The Judicial Overreach – Facts, Issues and Prospects for Harmonious Growth of Institutions in a Democracy – Part III

The Judicial Overreach – Facts, Issues and Prospects for Harmonious Growth of Institutions in a Democracy – Part III

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In this backdrop, the impact of NGT orders on environment governance has been really significant as compared to many such institutions set up by the parliament. Some of these very recent orders which captured public imagination merit serious study as summed up below:

The NGT intervention in Jan 2016 in the Art of Living Exhibition in Delhi held at Yamuna flood plains near DND (Delhi Noida Direct) flyway in clear violation of rules regulating the land use of Yamuna flood plains which according to the Experts Committee appointed by the NGT headed by the Union Secretary of Water Resources caused huge and largely irreversible damage to the flora, fauna and the delicate ecosystem of Yamuna flood plains which is also the main area where recharge of ground water takes place and thus vital for Delhi survival. As the organizers have wilfully disregarded the land use guidelines, the NGT imposed a penalty of Rs 5 crores on the polluters and ordered the Delhi Authority and the Ministry of Environment and forest to restore the affected areas to its original shape.

Taking note of the dangerously high level of air pollution several times more than the tolerance level and the recognizing that toxicants caused by a specific part of air pollution known as PM 2.5 (solid dust like particles) are a primary cause of lung cancer, asthma and such other serious ailments. NGT had taken several measures like banning of fireworks,   movement of diesel vehicles of more than 15 year old, pulled up South Delhi Municipal Corporation for unprofessional approach to disposal of municipal solid waste and submission of misleading; data and in another case responding to petitions filed by the sufferers, NGT on 25.11.2016 slapped a cost Rs 5000 on the Environment Ministry for its failure to file inspection report on the plea of a retired Army Officer alleging dumping of human excreta by aircrafts of commercial airlines over residential areas near IGI airport which the petitioner rightly termed as “violation” of Swacch Bharat Abhiyan.

The land mark judgment of NGT in RS Bhandari Vs State of Uttarakhand with respect to appointments to the Pollution Control Board is the first real measure to reform the PCB’s which are the main instruments of the State to monitor and analyse air or water quality and control environmental degradation and yet seen till date by the State government “sinecure” for persons who do not possess either expertise or experience in the matter as for instance the Chairman of Sikkim PCB a former Speaker of the State legislative assembly . NGT thus viewed PCB’s as specialized service and ruled that only those who have special knowledge and practical experience in matters relating to environmental protection are eligible for appointments as chair persons and member secretary of the State Pollution Control Boards. This major judicial intervention will be welcome by all keen to improve environmental governance.

NGT upheld the Rule of Law in its order dated 24 Aug 2016 by not sparring Numaligarh Refinery Ltd. In Assam, a Central PSU(Public Sector Undertaking) under the Ministry of Petroleum when it found strong evidence and merit in the petition submitted by an NGO that it flouted the  ‘No Development Zone’ notified by the Ministry of Forests and Environment surrounding the refinery to protect Kaziranga National Park, a world heritage site and that is the home of the largest number of One-horned Rhino in the world, by allowing construction of a boundary wall in the animal corridor and the extension of its township activity which were totally barred in the no development zone. For such wilful disregard of government orders and polluting acts, the NGT imposed a penalty of Rs 25 lakhs on the refinery on the basis of ‘polluter to pay principle’ – an unprecedented order as it was against a central government undertaking; However it had served the purpose as the message that the polluter even when it is a Central PSU is not above the law.  Earlier in April 2016, NGT suspended the grant of environment clearance by the Ministry of Forest and Environment to implement Rs 6400 Cr, 780 MW Nyamjangchu hydropower project in sensitive Tawang region of Arunachal as the NGT found that the decision to grant ‘environment clearance’ was taken on the basis of misleading data and without environment assessment of a 7.5 MW hydroproject included as a part of the project , it ignored a global conservation concern that the Niyamjangchu river is one of the few wintering sites in the world visited by the Black necked crane listed as vulnerable by the IUCN (International Union for conservation of Nature).  The tribunal also noted lack of transparency in public hearing of stake holders violative of the globally accepted principles of ‘environment democracy’ taking these infirmities into consideration. The NGT ordered suspension of clearance and further studies. The project thus has been on hold in response to the peoples protest in a border region which is a proper course in the national interest.

The reader may at this stage be a little concerned about the impact of these decisions of the NGT on development and at the back of her/his mind the environment Vs development debate that is often the subject of debate in TV channels or print media. On this the following views of Shri Jairam Ramesh in ‘Green Signals’ deserve to be noted:

The debate is really not one of environment Vs development but really be one of adhering to rules, regulations and laws versus taking the rules, regulations and laws for granted. When public hearings mean having hearings without the public and having the public without hearings, it is not an ‘environment versus development’ issue at all. When an industrial project begins construction to expand its capacity without bothering to seek any environmental clearance as mandated by law, it is not an ‘environment versus development’ question, but simply one of whether laws enacted by the Parliament will be respected or not”.

