Justice Adarsh Goel, retired Supreme Court judge, was appointed chair of the National Green Tribunal (NGT) for a period of five years in July 2018. He stepped into the shoes of Justice Swatanter Kumar, who passed several landmark decisions including a ban on 10-year-old diesel and 15-year-old petrol vehicles; the demolition of illegal hotels in Himachal Pradesh; and a ban on plastic items in Delhi, Haridwar and Punjab.
Goel’s appointment as chair was notified within a few hours of his retirement from the Supreme Court. Before that, the NGT had operated without a chair for six months. Pertinent matters of air pollution, rejuvenation of the Ganga and Yamuna rivers, challenge to various redevelopments projects in Delhi and the Volkswagen emission fiasco were pending before the tribunal, making this long vacancy questionable.
Also, his selection is ironic in light of a hearing that took place in the Supreme Court two months prior to Goel’s appointment. In the hearing, senior advocate Arvind P. Datar presented a concept note stating:
… the tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the government (is) itself a litigant and the appointing authority at the same time. There should be restriction on acceptance of any employment after retirement.
The entire bench tacitly agreed to the assertions in the note. While the NGT Act doesn’t mandate a minimum time interval between the retirement of a chair and the appointment of her successor, the Supreme Court did implicitly agree to this as a pertinent consideration in cases of appointment of chairpersons of tribunals.
Politicising the appointment
This controversy was further stirred by allegations of opposition party members and protests by the Dalit community. The Congress party alleged that the Narendra Modi government had “rewarded” the retired judge for diluting the SC/ST Act by imposing safeguards to avoid immediate arrests of public officials and ‘unnecessary’ misuse of the provisions of the Act by SC/ST groups. Goel’s verdict emerged in the case triggered by the death of ten Dalits and injury of eight more by police officials and upper caste members. It prompted heavy backlash from the Dalit community after police officials charged under the Act were released.
While the opposition left no opportunity to link this decision by Justice Goel with his appointment, the Dalit community objected to the removal of Goel as the head of the Supreme Court panel in the SC/ST case.
In contrast to his actions on the SC/ST issue, one could examine other significant pronouncements by the judge. In his previous Supreme Court orders, Goel directed Jagannath Temple authorities to deny access to the temple based on faith or gender. He had been instrumental in invalidating the ‘triple talaq’ Muslim divorce practice. He had also propounded the importance of judicial independence while helping to declare the National Judicial Appointments Commission (NJAC) unconstitutional on the theory that the NJAC wrongly empowered the executive to influence the appointment of judges.
Reviewing his term as chief
Be that as it may, it has been over three months since Goel became the NGT chair. His impatience with industrial offenders, environmental polluters and concerned regulatory officials is evident. Recently, the Principal NGT Bench presided over by Goel directed the Uttar Pradesh Pollution Control Board (PCB) to prosecute 124 industries for polluting the Hindon river, of which 30 have been directed to shut down effectively immediately. The bench further required the board to provide compensation to the victims of contaminated water and air by the polluting industries.
He also took the unprecedented move of directing a ‘rehearing’ of 18 high-profile, complex cases whose judgements had been reserved by the bench. These include petitions challenging environmental clearance to the Rs-11,700-crore Char Dham highway project in Uttarakhand and the selection of experts to resolve conflicting recommendations on the hydel power project on the Arunachal Pradesh-Assam border.
More recently, the tribunal rapped the Uttar Pradesh PCB for taking insignificant steps towards protecting the Rapti river. The result was the death of hundreds of people, including 500 children, in Gorakhpur. Such an approach of the newly appointed chair appears to have already changed the mindset of the Indian industries and regulatory bodies with respect to environmental compliance. Goel’s short tenure as NGT chief appears promising in upholding the environmental protection regime and laws in India.
Mitakshara Goyal is a final year student at Jindal Global Law School, Sonipat, Haryana, where Armin Rosencranz is a professor of law.