Many tribunals including the National Green Tribunal (NGT) were established in India over the past few decades with the aim of delivering speedy and efficient justice to settle issues that can otherwise take years for their redressal.
Indian tribunals include Armed Forces Tribunal, Central Administrative Tribunal (CAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Income Tax Appellate Tribunal (ITAT) and the NGT among others.
Pollution in the Holy Ganges
One common feature found in the Acts governing these tribunals is the exemption to them from the Criminal Procedure Code or the Code of Civil Procedure. The tribunals are bound by “Principles of Natural Justice” in the disposal of the matters concerned.
Parliament went a step further and exempted NGT from Indian Evidence Act as well making “Principles of Natural Justice” the only basis on which it will operate.
Following is the relevant portion of the NGT Act, exempting it from the established laws.
“19. (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.”
“(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.”
Reading the literature available on the concept, we gather that there are some fundamental principles when it comes to natural justice.
No-one should be a judge in his own cause
This essentially means no one can be a Judge in one’s own cause or in a case where one has a personal interest vouching for the rule against bias. Forms of bias that can manifest in such scenarios include pecuniary, personal and ‘subject matter’ biases.
Subject matter bias means the person in a position to deliver a decision has an expertise in the field to which the dispute corresponds to and, therefore, his own understanding and beliefs can color his judgment.
Take a look at the composition of the Tribunal in the NGT:
A chairperson: Must be a retired Supreme Court judge.
20 Judicial members (maximum permissible count): Who can be chosen from retired Supreme Court or High Court judges.
20 “expert members” (maximum 20): The requirements to qualify as an expert member are:
Must have Master’s degree in Science (in physical or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and at least 15 years’ experience in the relevant field including five years practical experience in the field of climate change management, environment and forests (including pollution control, hazardous substance management, forest conservation environment impact assessment and biological diversity management) in a reputed national level institution; or have a minimum of 15 years administrative experience including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.
In short, the “expert member” is a “subject matter expert” on environmental issues. A subject-matter-expert is actually sitting to decide on a matter goes against the very foundational principle on which the concept of natural justice is built.
The NGT Act also specifies, as per Section 4(4)(c), that in any sub-group formed to hear an application or an appeal, the number of expert members in a bench will always be equal to the number of judicial members in the bench. “Provided that the number of expert members shall, in hearing an application or appeal, be equal to the number of judicial members hearing such application or appeal”
This means that if the subject matter experts concur, a decision can never be given against what they believe in. That apart, it will then take only one judicial member to concur with them for the overall decision to be based on their line of judgment. This is because the NGT Act says the following in the context of decision making:
“21. Decision to be taken by the majority.” The decision of the majority of members in the tribunal shall be binding:
Clearly, “subject matter bias” can clearly prevail over judgments in NGT and it goes orthogonal to the Principles of Natural Justice, based on which it is supposed to deliver justice!
Let us now come to another thumb-rule that governs Principles of Natural Justice:
The Evidence Rule
Any decision which is supposed to be based on natural justice should provide for submission of logical evidence and point-to-point rebuttal of opposing evidence. The defendant and the applicant(s) have the right to present their case and evidence.
The presence of the mature Indian Evidence Act notwithstanding, the NGT Act does away with its applicability leaving the whole evidence procedure in the hands of the committee members. In other words, the entire evidence process is left to the discretion of the tribunal members.
This again is a violation of one of the fundamental Principles of Natural Justice!
Such decrees benefit the wicked and injure the just, since the just respect them, while the others do not do so. There must be covenants and positive laws to tie rights with duties and to direct justice to its object.
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