Apex Court asks Central Empowered Committee to formulate guidelines for conduct of its functions, meetings, site visits; Enumerates institutional features to be adopted by environmental authorities
Justices B.R. Gavai, Pamidighantam Sri Narasimha & Prashant Kumar Mishra [31-01-2024]

Read Order:  IN RE: T.N. GODAVARMAN THIRUMULPAD v. UNION OF INDIA AND ORS [SC- WRIT PETITION (CIVIL) NO. 202/1995]

Tulip Kanth

New Delhi, February 1, 2024: The Supreme Court has held that the Notification issued by MoEFCC dated 05.09.2023 to constitute a Central Empowered Committee provides for the constitution of the CEC, its powers, mandate, members, method of appointment, terms of service, and monitoring of its functioning. The Top Court has opined that concerns regarding the functioning of the CEC as a permanent body have been taken care of.

The 3-Judge Bench of Justice B.R. Gavai, Justice Pamidighantam Sri Narasimha and Justice Prashant Kumar Mishra was considering the context of institutionalisation and reconstitution of the Central Empowered Committee (CEC). The CEC was originally directed to be constituted by an order of the Top Court reported as T.N. Godavarman Thirumulpad v. Union of India, [LQ/SC/2002/640] . Pursuant to the said direction, a notification was issued by the Central Government constituting the CEC as a statutory authority under Section 3(3) of the Environment (Protection) Act, 1986.

Almost for a period of two decades, the CEC was functioning as an ad hoc body. The present composition of the CEC also consisted of persons who are more than 75 years of age and some of whom are also residing outside India. It was noticed by the Bench that much water had flown when the CEC was initially constituted as various enactments concerning environmental issues were enacted, so also various regulatory bodies were constituted under the said enactments. The Top Court also found it necessary to have a relook at the CEC’s functioning.

The Ministry of Environment, Forest and Climate Change thereafter issued a Notification dated 05.09.2023 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 related issues arising out of the said orders and to suggest measures and recommendations generally to the State, as well as Central Government, for more effective implementation of the Act and other orders of the Court. The Supreme Court had approved the aforesaid Notification and also declared that the CEC shall continue to function subject to orders and directions of the Top Court.

Referring to MoEFCC’s Notification, the Bench opined that its concerns regarding the functioning of the CEC as an ad hoc body and that it should be institutionalised as a permanent body have been taken care of. The said Notification provided for the constitution of the CEC, its powers, functions, mandate, members, method of appointment, terms of service, and monitoring of its functioning.

However, the Bench passed the following measures for the CEC to adopt to promote institutional transparency, efficiency, and accountability in its functioning:

• The CEC shall 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.
• The CEC shall 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.
• The CEC shall formulate guidelines for site visits and, if necessary, hearing the public and affected parties therein.
• The CEC shall formulate guidelines fixing time limits for site visits, preparation of reports, and also the manner of preparation of reports.
• We further direct that these guidelines/regulations shall be posted on the official website of the CEC.

“As new bodies, authorities, and regulators for environmental governance emerge from time to time, their institutionalisation assumes extraordinary importance. Institutionalisation means that these bodies must work in compliance with institutional norms of efficiency, integrity, and certainty. In this context, the role of the constitutional courts is even greater”, the Bench opined.

The Bench also encapsulated various bodies regulating the field of environmental law and involved in environmental governance. The Bench sought to emphasise and reiterate the importance of ensuring the effective functioning of these environmental bodies as this is imperative for the protection, restitution, and development of the ecology.

“The role of the constitutional courts is therefore to monitor the proper institutionalisation of environmental regulatory bodies and authorities”, the Bench said while further adding that the bodies, authorities, regulators, and executive offices entrusted with environmental duties must function with the following institutional features:

• The composition, qualifications, tenure, method of appointment and removal of the members of these authorities must be clearly laid down. Further, the appointments must be regularly made to ensure continuity and these bodies must be staffed with persons who have the requisite knowledge, technical expertise, and specialisation to ensure their efficient functioning.
• The authorities and bodies must receive adequate funding and their finances must be certain and clear.
• The mandate and role of each authority and body must be clearly demarcated so as to avoid overlap and duplication of work and the method for constructive coordination between institutions must be prescribed.
• The authorities and bodies must notify and make available the rules, regulations, and other guidelines and make them accessible by providing them on the website, including in regional languages, to the extent possible. If the authority or body does not have the power to frame rules or regulations, it may issue comprehensive guidelines in a standardised form and notify them rather than office memoranda.
• These bodies must clearly lay down the applicable rules and regulations in detail and the procedure for application, consideration, and grant of permissions, consent, and approvals.
• The authorities and bodies must notify norms for public hearing, the process of decision-making, prescription of right to appeal, and timelines.
• These bodies must prescribe the method of accountability by clearly indicating the allocation of duties and responsibilities of their officers.
• There must be regular and systematic audit of the functioning of these authorities.

The Bench concluded the matter by saying, “The constitutional courts will monitor the functioning of these institutions so that the environment and ecology is not only protected but also enriched.”