When Judges Collide

A storm has been brewing in Nagpur, and as is wont, it will have to be resolved in Delhi. Alas, this is not a story that involves politicians, at least on the surface. What it does, however, involve is the fate of about 23,000 trees, many of them already cut, that stand in the way of the proposed expansion of a 40-km stretch in the longest highway in the country, the erstwhile NH-7, where it runs through a dense forest in the Pench Tiger Reserve, North-West of Nagpur, and one of the largest habitats of tigers and other rare wildlife in India.

To the lawyer and the layman alike, this is almost an ego clash between two judicial bodies - the Nagpur Bench of the Bombay High Court, and the National Green Tribunal (NGT) - a statutory quasi-judicial authority headed by a former Supreme Court judge Swatanter Kumar. Under the Constitution of India, a high court is superior to a Tribunal, but under the Act that establishes it, the NGT is the arbiter of disputes that involve an impact on the environment. However, what played out in Nagpur and Delhi over the past few months was a study on the ill-effects of overlapping boundaries when the two began issuing contradictory orders, with litigants involuntarily inviting the threat of Contempt of Court proceedings for not obeying either.

But first, some background: in September 2013, a report in The Times of India titled "40 Killermeter stretch on NH-7" that spoke about the decrepit condition of a 40-km stretch on the national highway, which resulted in five deaths that year. The high court in Nagpur took up the issue suo motu, and directed the repairing of the road, which soon morphed into orders for four-laning of the stretch. For this, some 43 hectares of forest area would have to be cleared, making environment clearance mandatory.

Here is where the accounts begin to diverge. According to Tushar Mandlekar, who represented the NGO Srushti Paryavaran Mandal in the high court, the Court diluted the conditions subject to which the Stage-I clearance was given by the Forest Department of Maharashtra when it gave the go-ahead to the project, including the need for the National Board for Wild Life approval, and rejecting the proposals of the forest department as impractical.

Alternatives that would have avoided the massive felling were also dismissed by the court on account of costs (Rs 750 crore for building a highway), or the incremental vehicular emissions that would ensue if a route around the forest was adopted, which would mean an extra 70 kms (which the court, strangely, compares with the carbon sequestered by the 23,000-odd trees that are to be felled). The court might pride itself on proactively nudging the project ahead, removing obstacles as they come, including getting the relevant ministers of the Union government as well as Maharashtra to thrash out solutions. But is that it's mandate? If the court assumes the role of executive, who will administer justice? Will an aggrieved party find the confidence in the court if the executive's decision has the prior blessing of the court?

In February this year, the high court ordered for the felling of the trees. Forest clearance should have preceded tree felling, argued NGO Srushti. Environmental violations are to be challenged before the NGT under the National Green Tribunal Act, 2011. At the Tribunal, which began hearing the matter in May, there was a stay on the felling of trees till a resolution of the dispute. However, the high court would not be constrained by an order of the NGT.

Over the next few months, the two bodies virtually contradicted each other. The high court, using its powers, directed the tree felling to resume, while the NGT, after felling began, issued contempt notices to the responsible officers at NHAI and the state forest authorities. Justice Bhushan Gawai of the high court had, meanwhile, already threatened contempt proceedings against Srushti and its lawyer, Mandlekar, for approaching the NGT in Delhi when the high court was already hearing the matter.

In the meanwhile the required clearance from the NBWL also came. Finally on 11 September, Justice Gawai, in a detailed order, stayed the proceedings of the NGT as well as the contempt proceedings initiated by the Tribunal. The NGT has taken a step back since, while the NGO has approached the Supreme Court.

The situation is not unfamiliar to lawyers. Under Article 226 of the Constitution, the high court does have virtually unlimited powers to issue directions to any person, authority or government body. This would include within its scope, superintendence over Tribunals such as the NGT or a regulator such as Sebi or the Competition Commission of India (CCI).

Ashok Chawla, former finance secretary, and currently the chairman of the CCI has his share of tales to tell, where companies being investigated by the CCI get proceedings stayed by a high court. Trigger happy high courts often oblige them by imposing an interim stay, indefinitely delaying a final adjudication. "Even though there is a process prescribed by the statute (appealing CCI orders to the Competition Appellate Tribunal), parties and their lawyers who want to delay or disrupt the process resort to getting it stayed by a high court," he says.

An example is former international chess player, Gurpreet Singh Pal, who was barred from playing by the All India Chess Federation of India for participating in a tournament conducted by a rival federation. His complaint against the federation was, apparently, found to have merit by the CCI's investigation wing. However, when the Commission began hearing the matter, the AICF obtained an ex-parte stay from the Madras High Court. That was three years ago. Since then, the matter has never come up for hearing in the high court again and the player still serves his 'ban'.

The supremacy of the high courts is a necessity in a democracy. When it finds patent irregularity, it must intervene (as the Supreme Court did in the 2G case). However, to use that power to assume the roles of the statutory bodies (often comprised of experts) will only dilute the confidence the court inspires.