[2024] 1 S.C.R. 1194 : 2024 INSC 78
In Re: T. N. Godavarman Thirumulpad
v.
Union of India and Ors.
(Writ Petition (Civil) No. 202 of 1995)
31 January 2024
[B.R. Gavai, Pamidighantam Sri Narasimha and
Prashant Kumar Mishra, JJ.]
Issue for Consideration
Institutionalisation and Reconstitution of the Central Empowered
Committee.
Headnotes
Environment – Environment (Protection) Act, 1986 – Central
Empowered Committee (CEC) – Institutionalisation and
Reconstitution – Central Empowered Committee (CEC)
constituted by Supreme Court’s order in 2002 functioned as
an ad hoc body almost for two decades – Suggestion of the
Court to constitute the CEC as a permanent statutory body
was accepted – Draft notification published by Ministry of
Environment, Forest and Climate Change (MoEFCC) for
constitution of the CEC – Examined, suggestions made
were incorporated – Eventually, notification dtd. 05.09.2023
u/s.3(3), Environment (Protection) Act was issued by MoEFCC
constituting the CEC as a permanent authority:
Held: By virtue of the Notification dtd. 05.09.2023, the concerns
regarding the functioning of the CEC as an ad hoc body and its
institutionalisation as a permanent body have been taken care
of – The Notification provides for the constitution of the CEC, its
powers, functions, mandate, members, method of appointment,
terms of service, and monitoring of its functioning – CEC to adopt the
measures directed to promote institutional transparency, efficiency,
and accountability in its functioning. [Paras 20, 21]
Environment (Protection) Act, 1986 – Notification issued
constituting the CEC as a permanent authority – It provided
that the States or Central Government shall give reasons in
[2024] 1 S.C.R. 1195
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
writing for not accepting any suggestion/recommendation of
the CEC and the decision of the Central Government shall
be final; in case of deferment of the decision of any State
Government with the CEC’s recommendation, the matter shall
be referred to the Central Government and its decision shall be
final and binding – Decisions of the Central Government/State
Governments are subject to the orders of Court, reiterated:
Held: Decisions of the Central Government or State Governments
are always subject to the orders of this Court – When this notification
was placed before this Court, this position was clarified – Order
of the State and/or Central Government under clauses 3 and 4
will be subject to any direction or order that this Court may pass
from time to time. [Para 17]
Environment – Environmental governance – Environmental
rule of law – Role of constitutional courts:
Held: Environmental rule of law refers to environmental governance
that is undergirded by the fundamental tenets of rule of law –
While several laws, rules, and regulations exist for protection
of the environment, their objective is not achieved as there is a
considerable gap as these laws remain unenforced or ineffectively
implemented – Rule of law in environmental governance seeks to
redress this issue as the implementation gap has a direct bearing
on the protection of the environment, forests, wildlife, sustainable
development, and public health, eventually affecting fundamental
human rights to a clean environment that are intrinsically tied
to right to life – In India, environmental rule of law must draw
attention to the existing legal regime, rules, processes, and norms
that environmental regulatory institutions follow to achieve the
goal of effective and good governance and implementation of
environmental laws – More importantly, the focus must be on the
policy and regulatory and implementation agencies – In doing
so, environmental rule of law fosters open, accountable, and
transparent decision making and participatory governance – The
renewed role of constitutional courts will be to undertake judicial
review to ensure that institutions and regulatory bodies comply with
the principles of environmental rule of law. [Paras 23-25]
1196 [2024] 1 S.C.R.
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Environment – Environmental governance – Environmental rule
of law – Existing institutional governance of the environment
in India – Principles formulated for the effective monitoring
of various bodies, institutions and regulators established for
protecting forests, wildlife, environment and ecology – An
overview of the bodies regulating the environment in India
encapsulated – Bodies, authorities, and officers under the
Union and States involved in environmental governance
also enumerated – Importance of ensuring the effective
functioning of these environmental bodies for the protection,
restitution, and development of the ecology, reiterated –
Role of the constitutional courts is to monitor the proper
institutionalisation of environmental regulatory bodies and
authorities – The bodies, authorities, regulators, and executive
offices entrusted with environmental duties must function with
the institutional features as stipulated. [Paras 26, 30 and 31]
Words and Phrases – ‘Rule of law’ – Discussed. [Para 23]
Case Law Cited
T.N. Godavarman Thirumulpad v. Union of India, (2013)
8 SCC 198; T.N. Godavarman Thirumulkpad v. Union of
India, [1996] 9 Suppl. SCR 982 : (1997) 2 SCC 267;
T.N. Godavarman Thirumulkpad v. Union of India, [1997]
2 SCR 642 : (1997) 3 SCC 312; T.N. Godavarman
Thirumulpad v. Union of India, (2002) 10 SCC 646; T.N.
Godavarman Thirumulpad v. Union of India, (2009) 17
SCC 755; T.N. Godavarman Thirumulpad v. Union of
India, (2013) 8 SCC 204; T.N. Godavarman Thirumulpad
v. Union of India, [2008] 3 SCR 141 : (2008) 3 SCC
182; T.N. Godavarman Thirumulpad v. Union of India,
(2009) 16 SCC 401; T.N. Godavarman Thirumulpad v.
Union of India, (2022) 10 SCC 584; Vijay Rajmohan v.
