[This is a guest post by Swapnil Tripathi.]
Earlier last month, the Hon’ble Supreme Court of India in Municipal Corporation of Greater Mumbai v. Ankita Singh & Ors., C.A. 12122 of 2018, examined the question whether the National Green Tribunal (‘NGT’) has the power to exercise suo motu jurisdiction while exercising its functions under the National Green Tribunal Act, 2010 (‘Act’).
They two key arguments against the proposition were, (a) the Act is applicable to disputes and necessarily refers to a lis between two parties, which is necessitated by an applicant/claimant; and (b) lack of the power of judicial review by the NGT shows that it is not the same as writ Courts. The Court ultimately held that the NGT should have suo motu powers primarily because of its special role and also because the Parliament intended to vest it with such powers.
The Court reached this conclusion by adopting a purposive interpretation. In this post, I shall argue that the Court’s conclusion is incorrect. I shall critique the judgment on two grounds i.e., (a) the Court erroneously applied a purposive construction rather than the golden rule of interpretation; and (b) even a purposive construction of the Act would show that the Parliament did not intend for the NGT to have suo motu powers.
Erroneous Application of a Purposive Construction
The principle of purposive construction means that while ascertaining the meaning of a provision, the Court should adopt an interpretation which serves the purpose behind the provision. However, it is trite law that a purposive interpretation only comes into play when the literal rule or golden rule leads to absurdity or defeats the purpose of the provision. (Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619 at par. 33).
A perusal of Section 14 or 18 of the Act (both deal with the jurisdiction of the Tribunal and who may approach it), makes it crystal clear that an application is a must before the Tribunal can exercise its jurisdiction.
For instance, Section 14 (3) reads, ‘No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose…’
Reaching a conclusion that an application is only one of the methods of exercising its jurisdiction (suo motu being the other) would be absurd. The Section discusses the jurisdiction of the Tribunal and mentions the limitation for the application so made, which shows that an application is a must. Further, if one is to assume that the Parliament was desirous of clothing NGT with suo motu powers and Section 14(3) is not exhaustive of the modes of invoking those powers, then these suo motu powers will be without any limitation whatsoever. Such an interpretation is again absurd and allows the Tribunal untrammelled powers akin to a Constitutional Court, which could not have been the intention of the Parliament.
Similarly, Section 18 which specifically deals with who may approach the Tribunal nowhere mentions the existence of suo motu powers. The provision is worded extremely expansively and has rules of standing akin to Public Interest Litigation petitions (‘PIL’). This exclusion by the Parliament is a clear indication that NGT lacks suo motu powers. The Court reaches an opposite conclusion and argues that omission of clear words ‘that an application is necessary to trigger the NGT into action’ shows that it can be triggered suo motu. I believe this is an incorrect interpretation because by adopting this approach one can clothe a Tribunal with massive powers, only because the Parliament did not use specific words excluding a power.
In fact, Section 18(1) also mentions that every application is to be accompanied with certain particulars, which logically means that an application is a must in the first place.
Arguendo: Parliament did not intend for suo motu powers-
Despite the golden rule hinting against suo motu powers, I am cognisant that the Court’s approach on golden v. purposive construction has been inconsistent. For instance, in S. Harcharan Singh v. S. Sajjan Singh, (1985) 1 SCC 370 the Court had observed,
‘36. The conflict between giving a literal interpretation or a purposive interpretation to a statute or a provision in a statute is perennial. It can be settled only if the draftsman gives a long-winded explanation in drafting the law but this would result in an awkward draft that might well turn out to be unintelligible. The interpreter has, therefore, to consider not only the text of the law but the context in which the law was enacted and the social context in which the law should be interpreted.’
