The Department of Revenue, Ministry of Finance vide notification dated June 1, 2017, in exercise of its powers under Section 184 of the Finance Act, 2017 has notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017[1] (hereinafter referred to as “Rules”). Under the Rules, the Central Government has notified the Term of Office, the Retirement Age, Composition of the Search-cum-Selection Committee and the Qualifications for Appointment of the presiding and other Members of 19 Tribunal(s) / Appellate Tribunal(s) / Authority(s). In this article, our focus will be the impact of the Rules on the National Green Tribunal and its functioning. 

1. Section 184 of the Finance Act, 2017

Section 184 of the Finance Act, 2017[2] deals with the power of the Central Government to make rules for the qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities. Section 184, therefore, gives the Central Government wide-ranging powers for appointment of members to 19 Tribunals by amending 19 existing laws. It is pertinent to note that since the Finance Act, 2017 was a Money Bill, the same did not require approval from the Rajya Sabha (Upper House of Parliament) with the Central Government using its majority in the Lok Sabha (Upper House of Parliament) to pass the Finance Act, 2017. Reports show that the amendments regarding to above-mentioned notification were included only at the eleventh hour[3] .

Section 182 of the Finance Act, 2017 inserted Section 10A in the National Green Tribunal Act, 2010. Section 10A of the NGT is as follows:

2.  Amendment in Appointment of Members of the National Green Tribunal

"10A. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, Judicial Member and Expert Member of the Tribunal appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall be governed by the provisions of section 184 of that Act:

Provided that the Chairperson, Judicial Member and Expert Member appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force".

A major change has been made in the qualifications of persons who may be appointed as the Chairperson and as Judicial Members of the National Green Tribunal (hereinafter referred to as “NGT”). As per Section 5 of the NGT Act, 2010, no person could be the Chairperson or a Judicial Member of the NGT unless they are or were a Judge of the Supreme Court of India or Chief Justice of a High Court.

Qualifications of Chairperson

However, with the passage of the Rules, the qualifications of persons who may be appointed as the Chairperson of the NGT have been revised as follows:

  • is, or has been, or is qualified to be, a Judge of Supreme Court; or
  • is, or has been, Chief Justice of a High Court; or
  • has, for a period of not less than three years, held office as Judicial Member or Expert Member; or
  • 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.

Qualification of Judicial Member

Further, the qualifications of persons who may be appointed as a Judicial Member of the NGT have been revised as follows:

  • is, or has been, or is qualified to be, a Judge of High Court; or
  • has, for at least ten years, held a judicial office in the territory of India;

It is pertinent to note that an Advocate has practiced for 10 years is qualified to be a High Court Judge and the revised qualifications do away with the requirement that a Judicial Member of the NGT are or were a Judge of the Supreme Court of India or Chief Justice of a High Court. Further, a person who has held a judicial office of not less than ten years is also qualified to be appointed as a Judicial Member. The term “Judicial Office” is quite wide in its connotations and can include Districts and Sub-ordinate courts as well as Appellate Tribunals.

Supreme Court’s previous observations

In a previous case, the question before the Supreme Court was whether Chapters 1B and 1C of the Companies Act, 1956 which provided for the constitution of the National Company Law Tribunal and National Company Law Appellate Tribunal were constitutionally valid.  The Supreme Court in Union of India v. R. Gandhi[4] had observed that:

“……the fact that senior officers of civil services could function as Administrative Members of Administrative Tribunals, does not necessarily make them suitable to function as Technical Members in Company Law Tribunals or other Tribunals requiring technical expertise”.

The Court in Union of India v. R. Gandhi had also gone to observe that:

“The speed at which the qualifications for appointment as Members are being diluted is, to say the least, a matter of great concern for the independence of the Judiciary”.

3. Search-cum-Selection Committee

The membership of the Search-cum-Selection Committee for the post of Expert Members has been also been revised. Earlier the Chairperson of the National Green Tribunal and a Sitting Judge of the Supreme Court were members of the Search-cum-Selection Committee with the Sitting Judge of the Supreme Court nominated by the Chief Justice of India being the Chairperson of the Search-cum-Selection Committee. However, with the amendment, the membership of the Committee no longer contains the Chairperson of the National Green Tribunal and a Sitting Judge of the Supreme Court, with the Chairperson of the Search-cum-Selection Committee being a Government appointee.

In South India Music Companies versus Union of India[5] the Madras High Court struck down the selection committee that had been set up for handling appointments to the Copyright Board for having a majority of bureaucrats from the executive. The Court had observed that:

“…Committee constituted with the overdose of Executive cannot be sustained in the eye of law.”

4. Procedure for inquiry of misbehavior or incapacity of the Member

Section 10 (2) of the NGT Act, 2010 stated that:

“The Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such 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”.

This provision provided a safeguard from the Executive as a Supreme Court judge was vested with the responsibility of conducting an inquiry into any allegations of misbehavior or incapacity on behalf of the Chairperson of the NGT or a Judicial Member.

The Rules, however, make the nodal ministry from the Central Government, i.e. the Ministry of Environment and Forests (hereinafter referred to as “MoEF”) responsible for conducting the inquiry with a written complaint against any member of the NGT to be scrutinized by the MoEF. After a preliminary scrutiny of the complaint, the MoEF, if it is of the opinion that there are reasonable grounds for an inquiry, shall make a reference to a committee constituted under Rule 7 to conduct an inquiry. The rules, however, are silent on the composition of the committee which will be responsible to make recommendations to the Central Government, which on the basis of the recommendations, may remove the member from the NGT.

5. Petition by SAFE

A petition has been filed before the Supreme Court challenging the constitutionality of amendments that have been made in the NGT Act, 2010 through the Finance Act, 2017 with the petitioner, Social Action for Forest and Environment arguing that the amendments will weaken the functioning of the NGT and curtail its powers. The Supreme Court in its order dated July 28, 2017 has given the Central Government a period of two weeks to provide its response to the petition.

6. Conclusion

A brief review of the observations of the Courts in Union of India v. R. Gandhi and South India Music Companies versus Union of India, shows that the Courts have generally taken a position that the independence of the Judiciary is to be maintained and attempts by the Executive to interfere in the Judicial function have generally been strongly stuck down. This attempt by the Central Government to bring wholesale changes in the Appointment process of Members to Tribunals is also likely to struck down as unconstitutional.