CBI, [2022] 19 SCR 563 : (2023) 1 SCC 329; Greater
Mumbai v. Ankita Sinha, [2021] 10 SCR 1 : 2021 SCC
OnLine SC 897; S. Jagannath v. Union of India, [1996]
9 Suppl. SCR 848 : (1997) 2 SCC 87; M.C. Mehta v.
Union of India, (1997) 11 SCC 312 ; Hanuman Laxman
Aroskar v. Union of India, [2019] 5 SCR 916 : (2019) 15
SCC 401 ; Himachal Pradesh Bus-Stand Management
& Development Authority v. Central Empowered
Committee, (2021) 4 SCC 309 – referred to.
[2024] 1 S.C.R. 1197
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
Books and Periodicals Cited
United Nations, ‘Environmental Rule of Law: First Global
Report’ (2019) https://www.unep.org/resources/assessment/
environmental-rule-law-first-global-report, p.1, 8.
List of Acts
Environment (Protection) Act, 1986; Forest (Conservation) Act,
1980; Water (Prevention and Control of Pollution) Act, 1974; Air
(Prevention and Control of Pollution) Act, 1981; Wildlife Protection
Act, 1972; Biological Diversity Act, 2002; National Green Tribunal
Act, 2010.
List of Keywords
Central Empowered Committee; Reconstitution; Institutionalisation;
Ad hoc body; Permanent statutory body; Institutional transparency;
Environmental governance; Environmental rule of law; Principles
of environmental rule of law; Rule of law; Environmental
jurisprudence; Role of constitutional courts; Judicial review;
Environmental matters;
Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.202 of
1995.
Appearances for Parties
A.D.N. Rao, Harish N. Salve, Ms. Aparajita Singh, Sr. Advs. [A.Cs.],
Siddhartha Chowdhury, K. Parameshwar, Advs. [A.Cs.], M.V.
Mukunda, Ms. Kanti, Ms. Aarti Gupta, Chinmay Kalgaonkar, Advs.
Tushar Mehta, SG, Ms. Aishwarya Bhati, A.S.G., A.N.S. Nadkarni,
Sr. Adv., Ms. Shagun Thakur, Ms. Manisha Chava, Gurmeet Singh
Makker, Ms. Archana Pathak Dave, Ms. Suhashini Sen, S. S. Rebello,
Shyam Gopal, Raghav Sharma, Sughosh Subramanyam, Ms. Ruchi
Kohli, Atul Sharma, Salvador Santosh Rebello, Ms. Deepti Arya, Ms.
Arzu Paul, Siddhant Gupta, Ms. Manisha Gupta, Rishikesh Haridas,
Abhishek Atrey, Ms. Vidyottma Jha, Shailesh Madiyal, Sravan Kumar
Karanam, Santhosh Kumar Puppala, Shireesh Tyagi, Advs for the
appearing parties.
Petitioner/Applicant-in-person
1198 [2024] 1 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
P. C.
1. This judgment is in the context of institutionalisation and reconstitution
of the Central Empowered Committee.1
The CEC was originally
directed to be constituted by an order of this Court dated 09.05.2002.2
Almost for a period of two decades, the CEC was functioning as an
ad hoc body. We noticed that 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. We also noticed
that much water had flown when the CEC was initially constituted,
inasmuch as, various enactments concerning environmental issues
were enacted, so also various regulatory bodies were constituted
under the said enactments. We further found it necessary to have a
relook at the CEC’s functioning. We, therefore, passed orders dated
24.03.2023 and 18.05.2023 in this regard.
2. The Ministry of Environment, Forest and Climate Change thereafter
issued a Notification dated 05.09.2023 under Section 3(3) of the
Environment (Protection) Act, 1986, 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”.
3
By our order dated 18.08.2023, we have approved the aforesaid
Notification. While approving the Notification, we also declared
that the CEC shall continue to function subject to such orders and
directions that this Court may pass from time to time.
3. In Part I of this judgment, we will first present the conception,
constitution, functions, and finally the institutionalisation of the CEC.
In Part II, to entrench environmental rule of law in our environmental
1 Hereinafter ‘CEC’.
2 In IA No. 295 in WP(C) No. 202/1995 reported as T.N. Godavarman Thirumulpad v. Union of India,
(2013) 8 SCC 198. Pursuant to the said direction, a notification dated 17.09.2002 was issued by the
Central Government constituting the CEC as a statutory authority under Section 3(3) of the Environment (Protection) Act, 1986.
3 See the Preamble of the notification dated 05.09.2023.
[2024] 1 S.C.R. 1199
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
governance, we have attempted to formulate some new principles for
the effective monitoring of various bodies, institutions, and regulators
established for protecting our forests, wildlife, environment, and
ecology.
PART - I
4. Original Constitution and Functioning of CEC till 2023: This Court’s
endeavours to protect forests in India and to ensure regulation of
non-forest activities in forests commenced in 1996. Even prior to
the constitution of the CEC, this Court directed the constitution
of various bodies to oversee and monitor the compliance of its
orders. In one of the most important orders dated 12.12.1996,4
this
Court defined the term ‘forest’ as covering all statutorily recognised
forests, irrespective of how they were designated (either as reserved,
protected or otherwise). The term ‘forest land’ in Section 2 of the
Forest (Conservation) Act, 1980 was held to include any area recorded
as a forest in government records, irrespective of its ownership.
Along with mandating prior approval of the Central Government to
undertake any non-forest activities in forests and issuing directions
on the felling of trees, this Court also directed the constitution of
Expert Committees by each state government to identify ‘forests’
and sustainable existence of saw mills in forests. This Court also
directed each state government to constitute a committee with the
Principal Chief Conservator of Forests and another Senior Official to
oversee the compliance of its orders and the filing of status reports
by the states.
