Supreme Court: The three Judges Bench of B.R. Gavai, Pamidighantam Sri Narasimha and Prashant Kumar Mishra, JJ. while hearing a petition on the functioning and constitution of the Central Empowered Committee, the Court gave a slew of directions for the effective functioning of bodies, authorities, regulators, and executive offices entrusted with environmental duties.
Original Constitution of CEC till 2023
The Central Empowered Committee (‘CEC’) was originally directed to be constituted by an order of the Court dated 09-05-2002 in T.N. Godavarman Thirumulpad (50) v. Union of India, (2013) 8 SCC 198, to monitor the implementation of the orders of the Court and to present cases of non-compliance, encroachment removals, implementation of working plans, compensatory afforestation, plantations and other conservation issues. Pursuant to the said direction, a notification dated 17-09-2002 was issued by the Central Government constituting the CEC as a statutory authority under Section 3(3) of the Environment (Protection) Act, 1986.
Thereafter, by subsequent orders of the Court, the composition of the CEC was modified and the term of office for the new members was directed to be for three years or until further orders, whichever is earlier.
Developments in 2023
Almost for a period of two decades, the CEC was functioning as an ad hoc body. The issue of reconstitution of the CEC came to light when permission was sought from the Court to construct a Convention Centre at Patnitop.
The Court after noting that some of the members of the Committee had crossed the age of 75 years and some of the members were living abroad, the Court vide order dated 24-03-2023 directed that some of the experts who are relatively younger should be replacing the older members.
Vide order dated 18-08-2023, the Court approved the MoEFCC’s draft Notification which was officially issued on 05-09-2023 under Section 3(3) of the Environment (Protection) Act, 1986, constituting the CEC as a permanent body for the purposes of monitoring and ensuring compliance of the orders of the Supreme Court covering the subject matter of Environment, Forest and Wildlife and to suggest measures and make recommendations.
The Court clarified that the decisions of the Central Government, or State Governments, are subject to the orders of the Court.
Measures to promote institutional transparency, efficiency, and accountability
The Court gave following directions to the CEC to promote transparency and efficiency in its functioning:
-
To formulate guidelines for the conduct of its functions and internal meetings. The CEC shall formulate the operating procedures delineating the roles of its members and the Secretary of the CEC.
-
To formulate guidelines about the public meetings that it holds, ensure the publication of meeting agenda in advance on its website, maintain minutes of meetings, and set out rules regarding notice to parties.
-
Guidelines for site visits and, if necessary, hearing the public and affected parties therein and time limits for site visits, preparation of reports, and the manner of preparation of reports.
-
The said guidelines shall be posted on the official website of the CEC.
Further, to entrench environmental rule of law in environmental governance, the Court formulated some new principles for the effective monitoring of various bodies, institutions, and regulators established for protecting the forests, wildlife, environment, and ecology.
Environmental Rule of Law?
Referring to United Nations’, ‘Environmental Rule of Law: First Global Report’ (2019), the Court said that environmental rule of law refers to environmental governance that is undergirded by the fundamental tenets of rule of law. The Court reiterated that the rule of law regime is one that has effective, accountable, and transparent institutions; responsive, inclusive, participatory, and representative decision-making; and public access to information. Referring to H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309, the Court said that rule of law recognises the vital role that institutions play in governance and focuses on defining the structural norms and processes that guide institutional decision-making.
Gaps in implementation of Environmental laws
The Court said that while there are several laws, rules for protection of environment, their objective is not achieved as there is a considerable gap as these laws remain unenforced or ineffectively implemented. The Court said that the ‘Environmental Rule of Law’ seeks to redress the issue of the implementation gap, which has a direct bearing on the protection of the environment, forests, wildlife, sustainable development, and public health,
The Court said that the bodies, authorities such as the Central Pollution Control Board, State Pollution Control Boards, Animal Welfare Board of India, National Board for Wildlife, National Green Tribunal and several others are constituted with persons having expertise in the field. The Court added that these bodies constitute the backbone of environmental governance in India. Hence, the Court emphasized that there is a need for these bodies to function with efficiency, integrity and independence and are also subject to accountability.
Obligation of the Constitutional Courts
The Court said that environmental governance emerges through these bodies, which makes the obligation of the Constitutional Courts even greater. Therefore, the Courts continue to judicial review the decisions taken regarding the environment and ecology, as the scrutiny by regulators was felt to be insufficient. The Court also added that the large number of decisions taken by the Court on sensitive environmental, forests and ecological matters constitutes the majority portion of the Indian environmental jurisprudence. The Court emphasized on the role of the Constitutional Courts to monitor the proper institutionalisation of environmental regulatory bodies and authorities. The Court reiterated that the effective functioning of the environmental bodies is imperative for the protection, restitution, and development of the ecology.
The Court said that the role of the Constitutional Courts is to ensure that such environmental bodies function vibrantly and are assisted by robust infrastructure and human resources. The functioning of the institutions will be monitored so that the environment and ecology is not only protected but also enriched.
Guidelines for effective functioning of bodies, authorities, regulators, and executive offices entrusted with environmental duties
-
The composition, qualifications, tenure, method of appointment and removal of the members of the authorities must be clearly laid down. Regular appointments of persons with expertise and knowledge must be made to ensure continuity.
-
Adequate funding and finances must be clear and certain.
-
The role and mandate of each authority and body must be defined to avoid overlap and duplication.
-
The rules, regulations, and other guidelines must be notified and made available and accessible on the websites, even in regional languages.
-
These bodies must clearly lay down the applicable rules and regulations in detail and the procedure for application, consideration, grant of permissions, consent, and approvals.
-
The norms of public hearings, the process of decision-making, prescription of right to appeal and timelines must be prescribed.
-
The method of accountability must be prescribed by clear allocation of duties and responsibilities.
-
Regular and systematic audit of the functioning of the authorities.
[In Re: T.N Godavarman Thirumulpad v. Union of India, 2024 SCC OnLine SC 86, Decided on: 31-01-2024]
