Govt decision unconstitutional, say legal experts

The Central Government’s sudden and ‘out-of-box’ move of transferring the jurisdiction over Goa State from Western Zone of Pune bench to the Principal Bench at Delhi of the National Green Tribunal (NGT) did not just cause anger and resentment among environmentalists and social activists, but also legal experts, who have termed the move as ‘unconstitutional’ and in violation of ‘fundamental rights.’

The questions that immediately come to mind are: Does it violate the right to access to justice that is a facet of the right to life guaranteed under the Constitution?

Legal experts are of the clear view that the move, which is in complete contradiction to the Supreme Court’s view that ‘the mechanism of justice should be closer and more accessible to the public,’ is basically an attempt on part of the State and Central government to deny justice to the people, who have been fighting against the rampant destruction of the environment.

Along with the aggrieved greens, judicial experts too feel that Goa, which has maximum cases of environment violation pending before the NGT, should have a special bench, covering even the Konkan region, if required.

Union Ministry for Environment, Forest and Climate Change (MoEF&CC) on August 10 issued a notification specifying the ordinary places of sitting and territorial jurisdiction of the NGT. Goa, which was all this while part of Pune bench along with Gujarat and Maharashtra, is now brought under Delhi Principal Bench.

The Western Zone will now consist of the cases related to only Gujarat and Maharashtra State. Goa has been singled out as the only State in the country whose residents need to go to Delhi for environmental justice, while the citizens of other parts of the country are provided access at the closer place possible or you can say remained unchanged as per the latest notification.

“What the MOEF has done is completely against human rights and is unconstitutional. As per the Constitution of India, law and legal remedies should be easily accessible to the people,” former State Law Commissioner Ramakant Khalap said.

“Tomorrow, the High Court may shift its jurisdiction for the State of Goa to Mumbai as it is Bombay High Court. Will that be acceptable? The entire move is to deny justice to the people, who have gone all out against the government failure to protect our greenery,” he reacted.

Stating that the law permits having a special bench in Goa, Khalap recalled how he fought to have a bench of Income Tax Appellate Tribunal in the State, reducing people’s travel all the way to Mumbai.

The Bombay High Court at Goa, taking suo-moto cognizance came to rescue of the activists, wherein it passed an interim order restricting NGT/MOEF from transferring the cases from Pune bench to Delhi. The next hearing is scheduled on September 5 in a petition filed by several activists seeking stay on the MOEF order.

Margao-based lawyer Ohm Rodrigues, who is part of the movement against the MOEF, said that the notification is in violation of fundamental rights as well as in contempt of Supreme Court order, which clearly said that denial of access to justice is violation of Article 14 (equality before the law) and Article 21 (Right to Life).

“In one of the cases, Supreme Court held four facets, where it said that State must provide speedy adjudication mechanism to the people and that the mechanism provided should be accessible in distance and that the litigants to the adjudication mechanism should be affordable,” he explained.

Activist Kashinath Shetye, who defends his cases before the NGT, said that the MOEF, in collusion with State, has shown malafide intention to deny Goans access to the NGT, since ordinary Goan cannot afford the cost and the time needed to approach NGT, Delhi.

The activists believe that the move is in complete violation of the NGT Act 2010, which is visionary in its implementation, empowering people to access environmental justice like the RTI and Consumer Forum. It deals with all Central Environmental Acts and ever since 2013, it had become popular with those opposing ill-conceived development in Goa.

Adv Yatish Naik demanded that the MOEF should revert back the jurisdiction of NGT back to Pune and rather the government must take steps to set up a bench of NGT in Goa which will go a long way in making justice assessable to the Goans.

“Bombay High Court at Goa has also taken suo moto cognizance of this issue which itself goes to show the importance of this issue,” he said.

“Ours is a federal structure as envisaged under our constitutional scheme and guarantee and such decisions ought to be taken by the Central government after taking the State concerned in confidence. But in this case both the Central and State governments are led by BJP and this move to shift the jurisdiction away appears to be a strategy of the BJP government to discourage Goans from preserving our environment,” he said.

While New Delhi was declared as the principal place of sitting, benches were established in Bhopal (Central Zone), Kolkata (Eastern Zone), Pune (Western Zone) and Chennai (Southern Zone).

 “Despite the thrust of the Supreme Court being to bring the wheels of Justice closer and more accessible to the public, the government has taken a very erroneous decision of burdening people travel all the way to Delhi for seeking justice in NGT related matters. Instead of bringing justice to the doorstep, this is clearly a ploy to keep justice out of reach,” social activist and lawyer Aires Rodrigues said.

He said that it is a clear attempt to deny justice to the common man and allow the State to ignore or even partake in environmental violations.

The NGT (Practices & Procedures) Rules provide for adoption of ‘circuit’ procedure. Circuit benches have been established at Shimla, Jodhpur, Shillong and Kochi to hear cases of the respective States or regions. Considering the large number of Goa-related causes in the NGT, the State Government ought to recommend establishment of a circuit bench in the State in interest of accessibility of it people.

Incumbent Chief Minister Manohar Parrikar, who on several occasions, was reported slamming NGT for its various blanket decision including that of sand mining ban, had during its earlier tenure in 2012-14, approached then MOEF Minister Prakash Jawadekar with a demand to consider setting up of NGT bench in Goa. However, post Parrikar elevation at the Centre, the proposal remained mere verbal discussion.