5. In its order dated 04.03.1997,5
this Court constituted a High-Powered
Committee6
to oversee the implementation of its orders in the NorthEastern region and to also oversee preparation of inventory of timber,
apart from permitting its sale. By order dated 17.04.2000,7
this Court
empowered the HPC to also supervise the transportation of illegal
timber, oversee investigation into cases of illegal felling of trees, and
to re-examine licensing of units.
4 T.N. Godavarman Thirumulkpad v. Union of India, [1996] Supp. (9) SCR 982 : (1997) 2 SCC 267.
5 T.N. Godavarman Thirumulkpad v. Union of India, [1997] 2 SCR 642 : (1997) 3 SCC 312.
6 Hereinafter ‘HPC’.
7 T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 646.
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6. The CEC was constituted by this Court by order dated 09.05.20028
to monitor the implementation of its orders and to present cases of
non-compliance, including with respect to encroachment removals,
implementation of working plans, compensatory afforestation,
plantations and other conservation issues. The Court directed that the
CEC must be constituted until such time that the Central Government
constitutes a statutory body under Section 3 of the Environment
(Protection) Act. The CEC, so constituted comprised: (i) a Chairman,
nominated by the Ministry of Environment and Forests9
in consultation
with the amicus curiae, (ii) a nominee of the MoEF, (iii) two NGOs
who are to be nominated in consultation with the amicus curiae, and
(iv) a Member Secretary. These members (other than the nominee
of the MoEF) could not be removed without the Court’s permission.
7. The above order required that the reports and affidavits filed by states
pursuant to this Court’s orders were to be placed before the CEC
for its examination and recommendations. The recommendations
of the CEC would be placed before this Court for orders. Further,
persons who are aggrieved by any steps taken by the government
in purported compliance of this Court’s orders could seek relief from
the CEC, which must decide the applications in conformity with the
Court’s orders. To perform these functions, the CEC was given the
power to call for documents from any person or government, summon
any person and receive evidence on oath, and seek assistance/
presence of any person or official, including the power to co-opt
persons as special invitees for dealing with specific issues. When an
issue pertains to a particular state, the Chief Secretary and Principal
Chief Conservator of Forests of that state were to be co-opted as
special invitees wherever feasible. The composition of the CEC was
finalised by this Court by order dated 09.09.2002.10 In this order, the
Court also took note of the draft proposed notification under Section
3(3) of the Environment (Protection) Act that constituted the CEC
8 T.N. Godavarman Thirumulpad v. Union of India, (2013) 8 SCC 198.
9 Hereinafter ‘MoEF’.
10 T.N. Godavarman Thirumulpad v. Union of India, (2009) 17 SCC 755. Under this order, the Court appointed the following members of the CEC:
a. PV Jayakrishnan, Secretary, Government of India as Chairman;
b. Shri NK Joshi, ADG of Forests, Member;
c. Valmik Thapar, Ranthambore Foundation as Member;
d. Advocate Mahendra Vyas as Member;
e. MK Jiwrajka, IGF as Member Secretary.
[2024] 1 S.C.R. 1201
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
as a statutory body for five years. The Court directed that once the
notification is issued, the functions and responsibilities of the CEC are
to be exercised as a statutory committee. The Central Government
issued the notification constituting the CEC under Section 3(3) on
17.09.2002.11
8. The first modification of the order dated 09.05.2002 came by way
of order dated 14.12.2007.12 The modified terms of reference, which
superseded all previous orders, were as follows:
“1.2. The committee shall exercise the following powers and
perform the following functions:
(i) to monitor the implementation of this Court’s orders and
place reports of non-compliance before the Court and the
Central Government for appropriate action;
(ii) to examine pending interlocutory applications in the said
writ petitions (as may be referred to it by the Court) as
well as the reports and affidavits filed by the States in
response to the orders passed by the Hon’ble Court and
place its recommendations before the Court for orders;
(iii) to deal with any applications made to it by any aggrieved
person and wherever necessary, to make a report to this
Court in that behalf;
(iv) for the purposes of effective discharge of powers conferred
upon the Committee under this order, the Committee can:
(a) call for any documents from any persons or the
Government of the Union or the State or any
other official;
(b) undertake site inspection of forest area involved;
(c) seek assistance or presence of any person(s) or
official(s) required by it in relation to its work;
(d) co-opt one or more persons as its members or as
special invitees for dealing with specific issues;
11 No.13-21/98-SU-PT.II.
12 T.N. Godavarman Thirumulpad v. Union of India, (2013) 8 SCC 204.
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(e) co-opt, wherever feasible, the Chief Secretary or
his representative and Principal Chief Conservator
of Forests of the State as special invitees while
dealing with issues pertaining to a particular State;
(f) to suggest measures generally to the State, as
well as Central Government, for the more effective
implementation of the Act and other orders of this
Court;
(v) to examine and advise/recommend on any issue referred
to the Committee.”
9. The composition of the CEC was modified by this Court by its order
dated 21.02.200813 and the term of office for the new members was
directed to be for three years or until further orders, whichever is
earlier. In another order dated 11.09.2009, one of the members of
the CEC was replaced14 and by order dated 03.02.2017, the Member
Secretary was replaced.15
10. Developments in 2023: It is in the context of IA No. 174896/2019
seeking permission of this Court to construct a Convention Centre at
Patnitop that the present issue of reconstitution of CEC is taken up.
The said application was allowed by this Court on 24.02.2023 subject
to obtaining clearance from the concerned statutory authorities.16
11. The CEC submitted its report on the subject matter on 13.03.2023.
When the report was placed before this Court on 24.03.2023, the
Court made the following observations regarding the functioning
of the CEC. The relevant portion of the order dated 24.03.2023 is
extracted below:17
“10. In any case, we are of the view that once an order is
passed by this Court, it is not appropriate for a Committee
which was constituted under the very orders of this Court
to give a report which in effect, questions the correctness
or otherwise, of the orders passed by this Court.