There is however a fact that must be kept in mind. Our brief reviews of the role of the Centre and NGT shows that executive inaction and even pliant behaviour in the “Art of Living Exhibition” case presumably caused by involvement of important politicians in the event, caused public protests and matter was thus brought before the NGT; and this is true of all such cases where the courts intervened which are expanding. So, ‘executive‘ hesitation, delayed and inadequate response to matters of ‘public interest’ or public causes have also been a part of the added problem compelling the public to approach the Courts. Thus grumbling about judicial activism will be counterproductive as the rational response should be improvement in governance reducing thereby the ‘causes’ which could attract judicial intervention. Good governance, however is realised in a democracy only when the key ‘institutions’ of governance functions with dedication and efficiency. Thus logically, decay or poor performance of such institutions cause mis-governance or below par par performance in delivery of public service. We will attempt at addressing the issue of decay of institutions and measures needed to arrest the same which is a major challenge before all modern states.

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Why some governing institutions succeed in democracy while others fail to deliver is like asking  ‘Why nations fail’, which is the subject of a fascinating study by Acemoglen and Roberts on Why Nations Fail?, because the reasons and circumstances of institutional decay widely vary as they depend on the character and structure of the polity. This is what makes; breaks or unsettles an institution, though the office may continue to exist but sometimes in name only.

This needs a practical illustration. The office of the Collector exists in all, roughly 600 districts in the country having the same hierarchy, Subordinate offices as for example of those of Deputy and Sub Dy Collectors, Block Development Officers and corresponding officer of specialized activities such as Public Works, Health , Education, Agriculture etc. The Collector as the District Magistrate is also the head of the District Police Force and has the necessary powers of the Executive Magistrate under the code of the criminal procedure and under land revenue laws. As the CEO (chief executive officer) of the District, the collector is the “eyes, ears and the hand” of the State as he enjoys powers under a wide range of laws, rules and regulations covering all activities of the State, to enable him/her to provide legal and administrative support needed by every government department in the districtas for instance by providing land for construction of road as the “Collector” alone in the district has the power to acquire land or building for ‘ public purpose’ . Even though every government office in a district is an ‘entity’ by itself with a well defined area of operation even when it is under the collector like the office of a Sub Dy Collector or Tehsildar of a Revenue Circle, why then is the office of “The Collector”  an institution and not just a government office ?

The answer to this important question is that, it is the leadership and the work culture in all government activities that the person holding the post of collector as the head of the District Administration is expected to bring about which results in all round improvement in delivery of public service. It is this ‘mystique’ and the expectations of the State Government and the district populace associated with the Collectorate and the official who holds this post that turns it into “institution”. The word institution is of Latin origin meaning an order based on a precept, principle or maxim, or to ordain”  responsible for providing ‘good governance ‘ to all citizens as per the constitution. Thus if the collector fails to provide good governance, we could say that the institution has decayed , though office continues to exist. The prescient remark of Lord Wavell, who left India in 1947 and was succeeded by Lord Louis Mountbatten, the last Viceroy may be recalled in this connection.

The British would be remembered not by this or that but for the institution of the District officer that is left behind in India.” The quality of leadership and its commitment to objects and maxims which led to the establishment of the institution therefore determine the actual performance of all institutions of governance. It could thus be held that the Election Commission owes its high standing today entirely due to T.N Sheshan’s bold initiative in asserting the EC’s role in conduct of elections and prevention of electoral malpractices and electoral reforms. By the same criteria, the NGT (National Green Tribunal) which is in the news almost every other day for its actions to secure environmental rights of citizens owes its high position in public life entirely to its present chairman Justice Swatentar Kumar

The second factor is the importance given by the State to the institution’s and its commitment to support its functioning usually reflected in funds, staff, legal and administrative support to expand the institutions reach to the desired object. Third, by acting on the recommendations of the institution which is the best way to demonstrate before the public the State’s commitment to the cause for which the institution was set up in the first place. Fourth, the public and the media’s perception of the role played by the institution in governance.

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Keeping in mind the aforesaid conditions for successful functioning of institutions it is proposed to  test this hypothesis by examining the present status, role and functions of the following institutions of governance selected for their crucial roles and to draw lessons from a review of their functioning for building sound institutions. These are the ECI(Election Commission of India), UPSC (Union Public Service Commission) & SPSCs (State Public Service Commission’s), SFIO (Serious fraud Investigation Office), RBI (Reserve Bank of India), CA&AG  and Panchayati Raj Institutions in order to draw some lessons from present functioning for building sound institutions of governance.


In the concluding part We will examine the aforesaid institutions on the basis of their role, function and efficacy in our democratic setup.