On 8 June, 2017, the National Green Tribunal (NGT) directed chairpersons of 10 State Pollution Control Boards (SPCBs) to cease functioning. This order was issued in the context of an earlier judgment delivered by the NGT on 24 August, 2016 in Rajendra Singh Bhandari v State of Uttarakhand & Others highlighting a serious institutional problem that has received little attention over the years: the composition of the Boards, and the qualifications of persons appointed as chairpersons and member secretaries, has not been fully in compliance with the letter of the law.
Shibani Ghosh, environmental lawyer and Fellow at CPR, contextualises and unpacks both the August 2016 judgment and the recent order of the NGT in an interview below.
What was the original case before the National Green Tribunal with regard to State Pollution Control Boards?
State Pollution Control Boards (SPCBs) are constituted by State Governments under the provisions of the Water (Prevention and Control of Pollution) Act 1974 [Water Act] and the Air (Prevention and Control of Pollution) Act 1981 [Air Act], and are important actors in Indian environmental regulation. The case was filed before the National Green Tribunal on the ground that persons holding important posts in the Uttarakhand Environment Protection and Pollution Control Board did not possess the necessary qualifications as required in the two Acts. According to the applicant, appointees were often officers of the Indian Administrative Services (IAS) and Indian Forest Services (IFS) who held ex-officio posts and did not have the necessary knowledge and experience in the field of environment. Further, those appointed would often discharge their functions on a part-time basis, and many were transferred to a different posting before completing their term.
The crux of the case lies in the qualifications of persons eligible to be nominated as chairpersons and to be appointed member secretaries of SPCBs by the State Governments. The provisions state that the chairperson must have ‘special knowledge or practical experience in respect of matters relating to environmental protection’. In the case of the Water Act, there is an alternate eligibility criterion for the chairperson – a person with knowledge and experience in administering institutions dealing with matters relating to environmental protection could also be nominated.
With regard to member secretaries, both laws state that the person must possess ‘qualification, knowledge and experience of scientific, engineering or management aspects of pollution control’, and must be engaged on a full-time basis.
The laws do not elaborate further on the qualifications, and the rule-making powers to decide the terms and conditions of service of the chairpersons and the member secretaries lie with the respective State Governments.
Initially the matter pertained only to the State of Uttarakhand, but during the hearings concerns were raised about the (lack of) qualifications of persons heading other SPCBs as well. As a result, the Tribunal directed all states to become a party to the case, and the final judgment applies to all states and Union Territories.
What were the key features of the judgement passed by the National Green Tribunal in August 2016?
The key aspect of the August 2016 judgment is that the Tribunal provided guidance for how the terms ‘special knowledge’ and ‘practical experience’ in the context of the SPCB’s chairperson’s qualifications are to be understood, as they are not defined in the two laws. The Tribunal concluded-
“122 ... the Special knowledge is where the information one acquires through learning which is exceptional, in greater quality and degree. It can be said to mean knowledge which is surpassing, distinguishing and exceptional in nature and is derived through rigorous study or research over a reasonable period of time, in the field of matters relating to environment.
Therefore, any person with knowledge which is ordinary or casual in respect of environmental matters will not qualify or become eligible in respect of appointment under consideration. Knowledge, qualified with the word special, has to be acquired through accepted and established norms of education i.e. an academic qualification in the field of environmental protection as recognized by university established by law.” (emphasis as in original)
The Tribunal specifically added that the candidate must have to her credit ‘either M.Sc. in Environmental Science/ Environmental Management or M.E./M. Tech. in Environmental Engineering or equivalent degree’.
On ‘practical experience’, the Tribunal held-
“This would mean that a person with a basic knowledge and understanding of environment and its protection, which he might have obtained in the form of a Degree in Science, would be eligible for appointment if he has had actual experience in environmental protection. ... A person having practical experience in environmental protection and abatement of pollution, but without at least the basic knowledge and understanding of the environmental processes through degree in Science subjects, cannot be regarded as eligible for the said post. ... That leads us to hold that a person having practical experience must have a degree with Botany/Zoology/Chemistry or an allied subject wherein basic knowledge about ecology and environment are a part of the curriculum.”