13 T.N. Godavarman Thirumulpad v. Union of India, [2008] 3 SCR 141 : (2008) 3 SCC 182.
14 T.N. Godavarman Thirumulpad v. Union of India, (2009) 16 SCC 401.
15 T.N. Godavarman Thirumulpad v. Union of India, (2022) 10 SCC 584.
16 IA No. 196062 and 174896 of 2019 in T.N. Godavarman Thirumulpad v. Union of India, W.P. (C) No.
202/1995, order dated 24.02.2023
17 IA No. 196062 and 174896 of 2019 along with CEC Report No. 11/2023 in T.N. Godavarman Thirumulpad v. Union of India, W.P. (C) No. 202/1995, order dated 24.03.2023.
[2024] 1 S.C.R. 1203
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
11. A Committee which is constituted under the orders of
the Court cannot consider itself to be an appellate authority
in regard to the orders passed by this Court.
12. We are further informed by the learned Solicitor General
that at times, the members of the CEC are not ad idem on
all the issues, which are ultimately reported to this Court.
13. We, therefore, direct that hereinafter, wherever there
is a separate or dissenting opinion of any of the members
of the CEC, such opinion shall also be placed before the
Court alongwith the report.
14. It is further informed that some of the members of the
Committee have crossed the age of 75 years and some
of the members are also living abroad.
15. No doubt, the Committee has rendered yeomen
services to the cause of environment. However, we are
of the view that for effective functioning of the CEC, it is
appropriate that some experts in the relevant fields who
are relatively younger to the present incumbents, can
contribute in a more energetic and efficient manner. It will
therefore be appropriate that some of the old members,
who have attained an advanced age or are not available
in India all the time, are replaced by younger members.
16. We, therefore, request the learned Solicitor General and
both the learned Amicus Curiae to give a list of persons,
who have expertise in environmental and ecological fields.
The same shall be done within three weeks from today.
17. List these applications on 19.04.2023 for direction.”
12. When the matter was next listed on 18.05.2023,18 learned Solicitor
General submitted that the Central Government had accepted the
suggestion of the Court to constitute the CEC as a permanent
statutory body. Union of India was to publish a draft notification under
Section 3 of the Environment (Protection) Act, 1986 to constitute the
CEC within 15 days and place the notification before this Court. This
18 T.N. Godavarman Thirumulpad v. Union of India, I.A. Nos. 196062 and 174896 of 2019 in W.P. No.
202/1995, order dated 18.05.2023.
1204 [2024] 1 S.C.R.
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notification would contain provisions on the qualification of members,
their tenure, powers and responsibilities, etc. The relevant portion
of the order dated 18.05.2023 is extracted below:
“On the last date when the matter was heard, a suggestion
was made by the Bench that instead of the CEC (Central
Empowered Committee) being an ad-hoc body, it would be
in the larger interest that the CEC as an institution should
be a permanent statutory body.
Mr. Tushar Mehta, learned Solicitor General, has accepted
the said suggestion. He states that the Union of India would
publish a draft notification under the provisions of Section
3 of the Environment (Protection) Act, 1986 providing for
the constitution of the CEC.
He submitted that the draft notification would contain
provisions related to the qualification of the Members to be
appointed, their tenure, their powers and responsibilities
etc.
Learned Solicitor General submits that the draft notification
will be published within a period of 15 days from today
and that the same shall be placed before the Court on
the next date.”
13. On 18.08.2023,19 a draft notification issued by the Ministry of
Environment, Forest and Climate Change20 for constitution of the
CEC was placed before the Court, with a copy to the learned amicus
curiae. We examined the draft notification in detail and made certain
suggestions about incorporating certain features for the effective
and efficient functioning of the CEC. Certain suggestions were also
made by the learned amicus curiae. The learned Solicitor General
did not have any objection to the same and submitted that the
suggestions would be incorporated in the final notification. Pursuantly,
the Central Government was permitted to proceed with the issuance
of the notification to constitute the CEC as a permanent body in the
interest of all stakeholders. This Court also permitted the MoEFCC to
19 T.N. Godavarman Thirumulpad v. Union of India, I.A. Nos. 196062 and 174896 of 2019 in W.P. No.
202/1995, order dated 18.08.2023.
20 Hereinafter ‘MoEFCC’.
[2024] 1 S.C.R. 1205
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
proceed with the constitution of members of the CEC in accordance
with the notification. The relevant portion of the order passed by this
Court is extracted below:
“2. In pursuance of the aforesaid order, Mr. Tushar
Mehta, learned Solicitor General of India, has handed
over a draft notification to be issued by the Ministry of
Environment, Forest and Climate Change (MoEFCC)
regarding constitution of Central Empowered Committee
(CEC). The said draft has already been shared with Mr.
K. Parameshwar, learned Amicus Curiae.
3. Learned Amicus Curiae submits that he has only one
suggestion to the draft notification i.e. there should be a
provision for periodical audit of the functioning of the CEC
by the MoEFCC.
4. Learned Solicitor General does not have any objection
to the said suggestion. He states that the suggestion given
by the learned Amicus Curiae would be incorporated in
the final notification that would be issued by the MoEFCC.
5. We, therefore, permit the Union of India to proceed
further with the issuance of notification for constitution of
the CEC as a permanent body.
