Speech of HMJ Swatanter Kumar

Orientation Programme on Environment and Law

 --- By HMJ Swatanter Kumar


I am really happy to be with all of you this morning, primarily for the reason that you are the young generation of Judges and what matters today in the field of environment is to sensitize the Judiciary of the country to really know what the environment is all about.  Apparently it seems to be foolish that you try to teach and you try to learn what environment is, because you cannot exist without the environment, but environment can exist without you. It is so fundamental, but it is very unfortunate that we are not understanding it. We are not giving respect to the nature what we ought to have given and the consequences you are seeing in front of yourself.  I wonder if any of you would be passing the year without taking anti biotic at least twice a year. Why it is so? Is there something wrong somewhere? Or is it just what we normally blame as Climate Change and Green House Gases? Since it requires serious consideration it is to be seen which are the institutions in our society which can consider these issues?One is the Parliamentarians and other is the Judiciary because Executive is expected to implement whatever both these wings, the pillars of the Constitution decides.  Before I take you to what exactly the National Green Tribunal is, let me just introduce you to some basic problems that we are facing and particularly in relation to Delhi.  There are cases filed before us in relation to air pollution of Delhi.  One such case has been transferred by the Hon’ble Supreme Court of India to us, other is one which has been directly instituted before us. There is a pediatric cardio-thoracic surgeon from Agra who is the applicant. So it is not an application by any Tom Dick and Harry, but by a person who probably means business. He has collected data and his data is supported by DPCC as well as the Central Pollution Control Board.  They are not challenging it, in fact, to a great extent, their data fully supports the data of the applicant. According to him, he has conducted surveys all over India, in major towns and as far as Delhi is concerned, his apprehensions, which is scientifically analyzable and is well based, is that, every child born in Delhi within five years of his birth would be asthmatic no matter what you do. That is the kind of environment, we are talking about.  Therefore, you have to think how does such situation arises.  Even if, he is wrong, he may not be fully wrong, may be 60% of what is said by him may be faulty. Is this what, inter-generational equity requires you to do.  The fundamental principle of inter generation equity is that you must pass on the earth to the next generation in a better condition than what you have got or at least in the condition, you have got.  But if you look backward, every generation has miserably failed to fulfill this basic fundamental principle.  If you think of water, Yamuna was the finest river, if you look back just 50 years.  If you see, whole of the Red Fort, the other Forts, they were all located on the banks of river, why? Not to smell, what you are smelling today, or to see that in Chhat festival when you hold your nose and take a dip into the river you find that you are just full of chemicals, and sewage.  That is what it is happening today.  Seven thousand crores have been spent on Yamuna to make it what it is. What is wrong where?  That is why when we talk of sensitization of Judges, we don’t mean, I am sure that the Academy does not want to teach that you people don’t become sensitive to environment, but your sensitivity must lead to some kind of resolution.  And if it is injected into you today, when you grow up, in your profession, by that time you must be totally aware how environmental issues are to be dealt with and resolved.  One of the fundamental principles which I have found with a little experience, in this field is that there are two categories of people and to find out which category you fall into you have to ask yourself a simple question,do you love nature or you care for nature?If your answer is negative you fall in the first category, dealing with nature strictly as a Judge, and I feel you will be faulting in your approach with this perspective.  If you say yes I care for nature, that means you are on the right track because a judge has to have what you call in law – ‘Doctrine of Balancing’.  No development can be stopped, no bridges can be stopped, nothing in this world can be stopped;it has to progress.  Question is how do you drive that path which will completely and satisfactorily improve, what you call in law Principle of Sustainable Development.  I just wanted to give you a glance of what kinds of problems we are dealing with.  You will be surprised that Yamuna’s entire pollution, let’s say, there is 100% of pollution in Yamuna from X to Y point, 72% of pollution is added by the NCT, Delhi.  Imagine what are we doing.  We are spending thousand and thousand of crores and taking it from bad to worse.  One department blames the other department.  They feel that unauthorized colonies are responsible for this, which frankly speaking for myself, I do not agree.  No matter, who it is,there is ultimately a drain throwing everything to Yamuna.  Why not trap that drain and treat it.  So these are the kinds of issues we are dealing with which would give you a sense of environment we are living in.

