The Centre has notified new rules for appointment and termination in the NGT, which grant more say to the executive while reducing the influence of the judiciary
The Centre has changed rules for appointment and termination in the National Green Tribunal (NGT), which will allow the Central Government to gain influence in selections, qualification and tenures of selection committee members as well as panel-members.
The “Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017" or simply tribunal rules, have introduced changes in two significant aspects. One, they change the composition of the selection committee that assists the government in making appointments to the NGT. Then, there are changes in the criteria for qualification, composition and removal of chairpersons, judicial members and expert members of the NGT.
The Centre has introduced these changes through the Finance Act 2017—a money bill that allowed the Lok Sabha to reject some crucial suggestions given by the Rajya Sabha contradicting these provisions. Sections 183 and 184 of the Act ensure that appointment of NGT members and its selection committee will be controlled by the provisions of this legislation. Using this, the Centre has issued the new tribunal rules.
Centre to nominate majority selection committee members
The selection committee, largely responsible for appointing members to the tribunal, comprises of judicial and executive members. The Centre’s new tribunal rules strengthen executive involvement in the process of selection.
For one, the chairperson of the tribunal no longer has a position on the committee for appointing members to his/her own tribunal. S/he will be replaced by a secretary to the government of India. The department or ministry that the secretary will belong to has not been specified.
The new rules define separate procedures for selecting expert and judicial members to the tribunal, instead of the uniform procedure followed previously. The selection committee can now be chaired by a non-judicial person when choosing expert members to the tribunal. This person will be nominated by the Government of India, ensuring that selecting expert members is entirely influenced by the executive. Previously, the chairperson had to be a sitting judge of SC to be nominated by Chief Justice of India.
Applications for panel-members to no longer be invited
Earlier, Centre invited applications for appointing members to the NGT, which were screened and shortlisted by a MoEF&CC committee. The new rules have made no mention of an application process, leaving ambiguity about whether this process will be continued. The rules say that appointments will be made based on recommendations by the search-cum-selection committee. According to environment lawyer Ritwick Dutta, this implies that the search and selection committee itself will undertake the task of choosing candidates. No comments could be obtained from the office of the MoEF&CC regarding these ambiguities when contacted.
Changes in required qualification of NGT members
The new tribunal rules have relaxed the criteria or qualification required to choose the NGT chairperson. As per the new tribunal rules, the chairperson need not be an existing or former Chief Justice of a High Court or a judge of the Supreme Court, which was earlier necessary. Now, it is possible to appoint anyone who is qualified to be a judge. A person who has been a judical or expert member for three years is also eligible for the post. In fact, anyone at all with “ability, integrity, standing and special knowledge of, and professional experience of not less than twenty-five years in law including five years' practical experience in the field of environment and forests“ is eligible.
The qualifications for judicial members have been relaxed as well. The prior requirement of being a judge of the Supreme Court has been done away with. In its place, anyone who has held a judical office in India for ten years, qualifies. Someone who is qualified to be a high court judge, but may not have held the office, is also eligible.
Contrary to this, the qualifications for expert members have been made stricter. The new rules stipulate that expert members must have 20 years of experience in relevant fields, instead of 15 years, as per older rules.
11 out of existing 15 NGT members tenures end by 2018
These rules will have direct consequences for the composition of the Tribunal in the near future. The five-year-long tenures of Chairperson Justice Swatanter Kumar, and three other members will terminate this year. Further, six members will complete their tenure by 2018 and will have to be replaced. With increased executive control in the new appointments, the tribunal is likely to witness a significant change in character.
No judicial safeguards in the matter of removals
In a step further towards exerting control of the NGT panel, the new tribunal rules ensure that the judiciary no longer has a say in removing committee members.
Formerly, according to the NGT Act, it was mandatory to consult the Chief Justice of India in order to remove any judicial member from the tribunal. An inquiry had to be conducted by a Supreme Court judge and dissimal could take place only after the inquiry report was submitted.Such a system allowed for judical safeguards against executive control, according to Dutta. The process ensured a balance of powers between the judical and executive wings.