6. We find that rather than CEC functioning as an ad hoc
body, it functioning as a permanent body would be in the
interest of all the stake holders.
7. We also permit the MoEFCC to proceed further with the
constitution of the CEC in accordance with the notification
that will be issued by the MoEFCC.”
14. Pursuant to the above referred orders dated 18.05.2023 and
18.08.2023, the MoEFCC issued a Notification dated 05.09.202321
under Section 3(3) of the Environment (Protection) Act to constitute
a permanent authority, i.e., the Central Empowered Committee
(CEC), for monitoring and ensuring compliance of this Court’s orders
covering the subject-matter of environment, forest, and wildlife and
related issues arising out of these orders; and to suggest measures
and make recommendations to the states and Central Government
for more effective implementation of the Act and this Court’s orders.
21 E. F. No. 13-12/2022-SU.
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15. Under the new notification, the CEC shall comprise: i) Chairman,
ii) Member Secretary, and iii) Three expert members (one each
from the fields of environment, forest, and wildlife). The Chairman
and three expert members are to be nominated by the Central
Government for a tenure of 3 years, which can be extended to one
more tenure subject to the prescribed age limit of 66 years. The
Member Secretary is appointed by the Central Government to be
the Chief Coordinating Officer of the CEC and to assist the CEC in
the discharge of its functions.
16. The notification also provides for the functions and powers of the
CEC in accordance with the orders of this Court along with certain
other functions. They are:
“2. The Committee shall exercise the following powers and
perform the following functions:-
A. Powers and functions conferred upon the Committee by
the Hon’ble Supreme Court of India in Writ Petition (Civil)
No. 202/1995 and 171/1996 in the case of T. N. Godavarman
Thirumalpad Vs. Union of India and others:-
a) to monitor the implementation of Supreme Court’s orders
in above matters and place reports of noncompliance
before the Central Government for appropriate actions;
b) to deal with any applications made to it by any aggrieved
person and wherever necessary, to make a report to the
Central Government in that matter;
c) for the purposes of effective discharge of powers conferred
upon the Committee under this order; the Committee can:-
i. call for any documents from any persons or the
government of the Union or the State or any other
official.
ii. undertake site inspection.
iii. seek assistance or presence of any person(s) or
official(s) required by it in relation to its work.
iv. co-opt one or more persons as special invitees for
dealing with specific issues.
[2024] 1 S.C.R. 1207
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
v. co-opt, wherever feasible, the Secretary of the State
Government dealing with the subjects related to
Forest or Wildlife or Environment or his representative
or the Principal Chief Conservator of Forests of the
State as special invitees while dealing with issues
pertaining to a particular State.
vi. to suggest or recommend measures generally to the
State as well as Central Government, for the more
effective implementation of the Act and other orders
of the Supreme Court in above matters.
B. to examine and advise or recommend on any issue referred to
the Committee by the Central Government, from time to time.”
17. The notification provides that the states or Central Government
shall give reasons in writing for not accepting any suggestion
or recommendation of the CEC and the decision of the Central
Government shall be final.22 Further, in case of deferment of the
decision of any State Government with the CEC’s recommendation,
the matter shall be referred to the Central Government and the
decision of the Central Government shall be final and binding.23
We may clarify at this very stage that the decisions of the Central
Government, or, for that matter, State Governments, are always
subject to the orders of this Court. When this notification was placed
before us, we clarified this position, and we hereby reiterate that the
order of the State and/or Central Government under clauses 3 and
4 will be subject to any direction or order that this Court may pass
from time to time.
18. The members of the CEC are appointed in their personal capacity
and are to function under the administrative control of the MoEFCC,
with headquarters in Delhi.24 The salaries and allowances payable,
other perks and conditions of service of the Chairperson and members
are to be prescribed and they cannot be varied to their disadvantage
after the appointment.25 MoEFCC is required to provide suitable and
adequate office accommodation for the CEC and requisite manpower,
22 ibid, s.3.
23 ibid, s.4.
24 ibid, s.5.
25 ibid, s.6.
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budgetary support, and infrastructure for the discharge of functions
and powers delegated to the CEC.26 MoEFCC is also required to
meet the expenditure incurred, including salaries and remuneration
to members and supporting staff.27 The CEC is required to submit
quarterly reports to the Central Government and MoEFCC for
periodical review and audit of the CEC’s functioning.28
19. Finally, the Central Government appointed the members of the CEC
by another notification dated 08.09.2023, and the composition is as
follows:29 i) Sri Siddhant Das, Chairman, ii) Sri Chandra Prakash
Goyal, Member, iii) Sri Sunil Limaye, Member, iv) Dr. J.R. Bhatt,
Member and v) Ms Banumathi G, Assistant Inspector General of
Forests, MoEFCC, Member Secretary. Thereafter, the matter came
up before us on 11.12.2023. On the said date, we heard the learned
Solicitor General as well as the learned amicus curiae at length.
We had also called for suggestions for more effective functioning
of the CEC.
20. We find that by virtue of the Notification dated 05.09.2023, our
concerns regarding the functioning of the CEC as an ad hoc body
and that hereinafter it should be institutionalised as a permanent
body have been taken care of. The said Notification provides for the
constitution of the CEC, its powers, functions, mandate, members,
method of appointment, terms of service, and monitoring of its
functioning.
21. We further direct the CEC to adopt the following measures to
promote institutional transparency, efficiency, and accountability in
its functioning:
i. 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.
ii. 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.
26 ibid. s.7.
27 ibid, s.8.
28 ibid, s.9.
