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In recent news reports there have been deliberations on whether there is a possibility of appealing a central government decision on forest clearances. In this context, the National Green Tribunal (NGT) has directed states to comply with the statutory requirement of passing an order notifying diversion of forest land for non-forest purposes. It has also held that it can hear appeals from the orders of state governments and other authorities on forest clearances. The NGT was established in 2010 to deal with cases relating to environmental protection, and conservation of forests and other natural resources. The need was felt to have a mechanism to hear appeals filed by aggrieved citizens against government orders on forest clearances. For instance, the NGT can hear appeals against an order of the appellate authority, state government or pollution control board under the Water (Prevention and Control of Pollution) Act, 1974. How is a forest clearance obtained? Obtaining a forest clearance is a key step in the process of setting up a project. Recently the Chhatrasal coal mine allotted to Reliance Power's 4,000 MW Sasan thermal power project in Madhya Pradesh has received forest clearance. The Ministry of Environment and Forests (MoEF) first gives ‘in-principle’ approval to divert forest land for non-forest purposes based on the recommendations of the Forest Advisory Committee. This approval is subject to the project developer complying with certain conditions. Once these conditions are complied with, the central government issues the final clearance. It is only after this clearance that the state government passes an order notifying the diversion of forest land. The NGT’s decision deals with this point in the process during which an appeal can be filed against the order of forest clearance. For the flowchart put out by the MoEF on the procedure for obtaining a forest clearance, see here. What was the NGT’s ruling on forest clearances? The NGT was hearing an appeal against a forest clearance given by the MoEF to divert 61 hectares of forest land for a hydroelectric project by GMR in Uttarakhand. The NGT has ruled that it does not have the jurisdiction to hear appeals against forest clearances given to projects by the MoEF. However, the NGT has the power to hear appeals on an order or decision made by a state government or other authorities under the Forest (Conservation) Act, 1980. The judgment observed that though Section 2 of the Forest (Conservation) Act, 1980 requires that state governments pass separate orders notifying the diversion of land, this requirement is not being followed. The NGT has directed that state governments pass a reasoned order notifying the diversion of the forest land for non-forest purposes, immediately after the central government has given its clearance. This will allow aggrieved citizens to challenge the forest clearance of a project after the state government has passed an order. Additionally, the NGT has also directed the MoEF to issue a notification streamlining the procedure to be adopted by state governments and other authorities for passing orders granting forest clearance under section 2 of the Forest (Conservation) Act, 1980. There are some concerns that an appeal to the NGT can only be made after the state government has passed an order notifying the diversion of forest land and significant resources have been invested in the project. What is the status of applications for forest clearances made to the MoEF? The MoEF has given approval to 1126 proposals that involve the diversion of 15,639 hectares of forest land from July 13, 2011 to July 12, 2012. The category of projects accorded the most number of approvals was road projects (308) followed by transmission lines (137). Some of the other categories of projects that received clearance for a significant number of projects were mining, hydel and irrigation projects. However, most land was diverted for mining related projects i.e., 40% of the total forest land diverted in this period. Figure 1 shows a break up of the extent of forest land diverted for various categories of projects. The number of forest clearances pending for decision by the MoEF for applications made in the years 2012, 2011 and 2010 are 197, 129 and 48 respectively. [i]
Source: “Environmental Clearance accorded from 13.07.2011 to 12.07.2012”, October 12, 2012, MoEF.
[1] MoEF, Rajya Sabha, Unstarred Question no. 2520, September 4, 2012
Tribunals function as a parallel mechanism to the traditional court system. Tribunals were established for two main reasons - allowing for specialised subject knowledge in disputes on technical matters and reducing the burden on the court system. In India, some tribunals are at the level of subordinate courts with appeals lying with the High Court, while some others are at the level of High Courts with appeals lying with the Supreme Court. In 1986, the Supreme Court ruled that Parliament may create an alternative to High Courts provided that they have the same efficacy as the High Courts. For an overview of the tribunal system in India, see our note here.
In April 2021, the central government promulgated an Ordinance, which specified provisions related to the composition of the search-cum-selection committees for the selection of members of 15 Tribunals, and the term of office for members. Further, it empowered the central government to notify qualifications and other terms and conditions of service (such as salaries) for the Chairperson and members of these tribunals. In July 2021, the Supreme Court struck down certain provisions of the Ordinance (such as the provision specifying a four-year term for members) stating that these impinged on the independence of the judiciary from the government. In several earlier judgements, the Supreme Court has laid out guidelines for the composition of Tribunals and service conditions to ensure that these Tribunals have the same level of independence from the Executive as the High Courts they replace.
However, Parliament passed the Tribunals Reforms Bill, 2021 in August 2021, which is almost identical to the April Ordinance and includes the provisions which had been struck down. This Act has been challenged in the Supreme Court. For a PRS analysis of the Bill, please see here.
On 16th September 2021, the central government notified The Tribunal (Conditions of Service) Rules, 2021 under the Tribunals Reforms Act, 2021. A couple of the provisions under these Rules may contravene principles laid out by the Supreme Court:
Appointment of the Administrative Member of the Central Administrative Tribunal as the Chairman
In case of the Central Administrative Tribunal (CAT), the Rules specify that a person with at least three years of experience as the Judicial Member or Administrative Member may be appointed as the Chairman. This may violate the principles laid down by the past Supreme Court judgements.
The CAT supplants High Courts. In 1986, the Supreme Court stated that if an administrative tribunal supplants the High Courts, the office of the Chairman of the tribunal should be equated with that of the Chief Justice of the High Court. Therefore, the Chairman of the tribunal must be a current or former High Court Judge. Further, in 2019, the Supreme Court stated – “the knowledge, training, and experience of members or presiding officers of a tribunal must mirror, as far as possible, that of the Court it seeks to substitute”.
The Administrative Member of the CAT may be a person who has been an Additional Secretary to the central government or a central government officer with pay at least that of the Additional Secretary. Hence, the Administrative Member may not have the required judicial experience for appointment as the Chairman of CAT.
Leave Sanctioning Authority
The Rules specify that the central government will be the leave sanctioning authority for the Chairperson of tribunals, and Members (in case of absence of the Chairperson). In 2014, the Supreme Court specified that the central government (Executive) should not have any administrative involvement with the members of the tribunal as it may influence the independence and fairness of the tribunal members. In addition, it had observed that the Executive may be a litigant party and its involvement in administrative matters of tribunals may influence the fairness of the adjudication process. In judgements in 1997 and 2014, the Supreme Court recommended that the administration of all Tribunals should be under a nodal ministry such as the Law Ministry, and not the respective administrative ministry. In 2020, it recommended setting up of a National Tribunals Commission to supervise appointments and administration of Tribunals. The Rules are not in consonance with these recommendations.
