Aug 21

The Central Empowered Committee - A Revamped Authority for Environmental Regulation

The Supreme Court (‘SC’) recently in Re T.N. Godavarman Thirumulpad v. Union of India, (2024) has issued a slew of guidelines to follow concerning the effective utilisation of the regulatory authority; the Central Empowered Committee (‘CEC’). Under Section 3 of the Environment (Protection Act), 1986 (‘EPA’), the Central Government is empowered to take measures to protect and improve the environment. Furthermore, Section 3(3) envisages the establishment of an authority under the supervision of the Central Government for the protection of the environment. There was a dearth of such a national authority, which the SC clearly recognized and ultimately led to the CEC being established in T.N. Godavarman Thirumulpad v. Union of India in 2002 to present cases of non-compliance, encroachment removals, implementation of working plans, compensatory afforestation, plantations, and other conservation issues and to monitor the implementation of the orders of the Court.

Beyond Ad-Hoc: The Case for a Permanent CEC

The CEC functioned as an ad hoc body for more than 2 decades and there was a jostling towards the recognition of the CEC as a permanent statutory body with wider powers. The SC was also of this opinion and advocated for the same in the Godavarman case. The Ministry of Environment, Forest and Climate Change (‘MoEFCC’) thereafter issued a Notification under Section 3(3) of the EPA constituting the CEC as a permanent body. Another pressing issue found by the Court in this regard was that the composition of the CEC was occupied by persons above the age of 75 years with even some members living abroad as well. The SC recognized the pitfall of the same and for the effective functioning of the CEC, it deemed that it is appropriate that some experts in the relevant fields who are relatively younger than the present incumbents, can contribute in a more energetic and efficient manner. Therefore, the SC recommended that some of the old members, who have attained an advanced age or are not available in India all the time, be replaced by younger members. The aftermath of the Bhopal Gas Leak and its inadequacy in meting out compensation has led to the vivacity in which Courts approach environmental issues, this can be seen in the present case as well where the SC has adopted a hands-on approach to deal stringently with issues concerning the environment.

Institutionalization v. Effective Implementation

The enforcement of statutory legislation such as the EPA has been strenuous and ineffective to a larger extent in the Indian context. A lack of implementation is not limited to the Indian Context, even when 176 countries have environmental framework laws, 150 countries have enshrined environmental protection or the right to a healthy environment in their constitutions, and 164 countries have created cabinet-level bodies responsible for environmental protection, a UNEP Report states that implementation and enforcement of environmental laws and regulations falls far short of what is required to address environmental challenges. This does not mean that the CEC has been left toothless, throughout the years, it has adopted changes that have been implemented across India such as the closure of all unlicenced sandalwood oil extraction factories, prohibition on unlicenced wood-based industries unless with the permission of the CEC. This indicates the fact that the CEC has turned into a formidable authority with powers akin to any other statutory body over the years. Ultimately, the SC in the Godavarman case has laid down directions by which the CEC should function such as the need for adequate funding, the mandate of the authority to be clearly distinguished to prevent overlap with other environmental authorities, notifying norms for public hearings, decision-making, appeals, etc and finally a systematic and regular audit of the CEC for its effective functioning.

Vying Control of Environmental Issues from the Centre - A Facet of Judicial Activism?

The SC while contemplating a permanent statutory authority such as the CEC and determining its composition, powers, and effectivity, raises a question of whether there is an encroachment into the Parliament’s legislative authority, This can be seen in the approach taken by the SC to establish the CEC under Section 3 (3) of the EPA which is different from the Parliament’s approach which usually relies on Article 253 (Legislation for giving effect to international agreements) of the Indian Constitution for enacting environmental legislations as seen with the National Green Tribunal Act, 2010, the EPA among others. While the Central Government is under no such apprehensions and has vociferously accepted the demands of the SC in formulating the guidelines for the effective implementation of the CEC. Another safeguard present in the case would be that the CEC is to be constituted until such time that the Central Government constitutes a statutory body under Section 3 of the EPA. The World Wide Fund for Nature (‘WWF’) in a report has also expressed concerns over the CEC’s omnibus powers over State Governments which has resulted in even a lower-ranking officer of the CEC having a higher pull with assisting the Court than the respective State representative. This approach tends to have a pernicious effect as a CEC official sitting in Delhi will not have a grasp over the local situation that a State Government official will certainly have.

Conclusion

The CEC from its inception in 2002 has become a high-powered and formidable regulatory authority over time, the SC by its recent Godavarman decision further affirms the role and necessity of the CEC in streamlining environmental laws in India by providing for a clear mandate to a national authority which may have superintendence over other authorities. Such an attempt to simplify the numerous environmental legislations is a novel venture, some dangerous aspects of the CEC having unbridled powers emerge, especially in the context of State Authorities. The role of the constitutional courts is to monitor the proper institutionalization of environmental regulatory bodies and authorities, but at the same time, a balance is to be kept to not encroach into the domain of the legislature as well.