29 F. No. 13-12/2022-SU.
[2024] 1 S.C.R. 1209
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
iii. The CEC shall formulate guidelines for site visits and, if
necessary, hearing the public and affected parties therein.
iv. The CEC shall formulate guidelines fixing time limits for site
visits, preparation of reports, and also the manner of preparation
of reports.
v. We further direct that these guidelines/regulations must be
accessible for anyone to seek. They shall be posted on the
official website of the CEC.
PART-II
22. 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.
23. Environmental Rule of Law: Environmental rule of law refers to
environmental governance that is undergirded by the fundamental
tenets of rule of law.30 The rule of law regime is one that has effective,
accountable, and transparent institutions; responsive, inclusive,
participatory, and representative decision-making; and public access
to information.31 It recognises the vital role that institutions play
in governance and focuses on defining the structural norms and
processes that guide institutional decision-making.32
24. While several laws, rules, and regulations exist for protection of the
environment, their objective is not achieved as there is a considerable
gap as these laws remain unenforced or ineffectively implemented.
30 United Nations, ‘Environmental Rule of Law: First Global Report’ (2019) https://www.unep.org/resources/assessment/environmental-rule-law-first-global-report, p.1, 8. The United Nations has
defined environmental rule of law with reference to 7 core components, which are:
i. Fair, clear, and implementable environmental laws;
ii. Access to information, public participation, and access to justice through courts, tribunals, commissions, and other bodies;
iii. Accountability and integrity of decision-makers and institutions;
iv. Clear and coordinated mandates and roles, across and within institutions;
v. Accessible, fair, impartial, timely and responsive dispute resolution mechanisms;
vi. Recognition of the mutually reinforcing relationship between rights and environmental rule of law; and
vii. Specific criteria for the interpretation of environmental law.
31 Hanuman Laxman Aroskar v. Union of India, [2019] 5 SCR 916 : (2019) 15 SCC 401, para 156.
32 Himachal Pradesh Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309, para 48.
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Rule of law in environmental governance seeks to redress this issue
as the implementation gap has a direct bearing on the protection
of the environment, forests, wildlife, sustainable development, and
public health, eventually affecting fundamental human rights to a clean
environment that are intrinsically tied to right to life.33 Accountability
of the authorities impressed with the duty to enforce and implement
environmental and other ecological laws is an important feature of
judicial governance. In the context of accountability, this Court in
Vijay Rajmohan v. CBI34 has held:
“34. Accountability in itself is an essential principle of
administrative law. Judicial review of administrative action
will be effective and meaningful by ensuring accountability
of the officer or authority in charge.
35. The principle of accountability is considered as a
cornerstone of the human rights framework. It is a crucial
feature that must govern the relationship between “duty
bearers” in authority and “right holders” affected by their
actions. Accountability of institutions is also one of the
development goals adopted by the United Nations in 2015
and is also recognised as one of the six principles of the
Citizens Charter Movement.
36. Accountability has three essential constituent
dimensions : (i) responsibility, (ii) answerability, and (iii)
enforceability. Responsibility requires the identification
of duties and performance obligations of individuals in
authority and with authorities. Answerability requires
reasoned decision-making so that those affected by their
decisions, including the public, are aware of the same.
Enforceability requires appropriate corrective and remedial
action against lack of responsibility and accountability to
be taken. Accountability has a corrective function, making
it possible to address individual or collective grievances. It
enables action against officials or institutions for dereliction
of duty. It also has a preventive function that helps to
identify the procedure or policy which has become nonfunctional and to improve upon it.”
33 Hanuman Laxman Aroskar (supra), paras 143-144.
34 (2023) 1 SCC 329.
[2024] 1 S.C.R. 1211
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
25. In India, environmental rule of law must draw attention to the existing
legal regime, rules, processes, and norms that environmental
regulatory institutions follow to achieve the goal of effective and
good governance and implementation of environmental laws. More
importantly, the focus must be on the policy and regulatory and
implementation agencies. In doing so, environmental rule of law
fosters open, accountable, and transparent decision-making and
participatory governance. The renewed role of constitutional courts
will be to undertake judicial review to ensure that institutions and
regulatory bodies comply with the principles of environmental rule
of law.
26. Existing Institutional Governance of the Environment in India:
Environmental regulation in our country is performed by various bodies
constituted under legislations concerning the environment, forests,
and wildlife. Governance is also through the exercise of executive
power by the Central and State Governments. These bodies perform
their function of regulating private and public activities that impact the
environment, forests, and wildlife in accordance with environmental
legislations, rules, regulations, and notifications passed under them.
An overview of some of the main bodies that regulate the environment
in India can be encapsulated as follows:
i. Central Pollution Control Board (CPCB) and State Pollution
Control Boards (SPCB): These Boards were initially constituted
under the Water (Prevention and Control of Pollution) Act, 1974.35
They also function under the Air (Prevention and Control of
Pollution) Act, 1981.36 The function of the CPCB under these
Acts is to promote cleanliness of water streams and wells and
to improve air quality and combat air pollution. In furtherance
of these functions, the Board advises the Central Government,
coordinates activities of states, provides technical assistance to
SPCBs, lays down standards, and performs any other function
as may be prescribed. The SPCBs perform similar functions
by advising the State Governments on matters concerning air
and water pollution.37
35 Water (Prevention and Control of Pollution) Act, 1974, ss. 3 and 4.
36 Air (Prevention and Control of Pollution) Act 1981, ss. 3 and 4.
37 Water (Prevention and Control of Pollution) Act, 1974, ss. 16 and 17; Air (Prevention and Control of
Pollution) Act 1981, ss. 16 and 17.
