How The Government Is Undermining The National Green Tribunal

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Through the Finance Bill 2017, the Government undermines the National Green Tribunal. It sets a dangerous precedent.

In its seven years of existence, the National Green Tribunal has made a name as one of the most proactive and independent environmental courts in the world. From the previous UPA government to the current NDA one, the NGT has exercised its free hand to check against environmentally unfriendly policies.

Banning old diesel cars? Check. Shifting toxic tanneries from the banks of the Ganges? Check. Cancelling forest clearance for Adani coal mines in Chhatisgarh? Check.

With the powers of a civil court, the NGT decisions can only be appealed to the Supreme Court. It’s no lightweight in the ring. Constituted by a panel of scientific and technical experts, the NGT has a unique track record. But as Gitanjali Nain Gill predicted in a 2015 Cambridge article, the agency’s own success was setting it up for a Thucydides trap with the Centre.

The Finance Act of 2017 was a political masterstroke at undermining the NGT. As a money bill, it can be passed through Parliament without the consent of the Upper House – where the ruling party does not enjoy a majority. Under the guise of money matters, the bill pushed through new regulations on Aadhar, political funding and the power of the Centre to fund, appoint or delete tribunal members.

Section 182 of the Act amends the NGT Act, to keep the power of hiring and firing NGT members within the Executive. Section 1849(1) grants the Central Government the power to:

…by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth other Schedule.

The other changes include reducing the eligibility criteria for members of the NGT. Earlier, one can to be a Supreme Court Judge or a Chief Justice of the High Court. Now, the requirements have been diluted – even a lawyer with only five years of experience with the environment (and 25 years in law) can be made a member of the NGT.

Worryingly, the tenure for an NGT member has been reduced from five years to three – a move that is expected to encourage the position being filled by retired civil servants instead of younger applicants.

The existing NGT panel members will continue to be governed by the original 2010 NGT Act’s rules. But by the next batch of members, the Centre will have a firmer grip on the nation’s most proactive environmental court.

It is against this background, in 2017, that new amendments to India’s nodal environmental law are proposed.

The Environment (Protection) Act, 1986

Under existing environmental laws, committing an offence against the environment will cost you one lakh rupees ($1558) and perhaps a five-year jail sentence. However, in practice, this is seldom executed.

The fine itself is underwhelming. The cost of damaging the environment reigns in crores – such as with the Art of Living’s event on the Yamuna floodplain (42 crores) or the Chennai Oil Spill (135 crores). The other problem is that by treating cases as criminal, the judicial process offers endless scope for delay – removing the urgency of tackling environmental crime.

In 2015, the Ministry of Environment and Forest released a Draft Environment Laws (Amendment) Bill to amend the landmark 1986 bill. It faced with significant opposition and was shelved for a while – pending a few revisions. Now, after a two-year gap, the draft bill is back – with teeth.

Under a new proposed amendment, the fine is raised to one crore without the need for a lengthy judicial process. However, the catch is that the NGT will not be administering the fine. A new select committee is proposed to do the deed. It leaves the question as to what the NGT will be made able to do in the days to come.

The ability of India’s environmental agencies to do their jobs irrespective of government pressures and lobbying is key to creating a sustainable future. But the gradual erosion of green institutions is painting a bleak future.

There is hope, yet – an appeal filed by the NGO, Social Action for Forest and Environment (SAFE), charging the Finance Act with as “unconstitutional” and  “dilution of powers of the National Green Tribunal” has caught the attention of the Supreme Court.

The country’s apex court has issued a notice to the Central government. In a country where 30,382 wildlife crimes have been recorded (until December 2016), with $80 billion a year of environmental-damage related costs, the need for free and independent environmental courts is prime.

Through the act of dilution, a stellar and growing record is set to fade into the distance.

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