Now let me introduce you to National Green Tribunal.  I hope you people had interaction with the expert member yesterday, Mr. Sajwan, one of the good members of NGT, with lots of knowledge on forestry.  We are a Tribunal as you know.  It was when I was speaking at U.N. this March, I said it was the one of the boldest step taken by Indian Parliament to enact law like NGT Act, 2010. I do not know whether it is a sheer mistake or conscious attempt but either way, I will complement the Indian Parliament for doing this.  This is a great statute.  In the entire world, it is a tribunal of its own kind.  There is no tribunal at parity with NGT.  There are environmental courts in Australia and New Zealand but they are very regulatory in their jurisdiction, while NGT has original jurisdiction, it has appellate jurisdiction, it has special jurisdiction to deal with calamities.  As a result any person affected by the polluting act can raise environmental dispute. If you happen to look at the NGT Act ever, read the definition of environment.  Once you have read it, can you think what can escape from it. That is what Mr. Narsimha was mentioning when we were sitting inside.  What a brilliant thought he had in mind. I borrowed it from him that you cannot live without nature but nature can exist without you.  That’s what this definition is.  There is nothing that can be missed, a tree is a living creature, therefore it is covered,a rat is a living creature, therefore, it is covered.  There is nothing which is not covered.  That is the dimension of the jurisdiction, that is vested in Tribunal.  Nothing on this earth, you can do which will not be assessableor brought before the Tribunal as a grievance. It is as wide as that.

Greatest advantage, we have is that we have expert members in the Benches. The Bench is presided over by a Judge of High Court or Chief Justice of High Court and we have expert member who has to have 20 years of experience in the field of environment, before he can be made a member of the Tribunal.  The powers, as I told you, there are 3 very grey issues today which have been the matter of controversy and not only being deliberated upon at the National Level but even at the International Level.  One of course is that whether the Tribunal, in absence of specific stipulation has the power to contempt.  This is one of the highly debated grey area.  Second is, whether the Tribunal has suo motu powers?   You must have read Constitution, very recently, I am sure.  There is no suo motu power defined anywhere, nor it is given to anybody except in some statute, which you say State Statutes.  Probably in the Revenue Law or other, it is said that Commissioner at its own can call for the records.  But to the Higher Judiciary of India, this power is not expressly provided, defined or stated in the Constitution.  Neither in Article 226 nor in Article 32.  This is the grey area, whether the Tribunal can or cannot have suo motu powers.  Third which is coming up now is conflict in jurisdiction.  It is coming up very strongly, now because, there are certain Hon’ble High Courts which feel they have jurisdictions over matters pertaining to environment under Article 226/227 of the Indian Constitution and also that the environmental appeals from NGT had to go to the High Court first before going to the Apex Court. 

Under the NGT Act the appeal against the order and directions of the Tribunal all lie to the Hon’ble Supreme Court of India, it does not lie to any other court.  But the jurisdiction of High Court under Article 226 is untouchable, it is the basic structure of Constitution, therefore there is little conflict of jurisdiction.Where the High Court feels that probably Tribunal is not correct in arriving at certain conclusion and they would like to correct, they interfere.  These are the three major grey areas of the field of law for interpretation, today for the Tribunal. Appeal, I told you would lie to Supreme Court of India and our order, are to be executed as decrees of a civil court and for that purpose we are vested with powers of civil courtthat means provisions of CPC including Order XXI would be attracted and we will enforce them.  Presumably, I don’t know, right or wrong, so far we think we have all the powers until and unless Hon’ble Supreme Court sets otherwise.

I do support what is said about the Judiciary of the Country, that there is judicial activism, and I am one judge who would support judicial activism.  I don’t think that Judges should ever refrain from taking recourse to judicial activism. What Judges in the Courts,  Judges in the Higher Judiciary in particular, should prevent itself from is judicial over-reach, i.e. what in my humble view is something which the judges should take recourse to, but judicial activism today is a part and parcel of the extended law under any jurisdiction.  Because the situation are such that you can’t just be silent on everything and let things go by. Nobody thinks, if you look 20 years back, the concept of locus-standi wasdifferent, Writ jurisdiction and PIL were unknown. Let me tell you, where ever I have gone, in and out of the country in my official capacity, everywhere Indian Judiciary is complimented. People think that if any country in the world has developed the law at a rapid speed and with correct dimensions, it is the Supreme Court of India and High Courts in the Country.  So, therefore, as Judges you should be proud to belong to an institution which is world famous for its progressive and rightful thinking.  I was in Supreme Court of UK recently, they still respect Indian Judgments.  We were following all the times their laws but today they are very conscious of what principles the Indian Supreme Court is enunciating. The NGT in its short duration has become world known.  I was surprised when I went to Bangkok, people referred to NGT Judgments and they cited NGT Judgments. Then the Secretary General said why don’t we listen to the person who has authored these judgments rather than read these judgments, that is the kind of dimensions it has earned in short time.

