"... The numerous orders passed by this Court in the past three years reflect both the concern of the Court and the considerable restraint exercised by it in refraining from proceeding against the concerned officials for disobeying its binding orders. However, the government has failed to take satisfactory steps to address the concern expressed by this Court. It has failed to comply with the Court's orders and has left it with no choice but to issue further mandatory directions to ensure that the legislative mandate contained in the NEAA Act is not frustrated by executive apathy. The government has to be made accountable in law for its disobedience of the court's orders ..."
That is an extract from the judgement of the Delhi High Court with reference to the National Environment Appellate Authority (NEAA), dated 11 February 2009. The court's patience with the Authority, it appears, has run out. Let's look back to see how things got to this.
In June 2005, India Together carried an article on how the New Delhi based NEAA had shown clear bias and preference while dealing with the challenge to particular environment clearances granted by the Ministry of Environment and Forests (MoEF). This was with reference to the appeal against the clearance to two hydro electric projects in the state of Uttarakhand, Loharinag Pala and Pala Maneri (see here). The challenge against environment clearance for the Loharinag Pala project was dismissed on 20 May 2005 on the grounds that the applicant had delayed filing his petition beyond the 30-day window after the approval was granted, and there was no proven reason for this delay.
The applicant, Vimal Bhai, along with Matu People's Organisation and two advocates Ritwick Dutta and Rahul Chaudhary had decided even back then that they would not concede the battle. Instead, they took the issue before the Delhi High Court and invoked its jurisdiction in this matter, as the NEAA is a body based in New Delhi. This petition sought remedies at two levels: first that the Loharinag Pala case needs to be reconsidered in the NEAA. Second - and equally important - that the NEAA is operating only with a Vice Chairman, Vishwanath Anand, and not the five member body that it should have. Therefore its decision on the Loharinag Pala also needs to be reconsidered.
Environment clearance is required for a range of development and industrial projects. Any person aggrieved by the grant of clearance to a project can challenge it before the NEAA. Such appeals must usually be filed within 30 days of a grant of the clearance, or within 90 days with justifiable cause for the delay.
This order also observed that the Union of India had failed to set up the NEAA properly, and it had instead become a "one man show". A full NEAA was directed to be set up within 45 days. But three and a half years after that order, we still don't have a full functional NEAA.
The petitioners waited for the MoEF to act, and finally in February 2007 filed another application before the Delhi High Court. The MoEF's excuse this time was that they were in the process of finalizing the National Environment Tribunal Bill, which would - if passed - revamp the redressal mechanism to challenge environment clearances. It would also mean dissolving several committees and authorities set up using Section 3 of the Environment Protection Act. This included the NEAA. (See: here and here). That is, the reason the MoEF had not constituted the full NEAA was that the Authority was planned to be abolished altogether!
But it turned out that the MoEF's dream of the National Environment Tribunal was not realised, and yet the fully functional NEAA was not set up. What instead happened was that the MoEF appointed three technical members one after another, and they began hearing appeals. Two of these members were officers from the Indian Forest Service (IFS) - J C Kala and Kaushalendra Prasad - and one from the Indian Administrative Service (IAS), I V Manivannan. There was no Chairperson or a Vice Chair.
The NEAA case was heard in the High Court several times over, sometimes adjourned and sometimes with interim orders passed reminding the MoEF of its responsibilities. Infact in an order passed on 3 September 2008, the court summoned the Secretary, MoEF to be present in court on 20 October 2008. This happened, but only for the court to be informed that the former judges of the Supreme Court who had been offered the post had declined to take it on. This was primarily because the remuneration and perks that are offered to the Chair of the NEAA are believed to be not at par with the Chairpersons of the other authorities. So no retired judge indeed wanted to take this on.
Meanwhile a lot began to be written about the NEAA in the mainstream media. Reporters challenged the credibility of the three members, their approach at the time of the hearings based on which orders were passed, and even the fact that the cases were being dismissed in an irresponsible manner. This was also critical in the light of the fact that the NEAA remained without its full composition (see here).
As per the 1997 Act establishing the NEAA, the Authority must consist of a Chairperson, a Vice-Chairperson three other members. The Chairperson must be a retired Judge of the Supreme Court, or the Chief Justice of a High Court. The Vice Chairman should have for at least two years held the post of a Secretary to the Government of India, or any other post at the central or state level with a pay not less than a Secretary, GoI. The Vice Chairman also needs to have the expertise or experience in ad administrative, legal, managerial or technical aspects of problems relating to environment. All of the three members of the NEAA need to have the "professional knowledge or practical experience in the areas pertaining to conservation, environmental management, law or planning and development." The tenure of all the appointees is for three years.
"The present incumbents cannot be stated to be persons satisfying the requirements of possessing technical expertise in terms of Section 5(2} of the NEAA Act. Nevertheless we do not wish to disturb the tenure of the present incumbents since we are informed that they are likely to demit office sometime in March 2009. However, we direct that hereafter the Union of India shall appoint as Members of the NEAA only persons with special technical knowledge in the area concerning the environment as required by Section 5(2} NEAA Act. The appointment of retired bureaucrats of the MoEF, who do not satisfy this requirement, as Members of the NEAA will be contrary to the spirit of the Section 5 (2) NEAA Act and ought not to be countenanced."
An observation like this brings into question also the several orders passed by the NEAA members in their tenure. One of the most recent ones is with respect to the clearance of the Monnet Ispat and Energy Ltd plant in Raigarh, Chhatisgarh. The authority, on 31 December 2008, ordered that the appeal against this plant must be dismissed because a small and active civil society group called Jan Chetana is not eligible to file an application before the NEAA. Jan Chetana members have regularly petitioned MoEF, participated in public hearings, filed and sought orders using Right to Information. But all this was not enough. It took the NEAA seven hearings and an 11-page order to justify that the Jan Chetana or its members are not aggrieved by the grant of clearance, so the petition cannot be heard on merit. This is despite the fact that there was recorded evidence of violations against the company (see here).
The High Court has fined MoEF Rs.20,000 and directed it to constitute the NEAA within 12 weeks from the date of its order; one can only await action on this front. Meanwhile one stares at yet another piece of document that exposes the intent of the MoEF's current avatar. A Ministry which grants close to 100 environment clearances each month simply cannot ensure a fair and just redressal mechanism when challenges to its clearances are mounted.