The All India Lawyers Union has Petitioned the Supreme Court, challenging the provisions of the Finance Act, 2017 which confer “unanalyzed and uncontrolled power to the executive” to provide for qualifications and conditions of service of members of various tribunals, especially the National Green Tribunal.
It challenges Sections 182 to 185 of the Finance Act, 2017 and the Rules framed under Section 184, referred to as the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017.
Among other things, these provisions enable the executive, rather than the Parliament to decide the qualification, appointment, terms of office, salaries and allowances, resignation and removal of the Tribunal’s Chairperson, Judicial Member and Expert Member.
The Petition submits that Tribunals are Courts of first instance in respect of the law for which they are constituted, and hence, “composition of the Tribunals cannot be replaced by a bunch of personnel, handpicked by the Central Government and are inferior in status and casual in working”. The provisions, it says, are likely to affect the independence of the Tribunals and the Quasi-Judicial authorities.
“This will adversely affect the rule of law, hamper the cause of justice and would de-motivate the pace of realization of constitutional objectives…The Tribunals covered by the amendment are not petty Tribunals with quasi-judicial authority. These Tribunals are with vast powers determining the rights of the citizens under Part III including the Right under Article 21. The Right to clean air, water and environment is part of Right to Life under the Constitution of India. When executive violates these rights, violating the principles of sustainable development and going for plunder of natural resources, the Tribunals should have full-fledged independence in protecting the Rights of the citizens. The impugned amendments would necessarily make inroads into the independence of the Tribunal,” it states.
The Petition goes on to allege that the provisions concerning the NGT have been included “as a reaction of the NGT’s earnest efforts in safeguarding the environment”. It contends in this regard, “It is more pertinent that this move also comes in the wake of the NGT’s drive against incompetent persons holding the posts of Chairperson’s of State Pollution Control Boards (SPCBs) following its own order in the case of Rajendra Singh Bhandari v State of Uttarakhand (OA 318 of 2013). Hence the impugned amendments are an attempt by the executive to take the harness of an un-amenable quasi-judicial horse in its control.”
It further calls the passing of the Bill as a Money Bill a “colorable exercise of power”, and contends that the same “causes a serious dearth into the concept of Federalism which again is a basic feature of our Constitution”.
Moreover, it points out that the Government is a litigant in most cases that come before the Tribunals, and therefore, the change in their constitution may “tend, directly or indirectly to influence their decision making processes”.
Thereafter, demanding that the provisions be scrapped, the Petition contends, “Sections 182, 183, 184 and 185 of the Finance Act, 2017 may tend are arbitrary in nature as giving wide discretion to the Central Government in the overall functioning and imparting of judicial decision making process and hence are unconstitutional, null and void and ultra vires Articles 14, 19 and 21 of the Constitution of India and hence void ab initio.”
Another Petition on similar grounds, filed by Congress MP Jairam Ramesh, is currently pending before the Apex Court. It prays that Section 182, 183, 184 and 185 of the Finance Act, 2017 be declared unconstitutional, and that the Tribunal, Appellate Tribunal and other Authorities (Qualifications, experience and other conditions of service of members) Rules, 2017 be declared ultra vires the NGT Act, 2010, contending that they suffer from the vice of excessive delegation.
The NGO, Social Action for Forest and Environment, has also moved the Supreme Court, challenging the alterations brought by the Finance Act in the National Green Tribunal Act, which, it says, would weaken the functioning of the environment court and curtail its powers.
“The impugned Tribunal Rules have severely diluted the minimum qualifications for the appointment of members to the NGT (including the Chairperson and Judicial Members) such that there is a clear and present danger of persons being appointed as the Chairperson/Judicial Members of the NGT, who have no judicial or even legal training and experience, and of persons without significant technical and scientific knowledge being appointed as Expert Members,” the Petition contends.