Introduction

India is one of the largest democracies in the world, and in our country every decision is
made by the citizens through their representatives. The power of judicial review can be
defined as the power of the superior courts to check that the constitutional validity of every
legislative act and administrative decisions of the state.
Judicial review is an excellent example of the live application of the principle of
separation of power as the essential component of rule of law in the Indian democracy. It
tests every action of the state so that the fundamental rights of the people can be protected.
The both HCs and the SC has the power of judicial review. The Apex Court derives its power
under Art. 32 and 136 whereas the HCs has the parallel power under the Art. 226 and 227.
But here the question arises is that whether such power of HC or SC can be conferred
upon an alternative mechanism like tribunals like NGT which are established to deal with a
particular type of matters? The reason behind is that, since NGT was established under the
NGT Act to adjudicate upon the matters involving environmental issues and rights, and it is
as effective as HC but still it cannot be considered as the HC or SC.

Judicial review and Tribunals

The doctrine of judicial review has bestowed the power upon the judiciary to determine
the constitutionality of an actions of both administration and legislation and also the power to
held them invalid. The very first test of a tribunal’s power of judicial review was held by the
Apex Court in SP Sampath Kumar’s1 landmark judgement. But after this case various other
benches of the Supreme Court have taken a totally different view on the subject matter.
Lastly in order to settle the dispute in L. Chandra Kumar’s2 case a large bench of 7 judge was
constituted.
It was held that focusing upon the basic structure, if the tribunal can provide an
alternative mechanism which is as effective as HC and can be a real substitute for the powers
of HCs then in such circumstances the tribunal can have such powers. The court in the case
has laid down the following principle on the subject matter:
 Firstly, no alterative institutional mechanism can oust the jurisdiction of HCs and
Apex court under Articles 226 and 32 respectively as it may result into violation of
the basic structure.

1
SP Sampath Kumar v. UOI 1987 SCR (3) 233.
2
L. Chandra Kumar v. UOI (1977) 3 SCC 261.
  Secondly, The Tribunal can review the legislations/rules or amendments, but it is
subject to some limitation i.e. the tribunal cannot review its parent statute.
Additionally, the bench dealing with the question pertaining to interpretation shall
consist of at least one judicial member.
 Though the tribunal will work as the court of first instance but when the parent act is
in question, such matters shall be heard by the HC.
 As mentioned earlier the jurisdiction of HC cannot be ousted, therefore the HCs have
jurisdiction over the decision of the tribunal under Article 226 and 227.

National Green Tribunal: An Introduction

Basically, the NGT was established under the NGT Act, 2010 with intention of providing
expeditious and efficient settlement of the matters pertaining to forest conservation,
environment protection, violation of rights related to environment and any other environment
related matters. The tribunal has given the power to exclusively adjudicate the overstated
matters and provide damages to the affected people in the matters involving environment
related issues.

Jurisdiction of National Green Tribunal

It is well referred that the NGT has a wide and unrestricted jurisdiction on its subject
matter furthermore this jurisdiction is free of any control or government influence. Section 14
of the act provides that NGT has jurisdiction over all civil cases involving matter pertaining
to environment also where the legal related to environment is involved. Again, under section
15 of the act the NGT has jurisdiction to address and pass order of compensation and relief to
the victim of environment pollution. Furthermore, section 16 provides for appellate
jurisdiction to NGT over the order passed by authority u/s 16(a) to (j).

