Introduction:

The Indian legal fraternity has seen innumerable cases where the courts have time and again determined the extent of powers the Acts or Rules have conferred upon the Tribunals formed under them. The Bombay High Court’s recent Judgement[1] upon the powers of the National Green Tribunal, has become yet another contribution in the age old discussion on Separation of Powers. This highlights the Court’s long established, strict and faithful adherence to the Doctrine of Separation of Powers.  The doctrine of separation of powers requires the three pillars of the State to exercise only the powers which have been lawfully conferred upon them. It is a time tested principle that usurpation of power results in tyrannical ruling.

What are tribunals? What is NGT?

Tribunals are special adjudicating authorities formed under a statute for adjudication in specific areas of law. They have powers and privileges as are enumerated in the statutes. In this regard they differ from mainstream judiciary, which derives its powers from the Constitution itself and their powers are not subject to or limited by any other statute. The Courts have many inherent powers which are not present with the Tribunals. The powers a tribunal exercises are supposed to be strictly within the purview of the statute which empowers it.

The National Green Tribunal has been established under the National Green Tribunal Act, 2010(hereinafter referred to as “the NGT Act”)for dealing with cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment. Tribunals are especially formed for expediting the process of administration of justice and therefore they are not bound by the procedures under Civil Procedure Code, 1908. Needless to say, environment protection requires speedy decision making as delay may cause irreparable losses to the environment, life and property.

The Indian judiciary had considered the question of powers of tribunals in great detail in L. Chandrakumar’s[2] case. This case dramatically changed the legal opinion established in Sampath Kumar’s[3] case. Here, the Apex Court held that, Supreme Court and the High Courts are the sole repositories of the power of judicial review and that such power, has only been entrusted to the constitutional courts, i.e., the High Courts and not the Tribunals. Here, Article 323 A and 323 B of the Indian Constitution along with the Administrative Tribunal Act, 1985 formed under it were challenged. The Court observed that tribunals cannot perform the functions inherently vested in the Higher Judiciary and that tribunals will have limited powers of, not substituting the mainstream judiciary but supplementing its work.  

Incidentally, the court observed that Tribunals cannot be substitutes to the existing mainstream judiciary. The power of deciding the vires of a statute necessarily lies with the mainstream judiciary and cannot be delegated to the Tribunals.

In the case of Central India AYUSH Drug Manufacturers Association v. State Of Maharashtra the Bombay High Court has substantially reiterated the principles established in the landmark judgement of L Chandrakumar’s case.

Questions before the Court:

The petitioners, vide a writ under Article 226, sought a declaration that Rule 17 of the Biological Diversity Rules, 2004 did not apply to the Indian entities or body corporates. In the alternate, it was prayed that to the extent the said Rule envisages equitable sharing of benefits by the Indian entities, it should be declared ultra vires to the provisions of the Biological Diversity Act, 2002 and, therefore, unconstitutional. Also, a prayer to declare the Benefits Sharing Regulations, 2014 ultra vires to Sections 23 and 24 of the Biological Diversity Act, 2002 ( “B. D. Act”)  was made.

However, by a primary objection, the Respondents contended that the present grievance in the writ petition should be raised before the National Green Tribunal in view of provisions contained in Section 14 of the NGT Act, 2010. Hence the main question before the Court was whether the Jurisdiction to hear the matter vested with itself or with the Tribunal.

The Respondents filed an objection to the Petition stating that according to Section 14 of the NGT Act, 2010 the jurisdiction to try ‘all civil cases’ which included “substantial issues related to the environment” would be heard by the National Green Tribunal and that this alternative remedy was available to the Petitioners.

Section 14(1) reads as follows:

14. Tribunal to settle disputes. –

1.     The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

According to the Respondents, in consequence of this, the High Court should not entertain the said writ petition. The Respondents further supported their contentions saying that the challenged provisions were those of a sub-ordinate legislation framed under the B. D. Act and therefore a Tribunal has powers to decide upon its vires.

Negating these contentions, the Petitioners replied that when there is challenge to vires of any Act or Rule, Tribunals do not possess jurisdiction. As the vires of Rules or Guidelines/Regulations could not have been looked into by any authority functioning under the B.D. Act, same also cannot be looked into by the Tribunal constituted under the NGT Act. Hence the Petitioners prayed for dismissal of preliminary objection, and prayed to entertain the petition on merits.

Court’s Decision:

In Alpha Chem’s[4] case the Supreme Court, while considering the challenge to Section 4A of the U.P. Sales Tax Act, 1948 held that the challenge to constitutionality of a statute is maintainable under Article 226 or Article 32 of the Constitution of India and it is not open in proceedings before authorities constituted under a statute itself or even in appeal or revision before the High Court from such proceedings.

Considering this and other cases, the Bombay High Court ordered upon the objection, stating that, as the question involved is that of deciding upon the vires of statute and does not fall within the purview of statutory powers conferred upon the Tribunal by the relevant statutes the same cannot be tried by the Tribunal. These disputes therefore, must be civil in nature, must arise out of implementation of enactments specified in Schedule I of the NGT Act, 2010 and therein, a substantial question relating to environment must be involved.

The High Court observed that the “Parliament’s intention to limit the power to decide certain specified nature of disputes is apparent. The scheme of N.G.T. Act does not permit National Green Tribunal to decide upon the vires of any of the enactments which confer appellate or other jurisdiction upon it and find mention in Schedule I of N.G.T. Act. It also does not empower it to examine validity of any Rules or Regulations made under these enactments. Writ petition does not qualify as a civil case wherein substantial question relating to environment is involved. Similarly, the National Green Tribunal does not possess power to adjudicate upon the vires or validity of any enactment in Schedule I or of subordinate legislation framed under such enactment.”

Hence, High Court having rejected the preliminary objection stated that the petitioners do not have any alternative remedy before the NGT.

Take Away:

‘Power Corrupts, and Absolute Power Corrupts Absolutely’. The Courts have always been driven to ensure that there is constitutional separation of powers to avoid tyrannical ruling.

The Tribunals were formed with the view of expediting justice and reducing the burden of the Courts. However, the ultimate power of adjudication cannot be passed on to a body working parallel to the existing judicial machinery. The Courts are vested with the paramount power of safeguarding the Constitution and Statutes, therefore the primary power of deciding the validity of statutes at the touchstone of the Constitution, lies with them and cannot be delegated to another entity.

It is noteworthy that the question of constitutional validity of the Rule 17 of the Biological Diversity Rules, 2004 and Benefits Sharing Regulations, 2014 against Sections 23 and 24 of the Biological Diversity Act, 2002 is still to be decided.