In the new rules, the entire process is monitored and controlled by a committee constituted by the Central government. The committee regulates its own process, and is not bound to the Code of Civil Procedure 1908, which ensures a standard and accountable approach.
Moreover, anyone can make a written complaint about any member of the tribunal. The MoEF&CC will undertake a preliminary scrutiny based on this complaint and refer it to the inquiry committee that will present its findings to the Centre. The government may then remove the member without consulting the judiciary.
| Comparison of former and current legal position | |||
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MEMBER SELECTION COMMITTEE |
COMPOSITION OF SEARCH-CUM-COMMITTEE |
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NGT Rules 2012
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Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 |
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Chairperson of Tribunal |
1. Chairperson : sitting judge of SC to be nominated by Chief Justice 2. Member: Secretary to GoI in MoEF 3. Member : Director, Indian Institute of Technology 4. 2 Members : experts in (i) environment policy and (ii) Forests policy ,to be nominated by MoEF
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1. Chairperson : Chief Justice of India or his nominee; 2. Member: Secretary to the GoI, MoEF 3. Member: Secretary to the GoI to be nominated by the Central Government 4. 2 members: experts, to be nominated by the Central Government. |
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Juidicial member |
1. Chairperson : sitting judge of SC to be nominated by Chief Justice 2. Member: Secretary to GoI in MoEF 3. Member : Director, Indian Institute of Technology 4. 2 Members : experts in (i) environment policy and (ii) Forests policy ,to be nominated by MoEF 5. Member : Chairperson of Tribunal |
1. Chairperson : Chief Justice of India or his nominee; 2. Member: Secretary to the GoI, MoEF 3. Member: Secretary to the GoI to be nominated by the Central Government 4. Two experts, to be nominated by the Central Government. |
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Expert member |
1. Chairperson : sitting judge of SC to be nominated by Chief Justice 2. Member: Secretary to GoI in MoEF 3. Member : Director, Indian Institute of Technology 4. 2 Members : experts in (i) environment policy and (ii) Forests policy ,to be nominated by MoEF 5. Member : Chairperson of Tribunal |
1. Chairperson : a person to be nominated by the Central Government 2. Member: Secretary to the GoI, MoEF 3. Member : Secretary to the GoI to be nominated by the Central Government 4. Two experts, to be nominated by the Central Government . |
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MEMBER OF THE NGT |
QUALIFICATION OF CHAIRPERSONS, JUDICIAL MEMBERS AND EXPERT MEMBERS OF THE NGT |
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NGT Act 2010 |
Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 |
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Chairperson :
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has to be or have been a) judge of Supreme Court, or b) Chief Justice of High Court
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(a) is, or has been, or is qualified to be, a Judge of Supreme Court; or (b) is, or has been, Chief Justice of a High Court; or (c) has, for a period of not less than three years, held office as Judicial Member or Expert Member; or (d) is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty-five years in law including five years’ practical experience in the field of environment and forests |
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Judicial member:
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i) is or has been judge of Supreme Court, or iii) judge of High Court
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i) is, or has been, or is qualified to be, a Judge of a High Court; or ii) has, for at least ten years, held a judicial office in the territory of India. |
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Expert Member:
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experience of 15 years in relevant field
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Administrative experience of 15 years in dealing with environmental matters |
experience of 20 years in the relevant field
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Administrative experience of 20 years including experience of five years in dealing with environmental matters |
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ASPECT |
MANNER OF REMOVAL OF CHAIRPERSONS AND JUDICIAL MEMBERS |
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NGT Act 2010 |
Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 |
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Whom to be consulted |
Chief Justice of India, |
a Committee constituted by government |
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1) inquiry made by a Judge of the Supreme Court
2) Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges
3) Order made by central government based on this. |
1) written complaint received by the Central Government, alleging any definite charge of misbehavior or incapacity to perform the functions of the office
2) Relevant authority is constituted or established, to make a preliminary scrutiny of such complaint.
3) Relevant authority makes a reference to the Committee constituted to conduct inquiry.
4) Committee shall submit its report to the Central Government stating therein its findings and the reasons therefor on each of the charges separately with such observations on the whole case as it may think fit.
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