Judicial review and National Green Tribunal

For a long period, the issue of NGT’s power of Judicial Review was disputed and there were
no substantial judgement to back upon.
Later on, it was held by the SC that “NGT has complete and comprehensive trappings of
a court and within the framework of the provisions of the Act and the principles stated, the
NGT can exercise the limited power of judicial review to examine the constitutional
validity/vires of the subordinate/delegated legislation…. However, such examination cannot
extend to the provisions of the statute of the NGT Act and the Rules framed thereunder, being
the statute that created this Tribunal.”3
Thereafter in L. Chandra Kumar4 the court has opined that the tribunals are set up to deal
with specific matters and generally it has power of judicial review with subject to limitation
of reviewing the legislation under which it was set up. The court further added that the
administrative tribunals which are set up under Article 323A, exercise the jurisdiction equal
as court of normal jurisdiction but not the Apex Court. In a way the court opened the gate for
the tribunals to use the power to judicial review.
In the case of BSNL v. TRAI5 the apex court is interpreted the provisions pertaining to
appellate powers under TRAI Act, 1997. Under section 14 the TDSAT has the power to
adjudicate over the appeals from a decision of TRAI. In this case the bench took another
view from the Chandra Kumar’s judgement. The court after considering the arguments held
that though TDSAT has jurisdiction as per section 14(b) but it lacks the jurisdiction to
adjudicate upon the matters that challenges the regulation framed under section 36 of TRAI
Act.
But in a recent judgement of Sterlite Industries6 the court brought clarity on this disputed
jurisdictional aspect. The court set aside the order passed by NGT for reopening Vedanta-
Sterlite copper smelter plant in Tamil Nadu.
“The Supreme Court, setting aside the order on maintainability alone, observed that the
NGT in the case had entertained a leapfrog appeal against the original order while an appeal
was still pending before the appellate authority. It was held by the court that since the appeal
is a creature of statute and an appellate tribunal has to act strictly within the domain
prescribed by the statute, such leapfrog appeals to NGT are without jurisdiction even if
doctrine of necessity is pleaded. The Supreme Court further observed that the legislative
scheme is that directions issued under section 33A of the Water Act are appealable to the
NGT, but directions issued under section 31A of the Air Act are not appealable. The court
further held that the NGT did not have the jurisdiction to hear an appeal against the order
made by Government of Tamil Nadu under section 18 of the Water Act. It was held that an
order under section 18 of the Water Act could only be set aside either in a suit, or a judicial

3
J. Wilfred & Others v. Ministry of Environment and Forests, Through the Principal Secretary & Others LQ
2016 NGT 14358 Para 148.
4
L. Chandra Kumar v. UOI (1977) 3 SCC 261.
5
BSNL v. TRAI (2014) 3 SCC 222.
6
Tamil Nadu Pollution Control Board v Sterlite Industries (I) Ltd & Ors 2019 SCC OnLine SC 221.
review by a high court. The court further held that NGT does not have powers of judicial
review like the high court under article 226 of the Constitution of India.”
NGT’s Overreaching Jurisdiction
NGT has been accused of overstepping its jurisdiction a number of times and taking
connivence of the matter for which it has not been created under the NGT Act. Three issues
have frequently raised in this discussion namely.
• Whether NGT have powers to take suo moto cognizance of a matter?
• Whether NGT has power of Judicial Review?
• Whether NGT can take up a case referring as a substantial question of
environment?

The jurisdiction of the NGT is governed under Sections 14, 15 and 16. Whereas, section
19 has empowered the tribunal to determine its own procedure and this provision has been
used by NGT to include within its ambit issues that the NGT Act does not authorize it to
adjudicate upon in general circumstances.
In the past, NGT has been alleged to take suo moto cognizance in issues relating to the
adverse impact of heavy and unregulated tourism in the Rohtang Pass area. Whereas, in
India, suomotu jurisdiction is only available with SC and HCs.
In Rajeev Hitendra Pathal7 the court held (at para 36) that tribunals derive their powers
from the principle statute. Therefore, the tribunal cannot exercise the powers which are not
there in the statute.
The Delhi HC in Padam Singhee’s case8 discussed the suo-motu powers of DRT/DRAT.
It was discussed that Section 22 of RDDBFI Act has acquired the same meaning and
language as Section 19 of the NGT Act. It says that subject to the RDDBFI Act, DRT/DRAT
can exercise its own procedure. However, the Delhi HC held that it shall not be said that
Section 22 provides suo motu jurisdiction on DRT/DRAT.
In light of the above discussion, it cannot be said that the NGT Act has the suo motu
jurisdiction. Applying the principle of “what cannot be done directly cannot be done
indirectly” the secondary powers cannot ne assumed as expressly provided under the act.
Furthermore, in Standard Chartered v. Dharminder Bhohi9 the Apex Court has examined
the powers of the RDDBFI Act under Sec. 19(25) which has the language similar to Rule 24

