from the high court to the Supreme Court.Additional Solicitor General Indra Jaisingh during the previous hearing on Monday informed the court that five judicial and six expert members have been selected and MoEF had also finalised the rules of NGT’s functioning. “If the stay order is vacated, six judicial benches will become operational,” Jaisingh had submitted before the court.

On court’s query on Thursday about the amount of time required to make NGT functional, Jaisingh sought two-week time saying, “The selection (of five judicial members and six experts) are likely to be approved by the Appointment Committee of Cabinet (ACC).” The National Green Tribunal was established on October 18, 2010 with retired Supreme Court judge Justice L S Panta as its chairperson. The tribunal was supposed to have circuit benches across the country but no other member was appointed apart from its chairman. After Australia and New Zealand, India is the third country to have such an institution.

National Green Tribunal (NGT)

The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice.

The Tribunal’s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other 4 place of sitting of the Tribunal.


Tobacco in plastic pouches: Supreme Court rejects plea

Gutka pouches
Image via Wikipedia

J. Venkatesan in THE HINDU

New Delhi: Taking note of the report that 86 per cent of the oral cancer in India was caused by tobacco products, the Supreme Court on Thursday rejected the plea of various gutka, pan masala and chewing tobacco manufacturing companies for postponement of the December 7, 2010 order banning the use of plastic as packaging material for their products from March 1 this year.

A Bench of Justices G.S. Singhvi and A.K. Ganguly rejected the request of senior counsel Ram Jethmalani, P.H. Parekh, Abhishek Singhvi and others seeking stay on the Rules notified by the Centre to regulate the use of plastic packets for gutka and other tobacco products on the ground that these rules were unconstitutional.

Counsel wanted the ban order effective from March 1 to be extended till the court decided on the validity of the rules.

The Bench, while issuing notice to the Centre, however, refused to stay the rules or extend the time limit for enforcement of the ban. The Bench posted the matter for further hearing on April 13.

On December 7, 2010, the Bench during the hearing of a batch of petitions filed by manufacturers of tobacco products, challenging a Rajasthan High Court order upholding such a ban in the State, ordered a ban on the sale of tobacco, gutka and pan masala in plastic pouches from March.

The court had asked gutka manufacturers to shift to non-plastic packaging after March.

In compliance with rules

Earlier Solicitor-General Gopal Subramaniam submitted that the Centre had complied with the December 7 order and had notified the Rules. He said the National Institute of Public Health had submitted a comprehensive report on the harmful effects of gutka, tobacco and pan masala.

According to the report, 86 per cent of the oral cancer in India was caused by tobacco products and many school students had become victims of tobacco chewing.


Pan masala manufacturers, in an application, assailed the rules contending that they were arbitrary and discriminatory as they had singled out sellers/distributors engaged in the trade of pan masala, gutka and tobacco products without any reasonable basis.

Their right to carry on trade had been affected because of the rules, the application said and sought a direction to quash them and an interim stay of the operation of the rules.

Who will save our Na’vis?


Long before they gained currency as the real-life counterparts of the Na’vis portrayed by Hollywood blockbuster “Avatar”, the author of the Vedanta verdict — Justice S H Kapadia — had made clear about how he saw the Dongaria Kondhs, who are officially classified as “primitive tribal group”. Kapadia, now chief justice of India, described this tribe from Orissa as a people “living on grass”.

His unflattering, almost dismissive description came in a 2008 lecture, barely four months after his last order in the case. Given his choice of words, it is no surprise His Lordship found himself on the wrong side of history last week. In a bizarre reversal of roles, environment minister Jairam Ramesh all but overruled Kapadia’s decision to grant the bauxite mining project the right to clear the forests in the Niyamgiri hills, where the 8,000 Dongaria Kondhs live.

Clearly, the lapses that have come to light go beyond Vedanta and the Central and state governments. They extend to the Supreme Court as well. Kapadia did not call the Dongaria Kondhs grass-eaters in either of the orders he wrote in the Vedanta case. But the fact that he did so in a public lecture, which was reproduced in full in a law journal, may underline all that was wrong with the basis of his judgment. In the modern idiom, he might have seemed to have shown where he was coming from.


Did he? Why did he call the tribe grass-eaters? He was seeking to justify the circumstances in which the court had come up with an economic formula — 5% of the project profits would go to tribal welfare — ostensibly to balance the conflicting interests of development and environment. But, as the government-appointed Saxena committee recently pointed out, the Dongaria Kondhs don’t really need such intervention. Far from living on grass, they are known to be skilled horticulturists and earn handsome profit from growing pineapple, mango, banana, orange, lime and ginger.

So much for Kapadia’s indiscreet dismissiveness. But it pales when examined alongside the repercussions of the two SC orders in the Vedanta case. Ramesh’s decision is, after all, limited to scrapping the mining proposal despite the court’s decision to grant forest clearance to it. He could not do much about the even more damaging alumina refinery because it has already been built, with the court’s blessings, at an estimated cost of Rs 4,000 crore and is in production. All that the minister could do is to issue notices seeking to know why the environmental clearance granted to the refinery should not be cancelled. The other notice asks why an application to expand its capacity six times should not be spiked.