With reference to the third eligibility criteria for the post of the chairperson under the Water Act – knowledge and experience in administering institutions dealing with environmental protection – the Tribunal stressed on the requirement of knowledge along with experience. It held that a person was not an eligible candidate just by virtue of administering an institution dealing with environmental protection – as that was mere experience, and not necessarily knowledge. The Tribunal did not exclude IAS and IFS officers from the pool of potential candidates, but held that candidates must have a degree in a science subject which relates to the environment.
For member secretaries, the Tribunal emphasised that the law specifically required full-time appointments and that the candidate must have a ‘Masters of Engineering, Technology, Environmental Engineering or allied Sciences where Pollution Control forms a component of the curriculum’.
The Tribunal directed the State Governments to examine the qualifications of the current chairpersons and member secretaries, and decide whether they are in accordance with the law and the interpretation provided in the judgment. It gave the states three months from the date of the judgment to complete this exercise.
Besides this specific direction, the Tribunal also issued guidelines to the State Governments to ensure that SPCBs function smoothly. Although these were termed as ‘guidelines’, they were worded prescriptively. Inter alia, the State Governments had to notify rules under the Water Act and Air Act specifying the qualifications for the posts of the chairperson and member secretary; posts of chairpersons and member secretaries are to be openly advertised to attract the best talent; chairpersons and member secretaries are to have a fixed term– not dependent on their tenure in the State Government, and they are to be allowed to complete their full tenure.
Why is the matter back in news now?
In its 24 August, 2016 judgment, the Tribunal had given all states three months to ensure that the appointments were in consonance with the law and the guidance provided in its judgment. Some states had filed appeals in the Supreme Court against the August 2016 judgment. But as the Supreme Court has not stayed the judgment, states are expected to comply with it. The Tribunal is currently considering whether the states have complied with its judgment or not.
In its order on 30 May 2017, the Tribunal noted that states had not taken effective actions to comply with its judgment. It issued a show cause notice to all chairpersons of SPCBs whose appointment was not in consonance with the judgment to justify as to why they should not be asked to cease functioning as Chairman of the respective Boards.
After receiving replies to its show cause notice from various states, in its last order (8 June, 2017), the Tribunal directed the chairpersons of the SPCBs of the states of Himachal Pradesh, Sikkim, Tamil Nadu, Uttarakhand, Kerala, Rajasthan, Telengana, Haryana, Maharashtra and Manipur to cease functioning, as their appointment, despite passage of sufficient time, did not comply with the Tribunal’s judgment. The government of Delhi, Uttar Pradesh and Punjab were given some additional time. There was no observation with regard to other states. The case is now listed for further hearing 4 July, 2017.
What implications does the NGT’s judgement have for the Boards’ functioning?
The SPCBs as frontline environmental regulators play a very important in India’s environmental governance. As noted by the Tribunal in its 24 August, 2016 judgment, and again in its 8 June, 2017 order, the SPCBs’ duties are predominantly technical in nature. To be able to discharge these duties, whoever is at the helm of affairs must have the capability, of course with assistance from the rest of the Board and staff, to understand, and respond to, the huge array of issues faced by the SPCBs. If the Tribunal’s judgment with regard to appointments is followed in letter and spirit it can significantly improve the institutional capacity of the SPCBs.
It could be argued that the 10 SPCBs whose chairpersons are no longer permitted to perform their duties will not be able to function properly. While it is not a desirable state of affairs, it is unfortunately not unusual for pollution control boards to be without full-time chairpersons. For instance, the post of the chairperson of the Central Pollution Control Board lay vacant for four and half years.
While the Tribunal’s stand on the issue is welcome, it is important to keep in mind that there are other structural issues such as autonomy in day-to-day functioning, transparency in decision making, and accountability for (in)action and poor decision making which are critical to the effective functioning of the SPCBs and for improving environmental outcomes. But these are not at issue before the Tribunal in this case.
Read an earlier piece by Ghosh on Understanding the National Green Tribunal here.