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A Case Of Judicial ‘Nudge Nudge Wink Wink’!

Published on Tue, Oct 20,2015 | 22:50, Updated at Wed, Oct 28 at 15:07Source : Moneycontrol.com 

By: Pallavi Mohan, Senior Associate, J. Sagar Associates

Anyone following the recent developments in the judicial world would know that this has been an eventful week for environment law in the country. In two seemingly similar orders, both the Supreme Court of India and the National Green Tribunal have taken cognizance of the ever-increasing air pollution in the city of Delhi, holding commercial vehicles entering and transiting through the city as culprits. The Supreme Court’s order arises from the historic cases of MC Mehta,  through which it has closely monitored for the last thirty years various issues related to pollution in the country. The Tribunal on the other hand is a recent crusader for our right to breathe clean air in Delhi. In a series of orders in the case of Vardhaman Kaushik, the Tribunal has dealt with wide ranging issues related to air pollution including pollution through construction, burning of materials and above all by diesel vehicles plying in and entering Delhi. A case ostensibly filed under the original jurisdiction of the Tribunal, by which it can adjudicate on any substantial question related to the environment, has now acquired mammoth proportions as anyone present during the proceedings would testify. It appears that no stone has been left or will be left unturned by the Tribunal in its endeavour to do complete justice, akin to the inherent powers of the High Courts and the Supreme Court.

So far it would seem that the Tribunal has mostly got an approving nod from the apex court, especially from the esteemed judges of the Green Bench, before whom all environment matters are listed. The Supreme Court has more than once taken the view that the Tribunal should be assisted and not discouraged in the job that it is doing, words expressed while dismissing an appeal against the Tribunal’s order banning the plying of diesel vehicles older than 10 years.

What has then changed so substantially that it has resulted in two almost similar orders, passed on a mentioning by the Amicus Curiae, with the superior court taking no cognizance of the Tribunal’s order passed just two days earlier? This curious situation does beget the question whether the apex court is having some pangs that its powers are being usurped by a younger, more dynamic forum. It is worth considering whether the “green” activism that the Supreme Court is so famous for is now slowly being overshadowed by the overzealous efforts of the Tribunal. A case in point is the much-lauded order of the Supreme Court in 2001 permitting only CNG buses and commercial vehicles to ply in Delhi. To the country at large, it appeared that the vacuum created by the lack of political and executive will, was finally being filled by an active and forward-looking judiciary. The question therefore arises is whether the Supreme Court is afraid of losing its place in the hearts of the Indian people as being the sole upholder of their health, welfare and environmental well-being. Is it therefore a disguised attempt by the Supreme Court to clip the wings of a Tribunal which seems to be under the impression that it is the know-all and be-all as far as environmental issues in the country are concerned?

This is not the first time that the Tribunal has crossed swords with other courts in the country. In recent times, it has passed orders claiming that it has all the fetters of court and therefore can exercise the power of judicial review just like any other constitutional court, an important issue which would have wide spread ramifications on the powers of all Tribunals functioning in the country, this is pending before the Supreme Court. The Delhi High Court is seized with a challenge to the vires of the National Green Tribunal Act as well as to the powers being exercised by the Tribunal. The Tribunal has also drawn fire for its proclivity to take up issues on a suo motu basis in defiance of the fact that such a power is not vested with it under the Act. The Madras High Court took cognizance of the issue and even granted a stay against the Tribunal from taking up issues on a suo motu basis. These are interesting times for those of us privy to the environment protection measures. Any further developments will be closely watched.

The views reflected in this article are personal to the author and do not reflect the position of the firm
 
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