7
Rajeev Hitendra Pathak v. Achyut Kashinath Karekar (2011) 9 SCC 541 Para 36.
8
Padam Singhee’s v. SVOGL Oil, Gas and Energy Ltd. WP(C) No.9616 of 2018.
9
Standard Chartered Bank v. Dharminder Bhohi And Others 2013 SCC OnLine SC 838.
of the NGT Rules. The Court held that Tribunal does not have inherent powers. The court
further added that powers give under Sec 19 are not extensive but limited hence the tribunal
shall work as per the statute only. It was stated that the since the tribunal is a creation of a
statute hence it cannot assume powers on its own unless it is conferred explicitly under the
statute.
Therefore, even though NGT drives powers from Rule 24 but tribunal shall not assume
the power of Suo Moto jurisdiction because it is a court of limited jurisdiction under the mask
of inherent powers the NGT shall not exercise the jurisdiction not vested in them.
In the recent Gas Leak case in Vishakhapatnam at LG Polymers Chemical Plant the NGT
took suomotu cognizance and stated the importance of suomotu power of the tribunal as “If
NGT were powerless to institute suo motu proceedings where so warranted, as in the present
case, it would be robbed of all its efficacy, because then the situation would be that if
environmental damage causes loss of life, public health and property, the court can grant
relief only if the victims found the means to approach it first. Such limitation, to a large
extent, would emasculate NGT’s powers.”10
The NGT after referring the cases including Bhopal Gas Peedith Mahila Udyog v. Union
of India;11 State of Meghalaya v. All Dimasa Students Union; 12 and M.C. Mehta v. Union of
India,13 the NGT observed that “If this Tribunal is prevented from instituting suo-motu
proceedings, these issues and violations would remain unaddressed, citizens’ inalienable right
to life and other rights will stand jeopardized, and the serious and irreversible environment
damage would continue unchecked.”
In a case of Kalpavriksh & Ors v. Union of India & Others 14NGT invoked the power of
judicial review and directed the ministry to revise the qualifications and experience in the
notification. Though it was argued that NGT is trying to acquire the powers of the higher
courts. “NGT cannot strike down a statute. It can only examine the decisions that are taken
and consider if they are in compliance with the three principles laid down in Section 20 of
the Act.”
Though under Sec 14(1) NGT is empowered to address all civil cases involving a
“substantial question relating to environment.” It has been argued many times that this term is
ambiguous and crates confusion and NGT has used it to expend its jurisdiction.

10
In re 2020 SCC OnLine NGT 129.
11
(2012) 8 SCC 326.
12
(2019) 8 SCC 177.
13
(1987) 1 SCC 395.
14
Kalpavriksh and Ors v. Union Bank of India and Ors Appeal No. 88, 89, 90 And 91 of 2004.
 The NGT stated that in order to decide the jurisdiction we must consider the fact that
environment protection has been raised to the pedestal of a fundamental right by the Apex
Court. and the tribunal held that “the jurisdiction of the tribunal is thus, very wide. Once a
case has nexus with the environment, the tribunal’s jurisdiction can be invoked. Even cases
which have indirect adverse impact on the environment can be considered by the tribunal.”
But the point here is that notwithstanding the fact that environment is a part of
fundamental rights provided under Article 21 but still it cannot be used to strike down any
legislation/order.

Conclusion
Considering the fact that there is no provision for judicial review in the NGT Act. Since
the tribunal has power to adjudicate upon the matters pertaining to environmental law and its
smooth implementation to avoid any violation of rights. The power of NGT is not defined in
a straight jacketed formula but it is very wide and if can even adjudicate upon the matters of
environment clearance by the environment ministry.
It has been argued in a plethora of cases that NGT is overreaching the jurisdiction of the
SC and HCs while using the powers of Suo Motu connivence of the matters. Though the
NGT in LG Polymers said that such power is crucial for the tribunal in order to deal with the
environmental law violation by these huge corporations. But since the matter us still pending
before the Apex Court, therefore the question is still open that whether NGT has such power
or not.
Coming to the power of judicial review the court has held in the recent judgement that
NGT does not have such powers like the Apex court or the High Courts under Art. 32 and
226 respectively and for time being this is the law of the land. But it may create a chaos
because while exercising its powers NGT would be required to deal with a notifications or
memorandums passed by the government and if might also require to set aside such
notifications/memorandums but without these powers NGT would not be an effective body
and would not be able to pass orders in the interest of justice. Therefore, the apex court
should find a balance so that miscarriage of justice can be avoided.