The refinery is located in the foothills, in Lanjigarh and was predicated on the mining of bauxite from Niyamgiri. Since it has been running for the past three years with ore from sources other than the Niyamgiri hills, the refinery has already wreaked havoc on its pristine environs. The air of the ecologically sensitive area is now polluted, the level of effluents in the Vamsadhara river is at unsafe limits and the ground water has been contaminated.

So what does all of this tell us? Not just that Kapadia had a relatively unreconstructed view of forest tribes but that the court has been shoddy about its self-appointed task of overseeing the regulation of forests through a special bench and a central empowered committee (CEC).

The blunder of allowing the refinery at Lanjigarh could have been averted had the court taken prompt action on the petition filed before its CEC in November 2004. The petition was filed well before construction work began at the site and pointed out that Vedanta had obtained environmental clearance without disclosing that the Lanjigarh refinery was predicated on the mining of bauxite from Niyamgiri.

In September 2005, the CEC recommended the environmental clearance be revoked but the court properly heard the matter only in April 2007, by which time the refinery had been built and started to operate.

When the court passed its first order in November 2007, it declared that the refinery would be allowed to operate provided Sterlite, a subsidiary of Vedanta, adopted the rehabilitation package it had devised. But when Sterlite accordingly came forward with a fresh application, the court’s final order of August 2008 said nothing about whether the environmental clearance given to the refinery was valid or not. Instead, the court granted forest clearance to the mining project on Niyamgiri, although it was an independent issue.

This led to an anomalous situation. Responding to a query from the environment minister last month, attorney general Goolam E Vahanvati was reduced to saying that the apex court’s decision to grant forest clearance to the mining project was not binding on the government. Reason: the government alone is authorized by law to decide whether such clearance should be granted or not.

The court’s forest bench clearly needs to learn the lessons of the Vedanta case. Else, how are we to save our 21st century Na’vis?

Vedanta’s Niyamgiri mine clearance rejected


After a long-drawn consultation process, the Union government has finally pronounced its verdict against Vedanta Alumina’s $1.7 billion plan to mine bauxite in the Niyamgiri Hills of Orissa. “There has been a very serious violation of the Environment Protection Act, Forest Conservation Act and the Forest Rights Act,” said Union Minister for Environment and Forests Jairam Ramesh. He blamed Vedanta, the Orissa Mining Corporation, and the State officials for the violations. “The clearance stands rejected.”Mr. Ramesh accepted the recommendation of the Forest Advisory Committee (FAC) to withdraw the Stage I forest clearance, granted in 2008, and reject the Stage II clearance that the promoters had applied for. In the light of this, the environmental clearance will also become invalid.

In a further blow to Vedanta’s plans in the region, the Ministry will investigate the allegation that the bauxite for Vedanta’s Orissa refinery is being sourced from 14 Jharkhand mines, of which at least 11 do not have a valid environmental clearance.The Ministry is also issuing a show cause notice, threatening the cancellation of the licence given to the refinery itself, which has illegally grabbed village forest lands and carrying out a six-fold expansion without permission. The appraisal process of the expansion has been suspended.

Based on Saxena report

The FAC’s recommendation was based on the N.C. Saxena Committee report that detailed the violations and the adverse impact of the project on the local Dongria Kondh tribal community and biodiversity in the region. The Orissa Forest Secretary met Mr. Ramesh on Tuesday to voice the State government’s objections to the report. He also reiterated the argument put forth by Orissa Chief Minister Naveen Patnaik that the Supreme Court’s August 2008 ruling in favour of an in-principle clearance made the final clearance a fait accompli. “No Ministry can abdicate its responsibility of enforcing the laws passed by Parliament,” said Mr. Ramesh, citing the Attorney General’s opinion that he was free to decide on final clearance despite the Supreme Court ruling. “My Ministry cannot function on the basis of fait accomplis…Since August 2008, a lot of new information has come to light. It is on the basis of this incriminating new evidence that the decision has been taken.”

No witch hunt

Among the new information is the State government’s failure to implement the Forest Rights Act, which protects the community rights of forest-dwellers, especially tribals. Instead, the Saxena committee found that district administration officials deliberately submitted documents faking the consent of gram sabhas. However, Mr. Ramesh refused to take action against State officials. “I am not prepared to believe [the allegations],” he insisted. “I am sure they were acting to the best of their ability and intention.” Later, he admitted that “the state government has violated the FRA. The Ministry was examining what penal action would be taken. “There will be no witch hunt,” he reiterated. Mr. Ramesh dismissed reports that the Vedanta rejection showed bias against the non-Congress government of Orissa, or was part of any deal that would give clearance to the Posco steel project in the State instead. “There was no emotion, no politics, no prejudice in this decision,” he insisted. “It was not because Niyamgiri is considered sacred [by the Dongria Kondhs]. It is a decision on a purely legal basis.”