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ii. Authorities concerning protection of wildlife under the Wildlife
Protection Act, 1972: The Central Government appoints a
Director of Wild Life Preservation and the State Government
appoints Chief Wild Life Wardens, Wild Life Wardens, and
Honorary Wild Life Wardens.38
The Central Government shall constitute the National Board
for Wild Life to promote the conservation and development of
wildlife and forests.39 The National Board can frame policies
and advise the Central and State Governments on promoting
wildlife conservation and effectively controlling poaching and
illegal trade; recommend setting up and managing national parks
and sanctuaries; conduct impact assessment of activities on
wildlife; review progress of wildlife conservation; and prepare
and publish status reports on wildlife in the country.40 Similarly,
State Board(s) for Wild Life must also be constituted under the
Act for selecting and managing protected areas; formulating
policies for protection and conservation of wildlife; harmonising
the needs of tribals and forest dwellers with wildlife conservation;
and any other matter referred to it by the State Governments.41
The Central Government must constitute the Central Zoo
Authority that regulates the functioning of zoos by laying down
minimum standards, recognition and derecognition, maintaining
records, coordinating personnel training, and providing
assistance.42 The Central Government must also constitute the
National Tiger Conservation Authority under the Act,43 whose
powers and functions have been set out in Section 38O.
iii. The Central Government constitutes the Advisory Committee
under the Forest (Conservation) Act, 1980 to advise the Central
Government on the grant of approval for State Government’s use
of forest land for non-forest purposes and on any other matter
connected with forest conservation which may be referred to
it by the Central Government.44
38 Wildlife Protection Act, 1972, ss. 3 and 4.
39 Wildlife Protection Act, 1972, ss. 5A and 5C.
40 ibid.
41 Wildlife Protection Act, 1972, ss. 6 and 8.
42 Wildlife Protection Act, 1972, ss. 38A and 38C.
43 Wildlife Protection Act, 1972, s. 38L.
44 Forest (Conservation) Act 1980, s. 3.
[2024] 1 S.C.R. 1213
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
iv. The Central Government, in exercise of its power under Section
3 of the Environment (Protection) Act, 1986 constitutes the
State Environment Impact Assessment Authorities (SEIAA) at
the state level to grant prior environmental clearance to certain
projects, as specified in the Environment Impact Assessment
Notification.
v. National Biodiversity Authority and State Biodiversity Boards
are constituted under the Biological Diversity Act, 2002.45
The National Biodiversity Authority has the power to grant
permission for obtaining biological resources and to regulate
matters pertaining to the grant of such permission, including
intellectual property rights. The Authority also advises the Central
Government on conservation and sustainable and equitable use
of biodiversity, the State Governments on the management of
heritage sites, and such other functions as may be prescribed
by the Central Government.46 The State Biodiversity Boards
are tasked with advising State Governments on conservation
and sustainable and equitable use of biodiversity, regulating
the grant of approvals for commercial utilisation, bio-survey and
bio-utilisation of biological resources in India, and such other
functions as may be prescribed by the State Government.47
vi. National Green Tribunal (NGT) has been constituted by the
Central Government by notification under the NGT Act, 2010.48 It
has jurisdiction over all civil cases where a substantial question
relating to the environment is involved and such question arises
out of implementation of various legislations pertaining to the
environment.49 The NGT also has appellate jurisdiction over
certain matters arising out of the Water (Prevention and Control
of Pollution) Act, 1974; Forest (Conservation) Act, 1980; Air
(Prevention and Control of Pollution) Act, 1981; Environment
45 Biological Diversity Act, 2002, ss. 8 and 22.
46 Biological Diversity Act, 2002, s. 18.
47 Biological Diversity Act, 2002, s. 23.
48 NGT Act, 2010, s. 3.
49 As per Schedule I of the NGT Act, the following legislations are covered: (i) The Water (Prevention and
Control of Pollution) Act, 1974; (ii) The Water (Prevention and Control of Pollution) Cess Act, 1977; (iii)
The Forest (Conservation) Act, 1980; (iv) The Air (Prevention and Control of Pollution) Act, 1981; (v)
The Environment (Protection) Act, 1986; (vi) The Public Liability Insurance Act, 1991; (vii) The Biological Diversity Act, 2002.
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(Protection) Act, 1986; and Biological Diversity Act, 2002.50 In
Municipal Corporation of Greater Mumbai v. Ankita Sinha,
51
this Court has held that the NGT is a sui generis body with allencompassing jurisdiction to protect the environment. It not only
performs an adjudicatory role but also performs wider functions
in the nature of prevention, remedy, and amelioration.52
vii. In S. Jagannath v. Union of India,
53 which was a writ petition
regarding prawn farming in ecologically fragile coastal areas,
this Court directed the Central Government to constitute an
authority under the Environment (Protection) Act, 1986 and
confer it with powers to protect ecologically fragile coastal areas,
seashores, waterfronts, and other coastal areas. Pursuant to
this judgment, the Central Government by notification under
Section 3(3) constituted the National Coastal Zone Management
Authority,
54 State Coastal Zone Management Authorities,
55
and Union Territory Coastal Zone Management Authorities56 in
coastal states and union territories. The NCZMA coordinates
the actions of SCZMAs and UTCZMAs, examines proposals
for classifying coastal zonal areas, reviews violations, and
provides technical assistance to the State Governments and
Central Government.
viii. In M.C. Mehta v. Union of India,
57 this Court took suo motu
cognisance of falling ground water levels and directed the Central
Government to constitute a Central Groundwater Board as an
authority to regulate and control groundwater management and
development under Section 3(3) of the Environment (Protection)
Act, 1986. The main object of constituting the Board was the
urgent need to regulate indiscriminate boring and withdrawal
of underground water.58
50 NGT Act 2010, s. 16.
51 2021 SCC OnLine SC 897, para 61.
