Should the National Green Tribunal have Suo Moto Powers?

The NGT's use of suo moto powers has been heavily debated: are the powers inherent to its functioning or should they be explicit in the Act?

In 1979, a widow wrote a letter to the editor of a newspaper sharing her financial difficulties. She had not been paid the pension owed to her, after her husband’s death. Without the ‘formalities’ of a petition being filed, a judge of the Gujarat High Court, M.P Thakker called upon the Regional Provident Fund Commissioner to provide an explanation. After just one hearing, the pension was paid.

This was one of the first instances of the Indian courts exercising their ‘suo moto power. This power allows the Supreme Court (SC) and High Courts (HC) to take up cases on their own volition- without any petition being formally filed. Articles 32 and 226 recognise this power. Since 1990, the SC has heard nearly 50 suo moto cases, often dealing with human rights and government policy. These powers have also been widely used by Courts to deal with environmental issues, including air pollution in Delhi and the remediation of polluted rivers.

Suo moto powers are used by the courts when they see that violations of constitutional rights are not being addressed adequately. This was observed when the SC started hearing COVID related issues of its own accord, such as access to essential supplies. Judicial intervention in this instance was largely welcomed in light of executive inaction, perceived or otherwise.

The use of suo moto powers, however, is criticised for allowing the courts to undertake ‘heroic interventions’ that often infringe upon the powers of the legislature and the executive. For instance, the SC’s COVID related orders effectively compelled the Union to draft a policy, and change their crisis management method.

The debate around suo moto powers has now extended to tribunals. A tribunal is a quasi-judicial body: an administrative institution with partial judicial powers. They were set up to aid courts with speedy disposal of cases. Tribunals do not generally have suo moto powers. The National Green Tribunal however, has been passing orders by exercising these powers.

In October 2018, the NGT passed an order based on a news report, imposing a five crore fine on the Mumbai Municipal Corporation for improper waste management. Similarly, in March 2021, the NGT passed an order based on a letter written to the Chairman. The order increased the minimum distance of quarries from residential areas from 50 to 200 metres. These actions by the NGT were suo moto actions. These orders have now been challenged by a group of parties who have appealed to the SC. The Court will now decide whether the NGT has the power to pass orders based on letters and news articles, and if it can exercise suo moto powers.

The appellants argue that there is no provision under the National Green Tribunal Act, 2010 (the Act) that explicitly allows the NGT to exercise suo moto powers. The Act only allows the tribunal to hear all civil cases where there is a ‘substantial question relating to the environment’ (section 14); this provision does not grant NGT with suo moto powers.

The respondents however, argue that the broad powers vested in the NGT under ‘substantial questions’ reflect the purpose of forming the NGT. They argue that this purpose guides the ‘conscience of the Tribunal’. The jurisdiction of the NGT is based on a right to a healthy environment under the right to life. So, a procedural requirement such as a formal petition, must not overshadow the core purpose of the tribunal.

The argument of the appellants have some credence in that, where lawmakers have wanted to explicitly grant a tribunal suo moto powers, the relevant law has clearly stated so. For instance, The Karnataka Land Reforms Act, 1961 explicitly mentions the limited suo moto powers of the Land Tribunal. So, if the Act is interpreted literally, the NGT does not have suo moto powers.

However, the NGT’s suo moto power can be seen as inherent to its function. The 186th Law Commission report stated that the power of ‘environmental courts’ to take up a matter must be read as broadly as possible. Anyone who is affected by an environmental issue or has a public interest must be able to approach these courts. A literal interpretation of the Act would hinder the NGT from serving its mandate to protect the environment.

If the Court considers the purpose of the Act, suo moto powers can be interpreted as vital to the NGT’s function. This could allow the NGT to play a more effective role in protecting the environment. However, to say that an institution needs suo moto powers might reinforce the view that a judicial body must ‘swoop in’  when the legislature or the executive do not perform their functions. The Tribunal would have a direct effect on the functioning of executive bodies, such as the Municipal Corporation in the present case; Unlike orders based on petitions, cases taken up suo moto would allow the tribunal itself to decide what issues it should consider and to what extent it can infringe on the executive’s domain.

If the Court restricts its interpretation to the text of the statute, it will set important precedence in deciding the scope of tribunals. Even a tribunal such as the NGT whose primary function is the protection of the environment, will be limited by the scope of the relavant statute. This could reinforce the framework that tribunals have as quasi-judicial bodies, and clearly limit the extent of judicial powers that this executive body has.