This conflict was evident in the recent decision of Abhiram Singh v. CD Commachen, wherein the majority (writing through Lokur J.,) adopted a purposive construction whereas the minority led by Chandrachud J., adopted the golden rule. Chandrachud J., had observed (rightly in my opinion) “The legislature has carefully drafted Section 123(3) to reach out to a particular corrupt practice, which is even more evident when the ambit of Section 123(3A) is contrasted with Section 123(3). One cannot be read into the other nor can the text of Section 123(3) be widened on the basis of a purposive interpretation. To widen Section 123(3) would be to do violence to its provisions and to re-write the text.”
In the present judgment, the Court adopts an approach in favour of a purposive construction. Although it concedes that there is adequate clarity in the phraseology of Section 14 (see paragraph 15.1), it ends up looking at the intention of the Act and its provisions. In my opinion, even if we look at the intention of the Parliament we shall reach the same conclusion i.e., against suo motu powers.
First, the Court misinterprets the history and purpose behind NGT’s creation. It cites the 186th Law Commission Report (‘Law Commission Report’) and the Statement of Objects and Reason of the Act, to argue that the Parliament intended to vest suo motu powers in the NGT. This conclusion is based primarily on the ground that NGT was supposed to be a forum that can competently deal with complex issues of environment and also reduce the burden of the Supreme Court and High Court and hence, should have similar powers.
In fact, at paragraph 17.1 the Court observes, “As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by the High Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the Constitution.”
And at 22.4 it observes, “Many of these cases transferred to NGT, emanated in the superior courts and it would be appropriate thus to ‘assume’ similar powers to initiate suo moto proceedings should also be available with the NGT’”.
Both these conclusions are incorrect. The Statement of Objects and Reasons of the Law Commission Report clearly states that the reason behind creating the NGT was two-fold i.e., (a) to reduce the pressure and burden on the Constitutional Courts and (b) to create a Tribunal equipped with experts, which can better deal with complex environmental law issues (these are reflected in the Statement of Objects and Reasons of the Act as well). The Report envisaged this body to have the same powers as a Civil Court and not Constitutional Courts. In fact, the Report cautions against giving the Tribunal powers of judicial review exercised by Constitutional Courts and writes in favour of powers of a Civil Court (page 165). These observations clearly indicate that the NGT was not to have the same powers as Constitutional Courts on environmental matters.
The Court erroneously reads paragraph 4 of Statement of Objects and Reasons of the Act to argue for a broad mandate for the NGT. The paragraph discusses the narrow mandate of the National Environment Tribunal (NGT’s predecessor) in the context of its limited relief as the NET could only provide relief against damages arising out of accidents occurring while handling hazardous substances. The NGT’s mandate was definitely broader than the National Environment Tribunal but that was only in context of the reliefs it could grant and subject matter of cases it could entertain.
In fact, the Report is silent on suo motu powers and only mentions that the jurisdiction of the NGT should be akin to the PIL jurisdiction of the Constitutional Courts. While discussing the need for regional Benches for the NGT, the Report observes ‘The alternative suggestion for having a single appellate Court at Delhi over the statutory authorities has not appealed to us inasmuch as practically no person or groups of persons residing in any local area who are aggrieved by orders of these authorities will be able to come all the way to Delhi to raise their grievances.’
The stress on the need for accessibility of litigants who approach the Tribunal, shows that the Law Commission and Parliament never envisaged/intended the removal of standing altogether. In other words, they never envisaged suo motu powers for the Tribunal.
The Court cites various other provisions and tries reading them expansively to clothe NGT with suo motu powers. This is made evident on paragraph 16.4 wherein the Court observes, ‘By choosing to employ a phrase of wide import, i.e. secure the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities.’
The term ‘ends of justice’ finds a mention in several procedural and substantive statutes namely Code of Criminal Procedure and Code of Civil Procedure but that does not mean that Civil Courts and Criminal Courts are vested with suo motu powers akin to Constitutional Courts. In my humble opinion, this over expansive interpretation by the Court seems to be a case of the Court clothing the NGT with suo motu powers rather than the Parliament intending to do so.