What I want to say is why I am telling you all this is that don’t take environmental jurisprudence as an ordinary track. It has to be the main emphasis of your career. Jurisdiction of a civil court is barred there is no doubt about it. But if you see all your ancillary laws whether you take Criminal Procedure Code or where you take suit for injunction under tortious  liability, all these are within your jurisdiction.Though environmental law per se has been excluded from your jurisdiction but you are not kind of out of the field of environmental jurisprudence.Therefore please it is my request that all of you should permit the environmental awareness and the scope of its implementation to grow on you when you grow as a judge in your line.That is why I said in the opening that it is very important that all of you at the threshold of your career be sensitized to environmental law. I am not taking the meaning of sensitization into grammatical sense. It has much wider connotation that you people will take care of.

The other aspect which may interest you is with regard to the processes that we are adopting. We are not dealing as I mentioned to you, in the above referred two cases strictly as matter between individuals as A vs. B. There are the cases of widest ramifications and they would and they cannot be decided like the suit or even a writ petition. Here every body must be involved and aware.What has evolved as a result of this is that we have adopted what we are calling as a consultative process of stakeholders in adjudication. What does that mean to you, I would explain, it is a process where we call all the stakeholders, who are interested in that case.If you have to clean Yamuna it is not one man’s job. It is not something which you can do directly and finish it off. It is a multi-channel adoption of a system. Now the judgment in Yamuna case runs into 100 pages but the judgment is useless if we cannot get it implemented. For that what we do is we call everybody. We call Chief Secretary Haryana, Chief Secretary Delhi, Chief Secretary, Uttar Pradesh, all the Environmental Pollution Control Boards, all Nigams, Delhi Jal Board. We treat them for lunch at our cost and then we try to understand from them what difficulties or impediments they are going to face if the judgment was to be implemented. Providing finances, now seems, to suddenly think of it that somebody can provide 12000 crore to clean Yamuna or clean Ganga is not something which can happen ordinarily, therefore, you have to work it out to what extent will you evoke the principle of ‘PolluterPays’, to what extent would you go out and impose liability of environmental cess as the Supreme Court has done in the ongoing air pollution case. So, these are the issues with which we deal, so, therefore, we call them, we discuss with them, look here is the judgment, tell us what is wrong with it. So, you invite criticism of the judgment for the purposes of knowing that how well it can be implemented and what measures are required to be taken to implement it. That is one concept we have introduced which is nowhere prevalent in the world because normally as you know, that is what I also did for twenty two years of my life, Judges are infectious to people and people are infectious to Judges, that is the theory you have to adopt and you better keep it for at least ten years of your life. After that here when I came I found that strict Court system will not be of good use. We have to adopt a system which will give results to us because we are dealing with cases which affect mass at large and there are very few cases where individuals are concerned. We are dealing majorly with mass issues so therefore it is important to have all the stakeholders. Sometimes e.g. we call the sugar factory association people also to tell us what do theywant.  We call their experts, we appoint technical teams, consisting of members from IITs of Country to give us opinion. The recommendations of these Committees are further vetted by the expert members we have at NGT. So we have double check method that means we collect something from outside which is filteredthrough expert members and then converted into a judgment. By and large we are trying to make an effort that we give judgments which are more practical, more sustainable and more effectively implementable. That is the way we deal with the issues before us.

Before I close for the day I wish all of you a very bright career. Remember, a judge is known by what he does, therefore, be sincere to your job, be upright to your job and one thing which you should treat certainly worse than cancer is corruption.  Let this never touch you anywhere around ten miles of your house. Wish all of you the very best.