SupremeCourt is hearing the plea assailing the constitutional validity of the National Green Tribunal Act
Justice KM Joseph: every case ultimately ends up in this court
AG KK Venugopal: I do not think it is in the domain of this court to decide which cases it should decide
Justice Joseph: we do not want to use the word, but legislature has been dumb in this regard, we don't want to use the word but that is the word. we do not know what happened to Roger Mathew.
AG: After Roger Mathew judgment, a tribunal reforms act was brought in and it was struck down. Now thereafter an ordinance was brought in and it is under challenge. Govt is quite clear that so far as court is concerned, it is a policy issue we have maintained.
Justice Joseph: Mr Gupta please argue
Adv Siddharth Gupta: we have challenged Section 3 of the NGT Act regarding establishment of tribunal
SC: Does it exclude article 226 or 227?
Gupta: in not so many words
SC: Is this a tribunal created under Articles 323 A or B
Gupta: It is a purely statutory tribunal.
SC: Context of the articles is regarding exercise of jurisdiction under 26 or 227. NGT does not take away HC jurisdiction in any manner
Gupta: the fact that you are providing direct appeal to SC, in the judgment regarding Madras Bar Association...
Justice Joseph: let us go method wise
Gupta: this does not have an explicit exclusion but has an implicit exclusion. this is by way of direct appeal in Supreme Court. Somewhat same scenario appeared in national tax tribunal case where it gave a direct appeal in SC. Court had then asked that HC was devoid hearing writ
Justice KM Joseph: please show us that judgment
Advocate Gupta refers to the Madras Bar Association case.
Justice KM Joseph: please come to paragraph 133 and read the sections which have been struck down
Gupta: In view of law of chandrakumar judgment, the appeal needs to lie before division bench of the HC.
Justice KM Joseph: it is a good idea from the SC view.
Gupta: appeal has to lie before the HC
SC: These are matters of policy and wisdom of law as distinct from legality is not under judicial review. This is a far cry from saying that appeal should lie before HC
Gupta: there are other grounds here, stature of tribunal is not akin or substitutive of HC.
Justice Joseph: but striking it down will be a far cry.
Gupta: access to justice is a facet of fundamental right and it is not a directive principle.
Gupta refers to the Sunita Khushwaha vs Pushp Sadan judgment. It has been said access to justice is a facet of fundamental right. We are talking about an environmental legislation. Today I am allowed to appear via VC but if it was physical I could not have appeared
Gupta: this is not a tax or commercial transaction law. enactment is a beneficial one and purpose of parliament was to have an expedient form of justice for environmental law issues but when in appeal it is only SC.
Gupta: jurisdiction is prohibitive since the person who raises the complaint may not often be able to take advantage of an appeal before the Supreme Court
Gupta: Law commission had also dealt with the issue of direct appeals to Supreme Court.
Justice KM Joseph: we will go through it.
Gupta: next in Roger Mathew.. issue was about direct appeals to Supreme Court and constitution bench had observed that all provisions providing such direct appeals to SC must be done away with. How it becomes burdensome for an ordinary litigant. Justice DY Chandrachud also dealt
Gupta: At best NGT is subservient to the HC and by the way of L Chandrakumar judgment, appeal needs to lie before the High Court.
Gupta: moment you are substituting the tribunal as the high court then you have to ensure that you bring similar kind of judges to the tribunal as in the high court.
Gupta: when you speak of a statutory remedy then can it by pass the high court completely. In that case I dont have to challenge the tenure etc of judges and only show that such a provision is unconstitutional. Am i clear milords?
Justice Joseph: you couldn't be clearer
SC: What will happen if we strike down section 22?
Gupta: In Chandrakumar judgment, the provision was read down and it was before the High Court division bench
SC: But we are on striking down?
Gupta: if there is no law then there will be a vaccum ..
SC: No vaccum, only special leave petitions under Article 136 will be filed
Gupta: or under Article 226 before the HC
Adv Gupta: Centre is the biggest litigator before the tribunal in this case. central govt cannot be given untrammelled power to notify benches of the tribunal.
Adv Gupta: this question had to be decided by Bombay HC also but it HC observed that Centre being biggest litigator cannot decide seat of tribunal and thus there is a direct conflict of interest
Gupta: For MP, there is a bench which caters to Bihar, Chhattisgarh etc. Like this there are several tribunals which is there in a state and caters to various other states. Appointment of members etc is an issue pending before the CJI.
AG Venugopal: the genesis of the NGT is a judgment of the Supreme Court
AG: chairman of NGT has been a judge of the Supreme Court and the other judicial member is a supreme court judge or high court judge. The expert is the one who is qualified to the extent of 15 years and also be in a national level institution.
AG: There are 19 tribunals which are highly specialised including the one for electricity, telecom, copyright etc. specialisation makes them equal with the high courts and cannot be called inferior to them.
Justice KM Joseph: the point being made here is in the four corners of this country are being asked to come to SC for appeals and that it is not unapproachable.
AG: But people are coming this far everyday under Article 136.
Justice Joseph: so your argument is NGT is a specialised body and the judges can be trusted to do their job well and it would only be in rare occasions that their decision comes under clout then HC can see it. But for full fledged appeal SupremeCourt has to be approached
SC: Somebody approaches local NGT in Arunachal pradesh and if the person has issues with facts then appeal has to be filed before the Supreme Court
AG: But the appeal is only a question of law
Justice Joseph: there are large number of retired HC judges and they may be used to clear these arrears.
AG: But the issue is his judgment will be treated as a judgment from the trial court. there are huge arrears and the govt has to do something about it. Tribunals has to be treated as equal to the HC.
Justice Joseph: why cannot NGT have a bench in each state? it will be helpful and lighten the burden and address the concerns and more people will be encouraged to take up environmental issues. people will avail of it
AG: i can take instructions in this case.
SC: Please address us on Section 3 on Centre given the untrammelled power to notify the benches since they are the biggest litigant.