52 ibid, para 46.
53 (1997) 2 SCC 87, para 52.
54 Hereinafter ‘NCZMA’.
55 Hereinafter ‘SCZMA’.
56 Hereinafter ‘UTCZMA’.
57 (1997) 11 SCC 312, para 9.
58 ibid, para 12.
[2024] 1 S.C.R. 1215
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
There are many more bodies, authorities, and officers under the
Union and states that are involved in environmental governance. A
comprehensive list of such bodies, including the above, is as follows:
i. Animal Welfare Board of India59
ii. Atomic Energy Regulatory Board60
iii. Central Pollution Control Board61
iv. State Pollution Control Boards62
v. Director of Wild Life Preservation, Chief Wild Life Wardens,
Wild Life Wardens, and Honorary Wild Life Wardens 63
vi. National Board for Wild Life64
vii. State Boards for Wild Life65
viii. Central Zoo Authority66
ix. National Tiger Conservation Authority67
x. Coastal Zone Management Authority68
xi. Central Groundwater Board69
xii. Advisory Committee70
xiii. National Biodiversity Authority71
xiv. State Biodiversity Boards72
xv. National Disaster Management Authority73
59 Constituted under the Prevention of Cruelty to Animals Act, 1960.
60 Constituted under the Atomic Energy Act, 1962.
61 Constituted under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and
Control of Pollution Act, 1981.
62 ibid.
63 Appointed under the Wildlife Protection Act, 1972.
64 Constituted under the Wildlife Protection Act, 1972.
65 ibid.
66 ibid.
67 ibid.
68 Constituted by the Central Government under Section 3(3) of the Environment Protection Act pursuant
to Supreme Court Directions in S. Jagannath v. Union of India, (1997) 2 SCC 87.
69 Constituted by the Central Government under Section 3(3) of the Environment Protection Act pursuant
to Supreme Court Directions in M.C. Mehta v. Union of India, (1997) 11 SCC 312.
70 Constituted under the Forest (Conservation) Act, 1980.
71 Constituted under the Biological Diversity Act, 2002.
72 ibid.
73 Constituted under The Disaster Management Act, 2005.
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xvi. State Disaster Management Authorities74
xvii. District Disaster Management Authorities75
xviii. National Green Tribunal76
xix. State Level Advisory Bodies77
xx. National Compensatory Afforestation Fund Management and
Planning Authority78
xxi. State Compensatory Afforestation Fund Management and
Planning Authority79
xxii. Environment Impact Assessment Authorities80
xxiii. Expert Appraisal Committee81
xxiv. Dahanu Taluka Environment Protection Authority82
xxv. Wildlife Crime Control Bureau
xxvi. Forest Survey of India
27. The above referred bodies, authorities, regulators, and officers are
constituted with persons having expertise in the field. They have the
requisite knowledge to take appropriate decisions about contentious
issues of the environment, forests, and wildlife, and also to ensure
effective implementation of environmental laws. These bodies
constitute the backbone of environmental governance in our country.
They need to function with efficiency, integrity, and independence.
As duty-bearers, they are also subject to accountability.
28. We may ask a simple question – how effectively are these
environmental bodies functioning today? This question has a direct
bearing on the protection and restoration of ecological balance.
74 ibid.
75 ibid.
76 Constituted under the NGT Act, 2010.
77 Constituted under the Solid Waste Management Rules, 2016.
78 Constituted under the Compensatory Afforestation Fund Act, 2016.
79 ibid.
80 Constituted under the Environment Impact Assessment Notification issued by the Central Government
under Section 3(3) of the Environment (Protection) Act, 1986.
81 ibid.
82 Constituted by the Central Government under Section 3(3) of the Environment (Protection) Act, 1986.
[2024] 1 S.C.R. 1217
In Re: T. N. Godavarman Thirumulpad v. Union of India and Ors.
29. As environmental governance through these bodies emerges, the
obligation of the constitutional courts is even greater. Hitherto, the
constitutional courts focused on decisions and actions taken by the
executive or private persons impacting the environment and ecology
because the scrutiny by regulators was felt to be insufficient. Their
judgment, review, and consideration did not inspire confidence and
therefore, the Court took up the issue and would decide the case. In
this process, a large number of decisions rendered by this Court on
sensitive environmental, forest, and ecological matters constitute the
critical mass of our environmental jurisprudence. This Court would
continue to exercise judicial review, particularly in environmental
matters, whenever necessary.
30. We however seek 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.
31. In furtherance of the principles of environmental rule of law, the
bodies, authorities, regulators, and executive offices entrusted with
environmental duties must function with the following institutional
features:
i. 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.
ii. The authorities and bodies must receive adequate funding and
their finances must be certain and clear.
iii. 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.
iv. 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
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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.
v. 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.
vi. The authorities and bodies must notify norms for public hearing,
the process of decision-making, prescription of right to appeal,
and timelines.
vii. These bodies must prescribe the method of accountability by
clearly indicating the allocation of duties and responsibilities
of their officers.
viii. There must be regular and systematic audit of the functioning
of these authorities.
32. The role of the constitutional courts is to ensure that such
environmental bodies function vibrantly, and are assisted by robust
infrastructure and human resources. The constitutional courts will
monitor the functioning of these institutions so that the environment
and ecology is not only protected but also enriched.
33. Ordered accordingly.
Headnotes prepared by: Divya Pandey Result of the case: Directions issued.
