Why The NGT Is An Assault On The Very Idea Of Justice 

In India, there are many tribunals established over the past few decades with the aim of delivering speedy and efficient justice over disputes that can otherwise take years to get addressed.

The Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), the Armed Forces Tribunal and the National Green Tribunal (NGT) are some examples of tribunals in India.

One of the common features found in the Acts governing each of the tribunals is the exemption to them from the Criminal Procedure Code, or the Code of Civil Procedure. The tribunals are bound by “Principles of Natural Justice” in hearing and dispensing matters.

When it comes to the National Green Tribunal (NGT), Parliament has gone a step further and exempted it from even the Indian Evidence Act. Therefore, the basis on which NGT will operate is purely on “Principles of Natural Justice”.

Here is the relevant portion of the NGT Act, exempting it from well established laws.

“19. (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.”

“(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.”

Reading some literature available on the concept, we gather that there are some fundamental principles when it comes to natural justice.

Nemo Judex in Causa Sua

This essentially means no one can be a Judge in one’s own cause, or in a cause where one has a personal interest.

Rule against bias is what fundamentally this principle translates into.

There are many forms of bias that can manifest in such scenarios - for e.g., personal bias, pecuniary bias and also ‘subject matter’ bias.

Subject matter bias means the person who is in a position to deliver a decision has an expertise in the field to which the dispute corresponds to, and therefore his own understanding and beliefs can colour his judgement.

Now, in the NGT, the composition of the Tribunal is as below:

A chairperson – must be a retired Supreme Court judge

Up to 20 Judicial members – who can be retired Supreme Court or High Court judges

Up to 20 “expert members“. The requirements to qualify as an expert member are:

Must have a Masters degree in Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of 15 years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management and biological diversity management and forest conservation) in a reputed national level institution; or have administrative experience of 15 years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.

To simplify, the “expert member” is a “subject matter expert” on environmental issues. As we have seen above, a subject-matter-expert sitting to decide on a matter goes against the very foundational principle on which the concept of natural justice is built.

The NGT Act also specifies, per Section 4(4)(c), that in any sub-group formed to hear an application or an appeal, the number of expert members in a bench will always be equal to the number of judicial members in the bench.

“Provided that the number of expert members shall, in hearing an application or appeal, be equal to the number of judicial members hearing such application or appeal”

This essentially means that if the subject matter experts concur, a decision can never be given against what they believe in. Also, it will then take only one judicial member to concur with them for the overall decision to be based on their line of judgement. This is because the NGT Act says the following with regard to decision making:

21. Decision to be taken by majority.The decision of the tribunal by majority of members shall be binding:

Therefore, it is quite clear that “subject matter bias” can clearly prevail over judgements in NGT, and it goes orthogonal to the Principles of Natural Justice, based on which it is supposed to deliver justice!

Let us now come to another fundamental rule that governs Principles of Natural Justice:

The Evidence Rule

Any decision which is supposed to be based on natural justice should provide for submission of logical evidence, and rebuttal of opposing evidence.

The defendant and the applicant/appellant have the right to present their case and evidence.

However, the NGT Act, in spite of the presence of the mature Indian Evidence Act, does away with its applicability, and leaves the whole evidence procedure in the hands of the committee members. In other words, the entire evidence process is left to the discretion of the tribunal members.

Again, it is a violation of one of the fundamental Principles of Natural Justice.

In conclusion, I am reminded of what Jean Jacques Rousseau says in his seminal work – “The Social Contract”, on natural justice and the need for laws.

“Humanly speaking, the laws of natural justice, lacking any natural sanction, are unavailing among men. In fact, such laws merely benefit the wicked and injure the just, since the just respect them, while the others do not do so in return. So there must be covenants and positive laws to unite rights with duties and to direct justice to its object.”

This piece was first published on Secure #Core. You can find the original piece here.